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So the suggestion is that “serious” is too vague to be allowed to stand alone in an Act of Parliament. If that is the case, we must look to see whether we can produce a better definition, as my noble friend Lord Howe has suggested. When I read the amendment, I thought it was pretty much like what I had in mind when we changed “life-threatening” to “serious”. However, the noble and learned Baroness, Lady Butler-Sloss, with her great experience of the judicial art, has said that lawyers stand away from, and do not wish to define, the phrase “quality of life”, and refrain from using it when giving their reasons for judgment.

I was wondering whether, perhaps, “health” might do instead. We cannot make such an amendment at this stage, but if the principle of this amendment were acceptable to the Government, as I sincerely hope it will be, it would be possible to refine it a little further. But the idea that trivial impairment to health would qualify as “serious” certainly never entered my head at the time of the Joint Committee’s deliberations. If, as has been said in relation to the earlier amendment, a definition of “serious” is required, I cannot think of anything much better than this fitting the context—except, possibly, with the substitution of “health” for “quality of life”.

Baroness Masham of Ilton: My Lords, I should like to add to the points raised by my noble friends behind me about the quality of life. I think it is dangerous when one person judges another’s quality of life. I speak as president of the Spinal Injuries Association. I have heard nurses say when they have seen a tetraplegic—generally a young man—paralysed from the neck down, in head traction, “Oh, he would be better dead”.

Tetraplegics have recovered to live a certain life that other people should not judge. I have seen many of them, and what is important is their judgment of their quality of life, which can be really remarkable. It is quite dangerous for other people to be God.

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Lord Lloyd of Berwick: My Lords, I was not very happy with the expression “quality of life”, for the reasons I have tried to explain. They have been rather reinforced by my noble and learned friend Lady Butler-Sloss. But once again, I am attracted by the solution produced by the noble and learned Lord, Lord Mackay. Is there not a way in which we can pass this amendment now, and then somehow, by agreement, substitute “health” for “quality of life” at Third Reading?

Lord Tebbit: My Lords, I agree profoundly with the noble and learned Lord. I was graciously accommodated at Stoke Mandeville, a spinal injuries hospital, in order to be near to my wife—although I had only one fractured vertebrae which nobody noticed until later. I saw a number of cases there where people with severe spinal injuries—such as tetraplegics—would simply turn their face to the wall and die. The injuries that they had received were not, in themselves, life threatening, but the psychological effect upon the patient made them feel life threatening—they simply pulled up their roots and died. Others got on with life. Who is to say who was right in all those circumstances?

The only conclusion I would draw from that is that it is extremely difficult for us to arrive at a perfect form of words which will make it utterly clear to those who are dealing with it in future—perhaps in circumstances which we have not envisaged—what they should do. In the words dreamt up by my noble friend Lord Howe, we have a workable piece of legislation. I hope that we will accept it in that light. If anybody finds something better, perhaps it could be added—either here at Third Reading, if procedure allows, or in the other place.

Lord Walton of Detchant: My Lords, having spoken in favour of the earlier amendment which was rejected by the House, I am slightly uncomfortable in speaking to this amendment moved by the noble Earl, Lord Howe. Nevertheless, it is attractive in many respects. I agree that the concept “quality of life”, despite the efforts of the healthcare economists to define what they term QALYs—quality adjusted life years—is not an attractive one, and I understand entirely the views of our judicial colleagues.

When I chaired the House of Lords Select Committee on Medical Ethics in the 1990s, we had to look at issues of terminology. We dismissed the idea of “quality of life” but came up with “health and well-being”, as the noble and learned Lord, Lord Mackay, has just suggested. That is an alternative which ought to be very seriously considered because, in general principle, the amendment has many attractions.

Baroness Hollis of Heigham: My Lords, I, too, was a member of the pre-legislative scrutiny committee, and I support the position of the noble and learned Lord, Lord Mackay. I think that he took the temperature of the committee very well when he said that by using the word “serious” we meant to incorporate the essence of the amendment of the noble Earl, Lord Howe. From the discussions that we have had on both this amendment and the previous one, it is clear that the difficulty is with the elusiveness of such vocabulary in

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the Bill, which may generate debates among lawyers and so on about precise meanings. Can my noble friend help me here? Can she say—the noble Earl, Lord Howe, might agree with her—whether an appropriate way forward might be to incorporate the definition in the form of statutory guidance either to the HFEA or from the HFEA to practitioners so that the substance of what is meant by the word “serious”—effectively, “severe”—is available without being included in the Bill in a way that gives rise to some of the hesitations that have been expressed?

Lord Elton: My Lords, perhaps I may make an arcane procedural point regarding the position if your Lordships are unable to come to a conclusion about the best formulation at this stage and if the procedures of the House forbid a return to this matter in full at Third Reading. Noble Lords should bear in mind that, if they include something in the Bill with which they are not fully satisfied and it is cast out in another place, they can then debate it and offer something in substitution so that they get another bite at this cherry, whereas if they and the other place do nothing, the matter is closed.

Baroness Royall of Blaisdon: My Lords, as we have heard, there is no definition of “serious” in the legislation. A definition was not included in the Bill in order to allow the HFEA and clinicians appropriate levels of flexibility within which to make licensing decisions, while ensuring that it would be allowed only for medical conditions that are considered to be serious. The HFEA would continue to provide guidance on embryo testing and on the criteria that it would take account of when making decisions about such testing. It would be expected that part of the guidance would include consideration of words such as “serious” in the legislation.

The Government entirely understand the noble Earl’s concern to define more closely the scope of decisions that may be made in this area. In fact, the draft Bill included further criteria which attempted to define that more precisely. However, the Government have given this further, very careful consideration and have taken on board comments from a range of stakeholders.

The term “serious” is used in several places in the Bill—notably in relation to the granting of embryo research licences for the study of serious disease. The HFEA is given flexibility within those limits—drawing on both its own expertise and the results of regular consultation—to make decisions taking account of all relevant factors. The Government believe that that should be the case here also.

There is currently no reference to embryo testing in the 1990 Act. Therefore, by including in the Bill the purposes for which embryos can be tested, we are introducing more stringent requirements than are currently in place. Because of the regulatory oversight from the HFEA and further guidance relating to embryo testing in the code of practice, we do not consider a definition of “serious” to be necessary in the Bill.

I have listened to the excellent arguments put forward in this debate, and it is clearly extremely difficult to define “serious”. The noble and learned Lord called it

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an ordinary word but, as has been pointed out, it raises a huge number of problems. I am attracted to the suggestion of my noble friend Lady Hollis that we should give further consideration to strengthening guidance in relation to this word and that perhaps we should define it more fully in the guidance. I think that we need further discussion about this. It would be difficult to include a definition in the Bill but I am certainly willing to discuss it further before Third Reading.

I noted the appropriate point made by the noble Lord, Lord Elton—that if noble Lords do not vote on this matter today, they may not have another opportunity to discuss it. I would ask that perhaps we could have further discussions with the noble Earl, Lord Howe, the noble and learned Baroness, Lady Butler-Sloss, the noble and learned Lord, Lord Mackay, and others, to see how we can proceed. As I say, it may not be possible to include this in the Bill. If not, I am certain that we could indeed strengthen the guidance. Perhaps there will be room for further discussion before Third Reading.

4.30 pm

Earl Howe: My Lords, I am grateful to Members of the House who have taken part in this debate and to the Minister for her reply. I confess that I had hoped for a rather stronger assurance from her that the Government were in principle willing to go down this avenue. I did not quite hear that, although I am grateful to the Minister for her offer.

My noble friend Lord Tebbit is absolutely right that no amendment is likely to be perfect. My hope was that this amendment would take us forward in a useful and workable way. The noble Baroness, Lady Finlay, is also correct in pointing to the shades of grey that are inherent in the word “serious”. I believe that it is too flexible a term. We want a certain amount of flexibility, but the shades of grey in the amendment are not as wide as they would be if we left the Bill as currently drafted.

The noble Lord, Lord Winston, pointed out the differences between different manifestations of a particular disease, such as muscular dystrophy and cystic fibrosis, because of different types of gene mutation. That is precisely why I thought it right to leave an element of flexibility in the definition, dependent—perhaps inevitably—on a certain amount of subjective judgment. I note the reservations of the noble and learned Baroness, Lady Butler-Sloss. As I suggested earlier, the intent behind the amendment was that the interpretation of the wording should be fleshed out by means of HFEA guidance. I suggest that that would reduce the scope for legal uncertainty.

The noble Baroness, Lady Masham, made a very telling point. We are talking here not about terminating life, but about deciding on the criteria for embryo testing, which is rather different. If the Minister had been able to give an assurance about placing this definition in guidance, as the noble Baroness, Lady Hollis, suggested, I would have wished to withdraw the amendment.

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Baroness Royall of Blaisdon: My Lords, forgive me for interrupting the noble Earl, but I did give an assurance that we would be able to do something in guidance. I could not give an assurance that we could include something in the Bill, but I give my wholehearted assurance that we will put something in guidance to that effect.

Baroness Deech: My Lords, before the Minister sits down, can she clarify the extent of the Government’s powers to put something in guidance? I recollect that it would be within the discretion of the HFEA, and I am not sure that there could be a guarantee that something would be in guidance. I may be wrong and it may be that when draft guidance goes to the department something can be inserted, but I am not sure that I recollect that.

Baroness Royall of Blaisdon: My Lords, I understand that we have given an undertaking in relation to counselling and information, and that there will be duties on the HFEA in terms of guidance. I think that it will be the same here, and we will ensure that there is a duty on the HFEA to adhere to this guidance. If I am incorrect, I will notify noble Lords as soon as possible.

Lord Slynn of Hadley: My Lords, is it the Minister’s intention that the “something” should be nearer to what has been proposed by the noble Earl, Lord Howe, or it will be very different and even more vague than the term “serious”?

Baroness Royall of Blaisdon: My Lords, we would work the basis of the wording of the amendment tabled by the noble Earl. However, we would have to take into consideration the views expressed by noble and learned Lords.

Earl Ferrers: My Lords, does the noble Baroness agree that if something is in guidance it is just that—guidance—and not an instruction? Therefore, the recipient body would look at the guidance but would not necessarily feel obliged to stand by it.

Baroness Royall of Blaisdon: My Lords, guidance is guidance, yet the code to which the HFEA must adhere needs Secretary of State approval. As I understand it, that would be statutory guidance.

Earl Howe: My Lords, I am again grateful to the Minister. The argument for having something in the Bill which more closely defines the word “serious” is that it would send a clear signal about what Parliament intended.

Lord Tebbit: My Lords, I am most grateful to my noble friend. It occurs to me that—

Lord Tordoff: My Lords, really. If the noble Lord will forgive me, I would like to remind the House that this is Report stage and not the first day of Committee. People should have stopped intervening by this stage. I know it is important, but if people wish to change the rules of the House they can do so in the usual way. This is getting totally out of hand.

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Lord Tebbit: My Lords, I have no wish to change the rules of the House. It is perfectly within the rules for me to intervene in my noble friend’s speech to ask him a question, as opposed to what has been going on, about which I had some doubts, with people asking views of the Minister during my noble friend’s speech.

Would my noble friend consider that, were this amendment to be enacted, it would still remain possible for the Government to give guidance? The only difference is that it would be guidance on the basis of what we had put into the Bill, and not what we might have put into it.

Earl Howe: My Lords, I find that intervention by my noble friend extremely helpful. It encapsulates what I was intending to say in a rather better way than I would have said it. Given the support I have received, there is a case for testing the opinion of the House. I hope the Minister will understand if I now do that.

4.36 pm

On Question, Whether the said amendment (No. 33A) shall be agreed to?

Their Lordships divided: Contents, 138; Not-Contents, 167.

Division No. 2


Alton of Liverpool, L.
Ampthill, L.
Anelay of St Johns, B.
Attlee, E.
Best, L.
Blackwell, L.
Blaker, L.
Bledisloe, V.
Boothroyd, B.
Bowness, L.
Bridgeman, V.
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Browne of Belmont, L.
Butler-Sloss, B.
Caithness, E.
Campbell of Alloway, L.
Cathcart, E.
Chester, Bp.
Chorley, L.
Clarke of Hampstead, L.
Cobbold, L.
Colville of Culross, V.
Colwyn, L.
Condon, L.
Cope of Berkeley, L.
Craig of Radley, L.
Crickhowell, L.
Crisp, L.
De Mauley, L.
Deech, B.
Denham, L.
Dixon-Smith, L.
Eccles, V.
Elliott of Morpeth, L.
Elton, L.
Falkland, V.
Fearn, L.
Ferrers, E.
Finlay of Llandaff, B.
Flather, B.
Fookes, B.
Forsyth of Drumlean, L.
Freeman, L.
Gardner of Parkes, B.
Geddes, L.
Glasgow, E.
Hanham, B.
Hannay of Chiswick, L.
Harries of Pentregarth, L.
Hayhoe, L.
Henley, L.
Hodgson of Astley Abbotts, L.
Howarth of Breckland, B.
Howe, E.
Howe of Aberavon, L.
Howe of Idlicote, B.
Hylton, L.
James of Blackheath, L.
Jay of Ewelme, L.
Jenkin of Roding, L.
Krebs, L.
Listowel, E.
Liverpool, Bp.
Livsey of Talgarth, L.
Lloyd of Berwick, L. [Teller]
Lucas, L.
Luke, L.
Lyell of Markyate, L.
McColl of Dulwich, L.
MacGregor of Pulham Market, L.
Mackay of Clashfern, L.
MacLaurin of Knebworth, L.
Manchester, Bp.
Marlesford, L.

21 Jan 2008 : Column 34

Marsh, L.
Mawhinney, L.
Mawson, L.
Mayhew of Twysden, L.
Monson, L.
Montagu of Beaulieu, L.
Morris of Bolton, B.
Morrow, L.
Moser, L.
Neill of Bladen, L.
Northbourne, L.
Norton of Louth, L.
O'Cathain, B.
O'Neill of Bengarve, B.
Oxburgh, L.
Paisley of St George's, B.
Palmer, L.
Patel, L.
Patten, L.
Pendry, L.
Platt of Writtle, B.
Powell of Bayswater, L.
Reay, L.
Rees of Ludlow, L.
Richardson of Calow, B.
Roberts of Conwy, L.
Roberts of Llandudno, L.
Rogan, L.
Rowe-Beddoe, L.
Ryder of Wensum, L.
St. Albans, Bp.
Saltoun of Abernethy, Ly.
Seccombe, B. [Teller]
Selborne, E.
Selsdon, L.
Sharples, B.
Shephard of Northwold, B.
Shrewsbury, E.
Skelmersdale, L.
Slim, V.
Slynn of Hadley, L.
Soulsby of Swaffham Prior, L.
Steinberg, L.
Stewartby, L.
Stoddart of Swindon, L.
Strathclyde, L.
Sutherland of Houndwood, L.
Swinfen, L.
Tebbit, L.
Tenby, V.
Thatcher, B.
Thomas of Gresford, L.
Tordoff, L.
Trimble, L.
Waddington, L.
Wakeham, L.
Walpole, L.
Walton of Detchant, L.
Warnock, B.
Williams of Crosby, B.
Winchester, Bp.
Windlesham, L.
York, Abp.


Acton, L.
Addington, L.
Adonis, L.
Anderson of Swansea, L.
Andrews, B.
Archer of Sandwell, L.
Ashton of Upholland, B. [Lord President.]
Avebury, L.
Bach, L.
Barker, B.
Barnett, L.
Bassam of Brighton, L.
Beaumont of Whitley, L.
Bernstein of Craigweil, L.
Bhatia, L.
Billingham, B.
Bilston, L.
Blood, B.
Bonham-Carter of Yarnbury, B.
Borrie, L.
Brett, L.
Brooke of Alverthorpe, L.
Brookman, L.
Carey of Clifton, L.
Carlile of Berriew, L.
Chandos, V.
Chidgey, L.
Christopher, L.
Clark of Windermere, L.
Clement-Jones, L.
Clinton-Davis, L.
Cohen of Pimlico, B.
Corston, B.
Coussins, B.
Craigavon, V.
Crawley, B.
Cunningham of Felling, L.
Currie of Marylebone, L.
Darzi of Denham, L.
Davidson of Glen Clova, L.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
Desai, L.
D'Souza, B.
Dubs, L.
Dykes, L.
Elystan-Morgan, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Falkender, B.
Falkner of Margravine, B.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Foster of Bishop Auckland, L.
Foulkes of Cumnock, L.
Fyfe of Fairfield, L.
Gale, B.
Garden of Frognal, B.
Giddens, L.
Golding, B.
Goodhart, L.
Goudie, B.
Gould of Brookwood, L.
Gould of Potternewton, B.
Graham of Edmonton, L.
Greengross, B.
Griffiths of Burry Port, L.
Grocott, L. [Teller]
Hamwee, B.
Harris of Haringey, L.
Harris of Richmond, B.
Harrison, L.
Hart of Chilton, L.
Haworth, L.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Howarth of Newport, L.
Howie of Troon, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.

21 Jan 2008 : Column 35

Janner of Braunstone, L.
Jay of Paddington, B.
Jones, L.
Jones of Whitchurch, B.
Kennedy of The Shaws, B.
Kerr of Kinlochard, L.
King of West Bromwich, L.
Kirkhill, L.
Lea of Crondall, L.
Lee of Trafford, L.
Lipsey, L.
Lofthouse of Pontefract, L.
McDonagh, B.
Macdonald of Tradeston, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Maddock, B.
Mar and Kellie, E.
Mason of Barnsley, L.
Massey of Darwen, B.
Maxton, L.
Meacher, B.
Mitchell, L.
Moonie, L.
Morgan of Drefelin, B.
Morgan of Huyton, B.
Morris of Aberavon, L.
Morris of Handsworth, L.
Morris of Manchester, L.
Morris of Yardley, B.
Murphy, B.
Neuberger, B.
Onslow, E.
Ouseley, L.
Parekh, L.
Pitkeathley, B.
Plant of Highfield, L.
Prosser, B.
Puttnam, L.
Radice, L.
Razzall, L.
Redesdale, L.
Rendell of Babergh, B.
Richard, L.
Rodgers of Quarry Bank, L.
Rooker, L.
Roper, L.
Rowlands, L.
Royall of Blaisdon, B.
Sainsbury of Turville, L.
Sawyer, L.
Sharp of Guildford, B.
Sheldon, L.
Shutt of Greetland, L.
Snape, L.
Soley, L.
Steel of Aikwood, L.
Stern, B.
Stone of Blackheath, L.
Symons of Vernham Dean, B.
Taverne, L.
Taylor of Blackburn, L.
Temple-Morris, L.
Teverson, L.
Thornton, B.
Tomlinson, L.
Tonge, B.
Tope, L.
Triesman, L.
Truscott, L.
Tunnicliffe, L.
Turner of Camden, B.
Vadera, B.
Wall of New Barnet, B.
Wallace of Saltaire, L.
Walmsley, B.
Warner, L.
Warwick of Undercliffe, B.
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