In Vitro Fertilisation: 40th Anniversary

Lord Mackay of Clashfern Excerpts

Thursday 13th September 2018 Lords Chamber

[Lord Mackay of Clashfern (Con)]

My Lords, it is a great privilege to follow the noble Baroness, Lady Deech, on this important issue. I put my name down to speak simply because I had responsibilities in the early days of the development of the law relating to this subject. I join the noble Baroness in paying tribute to the then Secretary of State for setting up the Warnock committee, which did a tremendous job of dealing with an issue that had never really been dealt with before, either here or elsewhere. Its report was an excellent summary of the conditions required to be met by any legislation.

The issue of the report was followed by a considerable period of consultation. Eventually, shortly after I became Lord Chancellor, it was decided that we should legislate in this area. The drafting of such legislation, with no precedent of any sort but a very clear steer from the Warnock report, was quite a challenging task. In the meantime, a shadow body was set up, in effect to try out the structures proposed by Baroness Warnock and her committee. The lessons learned from that were certainly taken into account when framing the legislation.

In due course, the Government decided that the question of embryo research was one on which there was considerable difference of opinion and that, therefore, they were to take no line on it. They were to leave it to a free vote, which was influenced to a great extent by one’s views about creation and procreation on a theological level; some Members of the House were prepared to comment on that aspect of the matter and the nature of the research that was possible. As I said, a free vote was decided on. Of course, one difficulty is that there is no guarantee that the result of a free vote will produce a similar result in the two Houses of Parliament.

There was also the question of where the draft Bill should start. Ultimately, it was decided that it should start here. I therefore had the unique opportunity of bringing forward in Parliament something that was unique in the world. One of the techniques that we used, which I think proved extremely valuable, was to set out two choices in the Bill: one for embryo research and the other for where that was not permitted. The full detail was required on both and it was obvious that they could not subsist together. If I remember rightly, it was unique at that time to have such a combination in a statute. The question at the ultimate vote on the subject was: “A” or “B”.

The research scientists had instructed me that up to and until 14 days from conception, the materials in the cells in the embryo were not distinguishable between those which would go on to form the living embryo and the surrounding materials supporting that living embryo. Therefore, 14 days was, from the theological point of view, a good length of time to take where there was no identifiable human life yet obtaining. I think that is more the criterion that was used than anything about how long the embryo would last. It was the uniqueness of the personality question that was fundamental.

The spirit in which the Bill was considered here was one which I still remember with warmth. It was very clear that this was extremely important, very original, and needed very careful consideration. Needless to say, there were Members of this House who were in favour of embryo research and others who were dead against it. In due course, after very considerable debate at Second Reading and then in Committee, we had the vote on Report. I determined, rightly or wrongly, that no personal view of mine would be expressed. When the Government take the view that they should be neutral, it is very common for a Minister to have the chance to express his or her own personal point of view, even though the Government have not accepted it or are not ready to accept it. I thought that, from the point of view of securing a proper vote here, I should not express any personal view of my own.

There was a very full debate which was followed by the vote. It would be right to say that our late friend Lord Walton of Detchant was the leader, along with Lady Faithfull, of those who wanted to legalise the research. The other side was represented, at least to some extent; there were others—the late Duke of Norfolk was a pretty ardent opponent. However, in due course, the vote was taken and it was substantially in favour of that research. To my intense relief, when the Bill went to the House of Commons, the result was the same, so that aspect of the Bill went through with considerable success.

Then another development occurred. When the Bill reached the House of Commons, there was a question as to whether abortion was a proper subject to be considered in that Bill. Since it was all about embryos, it was quite hard to see how that debate on abortion could be excluded. So the very important debate on research in relation to embryos was equalised in importance by people who wanted to change the Bill that the noble Lord, Lord Steel, had introduced—it later became an Act—by modifying the terms of the exemptions. That was a subject on which it was pretty obvious that there was a very great deal of opportunity for difference of opinion. That having been added in in the Commons, and with the Bill coming back to the Lords, your Lordships can understand my anxiety as to whether we would get a Bill at all without relying entirely on the special authority of the House of Commons. Again, to my intense relief, the changes made to the abortion law in the Commons were accepted here very reasonably and so the Bill became the 1990 Act, and with it the appointment of the authority which has existed separately ever since, despite attempts to amalgamate it with others. It has been extremely successful and I pay tribute to those here who played a part, including the noble Baroness, Lady Deech.

The vast and rapid expansion of science led to a question: how long could the Bill, which was introduced and became an Act in 1990, last? I am rather gratified that the main structure of the Act in relation to the regulations and the regulatory powers has existed until now. There is very little sign of really radical change. There were substantial changes made in 2008 when the regulations required an order that IVF should be tried or changed, but the most important change was that the transformation of nuclear material was to be allowed. It is important in this connection to remember that the law here had been in favour of embryo research whereas, I think I am right in saying, most of the continental countries—our European partners—do not allow that or certainly have not allowed it. That was one of the reasons why, when the mitochondrial regulations were being discussed here, there was a bit of anxiety about confirmation with the European regulations. Fortunately for us, we were not party to all of these and it was, therefore, possible to introduce this tremendous possibility of dealing with mitochondrial diseases.

Over the years, this has been a tremendous area of success for our scientists and doctors who work in this area. I pay tribute to the noble Lord, Lord Winston—I am sorry he is not here today—who played a great part in this. I have heard his moving accounts of how women who were not finding it possible to have successful conceptions were dealt with and how important it was to do what was possible to alleviate that. I wish every success to this enterprise as it goes on into the future. I have great confidence that it will be successful as it is now.