House of Lords
National Curriculum: Animal Welfare
(9 years, 9 months ago)
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Lord Hoyle
To ask Her Majesty’s Government whether they have any proposals to include animal welfare in the national curriculum in schools.
The Parliamentary Under-Secretary of State for Schools (Lord Nash) (Con)
My Lords, the new primary science curriculum, introduced from September 2014, focuses on the essential scientific knowledge that young people need to be educated citizens. It teaches primary pupils about the requirements for animals to survive: appropriate habitat, food, water and air. Subjects such as citizenship and PSHE also provide opportunities for pupils to learn about animal welfare, and teachers are free to decide what further activities they offer on this subject.
Lord Hoyle (Lab)
I thank the Minister for that positive reply. As he says, it is important for young people to know about animals—not only domestic animals or farm animals, but wild animals and the environment. Is he aware that the RSPCA did a survey in 2014 of 800 teachers, 95% of whom thought that it ought to be taught to young people? Indeed, 83% thought it ought to be part of the national curriculum.
Lord Nash
I am aware of the survey to which the noble Lord refers, and I know that the RSPCA teaches around 4,000 teachers about this every year. We feel that it is very helpful for young people to learn about animal welfare in the national curriculum, but we do not think it is right to include it, certainly not at this stage. We have a long way to go to make sure that the majority of pupils in this country have an education in core academic subjects first.
Baroness Parminter (LD)
This year the Government are reviewing their codes on how to care for dogs, cats and horses. Does my noble friend agree that it is important that children are made aware of those new codes? If so, will the Government be offering any advice about their inclusion in school timetables?
Lord Nash
As I said, I agree entirely that animal welfare is an important subject for pupils to learn about, but we have to recognise the low base from which we are starting education in this country. When we came to power, fewer than one in five pupils attending a comprehensive school was getting that core suite of academic subjects that would be a basic expectation in many countries, and certainly in any private school. We have recovered substantially from that position: now nearly 40% get that core suite, but the Question underestimates the low base from which we are starting.
Baroness Howarth of Breckland (CB)
My Lords, will the Minister commend those organisations that take the trouble to take animals, particularly dogs, into care establishments and schools for children with learning disabilities? It has been shown that those youngsters improve their behaviour on encountering animals. Maybe this is one area where we could increase attendance.
Lord Nash
I agree entirely with the noble Baroness. Organisations such as Battersea Dogs & Cats Home, Blue Cross, Cats Protection, Dogs Trust and PDSA do excellent work. I am sure she will be interested to know that, under the Government’s successful free school programme, we will have the Milton Keynes special free school opening next year. It will be a 70-place alternative provision primary school for pupils with social, emotional and behavioural difficulties. It will incorporate a forest approach. They will keep chickens and will be taught by an experienced poultry keeper.
Baroness Jones of Whitchurch (Lab)
Does the Minister agree that hunting with dogs is a cruel and unnecessary sport? If so, how would he explain to young people in schools that the Tory party is threatening to repeal the hunting ban?
Baroness Perry of Southwark (Con)
Does my noble friend agree that when topics such as the use of animals in scientific experiments are dealt with in schools they should be dealt with in a balanced way, and that children should be able, as he has just said, to balance the various arguments on different sides?
Baroness McIntosh of Hudnall (Lab)
My Lords, would the noble Lord agree that it is slightly unfortunate that he chose to use this really quite innocuous Question to make a very crude party-political point? Would he also accept that, in doing so, he undermines the morale of teachers who have been working in the system for very many years and doing the very best they can, sometimes in quite difficult circumstances? Would he further he accept that the best primary schools have animals for the children to look after and that is how they learn about animal welfare?
Lord Nash
As I think the noble Baroness has heard me say on a number of occasions, I regard teaching as the most noble of professions. It is certainly the most important profession at this time as far as the future of this country is concerned. But I think we just have to get real. Under the previous Government, the number of pupils getting a core suite of academic subjects in education slumped. We are recovering from that position, but until we start loading up the curriculum with extras on a compulsory basis we have to recover educationally to provide our pupils, particularly those from disadvantaged backgrounds, with that core cultural literacy that they need.
Lord Grocott (Lab)
My Lords, the Minister gave a rather strange reply to an earlier question on the Hunting Act: that, somehow or other, properly educated pupils will be able to make up their own minds on the subject. It is not a question of making up one’s own mind on the subject. When a law of the land has been passed by both Houses of Parliament, the assumption is that people will obey it. I hope that he thoroughly agrees with that in relation to the Hunting Act.
Gurkhas
(9 years, 9 months ago)
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Baroness Boothroyd
To ask Her Majesty’s Government what plans they have to celebrate the 200th anniversary of the Gurkha battalions and to acknowledge their service to the United Kingdom and their relationship with the British people.
The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Astor of Hever) (Con)
My Lords, this year we mark the bicentenary of Gurkha service to the British Crown. Gurkhas hold a special place in the hearts of the British people and we will be celebrating our close and enduring relationship. The Brigade of Gurkhas will be holding many events over the year, including a parade and a memorial service in Whitehall in April, and Gurkha units will conduct public duties in London during May.
Baroness Boothroyd (CB)
Does the Minister agree that the 200th anniversary of Gurkha service to this country provides an opportunity to mark the unique relationship forged in battle across the world by the Gurkha soldier and his British comrade? Is not the bicentenary of the Gurkha Brigade a reminder to us all that religious differences and diverse ethnic origins are no barrier to shared values and lasting friendships?
Lord Astor of Hever
I agree wholeheartedly with the noble Baroness and I pay tribute to her work as an ambassador for the Gurkha Welfare Trust. Gurkhas within the British Army are proof that different religious and ethnic groups can work together in defence of a set of common values based on the mutual trust and respect that has grown over the last 200 years and I am immensely proud to have served alongside Gurkhas in Malaysia and Hong Kong.
Lord Rosser (Lab)
We on this side also recognise the unique contribution made by the Gurkhas over the last 200 years. Do the Government agree that the best way to mark the 200th anniversary would be to ensure a clear and continuing role for the Gurkhas in Army 2020? Can the Minister say whether that is the Government’s objective and what that role might be?
Lord Astor of Hever
My Lords, of course we are very keen on a proper role for the Gurkhas, and we feel that they have a proper role at the moment.
Lord King of Bridgwater (Con)
Is my noble friend aware that when we were conducting the Options for Change exercise and there was great competition among infantry regiments as to which should continue and which should disband, there was a suggestion that the Gurkhas should be stood down? Does my noble friend agree that one of the best decisions we took was not to listen to that advice and to ensure that the Gurkhas continued their service? Is not all the evidence that has emerged since from Afghanistan, Iraq and the various fields of activity in which the Gurkhas have been involved further tribute to the wonderful way in which they have served this nation over so many years?
Lord Astor of Hever
My Lords, I agree with my noble friend. I think it was Prince Harry, who served alongside the Gurkhas in Afghanistan, who put it very well. He said that there was no safer place than by the side of a Gurkha.
Lord Burnett (LD)
My Lords, the Gurkhas have served our country with the greatest loyalty and bravery. I had the honour to serve, only for a few weeks, with the 2nd Goorkha Rifles. They spelt their name a different way from the other regiments and they were known as God’s own Gurkhas. They were, as always, fantastic fighting men and I hope my noble friend will agree that we owe the Gurkhas a debt of honour which we can never repay.
Lord Astor of Hever
My Lords, I entirely agree with my noble friend. The Ministry of Defence is marking the celebration of 200 years of Gurkha service with a series of events in the UK and abroad.
Lord Howe of Aberavon (Con)
I endorse absolutely the decision of the Government in this respect. Will my noble friend take account of the fact that on my visit to Pakistan about 25 years ago—the first visit from a Secretary of State of this country—I was welcomed by President Ghulam Ishaq Khan who told me that I should be able to find that country peopled with the noble ghosts of Britain’s past.
Lord Astor of Hever
My Lords, that is a very interesting bit of information from my noble and learned friend. I am sorry that the noble Lord, Lord Slim, is not here; he served in the Indian Army and was on parade during the time of partition.
Lord Palmer of Childs Hill (LD)
My Lords, I agree with all that has been said about the valour of the Gurkhas, but can my noble friend the Minister answer a question that is put by many people? Many veteran Gurkhas who have retired to this country live in poverty and receive only one-third of the standard pension of military pensioners. Have Her Majesty’s Government considered how, in the 200-year celebrations and commemorations, we should treat these valiant men? It should not be by paying them a pittance so that they need to go to food banks.
Lord Astor of Hever
My Lords, Gurkhas of working age who have been discharged since the 1990s and who are resident in the UK have integrated well and contribute to society. On the question of pensions, since 1 April 2007, any Gurkha joining the British Army receives the same pay and pension benefits as their counterparts in the wider Army. Gurkhas serve on the same basis as the remainder of the Army, with some very small exceptions designed to satisfy the Government of Nepal.
Baroness Heyhoe Flint (Con)
My Lords, the Minister may be wondering why I am involved with the Gurkhas but does he have any plans to involve Joanna Lumley in the activities? She did a magnificent job with her Gurkha Justice Campaign, which was ably funded and supported by a person for whom I worked for 45 years, Sir Jack Hayward, who, sadly, died in January. I am sure that her involvement would be greatly appreciated by all Gurkhas and would be a tribute to the memory of Sir Jack Hayward.
Lord Astor of Hever
I have listened very carefully to what my noble friend has said but I do not have any plans to meet Joanna Lumley.
Yarl’s Wood
(9 years, 9 months ago)
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Baroness Bakewell
To ask Her Majesty’s Government what requirements were set in the contract for Yarl’s Wood Immigration Removal Centre recently reawarded to Serco regarding the dignity and privacy of women detained there.
The Parliamentary Under-Secretary of State, Home Office (Lord Bates) (Con)
My Lords, contracts for the operation of immigration removal centres require service providers to comply with the Detention Centre Rules 2001. This is in addition to the contracts’ operational specifications, which contain measures to ensure the dignity and privacy of women.
Baroness Bakewell (Lab)
I thank the noble Lord for that Answer. In June last year Yarl’s Wood was the subject of 31 allegations of sexual misconduct. Those were investigated and a number of staff were dismissed. None the less, in November the Serco contract for Yarl’s Wood was extended for eight years. However, the harassment goes on. The January report by Women for Refugee Women documented inappropriate behaviour by male staff towards female inmates—themselves already the victims of sexual abuse. Can the Minister tell us when innocent women who have committed no crimes can expect to be treated with respect?
Lord Bates
I think that the answer to the noble Baroness is: right now. I believe that the standards provided by Serco, the current operators of the scheme, are of a very high level. Yarl’s Wood was inspected by Her Majesty’s Inspectorate of Prisons and he found it to be a safe and secure place. In addition, there is an independent monitoring board. Just two weeks ago, my right honourable friend the Home Secretary set up a special review of all immigration removal centres to ensure that they are of the highest standard. I read the report by Women for Refugee Women very carefully and the most critical point was that it was felt that women’s privacy was invaded and that there were insufficient female staff. One of the key elements in the contract offered was that the proportion of female staff should increase. The proportion is going up from 42% to 60%, and that is a step in the right direction.
Lord Dholakia (LD)
My Lords, my noble friend may have read the report by the Equality and Human Rights Commission about deaths in custody, published only recently. Does he accept that the organisations and institutions do not deliver the standards outlined and recommended in the EHRC report and that they are therefore at risk of being in breach of the European Convention on Human Rights? In the light of that, does he accept that it is time for HM Inspectorate of Prisons to carry out a thematic review of how these standards are being observed at the Yarl’s Wood centre?
Lord Bates
Her Majesty’s inspectorate’s last visit was in June 2013. These are not planned visits; they are meant to be surprise visits to try to get an accurate picture of what is going on. They are meant to happen every two years, so we are expecting one fairly soon. Following the very serious allegations, some members of staff were suspended, and Bedfordshire Police is undertaking criminal investigations in that respect. The inspectorate returned to Yarl’s Wood to undertake 50 further interviews to make sure that its conclusion that it was a safe and respectful place could be upheld.
Lord Hylton (CB)
My Lords, I have visited Yarl’s Wood in recent years. Can the Minister confirm that no pregnant women are held there now? Will he agree that many detainees feel very cut off there and do not know when they will be released? Can he tell the House how many suicides or serious attempts at self-harm there have been in the past two years?
Lord Bates
At Yarl’s Wood, in the past two years, the answer is, fortunately, none. These are very vulnerable people; we accept that totally. The noble Lord asked about pregnant women in particular. There is a limit which says that no women past the 24th week of pregnancy can be held or put into the detention fast track. The point is that they should be in Yarl’s Wood only for a very short time. They are people who are identified for quick return and their stays should be no more than a few weeks.
Baroness Kennedy of The Shaws (Lab)
My Lords, I welcome the Secretary of State’s review of the welfare of detainees, but I am anxious to know whether it will include a review of whether the decision-making is to the appropriate standards. The evidence shows that victims of abuse in these centres feel greatly traumatised by the very fact of detention. Surely the reviewer should be encouraged to meet ex-detainees as present detainees might be reluctant to speak of some of the things that have happened to them. Would it not also be good if he met members of organisations that work closely with traumatised victims who have been detained—organisations such as the Helen Bamber Foundation, which deals with victims of torture; Freedom from Torture, and Women for Refugee Women? Will the reviewer meet those people, and will he review the very decision-making as to whether people should be detained at all?
Lord Bates
It is, obviously, set up as an independent review, so it will be for Stephen Shaw to do that. However, as he is a former Prisons and Probation Ombudsman I would expect that his attention will be drawn not only to the current detainees but to former detainees and also to those excellent charitable organisations. To the list of excellent charitable organisations that the noble Baroness mentioned I would add Hibiscus, particularly at Yarl’s Wood. It does an outstanding job of providing humane care, advice and friendship to people in that situation.
Baroness Hussein-Ece (LD)
My Lords, over the past two years Yarl’s Wood has developed a reputation, and not a very good one, for the way that it treats women in the centre. Can the Minister say a bit more about whether the number of girls under the age of 18 being detained there has gone down? The Minister rightly said that people should not be held there for great lengths of time. Can he tell us what the average length of stay is now?
Lord Bates
Certainly; the latest statistic we have is that 92% of people are held for less than six months, and about 48% for less than 42 days. We want that to come down because, as I say, this is used very much as a last resort. In relation to children, as a result of action taken in your Lordships’ House children are, fortunately, no longer detained in immigration removal centres, and that is a good thing.
The Lord Bishop of Carlisle
My Lords, in view of the concerns expressed only last Friday by the Joint Committee on Human Rights about women and girls who claim to have been victims of violence and are detained at Yarl’s Wood under the fast-track process, can the Minister tell us whether the Government have any plans for a screening process for people in that position?
Lord Bates
This is subject to a very careful screening process, and the decision to send someone to Yarl’s Wood is not taken lightly. There are medical reviews by a GP and reports are provided to the caseworkers before any decision is made. The point is that these are people who have overstayed their stay, their asylum immigration applications have been denied and, therefore, they are about to be deported imminently. That is the reason they are there. However, that does not mean that they should be treated with anything less than the highest standards of dignity and respect.
Baroness Lister of Burtersett (Lab)
My Lords, the review that has been announced is very welcome, as is what the Minister has said, but the terms of reference of the review do not explicitly include women generally; they refer just to pregnant women. The Minister himself has said that all the women about whom we have heard evidence from the noble Baroness, Lady Bakewell, are vulnerable. Will he now confirm that the review will look explicitly at the treatment of women, many of whom have fled gender-related violence in their home countries?
Lord Bates
I would have thought that the noble Baroness might welcome the fact that the Shaw review will range much wider. Of the 30,000 people who are held in detention, around 80% are male, and it is important that their needs are reviewed as well. However, I am sure that the noble Baroness’s observation will be fed back to the review.
Lord Roberts of Llandudno (LD)
My Lords, is the Minister satisfied that there is no concern at all about any of the detention centres that we have in the UK, or is there any detention centre that is really causing a worry at the moment?
Lord Bates
How do we define “worry at the present time”? We have rigorous systems of independent monitoring boards at every single centre. They consist of 12 independent people. We have the inspectorate carrying out its review. We have the independent review that we announced. We are happy that the places are safe and secure, but we are not complacent. These are vulnerable people and need to be protected.
Armed Forces: Baltic Defence
(9 years, 9 months ago)
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Lord Lee of Trafford
To ask Her Majesty’s Government what is their assessment of the ability of the United Kingdom’s armed forces to participate fully in any NATO-led Baltic defence operations.
The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Astor of Hever) (Con)
My Lords, NATO remains the cornerstone of UK defence. We are committed to Article 5 as a fundamental principle at the heart of NATO. An attack on one is an attack against all. We maintain a range of forces at the required readiness and standard and would respond to any NATO request to defend the Baltic states against external aggression. The level of our participation would depend on what requests NATO made of us.
Lord Lee of Trafford (LD)
My Lords, there is a saying that it is useless for the sheep to pass resolutions in favour of vegetarianism if the wolf is of another opinion. Is my noble friend not ashamed and embarrassed that, with clear Russian aggression in the Ukraine and major increases in Russian defence expenditure, all our major political leaders, ostrich-like, totally fail to spell out their respective positions on the levels of overall defence expenditure? Do we not need a clear commitment to maintain a 2% of GDP spend on defence and, indeed, probably more? Can my noble friend tell us why the Chief of the Defence Staff was gagged yesterday from speaking at Chatham House?
Lord Astor of Hever
My Lords, we have met the NATO target since coming to office and will do so to the end of financial year 2016. NATO membership means equitable sharing of risks and responsibilities, so it is a case of comparing Russia not to the UK but to NATO, which spends 10 times more on defence than Russia. On my noble friend’s second question, the Defence Secretary decided that the Procurement Minister should speak, given the conference’s focus on relations between industry and government.
Lord West of Spithead (Lab)
My Lords, four destroyers and frigates were lost in the Falklands; eight were very badly damaged. That is 12 destroyers and frigates. Today, if we lost 12 ships, we would have seven destroyers and frigates protecting this great maritime nation. Our defence forces have been cut too far. Will the Minister pass on to his right honourable friend the Prime Minister the message that, bearing in mind the world situation, with chaos in countries such as Iraq, Syria, Libya, Nigeria, Somalia and Ukraine, and risk of growing tension with Russia, we need to spend more money on defence and must not have a block to proper discussion of defence in the lead-up to this election?
Lord Astor of Hever
My Lords, sufficient defence spending is particularly required in light of recent events. We need to be able to deal with multiple challenges and undertake a range of operations across the military spectrum, as well as maintain our standing commitments. This Government have consistently committed to spending 2% of GDP on defence and 20% on equipment, and, along with the US, we have been one of only two allies that currently meet the NATO guidelines.
Lord Howell of Guildford (Con)
In their present mood, the Russians are likely to be using a whole variety of hybrid and cyber forms of warfare, as they have in the recent past in the Baltic area. Are we fully prepared to meet that?
Lord Astor of Hever
My Lords, NATO is working to tackle the challenge of hybrid attacks. There is little new in the tactics and techniques of hybrid warfare, such as subversion and the use of proxy forces, but the scale of sophistication of Russian activities, combined with the use of new instruments such as cyber, presents a new challenge and we are doing our best to get on top of it.
Lord Campbell-Savours (Lab)
What assessment is being made by the British Government and Ministers of the impact on Russian public opinion of provocative NATO exercises on the border with Russia?
Lord Astor of Hever
My Lords, we are well aware of the very good point made by the noble Lord.
Lord Palmer of Childs Hill (LD)
My Lords, the information given by my noble friend the Minister is to some extent reassuring, but perhaps it might be more reassuring if there were two aircraft carriers actually in service and if F-35B assault aircraft were actually working on those aircraft carriers. Will the Minister tell us what message we send out to our enemies, to whom we might seem somewhat unprepared?
Lord Astor of Hever
My Lords, we are not unprepared. Our equipment programme represents a substantial investment: some £163 billion over 10 years on equipment and equipment support, ensuring that our Armed Forces retain a formidable range of cutting-edge capabilities, and the ability to project power across the globe, hence aircraft carriers. This investment is not only securing the best possible military capability; it is also helping to secure UK jobs and growth.
Lord Dannatt (CB)
My Lords, does the Minister accept that there is in this House quite a mood of concern about the level of defence expenditure? We have also seen the concern expressed in the media. We are aware that there is a Bill currently going through your Lordships’ House to place 0.7% of GDP into the international development budget by law. Would the Minister consider a government amendment to that Bill, or an addition to that Bill, to link that to 2% of GDP for defence spending?
Lord Astor of Hever
My Lords, I note the concern, but the defence budget this year is £33.8 billion. We have the second largest defence budget in the alliance—behind the US—and certainly the largest in the European Union. The UK remains a global power, making the second biggest contribution to the campaign against ISIL and sending 750 military personnel into Sierra Leone to help fight Ebola.
Specialist Printing Equipment and Materials (Offences) Bill
Baroness Berridge (Con)
My Lords, I understand that no amendments have been set down to this Bill, and that no noble Lord has indicated a wish to move a manuscript amendment or speak in Committee. Unless, therefore, any noble Lords object, I beg to move that the order of commitment be discharged.
Consumer Rights Bill
“Secondary ticketing platforms
Secondary ticketing platforms: seller profiles and ticket information
(1) Secondary ticketing operators must, on the website on which tickets are offered for sale or transfer, provide information concerning the sellers of tickets so that sellers may be easily identified.(2) Information provided by virtue of subsection (1) must include, but is not limited to—(a) the name of the seller;(b) if the seller is an undertaking, its registered number, jurisdiction of registration, registered office address, and if registered outside the United Kingdom, a valid address for service; and(c) the VAT registration number of the seller, if applicable.(3) Information provided under subsection (1) must be—(a) accurate; and(b) prominently displayed before a buyer is able to complete the purchase of the ticket.(4) Secondary ticketing operators must disclose clearly and prominently where the seller of a ticket is—(a) the secondary ticketing platform or a subsidiary undertaking or parent undertaking of the secondary ticketing platform;(b) a person or persons employed or engaged by the secondary ticketing platform;(c) other persons connected to employees, directors or shareholders of the secondary ticketing platform, or any of its subsidiary undertakings or parent undertakings;(d) the event organiser or an agent acting on its behalf;(e) any other party connected to the organisation of the event.(5) Where a ticket is offered for sale or transfer through a secondary ticketing platform—(a) the seller must provide all relevant information about the ticket;(b) the secondary ticketing operator must publish all relevant information about a ticket in a prominent and clear manner; and(c) the secondary ticket operator must immediately remove the ticket from sale when it is informed by the event organiser that the information provided is inaccurate or incomplete.(6) Information to be provided by the seller and published by the secondary ticketing operator for the purposes of subsection (1) must include, without limitation—(a) the face value of the ticket;(b) any age or other restrictions on the user of the ticket;(c) the designated location of the ticket including the stand, the block, the row and the seat number of the ticket, where applicable; and(d) the ticket booking identification or reference number.(7) Where tickets are being resold in contravention of the terms and conditions agreed to by the original purchaser, this must be stated prominently by the secondary ticketing platform at every stage of the purchasing process.(8) Information provided by virtue of this section must be— (a) accurate; and(b) prominently displayed before a buyer is able to complete the purchase of that ticket.(9) For the purposes of this section—“secondary ticketing platform” means an internet-based facility for the resale of tickets to events in the United Kingdom of Great Britain and Northern Ireland, regardless of the jurisdiction in which the owner of the service is registered;“secondary ticketing operator” means, in relation to a secondary ticketing platform, the person (whether incorporated or not) operating that secondary ticketing platform;“ticket” means anything which purports to be a ticket, including any item, tangible or intangible, which grants the holder the right to entry to an event;“event” means any sporting, music or cultural activity taking place at a specified time and place for which tickets are issued and required for entry or attendance;“event organiser” means the person responsible for organising and holding an event and receiving the revenue from the event;the term “undertaking” has the meanings given in section 1161 of the Companies Act 2006 (meaning of “undertaking” and related expressions);the terms “subsidiary undertaking” and “parent undertaking” have the meanings given in section 1162 of the Companies Act 2006 (parent and subsidiary undertakings);the term “person” refers to a natural person or a body corporate.(10) This section will come into force no later than six months after this Act is passed.”
Baroness Neville-Rolfe
That this House do not insist on its Amendment 12, to which the Commons have disagreed for their Reason 12A, but do propose Amendments 12B to 12H in lieu—
“CHAPTER 3B
SECONDARY TICKETING
Duty to report criminal activity
(1) This section applies where—
(a) an operator of a secondary ticketing facility knows that a person has used or is using the facility in such a way that an offence has been or is being committed, and
(b) the offence relates to the re-sale of a ticket for a recreational, sporting or cultural event in the United Kingdom.
(2) The operator must, as soon as the operator becomes aware that a person has used or is using the facility as mentioned in subsection (1), disclose the matters specified in subsection (3) to—
(a) an appropriate person, and
(b) an organiser of the event (subject to subsection (5)).
(3) Those matters are—
(a) the identity of the person mentioned in subsection (1), if this is known to the operator, and
(b) the fact that the operator knows that an offence has been or is being committed as mentioned in that subsection.
(4) The following are appropriate persons for the purposes of this section—
(a) a constable of a police force in England and Wales,
(b) a constable of the police service of Scotland, and
(c) a police officer within the meaning of the Police (Northern Ireland) Act 2000.
(5) This section does not require an operator to make a disclosure to an organiser of an event if the operator has reasonable grounds for believing that to do so will prejudice the investigation of any offence.
(6) References in this section to an offence are to an offence under the law of any part of the United Kingdom.
(7) This section applies only in relation to an offence of which an operator becomes aware after the coming into force of this section.”
“Enforcement of section (Duty to report criminal activity)
(1) A local weights and measures authority in Great Britain may enforce the provisions of section (Duty to report criminal activity) in its area.(2) The Department of Enterprise, Trade and Investment may enforce the provisions of section (Duty to report criminal activity) in Northern Ireland.(3) Each of the bodies referred to in subsections (1) and (2) is an “enforcement authority” for the purposes of this Chapter.(4) Where an enforcement authority is satisfied on the balance of probabilities that a person has breached the duty in section (Duty to report criminal activity), the authority may impose a financial penalty on the person in respect of that breach.(5) A local weights and measures authority in England and Wales may impose a penalty under this section in respect of a breach which occurs in England and Wales but outside that authority’s area (as well as in respect of a breach which occurs within that area).(6) A local weights and measures authority in Scotland may impose a penalty under this section in respect of a breach which occurs in Scotland but outside that authority’s area (as well as in respect of a breach which occurs within that area).(7) Only one penalty under this section may be imposed on the same person in respect of the same breach.(8) The amount of a financial penalty imposed under this section—(a) may be such as the enforcement authority imposing it determines, but(b) must not exceed £5,000.(9) Schedule (Secondary ticketing: financial penalties) (procedure for and appeals against financial penalties) has effect.”
“Duty to review measures relating to secondary ticketing
(1) The Secretary of State must—(a) review, or arrange for a review of, consumer protection measures applying to the re-sale of tickets for recreational, sporting or cultural events in the United Kingdom through secondary ticketing facilities,(b) prepare a report on the outcome of the review or arrange for such a report to be prepared, and(c) publish that report.(2) The report must be published before the end of the period of 12 months beginning with the day on which this section comes into force. (3) The Secretary of State must lay the report before Parliament.(4) In this section “consumer protection measures” includes such legislation, rules of law, codes of practice and guidance as the Secretary of State considers relate to the rights of consumers or the protection of their interests.”
“Interpretation of this Chapter
(1) In this Chapter—“enforcement authority” has the meaning given by section (Enforcement of section (Duty to report criminal activity))(3);“operator”, in relation to a secondary ticketing facility, means a person who—(a) exercises control over the operation of the facility, and(b) receives revenue from the facility,but this is subject to regulations under subsection (2);
“organiser”, in relation to an event, means a person who—(a) is responsible for organising or managing the event, or(b) receives some or all of the revenue from the event; “secondary ticketing facility” means an internet-based facility for the re-sale of tickets for recreational, sporting or cultural events.(2) The Secretary of State may by regulations provide that a person of a description specified in the regulations is or is not to be treated for the purposes of section (Duty to report criminal activity) as an operator in relation to a secondary ticketing facility.(3) Regulations under subsection (2)—(a) are to be made by statutory instrument;(b) may make different provision for different purposes;(c) may include incidental, supplementary, consequential, transitional, transitory or saving provision.(4) A statutory instrument containing regulations under subsection (2) is not to be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.”
“(1C) Chapter 3B of this Part comes into force at the end of the period of two months beginning with the day on which this Act is passed.”
“section (Enforcement of section (Duty to report criminal activity))(1) or (2) of this Act.”
“SECONDARY TICKETING: FINANCIAL PENALTIES
Notice of intent1 (1) Before imposing a financial penalty on a person for a breach of the duty imposed by section (Duty to report criminal activity), an enforcement authority must serve a notice on the person of its proposal to do so (a “notice of intent”).
(2) The notice of intent must be served before the end of the period of 6 months beginning with the first day on which the authority has sufficient evidence of the person’s breach, subject to sub-paragraph (3).
(3) If the person is in breach of the duty on that day, and the breach continues beyond the end of that day, the notice of intent may be served—
(a) at any time when the breach is continuing, or
(b) within the period of 6 months beginning with the last day on which the breach occurs.
(4) The notice of intent must set out—
(a) the amount of the proposed financial penalty,
(b) the reasons for proposing to impose the penalty, and
(c) information about the right to make representations under paragraph 2.
Right to make representations2 A person on whom a notice of intent is served may, within the period of 28 days beginning with the day after that on which the notice was sent, make written representations to the enforcement authority about the proposal to impose a financial penalty on the person.
Final notice3 (1) After the end of the period mentioned in paragraph 2 the enforcement authority must—
(a) decide whether to impose a financial penalty on the person, and
(b) if it decides to do so, decide the amount of the penalty.
(2) If the authority decides to impose a financial penalty on the person, it must serve a notice on the person (a “final notice”) imposing that penalty.
(3) The final notice must require the penalty to be paid within the period of 28 days beginning with the day after that on which the notice was sent.
(4) The final notice must set out—
(a) the amount of the financial penalty,
(b) the reasons for imposing the penalty,
(c) information about how to pay the penalty,
(d) the period for payment of the penalty,
(e) information about rights of appeal, and
(f) the consequences of failure to comply with the notice.
Withdrawal or amendment of notice4 (1) The enforcement authority may at any time—
(a) withdraw a notice of intent or final notice, or
(b) reduce the amount specified in a notice of intent or final notice.
(2) The power in sub-paragraph (1) is to be exercised by giving notice in writing to the person on whom the notice was served.
Appeals5 (1) A person on whom a final notice is served may appeal against that notice—
(a) in England and Wales and Scotland, to the First-tier Tribunal;
(b) in Northern Ireland, to a county court.
(2) The grounds for an appeal under this paragraph are that—
(a) the decision to impose a financial penalty was based on an error of fact,
(b) the decision was wrong in law,
(c) the amount of the financial penalty is unreasonable, or
(d) the decision was unreasonable for any other reason.
(3) If a person appeals under this paragraph, the final notice is suspended until the appeal is finally determined or withdrawn.
(4) On an appeal under this paragraph the First-tier Tribunal or the court may quash, confirm or vary the final notice.
(5) The final notice may not be varied under sub-paragraph (4) so as to make it impose a financial penalty of more than £5,000.
Recovery of financial penalty6 (1) This paragraph applies if a person does not pay the whole or any part of a financial penalty which, in accordance with this Schedule, the person is liable to pay.
(2) In England and Wales the local weights and measures authority which imposed the financial penalty may recover the penalty or part on the order of the county court as if it were payable under an order of that court.
(3) In Scotland the penalty may be enforced in the same manner as an extract registered decree arbitral bearing a warrant for execution issued by the sheriff court of any sheriffdom in Scotland.
(4) In Northern Ireland the Department of Enterprise, Trade and Investment may recover the penalty or part on the order of a county court as if it were payable under an order of that court.
(5) In proceedings before the court for the recovery of a financial penalty or part of a financial penalty, a certificate which is—
(a) signed by the chief finance officer of the local weights and measures authority which imposed the penalty or (as the case may be) issued by the Department of Enterprise, Trade and Investment, and
(b) states that the amount due has not been received by a date specified in the certificate,
is conclusive evidence of that fact.
(6) A certificate to that effect and purporting to be so signed or issued is to be treated as being so signed or issued unless the contrary is proved.
(7) A local weights and measures authority may use the proceeds of a financial penalty for the purposes of any of its functions (whether or not the function is expressed to be a function of a local weights and measures authority).
(8) In this paragraph “chief finance officer” has the same meaning as in section 5 of the Local Government and Housing Act 1989.”
The Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills (Baroness Neville-Rolfe) (Con)
My Lords, we are coming to the final stages of the Consumer Rights Bill—an important reform of consumer law. I am looking forward to it receiving Royal Assent so that consumers have new, simplified rights when they buy goods, services or digital content and businesses can plan with certainty for the legislation to come into force.
The one remaining issue to resolve is the proposals for the secondary ticketing market. I would like to start by thanking those who have engaged in a really constructive dialogue with us over the past few weeks: the noble Lord, Lord Moynihan, and his team, other noble Lords, clerks of the House and the long-suffering departmental teams, both ministerial and official. It has been a long two months since we last debated the issue and I thought it would be helpful to give a summary of the issue and the Government’s proposals. Before I start, it may be helpful to make clear to noble Lords that I intend to support the amendment tabled by the noble Lord, Lord Moynihan, to facilitate the smooth passage of this important Bill.
The amendment to the Bill made by noble Lords at Report stage demonstrated the House’s concern about some aspects of the online secondary ticketing market. A range of issues were raised. The noble Lords, Lord Moynihan and Lord Grade, and others drew our attention to the level of fraud in the market, which was suggested by the National Fraud Authority to be £1.5 billion per year. The noble Baroness, Lady Grey-Thompson, and other noble Lords gave heart-wrenching examples of fans arriving at a venue looking forward to a wonderful evening only to be turned away because they had bought counterfeit tickets. They argued that the current rules in place to protect consumers were not effective enough.
The noble Baroness, Lady Heyhoe Flint, the noble Lords, Lord Clement-Jones and Lord Deben, and others had done their own research into tickets available on the secondary market and expressed concern about the lack of transparency. The noble Lords, Lord Holmes and Lord Moynihan, and others were concerned that alleged profiteering might be taking funding away from sports or cultural activity and reducing opportunities for genuine fans who could not afford high prices.
The noble Lord, Lord Stevenson, the noble Baroness, Lady Hayter, and the noble Lord, Lord Holmes, have been especially keen to resolve this issue as part of the Consumer Rights Bill, in order to allow fans to access events and have similar protection to that used for the London 2012 Olympics.
Of course, many of those who spoke, including the noble Lords, Lord Stoneham and Lord Borwick, the noble Viscount, Lord Younger, and the noble Baroness, Lady Wilcox, agreed with me about the importance of a thriving secondary ticket market and the need to ensure that the market remains open and competitive. I think that that sentiment is shared more widely across the House. The secondary marketplaces can provide a much safer environment for people to buy and sell tickets than other methods. If we can further increase confidence in the service that they can offer, I would hope to see their business flourish and grow.
The Government have been working hard to address the issues in the market. They are not easy issues, and we have been wary of unintended consequences at every turn. We have had to make some very difficult decisions, based on an uncomfortable evidence base. We have given the matter much attention and we now need to reach a conclusion.
The Government have tabled amendments to address some of these issues. The noble Lord, Lord Moynihan, has included our provisions in the most recent draft of his amendment. Our amendments are in two parts. First, we propose a statutory review of the secondary ticketing market. This will be a full review of consumer protection measures in the market. It will be independently led and it will be presented to Parliament. It will start this summer and must report within a year of the start date.
We need time to consult stakeholders and the individual leading the review before deciding on the detailed terms of reference and I know that noble Lords will want to express opinions on the matter. However, I can say that the review will broadly cover the following areas.
First, there will be an assessment of the current law and the changes we are making today. Noble Lords have rightly asked which laws apply to online ticket sales, and how effectively they are enforced. Secondly, it will cover business models in the market. Speakers in our debates have asked whether the market is dominated by consumer sellers or by traders; whether those in the market are seeking profits or mainly seeking to recoup their original costs; and whether national interests are supported. Thirdly, on access to tickets, I fully understand how frustrating it can be for tickets to sell out suspiciously quickly after release. The review will look at this, including the possibility that event organisers might deliberately restrict access to tickets to inflate prices artificially.
Lord Moynihan
As an amendment to Motion A, leave out “Amendments 12B to 12H” and insert “Amendments 12J to 12S”—
“CHAPTER 3B
SECONDARY TICKETING
Duty to provide information about tickets
(1) This section applies where a person (“the seller”) re-sells a ticket for a recreational, sporting or cultural event in the United Kingdom through a secondary ticketing facility.
(2) The seller and each operator of the facility must ensure that the person who buys the ticket (“the buyer”) is given the information specified in subsection (3), where this is applicable to the ticket.
(3) That information is—
(a) where the ticket is for a particular seat or standing area at the venue for the event, the information necessary to enable the buyer to identify that seat or standing area,
(b) information about any restriction which limits use of the ticket to persons of a particular description, and
(c) the face value of the ticket.
(4) The reference in subsection (3)(a) to information necessary to enable the buyer to identify a seat or standing area at a venue includes, so far as applicable—
(a) the name of the area in the venue in which the seat or standing area is located (for example the name of the stand in which it is located),
(b) information necessary to enable the buyer to identify the part of the area in the venue in which the seat or standing area is located (for example the block of seats in which the seat is located),
(c) the number, letter or other distinguishing mark of the row in which the seat is located, and
(d) the number, letter or other distinguishing mark of the seat.
(5) The reference in subsection (3)(c) to the face value of the ticket is to the amount stated on the ticket as its price.
(6) The seller and each operator of the facility must ensure that the buyer is given the information specified in subsection (7), where the seller is—
(a) an operator of the secondary ticketing facility,
(b) a person who is a parent undertaking or a subsidiary undertaking in relation to an operator of the secondary ticketing facility,
(c) a person who is employed or engaged by an operator of the secondary ticketing facility,
(d) a person who is acting on behalf of a person within paragraph (c), or
(e) an organiser of the event or a person acting on behalf of an organiser of the event.
(7) That information is a statement that the seller of the ticket is a person within subsection (6) which specifies the ground on which the seller falls within that subsection.
(8) Information required by this section to be given to the buyer must be given—
(a) in a clear and comprehensible manner, and
(b) before the buyer is bound by the contract for the sale of the ticket.
(9) This section applies in relation to the re-sale of a ticket through a secondary ticketing facility only if the ticket is first offered for re-sale through the facility after the coming into force of this section.”
“Prohibition on cancellation or blacklisting
(1) This section applies where a person (“the seller”) re-sells, or offers for re- sale, a ticket for a recreational, sporting or cultural event in the United Kingdom through a secondary ticketing facility.
(2) An organiser of the event must not cancel the ticket merely because the seller has re-sold the ticket or offered it for re-sale unless—
(a) a term of the original contract for the sale of the ticket—
(i) provided for its cancellation if it was re-sold by the buyer under that contract,
(ii) provided for its cancellation if it was offered for re-sale by that buyer, or
(iii) provided as mentioned in sub-paragraph (i) and (ii), and
(b) that term was not unfair for the purposes of Part 2 (unfair terms).
(3) An organiser of the event must not blacklist the seller merely because the seller has re-sold the ticket or offered it for re-sale unless—
(a) a term of the original contract for the sale of the ticket—
(i) provided for the blacklisting of the buyer under that contract if it was re-sold by that buyer,
(ii) provided for the blacklisting of that buyer if it was offered for re-sale by that buyer, or
(iii) provided as mentioned in sub-paragraph (i) and (ii), and
(b) that term was not unfair for the purposes of Part 2 (unfair terms).
(4) In subsections (2) and (3) “the original contract” means the contract for the sale of the ticket by an organiser of the event to a person other than an organiser of the event.
(5) For the purposes of this section an organiser of an event cancels a ticket if the organiser takes steps which result in the holder for the time being of the ticket no longer being entitled to attend that event.
(6) For the purposes of this section an organiser of an event blacklists a person if the organiser takes steps—
(a) to prevent the person from acquiring a ticket for a recreational, sporting or cultural event in the United Kingdom, or
(b) to restrict the person’s opportunity to acquire such a ticket.
(7) Part 2 (unfair terms) may apply to a term of a contract which, apart from that Part, would permit the cancellation of a ticket for a recreational, sporting or cultural event in the United Kingdom, or the blacklisting of the seller of such a ticket, in circumstances other than those mentioned in subsection (2).
(8) Before the coming into force of Part 2, references to that Part in this section are to be read as references to the Unfair Terms in Consumer Contracts Regulations 1999 (SI 1999/2083).
(9) This section applies in relation to a ticket that is re-sold or offered for re-sale before or after the coming into force of this section; but the prohibition in this section applies only to things done after its coming into force.”
“Duty to report criminal activity
(1) This section applies where—
(a) an operator of a secondary ticketing facility knows that a person has used or is using the facility in such a way that an offence has been or is being committed, and
(b) the offence relates to the re-sale of a ticket for a recreational, sporting or cultural event in the United Kingdom.
(2) The operator must, as soon as the operator becomes aware that a person has used or is using the facility as mentioned in subsection (1), disclose the matters specified in subsection (3) to—
(a) an appropriate person, and
(b) an organiser of the event (subject to subsection (5)).
(3) Those matters are—
(a) the identity of the person mentioned in subsection (1), if this is known to the operator, and
(b) the fact that the operator knows that an offence has been or is being committed as mentioned in that subsection.
(4) The following are appropriate persons for the purposes of this section—
(a) a constable of a police force in England and Wales,
(b) a constable of the police service of Scotland, and
(c) a police officer within the meaning of the Police (Northern Ireland) Act 2000.
(5) This section does not require an operator to make a disclosure to an organiser of an event if the operator has reasonable grounds for believing that to do so will prejudice the investigation of any offence.
(6) References in this section to an offence are to an offence under the law of any part of the United Kingdom.
(7) This section applies only in relation to an offence of which an operator becomes aware after the coming into force of this section.”
“Enforcement of this Chapter
(1) A local weights and measures authority in Great Britain may enforce the provisions of this Chapter in its area.
(2) The Department of Enterprise, Trade and Investment may enforce the provisions of this Chapter in Northern Ireland.
(3) Each of the bodies referred to in subsections (1) and (2) is an “enforcement authority” for the purposes of this Chapter.
(4) Where an enforcement authority is satisfied on the balance of probabilities that a person has breached a duty or prohibition imposed by this Chapter, the authority may impose a financial penalty on the person in respect of that breach.
(5) But in the case of a breach of a duty in section (Duty to provide information about tickets) or a prohibition in section (Prohibition on cancellation or blacklisting) an enforcement authority may not impose a financial penalty on a person (“P”) if the authority is satisfied on the balance of probabilities that—
(a) the breach was due to—
(i) a mistake,
(ii) reliance on information supplied to P by another person,
(iii) the act or default of another person,
(iv) an accident, or
(v) another cause beyond P’s control, and
(b) P took all reasonable precautions and exercised all due diligence to avoid the breach.
(6) A local weights and measures authority in England and Wales may impose a penalty under this section in respect of a breach which occurs in England and Wales but outside that authority’s area (as well as in respect of a breach which occurs within that area).
(7) A local weights and measures authority in Scotland may impose a penalty under this section in respect of a breach which occurs in Scotland but outside that authority’s area (as well as in respect of a breach which occurs within that area).
(8) Only one penalty under this section may be imposed on the same person in respect of the same breach.
(9) The amount of a financial penalty imposed under this section—
(a) may be such as the enforcement authority imposing it determines, but
(b) must not exceed £5,000.
(10) Schedule (Secondary ticketing: financial penalties) (procedure for and appeals against financial penalties) has effect.
(11) References in this section to this Chapter do not include section (Duty to review measures relating to secondary ticketing).”
“Duty to review measures relating to secondary ticketing
(1) The Secretary of State must—
(a) review, or arrange for a review of, consumer protection measures applying to the re-sale of tickets for recreational, sporting or cultural events in the United Kingdom through secondary ticketing facilities,
(b) prepare a report on the outcome of the review or arrange for such a report to be prepared, and
(c) publish that report.
(2) The report must be published before the end of the period of 12 months beginning with the day on which this section comes into force.
(3) The Secretary of State must lay the report before Parliament.
(4) In this section “consumer protection measures” includes such legislation, rules of law, codes of practice and guidance as the Secretary of State considers relate to the rights of consumers or the protection of their interests.”
“Interpretation of this Chapter
(1) In this Chapter—
“enforcement authority” has the meaning given by section (Enforcement of this Chapter)(3);
“operator”, in relation to a secondary ticketing facility, means a person who—
(a) exercises control over the operation of the facility, and
(b) receives revenue from the facility,
but this is subject to regulations under subsection (2); “organiser”, in relation to an event, means a person who—
(a) is responsible for organising or managing the event, or
(b) receives some or all of the revenue from the event;
“parent undertaking” has the meaning given by section 1162 of the Companies Act 2006;
“secondary ticketing facility” means an internet-based facility for the re-sale of tickets for recreational, sporting or cultural events;
“subsidiary undertaking” has the meaning given by section 1162 of the Companies Act 2006;
“undertaking” has the meaning given by section 1162 of the Companies Act 2006.
(2) The Secretary of State may by regulations provide that a person of a description specified in the regulations is or is not to be treated for the purposes of this Chapter as an operator in relation to a secondary ticketing facility.
(3) Regulations under subsection (2)—
(a) are to be made by statutory instrument;
(b) may make different provision for different purposes;
(c) may include incidental, supplementary, consequential, transitional, transitory or saving provision.
(4) A statutory instrument containing regulations under subsection (2) is not to be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.”
“(1C) Chapter 3B of this Part comes into force at the end of the period of two months beginning with the day on which this Act is passed.”
“section (Enforcement of this Chapter)(1) or (2) of this Act.”
“SECONDARY TICKETING: FINANCIAL PENALTIES
Notice of intent1 (1) Before imposing a financial penalty on a person for a breach of a duty or prohibition imposed by Chapter 3B of Part 3, an enforcement authority must serve a notice on the person of its proposal to do so (a “notice of intent”).
(2) The notice of intent must be served before the end of the period of 6 months beginning with the first day on which the authority has sufficient evidence of the person’s breach, subject to sub-paragraph (3).
(3) If the person is in breach of the duty or prohibition on that day, and the breach continues beyond the end of that day, the notice of intent may be served—
(a) at any time when the breach is continuing, or
(b) within the period of 6 months beginning with the last day on which the breach occurs.
(4) The notice of intent must set out—
(a) the amount of the proposed financial penalty,
(b) the reasons for proposing to impose the penalty, and
(c) information about the right to make representations under paragraph 2.
Right to make representations2 A person on whom a notice of intent is served may, within the period of 28 days beginning with the day after that on which the notice was sent, make written representations to the enforcement authority about the proposal to impose a financial penalty on the person.
Final notice3 (1) After the end of the period mentioned in paragraph 2 the enforcement authority must—
(a) decide whether to impose a financial penalty on the person, and
(b) if it decides to do so, decide the amount of the penalty.
(2) If the authority decides to impose a financial penalty on the person, it must serve a notice on the person (a “final notice”) imposing that penalty.
(3) The final notice must require the penalty to be paid within the period of 28 days beginning with the day after that on which the notice was sent.
(4) The final notice must set out—
(a) the amount of the financial penalty,
(b) the reasons for imposing the penalty,
(c) information about how to pay the penalty,
(d) the period for payment of the penalty,
(e) information about rights of appeal, and
(f) the consequences of failure to comply with the notice.
Withdrawal or amendment of notice4 (1) The enforcement authority may at any time—
(a) withdraw a notice of intent or final notice, or
(b) reduce the amount specified in a notice of intent or final notice.
(2) The power in sub-paragraph (1) is to be exercised by giving notice in writing to the person on whom the notice was served.
Appeals5 (1) A person on whom a final notice is served may appeal against that notice—
(a) in England and Wales and Scotland, to the First-tier Tribunal;
(b) in Northern Ireland, to a county court.
(2) The grounds for an appeal under this paragraph are that—
(a) the decision to impose a financial penalty was based on an error of fact,
(b) the decision was wrong in law,
(c) the amount of the financial penalty is unreasonable, or
(d) the decision was unreasonable for any other reason.
(3) If a person appeals under this paragraph, the final notice is suspended until the appeal is finally determined or withdrawn.
(4) On an appeal under this paragraph the First-tier Tribunal or the court may quash, confirm or vary the final notice.
(5) The final notice may not be varied under sub-paragraph (4) so as to make it impose a financial penalty of more than £5,000.
Recovery of financial penalty6 (1) This paragraph applies if a person does not pay the whole or any part of a financial penalty which, in accordance with this Schedule, the person is liable to pay.
(2) In England and Wales the local weights and measures authority which imposed the financial penalty may recover the penalty or part on the order of the county court as if it were payable under an order of that court.
(3) In Scotland the penalty may be enforced in the same manner as an extract registered decree arbitral bearing a warrant for execution issued by the sheriff court of any sheriffdom in Scotland.
(4) In Northern Ireland the Department of Enterprise, Trade and Investment may recover the penalty or part on the order of a county court as if it were payable under an order of that court.
(5) In proceedings before the court for the recovery of a financial penalty or part of a financial penalty, a certificate which is—
(a) signed by the chief finance officer of the local weights and measures authority which imposed the penalty or (as the case may be) issued by the Department of Enterprise, Trade and Investment, and
(b) states that the amount due has not been received by a date specified in the certificate,
is conclusive evidence of that fact.
(6) A certificate to that effect and purporting to be so signed or issued is to be treated as being so signed or issued unless the contrary is proved.
(7) A local weights and measures authority may use the proceeds of a financial penalty for the purposes of any of its functions (whether or not the function is expressed to be a function of a local weights and measures authority).
(8) In this paragraph “chief finance officer” has the same meaning as in section 5 of the Local Government and Housing Act 1989.”
Lord Moynihan (Con)
My Lords, I am very grateful to my noble friend the Minister for her careful consideration of the points that we made when we tabled the original amendment. We did so because we recognised that, based on the Government’s own figures, the level of online ticket fraud was of the order of £1.5 billion in 2012. That was of course a momentous year but that figure of £1.5 billion does not include the Olympic or Paralympic Games because, as your Lordships will recall, the opportunity was taken both in this House and in another place to criminalise the secondary market for that specific event. It is important to recognise that that figure of £1.5 billion was one where online ticket fraud occurred when victims purchased tickets for an event—such as music, sport, theatre or a performance—which did not materialise.
In the many hours of negotiation and debate, we have sought to address the causes of our concerns: that there is a very significant volume of counterfeit and invalid tickets sold to the public through the secondary sites. As 85% to 90% of resale now takes place through the four platforms, which are owned by three companies, the overwhelming majority of these invalid tickets come through those sites. The biggest problem in this day and age is not the old-fashioned tout. It is the wholesale harvesting of tickets by touts from their computers, with specialised software. They are incentivised by these four platforms, not least through power seller programmes. This harvesting is now out of control and volumes of tickets are acquired on such a scale that it is proving difficult, if not impossible, for genuine music and sports fans to purchase a ticket at face value for high-demand events. In the time when you are typing in your name, address and details, the specialised software is sweeping the volume of tickets available to the general public and within a matter of minutes, sometimes, those tickets are appearing on the secondary websites. The sheer number of tickets for high-demand events going on to the platforms is sufficient to facilitate price manipulation, to the detriment of the public.
Against that background, I would like to address a number of points that my noble friend the Minister has made. I say straight away that it is really important that anyone considering the position we are taking on this Motion recognises that there has been universal support throughout the proceedings in your Lordships’ House for a secondary market to thrive. But that secondary market needs to be effective; it needs to be transparent and accountable. That is the really important point. To use the words of my noble friend the Minister, we are seeking light-touch regulation to ensure that we can absolutely guarantee to individuals who want to go online the right level of information, from which they can then make a decision to purchase.
In the past, we have not had the legal support for consumers to have that information available. As the Minister rightly points out, the four key elements are information, face value, seat number and row number. It is absolutely right and proper that someone who is disabled or in a wheelchair knows that they can have access to that seat before they make that purchase. At the moment, that is not the case. Following this legislation, if your Lordships agree to the Motion in my name, all those details and information will be available before a decision is made and before the purchase takes place—not after the purchase has taken place. That is in subsection (8)(b) of the proposed new clause. It is an exceptionally important point for the secondary ticket operators to recognise when they implement this legislation, as I hope they do.
The second point is that for too long the terms and conditions set by the original event organisers have not taken full legal precedence. If you are the event organiser and you are putting on Glastonbury, for example, and request pre-registration to ensure that the person who is buying the ticket is pre-registered and, in the case of Glastonbury, that there is a photo—that is what the organisers want—it must be right that those terms and conditions take precedence. They do so because Glastonbury does not want touting. They do so because in many cases there are law and order issues. It should be right for theatres to decide whether they want children under the age of four, for example, to come to a performance when they might possibly disturb other people’s enjoyment of the evening. Those terms and conditions, however, must meet the fairness test and they must be legal. That is on the face of the Motion. That is vital, so that there is no avoidance of doubt: the action taken by event organisers in setting terms and conditions must meet the fairness test and must be legal.
The two Motions that were originally tabled by the Minister covered a duty to report criminal activity and the review. I am most grateful to her for her consideration of the many aspects of these tickets and the information that we wish to see provided on them. The matter has been considered in full by her team and, indeed, by her. I give one case in point. The movers of the original amendment were very keen to see a booking reference on the ticket. This would enable an individual to check with the event organisers whether that ticket was valid. Apparently, neither a booking reference number nor a ticket ID number falls within the “main characteristics” of a ticket and, therefore, under EU law, we cannot require that information to be provided. There are different legal opinions on that. There are many lawyers who believe that an essential characteristic —indeed, a main characteristic—of a ticket is its original ID number. We recognise, however, that government advice was that this is not the case. This is a compromise amendment and the result of many hours of negotiation. I hope that, when we come to the review, that issue will be looked at in more detail.
It is also important that, while we are putting the responsibility on the secondary market through this Motion to take a whole series of steps, at the same time we recognise that the event organisers need to reflect during the review on how they can improve the opportunities for resale. Resale is a difficult and sensitive subject, but to have good relationships with your consumers and your fans, looking at resale under certain circumstances is a very important priority for the event organisers. Wimbledon’s policy on non-transferable tickets is that, provided that the ticket is returned before the start of play, the buyer gets a full refund. The ECB allows face-value resale to family and friends; it will not cancel face-value on the secondary market. The Oval and Lord’s offer full refunds and ticket exchanges. The 2015 Rugby World Cup will have a full ticket exchange. So event organisers are very much aware of the importance of keeping good relationships with their fans and recognising that sometimes it is not possible to go to an event, maybe due to a family crisis, and that where possible resale policies should be put in place. I very much hope that, during the process of the very important review that the Minister has announced today, the question of resale will also be considered in detail.
It is right that when the Secretary of State at the DCMS, who has policy responsibility for this subject, appoints the chair of the review, he considers in detail the points raised in both Houses before proposing the final terms of reference. It has become clear from your Lordships’ interventions on all sides of the House, and from the excellent work of the all-party group on this subject led by Sharon Hodgson and Mike Weatherley, that a thorough investigation of the operation of the secondary market is essential. We need to understand why that £1.5 billion of fraud has taken place and to address it; we need to look carefully at the business models employed.
Lord Clement-Jones (LD)
My Lords, as a signatory to the original amendment and a member of the All-Party Group on Ticket Abuse, I very much support Motion A1 and I am absolutely delighted that the Government do as well. To say the least, this has been a cliff-hanger. I hope that my noble friend Lord Moynihan, Sharon Hodgson MP, Mike Weatherley MP, and of course my noble friend Lady Heyhoe Flint, all get roles in a remake of “Chariots of Fire” for their efforts in securing this agreement, which will benefit music and sports fans immensely. My noble friend Lord Moynihan in particular has been incredibly tenacious in his pursuit of the right solution and I pay strong tribute to him. I also pay tribute to my right honourable friend Vince Cable, my noble friend Lady Neville-Rolfe, my honourable friend Jo Swinson and their adviser Ashley Lumsden, who have been instrumental in forging a deal in BIS and in convincing their colleagues in the DCMS to adopt the solution before us today.
When our amendment came before the House of Commons in January, my honourable friend Jo Swinson said:
“A careful balancing act is needed. We want to make sure that as many people as possible can access events, whatever their means. We want sports and entertainment in the UK to flourish. We … want to protect consumers and allow the ticket resale market to work as well as it can”.—[Official Report, Commons, 12/1/15; col. 657.]
I believe that these clauses will do all this. My honourable friend also criticised the previous amendment, which was passed by this House. She said that there were,
“difficulties involved in Lords amendment 12”.—[Official Report, Commons, 12/1/15; col. 658.]
She said that it would require sellers to provide their name, that it would enable event organisers to cancel tickets put up for resale and that,
“more stringent information requirements would go beyond the provisions set out in the consumer rights directive”.—[Official Report, Commons, 12/1/15; col. 660.]
Again, I believe that these clauses meet those objectives. These safeguards now set out in the Bill will be much more reliable than the assurances belatedly given by the secondary sellers or the information on their websites.
To be clear, this is not about closing down the secondary market. A secondary market that works in the interests of fans buying and selling tickets is reasonable; an opaque stock exchange with links to criminal activity is not. I hope that this amendment will ensure that the secondary market is the former. These transparency measures are good news for fans looking to buy tickets, and do not impose an unfair burden on sellers. It is also good to see that Ministers will support measures which uphold fair and reasonable ticket terms and conditions. Ticket terms and conditions must be fair in law, and the new Motion recognises this.
Just as a reminder, serious money is involved in ticket touting. A single Rugby World Cup final ticket is on sale on StubHub today for £59,000. No tax is being paid; the seller is anonymous, and may even work for the secondary platform; and the buyer has no guarantee about where the seat is. These amendments will introduce some much needed transparency, and then we will also have the statutory review, to which my noble friend referred, to ensure that the market is operating fairly.
I welcome that the review of the law and its effectiveness and what can be done to improve it, in particular as regards enforcement, is enshrined in today’s amendments. There are a number of questions for review, which my noble friend went through, such as: will this stop speculative sales? Rugby World Cup tickets were on sale on secondary websites before the organising body had even set the ticket prices and launched the application process. Is the £5,000 fine adequate? I hope that all this will include looking at how to tackle bulk-selling and how effectively to enforce the law against traders impersonating consumers to evade consumer law. However, that is an ongoing matter. We have come today to the right conclusion, and I congratulate all those involved.
Lord Pendry (Lab)
My Lords, it gives me great pleasure to briefly say a few words on this good news day for sports fans. It is fair to say that it has been a long time coming, but in the measures that we are adding to the Bill today we are giving greater choice and information to sports fans to help in the fight against those who commit fraud or seek to exploit the pockets of hard-working families.
My own role in this battle dates back two decades to 1994, when I led from the Labour Benches in the other place a campaign to have the then Government extend the provisions they were introducing to ban ticket touting at football events to other sports in the Criminal Justice and Public Order Act 1994. We were partly successful in that we had reserve powers added to that Bill to allow the Home Secretary of the day to designate other sporting events.
Ever since then, together with other Members of both Houses, from all parties, I have called for more effective action as the problem has grown and grown, especially with the introduction of the internet, which created a fertile new environment for the problems we have heard explained so well by the proposer of this Motion. I therefore wholeheartedly endorse the measures being added to the Bill. Most of all, I pay tribute, as others have done, to the noble Lord, Lord Moynihan. He was battling 21 years ago in support of the kind of measure we have here now, and is still fighting as hard as ever to protect the sports that he loves.
I have spoken to some sports governing bodies today, and I know that they are hugely grateful for the enormous amount of time and effort that the noble Lord has put into this issue ever since the amendment was voted for by this House in November. There have been many hours of meetings with Ministers, Bill teams, lawyers and experts, and that shows in the well balanced and fair proposals that have addressed the concerns raised by the House. Certainly on this issue, I think that the House will respond favourably to the words of the noble Lord and the amendments. Through his grasp of how the sports sector works and of the way to get things done in this place, we now have an effective improvement in the law and, alongside it, a review that allows the matter to be considered in greater detail. I hope that the noble Lord’s expertise will remain on tap for the review; he will certainly add weight to it.
Lord Borwick (Con)
My Lords, this Bill, as the name suggests, is supposed to be about protecting consumers—indeed, most of it does. However, this recently tabled amendment, which places new duties on ticket sellers in secondary markets, could actually allow consumers to be ripped off under the guise of protecting them. All the tickets which the sports and music bodies are concerned about will now go back to being sold in pubs, clubs and car parks, where no consumer protection exists, so this amendment could increase fraud by forcing customers to buy tickets on the street. It is no surprise that the amendment is completely out of step with public opinion.
I am sure that I can trade polling statistics with my noble friend. Polling by ComRes shows that 80% of the public support the right to resell tickets, 64% believe that they should be allowed to pay more than the face value of a ticket to get into a sold-out event, and 66% believe that event organisers should not be allowed to restrict what happens to a ticket once they have sold it. We could see thousands of fans criminalised if they do not provide the right information on their listings. The reality is that a seller will not provide the right information if they think that their ticket could be cancelled. They could provide adjacent seat numbers, for instance, and other fans could then see their tickets cancelled, causing havoc at the event.
The treatment of the secondary market in ticketing is completely out of step with other online markets. Is there a need to declare where what you are selling comes from when you are selling goods on Amazon, for example? These proposed new clauses try to deal with an issue that does not exist. The wording of the amendment is clever in that it seems to provide a protection against ticket cancellation, but this protection is meaningless as it does not apply where there are terms and conditions which state that tickets will be cancelled if they are resold. The wording makes it clear that terms and conditions used to enforce cancellation should not be unfair terms under the Unfair Terms in Consumer Contracts Regulations. This is because certain restrictions such as terms and conditions which allow resale at face value have been judged as not in breach of these regulations. This means that event organisers will be able to impose a de facto price cap on resale. Event organisers will be able to use the law to enforce their own commercial terms and conditions. We are about to give event organisers total control over tickets after they have been sold. This is a carefully constructed legal monopoly. Will my noble friend the Minister assure me that one of the subjects to be looked at in the review is how the number of people employed in the secondary ticket market has changed, and how the market share of the ticket issuers has changed?
Viscount Younger of Leckie (Con)
My Lords, following the debates on the subject of secondary ticketing in Committee and on Report, which caused considerable polarisation of views across party lines, I am pleased that today there appears to be good agreement on the way forward. I know that my noble friend the Minister has worked assiduously to find common ground. Reaching this point today is an example not just of how effective this House can be in spending the necessary time discussing the detail, analysing the issues with all those concerned, reviewing and scrutinising the law and moving forward, but also of how many company boards work with much interaction on challenging issues, which takes place initially behind the scenes, enabling the final decisions to be made in situ with relative accord and rapidity. To that extent, it would have been interesting to have secured my ticket to be a fly on the wall at some of these discussions, in which case there would have been no pillar impeding my view and I would not have needed the guarantee of a seat number. However, I would have needed a guarantee from the event organiser that there were no spiders’ webs—real or political, perhaps.
Although I welcome the Government’s willingness to act to address many of the strong concerns expressed on the secondary ticketing market through their Amendments 12B to 12H laid today, and their agreement to the amendments tabled by my noble friend Lord Moynihan, this is the beginning of a journey, as my noble friend said. First, there were clarion calls from some quarters for the secondary ticketing market to be banned. It is pleasing that there is now a general view that the secondary ticketing market has a necessary place in allowing fans to purchase seats for cultural and sporting events. A corollary of this is that it makes it more likely that seats at events will be filled—a frustration often expressed by observers and would-be fans.
It is now also accepted that the issue under debate, described generically as secondary ticketing, is much more complex. However, there is a main concern over sharp practice at best and fraud at worst. The victims are those, of course, who buy bona fide tickets and find that they are invalid. Along with some other noble Lords, I am adamant that there is legislation in place to protect against fraud but that it has to be made to work, with prosecutions, recompense for victims in relation to detriment suffered and with deterrents to putative fraudulent activity. I have also mentioned the need for more transparent and detailed guidelines for ticket operators and consumers, which is very much in the spirit of the Consumer Rights Bill, but without creating any unnecessary new bureaucracy.
Therefore, I welcome the move to make it mandatory for online ticket marketplaces to have to report criminal activity to both the police and the event organiser. Many of the persistent secondary ticketing troubles emanate from illegal websites, so the Action Fraud initiative as a national reporting centre for fraud and internet crime is to be welcomed. Of course, with the emergence globally of millions of websites, the question of how to regulate, monitor and harness the web is a matter for all Governments in all countries across most sectors. Therefore, my first question to my noble friend the Minister is: how proactive will this Action Fraud unit be, or is it merely a reception centre for reporting such crime?
The House may like to be reminded of the success of PIPCU—the Police Intellectual Property Crime Unit. Deep in the City of London some highly effective work is being carried out to identify fraud proactively, to intercept and to prosecute the owners of websites who are effecting and facilitating the transit of counterfeit and pirated goods into this country. In terms of the work it does, to what extent could the Action Fraud unit link up with, or learn from, PIPCU’s experience?
My main question about the statutory duty to report is: how can we know if the online marketplace is not reporting crime? Subsection (3)(b) of the new clause proposed in Amendment 12B states that the duty to report applies when,
“the operator knows that an offence has been or is being committed”.
Surely it should additionally apply to operators who suspect that an offence might be committed. Do we not seek the early tip-off? How proactive a role is the enforcement authority expected to have? To borrow a phrase used in an earlier debate by my noble friend Lord Clement-Jones, “Not a clue, guv”. There is a danger that a market operator will be able to turn a blind eye to a criminal activity, where he can legitimately say that he was not aware or could not have known. The enforcement authority will have the leeway of needing to be satisfied that on the balance of probabilities a person has breached the duty—but will the onus of proof be too difficult to establish, and too costly to work effectively, to achieve prosecution and for a fine to be imposed?
Finally on the duty to report, I wonder whether the cap of £5,000 provides an adequate deterrent for failing to report. The Minister may reply that she thinks it proportionate. However, I suggest that the stakes could be raised by doubling the maximum fine—on the basis that a fine is payable only if a suspected crime, which turns out to be an actual crime, is not reported. Your Lordships may be interested to be reminded that, for example, a fine of up to £20,000 is payable by employers for not paying the minimum wage.
I turn now to the second, welcome, element of the Government’s amendment—the statutory review. I welcome it because it will start as soon as possible and will have a tight reporting period. The purpose of the review is to address many of the complex issues relating to ticket sales, but it is as yet unclear what the terms of reference will be, and what such a seemingly catch-all review will cover. I have heard that it should encompass some aspects of the operation of the primary market—such as the sensible and proportionate block-booking of tickets by the RFU or the ECB for rugby or cricket events where clubs or schools are the beneficiaries. The review should also cover unscrupulous block-bookers who seek to make an unhealthy profit by selling on.
As my noble friend Lord Moynihan said, there is the question of who is defined as a consumer and who as a trader. Conversely, there is also the need not to have a chilling effect on the secondary marketplace. There is the issue of guidelines for contracts for ticketing for myriad events, and also the question of how to protect UK sports, theatre or concert fans who choose to book tickets for UK events through operators or sites overseas. I am pleased to hear from the Minister that the CMA is playing an active role and is taking some action. I ask the Minister for reassurance that the Government know that the review needs to be particularly wide ranging, but also tightly worded, to be effective and useful for taking the several steps forward that are needed in 2016. I note her encouraging comments today.
Finally, in repeating my support for the Government in acknowledging the valuable role of the secondary market, I add that the amendment would have been improved by the inclusion of a sunset provision for the review, perhaps at the point when it reports its recommendations. I ask my noble friend to comment on that. There will always be persistent fraudsters, but I welcome the consensus today that the review, while not providing all the solutions that some seek now, does provide us with a sensible platform from which to establish some concrete facts and to analyse the different elements of a complex landscape.
Lord Stoneham of Droxford (LD)
My Lords, I do not wish to detain the House long, as I understand the real reason why everybody is here. However, I wish to make one or two points, particularly as I disagreed with the proposers of the amendment at earlier stages of the Bill.
First, I congratulate my noble friend Lord Moynihan on his persistence and cheerfulness as the long-distance runner on this issue. I congratulate both him and the Minister, my noble friend Lady Neville-Rolfe, on having worked so hard in the last few weeks to arrive at a workable compromise. I have enjoyed working on this Bill with them, with my noble friends Lady Jolly and Lady Bakewell, and with the noble Baroness, Lady Hayter, and her colleagues on the Opposition Benches. I acknowledge the mutual courtesy and constructiveness that have been displayed at all times.
I accept that this compromise can provide more transparency in the marketplace in the interests of consumers, but we have always maintained that that must not be at the expense of the recognised and reputable operators in the secondary ticketing market. I am pleased that my noble friend Lord Moynihan acknowledged that these proposed changes have been designed to protect the reputable secondary ticketing market. He recognises that there is public support for greater regulation, but there is also wide public support for having a system of secondary ticketing. This proposal is better than encouraging people to go back to the ticket touts at events—or, indeed, using online and offline classified advertising.
On this side particularly we welcome the 12-month review of consumer protection issues relating to secondary ticketing. I reiterate the points that my noble friend Lord Moynihan made. I hope that the review will cover the wider issue of wholesale ticketing harvesting—the computer programs designed to circumvent procedures designed to contain sales to individuals, and how they can be best countered. I hope it will also examine and promote best practice techniques and the phasing of ticket sales, which maximise the chances of real fans obtaining the tickets.
There is, however, one final concern that should be expressed. I was glad to have the Minister’s reassurance on this matter; I hope that she can speak again on it without reservations. We welcome the compromise restricting event organisers’ ability to cancel the tickets that have been legitimately sold if they are identified in the secondary ticket market. However, the proposed new clause permits cancellation if the resale terms flout the terms and conditions of the ticket. That could cause confusion. I understand that it is right that the original seller should apply a cancellation if, for example, an adult was sold a child’s ticket. Can the Minister repeat that it will be completely unacceptable to have a blanket condition in ticket terms and conditions banning all resales—and, indeed, resale at a higher value? If either of these conditions prevailed it would drive a coach and horses through what we assume are the good intentions of this compromise. It would appear to be an unreasonable and unfair restraint for consumers in the ticketing market.
Apart from that, I welcome this compromise. I look forward to seeing it properly implemented.
Lord Holmes of Richmond (Con)
My Lords, the A1 is a beautiful road linking north and south. Motion A1 is a beautiful Motion, linking the sports fan back to the sport and the music fan back to the gig. It goes to the heart of a problem that has dogged sport, music and live entertainment for decades in this country. It is a great day for the sports fan and a fantastically bad day for the fraudster. Let the fraudster—the cyber, sheepskin-clad fraudsters—begone. This will make a tremendous difference to anybody who truly has sport, music, art, cultural and creative events in their hearts in this country.
There will be much to discuss in the review—many minutiae and details need to be bottomed out. I also believe there is still much that sport and music promoters can do to further protect their product and truly drive the primary market in tickets for their events. This is a great amendment and a great day across sport and music. It is testament to my noble friend Lord Moynihan, who has shown dogged determination over months to get us to this stage. The man from Monmouth has coxed this amendment to a successful and superb conclusion.
Baroness Heyhoe Flint (Con)
My Lords, I thank my noble friend Lord Holmes for bringing such a smile to my face. I love the word “dogged” here; I know he has a beast of a similar persuasion at his feet. The vision of a sheepskin-clad fraudster outside Lord’s when it is 75 degrees in the summer trying to get rid of his tickets brought a wonderful degree of levity to the occasion.
As I have spoken at every stage of the Bill on this issue, I hope the House realises how strongly I have felt about seeking to establish a fair market for sport and entertainment. I hope by the time the Minister has stood up there will have been reassurance to my noble friends Lord Borwick and Lord Stoneham for the slight concerns they have in certain areas. Secondary selling has now had an enormous amount of scrutiny and I am convinced that we have got to the right point in the Bill, crafted with so much ability and long-life energy by my noble friend Lord Moynihan. He has worked so enormously hard that he deserves to sit down in a darkened room after this and have a break. It really has been quite remarkable.
I declare an interest as a board member of the England and Wales Cricket Board and I hope I do not offend any Scots when I say thank goodness that England managed to beat Scotland in the World Cup a few days ago. No disrespect to the Scots but I might not have been able to walk through the door had that not happened.
The amendment before the House is not as comprehensive as the one we voted for just before Christmas but after lengthy negotiations, as mentioned by my noble friend, it addresses the key concerns raised and introduces—in that wonderful phrase—some new light-touch regulation. Alongside this it introduces the statutory review which many of my noble friends have complimented, and it is hugely welcome.
I too thank the Minister for the enormous amount of time she has spent considering this issue with all of us championing the cause, and for making her officials so available. That is so important and they helped us to drive through and draft this Motion. It will benefit fans of sport and entertainment across the country and up and down the A1—this is an A1 Bill, we must not forget that—and it has been greeted with huge congratulations from hundreds and thousands of people within the worlds of sports and entertainment. I almost feel that we should break out into a Mexican wave when we reach the conclusion of today’s discussions.
As we have heard, the Motion protects the consumer on the reselling of tickets by introducing the basic information we have so desperately wanted. Crucially, it does not in any way prohibit or ban the resale of the tickets. Concern was voiced before during the passage of the Bill about what information should be required and it is clear that we have sought to protect privacy issues by neither the name nor the address of the seller being given.
The information reporting set out in the Motion is important. It provides a way of detecting fraud and misleading selling. Indeed only last week, as my noble friend Lord Moynihan mentioned, the DCMS acknowledged that it was important that information was provided at the point of sale so that both consumers and event organisers could be certain whether listings were of genuine tickets. This will help to eradicate the curious practice used by many sites of tickets being listed for sale before they have even gone on sale officially by the event organisers and the venues. It is quite remarkable. The review to be established will assess if any further information is required or whether we have got the balance right first time. I hope it is the latter.
When this measure becomes law, those who buy a ticket from a secondary seller will receive exactly the same information and protection when they make the purchase as they would expect to receive when purchasing directly from the event organiser. They will know the value that the event holder has placed on the ticket—its face value—and the exact location of the seat. They will also have the option of checking with the event organiser that it is a genuine ticket. It is simple and effective.
Let us reassure the House about how this amendment would work in relation to the rights of the consumer. It is clear that event organisers will be able to uphold only terms and conditions which are fair and which have been communicated to the public when they buy the tickets. Nothing will come as a great surprise to the purchaser of the tickets. It will not have an adverse impact on the ordinary fan who wants to sell on a ticket if he or she cannot attend. All major sporting events—and, we assume, entertainment—either have exchange mechanisms or allow some form of resale at face value. It is hoped that this will encourage the best practice already identified by my noble friend Lord Moynihan concerning the theatre ticket and the terms and conditions on the back of it. Presumably no four year-olds are allowed to go and watch “Fifty Shades of Grey”, as that might contravene the terms and conditions.
Nowadays, for example, the ECB has no intent to cancel tickets sold on at face value, and it already allows the transfer of tickets. This is a form of governance that should be imitated and copied by any event organiser or governing body. It will not cancel those tickets if sold on the secondary market, and why on earth should it? That would cause reputational damage and would no doubt lead to investigation and complaint, as well as turn away and turn off genuine fans.
With the security of this amendment, event organisers will be empowered to take action against the worst abusers of ticket terms and conditions, as has already been mentioned. This covers issues such as fraudulent sales, bulk ticket sales by professional touts—not always in sheepskin jackets—and the use of bots to purchase tickets. To the uninitiated, a bot is a computer program that repeatedly logs in to buy tickets automatically. My noble friend referred to it as “harvesting” tickets; I refer to it as “hoovering up” tickets, but perhaps harvesting is more his scene and hoovering may occasionally be mine. It also covers the advance selling of tickets not yet on sale, as I have already mentioned, exploitative touting, and concession tickets sold to the wrong people in the wrong place, which can lead to embarrassment and discomfort.
The passage of this Bill will play a role in helping the UK to maintain our position as an open and honest showcase for international sports and entertainment events in this country, attracting millions of fans to our venues annually.
Cricket venues are doing everything they can to keep prices affordable, to encourage family audiences and not to overprice the market. However, visiting one or two of the websites referred to and looking at Ashes test match ticket sales, one can see that an averagely priced ticket costing £100 is currently on offer at at least £600. It is possible to get a ticket with a full hospitality package in one of the stands costing £1,950. I thought, “That must be a very expensive meat pie that they sell at Lord’s”, but it just shows what an amazing, incredible and dishonest mark-up is put on these tickets. It is completely unfair to supporters, who are denied the opportunity to attend major international events.
We have provided much needed protection to fans who spend their hard-earned money watching the sport they love. Those fans or consumers deserve our protection. I do not wish to sound triumphant but I know that there is a collective huge sigh of relief that common sense has prevailed. Now, hundreds and thousands—nay, millions—of fans can give a standing ovation to my noble friend the Minister and her team, as well as to my noble friend Lord Moynihan, for helping to protect the hard-working fan.
Baroness Hayter of Kentish Town (Lab)
My Lords, I see no reason why the noble Baroness, Lady Heyhoe Flint, should not feel triumphant. I think that is the right approach, and I join her and others in thanking the noble Lord, Lord Moynihan, who has done so much to bring us here, and also, as others have said, the Bill team; the sports and arts bodies; my colleague Nicola Jayawickreme, who has seen us through this; my noble friend Lord Stevenson, who alas is in a jungle today and cannot be with us; my gig-attending honourable friend Stella Creasy, who fought this much more alone, I have to say, in the other place; and also, if rather at the wire, the Government.
However, given that this will affect some of our premier sports, perhaps that final spurt, the holding of our collective breath till the very last moment when the line was crossed, and the smiles and cheers at the Minister’s words are particularly appropriate. Indeed, had the Minister sung her speech, that would have reflected as well the arts world’s relief that sense has prevailed and that genuine fans of music or sports will have access to the best without having to witness only those with the deepest pockets being able to pay to see the best of British performers, whether on the track or on the stage.
Furthermore, the money paid by fans will now, we hope, go to the promoters or the performers but will not be skimmed off by those who buy tickets purely to make excess rent, in the economic jargon. This was never an issue of individual fans wanting to sell the odd ticket they could no longer use. It is, as has been said, about industrial-scale touting—the buying up of sheaves of tickets to make a quick bang—and it is that that Motion A1 seeks to address.
We know that the Government had strongly resisted until almost the very last moment Motion A1 and all attempts to tackle an industry that makes a few people very rich but sucks money not just from fans but from sports and arts bodies—those that want to keep prices within the reach of all, not just the rich, so that ordinary rugby club members can go to Twickenham, tennis players to Wimbledon and music fans to their favourite gigs.
I remember that some years ago Paul Hamlyn opened the opera house—I think to celebrate his wife’s birthday—simply to groups of young people or community groups. I took 20 people there who would never have gone into the opera house without this. I will remember their faces, I think, for as long as I live, and the delight they had. I think they paid £10 a seat. In today’s world, with today’s methods, all those tickets would have been hoovered up and all those people denied that wonderful chance to go there.
Today the Government have accepted that it is time to deal with that industry, and we are delighted. There are of course issues not yet covered by the Motion, but these can fall to the review to consider. I hope the Minister can assure us that both sporting and arts representatives will be consulted on the choice of chair as well as on the terms of reference so that we learn from other inquiries. To add to the mix that has already been mentioned, I also ask that the Government consider for the review research into the impact of touting on fans and events, the effects it has in terms of pricing out ordinary fans and the wider reputation damage to events. They should also consider actions on bots, which have been explained to us, and enforcement of existing legislation; also, what constitutes a ticket—is it a piece of paper or is it the right to attend an event? Finally, they should consider whether the ticket identification number needs to be added to those tickets where there is no block, row or seat number.
Today, as the noble Viscount, Lord Younger, suggested, shows a job well done by your Lordships’ House. This final change will strengthen the Consumer Rights Bill. I think it is a triumph for the rights of consumers, in this case in the guise of fans and supporters. We wish the whole Bill well as it gets its final sign-off from the other place.
Baroness Neville-Rolfe
Before the noble Lord, Lord Moynihan, responds, perhaps, rather than repeating them, I will say that I share the many tributes that have been made during this debate to and by the noble Lord, Lord Moynihan. They have been made by the noble Lords, Lord Clement-Jones, Lord Stoneham and Lord Holmes, the noble Baronesses, Lady Heyhoe Flint and Lady Hayter, and the noble Lord, Lord Pendry, with his deep knowledge of the football world. On his question, the Bill provides for the measure to come into force two months after Royal Assent—so ahead of the Ashes and the Rugby World Cup, I hope.
I am also grateful for the points made by my predecessor, my noble friend Lord Younger, who did so much for enforcement of IP and the battle against counterfeiting. I will take away his various ideas, notably for dealing with fraud, and look forward to discussing his questions with him and feeding them into the review. I was also interested in his reference to sunsetting, which is one of the ideas that we look at in our Better Regulation work in the business department.
My noble friend Lord Borwick raised two important issues relating to how the amendments affect the secondary market in terms of employment and market share. As has been said, we have yet to set the terms of reference for the review, but I assure him that those issues will be considered for inclusion. He also expressed the concern that the amendment might criminalise consumers who give incorrect information. I reassure him that it will not introduce any criminal offences; the enforcement is but by civil penalties.
I can confirm that the blanket protection on ticket resale of the kind cited by the noble Lord, Lord Stoneham, is not provided for in the amendment. I reiterate what I said earlier on this important point: terms that prohibit or restrict resale above a particular price are assessable for fairness. They are not always fair and are not binding on the consumer if that is the case.
This is, of course, a compromise provision. The Government were not willing to jeopardise the passage of the Consumer Rights Bill. Therefore, while we share some of the concerns raised about how the industry could interpret the new legislation, it is up to it to show that it treats all fans fairly and to make these changes a success. We have a statutory review, which will be an opportunity to look at this matter and at many of the issues debated today. I know that this House will be very interested in the results of the review and that many noble Lords will feed in their thoughts and ideas. I should make it clear, as the noble Lord, Lord Moynihan, touched on the subject, that the review is a joint one between the DCMS and BIS—the reviewer is to be appointed jointly by the two Secretaries of State. I note the various points made by the noble Baroness, Lady Hayter, and will take them away to ensure that we have the right independent chair and the right terms of reference.
I thank noble Lords for their expert scrutiny of the Bill, and in particular for the provisions we are discussing today. I look forward to the Bill receiving Royal Assent.
Lord Moynihan
My Lords, I express my further thanks to all noble Lords who have participated in this debate on what is, as has been rightly pointed out, a compromise provision. For the avoidance of doubt on the part of one or two speakers who may not have fully appreciated it, all those who have spoken in favour of this Motion reiterated that it is very important for a secondary market to thrive. We are looking through this Motion for an effective, transparent and accountable secondary market. I appreciate in all humility the generous personal comments that have been made and ask the House to agree to the Motion standing in my name.
Human Fertilisation and Embryology (Mitochondrial Donation) Regulations 2015
(9 years, 9 months ago)
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20:16 - Division on Lord Deben’s amendment - Ayes: 48 / Noes: 280 - Amendment disagreed.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)
My Lords, the purpose of the regulations is to enable women to have their own genetic children, free of terrible disease caused by disorders in their mitochondrial DNA. The regulations do so by allowing healthy mitochondria from a donor to replace the unhealthy mitochondria in a woman’s egg or embryo.
Mitochondria are present in almost every cell in the body and produce the energy that we need to function. This is why they are often referred to as the “powerhouse” of the cell. Unhealthy mitochondria can cause severe medical disorders known as mitochondrial disease, for which there is no cure. There are 37 genes in the mitochondrial DNA, compared with more than 20,000 in the nuclear DNA. This represents less than 0.1% of the total genetic make-up. The techniques provided for by these regulations offer the only hope for some women who carry the disease to have healthy, genetically related children who will not suffer from the devastating and often fatal consequences of serious mitochondrial disease.
Provision to make these regulations was introduced by Parliament into the Human Fertilisation and Embryology Act 2008. It followed an amendment that recognised the progress being made in research. In 2010, researchers at Newcastle asked the Department of Health to take forward steps to develop regulations. Over the last five years, there has been extensive engagement and consultation with the public on this issue, including, first, an ethical assessment by the Nuffield Council on Bioethics in 2012; secondly, a highly commended, respected and wide-ranging public dialogue and consultation exercise carried out by the HFEA in 2012-13; and, thirdly, a public consultation on draft regulations carried out by the Department of Health in 2014. There have been three separate reports into the safety and efficacy of these mitochondrial donation techniques by an expert panel convened by the HFEA, published in 2011, 2013 and 2014. The expert panel members were selected for their broad-ranging scientific and clinical expertise, and for having no direct or commercial interest in the outcome of the review.
This process was commended in a recent letter to the Guardian from eminent scientists and Nobel Prize winners from the UK and across the world. The letter included this sentence:
“the UK has run an exemplary and internationally admired process for considering benefits, risks, ethical issues and public consent, which must properly precede a change in the law”.
Given the extensive scrutiny given to this issue during the life of this Parliament, I believe it is appropriate to allow this Parliament to decide whether to take the next step for mitochondrial donation, which can make meaningful progress to actually help families only with the passing of these regulations. The two proposed techniques that would be allowed under these regulations are maternal spindle transfer and pronuclear transfer. These replace the mitochondrial DNA, which contains a small number of unhealthy genes, with healthy mitochondrial DNA. Mitochondrial DNA is just 0.054% of our overall DNA. One important point to emphasise here is that none of the nuclear DNA, which determines our personal characteristics and traits, is altered by mitochondrial donation.
I know that many noble Lords will have their own tributes to pay, but I would like to make my own acknowledgment of the ground-breaking work that the scientists at Newcastle University have led, which is world-leading in the development of these new techniques. It is also very important to praise the Lily Foundation, a charity founded by families who have lost their children to serious mitochondrial disease, which has reminded us about the human story that inspired this scientific advance.
I turn now to the detail of the regulations made under powers in the 1990 Act which, as I said, were added in 2008, with Parliament’s express agreement, in anticipation of the advancement of science to this point. These powers would permit mitochondrial donation in order to prevent the transmission of serious mitochondrial disease.
Lord Deben
To leave out from “that” to the end and insert “this House declines to approve the draft Human Fertilisation and Embryology (Mitochondrial Donation) Regulations 2015 laid before the House on 17 December 2014 and calls on Her Majesty’s Government not to lay new draft regulations until a joint committee of both Houses has been established and has reported on (1) the safety of the procedures permitted by the draft regulations, (2) the compliance of the draft regulations with European Union and domestic law, and (3) the key definitions used in the draft regulations”
Lord Deben (Con)
My Lords, first, I have to say that I am in favour of mitochondrial donation. I am not opposed to it in principle. I tabled this amendment because otherwise it would have passed through this House—in the Moses Room—without the kind of concern that we now have. The numbers present show it to have been right to discuss this matter very carefully. It is right because we are dealing with something of incredible importance to the families concerned: the fathers and mothers who can produce children but cannot, because those children will, almost certainly, carry this terrible disease. They deserve all the care that we have expended on them. The fact that some suggest that there are not that many of them is nothing: if there were but one we should be as concerned about this as we are.
I yield to no one in my determination to try to do what is right in this area and I do so for a personal reason, which is that I am thankful every day that my wife and I produced four children who in that sense—though perhaps in no other—are perfect. Those of us in this situation have a particular need to be concerned. We should be concerned with the parents; we should be concerned with the wider community; and we should be concerned with the children who would be born in these circumstances. My concern is that the Government have approached this in a way that is very unhappy. Because there are so many of us who would find the movement of a spindle from a non-diseased egg to a diseased egg something that we could accept, there was a basis for a commonality of understanding and support. That was there. All we needed, therefore, was to be assured that the procedure was safe and legal.
My noble friend—and he is a noble friend; he was one of my Ministers, and we worked closely together—has carefully covered his view of the law. I think that the law is very often an ass. I am certainly not one who would demand that lawyers should decide what we should want. I say sorry to the noble Lord, Lord Pannick, who looks unhappy at that comment. However, I believe that we should obey the law and it is quite clear that there is considerable disagreement—I put it simply like that—about whether this action is legal under European law. Although my noble friend gave the best account that he could, it is worth saying that many others take a different view. What is more, the two law officers, the Attorney-General and the Lord Chancellor, voted against these regulations. The Attorney-General has said clearly that he did so on legal grounds, so it cannot be said that those of us who suggest that the legal arguments are at least uncertain have an entirely unreasonable position.
Many who are present will have been sitting through the last part of the previous debate on ticketing. I had taken a particular view on that but felt that the House had heard enough of me without intervening on that occasion. But it may be within the memory of the House that the Government fought very hard not to take action on ticketing until they were absolutely sure about the legality, under European law, of what was being proposed and that there was a proper investigation of it. I had expected my noble friend to say that he had been to outside experts and to the European Union itself to be assured that he was not going to find himself in court were this passed. He has not done so. The only legal advice that has been presented to this House is the internal advice of the Department of Health. I do not find that satisfactory.
Lord Willis of Knaresborough (LD)
I am grateful to my noble friend for giving way. Does he accept that the Wellcome Trust has published and given to all Members a legal position which has all the authority of its own lawyers and which backs up the position of the Minister?
Lord Deben
The Wellcome Trust has certainly done that but I was referring at that moment to the ministry and the Minister. However, the Wellcome Trust has not gone to experts in European law; it went to an expert that it chose. I am perfectly happy about that but it is only one of a series of opinions, which are contrary one to another.
I started with this point because of my concern about the families. It seems that it would not be a good beginning for this change if, immediately afterwards, the large number of Members of the European Parliament —from the right to the far left—who have said that they would see this as so clearly contrary to European law seek to refer it to the courts. That would not start this off very well. The real question is why the Government have not taken the steps which would enable us all to accept that this was legal. I do not understand why they have not done that, so my first questions to my noble friend are: why was that not done and why, even after we asked for it, did the ministry not go out and see that it had exterior and clear European advice, so that we would know where we were?
That is of course only the first part of it; the second is a question of safety. I have said that if we talked about transferring the spindle from one egg to another, I would not have any ethical objection. Indeed, it would be the opposite; I would want to support it. I ought to say that, because one noble Lord, who I know is going to speak later on, at an earlier meeting said, “Well, he only says all those things because he’s a Roman Catholic”. I think I will face that. Those Members of your Lordships’ House who took part in the proceedings on the Marriage (Same Sex Couples) Bill will remember that I spent a good deal of time supporting the Government’s position on that.
The Deputy Speaker (Lord Geddes)
I assume the noble Lord would like to move his amendment.
Lord Patel
My Lords, I am sorry for rushing in, but the noble Lord, Lord Deben, excited me so much with the comments he made that I have to answer some of his points, particularly on safety. I hope that noble Lords will have patience, because I need to go through each of the points he has made on safety, as I have no doubt that they will come back again in subsequent debate.
It is important that I put down some ground work. What are we talking about? We are talking about a mitochondrial DNA disease that commonly affects multiple different organs. Symptoms include severe muscle weakness, diabetes, heart problems, cardiac failure and sudden cardiac death, as well as central nervous system problems, which include dementia, epilepsy, stroke and such other horrible conditions. It results in death, which can occur early in childhood or after a prolonged period of incapacity and pain that can last for years.
It is important to have some facts about mitochondrial DNA genetics and inheritance. Mitochondrial DNA is strictly inherited maternally, via the egg. The mitochondrial DNA copy number and the number of mitochondria vary between cell types, with more than 200,000 in the egg and early embryo down to perhaps as few as 10 to 20 in many cells of the two to three-week old embryo, and hundreds to thousands in most cell types in adults, where the number tends to correlate with energy demand. Cells can have a mixture of two or more types of mitochondrial DNA sequence, a condition referred to as heteroplasmy, in contrast to homoplasmy, where each copy has the same sequence. More than 300 distinct mutations of mitochondrial DNA have been found in patients with mitochondrial disease. Although some mutations are far more common than others, if an individual is heteroplasmic, with a mixture of mutant and normal mitochondrial DNA, the proportion of the former determines whether they show symptoms of mitochondrial disease. Some women at risk of transmitting mitochondrial disease to their children are heteroplasmic and may have levels considerably below the disease threshold, but their eggs can have very high levels of mutant mitochondrial DNA or even be homoplasmic. This can be explained by the so-called bottleneck, which I will not go into in detail, but, during the development of the egg, only a certain number of mitochondria go into fertilisation, and that causes a bottleneck that sometimes results in only the mutant mitochondria getting through.
It is estimated that at least one in 200 children in the UK is born with some faulty mitochondrial DNA—so quite a lot of them may well have some faulty mitochondrial DNA. It is estimated that one in 6,500 babies goes on to develop serious mitochondrial disorders. The severity varies from mild to extremely debilitating and may result in early childhood death. Almost 2,500 women of child-bearing age in the UK are at risk of transmitting mitochondrial disease to their children. Estimates based on this figure suggest that between 100 and 150 births a year in the UK risk passing on mitochondrial disease to the child. If today we were discussing cancer or dementia, and how we could modify those diseases with some form of genetic or mitochondrial manipulation so that people would not get it, everybody would be in favour of it; but as mitochondrial disease affects 100 to 150 people a year, we do not take it so seriously—or so it seems.
I will now go on to what the noble Lord, Lord Deben, said about the two techniques that we are likely to be discussing—the maternal spindle transfer, which the noble Lord prefers, and pronuclear transfer—and I will say why I believe it is necessary that currently the HFEA, as a regulator, is allowed to decide which method might be appropriate for a given patient in a given centre. We do not know which technique is the more efficient and safer, despite what some others may believe. In fact, they may not be equally efficacious in every woman.
Pronuclear transfer has been used successfully in animals for more than 30 years with no evidence of adverse effects. On the other hand, maternal spindle transfer is a newer technique, which is likely to result in less carryover of mitochondria but has a higher risk of chromosomal abnormalities. That is an important point: pronuclear transfer may have more carryover of mitochondria but maternal spindle transfer has a higher risk of chromosomal abnormality. Maternal spindle transfers are very sensitive to manipulation. The embryo is less sensitive in its early stage to such manipulation.
Furthermore, both techniques have been found to be variable for avoiding mitochondrial disease. Which technique will be used for each individual patient will be a decision for the patient, based on their informed consent, their clinicians, the evidence from research and the safety aspects. In my view, it would be inappropriate for Parliament to make a scientific judgment as to which technique should be able to be used. One thing is certain: the scientists and the clinicians will go with whichever method is the safest and most efficacious. If it turns out, through research that is currently going on, that we can make maternal spindle transfer safer and less likely to lead to chromosomal abnormalities, that is the method that the scientists and the clinicians will choose. Research is going on to make that process safer. There are many ways of doing this. I am not being flippant when I say that one of the methods that has been tried is to use a small amount of caffeine to make the maternal spindle transfer more stable. Eventually, we will get that research right and whatever method is safest will be used. However, it would be wrong to opt now for one method which is not as successful as others.
Issues have been raised about the health and safety risks of some of the techniques. I agree with the noble Lord, Lord Deben, that it is never possible to be certain that new medical procedures will be 100% safe or effective. That applies to the whole of medicine—drugs, devices or surgery. Risks have been assessed in detail. As the Minister said, there have been three separate reviews of the scientific evidence on the technique’s safety by a specially convened independent panel of experts. It would be wrong to suggest that these experts might be biased when none of them has any financial interest in mitochondrial research or treatment, or that they might not have understood the issues and that we in this Parliament are more likely to understand the science which underpins this research, which has led to the point where it is now possible to use this technique to help women to have normal babies.
Decisions on safety and efficacy should be taken by the statutory regulatory authority created to do this—the HFEA. Risks must be balanced. Evidence suggests that any risks of mitochondrial donation are proportionately less than the significant risk that children will continue to be born who will develop severe mitochondrial disease if these techniques are not used. Ultimately, it will be up to affected families to judge the balance of these risks. They are the ones who will take the risks.
I would like to explore some of the health risks that the noble Lord, Lord Deben, mentioned, although he did not mention that of the potential effects of the donated mitochondrial DNA on the rest of the cell. I turn first to traits attributed to mitochondrial DNA. On variations in the 37 well studied genes, a whole mitochondrial genome has been sequenced for all these genes and they have all been found to have one function in expressing the protein that produces energy. No other trait has been identified from the sequencing of the whole mitochondrial genome. Therefore, the variations have been well studied. Although this is still contentious among mitochondrial experts, theoretically—I admit—it is possible that a child born after mitochondrial donation might have a slightly different energy metabolism compared with his or her female ancestors. However, none of this has resulted in devastating mitochondrial disease.
Evidence has also been cited that a mismatch between the DNA in the donor’s mitochondria and the mother’s nuclear DNA might have a negative impact, namely sterility and impaired growth—the noble Lord mentioned sterility—in the resulting child, as well as slow metabolism. This issue was considered in great detail by the HFEA scientific panel. In normal human populations the mixing of nuclear DNA during sexual reproduction means that there can be a complete exchange of nuclear and mitochondrial DNA type over a few generations—I calculate it to be about six generations. Given that I married an English lady, the mitochondria of my children have changed dramatically. My ancestors’ mitochondria are no longer in my children—they have English mitochondria. However, I am glad to say that they have produced terrific children. Evidence of mismatch between nucleus and mitochondrial genomes has come mostly from research where new combinations have been made experimentally across animal species that have been separated for many hundreds of thousands of years or longer—for example, rats and mice. Within species, such as in some experiments involving mice or fruit flies, evidence of mismatch is seen only when particular sub-strains of a species have been reproductively isolated from each other and each inbred. The one species, the human race, is the most outbred species there is. Some of us are examples of that.
Lord Gordon of Strathblane (Lab)
Would the noble Lord comment on the HFEA’s recommendation that, as available data are limited, an extensive range of pre-clinical research should be carried out before proceeding?
Lord Patel
The data that the report suggested were not available were actually presented to the committee. They have not been published because, as any scientist would know, if you publish—
Lord Winston (Lab)
I wonder whether I can help my noble friend Lord Patel. Does he agree with me that there were very few available data for the first in vitro fertilisation babies, and that that was a step in the dark, as were pre-implantation diagnosis and sperm microinjection? Before he concludes his speech, would my noble friend be kind enough to answer an important question asked by the noble Lord, Lord Deben, about the possibility that we might be making infertile children? Was that not the accusation made when infertility was treated by in vitro fertilisation, and was there not a widespread fear at that time, too, that we would be making infertile children?
Lord Patel
I thank my noble friend for that interruption. It was worse than that: it was suggested not only that those children might be infertile, but that they might be half monsters of some kind. To answer the question raised earlier about the HFEA’s evidence—yes, it did ask, and the evidence was verbally produced. The reason why it is not published is that anything that is published, even in the form of an extract, cannot then be published in a reputable journal. I know that that evidence has now been sent for publication.
To go back to the subject of the evidence requested, if we were to go down that road and do those experiments, what would be required in the human population is the deliberate creation and destruction of many hundreds, if not thousands, of embryos—to prove a point that does not require proving. Hundreds and thousands of human embryos have already been tested and found to go to a blastocyst state, and I hope my noble friend Lord Winston will agree that if we see them in that state, the embryo will be satisfactory. He nods slightly.
The alternative would be human population genetic studies to fulfil that requirement for evidence. What that shows is that exchange of mitochondrial DNA haplotypes by normal reproduction should reveal combinations that are deleterious. Human population genetic studies will do that. Such studies include genome-wide association studies and whole genome sequencing projects looking at many specific diseases and syndromes. Those kinds of studies will be required. They do not require embryos to be created, nor is it necessary to do these studies before this treatment is available.
I know I am going on a bit, but other points were made. If there are points about epigenetics et cetera, those are also spurious and have no basis in science.
Let me go now to something that the noble Lord, Lord Deben, mentioned twice: the Chinese example. The technique that was used in the United States and in this Chinese example is called cytoplasmic injection. No doubt the noble Lord, Lord Winston, is more familiar with it from his work than I am. It is a technique that is not allowed in the United Kingdom. That is the first point. It is completely different in design and intent from what we are talking about in mitochondrial replacement; it is nothing to do with it.
What was done in China was a cytoplasmic injection not for replacing mitochondria, but for infertility treatment in older women. That was also the case in the United States; it was an extra cytoplasm with possible mitochondria in older women, where both are at risk of producing chromosomal abnormality. In China it was used in only one study, which was conducted by an American, Professor Grifo. They inserted five embryos. We do not allow that in the United Kingdom because of the risk of multiple pregnancy. It resulted in a multiple pregnancy. They then tried to reduce the number of foetuses by injecting one of them to reduce the number of foetuses from three to two. I do not know what kind of technique they used—
Lord Patel
“Dangerous”, my noble friend says. It killed the other two and resulted in a premature birth. They never published this, despite being asked if there was a publication. It is wrong to say that the HFEA did not ask them; the review panel did. Professor Grifo sent a letter saying that, in his view, all the foetuses were normal but they died of prematurity. What they died of was an obstetric botch-up. It had nothing to do with what we are talking about today. It was a completely different technique. We should dismiss it completely. It would be wrong to put any credence on it and say that it is a good reason why we should not do this.
I could go on about other safety aspects that were brought up, but let me close by saying that hitherto the science has gone as far as it can in thousands of animal experiments that have resulted in normal pups. In human embryos it has gone as far as it can to produce normal embryos, which, if implanted, there is no reason to believe would not develop into normal, healthy babies who would not carry the defective mitochondria. All we are doing today is allowing the regulator henceforth to decide, on a case-by-case basis, to issue a licence to those clinics for those mothers who request this treatment, and which are allowed to use both techniques that we currently know are safe while further research goes on. None of us stops researching: the noble Lord, Lord Winston, still carries on researching; the noble Lord, Lord Kakkar, still carries on researching. If a chance was given, the noble Lord, Lord Walton, would still carry on researching. We do not stop researching; that is the nature of medicine and of academic medical science. I hope that we will pass these regulations.
Lord Turnberg (Lab)
My Lords, I am extremely grateful to be able to follow the noble Lord, Lord Patel. I am also grateful to the noble Earl for setting out the issues so carefully at the beginning. I listened with great attention to the eloquent and persuasive speech from the noble Lord, Lord Deben, but I am afraid I was not persuaded. I cannot go along with the idea that we should put this regulation on hold for the time being. My reason is the awful position parents find themselves in when they have a child severely affected by one of these dreadful mitochondrial diseases. They are desperate to avoid having more children with the same disease. The noble Lord, Lord Deben, started from the same position but I believe that we are now in a position to move forward.
We have all been bombarded with information about mitochondria to the extent that few of us can be entirely ignorant of what they are and what they do. Yet there is still considerable room for confusion, at least according to some of the correspondence I have received. References to GM crops and cloned animals are way out of line. Suggestions that mitochondrial transfer techniques are a form of cloning when they are nothing of the sort, or that they are on the slippery slope to genetic manipulation and designer babies when there is no conceivable link between them, are very unhelpful and not part of any reasoned discussion about the issues. I could elaborate on that but will leave it for the moment to concentrate on what I think are the more rational arguments that have been and will be made today.
The noble Earl discussed the safety issues, as did the noble Lord, Lord Patel. The suggestion has been made that the techniques may not yet be safe enough. Let me take this a little further. The basic animal experiments have been going on since the 1980s and the specifics of maternal spindle and pronuclear transfer have been very fully researched for the last seven years. We have heard about the three thorough scientific reviews by expert panels set up by the HFEA. In each, further research that needed doing was suggested and each time the research has been actively and successfully pursued. On the last occasion, in 2014, they clearly stated that there were no major safety issues remaining. It is true that they suggested some further tests—and they are all under way, as we have heard—but they pointed to the fact that at the end of the day there will be no substitute for trying it in humans who carry the abnormal mitochondria.
In vitro studies in the test tube with human embryos after mitochondrial replacement have revealed no problems, and experiments with macaque monkeys—yes, they have been done—and maternal spindle transfer are all reassuring. It is interesting that monkeys are not suitable models for pronuclear transfer techniques because research shows that pronuclear transfer in vitro fails in monkeys but works perfectly well in human studies. The only way in which safety can be finally tested is in humans since no procedure or drug can be certainly safe without that. We have gone almost as far as we possibly can before that step is taken. We have heard some issues about the China syndrome, which I believe the noble Lord, Lord Patel, has dealt with perfectly well. Clearly, that was quite something else and not relevant to our discussions today.
Equally important is that these regulations do not simply allow human trials to start now—they do not; they allow the HFEA only to examine applications made to it for full assessment. It will then decide if the science is persuasive enough, that those proposing to do it have sufficient experience and capacity, and that the patients being put forward are clearly those likely to benefit. Remember that the HFEA is no pushover. It has in its membership not just three scientists and a clinical geneticist but three patients who have gone through IVF, a barrister, a professor of philosophy, a bishop and a national security adviser. That is quite an interesting mix but not one likely to be easily moved by faulty argument. It is they and their scientific advisory panel who will be assessing applications when these regulations come into force in October.
Other anxieties have been expressed that we will be disrupting the relationship between the nuclear and mitochondrial genes: the nuclear genes carry the information that determines all the characteristics that make us human, and the mitochondrial genes provide the energy supply for cells. This argument was discussed at great length in the HFEA’s scientific report in 2014 and was found wanting, not least because half the genes in a fertilised egg are derived from the father and are therefore already foreign to the mitochondria, yet they do not interfere with each other. Furthermore, mitochondrial genes are pretty well conserved between different individuals because they perform a limited number of functions, while there are large differences between the nuclear genes of different people, each of whom is made up of a mixture of DNA from a mother and a father.
The Lord Bishop of Carlisle
My Lords, for those among us—and I include myself—who are not scientists, this is a demanding topic. In fact, I guess that even those who are scientists do not always find it exactly straight- forward. A significant part of that complexity derives not from the difficulty of the science itself but from the different—sometimes diametrically opposite—things that we are told by people who have been studying and researching mitochondrial transfer for many years.
Like many others in your Lordships’ House, I have recently attended a number of presentations, drop-ins and seminars on this subject. I have also read through the many written representations that have been referred to and which most of us will have received. They mirror the speeches being made in this debate.
On the one hand, we are assured, as we have been today, that scientists are clear about both the safety and the efficacy of mitochondrial transfer. It is no different from giving a blood transfusion or changing the batteries, so there is no problem there. On the other hand, we are warned by scientists—not just the correspondents to whom my noble friend Lord Turnberg referred—that mitochondrial transfer is a form of genetic modification which does affect the germ line, albeit not the nucleus, and could have a potential impact on the traits of any children, and their children, born as a result of this procedure. Some suggest that this would involve crossing a key bioethical threshold that we could later regret, and we are all aware of the pressure that is being brought to bear on us from elsewhere in the world.
In addition to all that, from a purely ethical point of view, as my noble friend Lord Deben mentioned, one form of treatment, maternal spindle transfer, is for many people clearly preferable to the other type—pronuclear transfer. Unfortunately, as my noble friend Lord Patel pointed out, the spindle method is currently less stable, although that may change.
The so-called “genius” of the Church of England has always been its via media—the middle way—and that is where I find myself today. Over the last few years, we have consistently taken a fairly nuanced position on this subject. Despite some misleading press reports, we are not in principle opposed to mitochondrial transfer, and it makes a pleasant change for the church not to be against something. Indeed, I explained this to the Minister, Jane Ellison, before the debate in the other place and she referred to our conversation in her comments there. But, at the same time, we have always counselled a degree of caution, given the potential implications of this development. In particular, we have always argued that the research tests into safety—set out quite clearly as essential before any further move is made by no less than the HFEA expert panel in 2011— should be completed and reported before these regulations are approved. That has not yet happened. We are therefore disappointed by the element of rush now, which I guess could be occasioned by the forthcoming election. I was talking this morning with a GP friend, who said that she could not imagine any drug or treatment being authorised before all the necessary tests had been undertaken and reported. In this case, that clearly, according to the HFEA’s own recommendations, has not been achieved, even though, as we have been reminded, the research has of course been taking place for several years.
Like every other Member of your Lordships’ House, I am very keen to see help offered to couples who face the terrible prospect of a child born with mitochondrial disease. I also know which of the conflicting scientific viewpoints I would rather believe. To reiterate, both personally and as a representative of the Church of England I am basically very much in favour of this development. However, I cannot ignore the compelling arguments against pushing this through in haste, and for that reason I am minded to vote for the amendment proposed by the noble Lord, Lord Deben. I know that it is regarded by some as a wrecking amendment. I do not see, read or hear it in that way. I would hope that any Joint Committee’s work could be completed without undue delay. For the same reason, if we reach a Division on the initial Motion before us, I will feel compelled to abstain.
Viscount Ridley (Con)
My Lords, I must declare an interest in that much of the groundbreaking science of mitochondrial donation has happened at Newcastle University, where my wife also works, although in a different field. Also, some of the relevant work has taken place on the premises of the International Centre for Life in Newcastle, of which I am honorary president. I am also a fellow of the Academy of Medical Sciences.
I shall be as brief as I can. We have a duty to consider five simple questions. Is it legal? Is it safe? Is it necessary? Is it ethical? Is it rushed? It seems to me that, as the noble Lord, Lord Turnberg, said, we have clear evidence that it is legal for Parliament to enact these regulations. They are explicitly foreshadowed in the Human Fertilisation and Embryology Act 2008. They are not covered by the clinical trials directive. They are not eugenic, and therefore not in conflict with the EU Charter of Fundamental Rights.
Is it safe? We have heard that the safety and efficacy of both techniques have been established as far as is possible by exhaustive study, independent scrutiny and public consultation. The case of the Chinese example, as the noble Lord, Lord Patel, has said, is simply not relevant to this case. This was an obstetric disaster that happened to one woman and was a technique that was intended to cure infertility and had nothing to do with mitochondria anyway. As far as we can tell, the mitochondrial transplant element of that technique worked.
As for the infertility question, I have to say that I think my noble friend Lord Deben has misquoted a very distinguished scientist, Professor Robin Lovell-Badge. I was in the same meeting and I did not hear him say the words that the noble Lord said. He made the point that some techniques that are already legal and used probably perpetuate some forms of infertility. We therefore already accept that some techniques that are used may produce children who lead very happy lives but will themselves require assisted reproduction.
Incidentally, I completely agree with my noble friend Lord Deben that we should not argue from authority, that the consensus of scientists may sometimes be wrong and that we should make up our own minds. As always in science, however, it is the evidence, not the existence of a consensus, that convinces me that this is efficacious and safe.
Is mitochondrial donation necessary? If there is one thing that we have learnt from 30 years of in vitro fertilisation, it is that adoption is not a full alternative to conception. Were we right to give women assisted reproduction so that they could have their own children? Yes. Millions of happy mothers bear witness to that.
Is pre-implantation genetic diagnosis an alternative in this case? Often it is not, because it is more likely, as we have heard from the noble Lord, Lord Patel, because of heteroplasmy, to produce an afflicted child. I was also surprised to hear the noble Lord, Lord Deben, say that the reason we are going ahead with the techniques of maternal spindle transfer and pronuclear transfer is “about money”. I just do not think that is the case. It is very clear, as we have heard from the noble Lord, Lord Patel, and others, that there are very good reasons to go ahead with both these techniques.
Is it ethical? We do not, in the 21st century, have the luxury of deciding these things in a theological way. If we block an advance of this kind and it turns out that it could have eliminated suffering safely, then it is on our consciences in a way that it would not have been 30 years ago, when we could do nothing. In losing our impotence, we also lose our innocence. In other countries, this decision would be up to the regulator already. Here, uniquely, we have explicitly said that Parliament should first decide whether the regulator can take such cases, which is what we are deciding today.
Once Parliament has decided that mitochondrial donation is not likely to be unsafe, and the HFEA has judged that it is safe, it should be up to families to decide whether they wish to use it. It would be unethical for the state to deny them that choice.
We may become the first country to do mitochondrial donation, but there is nothing wrong with that. Britain has been the first with most biological breakthroughs, from natural selection to the double helix, from monoclonal antibodies to in vitro fertilisation. In every case, we look back and see that we did more good than bad as a result.
Baroness O'Loan (CB)
My Lords, I very much support the Motion that has been tabled by the noble Lord, Lord Deben, for the reasons he very articulately expressed. The Minister has reassured us significantly about these regulations, but he did express many of the uncertainties that remain. In moving his Motion, the noble Lord, Lord Deben, talked about uncertainty. The noble Lord, Lord Patel, gave us graphic details of the uncertainties of the two processes that are proposed, which may result in increased risk of chromosomal defects. In the light of all that uncertainty, how can it be right that your Lordships’ House be asked to make a decision of this magnitude before the conclusion of all the necessary research?
I want to talk briefly about one issue that relates to the protection of women’s health. We are told that these proposals are all about advancing women’s rights, and yet it seems to me that we are at risk of overlooking one very important matter in relation to which these procedures plainly do not advance women’s rights. That is the repercussions of the increased demand for donor eggs for the women who donate the eggs. The requirement for more eggs is a consequence of scientific development, and that is widely accepted. A Nuffield Council on Bioethics report looked into the ethical issues around mitochondrial donation and stated:
“One of the major barriers mentioned by scientists when assessing the potential for cell reconstruction techniques to become treatments is the fact that many more egg donors will need to be found to undertake the research required in order for the safety and efficacy of PNT and MST to be established, and if therapies are to be provided in future. A shortage of egg donors is an acknowledged problem in respect of donations for reproduction, and it is not yet clear whether egg donors would be more likely to come forward”.
Lord Winston
I am grateful to the noble Baroness for giving way, but I do not think that she speaks from experience. Sadly, I have to say that I do speak from experience. I have run a very large infertility practice for a very long time, and we found donors very easily when it was concerned with these sorts of serious conditions. There was never a problem about finding donor eggs for this kind of problem.
Baroness O'Loan
I thank the noble Lord for that intervention. However, the research shows that there is a shortage of women donors.
Eggs used have to be extracted from women’s ovaries by a process known as controlled ovarian hyperstimulation, which can lead to complications for women. According to the Royal College of Obstetricians and Gynaecologists, it affects up to one in three women to some degree. It says that between 3% and 8% of IVF cycles are complicated by either moderate or severe OHSS, which can cause a variety of painful and upsetting symptoms such as abdominal pain, nausea, diarrhoea, haemoconcentration, thrombosis, pleural effusion and respiratory distress. It can be further complicated by ovarian rupture and renal insufficiency. In some cases, it can be life-threatening.
The Newcastle Centre for Life conducted research on the prevalence of OHSS and published the results. It found that the risk of hospitalisation increased massively if more than 20 eggs were collected. We do not know whether the pattern that it established is repeated at other research centres because the data have not been compiled. There is a gap in the evidence base. The really important point is that, as I understand it, the collection of 20 or more eggs is very common in the UK. Tens of thousands of women have been through the process, so there is a substantially increased risk of a serious medical condition.
Mitochondrial donation is impossible without a supply of donor eggs. The procedures rely on the willingness of women to undergo a process which may bear serious health risks and about whose safety there are not extensive data. Two Answers were given in Parliament last summer which suggested that the monitoring of the incidence of ovarian hyperstimulation syndrome is inadequate. On 9 July, the Health Minister in another place said:
“The HFEA does not, therefore, hold definitive data on the number of women admitted to hospital with OHSS, including non-patient egg donors and egg-share donors”.—[Official Report, Commons, 9/7/14; col. 313W.]
On another occasion, it was said that,
“licensed fertility clinics are only required to report instances of OHSS to the authority that require a hospital admission with a severe grading”.—[Official Report, Commons, 24/6/14; col. 157W.]
It was stated that other cases were reported as well. I do not think that the Government have given enough consideration to the effects of the legalisation of mitochondrial donation on the donor’s health. There is a possibility that it will lead to further problems.
This concern is underlined very effectively by the fact that the Newcastle scientists pressed Parliament very hard to sanction legislation to permit the creation of animal hybrid embryos. Parliamentarians who recall that debate will remember that the principal justification for changing the law was to allow the creation of admixed human embryos in order for research to be conducted without it being dependent on human eggs because of their limited availability. The legislation was passed; the research is dead.
Lord Patel
I thank the noble Baroness for giving way. It is important to clarify that point, particularly as it was crucial in the debate on that amendment. Admixed embryos were required for the research to be carried out then in order to study the diseases in embryonic stem cell lines without using human eggs. She is correct in saying that. On why that research has been abandoned, as the noble Lord, Lord Alton, may well remember, I made the comment in closing that the utopian dream of the scientist would be that, one day, we might reach a point where we were able to take a skin fibroblast and down-regulate it so that it behaved like a pluripotent cell. That dream came true two weeks after that legislation was passed, when Yamanaka in Japan published an article saying how it could be done. That is why the research stopped; it was not because it could not be done.
Baroness O'Loan
I thank the noble Lord for his intervention. It remains the case that there is a shortage of donated eggs. My concern is for the women who are asked to donate eggs.
Lord Alton of Liverpool (CB)
I am sorry to interrupt my noble friend, but, given that my noble friend Lord Patel mentioned this case, perhaps I might reinforce what she is saying, because Newcastle is not offering to provide donation opportunities for women but is asking them whether they will sell their eggs, at £500 per cycle. We all know that that can lead to hyperovulation syndrome, an issue which I raised in your Lordships’ House last week and which I know concerns many of us from all sides of this argument. So there is another dimension involved in this. My noble friend Lord Patel was also right to say to my noble friend Lady O’Loan that when we debated these issues in 2009 many of us pointed to things like adult stem cells and the work being done by Professor Shinya Yamanaka. We said then that arguing for animal/human hybrids was a diversion when much more important work, like that which the noble Lord, Lord Patel, has just mentioned, could have been undertaken.
Baroness O'Loan
I thank the noble Lord for that intervention. I am not arguing against this process; I am arguing against the introduction of these regulations at this time in the absence of sufficient knowledge and protection. We have to look at the factors, as the noble Lord, Lord Alton, said. Being paid to donate one’s eggs constitutes a very serious issue for women who are in poverty and who will do it as a way of raising money, possibly even to look after their own children. We need to provide protection for such women.
In conclusion, we should not hasten ahead without putting in place clear and comprehensive systems for monitoring the outcomes of all controlled ovarian hyperstimulation treatments, including those treatments that would result in the generation of eggs to facilitate PNT and MST. In this context, I simply ask that we proceed more carefully and that we back the Motion moved today by the noble Lord, Lord Deben.
Lord Winston
My Lords, I declare an interest in that it was my scientific group which started pre-implantation diagnosis—the first attempts to diagnose genetic diseases in embryos in families who have these fatal, sad genetic flaws in them. I congratulate the Minister on his absolutely balanced and fair speech. From time to time, we have not agreed, but I think that his care, compassion and courtesy are deeply appreciated by the whole House. I also congratulate the noble Lord, Lord Deben, on his very clever speech. I do not agree with what he said and I hope that, at other times, we can see why we disagree. I accept that he is talking with deep conviction, but I think that we have already sorted out most of his objections, both the legal and the difficulties of side-effects.
Baroness Scotland of Asthal (Lab)
My Lords, before my noble friend goes any further, I say to him that there are real differences in legal opinion. I do not think that we have quite sorted them out yet.
Lord Winston
I am very grateful to my noble and learned friend for that.
I want to do something which I have done previously in debates of this kind, which is to talk from personal experience. I may be one of the few people in the House who have sat with an endless number of parents who have a genetic disease in the family, have listened to their problems and have seen the kind of dilemma that they face. I am reminded of the child Jeremy “Martinez”—forgive me if I change the surname, but I do not have approval to give the surname of that patient from some time ago. We were doing in vitro fertilisation and pre-implantation genetic diagnosis in the 1980s, and the first babies, who are now 25, were born in 1990. At that time, we were looking at the very common genetic disorders. It is interesting to consider that there is a vast number—too many, some of us think—of Members of this House. At least 40 of you, on mathematical probability, will carry the fatal genetic mutation for cystic fibrosis. That is very common indeed and much more common than the problem with mitochondrial disease, even though we are beginning to see that it is becoming rather more common as we get better molecular techniques.
What is very clear, and it is very important because it has not been stated, is that the number of families who will be of child-bearing age when a mitochondrial disease is diagnosed will be very few. That is important because we are not talking about a large number of people; we are talking about a small number, but they have a definite problem for which they need some desperate solution. They are prepared to do whatever they think is best for their families, with informed consent.
In the case of Jeremy, he was a bit slow to grow, but by nine months he could not lift his head. He started to vomit; he had diarrhoea; he then progressively developed muscular weakness and started to get epileptic fits. These fits would often go on all night; this child screamed with pain and was uncontrollable; eventually, having gone both blind and deaf, with severe mental problems with his brain, he died at the age of two. There was no treatment. His mother came to see me to ask if there was any possibility that she might have some screening of her embryos in the future. This was in 1989. Certainly, Alan Handyside and I had discussed the possibility of looking at mitochondrial disease, but we did not have the molecular techniques at that time to have any chance of being able to screen an embryo. It is true that that screening has now happened and can be done; indeed, there is a very interesting report from Newcastle University showing how that can be done in some cases. However, it is not always satisfactory, for the reasons that the noble Lord, Lord Patel, stated.
Lord Alton of Liverpool (CB)
My Lords, the noble Lord and I agree on much of what he has been saying today. However, in 2013—just two years ago—when he spoke at the Intelligence Squared debate, he said:
“And it’s worth bearing in mind that abnormal children have been born as a result of mitochondrial transfer. This has been completely unpredictable”.
I wonder what, if anything, has happened to change his mind about that. I suspect that he and I are agreed that there obviously are dangers involved in this and safety questions that he will want to address. May I also ask him—and I will not intervene again—whether he agrees with what my noble friend Lord Patel said earlier about the situation in China? I have with me the document Fertility and Sterility 2003, vol. 80, published on 3 September 2003, which was written by Zhang and others, who looked at the procedure that was used in China. Although we were told that this was not cytoplasmic transfer, does he agree with my noble friend Lord Patel, or does he agree with what is here in the statement that this was a pregnancy derived from human nuclear transfer?
Lord Patel
I think that the noble Lord was asking him to reply to my comment. He is quite right that China has used pronuclear transfer techniques, but the disaster was upsetting to me.
Lord Winston
I am very concerned that the noble Lord, Lord Patel, might get into trouble with the Whip sitting on the Front Bench. I am always in her bad books, and I would not want to allow him to be in her bad books as well.
Let me answer the noble Lord, Lord Alton. It is true that, two years ago, I said that it was unpredictable; of course, these things are unpredictable. In the context in which I was speaking, that was correct. To be fair, however, the noble Lord, Lord Alton, knows that, with the case of Jacques Cohen in New Jersey, 17 babies were born after mitochondrial transfer. Therefore, there has been some other evidence—other than that evidence from China—that suggests that this is not quite as daft as proposed. Added to which, of course, in two years, a huge amount of research has been done by our colleagues in Newcastle. They have been working flat out on a whole range of tests which, I think, have made a very big difference. Since the statement that I made in the House, three different committees have looked at the safety.
Science does not have the truth; we have a version of the truth. We have to interpret what we can as best we can.
I deeply respect the noble Lord, Lord Alton, as he knows very well. We both come from a very strong view about what is the right thing to try to do wherever possible. However, I feel here that, apart from the issue of preserving healthy life, if we decide not to vote for the amendment of the noble Lord, Lord Deben, we are doing something really important. We are expressing our concern—our compassion—as a House for people who are faced with an invidious and horrendous choice.
Under those circumstances, given that this will be a limited procedure affecting very few people, it would be utterly wrong for this House to turn down the democratically elected Chamber and not to support what the Government propose.
Lord Walton of Detchant (CB)
My Lords, at the outset, I have to declare two interests. First, I am the honorary life president of Muscular Dystrophy UK, which, along with the Wellcome Trust and other organisations, has been sponsoring and funding some of this research. Secondly, I have to say that I have an avuncular interest in the department in Newcastle upon Tyne, because Professor Douglas Turnbull, who now holds the chair of neurology in that university, holds the chair which I held 32 years ago.
I say just in passing to the noble Lord, Lord Deben, to whom I listened with the greatest possible interest, that he may not remember that I was the neurologist on the Southwood working party, which advised his department on BSE and produced a report which ultimately led to the disappearance of BSE and its human form, Creutzfeldt-Jakob disease, so he does not need to lecture me about the precautionary principle.
There is one sensitive matter which I feel that I must raise at this stage. I am a lifelong member of the Methodist Church, although I at present attend an Anglican church. I know full well that from the very first day that the whole issue of human fertilisation and embryology came before this House, it was bitterly opposed by the Roman Catholic Church. I do not suggest to either the noble Lord, Lord Deben, or my noble friend Lord Alton that their adherence to and strong faith in the Roman Catholic principles has in any way influenced their attitude to the regulations; but at every stage from the first regulations to allow human fertilisation and embryology to take place, they have been bitterly opposed.
I must confess that I did discuss the whole issue of the status of the human embryo with an old friend, the late Cardinal Hume, whose father was a professor of medicine in Newcastle, Sir William Hume, who taught me briefly when I was a medical student in the early 1940s. Cardinal Hume and I discussed the whole issue, and I told him that I simply could not accept what the Roman Catholic Church has now decreed. Many, many years ago, St Thomas Aquinas said that life did not begin until the foetus was capable of independent existence outside the womb. It was a Pope in the 19th century who decreed that life began at the moment that the sperm entered the egg.
I said to Cardinal Hume that I really could not believe that a small bundle of cells carries the same status in society as a mature adult, and that that was something with which I profoundly disagreed. We discussed it and regularly went on to have a powerful exchange of views and then to decide that we could not agree, but then moved on to discuss a matter of much more mutual concern: the fortunes of Newcastle United Football Club. When, in 1980, the city of Newcastle decided to create a number of new honorary freemen to celebrate its 900th anniversary, among them were me as dean of medicine, Cardinal Hume and Jackie Milburn, the former England and Newcastle centre forward. Cardinal Hume said that it was the greatest day of his life: all his life he had been waiting to meet Jackie Milburn.
Baroness Scotland of Asthal (Lab)
My Lords, this has been an extraordinary debate. We have had a feast from the best in the medical profession on all sides. It is clear that there is real agreement and empathy about the need to make a difference for those women who suffer so perniciously in relation to mitochondrial difficulties. There is also consensus on the need to do something to relieve that suffering and pain. There is no dissonance between any of those who spoke, although they differed on what we should do about it. Perhaps the calm voice of reason, if I may respectfully say so, came from the very balanced intervention of the right reverend Prelate, who, with great modesty, rejoiced in the fact that for once the Church of England could agree with the noble Earl, Lord Howe, about something of real importance. Therefore, there is no disagreement about the need to do something.
I congratulate the noble Lord, Lord Deben, on giving us the opportunity for this debate. He is right to say that had he not tabled the amendment, which has exercised so much of our attention, we would not have been able to take advantage of the House’s wisdom. The real question raised by the amendment of the noble Lord, Lord Deben, is one of timing. I listened with great care to the very fair, very balanced and exemplary introduction of the noble Earl, Lord Howe. It came to this. We have now all worked extremely hard, the election is upon us and we have no idea of the complexion of the next Government. Therefore, carpe diem—do this now. The right reverend Prelate the Bishop of Carlisle fairly raised this question. But for that election, would we now be in such haste? The concluded results of the research would normally be waited for. An opportunity for real debate would be seized.
I, like all Members of the House, have been bombarded by emails and letters of all complexions on this issue. What surprised me as a former law officer was to see who agreed and who disagreed. There is a view that if you have three law officers in a room you might get five different results. Therefore, it was with real surprise, and a little concern, that I noted that both of my successors in title, the right honourable Dominic Grieve and Her Majesty’s current Attorney-General, did not agree that this regulation should go through now. That gave me—I do not know about any other noble Lord—real pause. Why would my two successors in title disagree on the timing? I therefore looked first at the explanation that the current Attorney-General gave to his constituents. It is probably fair that this House should have the benefit of it. He said:
“This week the House of Commons debated and decided to approve regulations allowing mitochondrial donation, a process of replacing a small amount of DNA in cells in an egg or embryo to avoid the child which will later be born suffering from genetically inherited mitochondrial disease”.
He went on to say:
“First let me set out where I think there has been general agreement. This is a difficult decision to take. Everyone will have huge sympathy for parents who know their children will inherit this severe disease and are desperate to pursue treatments which can help them to have a healthy baby. They have every right to make their case for this change. Similarly, we all admire the hard work and ingenuity of scientists who have developed these techniques with intention of combating genetic disease”.
I warmly agree with that statement. We have scientists in our country who are second to none. He continued:
“However, legislators have to consider not just individual interests but the interests of our society more broadly and should consider too what precedents are set and what lines are crossed by the laws and regulations we make. Different legislators will of course reach different conclusions on these questions and views may change, but I am not persuaded this would be the right thing to do now”.
That view was clearly shared by Dominic Grieve, because both voted against the Motion in another place. That is why I was worried. Why did my two colleagues disagree? Why were they not comfortable with this position? I looked at the science and had the most wonderful explanation—I will not call it a lecture because it was a delight—from my noble friend Lord Patel when we were in Doha of the differences that made this such a safe and necessary option. Here, on our Benches—they now sit together—are two of the best members, I respectfully suggest, of the medical profession. They, too, are urging us to go on. Why, therefore, were my two legal colleagues so concerned? I looked for myself. Did they have a point? Was there a legal problem that was not being faced? I regret to say that there is.
This issue is complex and difficult because it is an issue that is not just centred on ourselves. The European dimension is also important. One of the reasons why I understand this issue so painfully well is that I had the advantage of being the UK’s advocate when we were arguing about the charter between 2001 and 2003. I therefore looked again at the regulations. I wanted to understand them better. I must ask the noble Earl, Lord Howe, why he is so certain that these rules comply with the European legislation and why the Government are confident that the concerns expressed by both the current—
Lord Hope of Craighead (CB)
I am very grateful to the noble and learned Baroness for giving way. Can she explain to the House what advantage there would be in referring the matter to which she is now addressing her remarks to a Joint Committee? Take, for example, compliance with the statute that already exists where the regulations are ultra vires. Surely that is a matter for determination by a judge and nothing that your Lordships can say in the House today, or indeed that a Joint Committee could say in its report, would resolve that issue in a way that would tie the hands of a court. I rather suspect, although her knowledge is greater than mine, that the position is exactly the same in Europe. Therefore, I cannot see that referring the matter to a Joint Committee, as the noble Lord, Lord Deben, asks us to do, would advance it except simply to delay the decision on the issue, which would ultimately have to be taken by a court.
Baroness Scotland of Asthal
My Lords, the issues in relation to how the charter impacts upon the legislation that we are discussing have not been sought out, have not been argued and have not been developed. One of the essential issues, if we are to do something which everyone agrees is novel, different and important internationally, is that we have to be confident that we are on solid ground because if we are not, we give a disservice. There are two things. One is that the research that is still awaited and, as was mentioned by the right reverend Prelate, is to be forthcoming should be available. The second is that these issues in relation to the charter could be properly articulated. I looked quite carefully to see whether this has already been done. Had that already been looked at, and was there an answer in the letter of the 17th that the noble Lord issued? Were all the worries that I have—I am afraid that there are about 20 pages of them—dealt with? However, they have not been. So the question comes back: why the haste?
Everybody agrees that we have to get this right and having worked so hard and so long, and knowing of the pain that many have already spoken about, what a cruel thing it would be to do this and then say that the legal basis upon which it was founded was flawed. The noble and learned Lord, Lord Hope, is right that if in the final analysis the arguments we articulate and which go through the Select Committee are not sufficiently sound, the only way in which the sagacity and value of these legal principles can be tested would be in a court. That is what would happen.
Lord Hope of Craighead
Does the noble and learned Baroness also agree that until the regulations are made, the matter cannot be tested because courts do not deal with hypothetical arguments? The regulations have to be made, so if this issue is to be properly tested in a court the first step is to make the regulations.
Baroness Scotland of Asthal
My Lords, there are two steps. I would argue that the first step is that if a Select Committee is able to deal with all these matters in the proposal currently before us in draft, and which would today go into regulations, would be the basis of the Select Committee’s examination. If that basis is found to need some minor alteration or amendment, it would be that amended version which would then come before this House and form part of the regulations. That would be the issue that would likely be tested if there was still disagreement.
My hope would be that the concerns that have properly been raised could be dealt with by the Select Committee, particularly if we were to persuade some of the noble and learned Lords who had perhaps served in the Supreme Court in the past to lend us some of their expertise on that Select Committee. One of the advantages that we have in this House is of having that level of expertise. That is why we could do this in rather a short compass. First, I do not agree with those who think that this issue should be kicked into the long grass. It should not. Secondly, I do not believe that a Government of any complexion, as has been said in this debate, who had a very well reasoned and consensual Select Committee report would hesitate from implementing it.
Lord Willis of Knaresborough
Does the noble and learned Baroness agree that if the regulations were agreed today, and therefore passed, the HFEA itself would have the opportunity to test the legal opinion? It certainly did that with the cytoplasmic hybrid embryos, if we go back to 2007. The HFEA then took a series of legal opinions to inform it in its opinion against the Government at that time. Why cannot that process go on at the same time?
Baroness Scotland of Asthal
The real issue is whether we are going to abrogate our own responsibility. Is this something which we should ask an outside agency to do? Should we make a decision where we cannot come to a fully informed and articulated decision ourselves? If we are left in the position of saying, “I am not entirely sure about the research or the sagacity of the legal principles being advanced that enable me to pass this”, surely we should wait until that is clarified. If the House believes that it wishes to abrogate that responsibility because the nature of the issues we are dealing with are such that we feel comfortable about doing that, then of course that is always a matter for us. But I simply argue that what is being asked for is what I hope to be a relatively short period for these matters to be fully considered and fully put to rest.
I am very conscious of time but there are a number of arguments that we could put forward on the law, which would help to further exemplify that this matter is not easy. It is complex. The reason I emphasise that the law officers are disagreeing is the following. All law officers are in the same position. We are not here to tell people what they want to hear; we are here to tell them what they need to know. That should be valued by the House and I am sure that the House would want to be confident that doing this, which everyone hopes would be a good thing, should be lawfully done, too.
Lord Mackay of Clashfern (Con)
My Lords, one of the bases of my noble friend Lord Deben’s amendment to the Motion is this question of whether these regulations are lawful. I have studied quite carefully the opinion of the noble Lord, Lord Brennan, with a junior. I have seen other opinion as well but I am thinking now only of my own analysis of what the noble Lord and his junior said.
The first point is: is this lawful under the domestic law of the United Kingdom? My answer is that it is clearly lawful because, in 2008, this Parliament passed an amendment for the purpose of allowing such regulations to be made. That is as clear as it can be, and you do not need to be a lawyer to think that it is possibly quite a good point. The result of the opinion that the noble Lord, Lord Brennan, has given on this point is that that amendment would be held to be pointless. The courts are not very keen on reaching a conclusion that a deliberate action of Parliament is without point, so I feel very strongly that these regulations in draft are lawful, within the domestic law of the United Kingdom.
Now we come on to the complexities of the European law. Like the noble and learned Baroness, I have had some experience, now long past, of appearing before the Court of Justice in Luxembourg. Masters of complexity are very difficult to find at a greater level than it has. The essential point about this, however, is very clear. If the noble Lord, Lord Brennan, is right, it is not a question of these regulations being wrong; it is that the whole procedure that they are aiming to do is unlawful according to European law. That is fundamental. I do not believe that it is correct, because I do not think that the European Union has a treaty basis if we are dealing with medical procedures in the member states. The regulations that are referred to in great detail—huge definitions and all the rest of it—are intended to deal with the furtherance of the common market. Therefore, if you get a tablet in Germany that is supposed to be suitable for you, then it would be equally suitable in this country—
Baroness Scotland of Asthal
Can I just help the noble and learned Lord by saying that the thing that concerns me is Article 6.3 of the treaty and the way in which the charter has been incorporated to consolidate all the other European laws that were there before the making of the charter? It was the charter itself, and the way in which it has changed things, which makes the difference. I am not focusing primarily on the issues that have been referred to by my noble friend Lord Brennan in his opinion. I am really looking at those issues that arise as a result of the charter. I do not believe that their proper interpretation has been dealt with. I know that the House will not like me very much if I go through the whole charter, but I am very happy to share the issues which really concern me with the noble Earl, Lord Howe.
Lord Mackay of Clashfern
So far as I have understood the European treaties, they do not confer an authority as yet to interfere in the medical procedures within the member states. That is basic, and means that they cannot interfere or render unlawful a medical procedure such as the one proposed in these regulations. I could go into the detail of it—I am sure that would not be very acceptable—but I have two principal reasons for thinking that that is right. The first is that no challenge, so far as I know, has been offered by the European Commission to the provisions in the 2008 Act—which of course would be the right place to challenge this, if it were unlawful. This provision was definitely intended to make these regulations possible. The second reason that I advance is that in the opinion of the noble Lord, Lord Brennan, a reference is cited to a treaty dealing with these matters which is outside the European Union. It has a number of members of the European Union as signatories, but it has not been signed by the United Kingdom, nor ratified of course by the United Kingdom, so it is not part of our law. That is the kind of law that deals with embryology in a way that might have been difficult for us if it had been part of the European Union.
These are simple reasons why I think this situation is reasonably clear. Of course, I accept that the law officers have taken a different view. We have not had a chance of discussing it in detail with them. The other point I have to make is that no amount of discussion in a Joint Committee can settle this matter. The only place it can be settled is in a court of law, either the domestic courts of the United Kingdom or, if necessary, the Court of Justice of the European Union in Luxembourg. In a sense, if that is a real point, the sooner the regulations are passed the better so that they can be tested.
So far as the point made by the right reverend Prelate is concerned, I understood that the research that the HFEA was asking for has been done and is in the process of publication. It just does not happen to have completed publication. As he was speaking I was reminded that when I had the responsibility of taking the 1990 Act—the original Act in this area—through this House, the then Bishop of London took quite a prominent part in the discussions. His watchword was caution—and he thought that that amount of caution had been built into the procedure by having the HFEA examine individual cases and be in charge of the licensing.
Baroness Hollins (CB)
My Lords, I take a rather different view from some of my eminent medical colleagues. I have worked for over 30 years with families of severely disabled children. As a psychiatrist—and as the mother myself of a child born with a severe developmental disability—my heart goes out to those parents facing the prospect of inherited mitochondrial disorders. As a mother, I understand what is called the moral imperative to try to help. However, our first responsibility must be to the children who may be created through these proposed interventions: the most important moral imperative must be to do no harm.
A new technology of such potential importance must take as long as is needed to be as sure as possible of its safety. Being first is not always best. I have carefully read the HFEA 2014 review of scientific methods. It has been implied that the scientific reviews have not raised any concerns, but in paragraph 3.7.25 the review states,
“although the results with the two techniques continue to be promising, further experiments need to be carried out before introducing either into clinical practice to provide further reassurance about efficiency and safety”.
I asked a Written Question in December asking whether clinical trials were being planned and I am grateful for the helpful reply from the Minister and the mention he made of it in his opening remarks—although I disagree with his interpretation of medicine, which is defined much more broadly in the European directive. The Minister also explained that,
“for any new IVF technique there will need to be careful monitoring of the procedure and, subsequently, any pregnancies”.
But we are not talking about pregnancies primarily; this is me as the psychiatrist talking now. As the noble Lord, Lord Deben, pointed out, we are talking about children—children who will, we hope, grow up to be healthy human beings, and who will themselves be able to have healthy children. But what if they do not?
In paragraph 3.7.29 the HFEA expert panel said:
“Until knowledge has built up that suggests otherwise, the panel recommends that any female born following MST or PNT”—
maternal spindle transfer or pronuclear transfer—
“should be advised, when old enough, that she may herself be at risk of having a child with a significant level of mutant mtDNA, putting her child, and if female, subsequent generations at risk of mitochondrial disease”.
The science is complicated, but there is apparently a real possibility that resulting embryos from a woman born after MST or PNT could be heteroplasmic—
Lord Patel
May I ask the noble Baroness what experiments she would propose to determine that the children born through this procedure will be healthy in every way, including reproduction-wise?
Baroness Hollins
My Lords, I do not think that intervention is very helpful as it is not relevant to the point I am making. The issue of heteroplasmy was spoken about earlier, and it simply means two or more different mitochondrial DNA types coexisting in a single cell. The review panel concluded:
“These levels may still not be sufficient to cause her children to have a problem, but subsequent generations could be affected”.
In paragraph 4.3 the panel stresses that,
“it should be accepted that there will always be some risk and unknowns associated with the use of MST or PMT in humans until it is tried in practice”.
I understand that and agree with it.
One argument for agreeing the recommendations now is to enable the HFEA to license these techniques as soon as it is convinced that there is sufficient evidence of safety without then having to seek parliamentary approval, thus possibly delaying implementation. In 2008, Dr Evan Harris, the former Member for Oxford West and Abingdon, a champion of the 2008 Act, said:
“Safety is clearly a concern… If Parliament decides that it is not safe enough to allow the HFEA to consider licensing something, Parliament would not draft, confirm or pass the regulations”.—[Official Report, Commons, Human Fertilisation and Embryology Bill Committee, 3/6/08; col. 35.]
Agreeing the recommendations now seems to be putting the chicken before the egg. Supporters of the techniques—
Viscount Ridley
The noble Baroness made the point that heteroplasmy, and therefore the carryover of the diseased mitochondria, is possible under this technique. Does she agree that experiments show that the likelihood is less than 5%, whereas pre-implantation genetic diagnosis has it at up to 40%? That is a legal procedure, so we are talking about trying to legalise a safer procedure than something that is currently legal.
Baroness Hollins
Again, I do not think that is the point that I am trying to make. Maybe I am not being quite clear enough.
Lord Tebbit (Con)
Would the noble Baroness not agree that there is only one absolutely safe way to ensure that this disease is not handed down from generation to generation, and that is for those women who are carriers of the genetic fault not to have children? That may be an appalling thing for me to have said, many people would think, but there are many people who for various reasons cannot have children.
Baroness Hollins
That is a good point.
Supporters of the techniques simplify the impact of these proposed procedures by saying that mitochondrial donation is like changing a battery. Their argument runs that mitochondrial DNA relates only to power production in the cell but does not affect the DNA, which encodes our characteristics, and therefore that exchanging mitochondria should not be seen as ethically significant. In a debate last September, the honourable Member for Havant in another place summed up this position well when he said that the techniques represented,
“a change in the membrane of the cell so that the battery function continues, but it does not affect human identity even by 0.1%. That is why I do not believe that there is an issue of dignity or integrity of the individual”.—[Official Report, Commons, 1/7/14; col. 98.]
The Government underlined how important this point was to their policy in their consultation response when they said:
“Most importantly, mitochondrial donation techniques do not alter personal characteristics and traits”,
of the person, the implication being that if this technology were to affect personal characteristics then the Government would withdraw their support.
So the ethics and the safety of the science are inextricably linked. Unfortunately, it seems that we are still at the beginning of understanding the complex interactions between mitochondrial and nuclear DNA. Some recent empirical studies on animals have suggested that mitochondria indeed affect characteristics, and that there is a relationship between mitochondria and memory, temperament and behaviour. As a psychiatrist, I see temperament as a personal characteristic, and I think it was for that reason that the New Scientist withdrew its support for the techniques. In an editorial last year it said that,
“we may have seriously underestimated the influence that mitochondria have. Recent research suggests that they play a key role in some of the most important features of human life”.
I note that the Government’s own consultation document acknowledged the diversity of problems associated with mitochondrial disease, including learning disabilities, neurological problems, autonomic dysfunction and dementia, and that every person’s symptoms are different. The Government’s response to the consultation concluded that they do not alter personal characteristics. One problem that I have with the current proposals is the idea that mitochondria are mere batteries, which is what has been quoted in so many of the papers that have been circulated to Peers. The New Scientist leader comment in September last year said that most debate around the issue had worked on the assumption that mitochondria were simply cellular powerhouses. However, given their newfound influence over our bodies, the implications of this technology may be far more radical than we have assumed. The leader made the point that it seems that mitochondria, far from being passive power plants, influence some of the most important aspects of human life, from memory and ageing to combating stress and disease. They even have influence over the DNA in your cell nuclei and change and evolve during your lifetime.
I have been inundated by emails, as I am sure we all have, from people who are concerned. I had an email from a cell biologist working in California, Professor Paul Knoepfler, who contributed to the HFEA’s call for evidence. He said that,
“mitochondrial transfer might be proven safe, but then again it might not. From my perspective as an impartial (scientific) observer … putting myself at some risk by publicly opposing this technology … its approval at this time would be a … risky gamble with children’s health and lives”.
He says that many scientists have told him that privately they share his concern.
I have one question for the Minister: would he withdraw his support for the regulations if he thought that the role of mitochondria was more than mere power production? Would he then support the amendment of the noble Lord, Lord Deben, for further consideration of this matter?
Until recently, the Wellcome Trust had on its website a statement suggesting that the procedure would be able to go ahead in late 2014, when the science was ready. But is the science ready? I am not quite convinced yet. As noble Lords may be aware, I chair the BMA board of science, which has not yet discussed this matter. I have discussed my support for the noble Lord’s amendments with senior officers of the BMA, and perhaps I may clarify the BMA’s position. Its support for the principle of such reproductive technologies has been expressed as an ethical principle to allow the cautious exploration and development of such technologies. I have concerns about the timing of these regulations, and for that reason I welcome the opportunity to debate them presented by the noble Lord, Lord Deben.
Lord Ribeiro (Con)
My Lords, we have heard from legal and medical experts. I am happy to say that I am not an academic and I know very little about the subject. However, it strikes me that if we look at the practicalities from the point of view of the parents who are afflicted by this condition, and we turn back to 1978 when baby Louise Brown was born as a result of the in vitro fertilisation undertaken by Steptoe and Edwards—
Lord Ribeiro
In Oldham—quite right. From that one invention, nearly 5 million children have been born who otherwise would not have been because their parents were infertile. There was a strong religious lobby against it at the time; indeed, a lot of people were against it because it was interfering with the genesis of life. This fatal Motion seems to carry some of that feeling with it.
I am a mere surgeon. I had the opportunity to visit the Lister Fertility Clinic with a parliamentary group to learn a bit more about IVF and how it was carried out. I watched the technicians—not the doctors—who had gained expertise in intracytoplasmic sperm injection. That is the technique whereby you isolate the egg, find a lively sperm and then inject it straight into the cytoplasm. The technique that has been suggested for mitochondrial donation is not dissimilar from that. A lot of expertise has been gained over the years when that has been done. I heard the noble Baroness, Lady O’Loan, and, I think, my noble friend Lord Elton refer to the situation of donors.
Lord McAvoy (Lab)
The noble Lord seems to be saying that there is no difference between IVF and the mitochondrial process. However, IVF does not require the genetic modification of human eggs and embryos, or tampering with the contents of the egg or embryo itself. This technology requires both.
Lord Ribeiro
I take the noble Lord’s point. If I wanted to, I could explain why this is not an issue. One point that arises is that it is illegal to tamper with the nucleus. The technique that we are discussing relates specifically to mitochondria.
I will move on. Having seen this technique at work in the clinic, I am absolutely reassured that the expertise is there and, therefore, that the technique of mitochondrial donation, if allowed, could be carried out successfully.
I will speak briefly about the families who are currently facing the prospect of having children with severe mitochondrial disease. We are told that the numbers of those who will have severe disease is in the order of 10 or 20 per year. This technique can be fully utilised only after the regulations have passed, the HFEA has ensured that it is safe and each unit has demonstrated that it can do it safely. Only then will these families be able to have this done.
Informed consent is a prerequisite in any medical procedure. Informed consent is important because patients have to be sure that what they are having done is in their best interest. They have a choice of whether to accept what the doctor is offering or to reject it. My noble friend Lord Ridley referred to Claire Wright, a mother who lost a baby at 18 months. I was fortunate to meet her yesterday and to hear her story. What she said to me was very moving and touching. If she had the opportunity to have mitochondrial donation done, her concern was that the clock was ticking and that she may have reached the point where she would no longer be able to undergo the procedure. Yes, she could remain childless. Yes, she could adopt. But she would like to have a child that bears some of her genetic characteristics. I think that this technology will allow that to happen.
Nothing that we have in medicine at the moment can provide 100% safety—
Lord Alton of Liverpool
I am grateful to the noble Lord. Before he moves on, I want to speak to his point about adoption. Your Lordships will have seen the recent parliamentary reply on this. In the past five years, around 5,000 newborn babies have been available for adoption. That is all, compared with more than 1 million babies that have been aborted during that period. Does he not think that we should be much more interested in seeing if we can put right that imbalance?
Does he also recognise that there is a difference between the two techniques that are being offered to the House today, maternal spindle transfer and pronuclear transfer, in that one requires the destruction of human embryos, 2 million of which have been destroyed since the original legislation was enacted in 1990, and the other does not? On the basis of what I think he believes and says, is it therefore not only more prudent but more ethical to use the technique that does not result in the destruction of human embryos?
Lord Ribeiro
It was made very clear by the noble Lord, Lord Patel, and others that the need for the two techniques is to allow the HFEA to make a decision on which is the preferable technique. We have a situation at the moment where many of the embryos that are produced are discarded after the 14 days or so that are allowed. I will not go into the question of adoption. It is a matter of choice. If the family would prefer to have a child without this affliction, that is their choice, and they may not choose to go down the adoption route.
Returning to the subject of safety, as has been stated, no procedure can guarantee 100% safety. Even the natural birth that we all go through will produce children with defective genes and abnormalities; even nature cannot get it 100% right. To expect a situation where we have to demonstrate to all and sundry that this procedure is 100% safe is impossible.
Finally, it is important to recognise that passing this regulation is not opening Pandora’s box. We are not going down the route of eugenics and we will not create monsters. We must trust the scientists. We must recognise that we have regulation in this country—one of the most regulated countries in the world in the health field—and I believe that we must leave it to them to make the case. As was said by my noble and learned friend Lord Mackay of Clashfern, the decision was already made in 1990, when he was responsible for taking the Bill through Parliament. In 2008, it was modified with the full understanding that this type of technique might well be brought into use.
The day has come, the time has come and, frankly, we must just get on with it.
Baroness Warwick of Undercliffe (Lab)
My Lords, I come to this debate without any expert legal or medical experience or perspective. As a former chair of the Human Tissue Authority, I worked closely with the Human Fertilisation and Embryology Authority, the well established regulator in this area. I came to know the way in which it regulated and certainly had confidence in it, as indeed Parliament has. As a former chief executive of Universities UK, I am also familiar with the research trials that are rigorously and vigorously undertaken in health research before any change or new technique is introduced into clinical practice. I have come to know the bodies which speak for science and for medical research, such as the MRC and the Royal Society, and the Association of Medical Research Charities, of which my noble friend Lord Turnberg has been a scientific adviser, as well as the Nuffield Council and the Wellcome Trust. I realise how fortunate we are in this country to have pre-eminent organisations, respected around the world, the main aim of which is to ensure that research is rigorous, honest, thorough and ethical. I say all this because I take great comfort in the fact that, where there are complex areas of science or new techniques, particularly where they might be controversial—as with fertility and genetics—we have the knowledgeable, forensic and wise guidance of these bodies to help us in Parliament to arrive at secure solutions.
Mitochondrial DNA disease is severe. In most cases, we are told, it causes early infant death, and the few children who survive suffer multiple health problems. Mitochondrial donation, a new reproductive technology developed by our world-leading scientists in Newcastle, is important because it enables families affected to have a healthy child. Our decision today will be immensely important to those families.
A key question has been raised about the safety of the procedure. As others have said, while no medical procedure can be guaranteed to be 100% safe, a huge amount of testing has been done to establish the relative safety of this particular procedure.
I have no professional expertise in this or in any other area of disease. So, like most other women and men in the street, I rely on the rigour and competence of our regulators, ethicists and clinical testing systems to provide the best possible guidance on new techniques and procedures, to enable me to make up my mind—even if some of the evidence is contradictory. All the bodies that I referred to earlier, and others which represent the families of those tragically affected by the disease, favour this regulation to permit mitochondrial donation. They have provided excellent briefings, and there was a hugely helpful seminar yesterday where experts on different aspects of this issue addressed a range of concerns. They have pointed to seven years of intensive scrutiny, three separate reviews of the scientific evidence on the technique’s safety, independent ethical reviews and an extensive public consultation. Currently, the law allows for these techniques to be used only in research. It is up to us in Parliament to decide whether these techniques are ethical and whether they may, with safeguards, be used in patients.
The Nuffield Council on Bioethics found that, given the benefits to individuals if shown to be sufficiently safe, the techniques are ethical for families to use. The public, during consultation, concurred. The Wellcome Trust has helpfully set out the scientific evidence and detailed reasons why the procedure cannot be seen as genetic modification. What is very clear is that scientists throughout the lengthy period of research have been open and transparent. Nothing has been hidden, including their disagreements. There has been no conspiracy, as some of the critics seem to have suggested.
I found that I had a lot of sympathy with my noble friend Lord Turnberg and the noble Viscount, Lord Ridley. All the evidence I have seen and the arguments I have heard reassure me that this is not a slippery slope or an open door, or any other cliché. Nuclear DNA is not altered, so donation will not affect the child’s appearance or personality, or its uniqueness. It will simply allow parents to choose to have children who are genetically related to them but who are free from potentially devastating disease. I trust that the House will support these regulations.
Lord Taylor of Holbeach (Con)
My Lords, it is a rule of this House that only one person speaks at one time. I ask noble Lords to be seated, please. We are in some difficulty. A number of noble Lords still want to speak. I understand that; this is a serious matter. Perhaps I might suggest to them that they will attract the approval of the House if they keep their remarks brief. Most noble Lords have come here with contributions to make, and they are speaking from extensive notes. It would help us all if we could move this debate to a conclusion; many noble Lords have indicated that to me. Therefore, while I do not for a moment suggest that we move to that stage now, I ask noble Lords to be orderly in allowing others to speak and to be brief.
Lord Alton of Liverpool
My Lords, I am grateful to the House. Although of course I have ethical objections to the regulations, which are well founded and have been pretty well rehearsed on previous occasions, the Motion in the name of the noble Lord, Lord Deben, does not invite us to vote on the ethics. Therefore, accepting what the noble Lord, Lord Taylor, has just said to the House, I will not explore those ethical issues today but will stick to the points that the noble Lord, Lord Deben, raised earlier on, which concentrate on safety, legality and definitions. In supporting the Motion I want to address three points: procedure, pertinent questions and the specific issues posed by pronuclear transfer—one of the techniques made legal by these inappropriately combined regulations. It is worth saying in parenthesis that there is a third technique, polar body transfer, which was referred to during the discussions that the noble Earl was good enough to arrange for a group of us to have. That is being explored at this time, and will require yet more regulations to come before your Lordships’ House.
Lord Alton of Liverpool
Yes, and so it should, as the noble Baroness says. However, why are they not being taken together, why is there a hurry, and why are we not considering them all at the same time? Some raise particular issues, and others raise different issues, so many of us find that being asked to take it or leave it today is very difficult.
Some 41 Members from all sides of the House of Commons have written to your Lordships asking us to provide the opportunity for further consideration to be given to these regulations. For 18 years I served in another place. I would have been appalled if only 90 minutes had been provided during my time there, when we discussed in 1990 the original legislation or subsequent changes to it—90 minutes on unamendable regulations. Half the House of Commons—300 compared with 350—either voted against or abstained: 128 voted against, 172 abstained, and 300 voted for. As the noble and learned Baroness, Lady Scotland, said to us earlier on, the Lord Chancellor—and we have heard from an eminent and very learned noble Lord today, a former Lord Chancellor—and the Attorney-General both voted against the regulations. Subsequently, we have received representations from 50 Members of the European Parliament—I say to my noble friend Lord Walton that they were not all Roman Catholics—including Socialists, Christian Democrats, Communists, Greens and others, and internationally respected scientists, challenging the safety and the legality of what we are being asked to approve. Last week Professor Christopher Exley, a British scientist, described these procedures as,
“a genetic experiment which could have disastrous consequences for generations”.
That is not a religious view. This requires us to take the moderated view that the right reverend Prelate the Bishop of Carlisle commended to us earlier on. Yet, procedures permitted only a 90-minute debate in the Commons on an unamendable order, and if it were not for the noble Lord, Lord Deben, today, we would not have the opportunity to be discussing these complex questions—
Baroness Farrington of Ribbleton (Lab)
As a point of fact—and I hope that the government Chief Whip will agree with me—we would have debated this order in this Chamber under the normal procedures of this House with or without the amendment that was put down, because that is the practice of this House. I can see the government Chief Whip nodding and the noble Baroness who chairs the Delegated Powers Committee agreeing.
Lord Alton of Liverpool
I am glad to hear what the noble Baroness, Lady Farrington, has said to us today. It is important that it should be on the Floor of this House, therefore we are all agreed. I contrast the 90 minutes given to the House of Commons to discuss this with the 90 hours that Parliament spent discussing fox hunting. I ask noble Lords to contrast those things. We are required to show due diligence and scrutiny, especially over controversial legislation.
It is not just the absence of the preclinical tests recommended by the HFEA that suggests that the cart has been placed before the horse, but the disingenuous decision by the clinic promoting these regulations—even before your Lordships have debated, let alone approved, these regulations—to offer women money, as we heard from my noble friend Lady O’Loan earlier on, to sell their eggs for these procedures, a practice which itself can be injurious to their health, while telling us:
“It was never about politicians voting on whether it was safe or not”.
That seems almost a contempt of Parliament, and is certainly an extraordinary dismissal of health and safety considerations, which everyone has admitted this afternoon are a consequence of what we are being asked to agree. We have a duty to satisfy ourselves about questions of public safety.
I have experienced this afternoon something of a sense of déjà vu on the arguments, which are so reminiscent of those which persuaded your Lordships to vote for animal/human hybrid embryos in 2007. Although my noble friend Lord Patel, who I think is about to intervene on me again, said earlier on that there was a significant breakthrough by Professor Shinya Yamanaka just two weeks after the Bill passed, that is not entirely accurate. The Yamanaka breakthrough came in 2006 in the journal Cell, not after the Bill passed but before it was even published. If you look back at the Hansard, as I hope Members will, I argued repeatedly that the proposal was redundant because of the Yamanaka breakthrough and that we should not have voted for it. However, despite the Yamanaka breakthrough, many argued that animal/human hybrid embryos were necessary.
Before we rush pell-mell into authorising something which the rest of the world—from the federal agency in the United States to the People’s Republic of China—has prohibited, may I ask the Minister to answer some pertinent questions? First, what regard has he had to the increasing demand for women to give up their eggs for these techniques, the failure of the HFEA to monitor the drugs and dosages used for ovarian stimulation, and published data by Newcastle indicating an incidence of hospitalisation due to such stimulation due to the frequent collection of more than 20 eggs per cycle? Does he regard it as ethical to ask women to sell their eggs for £500?
Secondly, what is the cost of these regulations, both human and financial, when pronuclear transfer—the second of the procedures that have been referred to— requires the destruction of at least two and in some cases 10 healthy embryos for every procedure? Contrast the financial cost, too, of an issue I have raised regularly on the Floor of your Lordships’ House; namely, the failure to provide vital and much needed public funding into finding a cure for diseases such as mesothelioma, which will take the lives of 60,000 British people in the next 30 years.
Thirdly, and more specifically, why have the Government not waited for the outcome of the HFEA’s recommended preclinical experiments before proceeding? Fourthly, like noble Lords today, Dame Sally Davies, the Chief Medical Officer, said at a meeting that I attended with the noble Earl:
“No one will guarantee that it is safe”.
That being so, and given the absence of safety trials, how much has the National Health Service set aside for compensation if safety fears are realised? One recent payment to the parents of a baby damaged at a hospital reached a staggering £10 million.
Finally, I turn to the specific issue of pronuclear transfer. These regulations have bundled together two different procedures. As I said, pronuclear transfer—PNT—unlike maternal spindle transfer, requires the destruction of human embryos. It is a technique that has been specifically advocated by researchers at Newcastle. To date, most applications of this technique have been in mice. However, the Weatherall report of 2006, sponsored by the Academy of Medical Sciences, the Royal Society, the Wellcome Trust and the Medical Research Council, on page 85 stated the following:
“Humans and non-human primates share many features of reproductive biology that are not present in other mammals … Hence, rodents and other non-human primates have only limited usefulness as models of human reproductive physiology”.
Consistent with this, the report of the HFEA’s expert panel in April 2011 said that before the technique could be considered safe to use clinically, it was critical to undertake,
“PNT in a non-human primate model, with the demonstration that the offspring derived are normal”.
Has this been done? Nearly four years later, the answer is still no—even though most postgraduate researchers would have already completed a doctorate within this timeframe.
Strikingly, a news article for the journal Nature stated on 19 January 2012:
“The Newcastle researchers do not have plans to determine whether primates conceived through pronuclear transfer come to term and are healthy”.
Remarkably, the HFEA’s expert panel then changed its mind about preclinical experimentation in primates being critical for pronuclear transfer, in its ensuing report in 2013. The only explanation provided was exceptionally brief and far from compelling. It said that:
“Current research using PNT in Macaques has yet to be shown to be successful. From unpublished data it appears that Macaque zygotes do not survive the PNT process well”.
The panel now believes that the macaque may not be a sufficiently good model for the human. If macaque embryos do not have a good record of surviving pronuclear transfer, and human eggs are even more sensitive, are not problems with human embryos more likely? Surely this suggests the need for proceeding even more cautiously, not less.
The Joint Committee proposed by the noble Lord, Lord Deben, should reflect on the HFEA expert panel’s minutes of 12 February 2013, in which Dr Dieter Egli, of the New York Stem Cell Foundation, explains that he was,
“sceptical about the clinical application of PNT”,
because a structure known as the centrosome may be left behind, and that,
“the consequences of this need to be investigated”.
The proposed Joint Committee should also consider the minutes of the HFEA teleconference with Dr Shoukhrat Mitalipov on 30 January 2013, which reported:
“Dr Mitalipov expressed the view that development of MST or PNT embryos to blastocyst was not in itself enough to give confidence that the techniques are safe and effective”,
and the recent remarks of Professor Justin St John, a geneticist at Monash University in Australia with considerable expertise on the behaviour of mitochondria in nuclear transfer, who said:
“As well as analysing foetal development in a non-human primate model, it is essential to analyse offspring to determine that no abnormalities appear at least during early life”.
Not only have the researchers at Newcastle refused to perform such preclinical research in non-human primates, I have been unable to find evidence of their own prior experience in obtaining healthy offspring of any species following pronuclear transfer, or even in taking any such embryos past the blastocyst stage.
Lord Willis of Knaresborough
Clearly, I am not going to get to speak this evening, so I ask the noble Lord a very simple question. Does he have any faith at all in the HFEA to do what it actually says on this tin? If the regulations are passed today it will then have the job of deciding when it will be safe to go ahead and grant a licence. If he does not have that faith in the HFEA, will he please say that? Because I do.
Lord Alton of Liverpool
I serve on my own university’s ethics committee, which looks at the use of animals in experiments. Apparently, one of my roles on that committee is to be, as it were, the animals’ friend and to ask whether the experiment is repetitive, whether it is necessary to do such things and what it is going to lead to. There is no one on the HFEA who is the friend of the human embryo. That is a bizarre situation and one I would like to see rectified. But to take the noble Lord at his word, of course I think the HFEA often does a good job, and I admire many of its members.
I will simply say one other thing to the noble Lord. The HFEA is a regulator, not a legislator. That is our duty here today and that is why we are having this discussion. I am conscious that others wish to intervene and I am grateful for the patience of your Lordships’ House in allowing me to put these points. As we ponder on these serious issues revolving around public safety and questions of definition and legality, they deserve far better consideration and scrutiny than has been provided thus far. Surely we should remember the wise advice that those who legislate in haste repent at leisure. Therefore, the proposal of the noble Lord, Lord Deben, for a Joint Committee of both Houses to examine the safety and legality of these regulations deserves our support.
Baroness Barker (LD)
My Lords, since 1990, this Parliament, and, in particular, this House, has shown the rest of the world how these matters should be dealt with. It is for that reason that I hope that we will pass these regulations today.
In 1990, the noble Baroness, Lady Warnock, set down the ethical framework within which we make decisions and within which scientists must do their work and regulators must regulate. In 2008, as the noble Lord, Lord Walton, the noble and learned Lord, Lord Mackay, and others will remember, we debated these and related issues at considerable length. At that time, the scientists came to us and said, “We believe that very shortly it will be possible for mitochondrial transfer to happen”. At that point, Parliament sat and listened to the scientists and said, “Not yet. Not yet”. That is why we passed the permissive legislation that we did, which has led to these regulations.
The noble Lord, Lord Deben, in putting forward his very cogent and persuasive argument, missed out one crucial fact that undermines his argument: research is not linear. Researchers do research and it takes them to places that they had not imagined or they hit obstacles that they did not anticipate. Things change radically, as they did in the case of animal hybrids. That is why we operate as we do, within a system whereby Parliament sets out the principles and the ethics. We require the scientists to come back to us again and again and we are dependent on the information that they give to us.
I went to the same meeting as the noble Lord, Lord Deben, and I formed a very different impression of the scientists. Our top scientists have been making themselves available to Members of Parliament for all of the past year to explain as clearly as they can this science as it is emerging. I do not think that we should abrogate our responsibility in this House. I think we should continue to listen to the scientists. I like the fact that I live in the United Kingdom where we debate these matters. We have the involvement of people from the church and from different faiths and walks of life. We also listen to contributions from people such as the noble Lord, Lord Alton, who are consistently and wholly opposed to this issue. However, it is important that his voice is heard. I do not want the ethical decisions to be sent off to the courts as they are in the United States.
Noble Lords have talked a lot about the emotional issue of meeting the needs of families but they have also discussed the safety of these issues. However, I simply put before the House the response of parents to the suggestion that they might have a child who proved to be infertile. When they were asked how they would feel about that, they gave the clear response, “We love our children as they are and we would not have not had them. However, if we could have had a child who did not have the illnesses that they have, we would have opted to have such a child, even if that child proved to be infertile”.
The scientists have been absolutely straight with us and have given us the relevant information. They have not said that this process is safe or guaranteed because they cannot do so. The noble Lord, Lord Alton, is right—they will have to come back to us if techniques developed in the future prove to be better and safer than those we are discussing. However, given the information that we have, I for one feel that this Parliament has been fully informed and that we can make a decision—and I hope that we do.
Lord Hunt of Kings Heath (Lab)
My Lords, I sense that the House wants to come to a decision.
Just over 14 years ago, I asked the House to agree that embryology research could be extended to cover diseases such as Parkinson’s disease, Alzheimer’s disease, cancer and diabetes. This provision had been anticipated and included as a regulation-making power in the Human Fertilisation and Embryology Act 1990, which had allowed embryology research but only for conditions such as infertility and congenital diseases.
The 2001 regulations were passed following a Motion moved by the noble Lord, Lord Alton, to whom I pay tribute for his integrity and perseverance. However, his Motion to establish a Select Committee prior to the regulations being approved was defeated by 212 votes to 92.
The 1990 Act followed the work of a committee led by the noble Baroness, Lady Warnock, which made recommendations on developments in science and medicine in relation to human fertilisation and embryology. I pay tribute to the noble Baroness for her outstanding work in helping us get the balance right between the respect owed to human embryos and the potential for the use of embryos in research and treatment for devastating illnesses.
The 1990 Act was a model in the regulation of certain infertility treatments and embryo research. It reflected the need to have a strict framework in which regulation could be conducted to take account of the advances in medicine anticipated by both the noble Baroness, Lady Warnock, and Parliament in 1990.
Since 1990, the science and research have developed, just as has the need for Parliament to keep up and anticipate further developments. Thus, in 2001, we passed emergency legislation to put it beyond doubt that human reproductive cloning could not take place in the UK. In 2004, we passed regulations in which the identity of the donor of eggs, sperm or embryos could be given to the adult donor-conceived person under certain circumstances.
We have heard about the 2008 Act, which amended the 1990 Act to include restrictions on the types of embryos that may be placed inside a woman. Importantly, the 2008 Act amended the 1990 Act to insert a regulation-making power to enable techniques which were under development at that time to be used in treatment to prevent a child being born with serious mitochondrial disease. Surely, the noble Viscount, Lord Ridley, and the noble Lord, Lord Walton, are right—at every significant stage of embryology research and potential treatment, Parliament has been asked to give its approval and thus ensure public confidence in our scrutiny of these most difficult decisions. My view is that Parliament has discharged that responsibility thoroughly and well. However, I am glad that the noble Lord, Lord Deben, has given us the opportunity to have this debate. Of course, we would have had a debate but the noble Lord has served a great purpose in encapsulating the core argument and I am grateful to him for so doing.
We find ourselves asked to make a crucially important decision, with powerful contributions having been made on both sides of the argument. On the one hand, we celebrate the triumph of science that these new techniques represent. We have within our reach the possibility of eradicating mitochondrial disease from families who have been blighted by it for generations. On the other hand, we are grappling with serious moral, legal and ethical questions that are raised by the proposed introduction of such techniques for treatment. We on this side of the House have a free vote. Speaking for myself, and myself alone, I will vote in favour of the regulations.
The noble Earl, Lord Howe, will respond to many important points that have been raised, but I ask him to focus on a number of very important considerations that have also been raised. On the question of continuing research and the comments of the expert panel, will he confirm that the panel said there was no evidence to suggest that the techniques proposed in the regulations are unsafe? Will he also confirm that the panel has agreed that further research and reviews could take place either before or after the regulations are approved?
As regards whether this matter is being rushed through Parliament and would benefit from further scrutiny by a Select Committee, the question here is: what would be gained by delay? Will the noble Earl confirm that the principles that we are discussing were approved by Parliament in 2008 after thorough debate? I do not need to go over the work of the Nuffield Council on Bioethics or that of the HFEA and its expert panel because noble Lords have mentioned that, but I should comment on the 90-minute debate that took place in the House of Commons. I agree with the noble Lord, Lord Alton, that 90 minutes is too short. However, I have read that debate and it seems to me that it was thorough and well informed and that the points on both sides were put forcefully and interventions were made. My honourable friend Luciana Berger was asked a number of very tough questions, as was the Minister. Could anyone say that at the end of those 90 minutes MPs were not in a position to come to a conclusion? Indeed, can anyone say that we are not in a position to come to a conclusion following a debate which has lasted at least three and a half hours?
We have heard from eminent lawyers on both sides of the argument on the legal questions. We have had written submissions from the Department of Health and the legal advice of the Wellcome Trust, and other legal propositions have been put to us. However, you reach a point when it is time to make a decision. I think that we are in a position to make such a judgment.
A number of noble Lords, including the noble Lord, Lord Alton, referred to the two techniques and how one should be considered in relation to the other. I understand the point that the noble Lord, Lord Alton, made. However, will the noble Earl, Lord Howe, confirm that the panel believes that at present there is insufficient evidence to choose between the two techniques? Does he consider that that is still the Government’s position? The noble Lord, Lord Deben, said that this was a question of resources. I have not seen evidence to suggest that that is the case. The important question is: can the Minister refute that? Can he say that the sole issue is that at the moment we are not in a position to judge which technique is likely to be more effective, and that it is solely for that reason that we are permitting the two techniques to be in the regulations?
Finally, we come to the position of the HFEA. At every point of our debates—this goes back to 2001—we have relied on the robustness of that body. The robustness of the HFEA is absolutely essential. There have been discussions and debates about how effective it is; my noble friend Lord Winston is a well known critic of some of its activities. Fair enough—but I believe that the HFEA has proved itself a highly effective and robust regulator over 20 years. I ask the Minister to confirm that it is the Government’s intention to continue to support the robustness of that regulatory approach.
As for the Chinese experience, will the Minister confirm that, although there are issues in connection with the techniques used, one big difference between the UK and the Chinese position is the regulatory framework and the robustness of the HFEA? I suspect that that was not the case in China years ago when those developments took place.
The question is whether the benefits of trying to eradicate this dreadful disease by preventing the transmission of mitochondrial disease, in view of the likelihood that otherwise children will continue to be born who will die in infancy, outweighs the risks of the techniques, which some noble Lords have described tonight. The scientific community—on the basis not of some kind of cosy consensus but of hard evidence—and the families experiencing this disease are clear that we are right to support the regulations. It is now up to us individually to decide whether we agree them. I, for one, am convinced that it is the right thing to do.
Baroness Scotland of Asthal
My Lords, before the noble Earl starts his speech, may I apologise to the House? The noble Lord, Lord Alton, has clarified the fact that it was the Lord Chancellor and the current Attorney-General who voted against this measure in the House of Commons. I was told that two Law Officers had voted against, and I assumed that the two Law Officers must have been the right honourable Dominic Grieve and the current Attorney-General. It was not: it was the Lord Chancellor and the current Attorney-General. I should apologise for that; it was a misunderstanding of the information that I was given.
Lord Mackay of Clashfern
It would be right to say that the Lord Chancellor is not a Law Officer of the Crown.
Baroness Scotland of Asthal
My Lords, that is why, having been told that it was the two Law Officers, I came to the conclusion that the Lord Chancellor was not among them.
Earl Howe
My Lords, as I fully expected, this has been a debate of very high quality, with a range of views, both for and against the regulations, eloquently expressed. My principal job now is to respond to the Motion moved by my noble friend Lord Deben and to some of the additional points raised by other speakers.
My noble friend’s Motion covers three main points—safety, compliance with EU and UK law, and the key definitions in the draft regulations. My noble friend and the noble Lord, Lord Brennan, in his legal opinion, argued that there was some doubt about whether the regulations were compliant with EU law, in particular the EU directive on clinical trials. With respect to both noble Lords, the Government do not agree. The EU clinical trials directive does not apply here because it is concerned with medicinal products, and mitochondrial donation techniques simply do not fall under that definition.
My noble friend asked whether we had checked our position with the European Union. The simple answer is no. Within a framework of subsidiarity, it is entirely the responsibility of each member state to ensure that its own legislation is consistent with EU law. That is what we have done. The EU would be inundated with extensive queries from member states if a “legal advice” facility existed, and there is no such facility.
Lord Gordon of Strathblane
Is the noble Earl equally confident that the regulations are compliant with the European directive that is due to come into force in 2016, and which might explain the timing?
Earl Howe
My Lords, I think I can make an unequivocal statement that all the legal advice I have received is that the regulations we are considering are fully compliant with European law.
As has been said, any legislation agreed in Parliament could be subject to challenge, and it would be up to the Government at the time of challenge to defend their position. The noble and learned Lord, Lord Hope, made that point. Let me reassure noble Lords that we have considered these issues very carefully, and we are confident that the regulations are compliant. I am pleased that other noble Lords who have spoken agree with that.
The noble and learned Baroness, Lady Scotland, cited the European charter. The EU charter does not apply in this context, because Article 51 says that it applies to member states,
“only when they are implementing Union law”.
This means that a state must be either directly implementing an EU law obligation or acting within the scope of EU law. The regulations do not do either of those things.
We have considered the issues raised and, as I have said, we are very confident that these regulations do not contravene European law. The issue comes back to whether the clinical trials directive is engaged here. It is not. Our view, incidentally, was agreed with independent legal advice commissioned by the Wellcome Trust from Thomas de la Mare QC: mitochondrial donation simply does not come within the definition of medicinal products, to which the directive applies.
Baroness Scotland of Asthal
In the context of the horizontal articles of the charter, Articles 51 and 52, have the Government considered how Article 6.3 changes things, because it consolidates what the law was then? There is a difficulty, and I do not know whether the noble Earl has had specific advice on those matters. I know that this was not contained in the opinions that were promulgated earlier.
Earl Howe
I can only say again that the legal advice I have had is that the charter cuts in only when there is an issue of European law. We do not consider that treatment services, which are what we are talking about here, are covered by EU law. The noble Baroness made a point of saying that my right honourable friend the Attorney-General did not vote in favour of the regulations, but it is difficult for me to comment on that. There was, rightly, a free vote in the other place, just as there is here. I cannot comment on the personal view of the Attorney-General—and I have to say that I do not think that anything said or quoted by the noble and learned Baroness threw much light on that issue.
I repeat that my department is confident that these regulations are necessary and have a sound legislative base in the Human Fertilisation and Embryology Act 1990, as amended. As my noble and learned friend Lord Mackay rightly pointed out, it was the clear intention of Parliament that this provision would enable mitochondrial donation to take place in a clinical setting.
On the issue of safety, my noble friend Lord Deben urges us to delay until further research is carried out. However, we could wait indefinitely for research and follow-up and still not have a 100% assurance about safety, because that is the nature of science and research. The standards of assurance that some are seeking are considerably higher than those for cancer treatment or heart disease. As far as the expert panel convened by the HFEA is concerned, there is no evidence to suggest that these techniques are unsafe. The critical experiments are progressing positively.
As I said, the mitochondrial donation regulations require the HFEA to assess each application for mitochondrial donation on a case-by-case basis. That will include consideration of the evidence on safety and effectiveness. As a statutory independent regulator, it is for the HFEA to determine its own procedures for assessing applications to carry out treatment regulated by the 1990 Act. Applications to provide mitochondrial donation treatment are no exception to this rule but, clearly, the HFEA will not authorise the treatment if it does not consider it safe to do so.
It is never possible to answer every safety question before new medical procedures are used in people for the first time. New techniques can be refined and reviewed. Even the most exhaustive research can establish only that a technique is sufficiently likely to be safe to justify “first in human” treatment. However, if medicine is to progress, clinicians should in my submission be permitted to use new techniques when evidence suggests these are sufficiently safe and effective. It is the Government’s view that medical knowledge in the field of mitochondrial disease and donation has now reached this stage and it is time to progress. The legislative framework of the HFE Act provides for Parliament to endorse the Government’s view before proceeding and, following the extensive process of consideration that I have already set out, we have properly brought this to Parliament for debate on affirmative regulations.
I listened with care to the noble Baroness, Lady Hollins. I absolutely concede that there is a balance of risks to be considered. As I have said, it is not possible to be certain that new medical procedures will be 100% safe or effective. These risks must be balanced with the risk of ongoing suffering for families with mitochondrial disease. For me, the simple point is this: scientific evidence suggests that any risks of mitochondrial donation are proportionately less than the significant risk that children will continue to be born who will develop severe mitochondrial disease if these techniques are not used. As the noble Lord, Lord Patel, pointed out, ultimately it will be up to affected families to judge the balance of these risks with advice from their clinicians and then to decide whether they choose to proceed with treatment, subject to authorisation by the HFEA.
My noble friend Lord Deben mentioned the Chinese study. That study has not been published and we understand that it will not be. It concerns one pregnancy, using an earlier form of pronuclear transfer. One of the clinicians involved gave a full interview to the Independent recently and explained that the complications that occurred related to multiple pregnancies from multiple embryo transfer, rather than from the mitochondrial donation process. As I understand it, there were no genetic abnormalities in the foetuses.
Turning again to the speech by the noble Baroness, Lady Hollins, the HFEA-convened expert panel considered the issues that she raised: if the patient and the donor have different mitochondria, known as haplotypes, the donor’s mitochondria may not, as it were, “talk properly” to the patient’s nuclear DNA, causing health problems. The panel considered that as part of its third scientific review. However, it was of the view that the data submitted to it about this potential problem were not relevant enough to raise safety concerns. However, the panel has recommended, as a purely precautionary step, that consideration be given to the mitochondria haplotype when matching donors to patients, even though the risks of not doing so are assessed to be very low.
The noble Baroness questioned whether successive generations, particularly girls, could have the same problems arise from unhealthy mitochondria. The principle behind the treatment is that the mitochondrial DNA that the child will inherit will be the disease-free mitochondrial DNA of the donor, not the faulty mitochondrial DNA of the mother, although there is a small risk that the low level of unhealthy mitochondria may be carried over when the patient’s nuclear DNA is moved from her egg or embryo to the donor’s. Evidence continues to be reassuring that carryover after mitochondrial replacement is very low and unlikely to be problematic. The risk of mitochondrial disease being present in these generations will, we believe, be low.
The noble Baroness also said that we still do not know enough about the relationship mitochondria have with the human body. This is true of many aspects of human physiology, not just mitochondrial DNA. The majority of the evidence indicates that mitochondria are primarily concerned with generating the power that every cell in the body needs to function. It is generally accepted that, as vital as the function of the mitochondria undoubtedly is to the human body, they do not play a role in developing a person’s physical appearance or personality traits, which are derived solely from nuclear DNA.
Lord Elton (Con)
Before my noble friend leaves the question of risk, may I ask him to close a little chink in the reassuring curtain that he is drawing before us? We are assured by the HFEA that there is no evidence of risk in what is proposed, but it also proposes quite a large phalanx of experiments that should be completed before proceeding. First, there appears to be a slight logical discontinuity there. Secondly, can we be reassured that, in the Minister’s view, the HFEA will not proceed to licensing anybody until they have completed that programme of experiments?
Earl Howe
My Lords, I can confirm to my noble friend, and to the noble Lord, Lord Hunt, who asked a similar question, that the expert panel stated that the further experiments that it recommended could take place either before or after the passing of these regulations. However, they must be done before treatment can take place. I hope that that is sufficient reassurance.
The noble Lord, Lord Alton, and the noble Baroness, Lady O’Loan, spoke about the risk of ovarian hyperstimulation syndrome. OHSS is a well recognised side-effect of the drugs used to stimulate a patient’s or donor’s ovaries to collect multiple eggs for use in fertility treatments. The risks of OHSS are very well understood, with patients and egg donors carefully monitored. The HFEA’s code of practice requires women undergoing ovarian stimulation to be given information about the possible side effects and risks, including OHSS. Women are informed of the symptoms to look out for and are warned to contact their clinic if they feel unwell. Women donating eggs for use in mitochondrial donation will not be at any increased risk of developing OHSS.
The noble Lord and the noble Baroness both questioned the practice of paying for donated eggs. I submit that there is nothing sinister in that. Within the legal framework of the HFE Act, the HFEA sets the rates for compensation to donors of eggs or sperm; £500 for an egg donor is well within those limits. It certainly is not a sign that Newcastle University is anticipating the introduction of the regulations to allow mitochondrial donation. It is continuing its research and has an ongoing need for donated eggs for that purpose.
I turn now to the issue of definitions. In making the regulations, the Government have been clear about their approach, the definitions used and the source of their material. The Government’s consultation on the detail of the regulations set out very clearly: the definitions of scientific terms; the detail of the techniques that the draft regulations would cover; the terms that others might use, such as “genetic modification”; and the proposed approach to information for donors and those conceived through mitochondrial donation.
Lord Deben
My Lords, if ever anyone questions the value of this House, this evening proves it. It has been a really valuable debate and I hope that all noble Lords who have taken part in it and those who have listened will recognise that we have all learnt and valued what we have heard, even from those who have spoken from a different point of view.
There was a phrase used during the debate that particularly annoyed me—an attack on playing God. I do not believe that that is a proper way to discuss these issues, not least because it is of the nature of the Christian understanding of creation that we share with God in His creative power. It is the great gift of the Almighty to us. Therefore, the idea that we should not do any of these things because for some reason or other they are reserved to God seems to me to be fundamentally theologically unsound as well as philosophic nonsense. I hope no one has suggested that those who take the view that I take do so from some arcane understanding of the Almighty.
Nor do I think anyone will now suggest that we were trying to push this whole debate into the long grass—and in case anyone should be worried, I do not intend to take up the time of the House for very much longer. The long grass was certainly not my intention. As the Minister knows, I have unbounded admiration for him and he again showed why we should return to the position of Ministers in this House being Cabinet Ministers as well. However, in describing his side he still left me with three very fundamental reasons for saying that we need to have certain things in place before we vote.
First, on the two issues, he is perfectly right to say that it is reasonable to bring them before the House. The objection is that they are brought before the House without it being able to make a decision on each of them separately because they each present separate issues. I do not think he has answered that. I know why he said that. It is because the Government know perfectly well that if you divide the two it would become clear that there is an ethical distinction between them. We did not discuss that today because we knew we could not discuss that ethical distinction because only one of them held it and the other did not. So my objection to the Government’s position—not of course to my noble friend’s position—is that they could have given us that choice and they decided not to.
It is the choice that I object to, not the fact that one might use the two techniques if both were approved. I suspect that both would have been approved, but we would have been able to explain why we hoped that the work done on the maternal spindle transfer and the third mechanism, which is coming along, would be prioritised and done in an ethically acceptable way. That is the first reason why I believe it would be better to allow a committee to look at this very rapidly and to insist that it be a decision in which we have a choice.
The second reason is that there is clearly a legal disagreement. I bow to nobody in my support for my noble and learned friend Lord Mackay of Clashfern. I know that it is normal in this House to accept that what he says is infallible. If it were not for his denomination, I would use that word, but I think that it would probably embarrass him considerably if I were to use it in conjunction with his name. However, I point out that the noble and learned Baroness, Lady Scotland, spoke for a number of people, including the Attorney-General, whose statement made it clear that he felt that this was unsound for legal reasons. Incidentally, I want to say that it is perhaps surprising that the Lord Chancellor is not a lawyer. I think that the Lord Chancellor should always be a lawyer. I also think that he should not be a career politician but ought to sit in this House. I make that point while I have the chance to say it, as until now I have not had a chance to make that provocative comment. However, the fact is that there are very clear legal disagreements.
I perfectly agree with the noble and learned Lord, Lord Hope, with whom I am normally ad idem: we have marched together on most of the subjects when I have rebelled against the Government and I have taken much pleasure in our arguments. However, I say to him that there is a distinction here. It is very dangerous for this House to leave it to someone else to decide whether something is legal. I think that this House should make that decision itself, and then, if it makes the wrong decision or a questionable decision, the matter will come before the courts. I understand that distinction but I agree with the noble and learned Baroness, Lady Scotland, on that front. However, I am worried about entering into legal issues because I have always prided myself on being the only member of the Cambridge mafia who did not read law.
That leads me to the third point, which is safety. It is no good—we cannot kid ourselves about this. The terms under which we were originally told that we were going to have this debate have not been met. The experiments which we were told would be done have not been completed. The most important of those is the primate experiment to make sure that such procedures do not result in sterility. People have said that even suggesting that is an attempt to frighten people. I am not doing that at all. It is simply the case that that was what we wanted to do but there has not been enough time to do it, although it would not take very long. Therefore, I again come to the question of why this measure is being pressed at this moment when we could very rapidly have the answers to all the questions that we have raised. I want to end on that but I shall say why I think that that is important—much more important even than the issue itself.
I believe that we are moving into a society in which the search for consensus and agreement is becoming increasingly much less urgent and much less important to people. I believe that we could have gained very considerable support for this measure. The noble Earl caused a certain amount of laughter when he referred to the ComRes poll. It was intended to ask people, in the words that they had read in the newspapers, what their reaction was. That is why the poll was held. Therefore, passing the matter to the Wellcome Trust and others to look at it as though it were a scientific statement was entirely contrary. I was pleased to find out that we had so failed to communicate with the public that 90% did not want us to go ahead with these regulations, and that was the case when using words which had meaning for the public. The Government’s consultation was in fact very limited. That is not the burden of this whole debate, but I just want to say to the House that we are beginning not to try to take everyone on board. There was a real opportunity to do so here and I would still like to recapture that. That is why I would like to test the opinion of the House.
Lord Winston
Before the noble Lord does that, I wonder whether he would consider this point very seriously for a moment. If we delay this measure, we will, as I am sure he understands very well, be committing a number of people to terminating pregnancies. Not only will we be terminating their pregnancies but those women will experience a number of lost pregnancies—a loss of life. Is that what the noble Lord really wants in pressing this amendment?
Lord Deben
I do not want to prolong this but the fact is that the human embryology committee and the terms under which it can give the permissions will take longer than it would take to have the committee that I am calling for in my amendment. It would not hold matters up for one moment. However, I think that the House wants to go to a vote.
Gambling: Fixed-odds Betting Machines
Lord Clement-Jones
To ask Her Majesty’s Government what actions are being taken to address the concerns expressed by a number of local authorities in England and Wales about the growth in the number of high stakes fixed odds betting machines available on the high street.
Lord Clement-Jones (LD)
My Lords, I am today pursuing a matter of considerable concern to many noble Lords which has been discussed before on a number of occasions in this House. Most recently, on 9 February, my noble friend Lord Strasburger asked about the Government’s plans to mitigate the effects of FOBTs. We also discussed the regulation of FOBTs in Committee during the passage of the Gambling (Licensing and Advertising) Act in January 2014.
Fixed-odds betting terminals—popularly referred to as FOBTs, and technically known as B2 gaming machines—are for high-stake fast play, allowing users to bet up to £100 every 20 seconds. During 2013, £1.6 billion was lost by gamblers on FOBTs in Britain, with most of the money coming from some of the UK’s most deprived communities. There are now some 34,500 FOBTs across the UK. The £100 stake on FOBTs is more than 40 times the EU average; combined with the fast pace of play, this makes them particularly dangerous, leading to high levels of problem gambling. The speed of roulette on the machines is more than five times as fast as roulette in a casino, yet the machines are in lightly regulated, high street betting shops—more than 9,000 of them across the country. The reality on the ground is that these machines are highly dangerous products that are catalysts for problem gambling, social breakdown and serious crime in communities.
Research published last year by the Scottish Parliament Information Centre found that problem gambling is seven times higher in deprived areas, seven times higher among harmful drinkers and six times higher among the mentally ill. Responsible Gambling Trust research—although flawed—shows the worrying impact of the machines. A person who has been gambling at higher stakes is more likely to make poorer judgments than after gambling at lower stakes. The number of people betting the maximum £100 stake doubles between 10 pm and midnight; 37% of FOBT gamblers are problem gamblers. We have all noted the clarification of the misquotation of the noble Lord, Lord Gardiner, in his Answer on 9 February by the chairman of the RGT.
Proliferation is happening around the country—not just in the cities. One street in the London Borough of Newham has 18 betting shops. However, betting shops are also spreading in towns across the country. Colchester has 14 bookies, including seven branches of Ladbrokes. Ireland has banned the machines altogether, following both public concern and parliamentary pressure. The Smith commission on devolution has recommended that powers be devolved to the Scottish Parliament to prevent the proliferation of fixed-odds betting terminals.
The Government have brought forward two proposals aimed at ameliorating the worst effect of FOBTs. First, there are the changes to the planning regime. In 2014, the Government consulted on a change to planning processes which would place betting shops in a separate use class order and require express planning application for new betting shops. However, a new use class would impact only on future shops; it would do nothing to tackle existing clusters of betting shops, which have been strongly opposed by local communities. It will do nothing about the 34,500 FOBTs already on our high streets. In fact, it will simply provide a competitive advantage to those betting shops already in place by keeping out the competition. So those planning reforms are not the answer to the FOBT problem, they are merely shutting the stable door after the horse has bolted.
Secondly, we have the new Gaming Machine (Circumstances of Use) (Amendment) Regulations 2015, shortly to be debated in this House. They will require account-based play via a loyalty card or similar system, or talking to a staff member if a customer wants to bet more than £50 per play. That does not amount to a stake reduction. Punters can still stake £100 every 20 seconds. Vulnerable players chase their losses, and neither measure will prevent a player betting £100 per game: the root cause of the addictive nature of FOBTs.
Asking betting shop staff to restrict further betting by customers who may have just incurred large losses is likely to lead to conflict and dangerous situations, especially where shops, as they increasingly are, are staffed by only one person. There is no basis for the £50 proposal. No research has considered the impact of a £50 stake. Therefore there is no evidence that the proposal will help to protect problem gamblers.
The essential point that I am making today is that neither of the Government’s proposals will be effective. By giving the impression of taking action, they may make the situation worse by delaying the only truly effective answer: reducing the maximum stake to £2, which is the maximum stake offered in all other similarly regulated adult premises on the high street, such as adult gaming centres.
Local authorities, who see the problem on the ground, clearly do not believe that the proposals go far enough. Last November, 93 councils, led by the London Borough of Newham but from across England and controlled by all three major political parties, including colleagues of my noble friend Lord Tope in the London Borough of Sutton, called for action under the Sustainable Communities Act 2007 to cut the maximum stake to £2. Under the Act, councils from all those parties have called on central government to take that action due to the anti-social behaviour, crime and problem gambling that the machines are causing in their local areas. That unprecedented step represents the widest support that any Sustainable Communities Act proposal has ever received.
The Local Government Association has backed this call. It has demanded a range of measures to strengthen the role of local councils in protecting their high streets, including calling for a reduction in the £100 stake on FOBTs to £2. Under the Act, councils are given the power to make proposals to the Secretary of State as to how the Government can assist them in promoting the sustainability of local communities. The Secretary of State is then under a duty to reach agreement with councils, either via their representative body, the LGA, or directly, on which proposals will be given priority. The department is formally required to respond by June 2015. I hope that the Government will respond before then. There is clear evidence that the public supports restrictions on FOBTs. YouGov showed that only 4% of the public would oppose a ban on FOBTs, with 58% of those who gamble more than once a month in favour of an all-out ban. The Gambling Commission has stated that in interpreting the available evidence it will take a precautionary approach where that evidence is mixed or inconclusive.
It is clear that the stake should be reduced until there is evidence that it can be safely increased above the £2 level. The onus should be on the bookmakers to demonstrate that effective measures can be put in place before they are allowed to offer games at more than £2. I hope that the Government will go well beyond the actions that they have already taken, and I look forward to the Minister’s reply.
Lord Dubs (Lab)
My Lords, I very much agree with the noble Lord’s arguments. Indeed, he has put them so well that I am reminded of the advice I was given many years ago that, when all the arguments have been well put, not everyone else has to put the same arguments. I can therefore be much briefer than I would otherwise have been.
As regards the planning side of this, the Government are trying to bolt the stable door after the horse has gone, because we have such a plethora of betting shops with these machines in them that it is very hard to believe that the changes in planning will go any way towards remedying the situation. They might prevent it getting worse but that is all. I am impressed by the overwhelming number of organisations and local authorities—people who know what they are about—that are opposed to the present situation and do not believe that the Government’s proposals go far enough.
Let us take a problem gambler, a person who is pretty well addicted: we know that quite a number of people are. This person goes into a shop and he is told that there is a limit. He responds, “Oh, that’s all right, I understand about the limit. I want to bet £100 every 20 seconds”. That is not going to stop anybody. It might stop a timid soul but not a gambler of that sort. The difficulty is that because of the speed with which it happens there is hardly time for anybody to pause and say, “This is ridiculous. I shouldn’t go on backing the loss of money”. Psychologically, at least if one is somewhere where one can gamble only at intervals, one can reflect on the likelihood of losing or winning and on the need to be cautious. People get caught up psychologically. They lose money and say, “I must go on betting in the hope of getting my money back”. Surely that is the cause. It is a social evil to encourage people to bet in this way and lose money. A lot of the criticism is about how this happens in very deprived areas.
The borough of Newham has put forward some very interesting proposals and briefings on this. It says clearly, “We are a deprived area. We have all these betting shops and machines. Please, we cannot sustain a decent community if this goes on happening”. I do not for the life of me know why the Government are trying to pussyfoot around and make minor changes—and I regard them as minor changes—to placate somebody.
There is an argument that there might be a loss of employment in some bookmakers. Well, there might be, though they are not so well staffed that they have enough people to persuade problem gamblers to ease off. Even if there is a loss of turnover in the bookmakers—and I do not want anyone to lose their job—that money will go somewhere else. People are poor: they will spend it on what everyone else would spend it on in the high street. There will, therefore, be no loss of economic activity because of this. Perhaps there will be a transfer from one type of activity to another, but there will not be an overall loss of economic activity. I cannot see, therefore, that there will be an economic disadvantage. In any case, it is surely not very edifying if our high streets have one betting shop after another. Is that the sort of high street or community that we want? High streets can be positive. They can be useful for people and provide shopping facilities. We do not want these other things when there can be an excess of them—and there is. It is said that a single street in Newham has 18 betting shops. For heaven’s sake, what sort of society are we supposed to be?
There is an enormous weight of opinion against these terminals—or, to put it this way, an enormous weight of opinion saying that the maximum limit should be £2. To me, that seems a lot of money because you can spend £2 every 20 seconds. That is still a lot of money and adequate for one’s gambling instincts, but then I am not a gambler so perhaps I do not understand these things all that well. It just seems that £2 would be a sensible limit. After all, it is right that the people who are vulnerable and who have become addicted to gambling should be given some measure of ability to keep their gambling urges under some form of control. This is not asking for a great deal. We are not asking to nanny people.
Some of the figures we have been given say that over a third of fixed-odds betting terminal gamblers are problem gamblers. It is one in three—a large proportion. People do not just go in there and spend a little money, then go away again. It seems that they stay there and that it is easy for this to become compulsive. As the noble Lord, Lord Clement-Jones, said, the numbers of people betting the maximum £100 stake doubles between 10 pm and midnight. That is hardly a time when one’s judgment is going to be calm and sensible.
The weight of evidence is so much against these terminals with the stakes as they are, and so much in favour of having a significantly reduced stake. I believe that the Government’s proposals, which will come out in orders, frankly do nothing significant to help. I urge the Government to think again. We are talking about what is for some people a social evil. It is harm that we are doing to our fellow citizens; surely we have to stop that.
Lord Lipsey (Lab)
My Lords, I was for many years a happy constituent of the noble Lord, Lord Dubs, in Battersea South but in my many perambulations around the betting shops of the area I very rarely bumped into him, although he was a most assiduous MP. I suspect that like many of the participants in this debate, he probably does not go into them very much.
Lord Dubs
Just so that everything should be above board, I go into a betting shop once a year when we have a small bet on the Grand National. The year when I won the most was during an election campaign, when a horse called “Party Politics” won and the odds were good. Beyond that, I do not go into betting shops and never did in Battersea.
Lord Lipsey
I will give the noble Lord a tip for next year’s Grand National and tell him which shop to place it in.
We have had a slightly testing afternoon, so I may risk a rather racy analogy which gives my view of FOBTs. I am not very fond of them. If betting on a horse race is the full sexual intercourse of betting and gambling, with foreplay when you select your horse and mounting excitement as the race goes on—we know what happens after that, when the result comes—then FOBTs are a form of onanism. You see sad-eyed blokes—it is always blokes—in front of porn-like machines, made very glittery and unrealistic, shoving in pounds for momentary pleasure. If FOBTs evaporated into the air tomorrow, I for one should be delighted but that does not mean that I would ban them. There are a lot of pastimes that I do not much like: fox hunting, shooting and, although the noble Baroness, Lady Golding, is beside me, I have to say also fishing. However, if others wish to practise them within the law—and of course on fox hunting there is a strict law—that is their affair. Perhaps more importantly, there is the matter of unforeseen consequences.
You do not have to go into a betting shop to place a bet. The online alternative is increasingly attractive, and I cannot see much advantage in forcing determined punters to do what they do in private rather than doing it in a betting shop, where at least there is some element of sociable atmosphere. I can also see some disadvantages. I quite take the point of the noble Lord, Lord Dubs, on this: there would be a threat to the jobs of the hard-working staff—some 45,276 of them nationwide—who work in these shops. There would be a loss of tax and the loss of betting levy revenues. Those have to be weighed against the arguments we hear. Having said that—which favours the bookmakers’ arguments—I cannot believe the hash that the bookmakers have made of arguing their case on this. I cannot believe it. They were legendary lobbyists once upon a time. If William Hill or Ladbrokes came through your door, you shivered with fear and slavered to do their will. But now their approach has been that of the tobacco industry at its very worst. First, they denied that there was a problem. Then they said more research was needed—an echo of the speech of the noble Lord, Lord Deben, in the debate we have just had; there is always more research needed—at the same time doing everything they could to obstruct that research by not making FOBTs available to researchers. Now, finally, their answer is to do more about problem gambling.
Of course, I welcome everything that is done about problem gambling. I applaud the work of the new Senet Group, including on gambling advertising in the windows of shops, but also more widely. I also tremendously welcome the appointment of Martin Cruddace as interim chief executive of the Association of British Bookmakers. Martin is a 21st-century man who has some possibility of helping us find a way through this difficult problem without catastrophic damage either to the betting industry or to the people of this country.
I said that the present answer of the bookmakers is to say, “We are going to fight problem gambling”. Of course I favour that very much, but I do not think it is any more likely to wash than the bookmakers’ previous defensive strategies. There is a lively academic debate about problem gambling. I will not go into it here: “Is there such a thing?”; “Is there a clear distinction between problem gambling and non-problem gambling?”; “How prevalent is it?”. I greatly applaud the noble Lord, Lord Clement-Jones, for getting this debate tonight, but the notion that one-third of those who play FOBTs are problem gamblers is not in line with the evidence.
We must do everything we can to stop the terrible affliction that genuine addictive problem gambling can do to people and their families. As far as I am concerned, it is not those who shove every penny they can get hold of into these damned machines who are the only people with a gambling problem. Anyone—anyone—who stuffs a hard-earned £100 into a slot has a gambling problem. You therefore have to tackle it across the board.
What should be done? The title of this debate refers to the growing number of FOBTs. Again, I am afraid that I have to disagree with the noble Lord, Lord Clement- Jones, who I much respect. The number of machines is not rising very much. It is nearly 40,000, actually—not the 9,000 he suggested—but it is rising at only about 2% a year. Indeed, I suspect, as we speak, that it has fallen because bookmakers are closing betting shops on quite a large scale now and there will be fewer machines. I give way to the noble Lord.
Lord Strasburger (LD)
I think the noble Lord will find that although the total numbers are not changing very much, they are migrating towards the poorest areas.
Lord Lipsey
Yes, but that does not relate to the point I was making that just controlling numbers is not enough. There may be a case for local controls in some areas. I will come back to that at the end of my speech, but I think that the numbers are probably falling now. However, if you really want to put money into an FOBT, you are not going to have much trouble finding a machine; there are plenty about.
It is also true that there might be fewer betting shops on our high streets if there were a crackdown on the numbers of FOBTs. Again, with regard to unintended consequences, anyone who thinks that that would mean all the great shops and chains moving back on to the high street are deluding themselves; the only reason why there are so many betting shops on the high street is that no one else wants the premises, and they are therefore available. I would rather that our high streets consisted of well maintained betting shops than ill maintained, ramshackle, empty shops that are falling down.
So if we are not going to try to control numbers, what should we try? I think that the alternative, as has been referred to by the noble Lord, Lord Dubs, is the tool we already have: a limit on the amount that you can put into the machine at once. A hundred pounds is a very high limit, is it not? It means—in theory, at least—that the punter can lose a hell of a lot of money in no time at all. It is, incidentally, the bookmakers’ adamant refusal to take the counsel of their wiser friends and reduce that amount, a refusal that I think is motivated by sheer greed and the need to feed the maws of their shareholders, that has persuaded me that they simply do not get it or, at best, that their judgment has taken second place to the size of their bonuses. Had they voluntarily reduced the top stake by one-quarter, one-half or three-quarters when problems started to emerge, I suspect that we would not be here having this debate today.
Outside bookmaking, a consensus is emerging for reducing the maximum stake substantially; the figure of £2 seems to have emerged among campaigners at the right sort of level. Going back to sex, that would turn the porn machines into a sort of page 3—if that still exists; I get confused from day to day as to whether it does—that is, mild titillation rather than hardcore, and FOBTs into something more akin to entertainment-with-prizes machines, a bit of fun rather than a serious gambling product. In my view, it is a matter for serious further consideration whether such a limit should be imposed at the national level or decided by local decision by local government.
Lord Strasburger
My Lords, since confessions seem to be the fashion, I will admit to liking a little flutter myself. In this matter, there are many knowns and a few unknowns. We know that FOBTs are different from all other gambling machines on the high street because their maximum stake is 50 times higher, £100 as opposed to £2. This makes them suitable for addictive casino games, mainly roulette, and they turn betting shops into de facto casinos where a punter can lose £300 a minute but without the close supervision that casinos deploy.
We know that 70% of betting shop revenue now comes from FOBTs. We know that the big bookmakers target the poor and the financially vulnerable because the density of FOBTs in the most deprived areas is double that in the most well-off parts of the country. We know that the predictable income that FOBTs generate, not being dependent on the results of sporting events, is very attractive to the plc boards of the big gambling businesses. We know that betting shops employ fewer staff for FOBTs than if they had over-the-counter betting only, so the costs are reduced.
So we know that FOBTs are goldmines for the betting industry and that it will do all it can to keep them and their £100 maximum bet three times a minute, come what may. We also know that the Responsible Gambling Trust is funded by the gambling industry and its trustees and management are stuffed with betting industry figures, so the trust’s independence and impartiality are, at best, suspect.
Yet we also know that the Government rely on the Responsible Gambling Trust for its research on FOBTs. So it is hardly surprising that, despite indications given previously by the Government, the recent Responsible Gambling Trust research did not examine whether the special characteristics of FOBTs—namely very high stakes, casino games and very high-speed play—contribute to problem gambling and addiction, although we do know that research by Sydney University in 2005 found a link between high staking and problem gambling.
These omissions in the Responsible Gambling Trust’s research suit the gambling industry very nicely. Once again, action will be deferred on greatly reducing maximum stakes and game speed, and the big bookmakers can continue to profit handsomely from the poor and the addicted. We also know that fixed-odds betting terminals present a convenient route for small and large-scale money-laundering.
There are two things that we do not know. The first is very simple. Why on earth did anyone, apart from the bookmakers, think that it was a good idea to allow one category of gambling machine, freely accessible on high streets, to have a maximum stake 50 times higher than all the others? Perhaps my noble friend the Minister can tell the House why the Government still think that huge anomaly should persist. The other unknown is why the Government appear to be complicit in protecting the big bookmakers and their super-profits from FOBTs, at the expense of the most economically vulnerable and those addicted to gambling, their families and those in their community who suffer from the consequential crime. Could my noble friend the Minister explain why that is the case?
Lord Collins of Highbury (Lab)
My Lords, I welcome this debate. If we are to have a sort of coming-out session, I have used casinos and have even had the delight of Las Vegas, where I certainly enjoyed myself. The most frightening experience I have had was taking an elderly neighbour to the local bingo hall and watching people play bingo. I found it incredibly stressful; I could not keep up while she, in her 80s, was able to point out all the numbers that I had missed. There is skill in some of these games.
Despite a two-year research programme, and after 15 years of FOBTs on high streets at £100 a spin, we are still no nearer a conclusive answer to whether they are safe to operate in high street betting shops.
My noble friend Lord Dubs has pointed out that the betting industry has argued that jobs are at risk if FOBTs are not allowed. If this is the case, why has the number of employees in betting shops been decreasing while the net takings from FOBTs have increased?
Local authorities have a statutory duty to uphold the licensing objectives, which are to ensure that gambling is fair and open, is not associated with crime and does not harm the young and vulnerable. As we have heard from noble Lords, 93 councils believe that FOBTs are in breach of all these objectives and so have joined Newham in calling for the maximum stake to be capped at £2 a spin.
Labour has always been clear that FOBTs should be kept under review. My right honourable friend Tessa Jowell, the then Secretary of State, said during the passage of the 2005 Act that FOBTs were “on probation”. They have certainly had a very long period of probation. She was concerned about unintended consequences relating to the machines, about the gambling industry becoming “overly dependent” on growth driven by the machines and about FOBTs’ role in problem gambling. At the time when four was settled on as the number of machines to be permitted in betting shops, she said that there was no certainty that these machines would remain, because we were absolutely clear that we could not know at that stage what their effect was likely to be.
In response to the cap, bookmakers have opened multiple premises in clusters to facilitate more machines. They get round the limit of four by simply having four more shops in the same area. Extending those clusters has been a very big issue for lots of local authorities. By clustering in that way, they facilitate more machines, as a fixed-margin product guarantees bookmakers a return. As a result, FOBTs have become a significant part of their business operations, which has led to betting shops proliferating on high streets and licences being moved from tertiary locations to clusters.
The Minister, in response to a recent question from the noble Lord, Lord Strasburger, in the Chamber referred to new regulations which,
“come into force on 6 April this year that will end unsupervised high-stake gambling on fixed-odds betting terminals. All players using FOBTs are now presented with a choice to set time and money upfront”.
The Minister assured the House that the Government would be,
“keeping this issue under review and remain focused on identifying gambling-related harm, wherever it is found, and devising effective measures to bear down on it hard”.—[Official Report, 9/2/15; col. 1021.]
Tonight, however, can the Minister explain how the Government came to decide that £50 would deal with problem gambling? I fear that if he cannot, many will see this as a bit of a sham rather than firm action. It is a fact that the limit relies on the betting industry to apply it, and customers will be able to bet above £50 on a single play with permission from betting shop staff.
We have heard a lot about the research of the Responsible Gambling Trust, which has identified that 73% of all bets were on B2 games and that roulette was the most popular type of B2 game. In effect, as we have heard, we now have casinos on every high street, but not with the same sort of controls and supervisions you would have in casinos. In London, stake sizes were higher and session lengths longer.
A link between social deprivation and use of the machines was found. In England, two-fifths of all bets were placed in venues in the most deprived areas. However, that reflected the distribution of bookies, as 38% of branches are in the most deprived areas of the country. Those with lower incomes were more likely to start to play machines in a bookmaker’s than those with higher incomes.
We share concerns that betting shops are clustering in areas with high levels of deprivation, but appreciate that not all areas are affected. However, as the noble Lord, Lord Clement-Jones, said, the new regulations on planning apply to new premises. They are not tackling the issue of existing premises, or the clustering I referred to. The Secretary of State for Communities and Local Government has told us:
“This government is committed to localism and greater local decision-making in planning”.
Perhaps the Minister can explain why that does not apply to betting shops. Local authorities should have the ability to ration and manage the number and location of these shops in their area. The Labour Party would also modify the Gambling Act to give councils powers to review betting shop licences in their area and retrospectively reduce the number of machines in existing betting shops—that is, from four through to zero—in response to local concerns.
Critics of FOBTs have argued that these machines are addictive because of the immersive nature of the games, which lulls people into losing more money than they intend. We have heard what the research has shown about the periods of time for which these are being played. I support measures to mitigate the harm of these machines, such as increasing the time between plays, introducing pop-ups that warn players how long they have played, and how much they have gambled and lost, or requiring them to go to the cash desk to limit the amount they can insert into the machine. However, none of those measures will be effective without sufficient trained staff. Betting shop staff are on the front line when it comes to consumer protection, but single staffing is commonplace in betting shops, especially in these clusters. Does the Minister agree that staff would be in a better position to intervene and help problem gamblers if they were not made to work alone?
Labour will expect operators who have FOBTs to have at least two members of staff present at all times. If they fail to comply with this, we will make it a licensing condition for betting shops that have FOBTs. By demanding that betting shops with FOBTs stop single staffing and requiring them to provide adequate training for staff, we can increase employee safety and empower staff to help potential problem gamblers.
As my noble friend Lord Lipsey said, one of the key issues cited for inaction on FOBTs is a lack of evidence; we have heard that through tonight’s debate. Does the Minister agree that betting shop operators should be required to collect and provide standardised data on the use of FOBTs, to allow independent—I stress the word—researchers to analyse their impact so as to help inform all future decision-making on these machines?
Lord Bourne of Aberystwyth (Con)
My Lords, this has been an extremely interesting and thought-provoking debate. I thank my noble friend Lord Clement-Jones for tabling this debate and presenting his case with such aplomb, not least because it offers the Government an opportunity to highlight existing measures in this area and to provide reassurances on what is, after all, a very important subject. Let me state categorically at the outset that the Government understand the public’s concerns and those of noble Lords around fixed-odds betting terminals. We have made it clear that we consider the future of their regulation to be unresolved.
I turn first to the submission supported by Newham Council and others. The Government understand the deep concerns held in this area of law in relation both to the perceived impact on the face of the high street of clustering—about which I will say something later—and to the claimed impact on problem gambling of the category B2 or the fixed-odds betting terminals that we are talking about. That is why, last April, we announced action in this area. I believe this was the first action announced under the Gambling Act, which, after all, came in in 2005, so there was ample opportunity for the previous Government to do things in the five-year period before the 2010 election. However, I accept that we all have concerns about this issue, so I am approaching it on that basis.
We announced a whole suite of new gambling controls, on track to come into force in April this year. I believe that my noble friend Lord Gardiner covered that in answer to a Question asked by my noble friend Lord Clement-Jones. The measures that we are seeking to introduce are to give more powers to local communities by requiring planning applications to be submitted to local authorities for new betting shops, and they will now be in a separate category. At the moment, they are in the same category as financial advisers and so on, so a change of use within that category would not require planning permission. After April, it will need separate planning permission unless it is within a now very limited category. I think that they share the same category as payday lenders and that they are the only two types of business that will find themselves in this new planning category. We have also brought in measures—which I will outline and expand on later—to restrict unsupervised high-stake play.
I do not claim to be able to predict what the precise impact of these measures will be—I do not think any of us can know that—but as the Secretary of State, Sajid Javid, said at the Culture, Media and Sport Committee on 20 January:
“These measures, particularly regarding FOBTs”—
Lord Strasburger
I thank my noble friend for giving way. He says that he cannot predict the effect of these changes. Let me help him. Changing the planning law will have no effect on the existing betting shops.
Lord Bourne of Aberystwyth
I actually said that I could not predict the precise impact of these measures. That comment was meant in a global sense; I was not referring to a particular instance. However, I am very grateful to my noble friend for that helpful intervention.
As I was saying, the Secretary of State said:
“These measures, particularly regarding FOBTs, will make a difference but I think, rather than for us to jump now and say, ‘We should move even further’, I would like to see these bed in and then look at the evidence and see if there is a need for any further action at all or if what we have done is enough”.
To my mind this is a sensible approach and balances the Government’s commitment to reduce problem gambling and protect the vulnerable while at the same time protecting what is an enjoyable leisure activity for the vast majority of customers who visit bookmakers’ premises. We will review the impact of these measures—or have committed to do so—in 2016 to see how effective they have been.
It is perhaps worth reminding ourselves what powers exist at the moment. Bookmakers have a responsibility to assist gamblers who display signs of problematic behaviour. The betting industry introduced new measures under its code of conduct from 1 March 2014—just a year ago. While this is a step in the right direction, we believe that measures should be toughened and made mandatory. That is why the Gambling Commission recently announced in its response to consultation on the social responsibility provisions in its licence conditions and codes of practice proposals for a mandatory code which will come in in May this year, with the sanction ultimately of taking a licence away if a bookmaker does not fulfil those conditions. I believe that that is a further step in the right direction.
We believe that the measures we are taking are sufficient to improve player protection. These moves, combined with the measures outlined in the Gambling Commission’s response to consultation on the social responsibility provisions in its licence conditions and codes of practice, are justified on a precautionary basis.
I should like to add that what is significant here is that the level of contact between customer and betting shop operator has increased, either via human or electronic interaction. Recent research has shown that interaction of this sort can give customers pause for thought, an opportunity to take stock of where they are and to assess their situation in a dispassionate manner. This is something that we have not seen before and it is part of the reason why other countries are looking to the UK as a pioneer in reducing gambling-related harm. I am not complacent about this because one would hope that we could have no problem gamblers but, to put this in context, research demonstrates that they represent under 1% of our adult population. The figure is higher in the US, Australia and South Africa, which have comparable systems. I am not suggesting that we can be complacent but we need to keep a sense of balance.
Lord Clement-Jones
I apologise for interrupting my noble friend while he is in full flow, but does he accept the Responsible Gambling Trust figure which indicates that 37% of customers at these properties are problem gamblers?
Lord Bourne of Aberystwyth
I do not recognise that figure. However, prior to this debate, I read that researchers had said that we should not seek to extrapolate any arguments from the figures that they had looked at as they came from a fairly limited survey. I will look at the research further but I do not recognise the figure the noble Lord has given.
Lord Lipsey
Perhaps the Minister will also point out that the survey was carried out among the 10% of users of properties who have loyalty cards. By definition, you are far more likely to have a loyalty card if you are putting a lot of money into a machine than if you are putting in the odd pound or two.
Lord Bourne of Aberystwyth
I am very grateful to the noble Lord. It is, indeed, somewhat self-selecting in that sense: that is absolutely clear. However, I should move on within the time allocated to me.
Although local authorities are bound by law to aim to permit gambling in so far as it is reasonably consistent with the licensing objectives of preventing crime and disorder, ensuring that it is fair and open and protecting children and vulnerable people, the licensing process at present gives authorities considerable scope to attach additional conditions to licences. At present, two licences are needed to open a betting shop: an operating licence from the Gambling Commission to show that the person operating the premises is a fit and proper person, and a premises licence from the local authority. Of course the local authority has to marshal the evidence, if it has a particular planning objection, but it can do that within the existing law. I think that Barking and Dagenham, for example, is looking at that process and seeking to use it. I am not sure exactly where it has got to, but I know that that local authority, at least, is looking into it. That is something that I would encourage, because there are existing powers, as well as those that we seek to introduce.
Now I shall return, as I promised I would, to the conditions that we seek to introduce in the code, via the Gambling Commission. As I have said, they will give powers to local communities, by requiring planning applications to be submitted to local authorities for new betting shops. Putting the change-of-use regulations on a different basis will make that a more powerful tool. It will require those accessing stakes over £50 to use account-based play or to load cash over the counter, putting an end to unsupervised high-stakes play, and it will require all players of FOBTs to be presented with the choice to set time and money at the machine itself. These measures are on track to start in April, and will, I think, make a real difference. The sensible thing to do now is to see how they bed in before thinking about further action. That is a fair and reasonable approach.
I shall now seek to answer some of the specific points raised in the debate. In case I miss any, I undertake that we will look at Hansard and write to all noble Lords who have participated in the debate. First, the noble Lord, Lord Clement-Jones, suggested that planning was not the answer. It is not the whole answer—I accept that—but it is part of the answer. Intervention is also important, and that is a key part of the code.
In response to the useful and valid points made by the noble Lord, Lord Lipsey, I say that the point is to achieve a balance. We need to protect the vulnerable—that is absolutely right—but we should not seek to stop people gambling. Like some other noble Lords, I have a very rare flutter: I went to Las Vegas and never placed a bet, so I imagine I am a bookmaker’s nightmare. I can see that the noble Lord, Lord Lipsey, shares that position, so we have that in common—although his contribution seemed to turn into “Fifty Shades of Betting Shops”, and some of the time I was not quite sure where we were going. I am all in favour of permissive elements, but there are limits. I shall be coming to the noble Lord, Lord Dubs, for tips for the Grand National when we reach that part of the year, which is very close now.
Several noble Lords, including the noble Lord, Lord Strasburger, rightly raised the issue of problem gamblers. To try to put this in context, FOBTs are in decline overall, according to our most recent figures: 4% of adults played them in 2010, and that dropped to 3.4% in 2011-12. Average stake size on a FOBT machine in a bookmaker’s was £5.13; on a B2 it was £14.08. That does not mean that this is not a serious problem, or potential problem, but we need to get it into context. Most people who use these machines do not have gambling problems. The idea that they do is not borne out by the research.
This has been a useful debate, and obviously the department will study it. In case I have not made this absolutely clear, I want to nail again the point that the Government remain very vigilant on this matter, and in reviewing evidence on the effects of fixed-odds betting terminals. We want to make sure that the betting industry is well aware of that. The Rubicon has not been crossed, nor will it ever be. Nothing is final, except that the Government will work in partnership with the Gambling Commission, which is neutral. In answer to the point made by the noble Lord, Lord Strasburger, about the questionable nature of the Responsible Gambling Trust’s independence, I should explain that it is the Gambling Commission that reviews the research. I know it has an industry element to it, but its research is reviewed by the Gambling Commission, which is a statutory body. We shall study this useful debate, and during 2016 we will also study closely the evidence and the research, to see how effective the reforms being introduced this spring have been.