Human Fertilisation and Embryology (Amendment) (EU Exit) Regulations 2019 Debate
Full Debate: Read Full DebateLord Foulkes of Cumnock
Main Page: Lord Foulkes of Cumnock (Labour - Life peer)Human Fertilisation and Embryology (Amendment) (EU Exit) Regulations 2019
Lord Foulkes of Cumnock Excerpts(5 years, 4 months ago)
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Baroness Manzoor
I understand the issue that is being raised. Perhaps I may say that the three sets of regulations bring in very similar provisions but have been drafted separately, as they amend different legislation. I am happy to take each statutory instrument separately. However, just to give advance notice, my speech will be the same.
Perhaps I may begin again. We are debating three sets of regulations which are critical in maintaining patient safety for organs, tissues and cells used to treat patients. The regulations have been developed as part of contingency planning and will be needed if we leave the EU with no agreement in place. If the UK reaches a deal with the EU, the department will revoke or amend these instruments to reflect the deal.
Lord Foulkes of Cumnock (Lab Co-op)
The Minister has confirmed that these regulations would have a purpose only if there were no deal, so all the time that she and the excellent five civil servants behind her have put in—and they have done a lot of work—will be unnecessary if a deal is agreed. Is that right?
Baroness Manzoor
With all due respect to the noble Lord, of course, as the Government, we have to put in place contingency planning. If the noble Lord will allow me to finish what I am going to say, he will understand what the regulations relate to and the reason we are putting them down.
Lord Foulkes of Cumnock
The Minister has just said that these will be required only if there is no deal. Is that correct?
Lord Foulkes of Cumnock
So the corollary of that is that all the work that she has done, and that of her predecessor, the noble Lord, Lord Shaughnessy—whom we miss; sadly, he is no longer a Minister—and all the work that the civil servants have put in is nugatory: it will be forgotten and wasted if a deal is agreed, which is the Government’s policy. Is that right?
Baroness Manzoor
My Lords, I do not know what the deal will be, if it is agreed. All I can do is deal with these SIs. I am not here to talk about the deal or the no-deal. We have done contingency planning as to what would happen to ensure patient safety and organ donations, imports and exports. The SIs relate to that. Perhaps I may continue, if the noble Lord is happy with that answer.
Lord Foulkes of Cumnock
Not really; I am not clear about this. If there is a deal, does it include something that deals with human fertilisation and embryology, which would mean that we do not need this SI? Does a part of the deal negotiated by the Prime Minister—not yet agreed by Parliament but negotiated by the Prime Minister—already cover the substance of this SI, and this SI is relevant only if there is no deal? Is that correct?
Baroness Manzoor
Yes, I have confirmed that to the noble Lord already, but we have to make contingency plans. That is why I am standing before the Committee to explain what we are doing.
Perhaps I may begin again in order to provide the context. We are debating three sets of regulations. They are critical in maintaining patient safety for organs, tissues and cells used to treat patients. These regulations have been developed as part of contingency planning, and will be needed if we leave the EU with no agreement, and I am happy to confirm that again to the noble Lord. If the UK reaches a deal with the EU, the department will revoke or amend these instruments to reflect that deal.
Baroness Manzoor
My Lords, I understand the point the noble Lord is making, but I disagree with him. This is about contingency planning, and we will move forward in that way. It is right and proper that the Government do this, and any sensible Government would be planning for any eventuality.
Lord Tyler
I understand that and I am grateful to the Minister for making the point. However, I think that the point the noble Lord has made is perfectly reasonable.
Lord Foulkes of Cumnock
The noble Lord has been in this House for a long time. I hope that he is not being taken in by what the Minister has said. If we accept what she has said and we let the regulations go through on the nod, they go on to a list and will go through the House on the nod. However, if in the end we object, as I did, to a previous instrument, there has to be a proper debate in the House at an agreed time. That is the important issue.
Baroness Manzoor
My Lords, I am very much a newbie so I offer my sincere apologies if I have misunderstood. However, my understanding is that all statutory instruments go back to the House and any Member can get up and ask for a vote. It is not simply a nod from the House. The noble Lord is fully aware of that and I have heard him say so himself in the Chamber.
The Deputy Chairman of Committees
For the convenience of the Committee, perhaps I should read out something from the Standing Orders:
“Debate must be relevant to the Question before the House”—
I believe that that is what the Minister suggested; it must be relevant to the question that I have put from the Chair—and:
“No Lord is to speak more than once to any Motion”.
Lord Foulkes of Cumnock
My Lords, perhaps this can be my speech, then. The noble Viscount in the Chair was looking at me, but there are other Members of the Committee who might need his admonition even more than I do.
Lord Foulkes of Cumnock
But the noble Viscount was looking at me. He should clarify it to everyone. I will be brief—I have only three points to make, which I hope the Minister will find useful.
If Members were in the House the other day, they would have heard the noble Lord, Lord Callanan, trying to twist things in relation to the number of SIs, where they are and how quickly they are going through. He wants to rush all these things through, and I am worried about that. It is even more worrying now: he is so keen to rush them through that he has turned the heating down in this place. The clerks are having to wear scarves to keep warm and survive. But this is a serious matter.
First, to take up the point made by the noble Lord, Lord Tyler, is it right that we should be dealing with the amendment of primary legislation as an SI in Grand Committee and not in primary legislation on the Floor of the House? It is astonishing. I have never known this to happen before; perhaps the Minister can tell us when this has been dealt with in this way before. As the noble Lord, Lord Tyler, rightly said, because we are dealing with it as an SI, we cannot amend it but can only accept it or reject it, and that makes it very difficult. It may be that my noble friend Lady Thornton on the Front Bench, who is an expert on this, would have liked to put down a number of detailed amendments, but she is not able to do that because of the way we dealing with this.
Lord Winston (Lab)
Me too. With respect, these are very complex areas of medicine and clinical science, and they are changing rapidly with increasing advances. It is clear that the existing legislation, which in some cases dates back to 1990, is no longer entirely fit for purpose. It is therefore important that the House reconsiders this legislation. It is a marvellous opportunity, and we cannot simply do this en bloc. It would be a travesty of what this Committee should be doing.
Lord Foulkes of Cumnock
I am grateful to my noble friend; as he is a world expert on these matters, it is useful to have him in the House and this Committee.
Two things worry me if we move out with no deal. First, will the trafficking of organs—people wanting to make money out of organ trafficking—become more likely? The European Union has brought some order and respectability to this, ensuring that it does not happen as it had done in the past, particularly with some countries which came into the European Union relatively recently.
Secondly—and perhaps my noble friend Lord Winston can help on this—are there increased dangers to health? In this SI we are dealing with stem cells, corneas, heart valves, eggs and sperm, skin grafts, and bone products—very sensitive, important issues. Is there scope for commercialisation in relation to that? Again, this is something we could deal with if we were not just rushing it through.
That is all I wanted to raise. I do not think we should be trying to extend this unduly. I know we do not address the Chairman in this way, but there are genuine concerns. With respect to the noble Baroness, Lady Manzoor, who has been rushed into this at short notice because the noble Lord, Lord O’Shaughnessy, is no longer a Minister, there are very serious questions which so far she has not been able to answer. The only way to deal with this issue properly is for it to go to the Floor of the House, where, in a proper debate, experts such as my noble friend Lord Winston can ask specific questions. It would have been even better if we could have dealt with it by primary legislation; then we could have had some amendment. But I think if we do not do this, we are storing up unforeseen dangers that might cause genuine difficulties, and that concerns me.
I hope that that was not too long and it has dealt with the matter before us.
Lord Winston
Before my noble friend sits down, may I ask him an important question? Is he aware there is a specific example of British patients leaving these shores to go to the rest of the EEC for treatments which are not regulated by the Human Fertilisation and Embryology Authority? In some cases, for example, they return from Spain with three embryos re-placed in their uterus and end up having triplets on the National Health Service, often at massive cost. One occurred just last month; the health service probably spent hundreds of thousands of pounds on such babies, after a procedure which would not be allowed by this legislation as we set it up in 1990. That is why this is too complex an aspect of our new relationship with Europe to be discussed without very careful consideration.
Lord Foulkes of Cumnock
I am really grateful to my noble friend, who has dealt with this precisely and with knowledge rather than the broad brush I was using. This shows what an advantage it is to have people such as him in the House and this Grand Committee. It would have been better if he could have dealt with it through primary legislation in a proper, considered way; then we could have dealt with it in Committee, amendments could have been tabled and we could have considered the most appropriate way of dealing with it.
Lord Adonis
My Lords, before my noble friend sits down, does he not also think it would be advantageous to the Grand Committee and the House for us to have a procedure whereby we could discuss amendments to these regulations rather than having to accept them in full or not at all? This is a big problem that we have been struggling with throughout the consideration of these regulations and our wider consideration of the EU withdrawal arrangements.
Lord Foulkes of Cumnock
I certainly do. I see that my noble friend Lord Tunnicliffe is present. He has much greater experience in the House of Lords than I do, and he reminds me that there is a danger in using what I think he called the nuclear option of moving against statutory instruments because of the implications. If we were able to consider amendments to them and amend them in some way, we would not have that worry; we would be able to deal with them in a more specific, detailed, thoughtful and effective way. This is a difficult issue. A lot of people have become increasingly concerned over the years—and I know that this is not just in the Labour Party; it stretches right across the parties to the Conservatives, the Liberal Democrats, the Greens and others—that more and more statutory instruments are just being pushed through, rather than those matters being dealt with in primary legislation.
Lord Foulkes of Cumnock
The noble Lord, Lord Deben, has said “Hear, hear!” in a very positive way. I remember attending a very interesting world conference on the environment that he chaired brilliantly. He allowed everyone to participate fully, which had not happened under the previous presidency and I think has lapsed under subsequent presidencies. He did it very well indeed, which allowed matters in that area to be considered appropriately. It is good to have endorsement from the other side from someone with such experience.
Baroness Barker
My Lords, like the noble Baroness, Lady Thornton, I shall confine my remarks primarily to the regulations we are currently discussing. With respect to the general debate that we have had, I will say simply that it is common with statutory instruments that there is a great deal of consultation beforehand with relevant bodies, and that is simply not the case on these. That in turn often leads to a determination of whether or not a statutory instrument is in fact controversial and where it ends up being discussed in your Lordships’ House. Some of the earlier discussion about those statutory instruments that will be put into Grand Committee as opposed to being considered on the Floor of the House might therefore have to be reconsidered, given the deluge of statutory instruments that is clearly coming our way.
Because of that, I have some questions for the Minister. Like the noble Baroness, Lady Thornton, I was unclear about what happens regarding the six-month transition period. I understand that the statutory instrument comes into force if there is no agreement. Is it therefore right to assume that there is then a six-month transitional arrangement that will automatically be overtaken, and that at the end of that six months there will be a completely new set of regulations for this important area of work? It is an important area of work, in which we have led the way in the world. The consequences, not least for the research capacity in this country, are extensive.
Like the noble Baroness, Lady Thornton, I could not determine whether the Minister’s statements were statements of aspiration or fact. It seemed to me that she was trying to convince us that there would continue to be equivalent recognition between ourselves and the EU—but on what basis, if we are not just no longer subject to the same agreements but no longer taking part in the development of policy and science that underlines the developing law in this area?
I have one other question on this SI. The Minister said that legislation governing reproductive cells is a reserved, UK-wide matter, but there are cells that are not reproductive but that are created for the purposes of research into human fertilisation and embryology. Is that a reserved matter or a devolved matter? If it is the latter, what discussions have been had with the devolved Administrations? In Scotland we have world-leading academic and research bodies. In conclusion, and this applies to the whole area of research, I have to say: what a waste of time, money and effort, and what damage we are doing to our world-leading research centres in this country.
Lord Adonis
My Lords, I will make some points about the validity of our consideration of this statutory instrument. Like the nine others we are going to consider, it relates to no-deal planning. In respect of the remarks made by the Deputy Chairman of Committees, this is highly relevant to this regulation and all the others because we would not be debating this regulation and all the arrangements that the Minister explained, including very complex new relationships that are going to be necessary with our European partners, if it were not for the fact that the Government are putting in place no-deal planning for what might happen if we crash out of the European Union on 29 March without a treaty.
But there is a big question mark about the validity of that no-deal planning, for two reasons. First, the supposition of all parliamentarians when we served the notice under Article 50 was that there would be a deal. The whole purpose of Article 50 is to set in train negotiations for an exit treaty. The House of Commons has never voted—until yesterday, and I will come to this in a moment because it has a big bearing on our consideration of these statutory instruments—on a proposition that the United Kingdom should leave the European Union with no deal; nor have your Lordships. It is my contention that the whole consideration of these statutory instruments is invalid because it does not follow a clear instruction from the House or any legislative basis for the implementation of no-deal arrangements.
Lord Foulkes of Cumnock
Perhaps my noble friend will speculate on the authority under which money has been spent preparing for no deal. I have raised this with Meg Hillier, chair of the Public Accounts Committee, who tells me that the National Audit Office is looking into this to report to the Public Accounts Committee. I just do not understand how millions and millions of pounds can be spent without any authority on something that is not government policy.
Lord Adonis
I agree entirely with my noble friend. Every time we debate these issues, the sum allocated by the Treasury for no-deal planning is increased. My noble friend and the Committee may have noticed that it has now been increased to £4 billion. Apparently £2 billion of that is still to be allocated. None of this, as far as I can see, follows instructions from the House of Commons or indeed information given to the House of Commons. The first question to ask the Minister in respect of these regulations is: can she tell the Grand Committee how much the preparatory work for these regulations, and all the consultation which the noble Baroness just referred to, is costing, and what the cost will be to the NHS of having to put in place all these new arrangements, including the new licensing provisions referred to in the regulations? A key issue for the House, when it debates these regulations after our consideration, will be to know what the cost is going to be and whether in fact this is a cost that we think it is reasonable for the public to be bearing.
But the situation seems even more serious. As of yesterday, the House of Commons has debated whether or not it wants no deal to proceed. It had a full debate yesterday evening on the amendment tabled by Nicky Morgan and Yvette Cooper on the specific question of whether or not funds under the Finance (No. 3) Bill, which was presented to your Lordships this afternoon, should be allocated in the event of no deal. There was a long and extremely heated debate on that issue. The House of Commons voted by 303 to 296—which is an extremely large Division, one of the largest there has been in the whole Brexit process—against the Government by a majority of seven in favour of the amendment which would severely limit the ability of the Government to use public funds for implementing a no-deal outcome without the specific authorisation of the House.
We are in an extraordinary constitutional position. We are being asked to approve extremely significant regulations involving us crashing out of the European Union with no deal, which, as my noble friend Lord Winston said, in the specific instance of human embryology and tissues, involves big burdens on the NHS, questions about how new arrangements will work and costs to public authorities. That is all being done on the basis of no specific statutory authorisation and against the clearly expressed will of the House of Commons that this should not proceed in any event. I will make the same remarks in respect of all these regulations, because they apply equally, but this is a big issue and this debate will influence the House when these regulations are referred to it.
Baroness Manzoor
I thank noble Lords very much. I was not expecting such a lengthy debate but I very much welcome this scrutiny. I want to say from the outset that although I welcome the input from the noble Lord, Lord Tyler, the reality is that I am not in a position to comment on the processes and procedures on SIs, including which SIs come before us. As I have said already, these SIs were considered before coming before the Committee and there will be an option for further discussion of them in the House if noble Lords wish. Indeed, if noble Lords wish to table amendments, that is a matter for them. I cannot say what the process is because I do not know. There was some discussion about primary legislation; this is not primary legislation, of course. We are just considering SIs so I am not in a position to talk about amendments.
Lord Foulkes of Cumnock
That is exactly the point that I and others were making. If it were primary legislation then we could amend it, but because these are SIs there is no arrangement for amendments to be considered either here or on the Floor of the House, which means that the instrument has to be either accepted or rejected. That is a take-it-or-leave-it situation that makes things very difficult in an area that, as we have heard, particularly from my noble friend Lord Winston but from others as well, is so complicated.
Lord Warner (CB)
Before the Minister responds, I have a relevant point. I have sat here listening interestedly to this debate over the last 40 minutes or so; I am waiting to speak on some later regulations. If the Minister could say that she was willing to take matters away in the light of the comments made in Committee for further consideration by the Government, or to withdraw the regulations while that was happening, it would speed up the consideration of these regulations. I think the Minister might take advice very quickly on that issue because we are going to go through the same issues on regulation after regulation. Unless there is some capacity for the Government to respond to the concerns that are being expressed, not just about this set of regulations but on the others as well, we are going to be here for a very long time.
Baroness Manzoor
I am very happy to give that undertaking. I will ensure the Chief Whip is aware of it, as was my intention, and I am sure he will be. These statutory instruments are important because if they are not made, we may not be able to share organs, tissues and cells with EU countries, and that could jeopardise patient treatment. Regarding a question raised by the noble Lord, Lord Foulkes, I stress again that all three SIs are about maintaining the same high safety standards that we have in the NHS. We are not changing anything. We are just putting in place contingency plans. I know he has come back to me again and again on this particular issue in different ways, but we are not making new legislation, nor are we changing primary legislation. We are just ensuring we have agreements in place should a no-deal exit happen.
Baroness Manzoor
No, I am sorry; I have been more than generous and need to move on.
Baroness Manzoor
It is not a shame. I am very happy if there are questions.
Lord Foulkes of Cumnock
The Minister said we are not changing primary legislation. So what does “Part 2: Amendment of primary legislation” mean?
Baroness Manzoor
Can I complete what I am saying, because at the moment what we are talking about is maintaining current standards. We are not going to be doing anything new. Any changes to UK law will be a matter for Parliament as a whole, so if we were to change primary legislation on whatever issues there are, it would come to the House.
The issue of amendments also was raised. I cannot say much about it because, as noble Lords are well aware, these are statutory instruments. The noble Lord, Lord Winston, spoke about the issue of fertility treatment outside the Human Fertilisation and Embryology Authority-regulated sector. I bow to his significant experience and wealth of knowledge in this particular area. This is an issue of concern, but while we are in the EU—and it is not solved by leaving the EU—addressing it would mean putting restrictions on the ability of individuals to travel abroad and receive medical treatment, which is well outside the scope of the Human Fertilisation and Embryology Act.
I have spoken regarding consultations. The SIs are not about making policy. They are about maintaining the status quo as far as possible, so there are discussions with the regulator rather than a public consultation, which I think the noble Baroness, Lady Barker, was asking about. There have been no issues raised. The noble Baroness also asked about embryo research and where that will sit. This particular issue is reserved to Westminster.
I have tried to answer as many questions as I can on this specific issue but my generic answers extend to all three SIs. I beg to move.