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Human Fertilisation and Embryology Bill [HL]

moved Amendment No. 8: 8: Clause 4, page 4, leave out line 35 The noble and learned Lord said: The amendment seeks to delete the last provision in the present definition of interspecies embryos in the Bill. Let me rehearse briefly some of the history of this matter. When the Bill came before the Joint Committee in draft form it had specific examples of interspecies embryos like the ones presently in the Bill, and a final provision which the department described as a ““catch-all””. In other words, if you took them all together you had a complete description of what was meant by interspecies embryo. The difficulty of that situation was that the scientific witnesses who were asked to comment on the catch-all provision found great difficulty in understanding it. I have not been able to find out exactly who thought it up—indeed I have not really inquired—but that is the way that the scientists viewed it. So it was not at all surprising, when the Government came to publish their Bill, that that provision had disappeared. We had suggested that the way to approach this matter was to look for a general definition of interspecies embryos, stating what their characteristics were and defining them in that way, rather than by a list of examples and then the difficult catch-all which was found to be impractical. What has now happened is that the Government have not come forward with another catch-all provision but have taken refuge in a power to add to the list of things which amount to an interspecies embryo, "““such other thing as may be specified in regulations””." Whatever you have to say about that, it is a fairly all-embracing kind of definition; the regulation-making power does not seem to be extremely restricted. When we are talking about interspecies embryos, as many Members of the Committee were doing earlier, it is essential to know what it is we are talking about. The interspecies embryos that the Government are seeking to capture, if that is the right word, in the Bill were described by the noble Lord, Lord Darzi, in his reply at Second Reading as the ““human end of the spectrum””—I think that that was his phrase—of interspecies embryos. That immediately suggests that there is more to the spectrum than is intended to be captured by this definition—and, of course, we do not have far to go to find some examples. I had understood, rather vaguely, that the Secretary of State for the Home Department regulated this, but, with the great help that I received from officials of the noble Lord’s department, I have examined this issue a little more fully. It seemed to me that if we could not get a catch-all provision, we could have a general provision and then extract from it what had already been given to the Secretary of State for the Home Department. That would make a perfectly reasonable type of definition also and I was anxious to see how that could be fitted into the scheme. The answer is that it does not fit at all. The Animals (Scientific Procedures) Act 1986 proceeds by requiring licences for animal experimentation that causes distress, pain or harm to the animals that are the subject of the legislation. The embryo of an animal does not come under the protection of that legislation until it is half-way along the gestation period for that particular animal, unless it be an animal that does not have that kind of characteristic and then it is when it first qualifies for independent feeding. So it is not captured by the Home Office legislation unless and until it is of a half-gestation period and only if it is an animal embryo. I believe that an interspecies embryo which starts off being an animal embryo and has human material inserted into it in some way or other is no longer the embryo of that animal. If that is right—and that, I think, was the hypothesis of the answer given to the Joint Committee to which the noble Lord, Lord Alton, referred—the result is that interspecies embryos are not regulated at all if they come from that end of the spectrum. They may of course attract regulation if they were to be implanted in an animal, as that would be a part of the procedure which would require a licence, but if nothing like that happens, then as far as I can see there is no regulation of these at all. I do not find that a very satisfactory situation. The split between what I might call ““the human end of the spectrum”” and ““the animal end of the spectrum”” is rather hard to define. When the working group of the association met to consider these matters it decided that the Bill with which we are concerned should aim to capture human embryos treated with animal material, leaving out animal embryos treated with human material. That was its broad definition, and basically that is what was reflected in the draft Bill and in the Bill before us. However, it is not satisfactory. Indeed, in some ways, we are in a position rather like the one we were in before the 1990 Act became law. Everyone felt that the embryo research and in vitro fertilisation should be the subject of control and there was unanimity that some regulation was required. The only dispute was what that regulation should be. In particular, the main dispute was whether research on the embryo up to the 14-days or primitive-streak stage should be allowed. The noble Lord, Lord Alton, and those of a like mind who have spoken in the previous debates on these ethical issues, would think it right that this area of interspecies embryos should be regulated, but the question is what that regulation should be. From what I have learnt up to now—and I am always in the learning process—the kind of regulation you want at the human end partakes of an extension of the regulation of the human embryos that the HFEA was set up to supervise and carry on. But there is no corresponding control at the other end. If that is the way of the situation, it is extremely important that the definition should specify where the human part of the spectrum ends. We have had some communication with experts in this area and my noble friend Lord Jenkin of Roding will speak about that. The parts of the scientific community that are interested in this field have seen the problem and are seeking to address it. They are better qualified than I am to provide an answer, although we tried to do so in the Joint Committee’s report. We realised that it was not perfect, but then no research is. As we have just heard, you cannot say it is perfect in advance; you can only do that once it has happened. We did our best, but the Government felt that that was not good enough and have proposed this route instead. It is not right to leave this important area of regulation in this vague state, with a ministerial power to say what the definition really is. The noble Lord, Lord Darzi, said at Second Reading that that gave flexibility. I entirely accept that it does, but flexibility is inappropriate at the point of definition. When you want to regulate something, I submit that it is vital that the area to be regulated is clearly defined. It is about as mad to have flexibility in that area as it would be to have flexibility in a fence around an animal enclosure. Flexibility is very useful, and Ministers—myself included—have often invoked it in support of powers of various kinds, but I respectfully suggest to your Lordships that it is not appropriate when it comes to defining an area of concept and research as important as this, where there are ethical principles to be followed that are already in the 1990 Act and will be continued in the licensing of this type of interspecies embryo, should it be allowed under provisions similar to those in the Bill. I beg to move.