Vol. 759 Tuesday No. 106 24 February 2015

PARLIAMENTARY DEBATES (HANSARD) HOUSE OF LORDS OFFICIAL REPORT

ORDER OF BUSINESS

Questions National Curriculum: Animal Welfare ...... 1529 Gurkhas ...... 1531 Yarl’s Wood ...... 1533 Armed Forces: Baltic Defence ...... 1536 Specialist Printing Equipment and Materials (Offences) Bill Order of Commitment Discharged ...... 1538 Consumer Rights Bill Commons Reason ...... 1539 Human Fertilisation and Embryology (Mitochondrial Donation) Regulations 2015 Motion to Approve...... 1569 Gambling: Fixed-odds Betting Machines Question for Short Debate...... 1627

Grand Committee Referral and Investigation of Proposed Marriages and Civil Partnerships (Scotland) Order 2015 Motion to Consider ...... GC 305 Referral and Investigation of Proposed Marriages and Civil Partnerships (Northern Ireland and Miscellaneous Provisions) Order 2015 Motion to Consider ...... GC 309 Proposed Marriages and Civil Partnerships (Conduct of Investigations, etc) Regulations 2015 Motion to Consider ...... GC 309 Non-Domestic Rating (Shale Oil and Gas and Miscellaneous Amendments) Regulations 2015 Motion to Consider ...... GC 309 Non-Domestic Rating (Levy and Safety Net) (Amendment) Regulations 2015 Motion to Consider ...... GC 314 Local Government (Transparency) (Descriptions of Information) (England) Order 2015 Motion to Consider ...... GC 315 Community Right to Challenge (Business Improvement Districts) Regulations 2015 Motion to Consider ...... GC 317 Motor Vehicles (Wearing of Seat Belts) (Amendment) (No. 2) Regulations 2015 Motion to Consider ...... GC 322 Renewable Transport Fuel Obligations (Amendment) Order 2015 Motion to Consider ...... GC 327 Crime and Courts Act 2013 (Consequential Amendments) (No. 2) Order 2015 Motion to Consider ...... GC 332 Electrically Assisted Pedal Cycles (Amendment) Regulations 2015 Motion to Consider ...... GC 337

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The first time a Member speaks to a new piece of parliamentary business, the following abbreviations are used to show their party affiliation: Abbreviation Party/Group CB Cross Bench Con Conservative Con Ind Conservative Independent DUP Democratic Unionist Party GP Green Party Ind Lab Independent Labour Ind LD Independent Liberal Democrat Ind SD Independent Social Democrat Lab Labour Lab Ind Labour Independent LD Liberal Democrat LD Ind Liberal Democrat Independent Non-afl Non-affiliated PC Plaid Cymru UKIP UK Independence Party UUP Ulster Unionist Party

No party affiliation is given for Members serving the House in a formal capacity, the Lords spiritual, Members on leave of absence or Members who are otherwise disqualified from sitting in the House. © Parliamentary Copyright House of Lords 2015, this publication may be reproduced under the terms of the Open Parliament licence, which is published at www.parliament.uk/site-information/copyright/. 1529 National Curriculum: Animal Welfare[24 FEBRUARY 2015] National Curriculum: Animal Welfare 1530

academic subjects that would be a basic expectation in House of Lords many countries, and certainly in any private school. We have recovered substantially from that position: Tuesday, 24 February 2015. now nearly 40% get that core suite, but the Question underestimates the low base from which we are starting. 2.30 pm

Prayers—read by the Lord Bishop of Carlisle. Baroness Howarth of Breckland (CB): My Lords, will the Minister commend those organisations that take the trouble to take animals, particularly dogs, National Curriculum: Animal Welfare into care establishments and schools for children with Question learning disabilities? It has been shown that those youngsters improve their behaviour on encountering 2.37 pm animals. Maybe this is one area where we could increase attendance. Asked by Lord Hoyle

To ask Her Majesty’s Government whether they Lord Nash: I agree entirely with the noble Baroness. have any proposals to include animal welfare in the Organisations such as Battersea Dogs & Cats Home, national curriculum in schools. Blue Cross, Cats Protection, Dogs Trust and PDSA do excellent work. I am sure she will be interested to know The Parliamentary Under-Secretary of State for that, under the Government’s successful free school Schools (Lord Nash) (Con): My Lords, the new primary programme, we will have the Milton Keynes special free science curriculum, introduced from September 2014, school opening next year. It will be a 70-place alternative focuses on the essential scientific knowledge that young provision primary school for pupils with social, emotional people need to be educated citizens. It teaches primary and behavioural difficulties. It will incorporate a forest pupils about the requirements for animals to survive: approach. They will keep chickens and will be taught appropriate habitat, food, water and air. Subjects such by an experienced poultry keeper. as citizenship and PSHE also provide opportunities for pupils to learn about animal welfare, and teachers Baroness Jones of Whitchurch (Lab): Does the Minister are free to decide what further activities they offer on agree that hunting with dogs is a cruel and unnecessary this subject. sport? If so, how would he explain to young people in schools that the Tory party is threatening to repeal the Lord Hoyle (Lab): I thank the Minister for that hunting ban? 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 Lord Nash: If we offer all our children a really good environment. Is he aware that the RSPA did a survey education, which we are trying to do, they can make in 2014 of 800 teachers, 95% of whom thought that it their minds up on these issues for themselves. ought to be taught to young people? Indeed, 83% thought it ought to be part of the national curriculum. Baroness Perry of Southwark (Con): Does my noble friend agree that when topics such as the use of animals Lord Nash: I am aware of the survey to which the in scientific experiments are dealt with in schools they noble Lord refers, and I know that the RSPCA teaches should be dealt with in a balanced way, and that around 4,000 teachers about this every year. We feel children should be able, as he has just said, to balance that it is very helpful for young people to learn about the various arguments on different sides? 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 Lord Nash: I entirely agree. Children taught properly majority of pupils in this country have an education in should be able to balance all these arguments. They core academic subjects first. should be taught about argument and they should have enough scientific knowledge to understand what Baroness Parminter (LD): This year the Government is happening. are reviewing their codes on how to care for dogs, cats and horses. Does my noble friend agree that it is Baroness McIntosh of Hudnall (Lab): My Lords, important that children are made aware of those new would the noble Lord agree that it is slightly unfortunate codes? If so, will the Government be offering any that he chose to use this really quite innocuous Question advice about their inclusion in school timetables? to make a very crude party-political point? Would he also accept that, in doing so, he undermines the morale Lord Nash: As I said, I agree entirely that animal of teachers who have been working in the system for welfare is an important subject for pupils to learn about, very many years and doing the very best they can, but we have to recognise the low base from which we sometimes in quite difficult circumstances? Would he are starting education in this country. When we came further he accept that the best primary schools have to power, fewer than one in five pupils attending a animals for the children to look after and that is how comprehensive school was getting that core suite of they learn about animal welfare? 1531 National Curriculum: Animal Welfare[LORDS] Gurkhas 1532

Lord Nash: As I think the noble Baroness has heard and ethnic groups can work together in defence of a me say on a number of occasions, I regard teaching as set of common values based on the mutual trust and the most noble of professions. It is certainly the most respect that has grown over the last 200 years and I am important profession at this time as far as the future of immensely proud to have served alongside Gurkhas in this country is concerned. But I think we just have to Malaysia and Hong Kong. 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, Lord Rosser (Lab): We on this side also recognise but until we start loading up the curriculum with the unique contribution made by the Gurkhas over extras on a compulsory basis we have to recover the last 200 years. Do the Government agree that the educationally to provide our pupils, particularly those best way to mark the 200th anniversary would be to from disadvantaged backgrounds, with that core cultural ensure a clear and continuing role for the Gurkhas in literacy that they need. Army 2020? Can the Minister say whether that is the Government’s objective and what that role might be? Lord Grocott (Lab): My Lords, the Minister gave a rather strange reply to an earlier question on the Lord Astor of Hever: My Lords, of course we are Hunting Act: that, somehow or other, properly educated very keen on a proper role for the Gurkhas, and we pupils will be able to make up their own minds on the feel that they have a proper role at the moment. 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 Lord King of Bridgwater (Con): Is my noble friend is that people will obey it. I hope that he thoroughly aware that when we were conducting the Options for agrees with that in relation to the Hunting Act. 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 Lord Nash: I entirely agree that all citizens should Gurkhas should be stood down. Does my noble friend obey the law. agree that one of the best decisions we took was not to listen to that advice and to ensure that the Gurkhas Gurkhas continued their service? Is not all the evidence that has Question 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 2.44 pm they have served this nation over so many years? Asked by Baroness Boothroyd To ask Her Majesty’s Government what plans Lord Astor of Hever: My Lords, I agree with my they have to celebrate the 200th anniversary of the noble friend. I think it was Prince Harry, who served Gurkha battalions and to acknowledge their service alongside the Gurkhas in Afghanistan, who put it very to the United Kingdom and their relationship with well. He said that there was no safer place than by the the British people. side of a Gurkha.

The Parliamentary Under-Secretary of State, Ministry Lord Burnett (LD): My Lords, the Gurkhas have of Defence (Lord Astor of Hever) (Con): My Lords, served our country with the greatest loyalty and bravery. this year we mark the bicentenary of Gurkha service I had the honour to serve, only for a few weeks, to the British Crown. Gurkhas hold a special place in with the 2nd Goorkha Rifles. They spelt their name a the hearts of the British people and we will be celebrating different way from the other regiments and they were our close and enduring relationship. The Brigade of known as God’s own Gurkhas. They were, as always, Gurkhas will be holding many events over the year, fantastic fighting men and I hope my noble friend will including a parade and a memorial service in Whitehall agree that we owe the Gurkhas a debt of honour in April, and Gurkha units will conduct public duties which we can never repay. in London during May.

Baroness Boothroyd (CB): Does the Minister agree Lord Astor of Hever: My Lords, I entirely agree that the 200th anniversary of Gurkha service to this with my noble friend. The Ministry of Defence is country provides an opportunity to mark the unique marking the celebration of 200 years of Gurkha service relationship forged in battle across the world by the with a series of events in the UK and abroad. Gurkha soldier and his British comrade? Is not the bicentenary of the Gurkha Brigade a reminder to us Lord Howe of Aberavon (Con): I endorse absolutely all that religious differences and diverse ethnic origins the decision of the Government in this respect. Will my are no barrier to shared values and lasting friendships? noble friend take account of the fact that on my visit to Pakistan about 25 years ago—the first visit from a Lord Astor of Hever: I agree wholeheartedly with Secretary of State of this country—I was welcomed the noble Baroness and I pay tribute to her work as an by President Ghulam Ishaq Khan who told me that I ambassador for the Gurkha Welfare Trust. Gurkhas should be able to find that country peopled with the within the British Army are proof that different religious noble ghosts of Britain’s past. 1533 Gurkhas[24 FEBRUARY 2015] Yarl’s Wood 1534

Lord Astor of Hever: My Lords, that is a very Baroness Bakewell (Lab): I thank the noble Lord interesting bit of information from my noble and for that Answer. In June last year Yarl’s Wood was the learned friend. I am sorry that the noble Lord, Lord subject of 31 allegations of sexual misconduct. Those Slim, is not here; he served in the Indian Army and were investigated and a number of staff were dismissed. was on parade during the time of partition. None the less, in November the Serco contract for Yarl’s Wood was extended for eight years. However, Lord Palmer of Childs Hill (LD): My Lords, I agree the harassment goes on. The January report by Women with all that has been said about the valour of the for Refugee Womendocumented inappropriate behaviour Gurkhas, but can my noble friend the Minister answer by male staff towards female inmates—themselves a question that is put by many people? Many veteran already the victims of sexual abuse. Can the Minister Gurkhas who have retired to this country live in tell us when innocent women who have committed no poverty and receive only one-third of the standard crimes can expect to be treated with respect? pension of military pensioners. Have Her Majesty’s Government considered how, in the 200-year celebrations and commemorations, we should treat these valiant Lord Bates: I think that the answer to the noble men? It should not be by paying them a pittance so Baroness is: right now. I believe that the standards that they need to go to food banks. 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 Lord Astor of Hever: My Lords, Gurkhas of working to be a safe and secure place. In addition, there is an age who have been discharged since the 1990s and who independent monitoring board. Just two weeks ago, are resident in the UK have integrated well and contribute my right honourable friend the Home Secretary set up to society. On the question of pensions, since 1 April a special review of all immigration removal centres to 2007, any Gurkha joining the British Army receives ensure that they are of the highest standard. I read the the same pay and pension benefits as their counterparts report by Women for Refugee Women very carefully in the wider Army. Gurkhas serve on the same basis as and the most critical point was that it was felt that the remainder of the Army, with some very small women’s privacy was invaded and that there were exceptions designed to satisfy the Government of Nepal. insufficient female staff. One of the key elements in the contract offered was that the proportion of female Baroness Heyhoe Flint (Con): My Lords, the Minister staff should increase. The proportion is going up from may be wondering why I am involved with the Gurkhas 42% to 60%, and that is a step in the right direction. 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 Lord Dholakia (LD): My Lords, my noble friend supported by a person for whom I worked for 45 years, may have read the report by the Equality and Human Sir Jack Hayward, who, sadly, died in January. I am Rights Commission about deaths in custody, published sure that her involvement would be greatly appreciated only recently. Does he accept that the organisations by all Gurkhas and would be a tribute to the memory and institutions do not deliver the standards outlined of Sir Jack Hayward. 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, Lord Astor of Hever: I have listened very carefully does he accept that it is time for HM Inspectorate of to what my noble friend has said but I do not have any Prisons to carry out a thematic review of how these plans to meet Joanna Lumley. standards are being observed at the Yarl’s Wood centre?

Yarl’s Wood Lord Bates: Her Majesty’s inspectorate’s last visit Question was in June 2013. These are not planned visits; they are meant to be surprise visits to try to get an accurate 2.51 pm picture of what is going on. They are meant to happen every two years, so we are expecting one fairly soon. Asked by Baroness Bakewell Following the very serious allegations, some members of staff were suspended, and Bedfordshire Police is To ask Her Majesty’s Government what undertaking criminal investigations in that respect. requirements were set in the contract for Yarl’s The inspectorate returned to Yarl’s Wood to undertake WoodImmigration Removal Centre recently reawarded 50 further interviews to make sure that its conclusion to Serco regarding the dignity and privacy of women that it was a safe and respectful place could be upheld. detained there.

The Parliamentary Under-Secretary of State, Home Lord Hylton (CB): My Lords, I have visited Yarl’s Office (Lord Bates) (Con): My Lords, contracts for the Wood in recent years. Can the Minister confirm that operation of immigration removal centres require service no pregnant women are held there now? Will he agree providers to comply with the Detention Centre Rules that many detainees feel very cut off there and do not 2001. This is in addition to the contracts’ operational know when they will be released? Can he tell the specifications, which contain measures to ensure the House how many suicides or serious attempts at self-harm dignity and privacy of women. there have been in the past two years? 1535 Yarl’s Wood[LORDS] Armed Forces: Baltic Defence 1536

Lord Bates: At Yarl’s Wood, in the past two years, can the Minister tell us whether the Government have the answer is, fortunately, none. These are very vulnerable any plans for a screening process for people in that people; we accept that totally. The noble Lord asked position? about pregnant women in particular. There is a limit which says that no women past the 24th week of Lord Bates: This is subject to a very careful screening pregnancy can be held or put into the detention fast process, and the decision to send someone to Yarl’s track. The point is that they should be in Yarl’s Wood Wood is not taken lightly. There are medical reviews only for a very short time. They are people who are by a GP and reports are provided to the caseworkers identified for quick return and their stays should be no before any decision is made. The point is that these are more than a few weeks. people who have overstayed their stay, their asylum immigration applications have been denied and, therefore, Baroness Kennedy of The Shaws (Lab): My Lords, I they are about to be deported imminently. That is the welcome the Secretary of State’s review of the welfare reason they are there. However, that does not mean of detainees, but I am anxious to know whether it will that they should be treated with anything less than the include a review of whether the decision-making is to highest standards of dignity and respect. the appropriate standards. The evidence shows that victims of abuse in these centres feel greatly traumatised Baroness Lister of Burtersett (Lab): My Lords, the by the very fact of detention. Surely the reviewer review that has been announced is very welcome, as is should be encouraged to meet ex-detainees as present what the Minister has said, but the terms of reference detainees might be reluctant to speak of some of the of the review do not explicitly include women generally; things that have happened to them. Would it not also they refer just to pregnant women. The Minister himself be good if he met members of organisations that work has said that all the women about whom we have closely with traumatised victims who have been heard evidence from the noble Baroness, Lady Bakewell, detained—organisations such as the Helen Bamber are vulnerable. Will he now confirm that the review Foundation, which deals with victims of torture; Freedom will look explicitly at the treatment of women, many from Torture, and Women for Refugee Women? Will of whom have fled gender-related violence in their the reviewer meet those people, and will he review the home countries? very decision-making as to whether people should be detained at all? Lord Bates: I would have thought that the noble Baroness might welcome the fact that the Shaw review will range Lord Bates: It is, obviously, set up as an independent much wider. Of the 30,000 people who are held in review, so it will be for Stephen Shaw to do that. However, detention, around 80% are male, and it is important as he is a former Prisons and Probation Ombudsman I that their needs are reviewed as well. However, I am would expect that his attention will be drawn not only sure that the noble Baroness’s observation will be fed to the current detainees but to former detainees and back to the review. also to those excellent charitable organisations. To the list of excellent charitable organisations that the noble Lord Roberts of Llandudno (LD): My Lords, is the Baroness mentioned I would add Hibiscus, particularly Minister satisfied that there is no concern at all about at Yarl’s Wood. It does an outstanding job of providing any of the detention centres that we have in the UK, humane care, advice and friendship to people in that or is there any detention centre that is really causing a situation. worry at the moment?

Baroness Hussein-Ece (LD): My Lords, over the Lord Bates: How do we define “worry at the present past two years Yarl’s Wood has developed a reputation, time”? We have rigorous systems of independent and not a very good one, for the way that it treats women monitoring boards at every single centre. They consist in the centre. Can the Minister say a bit more about of 12 independent people. We have the inspectorate whether the number of girls under the age of 18 being carrying out its review. We have the independent review detained there has gone down? The Minister rightly that we announced. We are happy that the places are said that people should not be held there for great safe and secure, but we are not complacent. These are lengths of time. Can he tell us what the average length vulnerable people and need to be protected. of stay is now? Armed Forces: Baltic Defence Lord Bates: Certainly; the latest statistic we have is Question that 92% of people are held for less than six months, and about 48% for less than 42 days. We want that to 3.01 pm come down because, as I say, this is used very much as Asked by Lord Lee of Trafford a last resort. In relation to children, as a result of action taken in your Lordships’ House children are, To ask Her Majesty’s Government what is their fortunately, no longer detained in immigration removal assessment of the ability of the United Kingdom’s centres, and that is a good thing. armed forces to participate fully in any NATO-led Baltic defence operations. The Lord Bishop of Carlisle: My Lords, in view of the concerns expressed only last Friday by the Joint The Parliamentary Under-Secretary of State, Ministry Committee on Human Rights about women and girls of Defence (Lord Astor of Hever) (Con): My Lords, who claim to have been victims of violence and are NATO remains the cornerstone of UK defence. We detained at Yarl’s Wood under the fast-track process, are committed to Article 5 as a fundamental principle 1537 Armed Forces: Baltic Defence[24 FEBRUARY 2015] Printing Equipment and Materials Bill 1538 at the heart of NATO. An attack on one is an attack scale of sophistication of Russian activities, combined against all. We maintain a range of forces at the with the use of new instruments such as cyber, presents required readiness and standard and would respond to a new challenge and we are doing our best to get on any NATO request to defend the Baltic states against top of it. external aggression. The level of our participation would depend on what requests NATO made of us. Lord Campbell-Savours (Lab): What assessment is being made by the British Government and Ministers Lord Lee of Trafford (LD): My Lords, there is a of the impact on Russian public opinion of provocative saying that it is useless for the sheep to pass resolutions NATO exercises on the border with Russia? in favour of vegetarianism if the wolf is of another Lord Astor of Hever: My Lords, we are well aware opinion. Is my noble friend not ashamed and embarrassed of the very good point made by the noble Lord. that, with clear Russian aggression in the Ukraine and major increases in Russian defence expenditure, all Lord Palmer of Childs Hill (LD): My Lords, the our major political leaders, ostrich-like, totally fail to information given by my noble friend the Minister is spell out their respective positions on the levels of to some extent reassuring, but perhaps it might be overall defence expenditure? Do we not need a clear more reassuring if there were two aircraft carriers commitment to maintain a 2% of GDP spend on actually in service and if F-35B assault aircraft were defence and, indeed, probably more? Can my noble actually working on those aircraft carriers. Will the friend tell us why the Chief of the Defence Staff was Minister tell us what message we send out to our gagged yesterday from speaking at Chatham House? enemies, to whom we might seem somewhat unprepared?

Lord Astor of Hever: My Lords, we have met the Lord Astor of Hever: My Lords, we are not unprepared. NATO target since coming to office and will do so to Our equipment programme represents a substantial the end of financial year 2016. NATO membership investment: some £163 billion over 10 years on equipment means equitable sharing of risks and responsibilities, and equipment support, ensuring that our Armed so it is a case of comparing Russia not to the UK but Forces retain a formidable range of cutting-edge to NATO, which spends 10 times more on defence capabilities, and the ability to project power across the than Russia. On my noble friend’s second question, globe, hence aircraft carriers. This investment is not the Defence Secretary decided that the Procurement only securing the best possible military capability; it is Minister should speak, given the conference’s focus on also helping to secure UK jobs and growth. relations between industry and government. Lord Dannatt (CB): My Lords, does the Minister accept that there is in this House quite a mood of Lord West of Spithead (Lab): My Lords, four destroyers concern about the level of defence expenditure? We and frigates were lost in the Falklands; eight were very have also seen the concern expressed in the media. We badly damaged. That is 12 destroyers and frigates. are aware that there is a Bill currently going through Today, if we lost 12 ships, we would have seven destroyers your Lordships’ House to place 0.7% of GDP into the and frigates protecting this great maritime nation. Our international development budget by law. Would the defence forces have been cut too far. Will the Minister Minister consider a government amendment to that pass on to his right honourable friend the Prime Minister Bill, or an addition to that Bill, to link that to 2% of the message that, bearing in mind the world situation, GDP for defence spending? with chaos in countries such as Iraq, Syria, Libya, Nigeria, Somalia and Ukraine, and risk of growing Lord Astor of Hever: My Lords, I note the concern, tension with Russia, we need to spend more money on but the defence budget this year is £33.8 billion. We defence and must not have a block to proper discussion have the second largest defence budget in the alliance— of defence in the lead-up to this election? behind the US—and certainly the largest in the European Union. The UK remains a global power, making the Lord Astor of Hever: My Lords, sufficient defence second biggest contribution to the campaign against spending is particularly required in light of recent events. ISIL and sending 750 military personnel into Sierra We need to be able to deal with multiple challenges Leone to help fight Ebola. and undertake a range of operations across the military spectrum, as well as maintain our standing commitments. Specialist Printing Equipment and This Government have consistently committed to spending Materials (Offences) Bill 2% of GDP on defence and 20% on equipment, and, Order of Commitment Discharged along with the US, we have been one of only two allies that currently meet the NATO guidelines. 3.08 pm Moved by Baroness Berridge Lord Howell of Guildford (Con): In their present mood, the Russians are likely to be using a whole That the order of commitment be discharged. variety of hybrid and cyber forms of warfare, as they have in the recent past in the Baltic area. Are we fully Baroness Berridge (Con): My Lords, I understand prepared to meet that? 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, Lord Astor of Hever: My Lords, NATO is working therefore, any noble Lords object, I beg to move that to tackle the challenge of hybrid attacks. There is little the order of commitment be discharged. new in the tactics and techniques of hybrid warfare, such as subversion and the use of proxy forces, but the Motion agreed. 1539 Consumer Rights Bill[LORDS] Consumer Rights Bill 1540

Consumer Rights Bill (a) accurate; and Commons Reason (b) prominently displayed before a buyer is able to complete the purchase of that ticket. (9) For the purposes of this section— 3.09 pm “secondary ticketing platform” means an internet-based Lords amendment facility for the resale of tickets to events in the United Kingdom of Great Britain and Northern 12: After Clause 32, insert the following new Clause— Ireland, regardless of the jurisdiction in which the “Secondary ticketing platforms owner of the service is registered; Secondary ticketing platforms: seller profiles and ticket information “secondary ticketing operator” means, in relation to a (1) Secondary ticketing operators must, on the website on secondary ticketing platform, the person (whether which tickets are offered for sale or transfer, provide incorporated or not) operating that secondary ticketing information concerning the sellers of tickets so that platform; sellers may be easily identified. “ticket” means anything which purports to be a ticket, (2) Information provided by virtue of subsection (1) must including any item, tangible or intangible, which include, but is not limited to— grants the holder the right to entry to an event; (a) the name of the seller; “event” means any sporting, music or cultural activity (b) if the seller is an undertaking, its registered number, taking place at a specified time and place for which jurisdiction of registration, registered office address, tickets are issued and required for entry or attendance; and if registered outside the United Kingdom, a “event organiser” means the person responsible for valid address for service; and organising and holding an event and receiving the (c) the VAT registration number of the seller, if revenue from the event; applicable. the term “undertaking” has the meanings given in (3) Information provided under subsection (1) must be— section 1161 of the Companies Act 2006 (meaning (a) accurate; and of “undertaking” and related expressions); (b) prominently displayed before a buyer is able to the terms “subsidiary undertaking” and “parent complete the purchase of the ticket. undertaking” have the meanings given in section 1162 (4) Secondary ticketing operators must disclose clearly and of the Companies Act 2006 (parent and subsidiary prominently where the seller of a ticket is— undertakings); (a) the secondary ticketing platform or a subsidiary the term “person” refers to a natural person or a body undertaking or parent undertaking of the corporate. secondary ticketing platform; (10) This section will come into force no later than six months (b) a person or persons employed or engaged by the after this Act is passed.” secondary ticketing platform; Commons Disagreement and Reason (c) other persons connected to employees, directors or The Commons disagree to Lords Amendment No. 12 for the shareholders of the secondary ticketing platform, following reason— or any of its subsidiary undertakings or parent undertakings; 12A: Because it would be inappropriate to require the provision of information relating to all categories of sellers when a ticket is (d) the event organiser or an agent acting on its behalf; resold, and because the amendment raises issues of compatibility (e) any other party connected to the organisation of with existing European Union law. the event. (5) Where a ticket is offered for sale or transfer through a secondary ticketing platform— Motion A (a) the seller must provide all relevant information Moved by Baroness Neville-Rolfe about the ticket; (b) the secondary ticketing operator must publish all That this House do not insist on its Amendment 12, relevant information about a ticket in a prominent to which the Commons have disagreed for their and clear manner; and Reason 12A, but do propose Amendments 12B (c) the secondary ticket operator must immediately to 12H in lieu— remove the ticket from sale when it is informed by 12B: After Clause 86, insert the following new Clause— the event organiser that the information provided is inaccurate or incomplete. “CHAPTER 3B (6) Information to be provided by the seller and published SECONDARY TICKETING by the secondary ticketing operator for the purposes of Duty to report criminal activity subsection (1) must include, without limitation— (1) This section applies where— (a) the face value of the ticket; (a) an operator of a secondary ticketing facility knows that a (b) any age or other restrictions on the user of the person has used or is using the facility in such a way that an ticket; offence has been or is being committed, and (c) the designated location of the ticket including the (b) the offence relates to the re-sale of a ticket for a recreational, stand, the block, the row and the seat number sporting or cultural event in the United Kingdom. of the ticket, where applicable; and (2) The operator must, as soon as the operator becomes aware (d) the ticket booking identification or reference number. that a person has used or is using the facility as mentioned in subsection (1), disclose the matters specified in subsection (3) (7) Where tickets are being resold in contravention of the to— terms and conditions agreed to by the original purchaser, this must be stated prominently by the secondary ticketing (a) an appropriate person, and platform at every stage of the purchasing process. (b) an organiser of the event (subject to subsection (5)). (8) Information provided by virtue of this section must be— (3) Those matters are— 1541 Consumer Rights Bill[24 FEBRUARY 2015] Consumer Rights Bill 1542

(a) the identity of the person mentioned in subsection (1), if (3) The Secretary of State must lay the report before this is known to the operator, and Parliament. (b) the fact that the operator knows that an offence has been (4) In this section “consumer protection measures” includes or is being committed as mentioned in that subsection. such legislation, rules of law, codes of practice and (4) The following are appropriate persons for the purposes of guidance as the Secretary of State considers relate to the this section— rights of consumers or the protection of their interests.” (a) a constable of a police force in England and Wales, 12E: Insert the following new Clause— (b) a constable of the police service of Scotland, and “Interpretation of this Chapter (c) a police officer within the meaning of the Police (Northern (1) In this Chapter— Ireland) Act 2000. “enforcement authority” has the meaning given by (5) This section does not require an operator to make a section (Enforcement of section (Duty to report disclosure to an organiser of an event if the operator has reasonable criminal activity))(3); grounds for believing that to do so will prejudice the investigation of any offence. “operator”, in relation to a secondary ticketing facility, means a person who— (6) References in this section to an offence are to an offence under the law of any part of the United Kingdom. (a) exercises control over the operation of the facility, and (7) This section applies only in relation to an offence of which (b) receives revenue from the facility, an operator becomes aware after the coming into force of this but this is subject to regulations under subsection (2); section.” “organiser”, in relation to an event, means a person who— 12C: Insert the following new Clause— (a) is responsible for organising or managing the event, “Enforcement of section (Duty to report criminal activity) or (1) A local weights and measures authority in Great Britain (b) receives some or all of the revenue from the event; may enforce the provisions of section (Duty to report “secondary ticketing facility” means an internet- criminal activity) in its area. based facility for the re-sale of tickets for (2) The Department of Enterprise, Trade and Investment recreational, sporting or cultural events. may enforce the provisions of section (Duty to report (2) The Secretary of State may by regulations provide that a criminal activity) in Northern Ireland. person of a description specified in the regulations is or (3) Each of the bodies referred to in subsections (1) and (2) is not to be treated for the purposes of section (Duty to is an “enforcement authority” for the purposes of this report criminal activity) as an operator in relation to a Chapter. secondary ticketing facility. (4) Where an enforcement authority is satisfied on the balance (3) Regulations under subsection (2)— of probabilities that a person has breached the duty in section (Duty to report criminal activity), the authority (a) are to be made by statutory instrument; may impose a financial penalty on the person in respect (b) may make different provision for different purposes; of that breach. (c) may include incidental, supplementary, consequential, (5) A local weights and measures authority in England and transitional, transitory or saving provision. Wales may impose a penalty under this section in respect (4) A statutory instrument containing regulations under of a breach which occurs in England and Wales but subsection (2) is not to be made unless a draft of the outside that authority’s area (as well as in respect of a instrument has been laid before, and approved by a breach which occurs within that area). resolution of, each House of Parliament.” (6) A local weights and measures authority in Scotland may impose a penalty under this section in respect of a breach 12F: Clause 91, page 48, line 18, at end insert— which occurs in Scotland but outside that authority’s “(1C) Chapter 3B of this Part comes into force at the end of area (as well as in respect of a breach which occurs within the period of two months beginning with the day on that area). which this Act is passed.” (7) Only one penalty under this section may be imposed on 12G: Schedule 5, page 72, line 8, at end insert— the same person in respect of the same breach. “section (Enforcement of section (Duty to report criminal (8) The amount of a financial penalty imposed under this activity))(1) or (2) of this Act.” section— 12H: After Schedule 8, insert the following new Schedule— (a) may be such as the enforcement authority imposing “SECONDARY TICKETING: FINANCIAL PENALTIES it determines, but Notice of intent (b) must not exceed £5,000. 1 (1) Before imposing a financial penalty on a person for a (9) Schedule (Secondary ticketing: financial penalties) breach of the duty imposed by section (Duty to report criminal (procedure for and appeals against financial penalties) activity), an enforcement authority must serve a notice on the has effect.” person of its proposal to do so (a “notice of intent”). 12D: Insert the following new Clause— (2) The notice of intent must be served before the end of the “Duty to review measures relating to secondary ticketing period of 6 months beginning with the first day on which the (1) The Secretary of State must— authority has sufficient evidence of the person’s breach, subject to sub-paragraph (3). (a) review, or arrange for a review of, consumer protection measures applying to the re-sale of tickets for (3) If the person is in breach of the duty on that day, and the recreational, sporting or cultural events in the United breach continues beyond the end of that day, the notice of intent Kingdom through secondary ticketing facilities, may be served— (a) at any time when the breach is continuing, or (b) prepare a report on the outcome of the review or arrange for such a report to be prepared, and (b) within the period of 6 months beginning with the last day on which the breach occurs. (c) publish that report. (4) The notice of intent must set out— (2) The report must be published before the end of the period of 12 months beginning with the day on which (a) the amount of the proposed financial penalty, this section comes into force. (b) the reasons for proposing to impose the penalty, and 1543 Consumer Rights Bill[LORDS] Consumer Rights Bill 1544

(c) information about the right to make representations under (4) In Northern Ireland the Department of Enterprise, Trade paragraph 2. and Investment may recover the penalty or part on the order of a Right to make representations county court as if it were payable under an order of that court. (5) In proceedings before the court for the recovery of a 2 A person on whom a notice of intent is served may, within financial penalty or part of a financial penalty, a certificate which the period of 28 days beginning with the day after that on which is— the notice was sent, make written representations to the enforcement authority about the proposal to impose a financial penalty on the (a) signed by the chief finance officer of the local weights and person. measures authority which imposed the penalty or (as the case may be) issued by the Department of Enterprise, Trade and Final notice Investment, and 3 (1) After the end of the period mentioned in paragraph 2 the (b) states that the amount due has not been received by a date enforcement authority must— specified in the certificate, (a) decide whether to impose a financial penalty on the person, is conclusive evidence of that fact. and (6) A certificate to that effect and purporting to be so signed (b) if it decides to do so, decide the amount of the penalty. or issued is to be treated as being so signed or issued unless the (2) If the authority decides to impose a financial penalty on contrary is proved. the person, it must serve a notice on the person (a “final notice”) (7) A local weights and measures authority may use the imposing that penalty. proceeds of a financial penalty for the purposes of any of its (3) The final notice must require the penalty to be paid within functions (whether or not the function is expressed to be a the period of 28 days beginning with the day after that on which function of a local weights and measures authority). the notice was sent. (8) In this paragraph “chief finance officer” has the same meaning as in section 5 of the Local Government and Housing (4) The final notice must set out— Act 1989.” (a) the amount of the financial penalty, (b) the reasons for imposing the penalty, The Parliamentary Under-Secretary of State, Department (c) information about how to pay the penalty, for Business, Innovation and Skills (Baroness Neville-Rolfe) (d) the period for payment of the penalty, (Con): My Lords, we are coming to the final stages of (e) information about rights of appeal, and the Consumer Rights Bill—an important reform of (f) the consequences of failure to comply with the notice. consumer law. I am looking forward to it receiving Royal Assent so that consumers have new, simplified Withdrawal or amendment of notice rights when they buy goods, services or digital content 4 (1) The enforcement authority may at any time— and businesses can plan with certainty for the legislation (a) withdraw a notice of intent or final notice, or to come into force. (b) reduce the amount specified in a notice of intent or final The one remaining issue to resolve is the proposals notice. for the secondary ticketing market. I would like to (2) The power in sub-paragraph (1) is to be exercised by giving start by thanking those who have engaged in a really notice in writing to the person on whom the notice was served. constructive dialogue with us over the past few weeks: Appeals the noble Lord, Lord Moynihan, and his team, other 5 (1) A person on whom a final notice is served may appeal noble Lords, clerks of the House and the long-suffering against that notice— departmental teams, both ministerial and official. It (a) in England and Wales and Scotland, to the First-tier has been a long two months since we last debated the Tribunal; issue and I thought it would be helpful to give a (b) in Northern Ireland, to a county court. summary of the issue and the Government’s proposals. (2) The grounds for an appeal under this paragraph are that— Before I start, it may be helpful to make clear to noble Lords that I intend to support the amendment tabled (a) the decision to impose a financial penalty was based on an error of fact, by the noble Lord, Lord Moynihan, to facilitate the smooth passage of this important Bill. (b) the decision was wrong in law, (c) the amount of the financial penalty is unreasonable, or The amendment to the Bill made by noble Lords at Report stage demonstrated the House’s concern about (d) the decision was unreasonable for any other reason. some aspects of the online secondary ticketing market. (3) If a person appeals under this paragraph, the final notice is A range of issues were raised. The noble Lords, Lord suspended until the appeal is finally determined or withdrawn. Moynihan and Lord Grade, and others drew our (4) On an appeal under this paragraph the First-tier Tribunal attention to the level of fraud in the market, which or the court may quash, confirm or vary the final notice. was suggested by the National Fraud Authority to be (5) The final notice may not be varied under sub-paragraph (4) £1.5 billion per year. The Baroness, Lady Grey-Thompson, so as to make it impose a financial penalty of more than £5,000. and other noble Lords gave heart-wrenching examples Recovery of financial penalty of fans arriving at a venue looking forward to a 6 (1) This paragraph applies if a person does not pay the wonderful evening only to be turned away because whole or any part of a financial penalty which, in accordance they had bought counterfeit tickets. They argued that with this Schedule, the person is liable to pay. the current rules in place to protect consumers were (2) In England and Wales the local weights and measures not effective enough. authority which imposed the financial penalty may recover the penalty or part on the order of the county court as if it were The noble Baroness, Lady Heyhoe Flint, the noble payable under an order of that court. Lords, Lord Clement-Jones and Lord Deben, and (3) In Scotland the penalty may be enforced in the same others had done their own research into tickets available manner as an extract registered decree arbitral bearing a warrant on the secondary market and expressed concern about for execution issued by the sheriff court of any sheriffdom in the lack of transparency. The noble Lords, Lord Holmes Scotland. and Lord Moynihan, and others were concerned that 1545 Consumer Rights Bill[24 FEBRUARY 2015] Consumer Rights Bill 1546 alleged profiteering might be taking funding away the event organiser. Fraud is an underreported crime, from sports or cultural activity and reducing opportunities so it is crucial to encourage those who are aware for genuine fans who could not afford high prices. of fraud to report it so that law enforcement can be The noble Lord, Lord Stevenson, the noble Baroness, improved. This is a crucial step in eliminating some of Lady Hayter, and the noble Lord, Lord Holmes, have the fraud that the National Fraud Authority found in been especially keen to resolve this issue as part of the the online ticketing market. The requirement mirrors Consumer Rights Bill, in order to allow fans to access regimes such as anti-money laundering rules and product events and have similar protection to that used for the legislation, where those who become aware of an issue London 2012 Olympics. must report it to the police and the relevant organiser. Of course, many of those who spoke, including the Those are the two elements of the government noble Lords, Lord Stoneham and Lord Borwick, the amendments. I now turn to the amendment of the noble Viscount, Lord Younger, and the noble Baroness, noble Lord, Lord Moynihan. In general this amendment Lady Wilcox, agreed with me about the importance of balances the need to introduce transparency while a thriving secondary ticket market and the need to allowing the secondary market to continue. Let me ensure that the market remains open and competitive. again stress that we want the secondary market to I think that that sentiment is shared more widely continue and we accept this amendment on the basis across the House. The secondary marketplaces can that it allows this. Our original instinct was that this provide a much safer environment for people to buy market would flourish best without regulation. However, and sell tickets than other methods. If we can further I have been persuaded to agree to some light-touch increase confidence in the service that they can offer, I regulation. would hope to see their business flourish and grow. The amendment of the noble Lord, Lord Moynihan, The Government have been working hard to address has two parts. The first part deals with transparency. the issues in the market. They are not easy issues, and This clause requires those selling tickets, and the we have been wary of unintended consequences at marketplace where the ticket is resold, to provide the every turn. We have had to make some very difficult buyer with some basic information: the face value of decisions, based on an uncomfortable evidence base. the ticket; the seat number, where applicable; and any We have given the matter much attention and we now restrictions on the person who can use that ticket. need to reach a conclusion. Importantly, “buyer” is defined in the amendment as The Government have tabled amendments to address the person who buys the ticket—a change made yesterday some of these issues. The noble Lord, Lord Moynihan, by the noble Lord, Lord Moynihan. This will mean has included our provisions in the most recent draft of that consumers have enough information before they his amendment. Our amendments are in two parts. buy to make an informed choice and the right choice First, we propose a statutory review of the secondary for them. ticketing market. This will be a full review of consumer In addition, where the secondary market event protection measures in the market. It will be independently organiser or certain other connected person—such as led and it will be presented to Parliament. It will start the parent company—is selling the ticket, rather than this summer and must report within a year of the start a simple consumer, they must continue to disclose date. their status as such. We need time to consult stakeholders and the individual I should make an important point here. The leading the review before deciding on the detailed terms amendment which the other place rightly rejected of reference and I know that noble Lords will want to included a requirement for individuals to give their express opinions on the matter. However, I can say name online and provide other unique identifiers, that the review will broadly cover the following areas. bringing with it the risk of identity theft. These provisions First, there will be an assessment of the current law do not appear in the revised amendment of the noble and the changes we are making today. Noble Lords Lord, Lord Moynihan. have rightly asked which laws apply to online ticket As we have discussed at length in the House, sales, and how effectively they are enforced. Secondly, transparency in this market could have awkward it will cover business models in the market. Speakers implications. Some comments made during our discussions in our debates have asked whether the market is dominated have understandably raised concerns that event organisers by consumer sellers or by traders; whether those in the would use the information provided to cancel tickets market are seeking profits or mainly seeking to recoup which are put up for resale, or blacklist the seller, their original costs; and whether national interests are preventing them from buying tickets in the future. supported. Thirdly, on access to tickets, I fully understand This is definitely not what should happen. Our reading how frustrating it can be for tickets to sell out suspiciously of these provisions, and the basis on which we accept quickly after release. The review will look at this, them, is that cancelling tickets and blacklisting sellers including the possibility that event organisers might is not fair or the right way to treat consumers. deliberately restrict access to tickets to inflate prices I am therefore very pleased to see safeguards for artificially. sellers of tickets that will give consumers confidence to use the market. An event organiser will not be able 3.15 pm to cancel a ticket or blacklist a seller merely because a Alongside the review, the government amendments ticket is resold or offered for resale unless there is a introduce a mandatory reporting requirement on the term in the original sales contract that allows for this online ticketing marketplaces. Where they are aware of and, more importantly, the term is fair. It is our firm criminal activity they must report it to the police and view that terms which prohibit resale are not always 1547 Consumer Rights Bill[LORDS] Consumer Rights Bill 1548

[BARONESS NEVILLE-ROLFE] (c) the number, letter or other distinguishing mark of the row fair and therefore will not be binding on the consumer. in which the seat is located, and This includes terms which seek to prohibit resale at or (d) the number, letter or other distinguishing mark of the seat. above a particular price. These too are not always fair (5) The reference in subsection (3)(c) to the face value of the and should not be thought of as binding. ticket is to the amount stated on the ticket as its price. I am glad that at the end of the day we have found a (6) The seller and each operator of the facility must ensure compromise in the drafting of this clause. It will allow that the buyer is given the information specified in subsection (7), where the seller is— the secondary ticket market to continue to flourish. Fans who cannot attend an event will be able to resell (a) an operator of the secondary ticketing facility, their tickets. This will ensure that we have a lively and (b) a person who is a parent undertaking or a subsidiary active resale market with numerous sellers competing undertaking in relation to an operator of the secondary ticketing facility, for buyers, which will help to keep prices down. (c) a person who is employed or engaged by an operator of the There will of course be guidance on the new provision secondary ticketing facility, before it comes into force. Let me reassure the House (d) a person who is acting on behalf of a person within that some guidance already exists and that enforcers paragraph (c), or are taking action in this sector, using a range of (e) an organiser of the event or a person acting on behalf of an legislation. In that context, I would like to inform the organiser of the event. House that the CMA has been conducting work into (7) That information is a statement that the seller of the ticket transparency in the secondary ticketing sector, including is a person within subsection (6) which specifies the ground on into some of the issues covered by these amendments. which the seller falls within that subsection. I am glad to say that it has already secured changes (8) Information required by this section to be given to the from the largest secondary ticketing platforms and buyer must be given— expects to make an announcement in relation to this in (a) in a clear and comprehensible manner, and the coming weeks. (b) before the buyer is bound by the contract for the sale of the These amendments address many of the points that ticket. your Lordships have raised in this House. Many more (9) This section applies in relation to the re-sale of a ticket such points will be considered in the review. I therefore through a secondary ticketing facility only if the ticket is first beg to move. offered for re-sale through the facility after the coming into force of this section.” 12K: Insert the following new Clause— Motion A1 “Prohibition on cancellation or blacklisting (1) This section applies where a person (“the seller”) re-sells, Moved by Lord Moynihan or offers for re- sale, a ticket for a recreational, sporting or cultural event in the United Kingdom through a secondary ticketing facility. As an amendment to Motion A, leave out (2) An organiser of the event must not cancel the ticket merely “Amendments12B to 12H”and insert “Amendments12J because the seller has re-sold the ticket or offered it for re-sale to 12S”— unless— (a) a term of the original contract for the sale of the ticket— 12J: After Clause 86, insert the following new Clause— (i) provided for its cancellation if it was re-sold by the buyer “CHAPTER 3B under that contract, SECONDARY TICKETING (ii) provided for its cancellation if it was offered for re-sale by Duty to provide information about tickets that buyer, or (1) This section applies where a person (“the seller”) re-sells a (iii) provided as mentioned in sub-paragraph (i) and (ii), and ticket for a recreational, sporting or cultural event in the United (b) that term was not unfair for the purposes of Part 2 (unfair Kingdom through a secondary ticketing facility. terms). (2) The seller and each operator of the facility must ensure (3) An organiser of the event must not blacklist the seller that the person who buys the ticket (“the buyer”) is given the merely because the seller has re-sold the ticket or offered it for information specified in subsection (3), where this is applicable to re-sale unless— the ticket. (a) a term of the original contract for the sale of the ticket— (3) That information is— (i) provided for the blacklisting of the buyer under that (a) where the ticket is for a particular seat or standing area at contract if it was re-sold by that buyer, the venue for the event, the information necessary to enable the buyer to identify that seat or standing area, (ii) provided for the blacklisting of that buyer if it was offered for re-sale by that buyer, or (b) information about any restriction which limits use of the ticket to persons of a particular description, and (iii) provided as mentioned in sub-paragraph (i) and (ii), and (c) the face value of the ticket. (b) that term was not unfair for the purposes of Part 2 (unfair (4) The reference in subsection (3)(a) to information necessary terms). to enable the buyer to identify a seat or standing area at a venue (4) In subsections (2) and (3) “the original contract” means the includes, so far as applicable— contract for the sale of the ticket by an organiser of the event to a (a) the name of the area in the venue in which the seat or person other than an organiser of the event. standing area is located (for example the name of the stand in (5) For the purposes of this section an organiser of an event which it is located), cancels a ticket if the organiser takes steps which result in the (b) information necessary to enable the buyer to identify the holder for the time being of the ticket no longer being entitled to part of the area in the venue in which the seat or standing area is attend that event. located (for example the block of seats in which the seat is (6) For the purposes of this section an organiser of an event located), blacklists a person if the organiser takes steps— 1549 Consumer Rights Bill[24 FEBRUARY 2015] Consumer Rights Bill 1550

(a) to prevent the person from acquiring a ticket for a recreational, (ii) reliance on information supplied to P by another person, sporting or cultural event in the United Kingdom, or (iii) the act or default of another person, (b) to restrict the person’s opportunity to acquire such a ticket. (iv) an accident, or (7) Part 2 (unfair terms) may apply to a term of a contract (v) another cause beyond P’s control, and which, apart from that Part, would permit the cancellation of a ticket for a recreational, sporting or cultural event in the United (b) P took all reasonable precautions and exercised all due Kingdom, or the blacklisting of the seller of such a ticket, in diligence to avoid the breach. circumstances other than those mentioned in subsection (2). (6) A local weights and measures authority in England and (8) Before the coming into force of Part 2, references to that Wales may impose a penalty under this section in respect of a Part in this section are to be read as references to the Unfair breach which occurs in England and Wales but outside that Terms in Consumer Contracts Regulations 1999 (SI 1999/2083). authority’s area (as well as in respect of a breach which occurs within that area). (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 (7) A local weights and measures authority in Scotland may section; but the prohibition in this section applies only to things 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 done after its coming into force.” respect of a breach which occurs within that area). 12L: Insert the following new Clause— (8) Only one penalty under this section may be imposed on the “Duty to report criminal activity same person in respect of the same breach. (1) This section applies where— (9) The amount of a financial penalty imposed under this section— (a) an operator of a secondary ticketing facility knows that a (a) may be such as the enforcement authority imposing it person has used or is using the facility in such a way that an determines, but offence has been or is being committed, and (b) must not exceed £5,000. (b) the offence relates to the re-sale of a ticket for a recreational, (10) Schedule (Secondary ticketing: financial penalties) (procedure sporting or cultural event in the United Kingdom. for and appeals against financial penalties) has effect. (2) The operator must, as soon as the operator becomes aware (11) References in this section to this Chapter do not include that a person has used or is using the facility as mentioned in section (Duty to review measures relating to secondary ticketing).” subsection (1), disclose the matters specified in subsection (3) to— (a) an appropriate person, and 12N:Insert the following new Clause— (b) an organiser of the event (subject to subsection (5)). “Duty to review measures relating to secondary ticketing (3) Those matters are— (1) The Secretary of State must— (a) the identity of the person mentioned in subsection (1), if (a) review, or arrange for a review of, consumer protection this is known to the operator, and measures applying to the re-sale of tickets for recreational, sporting or cultural events in the United Kingdom through secondary (b) the fact that the operator knows that an offence has been ticketing facilities, or is being committed as mentioned in that subsection. (b) prepare a report on the outcome of the review or arrange (4) The following are appropriate persons for the purposes of for such a report to be prepared, and this section— (c) publish that report. (a) a constable of a police force in England and Wales, (2) The report must be published before the end of the period (b) a constable of the police service of Scotland, and of 12 months beginning with the day on which this section comes (c) a police officer within the meaning of the Police (Northern into force. Ireland) Act 2000. (3) The Secretary of State must lay the report before Parliament. (5) This section does not require an operator to make a (4) In this section “consumer protection measures” includes disclosure to an organiser of an event if the operator has reasonable such legislation, rules of law, codes of practice and guidance as grounds for believing that to do so will prejudice the investigation the Secretary of State considers relate to the rights of consumers of any offence. or the protection of their interests.” (6) References in this section to an offence are to an offence under the law of any part of the United Kingdom. 12P: Insert the following new Clause— (7) This section applies only in relation to an offence of which “Interpretation of this Chapter an operator becomes aware after the coming into force of this (1) In this Chapter— section.” “enforcement authority” has the meaning given by section 12M: Insert the following new Clause— (Enforcement of this Chapter)(3); “Enforcement of this Chapter “operator”, in relation to a secondary ticketing facility, means (1) A local weights and measures authority in Great Britain a person who— may enforce the provisions of this Chapter in its area. (a) exercises control over the operation of the facility, and (2) The Department of Enterprise, Trade and Investment may (b) receives revenue from the facility, enforce the provisions of this Chapter in Northern Ireland. but this is subject to regulations under subsection (2); “organiser”, (3) Each of the bodies referred to in subsections (1) and (2) is in relation to an event, means a person who— an “enforcement authority” for the purposes of this Chapter. (a) is responsible for organising or managing the event, or (4) Where an enforcement authority is satisfied on the balance (b) receives some or all of the revenue from the event; of probabilities that a person has breached a duty or prohibition imposed by this Chapter, the authority may impose a financial “parent undertaking” has the meaning given by section 1162 penalty on the person in respect of that breach. of the Companies Act 2006; (5) But in the case of a breach of a duty in section (Duty to “secondary ticketing facility” means an internet-based facility provide information about tickets) or a prohibition in section for the re-sale of tickets for recreational, sporting or cultural (Prohibition on cancellation or blacklisting) an enforcement authority events; may not impose a financial penalty on a person (“P”) if the “subsidiary undertaking” has the meaning given by section 1162 authority is satisfied on the balance of probabilities that— of the Companies Act 2006; (a) the breach was due to— “undertaking” has the meaning given by section 1162 of the (i) a mistake, Companies Act 2006. 1551 Consumer Rights Bill[LORDS] Consumer Rights Bill 1552

(2) The Secretary of State may by regulations provide that a (d) the period for payment of the penalty, person of a description specified in the regulations is or is not to (e) information about rights of appeal, and be treated for the purposes of this Chapter as an operator in relation to a secondary ticketing facility. (f) the consequences of failure to comply with the notice. (3) Regulations under subsection (2)— Withdrawal or amendment of notice (a) are to be made by statutory instrument; 4 (1) The enforcement authority may at any time— (b) may make different provision for different purposes; (a) withdraw a notice of intent or final notice, or (c) may include incidental, supplementary, consequential, (b) reduce the amount specified in a notice of intent or final transitional, transitory or saving provision. notice. (4) A statutory instrument containing regulations under (2) The power in sub-paragraph (1) is to be exercised by giving subsection (2) is not to be made unless a draft of the instrument notice in writing to the person on whom the notice was served. has been laid before, and approved by a resolution of, each House Appeals of Parliament.” 5 (1) A person on whom a final notice is served may appeal 12Q: Clause 91, page 48, line 18, at end insert— against that notice— “(1C) Chapter 3B of this Part comes into force at the end of (a) in England and Wales and Scotland, to the First-tier the period of two months beginning with the day on Tribunal; which this Act is passed.” (b) in Northern Ireland, to a county court. 12R: Schedule 5, page 72, line 8, at end insert— (2) The grounds for an appeal under this paragraph are that— “section (Enforcement of this Chapter)(1) or (2) of this (a) the decision to impose a financial penalty was based on an Act.” error of fact, 12S: After Schedule 8, insert the following new Schedule— (b) the decision was wrong in law, “SECONDARY TICKETING: FINANCIAL PENALTIES (c) the amount of the financial penalty is unreasonable, or Notice of intent (d) the decision was unreasonable for any other reason. 1 (1) Before imposing a financial penalty on a person for a breach of a duty or prohibition imposed by Chapter 3B of Part 3, (3) If a person appeals under this paragraph, the final notice is an enforcement authority must serve a notice on the person of its suspended until the appeal is finally determined or withdrawn. proposal to do so (a “notice of intent”). (4) On an appeal under this paragraph the First-tier Tribunal (2) The notice of intent must be served before the end of the or the court may quash, confirm or vary the final notice. period of 6 months beginning with the first day on which the (5) The final notice may not be varied under sub-paragraph (4) authority has sufficient evidence of the person’s breach, subject to so as to make it impose a financial penalty of more than £5,000. sub-paragraph (3). Recovery of financial penalty (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 6 (1) This paragraph applies if a person does not pay the notice of intent may be served— whole or any part of a financial penalty which, in accordance with this Schedule, the person is liable to pay. (a) at any time when the breach is continuing, or (b) within the period of 6 months beginning with the last day (2) In England and Wales the local weights and measures on which the breach occurs. authority which imposed the financial penalty may recover the penalty or part on the order of the county court as if it were (4) The notice of intent must set out— payable under an order of that court. (a) the amount of the proposed financial penalty, (3) In Scotland the penalty may be enforced in the same (b) the reasons for proposing to impose the penalty, and manner as an extract registered decree arbitral bearing a warrant (c) information about the right to make representations under for execution issued by the sheriff court of any sheriffdom in paragraph 2. Scotland. Right to make representations (4) In Northern Ireland the Department of Enterprise, Trade and Investment may recover the penalty or part on the order of a 2 A person on whom a notice of intent is served may, within county court as if it were payable under an order of that court. the period of 28 days beginning with the day after that on which the notice was sent, make written representations to the enforcement (5) In proceedings before the court for the recovery of a authority about the proposal to impose a financial penalty on the financial penalty or part of a financial penalty, a certificate which person. is— Final notice (a) signed by the chief finance officer of the local weights and 3 (1) After the end of the period mentioned in paragraph 2 the measures authority which imposed the penalty or (as the case enforcement authority must— may be) issued by the Department of Enterprise, Trade and Investment, and (a) decide whether to impose a financial penalty on the person, and (b) states that the amount due has not been received by a date specified in the certificate, (b) if it decides to do so, decide the amount of the penalty. (2) If the authority decides to impose a financial penalty on is conclusive evidence of that fact. the person, it must serve a notice on the person (a “final notice”) (6) A certificate to that effect and purporting to be so signed imposing that penalty. or issued is to be treated as being so signed or issued unless the (3) The final notice must require the penalty to be paid within contrary is proved. the period of 28 days beginning with the day after that on which (7) A local weights and measures authority may use the the notice was sent. proceeds of a financial penalty for the purposes of any of its (4) The final notice must set out— functions (whether or not the function is expressed to be a function of a local weights and measures authority). (a) the amount of the financial penalty, (8) In this paragraph “chief finance officer” has the same (b) the reasons for imposing the penalty, meaning as in section 5 of the Local Government and Housing (c) information about how to pay the penalty, Act 1989.” 1553 Consumer Rights Bill[24 FEBRUARY 2015] Consumer Rights Bill 1554

Lord Moynihan (Con): My Lords, I am very grateful place—not after the purchase has taken place. That is to my noble friend the Minister for her careful in subsection (8)(b) of the proposed new clause. It is consideration of the points that we made when we an exceptionally important point for the secondary tabled the original amendment. We did so because we ticket operators to recognise when they implement this recognised that, based on the Government’s own figures, legislation, as I hope they do. the level of online ticket fraud was of the order of The second point is that for too long the terms and £1.5 billion in 2012. That was of course a momentous conditions set by the original event organisers have year but that figure of £1.5 billion does not include the not taken full legal precedence. If you are the event Olympic or Paralympic Games because, as your Lordships organiser and you are putting on Glastonbury, for will recall, the opportunity was taken both in this example, and request pre-registration to ensure that House and in another place to criminalise the secondary the person who is buying the ticket is pre-registered market for that specific event. It is important to recognise and, in the case of Glastonbury, that there is a photo—that that that figure of £1.5 billion was one where online is what the organisers want—it must be right that ticket fraud occurred when victims purchased tickets those terms and conditions take precedence. They do for an event—such as music, sport, theatre or a so because Glastonbury does not want touting. They performance—which did not materialise. do so because in many cases there are law and order In the many hours of negotiation and debate, we have issues. It should be right for theatres to decide whether sought to address the causes of our concerns: that they want children under the age of four, for example, there is a very significant volume of counterfeit and to come to a performance when they might possibly invalid tickets sold to the public through the secondary disturb other people’s enjoyment of the evening. Those sites. As 85% to 90% of resale now takes place through terms and conditions, however, must meet the fairness the four platforms, which are owned by three companies, test and they must be legal. That is on the face of the the overwhelming majority of these invalid tickets Motion. That is vital, so that there is no avoidance of come through those sites. The biggest problem in this doubt: the action taken by event organisers in setting day and age is not the old-fashioned tout. It is the terms and conditions must meet the fairness test and wholesale harvesting of tickets by touts from their must be legal. computers, with specialised software. They are incentivised The two Motions that were originally tabled by the by these four platforms, not least through power seller Minister covered a duty to report criminal activity and programmes. This harvesting is now out of control the review. I am most grateful to her for her consideration and volumes of tickets are acquired on such a scale of the many aspects of these tickets and the information that it is proving difficult, if not impossible, for genuine that we wish to see provided on them. The matter has music and sports fans to purchase a ticket at face value been considered in full by her team and, indeed, by for high-demand events. In the time when you are her. I give one case in point. The movers of the typing in your name, address and details, the specialised original amendment were very keen to see a booking software is sweeping the volume of tickets available to reference on the ticket. This would enable an individual the general public and within a matter of minutes, to check with the event organisers whether that ticket sometimes, those tickets are appearing on the secondary was valid. Apparently, neither a booking reference websites. The sheer number of tickets for high-demand number nor a ticket ID number falls within the “main events going on to the platforms is sufficient to facilitate characteristics” of a ticket and, therefore, under EU price manipulation, to the detriment of the public. law, we cannot require that information to be provided. Against that background, I would like to address a There are different legal opinions on that. There are number of points that my noble friend the Minister many lawyers who believe that an essential characteristic has made. I say straight away that it is really important —indeed, a main characteristic—of a ticket is its original that anyone considering the position we are taking on ID number. We recognise, however, that government this Motion recognises that there has been universal advice was that this is not the case. This is a compromise support throughout the proceedings in your Lordships’ amendment and the result of many hours of negotiation. House for a secondary market to thrive. But that I hope that, when we come to the review, that issue will secondary market needs to be effective; it needs to be be looked at in more detail. transparent and accountable. That is the really important It is also important that, while we are putting the point. To use the words of my noble friend the Minister, responsibility on the secondary market through this we are seeking light-touch regulation to ensure that we Motion to take a whole series of steps, at the same can absolutely guarantee to individuals who want to time we recognise that the event organisers need to go online the right level of information, from which reflect during the review on how they can improve the they can then make a decision to purchase. opportunities for resale. Resale is a difficult and sensitive In the past, we have not had the legal support for subject, but to have good relationships with your consumers to have that information available. As the consumers and your fans, looking at resale under Minister rightly points out, the four key elements are certain circumstances is a very important priority for information, face value, seat number and row number. the event organisers. Wimbledon’s policy on non- It is absolutely right and proper that someone who is transferable tickets is that, provided that the ticket is disabled or in a wheelchair knows that they can have returned before the start of play, the buyer gets a full access to that seat before they make that purchase. At refund. The ECB allows face-value resale to family the moment, that is not the case. Following this legislation, and friends; it will not cancel face-value on the secondary if your Lordships agree to the Motion in my name, all market. The Oval and Lord’s offer full refunds and those details and information will be available before ticket exchanges. The 2015 Rugby World Cup will have a decision is made and before the purchase takes a full ticket exchange. So event organisers are very 1555 Consumer Rights Bill[LORDS] Consumer Rights Bill 1556

[LORD MOYNIHAN] the true fans—first. I have mentioned that I very much much aware of the importance of keeping good hope that the review will explore with the European relationships with their fans and recognising that Commission what precisely constitutes a main sometimes it is not possible to go to an event, maybe characteristic of a ticket; it is only recently that the due to a family crisis, and that where possible resale directive has been published and implemented, and we policies should be put in place. I very much hope that, need clarity on the issue. The review will give us the during the process of the very important review that opportunity to look into it in detail. Above all, there the Minister has announced today, the question of are two case studies within the timeframe of the resale will also be considered in detail. proposed review: we will have the chance of reviewing It is right that when the Secretary of State at the the Ashes test and the Rugby World Cup. DCMS, who has policy responsibility for this subject, For those who are writing, or about to write, manifestos, appoints the chair of the review, he considers in detail it would be worth while reflecting on a Populus opinion the points raised in both Houses before proposing the poll on this subject. There has been a lively campaign final terms of reference. It has become clear from your of emails to many of your Lordships on the unpopularity Lordships’ interventions on all sides of the House, of these measures. I can bring the House up to date: in and from the excellent work of the all-party group on that Populus poll, the question was put whether there this subject led by Sharon Hodgson and Mike Weatherley, should be more government regulation of ticket sales, that a thorough investigation of the operation of the and 68% of the public agreed while 8% disagreed. secondary market is essential. We need to understand Then of course there were the categories of “somewhat why that £1.5 billion of fraud has taken place and to disagree”, “strongly disagree”and so on. On the question address it; we need to look carefully at the business of whether ticket sellers should be made to disclose models employed. the ticket row and seat number—basic information that any consumer should have before making a decision 3.30 pm to purchase—76% of the public supported the intent I also hope that the review will research the impact of the Motion that we are laying before the House of touting on fans and events and the effect of excessive today, and a mere 3% disagreed. If noble Lords want a profiteering on the objectives set for event organisers. populist measure that is also the right one for consumers This is not just about sport and the arts; it is about the in their manifestos, whichever party they represent, I church, charities and events that reach out to the cannot imagine a stronger level of public support than public, where anyone organising that event wants to they would find for the measures that we have worked ensure that the information is available to them. We so hard for. My noble friend Lady Heyhoe Flint has need to research the impact on those individuals and been second to no one in the amount of work that she what they may get if they have a counterfeit ticket. At has put in to secure the consensual agreement that we the moment, if you have a counterfeit ticket, after have reached with the Government today. much deliberation you may get back from the secondary site what you paid for it—but you have missed the It will not have escaped noble Lords’ attention that experience. Youmay have travelled down from Glasgow the Secretary of State in the Department of Culture with your family. Ultimately, many of the people who Media and Sport has clear views on this subject, which are reimbursed are reimbursed by their credit card I very much respect. I want to thank him and his team companies, not by the secondary market. These are for their engagement in the lengthy negotiations and issues that need to be looked at carefully in the review. their courtesy in staying heavily involved. When I was Member of Parliament for Lewisham East, as one of Above all, we need to look at how technology is the only two Conservatives in the history of that developing—how the website is being used to maximise seat—the other being Christopher Chataway, whose the opportunity for touts to sweep tickets and then sell passion for sport knew no bounds—Sajid Javid was an them at a high profit. We need to look at the effectiveness impressive officer of that association, before he embarked or otherwise of existing legislation and the ability of on his successful career both inside and outside Parliament. enforcement to tackle international platforms, working I consider him a friend and I think very highly of him. offshore in this sector. In this context, it is international I thank him again and wish him well with implementing co-operation by law enforcement officers and legislators in full the statutory review. that is important, as in the gambling market, and the co-operation undertaken in this context during the I have no doubt that the measures taken today will London Olympic and Paralympic Games would be a in due course strengthen the secondary market, address useful case study. the excessive profiteering which has been the product I hope that the review will look at the need for better of an unregulated, web-driven market, and consequently enforcement of the Consumer Contracts (Information, enable the Secretary of State to strengthen further his Cancellation and Additional Charges) Regulations 2013, support for this industry. In the mean time, my thanks particularly in defining what constitutes a trader. We go out to the BIS team. As I have said, there are strong need to look at what non-legislative measures can be views on both sides of this debate and it is not without taken by event organisers to prevent the unauthorised humility that, having recently seen the wonderful film resale of tickets. I hope that we will look at model “Testament of Youth”, I am reminded of the passage terms and conditions for ticket sales, and then ticket in Vera Brittain’s book Testament of Friendship,in sale arrangements by primary event organisers and which an epitaph on a gravestone erected by a certain the relationship between event organisers, the contractual Major Milner to his wife Dorothy in 1826 reads: relationships with primary organisers and ways of “What faults you’ve seen in me, strive to avoid. Search your putting the interests of the consumers—in this case, own hearts, and you’ll be well employed”. 1557 Consumer Rights Bill[24 FEBRUARY 2015] Consumer Rights Bill 1558

On this occasion, the faults that they have seen in me measures are good news for fans looking to buy tickets, have dominated proceedings. They have been patient, and do not impose an unfair burden on sellers. It is professional, calm and understanding during two months also good to see that Ministers will support measures of almost daily negotiation, either on the phone or in which uphold fair and reasonable ticket terms and person, including every single day of last week’s recess. conditions. Ticket terms and conditions must be fair I offer my special thanks to them and to the Public Bill in law, and the new Motion recognises this. Office, and to Ashley Lumsden, the special adviser Just as a reminder, serious money is involved in from BIS, who has commanded the highest respect ticket touting. A single Rugby World Cup final ticket from everyone who has been involved in these negotiations is on sale on StubHub today for £59,000. No tax is for his indefatigable work. being paid; the seller is anonymous, and may even This Motion is only the beginning. I look to the work for the secondary platform; and the buyer has no Government, the secondary market and primary event guarantee about where the seat is. These amendments organisers to make sure that it works. In so doing, I will introduce some much needed transparency, and congratulate my noble friend the Minister on securing then we will also have the statutory review, to which what I hope will be the safe passage of this excellent my noble friend referred, to ensure that the market is Bill. I beg to move. operating fairly. I welcome that the review of the law and its effectiveness Lord Clement-Jones (LD): My Lords, as a signatory and what can be done to improve it, in particular as to the original amendment and a member of the regards enforcement, is enshrined in today’s amendments. All-Party Group on Ticket Abuse, I very much support There are a number of questions for review, which my Motion A1 and I am absolutely delighted that the noble friend went through, such as: will this stop Government do as well. To say the least, this has been speculative sales? Rugby World Cup tickets were on a cliff-hanger. I hope that my noble friend Lord Moynihan, sale on secondary websites before the organising body Sharon Hodgson MP, Mike Weatherley MP, and of had even set the ticket prices and launched the application course my noble friend Lady Heyhoe Flint, all get process. Is the £5,000 fine adequate? I hope that all roles in a remake of “Chariots of Fire” for their efforts this will include looking at how to tackle bulk-selling in securing this agreement, which will benefit music and how effectively to enforce the law against traders and sports fans immensely. My noble friend Lord impersonating consumers to evade consumer law. Moynihan in particular has been incredibly tenacious However, that is an ongoing matter. We have come in his pursuit of the right solution and I pay strong today to the right conclusion, and I congratulate all tribute to him. I also pay tribute to my right honourable those involved. friend Vince Cable, my noble friend Lady Neville-Rolfe, my honourable friend Jo Swinson and their adviser Lord Pendry (Lab): MyLords,itgivesmegreat Ashley Lumsden, who have been instrumental in forging pleasure to briefly say a few words on this good news a deal in BIS and in convincing their colleagues in the day for sports fans. It is fair to say that it has been a DCMS to adopt the solution before us today. long time coming, but in the measures that we are When our amendment came before the House of adding to the Bill today we are giving greater choice Commons in January, my honourable friend Jo Swinson and information to sports fans to help in the fight said: against those who commit fraud or seek to exploit the “A careful balancing act is needed. We want to make sure that pockets of hard-working families. as many people as possible can access events, whatever their My own role in this battle dates back two decades means. We want sports and entertainment in the UK to flourish. to 1994, when I led from the Labour Benches in the We … want to protect consumers and allow the ticket resale market to work as well as it can”.—[Official Report, Commons, other place a campaign to have the then Government 12/1/15; col. 657.] extend the provisions they were introducing to ban I believe that these clauses will do all this. My honourable ticket touting at football events to other sports in the friend also criticised the previous amendment, which Criminal Justice and Public Order Act 1994. We were was passed by this House. She said that there were, partly successful in that we had reserve powers added “difficulties involved in Lords amendment 12”.—[Official Report, to that Bill to allow the Home Secretary of the day to Commons, 12/1/15, 658.] designate other sporting events. She said that it would require sellers to provide their Ever since then, together with other Members of name, that it would enable event organisers to cancel both Houses, from all parties, I have called for more tickets put up for resale and that, effective action as the problem has grown and grown, “more stringent information requirements would go beyond the especially with the introduction of the internet, which provisions set out in the consumer rights directive”.—[Official created a fertile new environment for the problems we Report, Commons, 12/1/15; col. 660.] have heard explained so well by the proposer of this Again, I believe that these clauses meet those objectives. Motion. I therefore wholeheartedly endorse the measures These safeguards now set out in the Bill will be much being added to the Bill. Most of all, I pay tribute, as more reliable than the assurances belatedly given by others have done, to the noble Lord, Lord Moynihan. the secondary sellers or the information on their websites. He was battling 21 years ago in support of the kind of To be clear, this is not about closing down the measure we have here now, and is still fighting as hard secondary market. A secondary market that works in as ever to protect the sports that he loves. the interests of fans buying and selling tickets is reasonable; I have spoken to some sports governing bodies an opaque stock exchange with links to criminal activity today, and I know that they are hugely grateful for the is not. I hope that this amendment will ensure that the enormous amount of time and effort that the noble secondary market is the former. These transparency Lord has put into this issue ever since the amendment 1559 Consumer Rights Bill[LORDS] Consumer Rights Bill 1560

[LORD PENDRY] right information if they think that their ticket could was voted for by this House in November. There have be cancelled. They could provide adjacent seat numbers, been many hours of meetings with Ministers, Bill for instance, and other fans could then see their tickets teams, lawyers and experts, and that shows in the well cancelled, causing havoc at the event. balanced and fair proposals that have addressed the The treatment of the secondary market in ticketing concerns raised by the House. Certainly on this issue, I is completely out of step with other online markets. Is think that the House will respond favourably to the there a need to declare where what you are selling words of the noble Lord and the amendments. Through comes from when you are selling goods on Amazon, his grasp of how the sports sector works and of the for example? These proposed new clauses try to deal way to get things done in this place, we now have an with an issue that does not exist. The wording of the effective improvement in the law and, alongside it, a amendment is clever in that it seems to provide a review that allows the matter to be considered in protection against ticket cancellation, but this protection greater detail. I hope that the noble Lord’s expertise is meaningless as it does not apply where there are will remain on tap for the review; he will certainly add terms and conditions which state that tickets will be weight to it. cancelled if they are resold. The wording makes it clear that terms and conditions used to enforce cancellation 3.45 pm should not be unfair terms under the Unfair Terms in One reason why the noble Lord, Lord Moynihan, Consumer Contracts Regulations. This is because certain was committed to this cause was that he saw how the restrictions such as terms and conditions which allow London Olympics benefited from a touting ban. He resale at face value have been judged as not in breach was determined that what was right for that showpiece of these regulations. This means that event organisers event would work for other sporting events. It is will be able to impose a de facto price cap on resale. an example of using the legacy from London for the Event organisers will be able to use the law to enforce wider good. I wish only that the Department for their own commercial terms and conditions. We are Culture, Media and Sport would put as much effort about to give event organisers total control over tickets into securing improvements in participation in sport after they have been sold. This is a carefully constructed as a legacy as the noble Lord has—I could say “my legal monopoly. Will my noble friend the Minister noble friend”, because in this context he certainly is a assure me that one of the subjects to be looked at in noble friend of mine because of his love of sport. the review is how the number of people employed in That brings me to a final point and a question for the secondary ticket market has changed, and how the the Minister. The Rugby World Cup 2015 starts in just market share of the ticket issuers has changed? six months’ time. Can she confirm that the measures that we are passing today will be operational for that Viscount Younger of Leckie (Con): My Lords, following event? If she cannot give that commitment today, will the debates on the subject of secondary ticketing in she work hard to see that that is brought about? I will Committee and on Report, which caused considerable end as I began, in saying that it is a good news day for polarisation of views across party lines, I am pleased literally thousands of loyal sports fans, and also for that today there appears to be good agreement on the major sports organisations, which wish to sell tickets way forward. I know that my noble friend the Minister to real fans, not to investors who wish to make quick has worked assiduously to find common ground. Reaching profits. These measures are all about putting limits on this point today is an example not just of how effective “Rip-off Britain” for the public benefit. this House can be in spending the necessary time discussing the detail, analysing the issues with all Lord Borwick (Con): My Lords, this Bill, as the those concerned, reviewing and scrutinising the law name suggests, is supposed to be about protecting and moving forward, but also of how many company consumers—indeed, most of it does. However, this boards work with much interaction on challenging recently tabled amendment, which places new duties issues, which takes place initially behind the scenes, on ticket sellers in secondary markets, could actually enabling the final decisions to be made in situ with allow consumers to be ripped off under the guise of relative accord and rapidity. To that extent, it would protecting them. All the tickets which the sports and have been interesting to have secured my ticket to be a music bodies are concerned about will now go back to fly on the wall at some of these discussions, in which being sold in pubs, clubs and car parks, where no case there would have been no pillar impeding my consumer protection exists, so this amendment could view and I would not have needed the guarantee of a increase fraud by forcing customers to buy tickets on seat number. However, I would have needed a guarantee the street. It is no surprise that the amendment is from the event organiser that there were no spiders’ completely out of step with public opinion. webs—real or political, perhaps. I am sure that I can trade polling statistics with my Although I welcome the Government’s willingness noble friend. Polling by ComRes shows that 80% of to act to address many of the strong concerns expressed the public support the right to resell tickets, 64% on the secondary ticketing market through their believe that they should be allowed to pay more than Amendments 12B to 12H laid today, and their agreement the face value of a ticket to get into a sold-out event, to the amendments tabled by my noble friend Lord and 66% believe that event organisers should not be Moynihan, this is the beginning of a journey, as my allowed to restrict what happens to a ticket once they noble friend said. First, there were clarion calls from have sold it. We could see thousands of fans criminalised some quarters for the secondary ticketing market to be if they do not provide the right information on their banned. It is pleasing that there is now a general view listings. The reality is that a seller will not provide the that the secondary ticketing market has a necessary 1561 Consumer Rights Bill[24 FEBRUARY 2015] Consumer Rights Bill 1562 place in allowing fans to purchase seats for cultural Finally on the duty to report, I wonder whether the and sporting events. A corollary of this is that it makes cap of £5,000 provides an adequate deterrent for failing it more likely that seats at events will be filled—a to report. The Minister may reply that she thinks it frustration often expressed by observers and would-be proportionate. However, I suggest that the stakes could fans. be raised by doubling the maximum fine—on the basis It is now also accepted that the issue under debate, that a fine is payable only if a suspected crime, which described generically as secondary ticketing, is much turns out to be an actual crime, is not reported. Your more complex. However, there is a main concern over Lordships may be interested to be reminded that, for sharp practice at best and fraud at worst. The victims example, a fine of up to £20,000 is payable by employers are those, of course, who buy bona fide tickets and for not paying the minimum wage. find that they are invalid. Along with some other I turn now to the second, welcome, element of the noble Lords, I am adamant that there is legislation in Government’s amendment—the statutory review. I place to protect against fraud but that it has to be welcome it because it will start as soon as possible and made to work, with prosecutions, recompense for victims will have a tight reporting period. The purpose of the in relation to detriment suffered and with deterrents to review is to address many of the complex issues relating putative fraudulent activity. I have also mentioned the to ticket sales, but it is as yet unclear what the terms of need for more transparent and detailed guidelines for reference will be, and what such a seemingly catch-all ticket operators and consumers, which is very much in review will cover. I have heard that it should encompass the spirit of the Consumer Rights Bill, but without some aspects of the operation of the primary market— creating any unnecessary new bureaucracy. such as the sensible and proportionate block-booking of tickets by the RFU or the ECB for rugby or cricket Therefore, I welcome the move to make it mandatory events where clubs or schools are the beneficiaries. for online ticket marketplaces to have to report criminal The review should also cover unscrupulous block-bookers activity to both the police and the event organiser. who seek to make an unhealthy profit by selling on. Many of the persistent secondary ticketing troubles emanate from illegal websites, so the Action Fraud As my noble friend Lord Moynihan said, there is initiative as a national reporting centre for fraud and the question of who is defined as a consumer and who internet crime is to be welcomed. Of course, with the as a trader. Conversely, there is also the need not to emergence globally of millions of websites, the question have a chilling effect on the secondary marketplace. of how to regulate, monitor and harness the web is a There is the issue of guidelines for contracts for ticketing matter for all Governments in all countries across for myriad events, and also the question of how to most sectors. Therefore, my first question to my noble protect UK sports, theatre or concert fans who choose friend the Minister is: how proactive will this Action to book tickets for UK events through operators or Fraud unit be, or is it merely a reception centre for sites overseas. I am pleased to hear from the Minister reporting such crime? that the CMA is playing an active role and is taking some action. I ask the Minister for reassurance that The House may like to be reminded of the success the Government know that the review needs to be of PIPCU—the Police Intellectual Property Crime particularly wide ranging, but also tightly worded, to Unit. Deep in the City of London some highly effective be effective and useful for taking the several steps work is being carried out to identify fraud proactively, forward that are needed in 2016. I note her encouraging to intercept and to prosecute the owners of websites comments today. who are effecting and facilitating the transit of counterfeit and pirated goods into this country. In terms of the Finally, in repeating my support for the Government work it does, to what extent could the Action Fraud in acknowledging the valuable role of the secondary unit link up with, or learn from, PIPCU’s experience? market, I add that the amendment would have been improved by the inclusion of a sunset provision for the My main question about the statutory duty to review, perhaps at the point when it reports its report is: how can we know if the online marketplace recommendations. I ask my noble friend to comment is not reporting crime? Subsection (3)(b) of the new on that. There will always be persistent fraudsters, but clause proposed in Amendment 12B states that the I welcome the consensus today that the review, while duty to report applies when, not providing all the solutions that some seek now, “the operator knows that an offence has been or is being committed”. does provide us with a sensible platform from which to Surely it should additionally apply to operators who establish some concrete facts and to analyse the different suspect that an offence might be committed. Do we elements of a complex landscape. not seek the early tip-off? How proactive a role is the 4pm enforcement authority expected to have? To borrow a phrase used in an earlier debate by my noble friend Lord Stoneham of Droxford (LD): My Lords, I do Lord Clement-Jones, “Not a clue, guv”. There is a not wish to detain the House long, as I understand the danger that a market operator will be able to turn a real reason why everybody is here. However,I wish to make blind eye to a criminal activity, where he can legitimately one or two points, particularly as I disagreed with the say that he was not aware or could not have known. proposers of the amendment at earlier stages of the Bill. The enforcement authority will have the leeway of First, I congratulate my noble friend Lord Moynihan needing to be satisfied that on the balance of probabilities on his persistence and cheerfulness as the long-distance a person has breached the duty—but will the onus of runner on this issue. I congratulate both him and the proof be too difficult to establish, and too costly to Minister, my noble friend Lady Neville-Rolfe, on having work effectively, to achieve prosecution and for a fine worked so hard in the last few weeks to arrive at a to be imposed? workable compromise. I have enjoyed working on this 1563 Consumer Rights Bill[LORDS] Consumer Rights Bill 1564

[LORD STONEHAM OF DROXFORD] There will be much to discuss in the review—many Bill with them, with my noble friends Lady Jolly and minutiae and details need to be bottomed out. I also Lady Bakewell, and with the noble Baroness, Lady believe there is still much that sport and music promoters Hayter, and her colleagues on the Opposition Benches. can do to further protect their product and truly drive I acknowledge the mutual courtesy and constructiveness the primary market in tickets for their events. This is a that have been displayed at all times. great amendment and a great day across sport and I accept that this compromise can provide more music. It is testament to my noble friend Lord Moynihan, transparency in the marketplace in the interests of who has shown dogged determination over months to consumers, but we have always maintained that that get us to this stage. The man from Monmouth has must not be at the expense of the recognised and coxed this amendment to a successful and superb reputable operators in the secondary ticketing market. conclusion. I am pleased that my noble friend Lord Moynihan acknowledged that these proposed changes have been Baroness Heyhoe Flint (Con): My Lords, I thank designed to protect the reputable secondary ticketing my noble friend Lord Holmes for bringing such a market. He recognises that there is public support for smile to my face. I love the word “dogged” here; I greater regulation, but there is also wide public support know he has a beast of a similar persuasion at his feet. for having a system of secondary ticketing. This proposal The vision of a sheepskin-clad fraudster outside Lord’s is better than encouraging people to go back to the when it is 75 degrees in the summer trying to get rid of ticket touts at events—or, indeed, using online and his tickets brought a wonderful degree of levity to the offline classified advertising. occasion. On this side particularly we welcome the 12-month As I have spoken at every stage of the Bill on this review of consumer protection issues relating to secondary issue, I hope the House realises how strongly I have ticketing. I reiterate the points that my noble friend felt about seeking to establish a fair market for sport Lord Moynihan made. I hope that the review will and entertainment. I hope by the time the Minister has cover the wider issue of wholesale ticketing harvesting— stood up there will have been reassurance to my noble the computer programs designed to circumvent procedures friends Lord Borwick and Lord Stoneham for the designed to contain sales to individuals, and how they slight concerns they have in certain areas. Secondary can be best countered. I hope it will also examine and selling has now had an enormous amount of scrutiny promote best practice techniques and the phasing of and I am convinced that we have got to the right point ticket sales, which maximise the chances of real fans in the Bill, crafted with so much ability and long-life obtaining the tickets. energy by my noble friend Lord Moynihan. He has There is, however, one final concern that should be worked so enormously hard that he deserves to sit expressed. I was glad to have the Minister’s reassurance down in a darkened room after this and have a break. on this matter; I hope that she can speak again on it It really has been quite remarkable. without reservations. We welcome the compromise I declare an interest as a board member of the restricting event organisers’ ability to cancel the tickets England and Wales Cricket Board and I hope I do not that have been legitimately sold if they are identified in offend any Scots when I say thank goodness that the secondary ticket market. However, the proposed England managed to beat Scotland in the World Cup new clause permits cancellation if the resale terms a few days ago. No disrespect to the Scots but I might flout the terms and conditions of the ticket. That not have been able to walk through the door had that could cause confusion. I understand that it is right not happened. that the original seller should apply a cancellation if, The amendment before the House is not as for example, an adult was sold a child’s ticket. Can the comprehensive as the one we voted for just before Minister repeat that it will be completely unacceptable Christmas but after lengthy negotiations, as mentioned to have a blanket condition in ticket terms and conditions by my noble friend, it addresses the key concerns banning all resales—and, indeed, resale at a higher raised and introduces—in that wonderful phrase—some value? If either of these conditions prevailed it would new light-touch regulation. Alongside this it introduces drive a coach and horses through what we assume are the statutory review which many of my noble friends the good intentions of this compromise. It would have complimented, and it is hugely welcome. appear to be an unreasonable and unfair restraint for I too thank the Minister for the enormous amount consumers in the ticketing market. of time she has spent considering this issue with all of Apart from that, I welcome this compromise. I look us championing the cause, and for making her officials forward to seeing it properly implemented. so available. That is so important and they helped us to drive through and draft this Motion. It will benefit Lord Holmes of Richmond (Con): My Lords, the A1 fans of sport and entertainment across the country is a beautiful road linking north and south. Motion A1 and up and down the A1—this is an A1 Bill, we must is a beautiful Motion, linking the sports fan back to not forget that—and it has been greeted with huge the sport and the music fan back to the gig. It goes to congratulations from hundreds and thousands of people the heart of a problem that has dogged sport, music and within the worlds of sports and entertainment. I almost live entertainment for decades in this country. It is a feel that we should break out into a Mexican wave great day for the sports fan and a fantastically bad day when we reach the conclusion of today’s discussions. for the fraudster. Let the fraudster—the cyber, sheepskin- As we have heard, the Motion protects the consumer clad fraudsters—begone. This will make a tremendous on the reselling of tickets by introducing the basic difference to anybody who truly has sport, music, art, information we have so desperately wanted. Crucially, cultural and creative events in their hearts in this country. it does not in any way prohibit or ban the resale of the 1565 Consumer Rights Bill[24 FEBRUARY 2015] Consumer Rights Bill 1566 tickets. Concern was voiced before during the passage My noble friend referred to it as “harvesting” tickets; of the Bill about what information should be required I refer to it as “hoovering up” tickets, but perhaps and it is clear that we have sought to protect privacy harvesting is more his scene and hoovering may issues by neither the name nor the address of the seller occasionally be mine. It also covers the advance selling being given. of tickets not yet on sale, as I have already mentioned, The information reporting set out in the Motion exploitative touting, and concession tickets sold to the is important. It provides a way of detecting fraud wrong people in the wrong place, which can lead to and misleading selling. Indeed only last week, as my embarrassment and discomfort. noble friend Lord Moynihan mentioned, the DCMS The passage of this Bill will play a role in helping acknowledged that it was important that information the UK to maintain our position as an open and honest was provided at the point of sale so that both consumers showcase for international sports and entertainment and event organisers could be certain whether listings events in this country, attracting millions of fans to were of genuine tickets. This will help to eradicate the our venues annually. curious practice used by many sites of tickets being Cricket venues are doing everything they can to listed for sale before they have even gone on sale keep prices affordable, to encourage family audiences officially by the event organisers and the venues. It is and not to overprice the market. However, visiting one quite remarkable. The review to be established will or two of the websites referred to and looking at Ashes assess if any further information is required or whether test match ticket sales, one can see that an averagely we have got the balance right first time. I hope it is the priced ticket costing £100 is currently on offer at at latter. least £600. It is possible to get a ticket with a full When this measure becomes law, those who buy a hospitality package in one of the stands costing £1,950. ticket from a secondary seller will receive exactly the I thought, “That must be a very expensive meat pie same information and protection when they make the that they sell at Lord’s”, but it just shows what an purchase as they would expect to receive when purchasing amazing, incredible and dishonest mark-up is put on directly from the event organiser. They will know the these tickets. It is completely unfair to supporters, who value that the event holder has placed on the ticket—its are denied the opportunity to attend major international face value—and the exact location of the seat. They will events. also have the option of checking with the event organiser We have provided much needed protection to fans that it is a genuine ticket. It is simple and effective. who spend their hard-earned money watching the Let us reassure the House about how this amendment sport they love. Those fans or consumers deserve our would work in relation to the rights of the consumer. protection. I do not wish to sound triumphant but I It is clear that event organisers will be able to uphold know that there is a collective huge sigh of relief that only terms and conditions which are fair and which common sense has prevailed. Now, hundreds and have been communicated to the public when they buy thousands—nay, millions—of fans can give a standing the tickets. Nothing will come as a great surprise to the ovation to my noble friend the Minister and her team, purchaser of the tickets. It will not have an adverse as well as to my noble friend Lord Moynihan, for impact on the ordinary fan who wants to sell on a helping to protect the hard-working fan. ticket if he or she cannot attend. All major sporting events—and, we assume, entertainment—either have 4.15 pm exchange mechanisms or allow some form of resale at face value. It is hoped that this will encourage the best Baroness Hayter of Kentish Town (Lab): My Lords, practice already identified by my noble friend Lord I see no reason why the noble Baroness, Lady Heyhoe Moynihan concerning the theatre ticket and the terms Flint, should not feel triumphant. I think that is the and conditions on the back of it. Presumably no four right approach, and I join her and others in thanking year-olds are allowed to go and watch “Fifty Shades the noble Lord, Lord Moynihan, who has done so of Grey”, as that might contravene the terms and much to bring us here, and also, as others have said, conditions. the Bill team; the sports and arts bodies; my colleague Nicola Jayawickreme, who has seen us through this; Nowadays, for example, the ECB has no intent to my noble friend Lord Stevenson, who alas is in a cancel tickets sold on at face value, and it already jungle today and cannot be with us; my gig-attending allows the transfer of tickets. This is a form of governance honourable friend Stella Creasy, who fought this much that should be imitated and copied by any event more alone, I have to say, in the other place; and also, organiser or governing body. It will not cancel those if rather at the wire, the Government. tickets if sold on the secondary market, and why on However, given that this will affect some of our earth should it? That would cause reputational damage premier sports, perhaps that final spurt, the holding of and would no doubt lead to investigation and complaint, our collective breath till the very last moment when as well as turn away and turn off genuine fans. the line was crossed, and the smiles and cheers at the With the security of this amendment, event organisers Minister’s words are particularly appropriate. Indeed, will be empowered to take action against the worst had the Minister sung her speech, that would have abusers of ticket terms and conditions, as has already reflected as well the arts world’s relief that sense has been mentioned. This covers issues such as fraudulent prevailed and that genuine fans of music or sports will sales, bulk ticket sales by professional touts—not always have access to the best without having to witness only in sheepskin jackets—and the use of bots to purchase those with the deepest pockets being able to pay to see tickets. To the uninitiated, a bot is a computer program the best of British performers, whether on the track or that repeatedly logs in to buy tickets automatically. on the stage. 1567 Consumer Rights Bill[LORDS] Consumer Rights Bill 1568

[BARONESS HAYTER OF KENTISH TOWN] Bill provides for the measure to come into force two Furthermore, the money paid by fans will now, we months after Royal Assent—so ahead of the Ashes hope, go to the promoters or the performers but will and the Rugby World Cup, I hope. not be skimmed off by those who buy tickets purely to I am also grateful for the points made by my make excess rent, in the economic jargon. This was predecessor, my noble friend Lord Younger, who did never an issue of individual fans wanting to sell the so much for enforcement of IP and the battle against odd ticket they could no longer use. It is, as has been counterfeiting. I will take away his various ideas, notably said, about industrial-scale touting—the buying up of for dealing with fraud, and look forward to discussing sheaves of tickets to make a quick bang—and it is that his questions with him and feeding them into the that Motion A1 seeks to address. review. I was also interested in his reference to sunsetting, We know that the Government had strongly resisted which is one of the ideas that we look at in our Better until almost the very last moment Motion A1 and all Regulation work in the business department. attempts to tackle an industry that makes a few people My noble friend Lord Borwick raised two important very rich but sucks money not just from fans but issues relating to how the amendments affect the secondary from sports and arts bodies—those that want to keep market in terms of employment and market share. As prices within the reach of all, not just the rich, so has been said, we have yet to set the terms of reference that ordinary rugby club members can go to Twickenham, for the review, but I assure him that those issues will be tennis players to Wimbledon and music fans to their considered for inclusion. He also expressed the concern favourite gigs. that the amendment might criminalise consumers who I remember that some years ago Paul Hamlyn give incorrect information. I reassure him that it will opened the opera house—I think to celebrate his wife’s not introduce any criminal offences; the enforcement birthday—simply to groups of young people or is but by civil penalties. community groups. I took 20 people there who would I can confirm that the blanket protection on ticket never have gone into the opera house without this. I resale of the kind cited by the noble Lord, Lord Stoneham, will remember their faces, I think, for as long as I live, is not provided for in the amendment. I reiterate what and the delight they had. I think they paid £10 a seat. I said earlier on this important point: terms that In today’s world, with today’s methods, all those tickets prohibit or restrict resale above a particular price are would have been hoovered up and all those people assessable for fairness. They are not always fair and denied that wonderful chance to go there. are not binding on the consumer if that is the case. Today the Government have accepted that it is time This is, of course, a compromise provision. The to deal with that industry, and we are delighted. There Government were not willing to jeopardise the passage are of course issues not yet covered by the Motion, but of the Consumer Rights Bill. Therefore, while we these can fall to the review to consider. I hope the share some of the concerns raised about how the Minister can assure us that both sporting and arts industry could interpret the new legislation, it is up to representatives will be consulted on the choice of chair it to show that it treats all fans fairly and to make these as well as on the terms of reference so that we learn changes a success. We have a statutory review, which from other inquiries. To add to the mix that has will be an opportunity to look at this matter and at already been mentioned, I also ask that the Government many of the issues debated today. I know that this consider for the review research into the impact of House will be very interested in the results of the touting on fans and events, the effects it has in terms review and that many noble Lords will feed in their of pricing out ordinary fans and the wider reputation thoughts and ideas. I should make it clear, as the noble damage to events. They should also consider actions Lord, Lord Moynihan, touched on the subject, that on bots, which have been explained to us, and enforcement the review is a joint one between the DCMS and of existing legislation; also, what constitutes a ticket—is BIS—the reviewer is to be appointed jointly by the it a piece of paper or is it the right to attend an event? two Secretaries of State. I note the various points Finally, they should consider whether the ticket made by the noble Baroness, Lady Hayter, and will identification number needs to be added to those take them away to ensure that we have the right tickets where there is no block, row or seat number. independent chair and the right terms of reference. Today, as the noble Viscount, Lord Younger, suggested, I thank noble Lords for their expert scrutiny of the shows a job well done by your Lordships’ House. This Bill, and in particular for the provisions we are discussing final change will strengthen the Consumer Rights Bill. today. I look forward to the Bill receiving Royal Assent. I think it is a triumph for the rights of consumers, in this case in the guise of fans and supporters. We wish Lord Moynihan: My Lords, I express my further the whole Bill well as it gets its final sign-off from the thanks to all noble Lords who have participated in this other place. 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 Baroness Neville-Rolfe: Before the noble Lord, Lord appreciated it, all those who have spoken in favour of Moynihan, responds, perhaps, rather than repeating them, this Motion reiterated that it is very important for a I will say that I share the many tributes that have been secondary market to thrive. We are looking through made during this debate to and by the noble Lord, Lord this Motion for an effective, transparent and accountable Moynihan. They have been made by the noble Lords, secondary market. I appreciate in all humility the generous Lord Clement-Jones, Lord Stoneham and Lord Holmes, personal comments that have been made and ask the the noble Baronesses, Lady Heyhoe Flint and Lady House to agree to the Motion standing in my name. Hayter, and the noble Lord, Lord Pendry, with his deep knowledge of the football world. On his question, the Motion A1, as an amendment to Motion A, agreed. 1569 Human Fertilisation and Embryology[24 FEBRUARY 2015] Human Fertilisation and Embryology 1570

Human Fertilisation and Embryology Given the extensive scrutiny given to this issue (Mitochondrial Donation) Regulations during the life of this Parliament, I believe it is appropriate to allow this Parliament to decide whether to take the 2015 next step for mitochondrial donation, which can make Motion to Approve meaningful progress to actually help families only with the passing of these regulations. The two proposed 4.23 pm techniques that would be allowed under these regulations Moved by Earl Howe are maternal spindle transfer and pronuclear transfer. These replace the mitochondrial DNA, which contains That the draft regulations laid before the House a small number of unhealthy genes, with healthy on 17 December 2014 be approved. mitochondrial DNA. Mitochondrial DNA is just 0.054% Relevant documents: 23rd Report from the Secondary of our overall DNA. One important point to emphasise Legislation Scrutiny Committee and 17th Report here is that none of the nuclear DNA, which determines from the Joint Committee on Statutory Instruments our personal characteristics and traits, is altered by mitochondrial donation. The Parliamentary Under-Secretary of State, Department I know that many noble Lords will have their own of Health (Earl Howe) (Con): My Lords, the purpose tributes to pay, but I would like to make my own of the regulations is to enable women to have their own acknowledgment of the ground-breaking work that genetic children, free of terrible disease caused by the scientists at Newcastle University have led, which disorders in their mitochondrial DNA. The regulations is world-leading in the development of these new do so by allowing healthy mitochondria from a donor techniques. It is also very important to praise the Lily to replace the unhealthy mitochondria in a woman’s Foundation, a charity founded by families who have egg or embryo. lost their children to serious mitochondrial disease, Mitochondria are present in almost every cell in the which has reminded us about the human story that body and produce the energy that we need to function. inspired this scientific advance. This is why they are often referred to as the “powerhouse” I turn now to the detail of the regulations made of the cell. Unhealthy mitochondria can cause severe under powers in the 1990 Act which, as I said, were medical disorders known as mitochondrial disease, for added in 2008, with Parliament’s express agreement, which there is no cure. There are 37 genes in the in anticipation of the advancement of science to this mitochondrial DNA, compared with more than 20,000 point. These powers would permit mitochondrial donation in the nuclear DNA. This represents less than 0.1% of in order to prevent the transmission of serious the total genetic make-up. The techniques provided mitochondrial disease. for by these regulations offer the only hope for some women who carry the disease to have healthy, genetically 4.30 pm related children who will not suffer from the devastating Regulations 3 to 5 set out the circumstances for and often fatal consequences of serious mitochondrial mitochondrial donation techniques using eggs. disease. Regulations 6 to 8 set out the circumstances for Provision to make these regulations was introduced mitochondrial donation using embryos. That would by Parliament into the Human Fertilisation and allow the two techniques that have been the subject of Embryology Act 2008. It followed an amendment that extensive UK-wide review and consultation: maternal recognised the progress being made in research. In spindle transfer and pronuclear transfer. 2010, researchers at Newcastle asked the Department Regulations 11 to 15 and 19 set out the information of Health to take forward steps to develop regulations. that can be provided about a mitochondrial donor to Over the last five years, there has been extensive any child born from the donation and information to engagement and consultation with the public on this that donor. Regulations 16 and 17 set out special issue, including, first, an ethical assessment by the provisions for consent, which were identified through Nuffield Council on Bioethics in 2012; secondly, a the public consultation process. These regulations apply highly commended, respected and wide-ranging public UK-wide, and the devolved Administrations have been dialogue and consultation exercise carried out by the kept informed of development and progress. HFEA in 2012-13; and, thirdly, a public consultation on draft regulations carried out by the Department of Concerns have been raised in advance of this debate Health in 2014. There have been three separate reports by some noble Lords about both compliance of the into the safety and efficacy of these mitochondrial regulations with European Union law and how the donation techniques by an expert panel convened by regulation-making powers were originally drawn in the HFEA, published in 2011, 2013 and 2014. The the 2008 Act. Those are complex issues, and I have expert panel members were selected for their broad-ranging taken care to write to noble Lords about them before scientific and clinical expertise, and for having no the debate. In doing so, I set out the Government’s direct or commercial interest in the outcome of the clear view that we are acting within EU law and that review. the legislation is sound and robust. This process was commended in a recent letter to As I have set out in recent parliamentary replies to the Guardian from eminent scientists and Nobel Prize the noble Baroness, Lady Hollins, the clinical trials winners from the UK and across the world. The letter directive does not cover treatment services, which is included this sentence: what would be allowed under the terms of the regulations. “the UK has run an exemplary and internationally admired Furthermore, to be clear, the clinical trials directive process for considering benefits, risks, ethical issues and public relates to medicines and therefore has no relevance in consent, which must properly precede a change in the law”. the context of mitochondrial donation. 1571 Human Fertilisation and Embryology[LORDS] Human Fertilisation and Embryology 1572

[EARL HOWE] I end by emphasising what, to me, is the ethical There has also been much discussion of the safety heart of this issue. This House now has the opportunity of these mitochondrial donation techniques, and, as I to give real hope to families and the chance for doctors have outlined, there have been three reports by the to offer more to those families carrying serious HFEA-convened expert panel during this Parliament. mitochondrial disease than yet another generation of On each occasion, the expert panel has concluded that avoidable suffering and shortened lives. The UK can there is nothing at all to indicate that the two donation offer this world-leading science within a robust regulatory techniques are unsafe. Although the expert panel has regime and, in so doing, the chance to make a real recommended that further experiments should take difference to families. I commend these regulations to place, the panel has said that it expects such research the House and beg to move. to support the conclusions that it has reached so far. In public discussion, there has been some Amendment to the Motion misunderstanding of the term “critical” when used by Moved by Lord Deben the expert panel. This point was helpfully clarified in the HFEA briefing note, which has been endorsed by the To leave out from “that” to the end and insert expert panel. It clarifies that these experiments could “this House declines to approve the draft Human take place before or after the approval of regulations Fertilisation and Embryology (Mitochondrial Donation) by Parliament. Regulations 2015 laid before the House on 17 December We have said that it is our view that this Parliament 2014 and calls on Her Majesty’s Government not to should be given the opportunity to consider these lay new draft regulations until a joint committee of regulations, as the key developments and reviews have both Houses has been established and has reported taken place during the lifetime of this Parliament. We on (1) the safety of the procedures permitted by the cannot be certain about what priorities the future draft regulations, (2) the compliance of the draft Administration will have and whether, in the event regulations with European Union and domestic that the regulations were deferred, there may be an law, and (3) the key definitions used in the draft extended delay in considering them further. regulations” My position on this, shared by my ministerial Lord Deben (Con): My Lords, first, I have to say colleagues, is very simple. Families can see that the that I am in favour of mitochondrial donation. I am technology is there to help them and are keen to take it not opposed to it in principle. I tabled this amendment up. They have noted the conclusions of the expert panel. because otherwise it would have passed through this It would be cruel and perverse, in my judgment, to deny House—in the Moses Room—without the kind of them that opportunity for any longer than absolutely concern that we now have. The numbers present show necessary. it to have been right to discuss this matter very carefully. Let me explain further the safeguards that would apply It is right because we are dealing with something of here. If these regulations are passed by Parliament, the incredible importance to the families concerned: the HFEA would put in place a robust regulatory process, fathers and mothers who can produce children but as it has in other areas of fertility treatment. The cannot, because those children will, almost certainly, regulations would also bring into being important carry this terrible disease. They deserve all the care safeguards through the HFEA’s own licensing procedures. that we have expended on them. The fact that some For a licence to be issued to a provider of mitochondrial suggest that there are not that many of them is nothing: donation, it would first have to demonstrate that it could if there were but one we should be as concerned about carry out the procedure safely and effectively. Each this as we are. provider would need to be authorised, and treatment for I yield to no one in my determination to try to do each patient would be approved on a case-by-case basis. what is right in this area and I do so for a personal Every such decision would be based on the scientific reason, which is that I am thankful every day that my evidence, including: information on the safety and wife and I produced four children who in that sense— efficacy of the techniques at the time of the application; though perhaps in no other—are perfect. Those of us advice submitted to the licensing committee by the in this situation have a particular need to be concerned. clinic; and an assessment of each individual patient. We should be concerned with the parents; we should The HFEA is highly respected across the globe as a be concerned with the wider community; and we should model for the regulation of fertility and embryology be concerned with the children who would be born in treatments and research. Many other countries do not these circumstances. My concern is that the Government have this framework in place. have approached this in a way that is very unhappy. In setting out the purpose and effect of these regulations Because there are so many of us who would find the I hope I have been able to offer reassurance to noble movement of a spindle from a non-diseased egg to a Lords that the long process of consideration of diseased egg something that we could accept, there mitochondrial donation has been rigorous, sensible was a basis for a commonality of understanding and and inclusive. The UK is admired across for the world support. That was there. All we needed, therefore, was for the approach that it takes on matters such as this. I to be assured that the procedure was safe and legal. recognise that some noble Lords will be opposed in My noble friend—and he is a noble friend; he was principle to mitochondrial donation. While I respect one of my Ministers, and we worked closely together—has their point of view, I cannot agree with it. The carefully covered his view of the law. I think that the Government’s view is that it is right that we bring this law is very often an ass. I am certainly not one who matter to this Parliament to ask parliamentarians to would demand that lawyers should decide what we make an informed decision about what happens next. should want. I say sorry to the noble Lord, Lord Pannick, 1573 Human Fertilisation and Embryology[24 FEBRUARY 2015] Human Fertilisation and Embryology 1574 who looks unhappy at that comment. However, I “Well, he only says all those things because he’s a believe that we should obey the law and it is quite clear Roman Catholic”. I think I will face that. Those that there is considerable disagreement—I put it simply Members of your Lordships’ House who took part in like that—about whether this action is legal under the proceedings on the Marriage (Same Sex Couples) European law. Although my noble friend gave the best Bill will remember that I spent a good deal of time account that he could, it is worth saying that many supporting the Government’s position on that. others take a different view. What is more, the two law officers, the Attorney-General and the Lord Chancellor, 4.45 pm voted against these regulations. The Attorney-General I do not think anyone can complain that I am has said clearly that he did so on legal grounds, so it somehow in the thrall of some exterior power. I do not cannot be said that those of us who suggest that the think anybody should suggest that I was other than legal arguments are at least uncertain have an entirely willing to rebel on those things that I thought right. If unreasonable position. there is any doubt about that, the Chief Whip will say Many who are present will have been sitting through that that is rather a wider rebellion on many other the last part of the previous debate on ticketing. I had issues. So I hope no one will say that I am putting this taken a particular view on that but felt that the House case for any reason other than the one that I put forward. had heard enough of me without intervening on that I put it forward because I believe that this House has a occasion. But it may be within the memory of the parliamentary duty to ensure that the legislation stands House that the Government fought very hard not to up. I do not accept the argument of some that this is a take action on ticketing until they were absolutely sure matter for only the experts and the scientists. about the legality, under European law, of what was Many will remember that, as Minister for Agriculture, being proposed and that there was a proper investigation I dealt for four years with the BSE crisis. I spent a of it. I had expected my noble friend to say that he had great deal of time listening to the scientists, standing been to outside experts and to the European Union up for the scientists and getting it in the neck almost itself to be assured that he was not going to find every day by refusing to do the unscientific, which I himself in court were this passed. He has not done so. was asked to do. It gave me a great respect for scientists, The only legal advice that has been presented to this but it was my responsibility as a Minister to ensure House is the internal advice of the Department of that Parliament made the fundamental decisions. It is Health. I do not find that satisfactory. not up to anybody—even an organisation as distinguished as the one that will have this responsibility—to make Lord Willis of Knaresborough (LD): I am grateful to the final decision about safety. That is, as Dr Harris, my noble friend for giving way. Does he accept that the an old opponent in the other House, made quite clear, Wellcome Trust has published and given to all Members for Parliament to decide. a legal position which has all the authority of its own I come to this problem by saying that Parliament lawyers and which backs up the position of the Minister? very nearly did not get much of a decision here anyway, because we were going to do it around the corner. So Lord Deben: The Wellcome Trust has certainly done there would have been no contribution. That is why I that but I was referring at that moment to the ministry am sorry we called it a killing Motion. It is not that at and the Minister. However, the Wellcome Trust has all: it is intended to give us this debate. not gone to experts in European law; it went to an Parliament, however, must recognise that there are expert that it chose. I am perfectly happy about that real doubts about safety. At the very last moment, we but it is only one of a series of opinions, which are heard some information today. There has been, of contrary one to another. course, an attempt to use one of these two mechanisms. I started with this point because of my concern It took place in China. The result was an abortion, a about the families. It seems that it would not be a good stillbirth and a child who died immediately: three—all beginning for this change if, immediately afterwards, dead. As a result, China banned the procedure. I the large number of Members of the European Parliament discovered today, in answer to a Question, that the —from the right to the far left—who have said that Human Fertilisation and Embryology Authority has they would see this as so clearly contrary to European not even asked for the evidence from China about how law seek to refer it to the courts. That would not start that happened, why it happened, why that decision this off very well. The real question is why the Government was taken and whether what those who do not wish have not taken the steps which would enable us all to this matter to be raised say is true: that it was nothing accept that this was legal. I do not understand why to do with the technique but was to do with other they have not done that, so my first questions to my exterior matters. It is not acceptable to tell the country noble friend are: why was that not done and why, even that this is safe when we have not even asked for the after we asked for it, did the ministry not go out and evidence from the one occasion on which it has been see that it had exterior and clear European advice, so used, and upon which three babies died. that we would know where we were? Secondly, there has been a lot of usage of words. I That is of course only the first part of it; the second try not to get myself into any of those difficulties, but is a question of safety. I have said that if we talked it is quite clear that most people expected that there about transferring the spindle from one egg to another, would be a complete test on at least one set of animals I would not have any ethical objection. Indeed, it that were rather closer to human beings than mice. Of would be the opposite; I would want to support it. I the two techniques, the one that gives me some problems ought to say that, because one noble Lord, who I know has been performed only on mice. However, there is a is going to speak later on, at an earlier meeting said, test under way at this moment on more advanced 1575 Human Fertilisation and Embryology[LORDS] Human Fertilisation and Embryology 1576

[LORD DEBEN] Clearly, the public are worried. I know that it is animals, if we are allowed to use such a phrase. fashionable to be rude about public opinion polls. Indeed, Macaques have been given the technique and it appears so rude were some officials that they ran rather close to have worked and produced healthy babies. However, to the libel laws. However, the truth is that in the we do not yet know whether those babies themselves ComRes test of public opinion, which was a direct test can reproduce. We will not have a long period to wait asking questions that the public would understand but we do not know the answer yet. about things that they have read in the newspapers, the We have a huge responsibility to these mothers who majority of people were unhappy about this; up to cannot bear a well baby, but we also have a responsibility 90% said that it should not go ahead unless the tests to the baby that they bear. What a terrible comment it had been completed. So far, the Government have not would be if those who longed to have a baby and were convinced the public of the sense of this. therefore able to have it gave birth to a child who could Nor have the Government given us the opportunity not have a baby. That would be unacceptable. Yet to make a proper choice. The Government are presenting when we had discussions with those who wanted to this today only because they were forced to do so after convince me—this is the thing that appals me—the a 90-minute discussion in the House of Commons; scientist concerned said, and I quote, “Well, what’s otherwise this would have been gone through in the wrong with sterility anyway? I’m sterile”. The public Moses Room, in a technique that is very convenient out there do not realise it is being seriously suggested for the Executive. that it does not matter whether these children are So why should we ask for this to be fought over sterile. I am sorry, but that is not what the public again? YourLordships will know that I am an enthusiastic think. They think we will ensure that the children and supporter of genetic modification of food. I am very the mothers are properly protected. unpopular among many environmentalists on this matter. I am very concerned about this. In the end, if it all Many of the modifications that we want involve very, goes wrong, it will be no use for us to say, “I took the very small amounts of genetic change, yet out there, opposite view”. I was one of the 16 Conservative there are marchers and campaigns. I think they are Members of Parliament who voted against the Iraq wrong because the testing and the science are clear. If war. I want to tell the House that there is no satisfaction the testing and the science in this case were as clear, in being able to say, “I was right”, or, “I proved you complete and total, I believe that I would be able to wrong”. The same is true here. I do not want to say at vote for one of these two proposals. However, it is not. the end, “I was right to ask for a bit more care”. Therefore I say to the Government that it is What I am asking for is very simple. The Minister unacceptable to use a series of words that make it says, perfect reasonably, that we must not hold this up sound as though all is okay. I am fascinated by the as some future Government may not be as enthusiastic refusal to use the phrase “genetic modification”. When about it as we are. I must say to him that I can think of it was asked whether one of these two techniques no Government who, if a Joint Committee of the two would be genetic modification if it were used on Houses recommended that we should go ahead, would weasels, the Government accepted that it would. So it do anything other than put it before the House. Already, is genetic modification when it concerns weasels but he has had a chance to get much more support by not when it concerns human beings. All the way allowing the House what it ought to have: some ability through, the arguments that could have won us over to choose between these two techniques. I have asked and got many more of this House on side have been why we cannot choose the technique that is ethically refused. I say this with great pain because, in my view, acceptable to so many but must have them bundled up this is the best Minister in this House and the man in this way. The answer, I am afraid, is about money. whom we most respect. I am sorry that we have not Because some people have been investing in one technique been able to join him in accepting this. and others in another, we want to ensure that both will The proposal that I put forward is that we should be able to be used. I do not find that acceptable as an have a committee that would be responsible for ensuring answer but it is the only one that I have had so far. It is that this is legal and safe. I hope that it would also tied up in a very careful phrase: that it will enable the ensure that this House would have a proper choice authority to decide which of the techniques is “most about the ethical question. I am not raising that on appropriate in the circumstances of the woman concerned”. this occasion, but there is a difference between the two There is no appropriateness in the circumstances of proposals that are put forward. I hope that this House the woman concerned; the appropriateness is about will take seriously this issue as we must protect three whether this or that laboratory is available to do it and sets of people: the families—mothers and fathers—the has invested the resources to make it possible. children and the wider society. We would be the first We ought to have been able to make a choice in this country in the world to allow this. We have to be very House. We were denied that, even though we asked for careful that we do so with full and wholehearted it. The Government seem determined to ensure that these support, and that we have fulfilled the safety needs. things are not decided by this House but are packaged No one is more aware that there is no such thing as in a way that means we are not able to choose. absolute safety. I refer to the arguments over BSE. All There are many people in this House who do not you can do is make it as safe as possible by doing all have a worry about the use of embryos. I recognise the things that are necessary to see that you have that. However, I also recognise that we have a duty to covered every eventuality, and then you have to step take with us the majority of people if that is humanly out. My own family motto is “Duc in altum”: “launch possible. To do that, certain simple things are required. out into the deep”. However, you do not launch out 1577 Human Fertilisation and Embryology[24 FEBRUARY 2015] Human Fertilisation and Embryology 1578 into the deep unless you have made absolutely sure as few as 10 to 20 in many cells of the two to three-week that you have taken all the possible different issues old embryo, and hundreds to thousands in most cell into account. types in adults, where the number tends to correlate with energy demand. Cells can have a mixture of two 5pm or more types of mitochondrial DNA sequence, a The reason I ask this House to reject the Government’s condition referred to as heteroplasmy, in contrast to proposition, and to insist that safety and law be looked homoplasmy, where each copy has the same sequence. at again and that the terms also be reconsidered, is not More than 300 distinct mutations of mitochondrial because I do not want to help these men and women DNA have been found in patients with mitochondrial who are so affected or because I have an ethical disease. Although some mutations are far more common objection to one of the two proposals before us, but than others, if an individual is heteroplasmic, with a because I want this to work. I want it to work in a way mixture of mutant and normal mitochondrial DNA, that will enable other countries to follow us and to the proportion of the former determines whether they provide this for women who need it so much. show symptoms of mitochondrial disease. Some women Is it too much to ask that we complete the tests, that at risk of transmitting mitochondrial disease to their we learn from the Chinese why the only time one of children are heteroplasmic and may have levels these two techniques has been used, they were so considerably below the disease threshold, but their appalled by the results that they banned them—they eggs can have very high levels of mutant mitochondrial had very clear evidence, which we can have—and that DNA or even be homoplasmic. This can be explained we have absolute assurance on the matter of the by the so-called bottleneck, which I will not go into in European law? We can then all do what is best, and if detail, but, during the development of the egg, only a it goes wrong, we can say, honestly, that we took the certain number of mitochondria go into fertilisation, best steps and did what was right at the time. That is and that causes a bottleneck that sometimes results in the only thing human beings can ever do. If we are only the mutant mitochondria getting through. wrong then, that is due to the wrongness of human It is estimated that at least one in 200 children in the nature, and not the wrongness of avoiding what it is UK is born with some faulty mitochondrial DNA—so necessary to do to make us as safe as is humanly quite a lot of them may well have some faulty possible. I therefore hope that this House will accept mitochondrial DNA. It is estimated that one in 6,500 that what could be the shortest of delays is a necessary babies goes on to develop serious mitochondrial disorders. part of making sure that none of us comes back and The severity varies from mild to extremely debilitating says, “We allowed something to happen that should and may result in early childhood death. Almost 2,500 never have happened”. women of child-bearing age in the UK are at risk of transmitting mitochondrial disease to their children. Lord Patel (CB): My Lords— Estimates based on this figure suggest that between 100 and 150 births a year in the UK risk passing on The Deputy Speaker (Lord Geddes): I assume the mitochondrial disease to the child. If today we were noble Lord would like to move his amendment. discussing cancer or dementia, and how we could modify those diseases with some form of genetic or Lord Deben: I beg to move. mitochondrial manipulation so that people would not get it, everybody would be in favour of it; but as Lord Patel: My Lords, I am sorry for rushing in, mitochondrial disease affects 100 to 150 people a year, but the noble Lord, Lord Deben, excited me so much we do not take it so seriously—or so it seems. with the comments he made that I have to answer some of his points, particularly on safety. I hope that I will now go on to what the noble Lord, Lord noble Lords will have patience, because I need to go Deben, said about the two techniques that we are through each of the points he has made on safety, as I likely to be discussing—the maternal spindle transfer, have no doubt that they will come back again in which the noble Lord prefers, and pronuclear transfer— subsequent debate. and I will say why I believe it is necessary that currently the HFEA, as a regulator, is allowed to decide which It is important that I put down some ground work. method might be appropriate for a given patient in a What are we talking about? We are talking about a given centre. We do not know which technique is the mitochondrial DNA disease that commonly affects more efficient and safer, despite what some others may multiple different organs. Symptoms include severe muscle believe. In fact, they may not be equally efficacious in weakness, diabetes, heart problems, cardiac failure every woman. and sudden cardiac death, as well as central nervous system problems, which include dementia, epilepsy, Pronuclear transfer has been used successfully in stroke and such other horrible conditions. It results in animals for more than 30 years with no evidence of death, which can occur early in childhood or after a adverse effects. On the other hand, maternal spindle prolonged period of incapacity and pain that can last transfer is a newer technique, which is likely to result for years. in less carryover of mitochondria but has a higher risk It is important to have some facts about mitochondrial of chromosomal abnormalities. That is an important DNA genetics and inheritance. Mitochondrial DNA point: pronuclear transfer may have more carryover of is strictly inherited maternally, via the egg. The mitochondria but maternal spindle transfer has a higher mitochondrial DNA copy number and the number of risk of chromosomal abnormality. Maternal spindle mitochondria vary between cell types, with more than transfers are very sensitive to manipulation. The embryo 200,000 in the egg and early embryo down to perhaps is less sensitive in its early stage to such manipulation. 1579 Human Fertilisation and Embryology[LORDS] Human Fertilisation and Embryology 1580

[LORD PATEL] compared with his or her female ancestors. However, Furthermore, both techniques have been found to none of this has resulted in devastating mitochondrial be variable for avoiding mitochondrial disease. Which disease. technique will be used for each individual patient will Evidence has also been cited that a mismatch between be a decision for the patient, based on their informed the DNA in the donor’s mitochondria and the mother’s consent, their clinicians, the evidence from research nuclear DNA might have a negative impact, namely and the safety aspects. In my view, it would be sterility and impaired growth—the noble Lord mentioned inappropriate for Parliament to make a scientific judgment sterility—in the resulting child, as well as slow metabolism. as to which technique should be able to be used. One This issue was considered in great detail by the HFEA thing is certain: the scientists and the clinicians will go scientific panel. In normal human populations the with whichever method is the safest and most efficacious. mixing of nuclear DNA during sexual reproduction If it turns out, through research that is currently going means that there can be a complete exchange of nuclear on, that we can make maternal spindle transfer safer and mitochondrial DNA type over a few generations—I and less likely to lead to chromosomal abnormalities, calculate it to be about six generations. Given that I that is the method that the scientists and the clinicians married an English lady, the mitochondria of my will choose. Research is going on to make that process children have changed dramatically. My ancestors’ safer. There are many ways of doing this. I am not mitochondria are no longer in my children—they have being flippant when I say that one of the methods that English mitochondria. However, I am glad to say that has been tried is to use a small amount of caffeine to they have produced terrific children. Evidence of mismatch make the maternal spindle transfer more stable. Eventually, between nucleus and mitochondrial genomes has come we will get that research right and whatever method is mostly from research where new combinations have safest will be used. However, it would be wrong to opt been made experimentally across animal species that now for one method which is not as successful as have been separated for many hundreds of thousands others. of years or longer—for example, rats and mice. Within Issues have been raised about the health and safety species, such as in some experiments involving mice or risks of some of the techniques. I agree with the noble fruit flies, evidence of mismatch is seen only when Lord, Lord Deben, that it is never possible to be particular sub-strains of a species have been reproductively certain that new medical procedures will be 100% safe isolated from each other and each inbred. The one or effective. That applies to the whole of medicine—drugs, species, the human race, is the most outbred species devices or surgery. Risks have been assessed in detail. there is. Some of us are examples of that. As the Minister said, there have been three separate reviews of the scientific evidence on the technique’s 5.15 pm safety by a specially convened independent panel of Some scientists who support the idea that the science experts. It would be wrong to suggest that these experts currently is not safe cite examples of that kind, involving might be biased when none of them has any financial experiments done on fruit flies and inbred mice. But interest in mitochondrial research or treatment, or let me pose a question. Suggestions that more animal that they might not have understood the issues and experiments are required to test the consequences of that we in this Parliament are more likely to understand disrupting co-evolved mito-nuclear interactions are the science which underpins this research, which has reasonable if we want to understand the importance led to the point where it is now possible to use this of these interactions in the animals used. I agree with technique to help women to have normal babies. that. However, they are unlikely to be relevant to humans, precisely because the specific interactions Decisions on safety and efficacy should be taken by will have evolved to be different in humans compared the statutory regulatory authority created to do this—the with other animals. HFEA. Risks must be balanced. Evidence suggests that any risks of mitochondrial donation are proportionately In humans, it is possible that the future work to less than the significant risk that children will continue which the noble Lord, Lord Deben, referred, on embryonic to be born who will develop severe mitochondrial stem cells derived from human embryos created by disease if these techniques are not used. Ultimately, it either maternal spindle cell or pronuclear transfer, will be up to affected families to judge the balance of where very different mitochondrial haplotypes— these risks. They are the ones who will take the risks. characteristics within the mitochondrion—are exchanged, might reveal issues. But any effect is likely to be subtle. I would like to explore some of the health risks that If people are asking for these experiments to be done, the noble Lord, Lord Deben, mentioned, although he if the view of some scientists now is that it is not did not mention that of the potential effects of the necessary to take the next step of offering this treatment donated mitochondrial DNA on the rest of the cell. I to mothers and fathers, it would require— turn first to traits attributed to mitochondrial DNA. On variations in the 37 well studied genes, a whole Lord Gordon of Strathblane (Lab): Would the noble mitochondrial genome has been sequenced for all Lord comment on the HFEA’s recommendation that, these genes and they have all been found to have one as available data are limited, an extensive range of function in expressing the protein that produces energy. pre-clinical research should be carried out before No other trait has been identified from the sequencing proceeding? of the whole mitochondrial genome. Therefore, the variations have been well studied. Although this is still Lord Patel: The data that the report suggested were contentious among mitochondrial experts, theoretically—I not available were actually presented to the committee. admit—it is possible that a child born after mitochondrial They have not been published because, as any scientist donation might have a slightly different energy metabolism would know, if you publish— 1581 Human Fertilisation and Embryology[24 FEBRUARY 2015] Human Fertilisation and Embryology 1582

Lord Winston (Lab): I wonder whether I can help was used in only one study, which was conducted by my noble friend Lord Patel. Does he agree with me an American, Professor Grifo. They inserted five embryos. that there were very few available data for the first in We do not allow that in the United Kingdom because vitro fertilisation babies, and that that was a step in the of the risk of multiple pregnancy. It resulted in a dark, as were pre-implantation diagnosis and sperm multiple pregnancy. They then tried to reduce the microinjection? Before he concludes his speech, would number of foetuses by injecting one of them to reduce my noble friend be kind enough to answer an important the number of foetuses from three to two. I do not question asked by the noble Lord, Lord Deben, about know what kind of technique they used— the possibility that we might be making infertile children? Was that not the accusation made when infertility was Lord Winston: Dangerous. 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: “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 Lord Patel: I thank my noble friend for that was a publication. It is wrong to say that the HFE did interruption. It was worse than that: it was suggested not ask them; the review panel did. Professor Grifo not only that those children might be infertile, but that sent a letter saying that, in his view, all the foetuses they might be half monsters of some kind. To answer were normal but they died of prematurity. What they the question raised earlier about the HFEA’s evidence— died of was an obstetric botch-up. It had nothing to yes, it did ask, and the evidence was verbally produced. do with what we are talking about today. It was a The reason why it is not published is that anything completely different technique. We should dismiss it that is published, even in the form of an extract, completely. It would be wrong to put any credence on cannot then be published in a reputable journal. I it and say that it is a good reason why we should not know that that evidence has now been sent for publication. do this. To go back to the subject of the evidence requested, I could go on about other safety aspects that were if we were to go down that road and do those experiments, brought up, but let me close by saying that hitherto the what would be required in the human population is science has gone as far as it can in thousands of the deliberate creation and destruction of many hundreds, animal experiments that have resulted in normal pups. if not thousands, of embryos—to prove a point that In human embryos it has gone as far as it can to does not require proving. Hundreds and thousands of produce normal embryos, which, if implanted, there is human embryos have already been tested and found to no reason to believe would not develop into normal, go to a blastocyst state, and I hope my noble friend healthy babies who would not carry the defective Lord Winston will agree that if we see them in that mitochondria. All we are doing today is allowing the state, the embryo will be satisfactory. He nods slightly. regulator henceforth to decide, on a case-by-case basis, The alternative would be human population genetic to issue a licence to those clinics for those mothers studies to fulfil that requirement for evidence. What who request this treatment, and which are allowed to that shows is that exchange of mitochondrial DNA use both techniques that we currently know are safe haplotypes by normal reproduction should reveal while further research goes on. None of us stops combinations that are deleterious. Human population researching: the noble Lord, Lord Winston, still carries genetic studies will do that. Such studies include genome- on researching; the noble Lord, Lord Kakkar, still wide association studies and whole genome sequencing carries on researching. If a chance was given, the projects looking at many specific diseases and syndromes. noble Lord, Lord Walton, would still carry on researching. Those kinds of studies will be required. They do not We do not stop researching; that is the nature of require embryos to be created, nor is it necessary to do medicine and of academic medical science. I hope that these studies before this treatment is available. we will pass these regulations. I know I am going on a bit, but other points were made. If there are points about epigenetics et cetera, Lord Turnberg (Lab): My Lords, I am extremely those are also spurious and have no basis in science. grateful to be able to follow the noble Lord, Lord Let me go now to something that the noble Lord, Patel. I am also grateful to the noble Earl for setting Lord Deben, mentioned twice: the Chinese example. out the issues so carefully at the beginning. I listened The technique that was used in the United States and with great attention to the eloquent and persuasive in this Chinese example is called cytoplasmic injection. speech from the noble Lord, Lord Deben, but I am No doubt the noble Lord, Lord Winston, is more afraid I was not persuaded. I cannot go along with the familiar with it from his work than I am. It is a idea that we should put this regulation on hold for the technique that is not allowed in the United Kingdom. time being. My reason is the awful position parents That is the first point. It is completely different in find themselves in when they have a child severely design and intent from what we are talking about in affected by one of these dreadful mitochondrial diseases. mitochondrial replacement; it is nothing to do with it. They are desperate to avoid having more children with What was done in China was a cytoplasmic injection the same disease. The noble Lord, Lord Deben, started not for replacing mitochondria, but for infertility treatment from the same position but I believe that we are now in in older women. That was also the case in the United a position to move forward. States; it was an extra cytoplasm with possible We have all been bombarded with information about mitochondria in older women, where both are at risk mitochondria to the extent that few of us can be of producing chromosomal abnormality. In China it entirely ignorant of what they are and what they do. 1583 Human Fertilisation and Embryology[LORDS] Human Fertilisation and Embryology 1584

[LORD TURNBERG] Other anxieties have been expressed that we will be Yet there is still considerable room for confusion, at disrupting the relationship between the nuclear and least according to some of the correspondence I have mitochondrial genes: the nuclear genes carry the received. References to GM crops and cloned animals information that determines all the characteristics that are way out of line. Suggestions that mitochondrial make us human, and the mitochondrial genes provide transfer techniques are a form of cloning when they the energy supply for cells. This argument was discussed are nothing of the sort, or that they are on the slippery at great length in the HFEA’s scientific report in 2014 slope to genetic manipulation and designer babies and was found wanting, not least because half the when there is no conceivable link between them, are genes in a fertilised egg are derived from the father and very unhelpful and not part of any reasoned discussion are therefore already foreign to the mitochondria, yet about the issues. I could elaborate on that but will they do not interfere with each other. Furthermore, leave it for the moment to concentrate on what I think mitochondrial genes are pretty well conserved between are the more rational arguments that have been and different individuals because they perform a limited will be made today. number of functions, while there are large differences The noble Earl discussed the safety issues, as did between the nuclear genes of different people, each of the noble Lord, Lord Patel. The suggestion has been whom is made up of a mixture of DNA from a mother made that the techniques may not yet be safe enough. and a father. 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 5.30 pm have been very fully researched for the last seven years. You might expect problems to occur all the time in We have heard about the three thorough scientific normal people if there was a problem of interrupted reviews by expert panels set up by the HFEA. In each, communication between nuclear and mitochondrial further research that needed doing was suggested and genes, but the fact is that we do not see any each time the research has been actively and successfully miscommunication problems arising. On top of all pursued. On the last occasion, in 2014, they clearly that, there is no detectable direct interaction between stated that there were no major safety issues remaining. the genes or the DNA in the nucleus and the It is true that they suggested some further tests—and mitochondria—only indirect actions through protein they are all under way, as we have heard—but they products and RNA, as between any cell activities. Nor, pointed to the fact that at the end of the day there will incidentally, is there any evidence whatever that be no substitute for trying it in humans who carry the mitochondrial genes contribute to any of the features abnormal mitochondria. that one might consider to be human characteristics. In vitro studies in the test tube with human embryos The worry is sometimes expressed that we are messing after mitochondrial replacement have revealed no with the germ cell line and that what we do to the first problems, and experiments with macaque monkeys—yes, offspring will be handed on to her daughters and so they have been done—and maternal spindle transfer on. However, what will be handed on will be only are all reassuring. It is interesting that monkeys are normal mitochondria and none of the egg donor not suitable models for pronuclear transfer techniques nuclear genes. The mitochondrial donor does not because research shows that pronuclear transfer in contribute anything to the nuclear genetic pool, which vitro fails in monkeys but works perfectly well in is all derived from the original mother and father. The human studies. The only way in which safety can be next daughter after that will have a quarter each of finally tested is in humans since no procedure or drug what will then be the original genes of the grandmother can be certainly safe without that. We have gone and grandfather—I hope that noble Lords are keeping almost as far as we possibly can before that step is up—and half from her new father, but she will still taken. We have heard some issues about the China have normal mitochondria despite this dilution of her syndrome, which I believe the noble Lord, Lord Patel, nuclear gene pool down the generations. has dealt with perfectly well. Clearly, that was quite A number of questions have been raised about the something else and not relevant to our discussions legality of pressing ahead with these regulations, as today. the noble Lord, Lord Deben, said—most notably by Equally important is that these regulations do not my noble friend Lord Brennan, who I know is sitting simply allow human trials to start now—they do not; behind me. I would not dream of crossing legal swords they allow the HFEA only to examine applications with my noble friend but I have to say that I have been made to it for full assessment. It will then decide if the convinced by the Department of Health’s legal opinion science is persuasive enough, that those proposing to and more recently by the opinion obtained by the do it have sufficient experience and capacity, and that Wellcome Trust from Mr Thomas de la Mare QC. the patients being put forward are clearly those likely These reassure me that the regulations do not in fact to benefit. Remember that the HFEA is no pushover. contravene any of the provisions of the EU clinical It has in its membership not just three scientists and a trials directive, the human tissue directive, the HFE clinical geneticist but three patients who have gone Act or the EU charter or European Convention on through IVF, a barrister, a professor of philosophy, a Human Rights. It is worth noting, incidentally, that bishop and a national security adviser. That is quite an the Nuffield Council on Bioethics could find no ethical interesting mix but not one likely to be easily moved reasons to object to mitochondrial transfer techniques by faulty argument. It is they and their scientific being used. Both it and the HFEA confirmed that advisory panel who will be assessing applications when their public opinion exercises had revealed considerable these regulations come into force in October. support among the general public. 1585 Human Fertilisation and Embryology[24 FEBRUARY 2015] Human Fertilisation and Embryology 1586

Finally, there is a most difficult question which has made by no less than the HFEA expert panel in 2011— not been raised: the religious conviction of some that should be completed and reported before these regulations manipulation of embryos is basically wrong and against are approved. That has not yet happened. We are therefore God’s will. I am afraid I have no answer to that; I am disappointed by the element of rush now, which I guess not privy to God’s will. However, I know that parents could be occasioned by the forthcoming election. I was who have watched affected children suffer and in turn talking this morning with a GP friend, who said that she have suffered themselves are hoping and praying—yes, could not imagine any drug or treatment being authorised they are praying—that they will be able, some day, to before all the necessary tests had been undertaken and have a child who is normal. What a boon that would reported. In this case, that clearly, according to the be, and I very much look forward to us passing these HFEA’s own recommendations, has not been achieved, regulations today. even though, as we have been reminded, the research has of course been taking place for several years. The Lord Bishop of Carlisle: My Lords, for those Like every other Member of your Lordships’ House, among us—and I include myself—who are not scientists, I am very keen to see help offered to couples who face this is a demanding topic. In fact, I guess that even those the terrible prospect of a child born with mitochondrial who are scientists do not always find it exactly straight- disease. I also know which of the conflicting scientific forward. A significant part of that complexity derives viewpoints I would rather believe. To reiterate, both not from the difficulty of the science itself but from personally and as a representative of the Church of the different—sometimes diametrically opposite—things England I am basically very much in favour of this that we are told by people who have been studying and development. However, I cannot ignore the compelling researching mitochondrial transfer for many years. arguments against pushing this through in haste, and Like many others in your Lordships’ House, I have for that reason I am minded to vote for the amendment recently attended a number of presentations, drop-ins proposed by the noble Lord, Lord Deben. I know that and seminars on this subject. I have also read through it is regarded by some as a wrecking amendment. I do the many written representations that have been referred not see, read or hear it in that way. I would hope that to and which most of us will have received. They any Joint Committee’s work could be completed without mirror the speeches being made in this debate. undue delay. For the same reason, if we reach a Division on the initial Motion before us, I will feel On the one hand, we are assured, as we have been compelled to abstain. 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 Viscount Ridley (Con): My Lords, I must declare an the batteries, so there is no problem there. On the interest in that much of the groundbreaking science of other hand, we are warned by scientists—not just the mitochondrial donation has happened at Newcastle correspondents to whom my noble friend Lord Turnberg University, where my wife also works, although in a referred—that mitochondrial transfer is a form of different field. Also, some of the relevant work has genetic modification which does affect the germ line, taken place on the premises of the International Centre albeit not the nucleus, and could have a potential for Life in Newcastle, of which I am honorary president. impact on the traits of any children, and their children, I am also a fellow of the Academy of Medical Sciences. born as a result of this procedure. Some suggest that I shall be as brief as I can. We have a duty to this would involve crossing a key bioethical threshold consider five simple questions. Is it legal? Is it safe? Is that we could later regret, and we are all aware of the it necessary? Is it ethical? Is it rushed? It seems to me pressure that is being brought to bear on us from that, as the noble Lord, Lord Turnberg, said, we have elsewhere in the world. clear evidence that it is legal for Parliament to enact In addition to all that, from a purely ethical point these regulations. They are explicitly foreshadowed in of view, as my noble friend Lord Deben mentioned, the Human Fertilisation and Embryology Act 2008. one form of treatment, maternal spindle transfer, is They are not covered by the clinical trials directive. for many people clearly preferable to the other type— They are not eugenic, and therefore not in conflict pronuclear transfer. Unfortunately, as my noble friend with the EU Charter of Fundamental Rights. Lord Patel pointed out, the spindle method is currently Is it safe? We have heard that the safety and efficacy less stable, although that may change. of both techniques have been established as far as is The so-called “genius” of the Church of England possible by exhaustive study, independent scrutiny has always been its via media—the middle way—and and public consultation. The case of the Chinese that is where I find myself today. Over the last few years, example, as the noble Lord, Lord Patel, has said, is we have consistently taken a fairly nuanced position simply not relevant to this case. This was an obstetric on this subject. Despite some misleading press reports, disaster that happened to one woman and was a we are not in principle opposed to mitochondrial technique that was intended to cure infertility and had transfer, and it makes a pleasant change for the church nothing to do with mitochondria anyway. As far as we not to be against something. Indeed, I explained this can tell, the mitochondrial transplant element of that to the Minister, Jane Ellison, before the debate in the technique worked. other place and she referred to our conversation in her As for the infertility question, I have to say that I comments there. But, at the same time, we have always think my noble friend Lord Deben has misquoted a counselled a degree of caution, given the potential very distinguished scientist, Professor Robin Lovell-Badge. implications of this development. In particular, we have I was in the same meeting and I did not hear him say always argued that the research tests into safety—set the words that the noble Lord said. He made the point out quite clearly as essential before any further move is that some techniques that are already legal and used 1587 Human Fertilisation and Embryology[LORDS] Human Fertilisation and Embryology 1588

[VISCOUNT RIDLEY] The reason it is not genetic modification, as the probably perpetuate some forms of infertility. We term is understood by most people, is simple: this is therefore already accept that some techniques that are therapeutic, not eugenic. It is germline only for female used may produce children who lead very happy lives babies. As the noble Lord, Lord Patel, said, this is a but will themselves require assisted reproduction. dead end in males. I do not, however, hear the opponents Incidentally, I completely agree with my noble friend arguing that we should license this technology for Lord Deben that we should not argue from authority, male babies, even though that would be perfectly that the consensus of scientists may sometimes be logical if that is their real concern. wrong and that we should make up our own minds. As Finally, is it rushed? Far from being hurried, it has always in science, however, it is the evidence, not the been under development for more than 30 years, under existence of a consensus, that convinces me that this is debate for 15 and under scrutiny for five. There is efficacious and safe. nothing slippery about this slope. There has been no Is mitochondrial donation necessary? If there is rush. Now, however, that we have reached this stage one thing that we have learnt from 30 years of in vitro there jolly well should be some reasonable haste on fertilisation, it is that adoption is not a full alternative behalf of the women whose reproductive life is running to conception. Were we right to give women assisted out and who desperately want their own child, people reproduction so that they could have their own children? such as Claire Wright, who is now 40 and who had to Yes. Millions of happy mothers bear witness to that. watch her son Jacob lose his smile on the way to a Is pre-implantation genetic diagnosis an alternative cruel death. Yes, there is understandable urgency. We in this case? Often it is not, because it is more likely, as would have to have very good reasons to argue that the we have heard from the noble Lord, Lord Patel, because ethical thing to do is to prolong her suffering and that of heteroplasmy, to produce an afflicted child. I was of others like her. I cannot see those reasons. also surprised to hear the noble Lord, Lord Deben, say that the reason we are going ahead with the Baroness O’Loan (CB): My Lords, I very much techniques of maternal spindle transfer and pronuclear support the Motion that has been tabled by the noble transfer is “about money”. I just do not think that is Lord, Lord Deben, for the reasons he very articulately the case. It is very clear, as we have heard from the expressed. The Minister has reassured us significantly noble Lord, Lord Patel, and others, that there are very about these regulations, but he did express many of good reasons to go ahead with both these techniques. the uncertainties that remain. In moving his Motion, Is it ethical? We do not, in the 21st century, have the the noble Lord, Lord Deben, talked about uncertainty. luxury of deciding these things in a theological way. If The noble Lord, Lord Patel, gave us graphic details of we block an advance of this kind and it turns out that the uncertainties of the two processes that are proposed, it could have eliminated suffering safely, then it is on which may result in increased risk of chromosomal our consciences in a way that it would not have been defects. In the light of all that uncertainty, how can it 30 years ago, when we could do nothing. In losing our be right that your Lordships’ House be asked to make impotence, we also lose our innocence. In other countries, a decision of this magnitude before the conclusion of this decision would be up to the regulator already. all the necessary research? Here, uniquely, we have explicitly said that Parliament I want to talk briefly about one issue that relates to should first decide whether the regulator can take such the protection of women’s health. We are told that cases, which is what we are deciding today. these proposals are all about advancing women’s rights, Once Parliament has decided that mitochondrial and yet it seems to me that we are at risk of overlooking donation is not likely to be unsafe, and the HFEA has one very important matter in relation to which these judged that it is safe, it should be up to families to procedures plainly do not advance women’s rights. decide whether they wish to use it. It would be unethical That is the repercussions of the increased demand for for the state to deny them that choice. donor eggs for the women who donate the eggs. The requirement for more eggs is a consequence of scientific We may become the first country to do mitochondrial development, and that is widely accepted. A Nuffield donation, but there is nothing wrong with that. Britain Council on Bioethics report looked into the ethical has been the first with most biological breakthroughs, issues around mitochondrial donation and stated: from natural selection to the double helix, from “One of the major barriers mentioned by scientists when monoclonal antibodies to in vitro fertilisation. In every assessing the potential for cell reconstruction techniques to become case, we look back and see that we did more good than treatments is the fact that many more egg donors will need to be bad as a result. found to undertake the research required in order for the safety and efficacy of PNT and MST to be established, and if therapies 5.45 pm are to be provided in future. A shortage of egg donors is an acknowledged problem in respect of donations for reproduction, In this House, we have been deluged with off-the-shelf and it is not yet clear whether egg donors would be more likely to emails from people overseas demanding that we support come forward”. my noble friend Lord Deben’s amendment to stop so-called GM babies. However, I am afraid the senders Lord Winston: I am grateful to the noble Baroness have been misinformed, as the noble Lord, Lord Turnberg, for giving way, but I do not think that she speaks from said. Describing mitochondrial donation as producing experience. Sadly, I have to say that I do speak from GM babies or, indeed, three-parent babies is using experience. I have run a very large infertility practice phrases that are wildly misleading. You cannot call for a very long time, and we found donors very easily someone with 0.1% of their genes and 0.054% of their when it was concerned with these sorts of serious DNA donated from somebody else the child of three conditions. There was never a problem about finding parents. That is a misuse of the English language. donor eggs for this kind of problem. 1589 Human Fertilisation and Embryology[24 FEBRUARY 2015] Human Fertilisation and Embryology 1590

Baroness O’Loan: I thank the noble Lord for that Admixed embryos were required for the research to be intervention. However, the research shows that there carried out then in order to study the diseases in is a shortage of women donors. embryonic stem cell lines without using human eggs. Eggs used have to be extracted from women’s ovaries She is correct in saying that. On why that research has by a process known as controlled ovarian been abandoned, as the noble Lord, Lord Alton, may hyperstimulation, which can lead to complications for well remember, I made the comment in closing that women. According to the Royal College of Obstetricians the utopian dream of the scientist would be that, one and Gynaecologists, it affects up to one in three women day, we might reach a point where we were able to take to some degree. It says that between 3% and 8% of a skin fibroblast and down-regulate it so that it behaved IVF cycles are complicated by either moderate or like a pluripotent cell. That dream came true two severe OHSS, which can cause a variety of painful and weeks after that legislation was passed, when Yamanaka upsetting symptoms such as abdominal pain, nausea, in Japan published an article saying how it could be diarrhoea, haemoconcentration, thrombosis, pleural done. That is why the research stopped; it was not effusion and respiratory distress. It can be further because it could not be done. complicated by ovarian rupture and renal insufficiency. In some cases, it can be life-threatening. Baroness O’Loan: I thank the noble Lord for his The Newcastle Centre for Life conducted research intervention. It remains the case that there is a shortage on the prevalence of OHSS and published the results. of donated eggs. My concern is for the women who are It found that the risk of hospitalisation increased asked to donate eggs. massively if more than 20 eggs were collected. We do Lord Alton of Liverpool (CB): I am sorry to interrupt not know whether the pattern that it established is my noble friend, but, given that my noble friend Lord repeated at other research centres because the data Patel mentioned this case, perhaps I might reinforce have not been compiled. There is a gap in the evidence what she is saying, because Newcastle is not offering base. The really important point is that, as I understand to provide donation opportunities for women but is it, the collection of 20 or more eggs is very common in asking them whether they will sell their eggs, at £500 per the UK. Tens of thousands of women have been cycle. We all know that that can lead to hyperovulation through the process, so there is a substantially increased syndrome, an issue which I raised in your Lordships’ risk of a serious medical condition. House last week and which I know concerns many of Mitochondrial donation is impossible without a us from all sides of this argument. So there is another supply of donor eggs. The procedures rely on the dimension involved in this. My noble friend Lord willingness of women to undergo a process which may Patel was also right to say to my noble friend Lady bear serious health risks and about whose safety there O’Loan that when we debated these issues in 2009 are not extensive data. Two Answers were given in many of us pointed to things like adult stem cells and Parliament last summer which suggested that the the work being done by Professor Shinya Yamanaka. monitoring of the incidence of ovarian hyperstimulation We said then that arguing for animal/human hybrids syndrome is inadequate. On 9 July, the Health Minister was a diversion when much more important work, like in another place said: that which the noble Lord, Lord Patel, has just mentioned, “The HFEA does not, therefore, hold definitive data on the could have been undertaken. number of women admitted to hospital with OHSS, including non-patient egg donors and egg-share donors”.—[Official Report, Baroness O’Loan: I thank the noble Lord for that Commons, 9/7/14; col. 313W.] intervention. I am not arguing against this process; I On another occasion, it was said that, am arguing against the introduction of these regulations “licensed fertility clinics are only required to report instances of at this time in the absence of sufficient knowledge and OHSS to the authority that require a hospital admission with a severe grading”.—[Official Report, Commons, 24/6/14; col. 157W.] protection. We have to look at the factors, as the noble Lord, Lord Alton, said. Being paid to donate one’s It was stated that other cases that other cases were eggs constitutes a very serious issue for women who reported as well. I do not think that the Government are in poverty and who will do it as a way of raising have given enough consideration to the effects of the money, possibly even to look after their own children. legalisation of mitochondrial donation on the donor’s We need to provide protection for such women. health. There is a possibility that it will lead to further problems. In conclusion, we should not hasten ahead without putting in place clear and comprehensive systems for This concern is underlined very effectively by the monitoring the outcomes of all controlled ovarian fact that the Newcastle scientists pressed Parliament hyperstimulation treatments, including those treatments very hard to sanction legislation to permit the creation that would result in the generation of eggs to facilitate of animal hybrid embryos. Parliamentarians who recall PNT and MST. In this context, I simply ask that we that debate will remember that the principal justification proceed more carefully and that we back the Motion for changing the law was to allow the creation of moved today by the noble Lord, Lord Deben. admixed human embryos in order for research to be conducted without it being dependent on human eggs Lord Winston: My Lords, I declare an interest in because of their limited availability. The legislation that it was my scientific group which started pre- was passed; the research is dead. implantation diagnosis—the first attempts to diagnose genetic diseases in embryos in families who have these Lord Patel: I thank the noble Baroness for giving fatal, sad genetic flaws in them. I congratulate the way. It is important to clarify that point, particularly Minister on his absolutely balanced and fair speech. as it was crucial in the debate on that amendment. From time to time, we have not agreed, but I think that 1591 Human Fertilisation and Embryology[LORDS] Human Fertilisation and Embryology 1592

[LORD WINSTON] and can be done; indeed, there is a very interesting his care, compassion and courtesy are deeply appreciated report from Newcastle University showing how that by the whole House. I also congratulate the noble can be done in some cases. However, it is not always Lord, Lord Deben, on his very clever speech. I do not satisfactory, for the reasons that the noble Lord, Lord agree with what he said and I hope that, at other times, Patel, stated. 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 6pm the difficulties of side-effects. We could not do pre-implantation genetic diagnosis; the lady had another problem. Interestingly, I will say Baroness Scotland of Asthal (Lab): My Lords, before this to the noble Lord, Lord Deben: this lady had had my noble friend goes any further, I say to him that two stillbirths. She had also had a couple of miscarriages. there are real differences in legal opinion. I do not It is quite probable that those losses of life from within think that we have quite sorted them out yet. her were a result of undiagnosed mitochondrial disease. Of course, we will never know, but these people have Lord Winston: I am very grateful to my noble and reproductive failure rather more often. She therefore learned friend for that. had only one choice: her choice was to have antenatal I want to do something which I have done previously testing, which has become increasingly possible, and in debates of this kind, which is to talk from personal now can be rather more reliable than it was then, with experience. I may be one of the few people in the either chorionic villus sampling or sampling the fluid House who have sat with an endless number of parents from around the baby. Amniocentesis is now done. Of who have a genetic disease in the family, have listened course, if the diagnosis is made, this woman would to their problems and have seen the kind of dilemma then be left with the decision whether or not to have an that they face. I am reminded of the child Jeremy abortion. “Martinez”—forgive me if I change the surname, but I I must tell the noble Lord, Lord Deben—because I do not have approval to give the surname of that understand that he is very much against abortion, and patient from some time ago. We were doing in vitro I respect that deeply and appreciate that stance that he fertilisation and pre-implantation genetic diagnosis in has made repeatedly—that the reason why women go the 1980s, and the first babies, who are now 25, were for pre-implantation genetic diagnosis is mostly because born in 1990. At that time, we were looking at the very they want to avoid the chance of having an abortion of common genetic disorders. It is interesting to consider their pregnancy. That has been the consistent reason that there is a vast number—too many, some of us with all the cases that we tackled in the early stages of think—of Members of this House. At least 40 of you, this technology. The other interesting thing is that, on mathematical probability, will carry the fatal genetic although cystic fibrosis is so very common, in fact in mutation for cystic fibrosis. That is very common the first 10 years of our treatment of this disease, we indeed and much more common than the problem had only about 12 births, because very few people with mitochondrial disease, even though we are beginning want to go through with this technology in any case to see that it is becoming rather more common as we because it is so complicated. We were not charging; it get better molecular techniques. is not an expensive treatment but it was a question of What is very clear, and it is very important because whether they really wanted to go through it. it has not been stated, is that the number of families I remember the first patient, Mrs Edwards, whom I who will be of child-bearing age when a mitochondrial can talk about. She was adamant that she was not disease is diagnosed will be very few. That is important prepared to consider another termination of pregnancy because we are not talking about a large number of because it was so damaging, and she felt that it was people; we are talking about a small number, but they morally wrong. I say that facing the right reverend Prelates have a definite problem for which they need some opposite, because they will understand how clearly that desperate solution. They are prepared to do whatever ethical issue is something that these patients consider. they think is best for their families, with informed I want to make that absolutely clear from the start. consent. Ultimately, in a pluralistic, democratic society, we In the case of Jeremy, he was a bit slow to grow, but have certain ethical principles. We have the principle by nine months he could not lift his head. He started to try to do good, not to do harm; to arrive at a just to vomit; he had diarrhoea; he then progressively solution wherever possible, as doctors; and to respect developed muscular weakness and started to get epileptic the autonomy of the individual in front of us. That fits. These fits would often go on all night; this child respect for autonomy means making sure that you screamed with pain and was uncontrollable; eventually, discuss the difficulties of the treatment, the possible having gone both blind and deaf, with severe mental side-effects, and the risks that you might get the diagnosis problems with his brain, he died at the age of two. wrong. By the way, we made a pre-implantation There was no treatment. His mother came to see me to misdiagnosis. I remember one family that ended up ask if there was any possibility that she might have with an affected child in spite of our diagnosis; mistakes some screening of her embryos in the future. This was can happen medically. That child, remarkably, is still in 1989. Certainly, Alan Handyside and I had discussed alive, which is very surprising. The family came to the possibility of looking at mitochondrial disease, terms with that mistake and fully understood that we but we did not have the molecular techniques at that had taken all possible due care, so there was never a time to have any chance of being able to screen an massive issue about that. That was a very remarkable embryo. It is true that that screening has now happened family. 1593 Human Fertilisation and Embryology[24 FEBRUARY 2015] Human Fertilisation and Embryology 1594

None the less, we have to accept that there is Lord Patel: May I comment on that, since the noble nothing worse than losing your child except one thing: Lord refers to me? I do not know of a worse injury than losing your child after watching a gradual deterioration and devastating Lord Alton of Liverpool: I did actually ask the noble death in pain and discomfort, with the disruption that Lord, Lord Winston. that means for the rest of that family. That is something that these families do not get over easily; they have to Lord Patel: I think that the noble Lord was asking try to find some way out of this. Therefore, I beg your him to reply to my comment. He is quite right that Lordships to understand that we need to consider the China has used pronuclear transfer techniques, but the autonomy of individual patients who might not share disaster was upsetting to me. precisely the same values that we have, who may not have the same religious views that we have. I speak Lord Winston: I am very concerned that the noble very clearly about this, because I understand absolutely Lord, Lord Patel, might get into trouble with the that our ethical principles are based on respect for Whip sitting on the Front Bench. I am always in her human life. That is something that I absolutely share: bad books, and I would not want to allow him to be in we understand from the chapters in Genesis that we her bad books as well. are created in the image of God. We understand also Let me answer the noble Lord, Lord Alton. It is that sometimes we are accused of playing God. I say true that, two years ago, I said that it was unpredictable; to the right reverend Prelates opposite—and this is of course, these things are unpredictable. In the context perhaps very presumptuous of me—that playing God in which I was speaking, that was correct. To be fair, is something that we do very properly; it is something however, the noble Lord, Lord Alton, knows that, that we do by imitatio Dei. We do not try to supplant with the case of Jacques Cohen in New Jersey, 17 babies God, but to augment His works because we feel that were born after mitochondrial transfer. Therefore, that is one way of improving and supporting life and there has been some other evidence—other than that nurturing it. Let us be clear: it is not so much about we evidence from China—that suggests that this is not do; it is about having the wisdom and the judgment to quite as daft as proposed. Added to which, of course, make certain that we are doing the best we can in these in two years, a huge amount of research has been done individual cases. We have come to the point now with by our colleagues in Newcastle. They have been working this particular diagnosis that it is absolutely right to go flat out on a whole range of tests which, I think, have ahead with the technology that the noble Earl, Lord made a very big difference. Since the statement that I Howe, talked about in his speech. made in the House, three different committees have Finally, I do not believe—in spite of what we have looked at the safety. heard this evening—that this technology threatens the Science does not have the truth; we have a version fabric of our society in the slightest bit. It does not of the truth. We have to interpret what we can as best threaten the fabric of our society; on the contrary, in a we can. way it protects it because what we are doing is recognising I deeply respect the noble Lord, Lord Alton, as he our limits by accepting regulation. We have not said knows very well. We both come from a very strong that we are going to go ahead with this; we will have to view about what is the right thing to try to do wherever see what the regulatory authority wants. The noble possible. However, I feel here that, apart from the issue Earl knows perfectly well that I have some misgivings of preserving healthy life, if we decide not to vote for about regulation in certain areas, but none at all about the amendment of the noble Lord, Lord Deben, we this. I think that will be shared universally by my are doing something really important. We are expressing colleagues, some of whom are listening to this debate. our concern—our compassion—as a House for people who are faced with an invidious and horrendous choice. Lord Alton of Liverpool (CB): My Lords, the noble Lord and I agree on much of what he has been saying Under those circumstances, given that this will be a today. However, in 2013—just two years ago—when limited procedure affecting very few people, it would he spoke at the Intelligence Squared debate, he said: be utterly wrong for this House to turn down the “And it’s worth bearing in mind that abnormal children have democratically elected Chamber and not to support been born as a result of mitochondrial transfer. This has been what the Government propose. completely unpredictable”. I wonder what, if anything, has happened to change Lord Walton of Detchant (CB): My Lords, at the his mind about that. I suspect that he and I are agreed outset, I have to declare two interests. First, I am the that there obviously are dangers involved in this and honorary life president of Muscular Dystrophy UK, safety questions that he will want to address. May I which, along with the Wellcome Trust and other also ask him—and I will not intervene again—whether organisations, has been sponsoring and funding some he agrees with what my noble friend Lord Patel said of this research. Secondly, I have to say that I have an earlier about the situation in China? I have with me avuncular interest in the department in Newcastle the document Fertility and Sterility 2003, vol. 80, upon Tyne, because Professor Douglas Turnbull, who published on 3 September 2003, which was written by now holds the chair of neurology in that university, Zhang and others, who looked at the procedure that holds the chair which I held 32 years ago. was used in China. Although we were told that this I say just in passing to the noble Lord, Lord Deben, was not cytoplasmic transfer, does he agree with my to whom I listened with the greatest possible interest, noble friend Lord Patel, or does he agree with what is that he may not remember that I was the neurologist here in the statement that this was a pregnancy derived on the Southwood working party, which advised his from human nuclear transfer? department on BSE and produced a report which 1595 Human Fertilisation and Embryology[LORDS] Human Fertilisation and Embryology 1596

[LORD WALTON OF DETCHANT] I need to remind the House that in 2008, when we ultimately led to the disappearance of BSE and its discussed the new regulations and what became the human form, Creutzfeldt-Jakob disease, so he does Human Fertilisation and Embryology Act 2008, one not need to lecture me about the precautionary principle. of the plain purposes of the Act was to permit regulation- There is one sensitive matter which I feel that I must making powers to amend the definition of a permitted raise at this stage. I am a lifelong member of the egg and a permitted embryo for the purposes of preventing Methodist Church, although I at present attend an the transmission of serious mitochondrial disease. Anglican church. I know full well that from the very That was a decision by this House in 2008, and I was first day that the whole issue of human fertilisation heavily involved in the debates at the time and discussed and embryology came before this House, it was bitterly the whole process by which mitochondrial transfer, as opposed by the Roman Catholic Church. I do not carried out by pronuclear transfer in Newcastle, could suggest to either the noble Lord, Lord Deben, or my be used to prevent the birth of children with those noble friend Lord Alton that their adherence to and devastating diseases. strong faith in the Roman Catholic principles has in They are devastating diseases. I diagnosed many such any way influenced their attitude to the regulations; patients in my time as a neurologist in Newcastle and but at every stage from the first regulations to allow elsewhere. Epilepsy, muscular paralysis, dementia, human fertilisation and embryology to take place, blindness and deafness can result from mitochondrial they have been bitterly opposed. mutations. The problem always was that women carrying I must confess that I did discuss the whole issue of those mutations would pass them on to all their children the status of the human embryo with an old friend, the of either sex. Of course, the results were variable, and still late Cardinal Hume, whose father was a professor of are. Some of those diseases are devastating and produce medicine in Newcastle, Sir William Hume, who taught death in infancy. Some are much less serious, but none me briefly when I was a medical student in the early of them is treatable, except by supportive treatment. 1940s. Cardinal Hume and I discussed the whole issue, None of them can be cured by any form of treatment. and I told him that I simply could not accept what the In 2008, I tabled an amendment stating that “a Roman Catholic Church has now decreed. Many, licence may provide”, with the intention at the time of many years ago, St Thomas Aquinas said that life did seeing whether we could accept that the HFEA could not begin until the foetus was capable of independent at that stage issue a licence to legalise the process. It existence outside the womb. It was a Pope in the was made clear to me that it was premature, and that 19th century who decreed that life began at the moment much more research was necessary. That research has that the sperm entered the egg. been done over the succeeding seven years in Newcastle I said to Cardinal Hume that I really could not and elsewhere. The researchers have worked tirelessly believe that a small bundle of cells carry the same and produced a substantial number of embryos by status in society as a mature adult, and that that was pronuclear transfer, embryos which gave every evidence something with which I profoundly disagreed. We of being totally normal—the only problem being that, discussed it and regularly went on to have a powerful until regulations such as these are passed, it is illegal to exchange of views and then to decide that we could implant them into a uterus to allow children without not agree, but then moved on to discuss a matter of mitochondrial disease to be born. much more mutual concern: the fortunes of Newcastle I believe that the time has come. I talked to so many United Football Club. When, in 1980, the city of of the women who carried the mutations. I talked to Newcastle decided to create a number of new honorary so many of their families. The agony and distress that freemen to celebrate its 900th anniversary, among they experienced, knowing that any children that they them were me as dean of medicine, Cardinal Hume had would carry those devastating diseases, was pitiful and Jackie Milburn, the former England and Newcastle and caused me very great concern. I have to say that I centre forward. Cardinal Hume said that it was the now firmly believe that the work has been done: all the greatest day of his life: all his life he had been waiting research has been done, the consultations have been to meet Jackie Milburn. widespread. The Nuffield Council on Bioethics, along with the expert committees, has issued a series of 6.15 pm completely positive reports. All the organisations in I move on from that to say that the whole issue of the medical profession, starting with the BMA, the human fertilisation and embryology and each of the royal colleges, the Medical Research Council and the amendments to the Act and new Acts all came under Association of Medical Research Charities, are universally attack from the Roman Catholic Church and its adherents in favour of accepting the regulations at this stage, throughout the process. They opposed the whole question because they believe that the consultation, along with of preimplantation diagnosis of serious diseases, such the research, has probably been the widest, most as Duchenne muscular dystrophy, in which I had a comprehensive and most detailed that has happened particular research interest. They opposed the development in the case of any medical procedure in history. I of stem cells based on human embryos—bearing in believe that very strongly, and I cannot stand the mind, of course, that many of the eggs that were later thought of now extinguishing the hope of these women to be produced from those human embryos were donated and families, who believe that this procedure will allow voluntarily by the women from whom they were obtained, them and their offspring to have normal children just as the eggs that are used in mitochondrial transfer without mitochondrial disease. For that reason it is have been voluntarily and willingly donated by the crucial that these regulations should now be passed. It women when they were surplus in in vitro fertilisation is not the end of the story, because once the regulations programmes. are passed in this House no procedure to implant these 1597 Human Fertilisation and Embryology[24 FEBRUARY 2015] Human Fertilisation and Embryology 1598 embryos can be carried out except under a licence from this severe disease and are desperate to pursue treatments which the HFEA. Every individual case will be considered. can help them to have a healthy baby. They have every right to That process will be there to provide the protection make their case for this change. Similarly, we all admire the hard work and ingenuity of scientists who have developed these techniques that many doctors and Members of this House appear with intention of combating genetic disease”. to need. However, the time has come when we must I warmly agree with that statement. We have scientists move forward. in our country who are second to none. He continued: “However, legislators have to consider not just individual Baroness Scotland of Asthal: My Lords, this has interests but the interests of our society more broadly and should been an extraordinary debate. We have had a feast consider too what precedents are set and what lines are crossed by from the best in the medical profession on all sides. It the laws and regulations we make. Different legislators will of is clear that there is real agreement and empathy about course reach different conclusions on these questions and views the need to make a difference for those women who may change, but I am not persuaded this would be the right thing suffer so perniciously in relation to mitochondrial to do now”. difficulties. There is also consensus on the need to do That view was clearly shared by Dominic Grieve, something to relieve that suffering and pain. There is because both voted against the Motion in another no dissonance between any of those who spoke, although place. That is why I was worried. Why did my two they differed on what we should do about it. Perhaps colleagues disagree? Why were they not comfortable the calm voice of reason, if I may respectfully say so, with this position? I looked at the science and had the came from the very balanced intervention of the right most wonderful explanation—I will not call it a lecture reverend Prelate, who, with great modesty, rejoiced in because it was a delight—from my noble friend Lord the fact that for once the Church of England could Patel when we were in Doha of the differences that agree with the noble Earl, Lord Howe, about something made this such a safe and necessary option. Here, on of real importance. Therefore, there is no disagreement our Benches—they now sit together—are two of the about the need to do something. best members, I respectfully suggest, of the medical I congratulate the noble Lord, Lord Deben, on profession. They, too, are urging us to go on. Why, giving us the opportunity for this debate. He is right to therefore, were my two legal colleagues so concerned? say that had he not tabled the amendment, which has I looked for myself. Did they have a point? Was there a exercised so much of our attention, we would not have legal problem that was not being faced? I regret to say been able to take advantage of the House’s wisdom. that there is. The real question raised by the amendment of the noble This issue is complex and difficult because it is an Lord, Lord Deben, is one of timing. I listened with issue that is not just centred on ourselves. The European great care to the very fair, very balanced and exemplary dimension is also important. One of the reasons why I introduction of the noble Earl, Lord Howe. It came to understand this issue so painfully well is that I had the this. We have now all worked extremely hard, the advantage of being the UK’s advocate when we were election is upon us and we have no idea of the complexion arguing about the charter between 2001 and 2003. I of the next Government. Therefore, carpe diem—do therefore looked again at the regulations. I wanted to this now. The right reverend Prelate the Bishop of understand them better. I must ask the noble Earl, Lord Carlisle fairly raised this question. But for that election, Howe, why he is so certain that these rules comply would we now be in such haste? The concluded results with the European legislation and why the Government of the research would normally be waited for. An are confident that the concerns expressed by both the opportunity for real debate would be seized. current— I, like all Members of the House, have been bombarded by emails and letters of all complexions on this issue. 6.30 pm What surprised me as a former law officer was to see Lord Hope of Craighead (CB): I am very grateful to who agreed and who disagreed. There is a view that if the noble and learned Baroness for giving way. Can you have three law officers in a room you might get she explain to the House what advantage there would five different results. Therefore, it was with real surprise, be in referring the matter to which she is now addressing and a little concern, that I noted that both of my her remarks to a Joint Committee? Take, for example, successors in title, the right honourable Dominic Grieve compliance with the statute that already exists where and Her Majesty’s current Attorney-General, did not the regulations are ultra vires. Surely that is a matter agree that this regulation should go through now. That for determination by a judge and nothing that your gave me—I do not know about any other noble Lord— Lordships can say in the House today, or indeed that a real pause. Why would my two successors in title Joint Committee could say in its report, would resolve disagree on the timing? I therefore looked first at the that issue in a way that would tie the hands of a court. explanation that the current Attorney-General gave to I rather suspect, although her knowledge is greater his constituents. It is probably fair that this House than mine, that the position is exactly the same in should have the benefit of it. He said: Europe. Therefore, I cannot see that referring the “This week the House of Commons debated and decided to matter to a Joint Committee, as the noble Lord, Lord approve regulations allowing mitochondrial donation, a process Deben, asks us to do, would advance it except simply of replacing a small amount of DNA in cells in an egg or embryo to delay the decision on the issue, which would ultimately to avoid the child which will later be born suffering from genetically inherited mitochondrial disease”. have to be taken by a court. He went on to say: “First let me set out where I think there has been general Baroness Scotland of Asthal: My Lords, the issues agreement. This is a difficult decision to take. Everyone will have in relation to how the charter impacts upon the legislation huge sympathy for parents who know their children will inherit that we are discussing have not been sought out, have 1599 Human Fertilisation and Embryology[LORDS] Human Fertilisation and Embryology 1600

[BARONESS SCOTLAND OF ASTHAL] would have the opportunity to test the legal opinion? not been argued and have not been developed. One of It certainly did that with the cytoplasmic hybrid embryos, the essential issues, if we are to do something which if we go back to 2007. The HFEA then took a series of everyone agrees is novel, different and important legal opinions to inform it in its opinion against the internationally, is that we have to be confident that we Government at that time. Why cannot that process go are on solid ground because if we are not, we give a on at the same time? disservice. There are two things. One is that the research that is still awaited and, as was mentioned by the right Baroness Scotland of Asthal: The real issue is whether reverend Prelate, is to be forthcoming should be available. we are going to abrogate our own responsibility. Is this The second is that these issues in relation to the charter something which we should ask an outside agency to could be properly articulated. I looked quite carefully do? Should we make a decision where we cannot come to see whether this has already been done. Had that to a fully informed and articulated decision ourselves? already been looked at, and was there an answer in the If we are left in the position of saying, “I am not letter of the 17th that the noble Lord issued? Were all entirely sure about the research or the sagacity of the the worries that I have—I am afraid that there are about legal principles being advanced that enable me to pass 20 pages of them—dealt with? However, they have not this”, surely we should wait until that is clarified. If been. So the question comes back: why the haste? the House believes that it wishes to abrogate that Everybody agrees that we have to get this right and responsibility because the nature of the issues we are having worked so hard and so long, and knowing of dealing with are such that we feel comfortable about the pain that many have already spoken about, what a doing that, then of course that is always a matter for cruel thing it would be to do this and then say that the us. But I simply argue that what is being asked for is legal basis upon which it was founded was flawed. The what I hope to be a relatively short period for these noble and learned Lord, Lord Hope, is right that if in matters to be fully considered and fully put to rest. the final analysis the arguments we articulate and I am very conscious of time but there are a number which go through the Select Committee are not sufficiently of arguments that we could put forward on the law, sound, the only way in which the sagacity and value of which would help to further exemplify that this matter these legal principles can be tested would be in a court. is not easy. It is complex. The reason I emphasise that That is what would happen. the law officers are disagreeing is the following. All law officers are in the same position. We are not here to tell Lord Hope of Craighead: Does the noble and learned people what they want to hear; we are here to tell them Baroness also agree that until the regulations are what they need to know. That should be valued by the made, the matter cannot be tested because courts do House and I am sure that the House would want to be not deal with hypothetical arguments? They regulations confident that doing this, which everyone hopes would have to be made, so if this issue is to be properly tested be a good thing, should be lawfully done, too. in a court the first step is to make the regulations. Lord Mackay of Clashfern (Con): My Lords, one of Baroness Scotland of Asthal: My Lords, there are the bases of my noble friend Lord Deben’s amendment two steps. I would argue that the first step is that if a to the Motion is this question of whether these regulations Select Committee is able to deal with all these matters are lawful. I have studied quite carefully the opinion of the proposal currently before us in draft, and which the noble Lord, Lord Brennan, with a junior. I have seen would today go into regulations, would be the basis of other opinion as well but I am thinking now only of my the Select Committee’s examination. If that basis is own analysis of what the noble Lord and his junior said. found to need some minor alteration or amendment, it The first point is: is this lawful under the domestic would be that amended version which would then law of the United Kingdom? My answer is that it is come before this House and form part of the regulations. clearly lawful because, in 2008, this Parliament passed That would be the issue that would likely be tested if an amendment for the purpose of allowing such there was still disagreement. regulations to be made. That is as clear as it can be, My hope would be that the concerns that have and you do not need to be a lawyer to think that it is properly been raised could be dealt with by the Select possibly quite a good point. The result of the opinion Committee, particularly if we were to persuade some that the noble Lord, Lord Brennan, has given on this of the noble and learned Lords who had perhaps point is that that amendment would be held to be served in the Supreme Court in the past to lend us pointless. The courts are not very keen on reaching a some of their expertise on that Select Committee. One conclusion that a deliberate action of Parliament is of the advantages that we have in this House is of without point, so I feel very strongly that these regulations having that level of expertise. That is why we could do in draft are lawful, within the domestic law of the this in rather a short compass. First, I do not agree United Kingdom. with those who think that this issue should be kicked Now we come on to the complexities of the European into the long grass. It should not. Secondly, I do not law. Like the noble and learned Baroness, I have had believe that a Government of any complexion, as has some experience, now long past, of appearing before been said in this debate, who had a very well reasoned the Court of Justice in Luxembourg. Masters of and consensual Select Committee report would hesitate complexity are very difficult to find at a greater level from implementing it. than it has. The essential point about this, however, is very clear. If the noble Lord, Lord Brennan, is right, it Lord Willis of Knaresborough: Does the noble and is not a question of these regulations being wrong; it is learned Baroness agree that if the regulations were that the whole procedure that they are aiming to do is agreed today, and therefore passed, the HFEA itself unlawful according to European law. That is fundamental. 1601 Human Fertilisation and Embryology[24 FEBRUARY 2015] Human Fertilisation and Embryology 1602

I do not believe that it is correct, because I do not reminded that when I had the responsibility of taking think that the European Union has a treaty basis if we the 1990 Act—the original Act in this area—through are dealing with medical procedures in the member states. this House, the then Bishop of London took quite a The regulations that are referred to in great detail—huge prominent part in the discussions. His watchword was definitions and all the rest of it—are intended to deal caution—and he thought that that amount of caution with the furtherance of the common market. Therefore, had been built into the procedure by having the HFEA if you get a tablet in Germany that is supposed to be examine individual cases and be in charge of the suitable for you, then it would be equally suitable in licensing. this country— 6.45 pm Baroness Scotland of Asthal: Can I just help the noble and learned Lord by saying that the thing that Baroness Hollins (CB): My Lords, I take a rather concerns me is Article 6.3 of the treaty and the way in different view from some of my eminent medical which the charter has been incorporated to consolidate colleagues. I have worked for over 30 years with families all the other European laws that were there before the of severely disabled children. As a psychiatrist—and making of the charter? It was the charter itself, and as the mother myself of a child born with a severe the way in which it has changed things, which makes developmental disability—my heart goes out to those the difference. I am not focusing primarily on the parents facing the prospect of inherited mitochondrial issues that have been referred to by my noble friend disorders. As a mother, I understand what is called the Lord Brennan in his opinion. I am really looking at moral imperative to try to help. However, our first those issues that arise as a result of the charter. I do responsibility must be to the children who may be not believe that their proper interpretation has been created through these proposed interventions: the most dealt with. I know that the House will not like me very important moral imperative must be to do no harm. much if I go through the whole charter, but I am very A new technology of such potential importance happy to share the issues which really concern me with must take as long as is needed to be as sure as possible the noble Earl, Lord Howe. of its safety. Being first is not always best. I have carefully read the HFEA 2014 review of scientific Lord Mackay of Clashfern: So far as I have understood methods. It has been implied that the scientific reviews the European treaties, they do not confer an authority have not raised any concerns, but in paragraph 3.7.25 as yet to interfere in the medical procedures within the the review states, member states. That is basic, and means that they “although the results with the two techniques continue to be cannot interfere or render unlawful a medical procedure promising, further experiments need to be carried out before such as the one proposed in these regulations. I could introducing either into clinical practice to provide further reassurance go into the detail of it—I am sure that would not be about efficiency and safety”. very acceptable—but I have two principal reasons for I asked a Written Question in December asking thinking that that is right. The first is that no challenge, whether clinical trials were being planned and I am so far as I know, has been offered by the European grateful for the helpful reply from the Minister and the Commission to the provisions in the 2008 Act—which mention he made of it in his opening remarks—although of course would be the right place to challenge this, if I disagree with his interpretation of medicine, which is it were unlawful. This provision was definitely intended defined much more broadly in the European directive. to make these regulations possible. The second reason The Minister also explained that, that I advance is that in the opinion of the noble Lord, “for any new IVF technique there will need to be careful monitoring Lord Brennan, a reference is cited to a treaty dealing of the procedure and, subsequently, any pregnancies”. with these matters which is outside the European Union. But we are not talking about pregnancies primarily; It has a number of members of the European Union this is me as the psychiatrist talking now. As the noble as signatories, but it has not been signed by the United Lord, Lord Deben, pointed out, we are talking about Kingdom, nor ratified of course by the United Kingdom, children—children who will, we hope, grow up to be so it is not part of our law. That is the kind of law that healthy human beings, and who will themselves be deals with embryology in a way that might have been able to have healthy children. But what if they do not? difficult for us if it had been part of the European Union. These are simple reasons why I think this situation In paragraph 3.7.29 the HFEA expert panel said: is reasonably clear. Of course, I accept that the law “Until knowledge has built up that suggests otherwise, the officers have taken a different view. We have not had a panel recommends that any female born following MST or PNT”— chance of discussing it in detail with them. The other maternal spindle transfer or pronuclear transfer— point I have to make is that no amount of discussion “should be advised, when old enough, that she may herself be at in a Joint Committee can settle this matter. The only place risk of having a child with a significant level of mutant mtDNA, it can be settled is in a court of law, either the domestic putting her child, and if female, subsequent generations at risk of courts of the United Kingdom or, if necessary, the Court mitochondrial disease”. of Justice of the European Union in Luxembourg. In The science is complicated, but there is apparently a a sense, if that is a real point, the sooner the regulations real possibility that resulting embryos from a woman are passed the better so that they can be tested. born after MST or PNT could be heteroplasmic— So far as the point made by the right reverend Prelate is concerned, I understood that the research Lord Patel: May I ask the noble Baroness what that the HFEA was asking for has been done and is in experiments she would propose to determine that the the process of publication. It just does not happen to children born through this procedure will be healthy in have completed publication. As he was speaking I was every way, including reproduction-wise? 1603 Human Fertilisation and Embryology[LORDS] Human Fertilisation and Embryology 1604

Baroness Hollins: My Lords, I do not think that The Government underlined how important this point intervention is very helpful as it is not relevant to the was to their policy in their consultation response when point I am making. The issue of heteroplasmy was they said: spoken about earlier, and it simply means two or more “Most importantly, mitochondrial donation techniques do different mitochondrial DNA types coexisting in a not alter personal characteristics and traits”, single cell. The review panel concluded: of the person, the implication being that if this technology “These levels may still not be sufficient to cause her children to were to affect personal characteristics then the have a problem, but subsequent generations could be affected”. Government would withdraw their support. In paragraph 4.3 the panel stresses that, “it should be accepted that there will always be some risk and So the ethics and the safety of the science are unknowns associated with the use of MST or PMT in humans inextricably linked. Unfortunately, it seems that we are until it is tried in practice”. still at the beginning of understanding the complex I understand that and agree with it. interactions between mitochondrial and nuclear DNA. One argument for agreeing the recommendations Some recent empirical studies on animals have suggested now is to enable the HFEA to license these techniques that mitochondria indeed affect characteristics, and as soon as it is convinced that there is sufficient evidence that there is a relationship between mitochondria and of safety without then having to seek parliamentary memory, temperament and behaviour. As a psychiatrist, approval, thus possibly delaying implementation. In I see temperament as a personal characteristic, and I 2008, Dr Evan Harris, the former Member for Oxford think it was for that reason that the New Scientist West and Abingdon, a champion of the 2008 Act, withdrew its support for the techniques. In an editorial said: last year it said that, “Safety is clearly a concern… If Parliament decides that it is “we may have seriously underestimated the influence that mitochondria not safe enough to allow the HFEA to consider licensing something, have. Recent research suggests that they play a key role in some of Parliament would not draft, confirm or pass the regulations”.— the most important features of human life”. [Official Report, Commons, Human Fertilisation and Embryology Bill Committee, 3/6/08; col. 35.] I note that the Government’s own consultation Agreeing the recommendations now seems to be putting document acknowledged the diversity of problems the chicken before the egg. Supporters of the techniques— associated with mitochondrial disease, including learning disabilities, neurological problems, autonomic dysfunction Viscount Ridley: The noble Baroness made the point and dementia, and that every person’s symptoms are that heteroplasmy, and therefore the carryover of the different. The Government’s response to the consultation diseased mitochondria, is possible under this technique. concluded that they do not alter personal characteristics. Does she agree that experiments show that the likelihood One problem that I have with the current proposals is is less than 5%, whereas pre-implantation genetic diagnosis the idea that mitochondria are mere batteries, which is has it at up to 40%? That is a legal procedure, so we are what has been quoted in so many of the papers that talking about trying to legalise a safer procedure than have been circulated to Peers. The New Scientist leader something that is currently legal. comment in September last year said that most debate around the issue had worked on the assumption that Baroness Hollins: Again, I do not think that is the mitochondria were simply cellular powerhouses. However, point that I am trying to make. Maybe I am not being given their newfound influence over our bodies, the quite clear enough. implications of this technology may be far more radical than we have assumed. The leader made the point that Lord Tebbit (Con): Would the noble Baroness not it seems that mitochondria, far from being passive agree that there is only one absolutely safe way to ensure power plants, influence some of the most important that this disease is not handed down from generation aspects of human life, from memory and ageing to to generation, and that is for those women who are combating stress and disease. They even have influence carriers of the genetic fault not to have children? That over the DNA in your cell nuclei and change and may be an appalling thing for me to have said, many evolve during your lifetime. people would think, but there are many people who I have been inundated by emails, as I am sure we all for various reasons cannot have children. have, from people who are concerned. I had an email from a cell biologist working in California, Professor Baroness Hollins: That is a good point. Paul Knoepfler, who contributed to the HFEA’s call Supporters of the techniques simplify the impact of for evidence. He said that, these proposed procedures by saying that mitochondrial “mitochondrial transfer might be proven safe, but then again it donation is like changing a battery. Their argument might not. From my perspective as an impartial (scientific) observer runs that mitochondrial DNA relates only to power … putting myself at some risk by publicly opposing this technology production in the cell but does not affect the DNA, … its approval at this time would be a … risky gamble with which encodes our characteristics, and therefore that children’s health and lives”. exchanging mitochondria should not be seen as ethically He says that many scientists have told him that privately significant. In a debate last September, the honourable they share his concern. Member for Havant in another place summed up this I have one question for the Minister: would he position well when he said that the techniques represented, withdraw his support for the regulations if he thought “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 the role of mitochondria was more than mere That is why I do not believe that there is an issue of dignity or power production? Wouldhe then support the amendment integrity of the individual”.—[Official Report, Commons, 1/7/14; of the noble Lord, Lord Deben, for further consideration col. 98.] of this matter? 1605 Human Fertilisation and Embryology[24 FEBRUARY 2015] Human Fertilisation and Embryology 1606

Until recently, the Wellcome Trust had on its website I will move on. Having seen this technique at work a statement suggesting that the procedure would be in the clinic, I am absolutely reassured that the expertise able to go ahead in late 2014, when the science was is there and, therefore, that the technique of mitochondrial ready. But is the science ready? I am not quite convinced donation, if allowed, could be carried out successfully. yet. As noble Lords may be aware, I chair the BMA I will speak briefly about the families who are board of science, which has not yet discussed this matter. currently facing the prospect of having children with I have discussed my support for the noble Lord’s severe mitochondrial disease. We are told that the numbers amendments with senior officers of the BMA, and of those who will have severe disease is in the order of perhaps I may clarify the BMA’s position. Its support 10 or 20 per year. This technique can be fully utilised for the principle of such reproductive technologies has only after the regulations have passed, the HFEA has been expressed as an ethical principle to allow the cautious ensured that it is safe and each unit has demonstrated exploration and development of such technologies. I that it can do it safely. Only then will these families be have concerns about the timing of these regulations, able to have this done. and for that reason I welcome the opportunity to Informed consent is a prerequisite in any medical debate them presented by the noble Lord, Lord Deben. procedure. Informed consent is important because patients have to be sure that what they are having done Lord Ribeiro (Con): My Lords, we have heard from is in their best interest. They have a choice of whether legal and medical experts. I am happy to say that I am to accept what the doctor is offering or to reject it. My not an academic and I know very little about the noble friend Lord Ridley referred to Claire Wright, a subject. However, it strikes me that if we look at the mother who lost a baby at 18 months. I was fortunate practicalities from the point of view of the parents to meet her yesterday and to hear her story. What she who are afflicted by this condition, and we turn back said to me was very moving and touching. If she had to 1978 when baby Louise Brown was born as a result the opportunity to have mitochondrial donation done, of the in vitro fertilisation undertaken by Steptoe and her concern was that the clock was ticking and that Edwards— she may have reached the point where she would no longer be able to undergo the procedure. Yes, she could A noble Lord: In Oldham. 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 Lord Ribeiro: In Oldham—quite right. From that that to happen. one invention, nearly 5 million children have been born Nothing that we have in medicine at the moment who otherwise would not have been because their parents can provide 100% safety— 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. Lord Alton of Liverpool: I am grateful to the noble This fatal Motion seems to carry some of that feeling Lord. Before he moves on, I want to speak to his point with it. about adoption. Your Lordships will have seen the I am a mere surgeon. I had the opportunity to visit recent parliamentary reply on this. In the past five the Lister Fertility Clinic with a parliamentary group years, around 5,000 newborn babies have been available to learn a bit more about IVF and how it was carried for adoption. That is all, compared with more than out. I watched the technicians—not the doctors—who 1 million babies that have been aborted during that period. had gained expertise in intracytoplasmic sperm injection. Does he not think that we should be much more That is the technique whereby you isolate the egg, find interested in seeing if we can put right that imbalance? a lively sperm and then inject it straight into the Does he also recognise that there is a difference cytoplasm. The technique that has been suggested for between the two techniques that are being offered to mitochondrial donation is not dissimilar from that. A the House today, maternal spindle transfer and pronuclear lot of expertise has been gained over the years when transfer, in that one requires the destruction of human that has been done. I heard the noble Baroness, Lady embryos, 2 million of which have been destroyed since O’Loan, and, I think, my noble friend Lord Elton the original legislation was enacted in 1990, and the refer to the situation of donors. 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 Lord McAvoy (Lab): The noble Lord seems to be result in the destruction of human embryos? 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, Lord Ribeiro: It was made very clear by the noble or tampering with the contents of the egg or embryo Lord, Lord Patel, and others that the need for the two itself. This technology requires both. 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 7pm produced are discarded after the 14 days or so that are Lord Ribeiro: I take the noble Lord’s point. If I allowed. I will not go into the question of adoption. It wanted to, I could explain why this is not an issue. One is a matter of choice. If the family would prefer to point that arises is that it is illegal to tamper with the have a child without this affliction, that is their choice, nucleus. The technique that we are discussing relates and they may not choose to go down the adoption specifically to mitochondria. route. 1607 Human Fertilisation and Embryology[LORDS] Human Fertilisation and Embryology 1608

[LORD RIBEIRO] I have no professional expertise in this or in any Returning to the subject of safety, as has been other area of disease. So, like most other women and stated, no procedure can guarantee 100% safety. Even men in the street, I rely on the rigour and competence the natural birth that we all go through will produce of our regulators, ethicists and clinical testing systems children with defective genes and abnormalities; even to provide the best possible guidance on new techniques nature cannot get it 100% right. To expect a situation and procedures, to enable me to make up my mind—even where we have to demonstrate to all and sundry that if some of the evidence is contradictory. All the bodies this procedure is 100% safe is impossible. that I referred to earlier, and others which represent Finally, it is important to recognise that passing the families of those tragically affected by the disease, this regulation is not opening Pandora’s box. We are favour this regulation to permit mitochondrial donation. not going down the route of eugenics and we will not They have provided excellent briefings, and there was create monsters. We must trust the scientists. We must a hugely helpful seminar yesterday where experts on recognise that we have regulation in this country—one different aspects of this issue addressed a range of of the most regulated countries in the world in the concerns. They have pointed to seven years of intensive health field—and I believe that we must leave it to scrutiny, three separate reviews of the scientific evidence them to make the case. As was said by my noble and on the technique’s safety, independent ethical reviews learned friend Lord Mackay of Clashfern, the decision and an extensive public consultation. Currently, the was already made in 1990, when he was responsible for law allows for these techniques to be used only in taking the Bill through Parliament. In 2008, it was research. It is up to us in Parliament to decide whether modified with the full understanding that this type of these techniques are ethical and whether they may, technique might well be brought into use. with safeguards, be used in patients. The day has come, the time has come and, frankly, The Nuffield Council on Bioethics found that, given we must just get on with it. the benefits to individuals if shown to be sufficiently safe, the techniques are ethical for families to use. The Baroness Warwick of Undercliffe (Lab): My Lords, public, during consultation, concurred. The Wellcome I come to this debate without any expert legal or Trust has helpfully set out the scientific evidence and medical experience or perspective. As a former chair detailed reasons why the procedure cannot be seen as of the Human Tissue Authority, I worked closely with genetic modification. What is very clear is that scientists the Human Fertilisation and Embryology Authority, throughout the lengthy period of research have been the well established regulator in this area. I came to open and transparent. Nothing has been hidden, including know the way in which it regulated and certainly had their disagreements. There has been no conspiracy, as confidence in it, as indeed Parliament has. As a former some of the critics seem to have suggested. chief executive of Universities UK, I am also familiar I found that I had a lot of sympathy with my noble with the research trials that are rigorously and vigorously friend Lord Turnberg and the noble Viscount, Lord undertaken in health research before any change or Ridley. All the evidence I have seen and the arguments new technique is introduced into clinical practice. I I have heard reassure me that this is not a slippery have come to know the bodies which speak for science slope or an open door, or any other cliché. Nuclear and for medical research, such as the MRC and the DNA is not altered, so donation will not affect the Royal Society, and the Association of Medical Research child’s appearance or personality, or its uniqueness. It Charities, of which my noble friend Lord Turnberg will simply allow parents to choose to have children has been a scientific adviser, as well as the Nuffield who are genetically related to them but who are free Council and the Wellcome Trust. I realise how fortunate from potentially devastating disease. I trust that the we are in this country to have pre-eminent organisations, House will support these regulations. respected around the world, the main aim of which is to ensure that research is rigorous, honest, thorough Lord Alton of Liverpool: My Lords— and ethical. I say all this because I take great comfort in the fact that, where there are complex areas of Lord Maginnis of Drumglass (Ind UU): My Lords— science or new techniques, particularly where they might be controversial—as with fertility and genetics—we have the knowledgeable, forensic and wise guidance of Lord Singh of Wimbledon (CB): My Lords— these bodies to help us in Parliament to arrive at secure solutions. Lord Taylor of Holbeach (Con): My Lords, it is a Mitochondrial DNA disease is severe. In most cases, rule of this House that only one person speaks at one we are told, it causes early infant death, and the few time. I ask noble Lords to be seated, please. We are in children who survive suffer multiple health problems. some difficulty. A number of noble Lords still want to Mitochondrial donation, a new reproductive technology speak. I understand that; this is a serious matter. developed by our world-leading scientists in Newcastle, Perhaps I might suggest to them that they will attract is important because it enables families affected to the approval of the House if they keep their remarks have a healthy child. Our decision today will be immensely brief. Most noble Lords have come here with contributions important to those families. to make, and they are speaking from extensive notes. A key question has been raised about the safety of It would help us all if we could move this debate to a the procedure. As others have said, while no medical conclusion; many noble Lords have indicated that to procedure can be guaranteed to be 100% safe, a huge me. Therefore, while I do not for a moment suggest amount of testing has been done to establish the that we move to that stage now, I ask noble Lords to relative safety of this particular procedure. be orderly in allowing others to speak and to be brief. 1609 Human Fertilisation and Embryology[24 FEBRUARY 2015] Human Fertilisation and Embryology 1610

Lord Alton of Liverpool: My Lords, I am grateful to 7.15 pm the House. Although of course I have ethical objections Baroness Farrington of Ribbleton (Lab): As a point to the regulations, which are well founded and have of fact—and I hope that the government Chief Whip been pretty well rehearsed on previous occasions, the will agree with me—we would have debated this order Motion in the name of the noble Lord, Lord Deben, in this Chamber under the normal procedures of this does not invite us to vote on the ethics. Therefore, House with or without the amendment that was put accepting what the noble Lord, Lord Taylor, has just down, because that is the practice of this House. I can said to the House, I will not explore those ethical see the government Chief Whip nodding and the issues today but will stick to the points that the noble noble Baroness who chairs the Delegated Powers Lord, Lord Deben, raised earlier on, which concentrate Committee agreeing. on safety, legality and definitions. In supporting the Motion I want to address three points: procedure, pertinent questions and the specific issues posed by Lord Alton of Liverpool: I am glad to hear what the pronuclear transfer—one of the techniques made legal noble Baroness, Lady Farrington, has said to us today. by these inappropriately combined regulations. It is It is important that it should be on the Floor of this worth saying in parenthesis that there is a third technique, House, therefore we are all agreed. I contrast the polar body transfer, which was referred to during the 90 minutes given to the House of Commons to discuss discussions that the noble Earl was good enough to this with the 90 hours that Parliament spent discussing arrange for a group of us to have. That is being fox hunting. I ask noble Lords to contrast those explored at this time, and will require yet more regulations things. We are required to show due diligence and to come before your Lordships’ House. scrutiny, especially over controversial legislation. It is not just the absence of the preclinical tests A noble Baroness: So it should. recommended by the HFEA that suggests that the cart has been placed before the horse, but the disingenuous Lord Alton of Liverpool: Yes, and so it should, as decision by the clinic promoting these regulations—even the noble Baroness says. However, why are they not before your Lordships have debated, let alone approved, being taken together, why is there a hurry, and why are these regulations—to offer women money, as we heard we not considering them all at the same time? Some from my noble friend Lady O’Loan earlier on, to sell raise particular issues, and others raise different issues, their eggs for these procedures, a practice which itself so many of us find that being asked to take it or leave can be injurious to their health, while telling us: it today is very difficult. “It was never about politicians voting on whether it was safe Some 41 Members from all sides of the House of or not”. Commons have written to your Lordships asking us to That seems almost a contempt of Parliament, and is provide the opportunity for further consideration to certainly an extraordinary dismissal of health and be given to these regulations. For 18 years I served in safety considerations, which everyone has admitted another place. I would have been appalled if only this afternoon are a consequence of what we are being 90 minutes had been provided during my time there, asked to agree. We have a duty to satisfy ourselves when we discussed in 1990 the original legislation or about questions of public safety. subsequent changes to it—90 minutes on unamendable I have experienced this afternoon something of a regulations. Half the House of Commons—300 compared sense of déjà vu on the arguments, which are so with 350—either voted against or abstained: 128 voted reminiscent of those which persuaded your Lordships against, 172 abstained, and 300 voted for. As the noble to vote for animal/human hybrid embryos in 2007. and learned Baroness, Lady Scotland, said to us earlier Although my noble friend Lord Patel, who I think is on, the Lord Chancellor—and we have heard from an about to intervene on me again, said earlier on that eminent and very learned noble Lord today, a former there was a significant breakthrough by Professor Lord Chancellor—and the Attorney-General both voted Shinya Yamanaka just two weeks after the Bill passed, against the regulations. Subsequently, we have received that is not entirely accurate. The Yamanaka breakthrough representations from 50 Members of the European came in 2006 in the journal Cell, not after the Bill Parliament—I say to my noble friend Lord Walton passed but before it was even published. If you look that they were not all Roman Catholics—including back at the Hansard, as I hope Members will, I argued Socialists, Christian Democrats, Communists, Greens repeatedly that the proposal was redundant because of and others, and internationally respected scientists, the Yamanaka breakthrough and that we should not challenging the safety and the legality of what we are have voted for it. However, despite the Yamanaka being asked to approve. Last week Professor Christopher breakthrough, many argued that animal/human hybrid Exley, a British scientist, described these procedures as, embryos were necessary. “a genetic experiment which could have disastrous consequences Before we rush pell-mell into authorising something for generations”. which the rest of the world—from the federal agency That is not a religious view. This requires us to take the in the United States to the People’s Republic of China— moderated view that the right reverend Prelate the has prohibited, may I ask the Minister to answer some Bishop of Carlisle commended to us earlier on. Yet, pertinent questions? First, what regard has he had to procedures permitted only a 90-minute debate in the the increasing demand for women to give up their eggs Commons on an unamendable order, and if it were for these techniques, the failure of the HFEA to monitor not for the noble Lord, Lord Deben, today, we would the drugs and dosages used for ovarian stimulation, not have the opportunity to be discussing these complex and published data by Newcastle indicating an incidence questions— of hospitalisation due to such stimulation due to the 1611 Human Fertilisation and Embryology[LORDS] Human Fertilisation and Embryology 1612

[LORD ALTON OF LIVERPOOL] The panel now believes that the macaque may not be a frequent collection of more than 20 eggs per cycle? sufficiently good model for the human. If macaque Does he regard it as ethical to ask women to sell their embryos do not have a good record of surviving eggs for £500? pronuclear transfer, and human eggs are even more Secondly, what is the cost of these regulations, both sensitive, are not problems with human embryos more human and financial, when pronuclear transfer—the likely? Surely this suggests the need for proceeding second of the procedures that have been referred to— even more cautiously, not less. requires the destruction of at least two and in some The Joint Committee proposed by the noble Lord, cases 10 healthy embryos for every procedure? Contrast Lord Deben, should reflect on the HFEA expert panel’s the financial cost, too, of an issue I have raised regularly minutes of 12 February 2013, in which Dr Dieter Egli, on the Floor of your Lordships’ House; namely, the of the New York Stem Cell Foundation, explains that failure to provide vital and much needed public funding he was, into finding a cure for diseases such as mesothelioma, “sceptical about the clinical application of PNT”, which will take the lives of 60,000 British people in the because a structure known as the centrosome may be next 30 years. left behind, and that, Thirdly, and more specifically, why have the “the consequences of this need to be investigated”. Government not waited for the outcome of the HFEA’s The proposed Joint Committee should also consider recommended preclinical experiments before proceeding? the minutes of the HFEA teleconference with Dr Fourthly, like noble Lords today, Dame Sally Davies, Shoukhrat Mitalipov on 30 January 2013, which reported: the Chief Medical Officer, said at a meeting that I “Dr Mitalipov expressed the view that development of MST attended with the noble Earl: or PNT embryos to blastocyst was not in itself enough to give “No one will guarantee that it is safe”. confidence that the techniques are safe and effective”, That being so, and given the absence of safety trials, and the recent remarks of Professor Justin St John, a how much has the National Health Service set aside geneticist at Monash University in Australia with for compensation if safety fears are realised? One considerable expertise on the behaviour of mitochondria recent payment to the parents of a baby damaged at a in nuclear transfer, who said: hospital reached a staggering £10 million. “As well as analysing foetal development in a non-human Finally, I turn to the specific issue of pronuclear primate model, it is essential to analyse offspring to determine transfer. These regulations have bundled together two that no abnormalities appear at least during early life”. different procedures. As I said, pronuclear transfer— Not only have the researchers at Newcastle refused to PNT—unlike maternal spindle transfer, requires the perform such preclinical research in non-human primates, destruction of human embryos. It is a technique that I have been unable to find evidence of their own prior has been specifically advocated by researchers at Newcastle. experience in obtaining healthy offspring of any species To date, most applications of this technique have been following pronuclear transfer, or even in taking any in mice. However, the Weatherall report of 2006, sponsored such embryos past the blastocyst stage. by the Academy of Medical Sciences, the Royal Society, the Wellcome Trust and the Medical Research Council, Lord Willis of Knaresborough: Clearly, I am not on page 85 stated the following: going to get to speak this evening, so I ask the noble “Humans and non-human primates share many features of Lord a very simple question. Does he have any faith at reproductive biology that are not present in other mammals … all in the HFEA to do what it actually says on this tin? Hence, rodents and other non-human primates have only limited If the regulations are passed today it will then have the usefulness as models of human reproductive physiology”. job of deciding when it will be safe to go ahead and Consistent with this, the report of the HFEA’s expert grant a licence. If he does not have that faith in the panel in April 2011 said that before the technique HFEA, will he please say that? Because I do. could be considered safe to use clinically, it was critical to undertake, Lord Alton of Liverpool: I serve on my own university’s “PNT in a non-human primate model, with the demonstration ethics committee, which looks at the use of animals in that the offspring derived are normal”. experiments. Apparently, one of my roles on that Has this been done? Nearly four years later, the answer committee is to be, as it were, the animals’ friend and is still no—even though most postgraduate researchers to ask whether the experiment is repetitive, whether it would have already completed a doctorate within this is necessary to do such things and what it is going to timeframe. lead to. There is no one on the HFEA who is the friend Strikingly, a news article for the journal Nature of the human embryo. That is a bizarre situation and stated on 19 January 2012: one I would like to see rectified. But to take the noble “The Newcastle researchers do not have plans to determine Lord at his word, of course I think the HFEA often whether primates conceived through pronuclear transfer come to does a good job, and I admire many of its members. term and are healthy”. I will simply say one other thing to the noble Lord. Remarkably, the HFEA’s expert panel then changed The HFEA is a regulator, not a legislator. That is our its mind about preclinical experimentation in primates duty here today and that is why we are having this being critical for pronuclear transfer, in its ensuing report discussion. I am conscious that others wish to intervene in 2013. The only explanation provided was exceptionally and I am grateful for the patience of your Lordships’ brief and far from compelling. It said that: House in allowing me to put these points. As we “Current research using PNT in Macaques has yet to be ponder on these serious issues revolving around public shown to be successful. From unpublished data it appears that safety and questions of definition and legality, they Macaque zygotes do not survive the PNT process well”. deserve far better consideration and scrutiny than has 1613 Human Fertilisation and Embryology[24 FEBRUARY 2015] Human Fertilisation and Embryology 1614 been provided thus far. Surely we should remember The scientists have been absolutely straight with us the wise advice that those who legislate in haste repent and have given us the relevant information. They have at leisure. Therefore, the proposal of the noble Lord, not said that this process is safe or guaranteed because Lord Deben, for a Joint Committee of both Houses to they cannot do so. The noble Lord, Lord Alton, is examine the safety and legality of these regulations right—they will have to come back to us if techniques deserves our support. developed in the future prove to be better and safer than those we are discussing. However, given the Baroness Barker (LD): My Lords, since 1990, this information that we have, I for one feel that this Parliament, and, in particular, this House, has shown Parliament has been fully informed and that we can the rest of the world how these matters should be dealt make a decision—and I hope that we do. with. It is for that reason that I hope that we will pass these regulations today. 7.30 pm In 1990, the noble Baroness, Lady Warnock, set down the ethical framework within which we make decisions Lord Hunt of Kings Heath (Lab): My Lords, I sense and within which scientists must do their work and that the House wants to come to a decision. regulators must regulate. In 2008, as the noble Lord, Just over 14 years ago, I asked the House to agree Lord Walton, the noble and learned Lord, Lord Mackay, that embryology research could be extended to cover and others will remember, we debated these and related diseases such as Parkinson’s disease, Alzheimer’s disease, issues at considerable length. At that time, the scientists cancer and diabetes. This provision had been anticipated came to us and said, “We believe that very shortly it and included as a regulation-making power in the will be possible for mitochondrial transfer to happen”. Human Fertilisation and Embryology Act 1990, which At that point, Parliament sat and listened to the had allowed embryology research but only for conditions scientists and said, “Not yet. Not yet”. That is why we such as infertility and congenital diseases. passed the permissive legislation that we did, which The 2001 regulations were passed following a Motion has led to these regulations. moved by the noble Lord, Lord Alton, to whom I pay The noble Lord, Lord Deben, in putting forward tribute for his integrity and perseverance. However, his his very cogent and persuasive argument, missed out Motion to establish a Select Committee prior to the one crucial fact that undermines his argument: research regulations being approved was defeated by 212 votes is not linear. Researchers do research and it takes them to 92. to places that they had not imagined or they hit The 1990 Act followed the work of a committee led obstacles that they did not anticipate. Things change by the noble Baroness, Lady Warnock, which made radically, as they did in the case of animal hybrids. recommendations on developments in science and That is why we operate as we do, within a system medicine in relation to human fertilisation and embryology. whereby Parliament sets out the principles and the I pay tribute to the noble Baroness for her outstanding ethics. We require the scientists to come back to us work in helping us get the balance right between the again and again and we are dependent on the information respect owed to human embryos and the potential for that they give to us. the use of embryos in research and treatment for I went to the same meeting as the noble Lord, Lord devastating illnesses. Deben, and I formed a very different impression of the scientists. Our top scientists have been making The 1990 Act was a model in the regulation of themselves available to Members of Parliament for all certain infertility treatments and embryo research. It of the past year to explain as clearly as they can this reflected the need to have a strict framework in which science as it is emerging. I do not think that we should regulation could be conducted to take account of the abrogate our responsibility in this House. I think we advances in medicine anticipated by both the noble should continue to listen to the scientists. I like the fact Baroness, Lady Warnock, and Parliament in 1990. that I live in the United Kingdom where we debate these Since 1990, the science and research have developed, matters. We have the involvement of people from the just as has the need for Parliament to keep up and church and from different faiths and walks of life. anticipate further developments. Thus, in 2001, we We also listen to contributions from people such as the passed emergency legislation to put it beyond doubt noble Lord, Lord Alton, who are consistently and wholly that human reproductive cloning could not take place opposed to this issue. However, it is important that his in the UK. In 2004, we passed regulations in which the voice is heard. I do not want the ethical decisions to be identity of the donor of eggs, sperm or embryos could sent off to the courts as they are in the United States. be given to the adult donor-conceived person under Noble Lords have talked a lot about the emotional certain circumstances. issue of meeting the needs of families but they have We have heard about the 2008 Act, which amended also discussed the safety of these issues. However, I the 1990 Act to include restrictions on the types of simply put before the House the response of parents embryos that may be placed inside a woman. Importantly, to the suggestion that they might have a child who the 2008 Act amended the 1990 Act to insert a regulation- proved to be infertile. When they were asked how they making power to enable techniques which were under would feel about that, they gave the clear response, development at that time to be used in treatment to “We love our children as they are and we would not prevent a child being born with serious mitochondrial have not had them. However, if we could have had a disease. Surely, the noble Viscount, Lord Ridley, and child who did not have the illnesses that they have, we the noble Lord, Lord Walton, are right—at every would have opted to have such a child, even if that significant stage of embryology research and potential child proved to be infertile”. treatment, Parliament has been asked to give its approval 1615 Human Fertilisation and Embryology[LORDS] Human Fertilisation and Embryology 1616

[LORD HUNT OF KINGS HEATH] I understand the point that the noble Lord, Lord Alton, and thus ensure public confidence in our scrutiny of made. However, will the noble Earl, Lord Howe, confirm these most difficult decisions. My view is that Parliament that the panel believes that at present there is insufficient has discharged that responsibility thoroughly and well. evidence to choose between the two techniques? Does However, I am glad that the noble Lord, Lord Deben, he consider that that is still the Government’s position? has given us the opportunity to have this debate. Of The noble Lord, Lord Deben, said that this was a course, we would have had a debate but the noble question of resources. I have not seen evidence to Lord has served a great purpose in encapsulating the suggest that that is the case. The important question core argument and I am grateful to him for so doing. is: can the Minister refute that? Can he say that the We find ourselves asked to make a crucially important sole issue is that at the moment we are not in a decision, with powerful contributions having been made position to judge which technique is likely to be more on both sides of the argument. On the one hand, we effective, and that it is solely for that reason that we are celebrate the triumph of science that these new techniques permitting the two techniques to be in the regulations? represent. We have within our reach the possibility of Finally, we come to the position of the HFEA. At eradicating mitochondrial disease from families who every point of our debates—this goes back to 2001—we have been blighted by it for generations. On the other have relied on the robustness of that body.The robustness hand, we are grappling with serious moral, legal and of the HFEA is absolutely essential. There have been ethical questions that are raised by the proposed discussions and debates about how effective it is; my introduction of such techniques for treatment. We on noble friend Lord Winston is a well known critic of this side of the House have a free vote. Speaking for some of its activities. Fair enough—but I believe that myself, and myself alone, I will vote in favour of the the HFEA has proved itself a highly effective and regulations. robust regulator over 20 years. I ask the Minister to confirm that it is the Government’s intention to continue The noble Earl, Lord Howe, will respond to many to support the robustness of that regulatory approach. important points that have been raised, but I ask him As for the Chinese experience, will the Minister to focus on a number of very important considerations confirm that, although there are issues in connection that have also been raised. On the question of continuing with the techniques used, one big difference between research and the comments of the expert panel, will he the UK and the Chinese position is the regulatory confirm that the panel said there was no evidence to framework and the robustness of the HFEA? I suspect suggest that the techniques proposed in the regulations that that was not the case in China years ago when are unsafe? Will he also confirm that the panel has those developments took place. agreed that further research and reviews could take place either before or after the regulations are approved? The question is whether the benefits of trying to eradicate this dreadful disease by preventing the As regards whether this matter is being rushed transmission of mitochondrial disease, in view of the through Parliament and would benefit from further likelihood that otherwise children will continue to be scrutiny by a Select Committee, the question here is: born who will die in infancy, outweighs the risks of the what would be gained by delay? Will the noble Earl techniques, which some noble Lords have described confirm that the principles that we are discussing were tonight. The scientific community—on the basis not approved by Parliament in 2008 after thorough debate? of some kind of cosy consensus but of hard evidence— I do not need to go over the work of the Nuffield and the families experiencing this disease are clear that Council on Bioethics or that of the HFEA and its expert we are right to support the regulations. It is now up to panel because noble Lords have mentioned that, but I us individually to decide whether we agree them. I, for should comment on the 90-minute debate that took one, am convinced that it is the right thing to do. place in the House of Commons. I agree with the noble Lord, Lord Alton, that 90 minutes is too short. Earl Howe: My Lords— However, I have read that debate and it seems to me Baroness Scotland of Asthal: My Lords, before the that it was thorough and well informed and that the noble Earl starts his speech, may I apologise to the House? points on both sides were put forcefully and interventions The noble Lord, Lord Alton, has clarified the fact that were made. My honourable friend Luciana Berger was it was the Lord Chancellor and the current Attorney- asked a number of very tough questions, as was the General who voted against this measure in the House Minister. Could anyone say that at the end of those of Commons. I was told that two Law Officers had 90 minutes MPs were not in a position to come to a voted against, and I assumed that the two Law Officers conclusion? Indeed, can anyone say that we are not in must have been the right honourable Dominic Grieve a position to come to a conclusion following a debate and the current Attorney-General. It was not: it was which has lasted at least three and a half hours? the Lord Chancellor and the current Attorney-General. We have heard from eminent lawyers on both sides I should apologise for that; it was a misunderstanding of the argument on the legal questions. We have had of the information that I was given. written submissions from the Department of Health and the legal advice of the Wellcome Trust, and other Lord Mackay of Clashfern: It would be right to say legal propositions have been put to us. However, you that the Lord Chancellor is not a Law Officer of the reach a point when it is time to make a decision. I Crown. think that we are in a position to make such a judgment. Baroness Scotland of Asthal: My Lords, that is why, A number of noble Lords, including the noble having been told that it was the two Law Officers, I Lord, Lord Alton, referred to the two techniques and came to the conclusion that the Lord Chancellor was how one should be considered in relation to the other. not among them. 1617 Human Fertilisation and Embryology[24 FEBRUARY 2015] Human Fertilisation and Embryology 1618

Earl Howe: My Lords, as I fully expected, this has Baroness Scotland of Asthal: In the context of the been a debate of very high quality, with a range of horizontal articles of the charter, Articles 51 and 52, views, both for and against the regulations, eloquently have the Government considered how Article 6.3 changes expressed. My principal job now is to respond to the things, because it consolidates what the law was then? Motion moved by my noble friend Lord Deben and to There is a difficulty, and I do not know whether the some of the additional points raised by other speakers. noble Earl has had specific advice on those matters. I My noble friend’s Motion covers three main points— know that this was not contained in the opinions that safety, compliance with EU and UK law, and the key were promulgated earlier. definitions in the draft regulations. My noble friend and the noble Lord, Lord Brennan, in his legal opinion, Earl Howe: I can only say again that the legal advice argued that there was some doubt about whether the I have had is that the charter cuts in only when there is regulations were compliant with EU law, in particular an issue of European law. We do not consider that the EU directive on clinical trials. With respect to both treatment services, which are what we are talking noble Lords, the Government do not agree. The EU about here, are covered by EU law. The noble Baroness clinical trials directive does not apply here because it is made a point of saying that my right honourable friend concerned with medicinal products, and mitochondrial the Attorney-General did not vote in favour of the donation techniques simply do not fall under that regulations, but it is difficult for me to comment on definition. that. There was, rightly, a free vote in the other place, My noble friend asked whether we had checked our just as there is here. I cannot comment on the personal position with the European Union. The simple answer view of the Attorney-General—and I have to say that is no. Within a framework of subsidiarity, it is entirely I do not think that anything said or quoted by the the responsibility of each member state to ensure that noble and learned Baroness threw much light on that its own legislation is consistent with EU law. That is issue. what we have done. The EU would be inundated with I repeat that my department is confident that these extensive queries from member states if a “legal advice” regulations are necessary and have a sound legislative facility existed, and there is no such facility. base in the Human Fertilisation and Embryology Act 1990, as amended. As my noble and learned friend 7.45 pm Lord Mackay rightly pointed out, it was the clear intention of Parliament that this provision would enable Lord Gordon of Strathblane: Is the noble Earl equally mitochondrial donation to take place in a clinical confident that the regulations are compliant with the setting. European directive that is due to come into force in On the issue of safety, my noble friend Lord Deben 2016, and which might explain the timing? urges us to delay until further research is carried out. However, we could wait indefinitely for research and Earl Howe: My Lords, I think I can make an follow-up and still not have a 100% assurance about unequivocal statement that all the legal advice I have safety, because that is the nature of science and research. received is that the regulations we are considering are The standards of assurance that some are seeking are fully compliant with European law. considerably higher than those for cancer treatment or heart disease. As far as the expert panel convened by As has been said, any legislation agreed in Parliament the HFEA is concerned, there is no evidence to suggest could be subject to challenge, and it would be up to that these techniques are unsafe. The critical experiments the Government at the time of challenge to defend their are progressing positively. position. The noble and learned Lord, Lord Hope, made that point. Let me reassure noble Lords that we have As I said, the mitochondrial donation regulations considered these issues very carefully, and we are confident require the HFEA to assess each application for that the regulations are compliant. I am pleased that mitochondrial donation on a case-by-case basis. That other noble Lords who have spoken agree with that. will include consideration of the evidence on safety and effectiveness. As a statutory independent regulator, The noble and learned Baroness, Lady Scotland, it is for the HFEA to determine its own procedures for cited the European charter. The EU charter does not assessing applications to carry out treatment regulated apply in this context, because Article 51 says that it by the 1990 Act. Applications to provide mitochondrial applies to member states, donation treatment are no exception to this rule but, “only when they are implementing Union law”. clearly, the HFEA will not authorise the treatment if it This means that a state must be either directly does not consider it safe to do so. implementing an EU law obligation or acting within It is never possible to answer every safety question the scope of EU law. The regulations do not do either before new medical procedures are used in people for of those things. the first time. New techniques can be refined and We have considered the issues raised and, as I have reviewed. Even the most exhaustive research can establish said, we are very confident that these regulations do only that a technique is sufficiently likely to be safe to not contravene European law. The issue comes back to justify “first in human” treatment. However, if medicine whether the clinical trials directive is engaged here. It is to progress, clinicians should in my submission be is not. Our view, incidentally, was agreed with independent permitted to use new techniques when evidence suggests legal advice commissioned by the Wellcome Trust these are sufficiently safe and effective. It is the from Thomas de la Mare QC: mitochondrial donation Government’s view that medical knowledge in the simply does not come within the definition of medicinal field of mitochondrial disease and donation has now products, to which the directive applies. reached this stage and it is time to progress. The 1619 Human Fertilisation and Embryology[LORDS] Human Fertilisation and Embryology 1620

[EARL HOWE] physiology, not just mitochondrial DNA. The majority legislative framework of the HFE Act provides for of the evidence indicates that mitochondria are primarily Parliament to endorse the Government’s view before concerned with generating the power that every cell in proceeding and, following the extensive process of the body needs to function. It is generally accepted that, consideration that I have already set out, we have as vital as the function of the mitochondria undoubtedly properly brought this to Parliament for debate on is to the human body, they do not play a role in affirmative regulations. developing a person’s physical appearance or personality I listened with care to the noble Baroness, Lady traits, which are derived solely from nuclear DNA. Hollins. I absolutely concede that there is a balance of risks to be considered. As I have said, it is not possible Lord Elton (Con): Before my noble friend leaves the to be certain that new medical procedures will be question of risk, may I ask him to close a little chink in 100% safe or effective. These risks must be balanced the reassuring curtain that he is drawing before us? We with the risk of ongoing suffering for families with are assured by the HFEA that there is no evidence of mitochondrial disease. For me, the simple point is this: risk in what is proposed, but it also proposes quite a scientific evidence suggests that any risks of mitochondrial large phalanx of experiments that should be completed donation are proportionately less than the significant before proceeding. First, there appears to be a slight risk that children will continue to be born who will logical discontinuity there. Secondly, can we be reassured develop severe mitochondrial disease if these techniques that, in the Minister’s view, the HFEA will not proceed are not used. As the noble Lord, Lord Patel, pointed out, to licensing anybody until they have completed that ultimately it will be up to affected families to judge the programme of experiments? 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. Earl Howe: My Lords, I can confirm to my noble My noble friend Lord Deben mentioned the Chinese friend, and to the noble Lord, Lord Hunt, who asked study. That study has not been published and we a similar question, that the expert panel stated that the understand that it will not be. It concerns one pregnancy, further experiments that it recommended could take using an earlier form of pronuclear transfer. One of place either before or after the passing of these regulations. the clinicians involved gave a full interview to the However, they must be done before treatment can take Independent recently and explained that the complications place. I hope that that is sufficient reassurance. that occurred related to multiple pregnancies from multiple The noble Lord, Lord Alton, and the noble Baroness, embryo transfer, rather than from the mitochondrial Lady O’Loan, spoke about the risk of ovarian donation process. As I understand it, there were no hyperstimulation syndrome. OHSS is a well recognised genetic abnormalities in the foetuses. side-effect of the drugs used to stimulate a patient’s or Turning again to the speech by the noble Baroness, Lady donor’s ovaries to collect multiple eggs for use in Hollins, the HFEA-convened expert panel considered fertility treatments. The risks of OHSS are very well the issues that she raised: if the patient and the donor understood, with patients and egg donors carefully have different mitochondria, known as haplotypes, the monitored. The HFEA’s code of practice requires donor’s mitochondria may not, as it were, “talk properly” women undergoing ovarian stimulation to be given to the patient’s nuclear DNA, causing health problems. information about the possible side effects and risks, The panel considered that as part of its third scientific including OHSS. Women are informed of the symptoms review. However, it was of the view that the data to look out for and are warned to contact their clinic if submitted to it about this potential problem were not they feel unwell. Women donating eggs for use in relevant enough to raise safety concerns. However, the mitochondrial donation will not be at any increased panel has recommended, as a purely precautionary step, risk of developing OHSS. that consideration be given the mitochondria haplotype The noble Lord and the noble Baroness both when matching donors to patients, even though the questioned the practice of paying for donated eggs. I risks of not doing so are assessed to be very low. submit that there is nothing sinister in that. Within the The noble Baroness questioned whether successive legal framework of the HFE Act, the HFEA sets the generations, particularly girls, could have the same rates for compensation to donors of eggs or sperm; problems arise from unhealthy mitochondria. The £500 for an egg donor is well within those limits. It principle behind the treatment is that the mitochondrial certainly is not a sign that Newcastle University is DNA that the child will inherit will be the disease-free anticipating the introduction of the regulations to allow mitochondrial DNA of the donor, not the faulty mitochondrial donation. It is continuing its research mitochondrial DNA of the mother, although there is a and has an ongoing need for donated eggs for that small risk that the low level of unhealthy mitochondria purpose. may be carried over when the patient’s nuclear DNA is I turn now to the issue of definitions. In making the moved from her egg or embryo to the donor’s. Evidence regulations, the Government have been clear about continues to be reassuring that carryover after their approach, the definitions used and the source of mitochondrial replacement is very low and unlikely their material. The Government’s consultation on the to be problematic. The risk of mitochondrial disease detail of the regulations set out very clearly: the definitions being present in these generations will, we believe, of scientific terms; the detail of the techniques that the be low. draft regulations would cover; the terms that others The noble Baroness also said that we still do not know might use, such as “genetic modification”; and the enough about the relationship mitochondria have with proposed approach to information for donors and the human body. This is true of many aspects of human those conceived through mitochondrial donation. 1621 Human Fertilisation and Embryology[24 FEBRUARY 2015] Human Fertilisation and Embryology 1622

8pm he and I remember well—including the regulation-making My noble friend questioned why we do not consider power that provides for these regulations. In addition these techniques to amount to genetic modification. to the scrutiny of the programme of assessment that I Mitochondrial donation does not alter the nuclear outlined earlier, the HFEA and I have offered briefing DNA which defines personal characteristics and therefore, meetings for Peers to update them on the issues and in our view, does not constitute genetic modification. more than 130 Parliamentary Questions have been In the absence of a universally agreed definition of answered on the subject in this House alone. Incidentally, genetic modification in humans, the working definition there have been three debates in the House of Commons— was developed with the Chief Medical Officer in order not just the 90-minute debate on the regulations, where to bring some clarity to the discussion about these I should perhaps mention that the majority in favour processes. Opponents have not been able to offer a was almost three to one. scientifically based alternative and the British Fertility The House allows for an affirmative debate to Society, among others, has been happy to adopt the approve regulations and the Government have followed Chief Medical Officer’s working definition. due process in establishing this, as soon as practical My noble friend also asked why we have not separated after the debate in the other place. I need to make it the two techniques in these regulations. I say to him and clear as well that it was never the intention to debate to the noble Lord, Lord Hunt, that the expert panel these regulations in the Moses Room. It was always convened by the HFEA stated in its 2014 report that, quite rightly envisaged that we should consider them on the Floor of the House. As I have said, further delay “based on 2014 considerations the panel still believes that there is would not be doing the right the thing for families who at present insufficient evidence to choose between PNT and MST as a preferred technique”. desperately want to have the choice to access these new techniques. Nor would it send the right signal to The Government are therefore satisfied that there is UK science, which has been researching in this area sufficient scientific evidence to justify Parliament being for very many years and reasonably wishes to see this asked to consider regulations to enable the use of two work translate into help for patients. mitochondrial donation techniques in clinical practice. As I have said, it will be for clinicians in consultation My noble friend urges the House to send the matter with families to decide which technique would be best to a Joint Committee. These issues have been considered in each case. It is worth noting that the HFEA’s public by both the Commons Science and Technology dialogue showed a considerable level of public acceptability Committee and the House of Lords Select Committee for both techniques. on Secondary Legislation. The Commons committee wrote to the Government stating that there was sufficient My noble friend also referred to the ComRes poll and information for Parliament to make an informed decision suggested that we had somehow unfairly dismissed and urged the Government to bring forward regulations. it. The ComRes poll was commissioned by the I will now conclude. In introducing the regulations CARE organisation—Christian Action Research and I outlined the rolling programme of work that has Education—which I understand opposes the introduction gone into assessing the safety and efficacy of these of mitochondrial donation. An evaluation of the survey techniques, as well as their ethical and public acceptability. was conducted by Pier Logistics and Gene Rowe That process has, I believe, been admired and commended Evaluations. The evaluators considered the survey to across the world. So much progress has been made in be a deeply flawed piece of work. They criticised the the lifetime of this Parliament that in the Government’s intentional use of what they described as, view it is right that Parliament should now have the “sensationalist, inflammatory and misleading language to characterize opportunity to vote on whether to allow the families the debate”. who wish to use these techniques to have children free There was also considered to be: of the devastating consequences, which we have heard “An unreasonable degree of selectivity within respondents’ about from noble Lords, within a robust regulatory informational options and the intimation of an exercise focused framework. The request to the Department of Health on the generation of self-ordained results”. to develop these regulations was made at the start of The evaluation summary commented that the survey this Parliament in 2010. The subsequent in-depth was, consultation and assessment has taken place through “a good example of poor public consultation”. the lifetime of this Parliament. It seems highly appropriate that we complete the task by approving the regulations As I have already set out, there has been extensive today. independent consideration of these issues during the lifetime of this Parliament. Noble Lords should not have the mistaken impression that the Government Lord Deben: My Lords, if ever anyone questions have in any way been acting in haste, as suggested by the value of this House, this evening proves it. It has the right reverend Prelate the Bishop of Carlisle and been a really valuable debate and I hope that all noble the noble and learned Baroness, Lady Scotland. Lords who have taken part in it and those who have Mitochondrial donation has been subject to, listened will recognise that we have all learnt and valued what we have heard, even from those who have “more scientific review of its proposed process than any other spoken from a different point of view. medical technology”. There was a phrase used during the debate that That is a description by independent commentators. particularly annoyed me—an attack on playing God. I I can confirm to the noble Lord, Lord Hunt, that do not believe that that is a proper way to discuss these Parliament gave extensive consideration to the issues, not least because it is of the nature of the amendments to the 1990 Act in 2007-08—an occasion Christian understanding of creation that we share 1623 Human Fertilisation and Embryology[LORDS] Human Fertilisation and Embryology 1624

[LORD DEBEN] I perfectly agree with the noble and learned Lord, with God in His creative power. It is the great gift of Lord Hope, with whom I am normally ad idem: we the Almighty to us. Therefore, the idea that we should have marched together on most of the subjects when I not do any of these things because for some reason or have rebelled against the Government and I have other they are reserved to God seems to me to be taken much pleasure in our arguments. However, I say fundamentally theologically unsound as well as to him that there is a distinction here. It is very philosophic nonsense. I hope no one has suggested dangerous for this House to leave it to someone else to that those who take the view that I take do so from decide whether something is legal. I think that this some arcane understanding of the Almighty. House should make that decision itself, and then, if it Nor do I think anyone will now suggest that we were makes the wrong decision or a questionable decision, trying to push this whole debate into the long grass—and the matter will come before the courts. I understand in case anyone should be worried, I do not intend to that distinction but I agree with the noble and learned take up the time of the House for very much longer. Baroness, Lady Scotland, on that front. However, I The long grass was certainly not my intention. As the am worried about entering into legal issues because I Minister knows, I have unbounded admiration for him have always prided myself on being the only member and he again showed why we should return to the position of the Cambridge mafia who did not read law. of Ministers in this House being Cabinet Ministers as That leads me to the third point, which is safety. It well. However, in describing his side he still left me is no good—we cannot kid ourselves about this. The with three very fundamental reasons for saying that terms under which we were originally told that we we need to have certain things in place before we vote. were going to have this debate have not been met. The First, on the two issues, he is perfectly right to say experiments which we were told would be done have that it is reasonable to bring them before the House. not been completed. The most important of those is The objection is that they are brought before the the primate experiment to make sure that such procedures House without it being able to make a decision on do not result in sterility. People have said that even each of them separately because they each present suggesting that is an attempt to frighten people. I am separate issues. I do not think he has answered that. I not doing that at all. It is simply the case that that was know why he said that. It is because the Government what we wanted to do but there has not been enough know perfectly well that if you divide the two it would time to do it, although it would not take very long. become clear that there is an ethical distinction between Therefore, I again come to the question of why this them. We did not discuss that today because we knew measure is being pressed at this moment when we we could not discuss that ethical distinction because could very rapidly have the answers to all the questions only one of them held it and the other did not. So my that we have raised. I want to end on that but I shall objection to the Government’s position—not of course say why I think that that is important—much more to my noble friend’s position—is that they could have important even than the issue itself. given us that choice and they decided not to. I believe that we are moving into a society in which It is the choice that I object to, not the fact that one the search for consensus and agreement is becoming might use the two techniques if both were approved. I increasingly much less urgent and much less important suspect that both would have been approved, but we to people. I believe that we could have gained very would have been able to explain why we hoped that the considerable support for this measure. The noble Earl work done on the maternal spindle transfer and the caused a certain amount of laughter when he referred third mechanism, which is coming along, would be to the ComRes poll. It was intended to ask people, in prioritised and done in an ethically acceptable way. the words that they had read in the newspapers, what That is the first reason why I believe it would be better their reaction was. That is why the poll was held. to allow a committee to look at this very rapidly and Therefore, passing the matter to the Wellcome Trust to insist that it be a decision in which we have a choice. and others to look at it as though it were a scientific statement was entirely contrary. I was pleased to find The second reason is that there is clearly a legal out that we had so failed to communicate with the disagreement. I bow to nobody in my support for my public that 90% did not want us to go ahead with these noble and learned friend Lord Mackay of Clashfern. I regulations, and that was the case when using words know that it is normal in this House to accept that which had meaning for the public. The Government’s what he says is infallible. If it were not for his consultation was in fact very limited. That is not the denomination, I would use that word, but I think that burden of this whole debate, but I just want to say to it would probably embarrass him considerably if I the House that we are beginning not to try to take were to use it in conjunction with his name. However, I everyone on board. There was a real opportunity to do point out that the noble and learned Baroness, Lady so here and I would still like to recapture that. That is Scotland, spoke for a number of people, including the why I would like to test the opinion of the House. 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 8.15 pm Chancellor is not a lawyer. I think that the Lord Chancellor should always be a lawyer. I also think that Lord Winston: Before the noble Lord does that, I he should not be a career politician but ought to sit in wonder whether he would consider this point very this House. I make that point while I have the chance seriously for a moment. If we delay this measure, we to say it, as until now I have not had a chance to make will, as I am sure he understands very well, be committing that provocative comment. However, the fact is that a number of people to terminating pregnancies. Not there are very clear legal disagreements. only will we be terminating their pregnancies but those 1625 Human Fertilisation and Embryology[24 FEBRUARY 2015] Human Fertilisation and Embryology 1626 women will experience a number of lost pregnancies—a Cashman, L. Hughes of Stretford, B. loss of life. Is that what the noble Lord really wants in Cavendish of Furness, L. Hughes of Woodside, L. pressing this amendment? Clancarty, E. Humphreys, B. Clark of Windermere, L. Hunt of Chesterton, L. Clement-Jones, L. Hunt of Kings Heath, L. Lord Deben: I do not want to prolong this but the Collins of Highbury, L. Hunt of Wirral, L. fact is that the human embryology committee and the Colville of Culross, V. Janke, B. terms under which it can give the permissions will take Colwyn, L. Jolly, B. [Teller] longer than it would take to have the committee that I Condon, L. Jones, L. Cope of Berkeley, L. Jones of Whitchurch, B. am calling for in my amendment. It would not hold Cormack, L. Jopling, L. matters up for one moment. However, I think that the Corston, B. Jordan, L. House wants to go to a vote. Craig of Radley, L. Judd, L. Craigavon, V. Judge, L. Davidson of Glen Clova, L. Kakkar, L. 8.16 pm Dean of Thornton-le-Fylde, Kennedy of Cradley, B. B. Kennedy of Southwark, L. Division on Lord Deben’s amendment Deech, B. Kennedy of The Shaws, B. Denham, L. Kerr of Kinlochard, L. Contents 48; Not-Contents 280. Dholakia, L. Kilclooney, L. Dixon-Smith, L. Kinnoull, E. Drake, B. Kirkhill, L. Amendment disagreed. Drayson, L. Knight of Weymouth, L. Dubs, L. Kramer, B. Division No. 1 Eccles, V. Krebs, L. Eden of Winton, L. Lamont of Lerwick, L. CONTENTS Elder, L. Lawson of Blaby, L. Elton, L. Layard, L. Alton of Liverpool, L. Maginnis of Drumglass, L. Elystan-Morgan, L. Lee of Trafford, L. Berridge, B. Masham of Ilton, B. Emerton, B. Lennie, L. Brennan, L. Morrow, L. Evans of Bowes Park, B. Levy, L. Browne of Belmont, L. Nicholson of Winterbourne, Falkland, V. Linklater of Butterstone, B. Burnett, L. B. Falkner of Margravine, B. Lipsey, L. Campbell of Surbiton, B. O’Cathain, B. Farrington of Ribbleton, B. Lister of Burtersett, B. Carlisle, Bp. O’Loan, B. Faulkner of Worcester, L. Lucas, L. Deben, L. Oxford and Asquith, E. Finkelstein, L. Luce, L. Eaton, B. Patten, L. Fookes, B. Ludford, B. Ely, Bp. Pendry, L. Forsyth of Drumlean, L. Luke, L. Empey, L. Rowe-Beddoe, L. Foulkes of Cumnock, L. Lyell, L. Farmer, L. St Albans, Bp. Framlingham, L. McConnell of Glenscorrodale, Gordon of Strathblane, L. Gale, B. L. Scotland of Asthal, B. Green of Deddington, L. Garden of Frognal, B. McDonagh, B. Greenway, L. Skelmersdale, L. Garel-Jones, L. McIntosh of Hudnall, B. Grey-Thompson, B. Smith of Newnham, B. Geddes, L. Mackay of Clashfern, L. Griffiths of Fforestfach, L. Stoddart of Swindon, L. German, L. Mackay of Drumadoon, L. Hollins, B. [Teller] Tebbit, L. Glenarthur, L. MacKenzie of Culkein, L. Hooper, B. Touhig, L. Goddard of Stockport, L. McKenzie of Luton, L. Hylton, L. [Teller] Trenchard, V. Gold, L. Maddock, B. Knight of Collingtree, B. True, L. Golding, B. Mallalieu, B. Liddell of Coatdyke, B. Wall of New Barnet, B. Goudie, B. Mandelson, L. Liverpool, E. Williams of Baglan, L. Gould of Potternewton, B. Marks of Henley-on-Thames, Lothian, M. Worcester, Bp. Grantchester, L. L. McAvoy, L. Younger of Leckie, V. Greaves, L. Marlesford, L. Greengross, B. Massey of Darwen, B. NOT CONTENTS Grocott, L. Maxton, L. Hamwee, B. May of Oxford, L. Addington, L. Borwick, L. Hanworth, V. Meacher, B. Alli, L. Bottomley of Nettlestone, B. Harding of Winscombe, B. Miller of Chilthorne Domer, Armstrong of Hill Top, B. Bourne of Aberystwyth, L. Harris of Haringey, L. B. Ashton of Hyde, L. Brabazon of Tara, L. Harris of Richmond, B. Montrose, D. Attlee, E. Bradley, L. Harrison, L. Moonie, L. Avebury, L. Brinton, B. Hart of Chilton, L. Morgan of Ely, B. Bach, L. Broers, L. Haworth, L. Morris of Aberavon, L. Bakewell, B. Brooke of Sutton Mandeville, Hayman, B. Morris of Handsworth, L. Balfe, L. L. Healy of Primrose Hill, B. Neville-Jones, B. Barker, B. Brookeborough, V. Helic, B. Newby, L. Bassam of Brighton, L. Brookman, L. Henley, L. Noakes, B. Beecham, L. Brougham and Vaux, L. Hennessy of Nympsfield, L. Northover, B. Berkeley of Knighton, L. Brown of Eaton-under- Higgins, L. Norton of Louth, L. Bew, L. Heywood, L. Hollick, L. Norwich, Bp. Bilimoria, L. Browning, B. Hollis of Heigham, B. O’Neill of Bengarve, B. Birt, L. Butler-Sloss, B. Holmes of Richmond, L. O’Neill of Clackmannan, L. Blackstone, B. Byford, B. Hope of Craighead, L. Oppenheim-Barnes, B. Blackwell, L. Caithness, E. Howarth of Breckland, B. Oxburgh, L. Blood, B. Callanan, L. Howe, E. Paddick, L. Bonham-Carter of Yarnbury, Campbell-Savours, L. Howe of Aberavon, L. Parminter, B. B. Carey of Clifton, L. Howe of Idlicote, B. Patel, L. Boothroyd, B. Carrington of Fulham, L. Hoyle, L. Perry of Southwark, B. 1627 Human Fertilisation and Embryology[LORDS] Gambling: Fixed-odds Betting Machines 1628

Phillips of Sudbury, L. Stoneham of Droxford, L. Fixed-odds betting terminals—popularly referred Pinnock, B. Storey, L. to as FOBTs, and technically known as B2 gaming Prescott, L. Stowell of Beeston, B. machines—are for high-stake fast play, allowing users Purvis of Tweed, L. Strasburger, L. Quin, B. Sutherland of Houndwood, L. to bet up to £100 every 20 seconds. During 2013, Quirk, L. Suttie, B. £1.6 billion was lost by gamblers on FOBTs in Britain, Randerson, B. Symons of Vernham Dean, B. with most of the money coming from some of the Rawlings, B. Taylor of Blackburn, L. UK’s most deprived communities. There are now some Razzall, L. Taylor of Goss Moor, L. 34,500 FOBTs across the UK. The £100 stake on Redesdale, L. Taylor of Holbeach, L. Rees of Ludlow, L. [Teller] FOBTs is more than 40 times the EU average; combined Rennard, L. Temple-Morris, L. with the fast pace of play, this makes them particularly Ribeiro, L. Teverson, L. dangerous, leading to high levels of problem gambling. Richard, L. Thomas of Winchester, B. The speed of roulette on the machines is more than Ridley, V. Thornton, B. five times as fast as roulette in a casino, yet the Robertson of Port Ellen, L. Tonge, B. Rodgers of Quarry Bank, L. Tope, L. machines are in lightly regulated, high street betting Rogan, L. Trees, L. shops—more than 9,000 of them across the country. Rooker, L. Trimble, L. The reality on the ground is that these machines are Rosser, L. Tunnicliffe, L. highly dangerous products that are catalysts for problem Royall of Blaisdon, B. Turnberg, L. gambling, social breakdown and serious crime in Sandwich, E. Turner of Camden, B. Scott of Needham Market, B. Vinson, L. communities. Scriven, L. Wakeham, L. Research published last year by the Scottish Parliament Seccombe, B. Wallace of Saltaire, L. Information Centre found that problem gambling is Selborne, E. Wallace of Tankerness, L. Selkirk of Douglas, L. Walmsley, B. seven times higher in deprived areas, seven times higher Selsdon, L. Walpole, L. among harmful drinkers and six times higher among Sharples, B. Walton of Detchant, L. the mentally ill. Responsible Gambling Trust research— Shaw of Northstead, L. Warnock, B. although flawed—shows the worrying impact of the Sherbourne of Didsbury, L. Warwick of Undercliffe, B. machines. A person who has been gambling at higher Shipley, L. Wasserman, L. Simon, V. West of Spithead, L. stakes is more likely to make poorer judgments than Singh of Wimbledon, L. Wheatcroft, B. after gambling at lower stakes. The number of people Slim, V. Wheeler, B. betting the maximum £100 stake doubles between Smith of Basildon, B. Whitaker, B. 10 pm and midnight; 37% of FOBT gamblers are Smith of Finsbury, L. Whitty, L. problem gamblers. We have all noted the clarification Snape, L. Wilcox, B. Soley, L. Wilkins, B. of the misquotation of the noble Lord, Lord Gardiner, Stedman-Scott, B. Willis of Knaresborough, L. in his Answer on 9 February by the chairman of the Steel of Aikwood, L. Winston, L. RGT. Stephen, L. Young of Hornsey, B. Stevenson of Coddenham, L. Young of Norwood Green, L. Proliferation is happening around the country—not Stone of Blackheath, L. Young of Old Scone, B. just in the cities. One street in the London Borough of Newham has 18 betting shops. However, betting shops 8.32 pm are also spreading in towns across the country.Colchester has 14 bookies, including seven branches of Ladbrokes. Motion agreed. Ireland has banned the machines altogether, following both public concern and parliamentary pressure. The Smith commission on devolution has recommended Gambling: Fixed-odds Betting Machines that powers be devolved to the Scottish Parliament to Question for Short Debate prevent the proliferation of fixed-odds betting terminals. The Government have brought forward two proposals 8.33 pm aimed at ameliorating the worst effect of FOBTs. First, Asked by Lord Clement-Jones there are the changes to the planning regime. In 2014, the Government consulted on a change to planning To ask Her Majesty’s Government what actions processes which would place betting shops in a separate are being taken to address the concerns expressed use class order and require express planning application by a number of local authorities in England and for new betting shops. However, a new use class would Wales about the growth in the number of high impact only on future shops; it would do nothing to stakes fixed odds betting machines available on the tackle existing clusters of betting shops, which have high street. 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 Lord Clement-Jones (LD): My Lords, I am today advantage to those betting shops already in place by pursuing a matter of considerable concern to many keeping out the competition. So those planning reforms noble Lords which has been discussed before on a are not the answer to the FOBT problem, they are merely number of occasions in this House. Most recently, on shutting the stable door after the horse has bolted. 9 February, my noble friend Lord Strasburger asked about the Government’s plans to mitigate the effects Secondly, we have the new Gaming Machine of FOBTs. We also discussed the regulation of FOBTs (Circumstances of Use) (Amendment) Regulations 2015, in Committee during the passage of the Gambling shortly to be debated in this House. They will require (Licensing and Advertising) Act in January 2014. account-based play via a loyalty card or similar system, 1629 Gambling: Fixed-odds Betting Machines[24 FEBRUARY 2015] Gambling: Fixed-odds Betting Machines 1630 or talking to a staff member if a customer wants to bet than £2. I hope that the Government will go well more than £50 per play. That does not amount to a beyond the actions that they have already taken, and I stake reduction. Punters can still stake £100 every look forward to the Minister’s reply. 20 seconds. Vulnerable players chase their losses, and neither measure will prevent a player betting £100 per 8.41 pm game: the root cause of the addictive nature of FOBTs. Lord Dubs (Lab): My Lords, I very much agree with Asking betting shop staff to restrict further betting the noble Lord’s arguments. Indeed, he has put them by customers who may have just incurred large losses so well that I am reminded of the advice I was given is likely to lead to conflict and dangerous situations, many years ago that, when all the arguments have been especially where shops, as they increasingly are, are well put, not everyone else has to put the same arguments. staffed by only one person. There is no basis for the I can therefore be much briefer than I would otherwise £50 proposal. No research has considered the impact have been. of a £50 stake. Therefore there is no evidence that the proposal will help to protect problem gamblers. As regards the planning side of this, the Government are trying to bolt the stable door after the horse has The essential point that I am making today is that gone, because we have such a plethora of betting neither of the Government’s proposals will be effective. shops with these machines in them that it is very hard By giving the impression of taking action, they may to believe that the changes in planning will go any way make the situation worse by delaying the only truly towards remedying the situation. They might prevent effective answer: reducing the maximum stake to £2, it getting worse but that is all. I am impressed by the which is the maximum stake offered in all other similarly overwhelming number of organisations and local regulated adult premises on the high street, such as authorities—people who know what they are about—that adult gaming centres. are opposed to the present situation and do not believe that the Government’s proposals go far enough. Local authorities, who see the problem on the ground, clearly do not believe that the proposals go far enough. Let us take a problem gambler, a person who is Last November, 93 councils, led by the London Borough pretty well addicted: we know that quite a number of of Newham but from across England and controlled people are. This person goes into a shop and he is told by all three major political parties, including colleagues that there is a limit. He responds, “Oh, that’s all right, of my noble friend Lord Tope in the London Borough I understand about the limit. I want to bet £100 every of Sutton, called for action under the Sustainable 20 seconds”. That is not going to stop anybody. It Communities Act 2007 to cut the maximum stake to might stop a timid soul but not a gambler of that sort. £2. Under the Act, councils from all those parties have The difficulty is that because of the speed with which called on central government to take that action due it happens there is hardly time for anybody to pause to the antisocial behaviour, crime and problem gambling and say, “This is ridiculous. I shouldn’t go on backing that the machines are causing in their local areas. That the loss of money”. Psychologically, at least if one is unprecedented step represents the widest support that somewhere where one can gamble only at intervals, any Sustainable Communities Act proposal has ever one can reflect on the likelihood of losing or winning received. and on the need to be cautious. People get caught up psychologically. They lose money and say, “I must go The Local Government Association has backed on betting in the hope of getting my money back”. this call. It has demanded a range of measures to Surely that is the cause. It is a social evil to encourage strengthen the role of local councils in protecting their people to bet in this way and lose money. A lot of the high streets, including calling for a reduction in the criticism is about how this happens in very deprived £100 stake on FOBTs to £2. Under the Act, councils areas. are given the power to make proposals to the Secretary The borough of Newham has put forward some of State as to how the Government can assist them in very interesting proposals and briefings on this. It says promoting the sustainability of local communities. clearly, “We are a deprived area. We have all these The Secretary of State is then under a duty to reach betting shops and machines. Please, we cannot sustain agreement with councils, either via their representative a decent community if this goes on happening”. I do body, the LGA, or directly, on which proposals will be not for the life of me know why the Government are given priority. The department is formally required to trying to pussyfoot around and make minor changes—and respond by June 2015. I hope that the Government I regard them as minor changes—to placate somebody. will respond before then. There is clear evidence that the public supports restrictions on FOBTs. YouGov There is an argument that there might be a loss of showed that only 4% of the public would oppose a ban employment in some bookmakers. Well, there might on FOBTs, with 58% of those who gamble more than be, though they are not so well staffed that they have once a month in favour of an all-out ban. The Gambling enough people to persuade problem gamblers to ease off. Commission has stated that in interpreting the available Even if there is a loss of turnover in the bookmakers—and evidence it will take a precautionary approach where I do not want anyone to lose their job—that money that evidence is mixed or inconclusive. will go somewhere else. People are poor: they will spend it on what everyone else would spend it on in the It is clear that the stake should be reduced until high street. There will, therefore, be no loss of economic there is evidence that it can be safely increased above activity because of this. Perhaps there will be a transfer the £2 level. The onus should be on the bookmakers to from one type of activity to another, but there will not demonstrate that effective measures can be put in be an overall loss of economic activity. I cannot see, place before they are allowed to offer games at more therefore, that there will be an economic disadvantage. 1631 Gambling: Fixed-odds Betting Machines[LORDS] Gambling: Fixed-odds Betting Machines 1632

[LORD DUBS] We have had a slightly testing afternoon, so I may risk In any case, it is surely not very edifying if our high a rather racy analogy which gives my view of FOBTs. I streets have one betting shop after another. Is that the am not very fond of them. If betting on a horse race is sort of high street or community that we want? High the full sexual intercourse of betting and gambling, streets can be positive. They can be useful for people with foreplay when you select your horse and mounting and provide shopping facilities. We do not want these excitement as the race goes on—we know what happens other things when there can be an excess of them—and after that, when the result comes—then FOBTs are a there is. It is said that a single street in Newham has form of onanism. You see sad-eyed blokes—it is always 18 betting shops. For heaven’s sake, what sort of blokes—in front of porn-like machines, made very society are we supposed to be? glittery and unrealistic, shoving in pounds for momentary There is an enormous weight of opinion against pleasure. If FOBTs evaporated into the air tomorrow, these terminals—or, to put it this way, an enormous I for one should be delighted but that does not mean weight of opinion saying that the maximum limit that I would ban them. There are a lot of pastimes that should be £2. To me, that seems a lot of money I do not much like: fox hunting, shooting and, although because you can spend £2 every 20 seconds. That is the noble Baroness, Lady Golding, is beside me, I have still a lot of money and adequate for one’s gambling to say also fishing. However, if others wish to practise them instincts, but then I am not a gambler so perhaps I do within the law—and of course on fox hunting there is not understand these things all that well. It just seems a strict law—that is their affair. Perhaps more importantly, that £2 would be a sensible limit. After all, it is right there is the matter of unforeseen consequences. that the people who are vulnerable and who have You do not have to go into a betting shop to place a become addicted to gambling should be given some bet. The online alternative is increasingly attractive, measure of ability to keep their gambling urges under and I cannot see much advantage in forcing determined some form of control. This is not asking for a great punters to do what they do in private rather than deal. We are not asking to nanny people. doing it in a betting shop, where at least there is some Some of the figures we have been given say that over element of sociable atmosphere. I can also see some a third of fixed-odds betting terminal gamblers are disadvantages. I quite take the point of the noble problem gamblers. It is one in three—a large proportion. Lord, Lord Dubs, on this: there would be a threat to People do not just go in there and spend a little money, the jobs of the hard-working staff—some 45,276 of then go away again. It seems that they stay there and them nationwide—who work in these shops. There that it is easy for this to become compulsive. As the would be a loss of tax and the loss of betting levy noble Lord, Lord Clement-Jones, said, the numbers of revenues. Those have to be weighed against the arguments people betting the maximum £100 stake doubled between we hear. Having said that—which favours the bookmakers’ 10 pm and midnight. That is hardly a time when one’s arguments—I cannot believe the hash that the bookmakers judgment is going to be calm and sensible. have made of arguing their case on this. I cannot The weight of evidence is so much against these believe it. They were legendary lobbyists once upon a terminals with the stakes as they are, and so much in time. If William Hill or Ladbrokes came through your favour of having a significantly reduced stake. I believe door, you shivered with fear and slavered to do their that the Government’s proposals, which will come out will. But now their approach has been that of the in orders, frankly do nothing significant to help. I urge tobacco industry at its very worst. First, they denied the Government to think again. We are talking about that there was a problem. Then they said more research what is for some people a social evil. It is harm that we was needed—an echo of the speech of the noble Lord, are doing to our fellow citizens; surely we have to stop Lord Deben, in the debate we have just had; there is that. 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, 8.47 pm their answer is to do more about problem gambling. Lord Lipsey (Lab): My Lords, I was for many years Of course, I welcome everything that is done about a happy constituent of the noble Lord, Lord Dubs, in problem gambling. I applaud the work of the new Battersea South but in my many perambulations around Senet Group, including on gambling advertising in the the betting shops of the area I very rarely bumped into windows of shops, but also more widely. I also him, although he was a most assiduous MP. I suspect tremendously welcome the appointment of Martin that like many of the participants in this debate, he Cruddace as interim chief executive of the Association probably does not go into them very much. of British Bookmakers. Martin is a 21st-century man who has some possibility of helping us find a way Lord Dubs: Just so that everything should be above through this difficult problem without catastrophic board, I go into a betting shop once a year when we damage either to the betting industry or to the people have a small bet on the Grand National. The year of this country. when I won the most was during an election campaign, I said that the present answer of the bookmakers is when a horse called “Party Politics” won and the odds to say, “We are going to fight problem gambling”. Of were good. Beyond that, I do not go into betting shops course I favour that very much, but I do not think it is and never did in Battersea. any more likely to wash than the bookmakers’ previous defensive strategies. There is a lively academic debate Lord Lipsey: I will give the noble Lord a tip for next about problem gambling. I will not go into it here: year’s Grand National and tell him which shop to “Is there such a thing?”; “Is there a clear distinction place it in. between problem gambling and non-problem gambling?”; 1633 Gambling: Fixed-odds Betting Machines[24 FEBRUARY 2015] Gambling: Fixed-odds Betting Machines 1634

“How prevalent is it?”. I greatly applaud the noble Lord, Outside bookmaking, a consensus is emerging for Lord Clement-Jones, for getting this debate tonight, reducing the maximum stake substantially; the figure but the notion that one-third of those who play FOBTs of £2 seems to have emerged among campaigners at are problem gamblers is not in line with the evidence. the right sort of level. Going back to sex, that would We must do everything we can to stop the terrible turn the porn machines into a sort of page 3—if that affliction that genuine addictive problem gambling still exists; I get confused from day to day as to can do to people and their families. As far as I am whether it does—that is, mild titillation rather than concerned, it is not those who shove every penny they hardcore, and FOBTs into something more akin to can get hold of into these damned machines who are entertainment-with-prizes machines, a bit of fun rather the only people with a gambling problem. Anyone— than a serious gambling product. In my view, it is a anyone—who stuffs a hard-earned £100 into a slot has matter for serious further consideration whether such a gambling problem. You therefore have to tackle it a limit should be imposed at the national level or across the board. decided by local decision by local government. What should be done? The title of this debate refers to the growing number of FOBTs. Again, I am afraid 8.57 pm that I have to disagree with the noble Lord, Lord Clement- Lord Strasburger: My Lords, since confessions seem Jones, who I much respect. The number of machines is to be the fashion, I will admit to liking a little flutter not rising very much. It is nearly 40,000, actually—not myself. In this matter, there are many knowns and a few the 9,000 he suggested—but it is rising at only about unknowns. We know that FOBTs are different from all 2% a year. Indeed, I suspect, as we speak, that it has other gambling machines on the high street because fallen because bookmakers are closing betting shops their maximum stake is 50 times higher, £100 as opposed on quite a large scale now and there will be fewer to £2. This makes them suitable for addictive casino games, machines. I give way to the noble Lord. mainly roulette, and they turn betting shops into de facto casinos where a punter can lose £300 a minute Lord Strasburger (LD): I think the noble Lord will but without the close supervision that casinos deploy. find that although the total numbers are not changing We know that 70% of betting shop revenue now very much, they are migrating towards the poorest areas. comes from FOBTs. We know that the big bookmakers Lord Lipsey: Yes, but that does not relate to the target the poor and the financially vulnerable because point I was making that just controlling numbers is the density of FOBTs in the most deprived areas is not enough. There may be a case for local controls in double that in the most well-off parts of the country. some areas. I will come back to that at the end of my We know that the predictable income that FOBTs speech, but I think that the numbers are probably generate, not being dependent on the results of sporting falling now. However, if you really want to put money events, is very attractive to the plc boards of the big into an FOBT, you are not going to have much trouble gambling businesses. We know that betting shops employ finding a machine; there are plenty about. fewer staff for FOBTs than if they had over-the-counter It is also true that there might be fewer betting betting only, so the costs are reduced. shops on our high streets if there were a crackdown on So we know that FOBTs are goldmines for the the numbers of FOBTs. Again, with regard to unintended betting industry and that it will do all it can to keep consequences, anyone who thinks that that would mean them and their £100 maximum bet three times a minute, all the great shops and chains moving back on to the come what may. We also know that the Responsible high street are deluding themselves; the only reason Gambling Trust is funded by the gambling industry why there are so many betting shops on the high street and its trustees and management are stuffed with is that no one else wants the premises, and they are betting industry figures, so the trust’s independence therefore available. I would rather that our high streets and impartiality are, at best, suspect. consisted of well maintained betting shops than ill Yet we also know that the Government rely on the maintained, ramshackle, empty shops that are falling Responsible Gambling Trust for its research on FOBTs. down. So it is hardly surprising that, despite indications given So if we are not going to try to control numbers, previously by the Government, the recent Responsible what should we try? I think that the alternative, as has Gambling Trust research did not examine whether the been referred to by the noble Lord, Lord Dubs, is the special characteristics of FOBTs—namely very high tool we already have: a limit on the amount that you stakes, casino games and very high-speed play—contribute can put into the machine at once. A hundred pounds is to problem gambling and addiction, although we do a very high limit, is it not? It means—in theory, at know that research by Sydney University in 2005 least—that the punter can lose a hell of a lot of money found a link between high staking and problem gambling. in no time at all. It is, incidentally, the bookmakers’ These omissions in the Responsible Gambling Trust’s adamant refusal to take the counsel of their wiser friends research suit the gambling industry very nicely. Once and reduce that amount, a refusal that I think is again, action will be deferred on greatly reducing motivated by sheer greed and the need to feed the maximum stakes and game speed, and the big bookmakers maws of their shareholders, that has persuaded me can continue to profit handsomely from the poor and that they simply do not get it or, at best, that their the addicted. We also know that fixed-odds betting judgment has taken second place to the size of their terminals present a convenient route for small and bonuses. Had they voluntarily reduced the top stake large-scale money-laundering. by one-quarter, one-half or three-quarters when problems There are two things that we do not know. The first started to emerge, I suspect that we would not be here is very simple. Why on earth did anyone, apart from having this debate today. the bookmakers, think that it was a good idea to allow 1635 Gambling: Fixed-odds Betting Machines[LORDS] Gambling: Fixed-odds Betting Machines 1636

[LORD STRASBURGER] return. As a result, FOBTs have become a significant one category of gambling machine, freely accessible part of their business operations, which has led to on high streets, to have a maximum stake 50 times betting shops proliferating on high streets and licences higher than all the others? Perhaps my noble friend the being moved from tertiary locations to clusters. Minister can tell the House why the Government still The Minister, in response to a recent question from think that huge anomaly should persist. The other the noble Lord, Lord Strasburger, in the Chamber unknown is why the Government appear to be complicit referred to new regulations which, in protecting the big bookmakers and their super-profits “come into force on 6 April this year that will end unsupervised from FOBTs, at the expense of the most economically high-stake gambling on fixed-odds betting terminals. All players vulnerable and those addicted to gambling, their families using FOBTs are now presented with a choice to set time and and those in their community who suffer from the money upfront”. consequential crime. Could my noble friend the Minister The Minister assured the House that the Government explain why that is the case? would be, “keeping this issue under review and remain focused on identifying 9.01 pm gambling-related harm, wherever it is found, and devising effective Lord Collins of Highbury (Lab): My Lords, I welcome measures to bear down on it hard”.—[Official Report, 9/2/15; col. 1021.] this debate. If we are to have a sort of coming-out session, I have used casinos and have even had the Tonight, however, can the Minister explain how the delight of Las Vegas, where I certainly enjoyed myself. Government came to decide that £50 would deal with The most frightening experience I have had was taking problem gambling? I fear that if he cannot, many will an elderly neighbour to the local bingo hall and watching see this as a bit of a sham rather than firm action. It is people play bingo. I found it incredibly stressful; I a fact that the limit relies on the betting industry to could not keep up while she, in her 80s, was able to apply it, and customers will be able to bet above point out all the numbers that I had missed. There is £50 on a single play with permission from betting shop skill in some of these games. staff. Despite a two-year research programme, and after We have heard a lot about the research of the 15 years of FOBTs on high streets at £100 a spin, we Responsible Gambling Trust, which has identified that are still no nearer a conclusive answer to whether they 73% of all bets were on B2 games and that roulette are safe to operate in high street betting shops. was the most popular type of B2 game. In effect, as we have heard, we now have casinos on every high street, My noble friend Lord Dubs has pointed out that but not with the same sort of controls and supervisions the betting industry has argued that jobs are at risk if you would have in casinos. In London, stake sizes were FOBTs are not allowed. If this is the case, why has the higher and session lengths longer. number of employees in betting shops been decreasing while the net takings from FOBTs have increased? A link between social deprivation and use of the machines was found. In England, two-fifths of all bets Local authorities have a statutory duty to uphold were placed in venues in the most deprived areas. the licensing objectives, which are to ensure that gambling However, that reflected the distribution of bookies, as is fair and open, is not associated with crime and does 38% of branches are in the most deprived areas of the not harm the young and vulnerable. As we have heard country. Those with lower incomes were more likely to from noble Lords, 93 councils believe that FOBTs are start to play machines in a bookmaker’s than those in breach of all these objectives and so have joined with higher incomes. Newham in calling for the maximum stake to be capped at £2 a spin. We share concerns that betting shops are clustering Labour has always been clear that FOBTs should in areas with high levels of deprivation, but appreciate be kept under review. My right honourable friend that not all areas are affected. However, as the noble Tessa Jowell, the then Secretary of State, said during Lord, Lord Clement-Jones, said, the new regulations the passage of the 2005 Act that FOBTs were “on on planning apply to new premises. They are not probation”. They have certainly had a very long period tackling the issue of existing premises, or the clustering of probation. She was concerned about unintended I referred to. The Secretary of State for Communities consequences relating to the machines, about the gambling and Local Government has told us: industry becoming “overly dependent”on growth driven “This government is committed to localism and greater local by the machines and about FOBTs’ role in problem decision-making in planning”. gambling. At the time when four was settled on as the Perhaps the Minister can explain why that does not number of machines to be permitted in betting shops, apply to betting shops. Local authorities should have she said that there was no certainty that these machines the ability to ration and manage the number and would remain, because we were absolutely clear that location of these shops in their area. The Labour we could not know at that stage what their effect was Party would also modify the Gambling Act to give likely to be. councils powers to review betting shop licences in their In response to the cap, bookmakers have opened area and retrospectively reduce the number of machines multiple premises in clusters to facilitate more machines. in existing betting shops—that is, from four through They get round the limit of four by simply having four to zero—in response to local concerns. more shops in the same area. Extending those clusters Critics of FOBTs have argued that these machines has been a very big issue for lots of local authorities. are addictive because of the immersive nature of the By clustering in that way, they facilitate more machines, games, which lulls people into losing more money as a fixed-margin product guarantees bookmakers a than they intend. We have heard what the research has 1637 Gambling: Fixed-odds Betting Machines[24 FEBRUARY 2015] Gambling: Fixed-odds Betting Machines 1638 shown about the periods of time for which these are that in answer to a Question asked by my noble friend being played. I support measures to mitigate the harm Lord Clement-Jones. The measures that we are seeking of these machines, such as increasing the time between to introduce are to give more powers to local communities plays, introducing pop-ups that warn players how long by requiring planning applications to be submitted to they have played, and how much they have gambled local authorities for new betting shops, and they will and lost, or requiring them to go to the cash desk to now be in a separate category. At the moment, they limit the amount they can insert into the machine. are in the same category as financial advisers and so However, none of those measures will be effective on, so a change of use within that category would not without sufficient trained staff. Betting shop staff are require planning permission. After April, it will need on the front line when it comes to consumer protection, separate planning permission unless it is within a now but single staffing is commonplace in betting shops, very limited category. I think that they share the same especially in these clusters. Does the Minister agree category as payday lenders and that they are the only that staff would be in a better position to intervene two types of business that will find themselves in this and help problem gamblers if they were not made to new planning category. We have also brought in work alone? measures—which I will outline and expand on later—to Labour will expect operators who have FOBTs to restrict unsupervised high-stake play. have at least two members of staff present at all times. I do not claim to be able to predict what the precise If they fail to comply with this, we will make it a impact of these measures will be—I do not think any licensing condition for betting shops that have FOBTs. of us can know that—but as the Secretary of State, By demanding that betting shops with FOBTs stop Sajid Javid, said at the Culture, Media and Sport single staffing and requiring them to provide adequate Committee on 20 January: training for staff, we can increase employee safety and “These measures, particularly regarding FOBTs”— empower staff to help potential problem gamblers. As my noble friend Lord Lipsey said, one of the Lord Strasburger: I thank my noble friend for giving key issues cited for inaction on FOBTs is a lack of way. He says that he cannot predict the effect of these evidence; we have heard that through tonight’s debate. changes. Let me help him. Changing the planning law Does the Minister agree that betting shop operators will have no effect on the existing betting shops. should be required to collect and provide standardised data on the use of FOBTs, to allow independent—I Lord Bourne of Aberystwyth: I actually said that I stress the word—researchers to analyse their impact could not predict the precise impact of these measures. so as to help inform all future decision-making on That comment was meant in a global sense; I was not these machines? referring to a particular instance. However, I am very grateful to my noble friend for that helpful intervention. 9.11 pm As I was saying, the Secretary of State said: “These measures, particularly regarding FOBTs, will make a Lord Bourne of Aberystwyth (Con): My Lords, this difference but I think, rather than for us to jump now and say, ‘We has been an extremely interesting and thought-provoking should move even further’, I would like to see these bed in and debate. I thank my noble friend Lord Clement-Jones then look at the evidence and see if there is a need for any further for tabling this debate and presenting his case with action at all or if what we have done is enough”. such aplomb, not least because it offers the Government To my mind this is a sensible approach and balances an opportunity to highlight existing measures in this the Government’s commitment to reduce problem area and to provide reassurances on what is, after all, a gambling and protect the vulnerable while at the same very important subject. Let me state categorically at time protecting what is an enjoyable leisure activity for the outset that the Government understand the public’s the vast majority of customers who visit bookmakers’ concerns and those of noble Lords around fixed-odds premises. We will review the impact of these measures—or betting terminals. We have made it clear that we consider have committed to do so—in 2016 to see how effective the future of their regulation to be unresolved. they have been. I turn first to the submission supported by Newham It is perhaps worth reminding ourselves what powers Council and others. The Government understand the exist at the moment. Bookmakers have a responsibility deep concerns held in this area of law in relation both to assist gamblers who display signs of problematic to the perceived impact on the face of the high street behaviour. The betting industry introduced new measures of clustering—about which I will say something later—and under its code of conduct from 1 March 2014—just a to the claimed impact on problem gambling of the year ago. While this is a step in the right direction, we category B2 or the fixed-odds betting terminals that believe that measures should be toughened and made we are talking about. That is why, last April, we mandatory. That is why the Gambling Commission announced action in this area. I believe this was the recently announced in its response to consultation on first action announced under the Gambling Act, which, the social responsibility provisions in its licence conditions after all, came in in 2005, so there was ample opportunity and codes of practice proposals for a mandatory code for the previous Government to do things in the which will come in in May this year, with the sanction five-year period before the 2010 election. However, I ultimately of taking a licence away if a bookmaker accept that we all have concerns about this issue, so I does not fulfil those conditions. I believe that that is a am approaching it on that basis. further step in the right direction. We announced a whole suite of new gambling We believe that the measures we are taking are controls, on track to come into force in April this year. sufficient to improve player protection. These moves, I believe that my noble friend Lord Gardiner covered combined with the measures outlined in the Gambling 1639 Gambling: Fixed-odds Betting Machines[LORDS] Gambling: Fixed-odds Betting Machines 1640

[LORD BOURNE OF ABERYSTWYTH] at least, is looking into it. That is something that I Commission’s response to consultation on the social would encourage, because there are existing powers, as responsibility provisions in its licence conditions and well as those that we seek to introduce. codes of practice, are justified on a precautionary basis. Now I shall return, as I promised I would, to the I should like to add that what is significant here is conditions that we seek to introduce in the code, via that the level of contact between customer and betting the Gambling Commission. As I have said, they will shop operator has increased, either via human or give powers to local communities, by requiring planning electronic interaction. Recent research has shown that applications to be submitted to local authorities for interaction of this sort can give customers pause for new betting shops. Putting the change-of-use regulations thought, an opportunity to take stock of where they on a different basis will make that a more powerful are and to assess their situation in a dispassionate tool. It will require those accessing stakes over £50 to manner. This is something that we have not seen use account-based play or to load cash over the counter, before and it is part of the reason why other countries putting an end to unsupervised high-stakes play, and it are looking to the UK as a pioneer in reducing gambling- will require all players of FOBTs to be presented with related harm. I am not complacent about this because the choice to set time and money at the machine itself. one would hope that we could have no problem gamblers These measures are on track to start in April, and will, but, to put this in context, research demonstrates that I think, make a real difference. The sensible thing to they represent under 1% of our adult population. The do now is to see how they bed in before thinking about figure is higher in the US, Australia and South Africa, further action. That is a fair and reasonable approach. which have comparable systems. I am not suggesting that we can be complacent but we need to keep a sense I shall now seek to answer some of the specific points of balance. 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 Lord Clement-Jones: I apologise for interrupting noble Lord, Lord Clement-Jones, suggested that planning my noble friend while he is in full flow, but does he was not the answer. It is not the whole answer—I accept the Responsible Gambling Trust figure which accept that—but it is part of the answer. Intervention indicates that 37% of customers at these properties are is also important, and that is a key part of the code. problem gamblers? In response to the useful and valid points made by Lord Bourne of Aberystwyth: I do not recognise the noble Lord, Lord Lipsey, I say that the point is to that figure. However, prior to this debate, I read that achieve a balance. We need to protect the vulnerable—that researchers had said that we should not seek to extrapolate is absolutely right—but we should not seek to stop any arguments from the figures that they had looked people gambling. Like some other noble Lords, I have at as they came from a fairly limited survey. I will look a very rare flutter: I went to Las Vegas and never at the research further but I do not recognise the figure placed a bet, so I imagine I am a bookmaker’s nightmare. the noble Lord has given. I can see that the noble Lord, Lord Lipsey, shares that position, so we have that in common—although his Lord Lipsey: Perhaps the Minister will also point contribution seemed to turn into “Fifty Shades of out that the survey was carried out among the 10% of Betting Shops”, and some of the time I was not quite users of properties who have loyalty cards. By definition, sure where we were going. I am all in favour of you are far more likely to have a loyalty card if you are permissive elements, but there are limits. I shall be putting a lot of money into a machine than if you are coming to the noble Lord, Lord Dubs, for tips for the putting in the odd pound or two. Grand National when we reach that part of the year, which is very close now. Lord Bourne of Aberystwyth: I am very grateful to Several noble Lords, including the noble Lord, the noble Lord. It is, indeed, somewhat self-selecting Lord Strasburger, rightly raised the issue of problem in that sense: that is absolutely clear. However, I gamblers. To try to put this in context, FOBTs are in should move on within the time allocated to me. decline overall, according to our most recent figures: Although local authorities are bound by law to aim 4% of adults played them in 2010, and that dropped to to permit gambling in so far as it is reasonably consistent 3.4% in 2011-12. Average stake size on a FOBT machine with the licensing objectives of preventing crime and in a bookmaker’s was £5.13; on a B2 it was £14.08. disorder, ensuring that it is fair and open and protecting That does not mean that this is not a serious problem, children and vulnerable people, the licensing process or potential problem, but we need to get it into context. at present gives authorities considerable scope to attach Most people who use these machines do not have additional conditions to licences. At present, two licences gambling problems. The idea that they do is not borne are needed to open a betting shop: an operating licence out by the research. from the Gambling Commission to show that the This has been a useful debate, and obviously the person operating the premises is a fit and proper department will study it. In case I have not made this person, and a premises licence from the local authority. absolutely clear, I want to nail again the point that the Of course the local authority has to marshal the Government remain very vigilant on this matter, and evidence, if it has a particular planning objection, but in reviewing evidence on the effects of fixed-odds it can do that within the existing law. I think that betting terminals. We want to make sure that the Barking and Dagenham, for example, is looking at betting industry is well aware of that. The Rubicon that process and seeking to use it. I am not sure exactly has not been crossed, nor will it ever be. Nothing is where it has got to, but I know that that local authority, final, except that the Government will work in partnership 1641 Gambling: Fixed-odds Betting Machines[24 FEBRUARY 2015] Serious Crime Bill [HL] 1642 with the Gambling Commission, which is neutral. In Serious Crime Bill [HL] answer to the point made by the noble Lord, Lord Returned from the Commons 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, The Bill was returned from the Commons agreed to with but its research is reviewed by the Gambling Commission, amendments and with a privilege amendment. It was which is a statutory body. We shall study this useful ordered that the Commons amendments be printed. 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. House adjourned at 9.24 pm.

GC 305 Arrangement of Business[24 FEBRUARY 2015] Proposed Marriages/Civil Partnerships GC 306

as to whether they have complied. If the parties do not Grand Committee comply with an investigation under the scheme, they will be unable to marry or enter into a civil partnership Tuesday, 24 February 2015. on the basis of that notice. The scheme will be implemented across the UK on 2 March. From this date, all marriages following civil preliminaries and Arrangement of Business civil partnerships in England and Wales will be subject Announcement to a minimum notice period of 28 days. This will also be the case in Scotland and Northern Ireland, under 3.30 pm changes to devolved marriage and civil partnership laws. The Deputy Chairman of Committees (Lord Colwyn) Any couple including a non-EEA national wishing (Con): My Lords, I remind the Committee that if there to marry in the Anglican Church in England and is a Division in the House we will adjourn for 10 minutes Wales will be required to complete civil preliminaries to vote. and give notice at a register office before their marriage. This will ensure that all couples within the scope of Referral and Investigation of Proposed the scheme are correctly identified. Also from 2 March, Marriages and Civil Partnerships registration officials will be required to refer to the (Scotland) Order 2015 Home Office all couples involving a non-EEA national who could gain an immigration advantage from the Motion to Consider proposed marriage or civil partnership—for example, because they do not have evidence that they have 3.31 pm settled status in the UK. Where a couple is referred to Moved by Baroness Williams of Trafford the Home Office under the scheme, we will be able to extend the notice period from 28 to 70 days where we That the Grand Committee do consider the Referral suspect a sham and decide to investigate the genuine and Investigation of Proposed Marriages and Civil nature of the relationship. Partnerships (Scotland) Order 2015. By extending the notice period and channelling to Relevant document: 17th Report from the Joint us all proposed marriages and civil partnerships that Committee on Statutory Instruments could bring an immigration benefit, the new system will give us much more time and information to identify Baroness Williams of Trafford (Con): My Lords, I and act against shams before they happen. Where they shall speak also to the Referral and Investigation of go ahead, we will have the evidence that we need on Proposed Marriages and Civil Partnerships (Northern file to be able to refuse any subsequent immigration Ireland and Miscellaneous Provisions) Order 2015 application. The new scheme will provide the platform and the Proposed Marriages and Civil Partnerships needed for us to tackle sham marriages and civil (Conduct of Investigations, etc.) Regulations 2015. partnerships more effectively, and crack down on the Part 4 of the Immigration Act 2014 constitutes the abuse of our marriage and civil partnership laws, and biggest reform of marriage preliminaries in a generation. of our immigration system. I beg to move. It provides for a new referral and investigation scheme in England and Wales, aimed at tackling sham marriages Baroness Smith of Basildon (Lab): My Lords, I am and civil partnerships entered into for the purpose of grateful to the noble Baroness for her explanation of circumventing the UK’s immigration controls. We are and information about these orders, and I think she committed to dealing with those who seek to use knows that they have our full support. We expressed marriage or civil partnership as a means of cheating that support during the passage of the Immigration their way into staying in the UK. The referral and Bill, which was a long Bill that produced considerable investigation scheme will give us a much stronger debate—but, interestingly, this part did not provoke platform for effective, systematic action to disrupt and particularly long debates. There was widespread support deter sham marriages and civil partnerships, and prevent in your Lordships’ House for the view that something them gaining an immigration advantage. had to be done to tackle those who seek to gain an The draft orders extend the referral and investigation immigration status in the UK on the basis of a marriage scheme to proposed marriages and civil partnerships ceremony that is not a genuine marriage. I appreciate in Scotland and Northern Ireland. The operation of that it is seriously difficult to investigate and understand the scheme on a UK-wide basis will ensure that there how often this happens, and there is now a reliance on is a robust response in place to the problem of sham those who conduct marriages to seek further information marriage and avoids any risk of displacement of the and to make a judgment, based on that information, problem from one part of the UK to another. We are about whether the marriage is fraudulent for the purposes grateful for the support of colleagues in the devolved of immigration or is a genuine relationship. We supported Administrations for these measures. the measures then and we support them now. The conduct of investigations regulations make Not only are these sham ceremonies wrong in principle provision for how we will conduct an investigation and unfair to British citizens, they are also unfair on into whether a proposed marriage or civil partnership those in mixed nationality relationships that are genuine referred under the scheme is a sham. They set out the and do lead to marriage. We can have confidence in requirements with which the parties must comply as those marriages if we deal with sham marriages that part of an investigation and the basis for the decision are not genuine. I have a few questions, some of which GC 307 Proposed Marriages/Civil Partnerships[LORDS] Proposed Marriages/Civil Partnerships GC 308

[BARONESS SMITH OF BASILDON] are the issues. In principle, however, we support these are simply to refresh my memory on a couple of things orders, just as we supported the legislation. However, in the Immigration Bill that relate to this issue. Earlier if the noble Baroness is able to say something about I was thinking about whether it is a duty on those the points I have raised, I would be most grateful to conducting a marriage ceremony to refer any marriage her. they suspect of being sham or is it something that they may do? I know that there is information that they have to check, but that can be provided fraudulently Baroness Williams of Trafford: I thank the noble anyway, which indeed has been part of the problem. Is Baroness, as always, for her constructive comments. it an actual duty on those conducting the marriage? She asked three main questions, the first of which was on a duty to report. There is an existing duty to report One reason I ask this relates to the news at the on registration officials who suspect that a sham marriage moment about the three young London girls who flew or civil partnership has taken place or is about to take to Turkey and are now feared to have gone to Syria. A place. They currently have a duty to report that to the problem there is that the Government have in some Home Office, and there will now also be a duty to refer ways outsourced the checking procedures from those all couples who are in scope of the scheme for the who would have been responsible, such as the then Home Office to make a decision about whether to UK Border Agency. It is now the responsibility of the investigate or not. That is where the extended period airline to check whether they are able to leave the to investigate comes in. country. Now we have a situation where we expect those who conduct marriage ceremonies to check whether The noble Baroness also asked about guidance and a couple are genuine. I am curious as to whether it training. Statutory guidance for Home Office staff on would be an offence if the person did not conduct the operation of the new scheme is being developed, adequate checks, and what training, support, advice alongside the requisite operational procedures for dealing and guidance is being given to those who conduct with proposed marriages and civil partnerships which marriages to help them make the correct assessment? have been referred to the Home Office under the That is key to making sure that we get this right. It is scheme. The guidance is expected to cover decisions all very well to pass a law saying that something about whether to investigate whether a proposed marriage should happen, but unless we know that it will happen or civil partnership is a sham, how the investigation appropriately, we should still have some concerns. may be conducted and whether a couple have complied with an investigation. The parameters for the guidance I have to say that I did not find the Explanatory are set out in secondary legislation before the Committee, Memorandum very helpful at all. It refers to consultations, in the draft conduct of investigations regulations, and but the only ones it mentions are those which were in the explanatory paper on the new scheme that the conducted on the measures that are in the Bill itself, Government published in November 2013 to support not those set out in this secondary legislation. One parliamentary consideration of the relevant provisions thing that always concerns me about secondary legislation in the Immigration Bill. is that often it is about the implementation of policies that have already been agreed. For a policy to be The noble Baroness talked about training, and help effective, its implementation often matters more than and advice for registrars. I understand that significant what was decided as the policy. I would have liked to training has been provided to local registration staff have seen some consultation; some soundings and to help them identify forged documents. That is not a advice taken from those who are going to be at the perfect solution but it is the best that we have at our sharp end of implementing the legislation to see if disposal at this point in time. Intelligence has also they are content with the tools they have in place. I been shared with registration staff so that they are went back to the original consultation, but it did not aware of the profile of a likely sham and what sort of help much in that regard. If the Minister could tell me pointers would indicate one. what conversations and discussions have been held The noble Baroness talked about consultation. We with those who will be responsible for implementing have consulted publicly, and consulted the devolved the legislation, it would be quite helpful. Administrations and their registrars on the scheme. At the time the legislation was being passed, it was estimated that there were something between 4,000 Baroness Smith of Basildon: I am grateful for that, and 10,000 applications to remain in the UK being which was helpful, although I was asking about made each year by those who we believed were party consultation on these regulations, not on the Bill. The to a sham marriage. That is a huge range, and we said Explanatory Memorandum says that, at the time that there has to be more intelligence “no public or other consultation was held … on the Regulations”. gathering and an intelligence-based approach to this problem. Has anything more been done on that since Perhaps she is talking about the Bill, not the regulations. then? If this is to be a referral-only mechanism to investigate sham marriages, I am concerned that we Baroness Williams of Trafford: Perhaps I need to may be missing some of the sham applications that come back to the noble Baroness on that. I had it in will be made as a result unless the appropriate training my mind that there had been both a public consultation and guidance is given to those who are to conduct and extensive discussions with the devolved such marriages. Administrations. Rather than give her duff information These are not concerns about the policy or the from the Dispatch Box, I will get back to her. We have principle, but about how the law is going to work in also worked closely with the Anglican Church on the practice. Are the tools and the funding in place? Those changes that might affect the church. I will write to the GC 309 Proposed Marriages/Civil Partnerships[24 FEBRUARY 2015] Non-Domestic Rating Regs. 2015 GC 310 noble Baroness on the specific point, but unless she important amendments to the rates retention scheme, has any other questions, I commend the regulations to which since April 2013 has allowed local government the Committee. to retain 50% of all business rates. This has given local communities a vital share in local growth and has Motion agreed. rewarded those authorities that work with their local businesses to support and boost local economies. Referral and Investigation of Proposed I will first consider the Non-Domestic Rating (Shale Oil and Gas and Miscellaneous Amendments) Regulations Marriages and Civil Partnerships 2015. Safe shale oil and gas, supported by a robust (Northern Ireland and Miscellaneous regulatory system, will help safeguard the national Provisions) Order 2015 energy supply on which families and businesses throughout Motion to Consider the country rely. It will also create local jobs, but while we believe that drilling for shale oil and gas is nationally 3.44 pm important, we recognise that, locally, communities should also see the benefits of such developments. The Moved by Baroness Williams of Trafford draft regulations will therefore allow local authorities That that Grand Committee do consider the which host shale oil and gas sites to retain not 50% but Referral and Investigation of Proposed Marriages 100% of the business rates they collect from those and Civil Partnerships (Northern Ireland and sites. Miscellaneous Provisions) Order 2015. We undertook a technical consultation on these proposals last year and sought views on the regulations Relevant document: 17th Report from the Joint in draft. A summary of the responses to that consultation Committee on Statutory Instruments and the Government’s response were published on Motion agreed. 23 January. A number of respondents were opposed to the principle that local authorities should receive 100% of the rates collected. The Government are not persuaded, Proposed Marriages and Civil Partnerships for the reasons I have already touched on. We continue (Conduct of Investigations, etc.) to believe that communities that host shale oil and gas Regulations 2015 sites should receive additional financial benefits. Motion to Consider The regulations will ensure that in areas where there is more than one tier of local government, the 3.44 pm additional 50% being retained from shale oil and gas sites will go to the authority which is responsible for Moved by Baroness Williams of Trafford mineral planning decisions. In two-tier areas, this will be the county council and in London it will be the That the Grand Committee do consider the London boroughs. This is because these authorities Proposed Marriages and Civil Partnerships (Conduct have significant levers for promoting these developments. of Investigations, etc.) Regulations 2015. Nevertheless, other tiers of local government will continue Relevant document: 17th Report from the Joint to receive the same share of the business rates from Committee on Statutory Instruments shale oil and gas sites as they would have received under the existing 50% retention system. So, for example, Motion agreed. district councils will still receive 40% of the business rates on shale oil and gas sites. This means that no Non-Domestic Rating (Shale Oil and Gas local council will be worse off as a result of this measure. and Miscellaneous Amendments) These regulations also include some unrelated but Regulations 2015 important amendments to the operation of the rates Motion to Consider retention scheme. The amendments are technical and have been developed and agreed with officers from 3.45 pm local government in working groups set up for that Moved by Lord Ahmad of Wimbledon purpose. They will ensure that the scheme operates as we intend. That the Grand Committee do consider the Non- Before explaining the changes made by Parts 5 and Domestic Rating (Shale Oil and Gas and Miscellaneous 6 of the regulations, I remind noble Lords that the Amendments) Regulations 2015. scheme requires authorities to make an estimate of Relevant documents: 21st Report from the Joint business rates income before the start of the year. The Committee on Statutory Instruments, 25th Report sums retained by individual authorities and paid to from the Secondary Legislation Scrutiny Committee central government are calculated on the basis of that estimate. The Parliamentary Under-Secretary of State, Department Following the end of the financial year, authorities for Communities and Local Government (Lord Ahmad report their actual income. For the most part, any of Wimbledon) (Con): My Lords, I shall speak also to difference between the start of year estimate and the the draft Non-Domestic Rating (Levy and Safety Net) end of year actual income is rolled forward and paid (Amendment) Regulations 2015. These regulations make in future years. However, for some aspects of the GC 311 Non-Domestic Rating Regs. 2015[LORDS] Non-Domestic Rating Regs. 2015 GC 312

[LORD AHMAD OF WIMBLEDON] Finally, I draw to the attention of the Committee a scheme, reconciliation payments are made once the couple of minor typographical errors in the levy and actual income is known. These regulations amend the safety net regulations. In Regulation 2(1), the word scheme to ensure that when the reconciliation payments “Rating” needs to be inserted after the words “Non- are calculated, the amounts due to or from precepting Domestic”in order to fully describe the 2013 regulations. authorities are correct. In paragraphs 7(2) and 8(2) of the new Schedule 1A to Regulations 12(3) and 13 will also ensure that payments the 2013 regulations, the reference to “paragraph 1 of under the rates retention scheme made by local Schedule 1” should in fact be to “paragraph 2 of government during the year are made in 12 rather Schedule 1”. I apologise for these minor errors of than 10 instalments, bringing those payments into line drafting: we intend to rectify them when the instrument with when the rates income is received by local is prepared for signature. I commend these regulations government. to the Committee. Regulation 12(4) will update the cost factors which are used to calculate the local authority’s cost of Lord McKenzie of Luton (Lab): My Lords, I wish to collecting business rates. This determines how much ask the Minister a couple of questions in support of money each billing authority receives to cover the cost my noble friend. On the shale oil and gas regulations, I of billing and collecting local business rates. think the Minister said that 40% will still go to district Finally, Regulation 12(5) makes the necessary councils. I presume that that is 80% of the existing amendments to ensure that when Derby City Council 50% that councils will retain. If it is not, it would be grants rate relief in the newly designated Derby Enterprise helpful if he could expand on that. Perhaps he can Zone, it is compensated for the cost of that relief. also say a little more about the reasons for allocating I now turn to the levy and safety net regulations. the additional 50% of business rate relief, where there These, too, make a series of technical amendments are two-tier authorities, to county councils rather than which, as with the previous regulations, have been to district councils. Is it simply because the former is agreed with local government officers on a working the minerals authority, bearing in mind that it is the group set up to advise on the detailed implementation district councils that will suffer quite a lot of the of the scheme, as well as with the Local Government disruption that is inevitably entailed in some of these Association and the Chartered Institute of Public activities? Finance and Accountancy. Can the Minister also say a little more about how I will start by reminding noble Lords that the rates the extent of a class A and class B hereditament is to retention scheme includes a safety net which provides be determined? What sort of factors will be taken into support to those authorities which, in any year, see account, bearing in mind that a lot of what goes on in their rates income drop by more than 7.5% below their fracking happens many feet below the surface? How is baseline funding level. This is funded by a levy on that, as a practical matter, going to be dealt with? other authorities that saw business rates growth in that Finally, can the Minister help us a little on what the year. retention of the 50% actually means? If, for example, Noble Lords will also recall that, in line with our an authority might otherwise be in receipt of a proper accounting practice, authorities must now set safety net payment, would that additional 50% be money aside from the rates they collect in order to ignored completely and would the safety net payment create a provision from which they can, in future, still be made? Similarly, does it have any effect on make refunds to ratepayers where a rating assessment what would have been the levy payment in those is reduced on appeal. Last year, we provided that circumstances? authorities could, if they chose, spread the initial costs As for the baseline funding levels being uprated by of making that provision over five years, rather than 2%, presumably the effect of that is to reduce what the having it hit their useable income in the first year. safety net would otherwise have been. Can the Minister These regulations ensure that where an authority give us a few statistics on recent experience with safety has chosen to spread the cost of appeals, which in turn nets? We have presumably had only one period for changes the income reported in those years, this which they have been paid, because they are paid nine adjustment is also reflected in the calculations of the months after the end of the year—so I think that there levy and safety net. Without such changes, the calculation can be only one series of payments. It would be helpful of levy and safety net payments due to authorities to know what they are. Could we also know about the would be made as if their income in 2013-14 was lower extent to which payments on account of safety nets than it actually is—and, crucially, that their income in were made for the first year, which presumably will each of the next four years was higher than it will be. have been made for 2014-15? The regulations, which are highly technical, ensure that the calculations of levy and safety net payments Can the Minister say a little more, too, on the status reflect the impact on each authority of a decision to of outstanding appeals for business rates, and how spread the cost of the initial appeal provision. those appeals might be analysed between relevant revaluation periods? These regulations will also ensure that payments arising from the levy and safety net are made in 12 rather than 10 monthly instalments. As with the Lord Ahmad of Wimbledon: I apologise, but because previous regulations, this is to ensure that payments of the aerial noise from the helicopter overhead I from local government to central government are aligned missed last question—and, if I missed it, I think that with payments from ratepayers to local government. the officials behind me may also have missed it. GC 313 Non-Domestic Rating Regs. 2015[24 FEBRUARY 2015] Non-Domestic Rating Regs. 2015 GC 314

Lord McKenzie of Luton: My final question was to net. The levy and safety net are not affected by the do with the status of outstanding appeals, and whether 50% disregard. The noble Lord also asked me to we can have an analysis of those between the relevant confirm the status with the issues around the 40% and revaluation years. the 80%. I am happy to confirm that the 40% to which I referred is indeed 80% of the 50% of the local share. I Lord Kennedy of Southwark (Lab): My Lords, first, trust that that makes sense. If it does not, I am sure I declare an interest as an elected member of Lewisham that the noble Lord will let me know, if not today, then Council. As the Minister outlined, we are debating later on. two sets of regulations. The first set, as he said, forms He also asked about the extent of class A to class B part of a scheme for local retention of business rates; and how that is determined in terms of factors. Local the purpose is to designate classes of property liable to government will work with the Valuation Office Agency business rates to which the business rates income is to to identify classes A and B. Class A sites are the be wholly retained by local authorities. The second set typical shale gas sites and class B covers combined of regulations makes changes to the operation and new sites where shale gas is also present. I believe that calculation of levy and safety net payments under the he also asked a general question about the issue of scheme for local retention of non-domestic rates. appeals. As I am sure that the noble Lord recognises, I have no issue with either of these regulations as there is a high number of business rate appeals, and they stand, and I can see the benefit of incentivising they take too long to resolve. During the 2010 rating local economic growth. I agree with my noble friend list there were 641,000 appeals that had been received, Lord McKenzie of Luton on the points that he raised; and as of September 2014 532,000 of these had been I would be interested to hear the response from the resolved. In the Autumn Statement 2013, the Government Minister to those points. I see the point about incentivising committed to resolve 95% of the 168,000 appeals fracking schemes locally. outstanding as of 30 September 2013 by July 2015. As of September 2014 this figure had fallen to 52,000. I should say at this point that I am a supporter of While I welcome the broad support of the noble Lord, the UK doing all that it can to maximise different Lord Kennedy, he had a number of questions. I would energy sources as our use and demand for power like to pick up specifically on these matters and write increase, ensuring security of supply. We all accept to him. that fracking is not without its critics, and in some places controversy as well. As this is a relatively new technology in the UK, proceeding with appropriate Lord McKenzie of Luton: Can the noble Lord just levels of caution, risk assessment, and safety and clarify one of the answers, in which I think that he said security is really important, as it is that things are on the issue of the 100% retention that it does not handled well here. Anything that the noble Lord could affect the safety net. Is that right? So it is ignored for say about that in respect of local government would be that purpose, and an authority that might have been in appreciated. receipt of a safety net, receiving additional business I noted the comments in the accompanying note rate retention because of these arrangements, will still that some of the respondents to the consultation were get the same level of safety net as it would have done concerned that these proposals could adversely affect otherwise. independent planning decisions, and it would be useful if the noble Lord could say something about that when he responds to this debate. It would also be Lord Ahmad of Wimbledon: Yes. useful if the noble Lord could comment on the suggestion from the energy sector that the scheme could be extended to other aspects of energy-source extraction. I am not Lord McKenzie of Luton: That is very helpful. at all convinced by that, but it would be helpful to hear the views on this of the noble Lord and those of his Motion agreed. department. The second set of regulations is a sensible measure that protects local authorities against the risk of volatility in local rates income and the risk to local services that Non-Domestic Rating (Levy and Safety that could bring about by providing a safety net. They Net) (Amendment) Regulations 2015 obviously make some changes there. I am content with Motion to Consider these regulations and look forward to the noble Lord’s response. 4.04 pm 4pm Moved by Lord Ahmad of Wimbledon Lord Ahmad of Wimbledon: My Lords, I thank both noble Lords for their contributions and I will That the Grand Committee do consider the Non- certainly seek to answer the questions where I can. If Domestic Rating (Levy and Safety Net) (Amendment) there are certain questions that I am unable to answer, Regulations 2015. I shall write to noble Lords in this regard. Relevant document: 20th Report from the Joint On some of the questions of the noble Lord, Lord Committee on Statutory Instruments McKenzie, and first on the effect of the 50% disregard, it is disregarded for the purposes of the levy and safety Motion agreed. GC 315 Local Government Order 2015[LORDS] Local Government Order 2015 GC 316

Local Government (Transparency) believe that requiring compliance through regulations (Descriptions of Information) (England) is necessary. This will ensure that accountability is maintained and will increase the ability of local taxpayers Order 2015 to see how their hard-earned money is being spent and Motion to Consider their services delivered. Central to local people holding their local authority 4.04 pm to account is having timely access to information Moved by Lord Ahmad of Wimbledon about how the authority spends its money and the goods and services it buys and provides. It is clear that That the Grand Committee do consider the Local once-yearly publication of minutes and papers would Government (Transparency) (Descriptions of limit proper local accountability. Local people would Information) (England) Order 2015. be made aware of decisions only long after they had been made and the opportunity to participate or influence Relevant document: 20th Report from the Joint the process had passed. The publication of meeting Committee on Statutory Instruments agendas and papers three days in advance of meetings and of meeting minutes no later than a month after The Parliamentary Under-Secretary of State, Department the meeting will give the local electorate a clear picture for Communities and Local Government (Lord Ahmad of the activities of these bodies and enable local of Wimbledon) (Con): My Lords, this order was laid people to participate properly in the local democratic before the House on 12 January 2015. It is about process. Alongside the other publication requirements transparency and accountability in smaller authorities. in the code, this represents real accountability and I welcome noble Lords’ support for local authority transparency to the communities these bodies serve. transparency in previous debates. The order adds to Local agencies and people want the publication of the categories of information about which the Secretary key financial and governance data to be mandatory, as of State may require authorities to publish information was clear from the broad support shown in consultation more frequently than annually. responses for the Government’s intention to increase On 17 December, under Section 2 of the Local transparency. To questions about making the code Government, Planning and Land Act 1980, the Secretary mandatory, 76% and 88% of respondents explicitly of State issued a code of recommended practice on the supported our proposals. Nevertheless, we are keen to publication of information by smaller authorities—the support these authorities to meet the code’s requirements. Transparency Code for Smaller Authorities. This applies We intend to deliver a programme of funding through to bodies including parish councils, internal drainage the sector to assist these bodies in getting online and boards, charter trustees and port health authorities publishing the relevant information. This is currently with an annual turnover not exceeding £25,000. being developed with the sector. It is the Government’s intention to make it a legal To conclude, the code is crucial to ensure that requirement for smaller authorities to comply with the accountability and transparency under the new audit code. This will include a requirement to publish certain regime is not just maintained but increased. Now that information relating to all formal meetings. However, we have reduced the audit burden, these authorities the Secretary of State may require authorities to publish need to make sure that they are transparent to those information more frequently than once a year only if who matter most: the local people they seek to serve. it falls within a description of information to which The publication of meeting minutes, agendas and Section 3(4) of the 1980 Act applies. In short, legislation papers is crucial for local people to see how the council needs to set out which categories of information the is being run and how their taxes are being spent. Secretary of State can require to be published more Limiting the access to this information to just once a frequently than annually. This order adds to those year would severely restrict local accountability. I am descriptions of information, information relating to sure that most of us can relate to the conviction that the meetings of a relevant authority, including the greater transparency helps secure better services and agendas, minutes and any other information concerning greater accountability. Consultation responses have matters discussed at meetings. This will enable us to demonstrated broad support for increased transparency require the publication of meeting papers, agendas and for making the code mandatory. We should listen and minutes more frequently than annually. to these messages—and, based on them, I comment The Local Audit and Accountability Act 2014 the order to the Committee. introduces a new local audit framework for public bodies, under which smaller authorities with an annual Lord Kennedy of Southwark (Lab): My Lords, as turnover not exceeding £25,000 will no longer be the noble Lord, Lord Ahmad of Wimbledon, explained, subject to routine external audit on an automatic the purpose of this order is to expand the description annual basis, although they will still have an auditor of information that the Secretary of State may require nominated to field any complaints from local electors. authorities to publish more frequently than annually. This is a more proportionate approach to the country’s It affects a number of smaller public bodies, of which smallest public bodies and the amount of public money 5,300 have a turnover of less than £25,000 per annum. they handle. In place of an external audit, these authorities They will be exempt from routine external audit but will be subject to the requirements set out in the will instead be required to publish information as Transparency Code for Smaller Authorities. Since the specified for the benefit of local residents and others requirements of the code will represent a substitute for to see what has been spent, by whom and to what external audit under the new regime, the Government effect. GC 317 Local Government Order 2015[24 FEBRUARY 2015] Community Right to Challenge Regs. GC 318

I agree that it is important to make this code The Parliamentary Under-Secretary of State, Department mandatory. It is a substitute for external audit, and for Communities and Local Government (Lord Ahmad there will be benefits for the authorities concerned, of Wimbledon) (Con): My Lords, the Committee will because a considerable amount of information that know that town centres in England face significant they would be required to provide under FOI requests challenges to survive and prosper in the internet age. will be published routinely. That is welcome. It is also In order to thrive, there is often a need to innovate and important that people are able to get access to information renew. The Government have recognised the importance about what their authority is doing and to get that of local high streets and sought to provide support information in a timely manner; the point about the through a range of programmes, including for example production of papers such as minutes and so on is funding for the Portas pilots and town teams. We have therefore very welcome. established the Future High Streets Forum to advise I have only a couple of points for the noble Lord. government and develop practical policies, and we Can he confirm what the complaint process will be have supported retail markets through the Love Your after expenditure details are published? If a resident Local Market campaigns, which have been incredibly has a complaint, what will that process be? Will it be, successful in promoting local businesses. I visited one in effect, the same system that we have at present, or in Kingston-upon-Thames, which showed some incredible will it be something different? Can he outline that for innovation by local entrepreneurs. the benefit of the Grand Committee? Can he also We have supported the establishment of business outline the process if an external audit is thought improvement districts, with a loan fund to help start necessary? In such cases, how would it actually be up costs; we have introduced business rate support, triggered? With that, I am content with the order. including doubling small business rate relief, capping the inflation increase to 2% and a targeted discount for smaller shops, pubs and restaurants; and we have Lord Ahmad of Wimbledon: My Lords, on the first lifted planning restrictions to increase flexibility on point, certainly nothing changes in terms of looking high streets. In total this amounts to more than £1.4 billion into complaints and raising those issues. The matters of government support. All this is having an effect. here are ones of transparency; if anything, the existing Britain’s vacancy rate was 13.3% in November, its procedures and processes will be used more readily lowest level since June 2010 according to the Local because of the fact that more information is available Data Company figures of 8 December 2014. In February more readily. 2014, more than half of small business employers said The noble Lord raised an important and valid that their profits had increased in the last 12 months, point on replacing the audit requirement with a up by 13% on June 2013. requirement of greater transparency. If I may, I will Business improvement districts are an important write to him; we need to ensure that we provide a part of the efforts to revitalise town centres and the detailed answer because it will be relevant to local Government are committed to making sure that they authorities. I look to my officials on this, and will can maximise their impact. That is why the Government ensure that that forms part of the code in terms of any conducted a review of business improvement districts exceptions that might arise. With those assurances, I to look at options to further strengthen the role of commend the order. BIDs to ensure that they are able to play a key role in shaping and revitalising their town centres. The review Lord Kennedy of Southwark: Perhaps I may add was undertaken during the spring and summer of that that is important in relation to the odd case 2014 and involved meetings with British BIDs and among these very small authorities. I know from my Associations of Town and City Management, as well time in local government that every now and again as round tables involving more than 20 individual one does get problems that need to be dealt with. I business improvement district bodies. The department would be grateful if the noble Lord would come back also met with the Local Government Association and to me on that point. visited a range of business improvement district bodies and local authorities. Motion agreed. The review demonstrated the additional value that a business improvement district can bring to a town centre. However, it also highlighted how the current Community Right to Challenge (Business model and legislation can restrict business improvement Improvement Districts) Regulations 2015 districts from being actively involved in important decisions that affect them. One identified option was Motion to Consider to give business improvement districts the opportunity to run local authority services by adding them to the 4.15 pm list of relevant bodies that can challenge to run local authority services under the community right to challenge. Moved by Lord Ahmad of Wimbledon As we all recognise, local government services can play a vital role in making town centres clean, attractive That the Grand Committee do consider the environments, running local markets and supporting a Community Right to Challenge (Business Improvement thriving business environment. In many cases, local Districts) Regulations 2015. working between BIDs and local government is helping Relevant document: 20th Report from the Joint to regenerate high streets that might otherwise succumb Committee on Statutory Instruments to the pressures of out-of-town retail and online shopping. GC 319 Community Right to Challenge Regs.[LORDS] Community Right to Challenge Regs. GC 320

[LORD AHMAD OF WIMBLEDON] As I understand it, it is subject to state-aid consequences. In some instances, though, BIDs, as with the voluntary Is the discount per hereditament as long as the rateable sector, have become frustrated by their inability to get value is not more £50,000? Is the state aid de minimis their ideas for improvements listened to. In some similarly per hereditament or per business? I wonder cases, the BID may be a more appropriate body to how those two things are dealt with. In relation to the deliver a service in their area; in others, they may £1,000, if it is per hereditament, does that mean that simply want stronger levers to influence how services the likes of Starbucks, with its renowned corporate that are meant to benefit the retail area are delivered. social responsibility approach, would be eligible for The community right to challenge was introduced by the discount on each of its relevant outlets? this Government to allow the voluntary sector, social enterprises and parish councils the ability to make local authorities give full consideration to their proposals Lord Kennedy of Southwark (Lab): My Lords, this to deliver a service where they believe that they can do regulation adds an additional type of body, the business so better or differently. The right to challenge is not improvement district, as a body able to deliver services designed to be the first port of call for an organisation, locally. It can make an expression of interest in delivering nor does it provide an automatic right to take on a a service under the community right to challenge local authority service. However, it provides relevant provisions of the Localism Act. It enables certain bodies with the opportunity to have their ideas heard bodies to provide services. In principle, that is fine, but and to bid to run services. It is already allowing bodies it would be useful if the Minister could answer a such as charities and parish councils to put forward number of points raised by my noble friend Lord their proposals, and where they have done so it has McKenzie of Luton. Could he also say a little more been because they are convinced that the existing about the community right to challenge in itself, and service could be improved. what has been the benefit of the proposals so far? I have not heard a huge amount about them since they The community right to challenge applies to local were put on the statute book. As for business improvement services, not to functions. It does not remove the districts, and their work to improve town centres, have accountability for a service from the democratically those in his department thought a bit more about the elected local authority, and it does not allow BIDs or sort of service that they would see these districts private businesses to dictate commissioning decisions actually deliver? Does he see any risk of fragmentation to a local authority. This change will add the following of services, for example by focusing on a particular types of BID to the list of bodies able to use the high street or area, and perhaps even additional costs community right to challenge: BIDs established under to business or residents? Section 41(1) of the Local Government Act 2003; joint BID arrangements, in other words, BIDs that I do not know whether the Minister was in the operate across the boundaries of more than one local House yesterday, but his noble friend Lord Naseby authority; property-owner BIDs, and joint BRS-BID asked a very pertinent Question about the crisis on our arrangements; in other words, property-owner BIDs high streets. When she answered the Question, the operating over more than one local authority area. noble Baroness, Lady Williams of Trafford, placed a lot of emphasis on “click and collect”. I notice that These changes will allow BIDs which have good the Minister did not mention that once in his presentation proposals for delivering local services more effectively here today, and I must say that I am a bit sceptical that but are having trouble getting them taken seriously to click and collect is going to be the solution to the use this power to make the local authority consider problems on our high streets. You have only to walk or them, giving BIDs a further string to their bow when drive around in London or elsewhere to see that there trying to improve conditions for business and growth is a real problem in our high streets now. The noble in the local area. This devolves greater power and say Lord, Lord Forsyth, also made a very interesting to local bodies and helps continue to revitalise the point about how much tax is paid by booming internet- great British high street that we all love and utilise. I based companies, which again causes problems for commend these regulations to the Committee. I beg to shops that are trying to compete. move. Could the Minister also talk about the whole question of infrastructure and transport, while he has his noble Lord McKenzie of Luton (Lab): My Lords, the friend Lady Kramer here? For high streets and shops Minister has spoken glowingly about the progress the to work, good transport links are needed. That is an Government have made on the high street, but I put to important point as well. If he could deal with that him a recent report from PWC and the Local Data today, it would be helpful. If he cannot, perhaps he Company which, while recognising that the pace of could write to me on that point. I am not against these retailers shutting shops reduced over the first half of orders, but they go much wider than some of the 2014, shows that the gulf between openings and closures points raised yesterday in your Lordships’ House. has nearly doubled. That survey covered the three months from July 2014 to 30 September 2014, and analysis shows that the net decline for the year to date Lord Ahmad of Wimbledon: My Lords, I thank has risen to 964 closures. That is quite a staggering both noble Lords for their questions. As I said in an number and belies, in effect, the fundamental point earlier debate, when we look at our local markets and the Minister has made. Will he respond to that? high streets, it is important that we focus on these I have a specific question about what he referred to areas in a localised way. It is important to put on as the targeted discount for retailers—the £1,000, going record that a business improvement district is a defined up to £1,500—and the impact of EU state-aid provisions. area in which a levy is charged on all business rate GC 321 Community Right to Challenge Regs.[24 FEBRUARY 2015] Motor Vehicles Regulations 2015 GC 322 payers in addition to the business rate bill. The levy is that had used our advice service found that used to develop projects from which those businesses 43 organizations out of the 105 respondents intended in the local area will benefit. to put in an expression of interest in the months The noble Lord, Lord McKenzie, raised the PWC ahead. Of the expressions of interest that we are report. In my opening statement, I cited the improvements currently aware of, seven have triggered procurement that we have seen in the high streets. We are giving exercises or have led to work being awarded through local communities power to save shops through the service-level agreements. community right to bid, and neighbourhood plans are also allowing local businesses to set out changes to Lord Kennedy of Southwark: My Lords, it has struck local planning. I take on board the concerns that he me that we have not mentioned anything about the raised about local high streets and the concerns about planning process. I am a councillor in Lewisham and closures that have happened in certain areas. It is the Brockley Road, which is in the area I represent, is a important that local authorities also take greater wonderful high street. It is vibrant and has many responsibility. different types of shops there—there is a Co-op, a I remember from my own experience in local authority Budgens and other smaller shops—and the variety when I was the cabinet member responsible that we works. Lordship Lane, which is near to where I live, ensured, for example, a simple solution on parking, also has a great deal of variety. which is now used extensively across London and However, there are other places which have problems other areas—20 minutes’ free parking to bolster the and where there are not-so-good shops that are all local shop network. That perhaps also alludes to a very similar. This legislation may be part of the solution, point that the noble Lord, Lord Kennedy, raised about but is there not an issue about the powers that authorities transport and supporting transport infrastructure. We have in being able to use the planning process to need to ease the burden on shops and local businesses ensure that they get a better variety of shops to serve by helping them to facilitate foot flow and shopper their communities? You can find very good and very flow into those shops. In many areas, local authorities poor high streets close to each other, and the variety of do a very good job in ensuring that they can ease shops, the kind of people who use them and the parking restrictions, for example. transport links can vary locally as well. The noble Lord, Lord McKenzie, always asks very technical questions when I am in Committee or on the Floor of the House. I am minded of the fact that he Lord Ahmad of Wimbledon: On some of the specific researches these issues quite thoroughly. On the impact issues and more generally, the Government have sought of state aid and the two questions that he asked, I seek to again look at the planning process to see how that his indulgence and will write to him specifically on may be improved. The concept of the changes we have those issues. seen, for example, in neighbourhood planning allows The noble Lord, Lord Kennedy, raised the risk of local business areas and local people to set out what fragmentation of services. I do not share that concern their planning priorities are. The move has been towards about BIDs because we are seeking to widen the scope ensuring greater responsibility at a local level. However, of organisations that can deliver services more effectively. we all share the noble Lord’s concerns. Local high As I said in my opening remarks, when local authorities streets are the lifeblood of what defines Britain today. are looking to procure services, accountability remains The Love Your Local Market and Love Your High with them. They are the democratically elected bodies Street campaigns are not divided on political lines that electors will hold to account. The idea is not to because we all support the incentive. Across the country, break up or fragment services but to widen their scope many local authorities of all political colours are and to identify the bodies that can deliver services currently looking towards their high streets and delivering most effectively. Certainly there has been a demand to and procuring good services from a variety of different see how local businesses working in an area can take providers. We need to recognise and applaud that—but, greater responsibility for local services. of course, there is always more work to do. Motion agreed. 4.30 pm The noble Lord, Lord Kennedy, asked about the type of services that can be delivered by a BID. We Motor Vehicles (Wearing of Seat Belts) expect BIDs to challenge to run services such as cleaning services or environmental measures. There is (Amendment) (No. 2) Regulations 2015 no limit on what projects and services can be provided Motion to Consider through a business improvement district. It will be down to the local authority to judge whether the bid 4.35 pm put in by the BID, among other players, can deliver the most efficient and cost-effective service locally. Moved by Baroness Kramer On the question of how many organisations have That the Grand Committee do consider the Motor successfully used the right to challenge, the information Vehicles (Wearing of Seat Belts) (Amendment) (No. 2) gathering we have done to date indicates that there Regulations 2015. have been about 50 instances of community groups using the right to challenge. A survey we carried out in Relevant document: 20th Report from the Joint July 2014 of voluntary and community sector groups Committee on Statutory Instruments GC 323 Motor Vehicles Regulations 2015[LORDS] Motor Vehicles Regulations 2015 GC 324

The Minister of State, Department for Transport contain little gems that are not actually set out in the (Baroness Kramer) (LD): My Lords, this Motion will Explanatory Memorandum. This impact assessment allow a new type of child seat to be used in motor sets out the policy objectives and states that: vehicles in Great Britain. This has already been discussed “The policy objective is to reduce the number and seriousness in another place. It has long been an established fact of injuries to child vehicle occupants whilst keeping any additional that wearing seatbelts is an important safety mechanism. burden to industry or vehicle users to a proportionate level”. Seatbelts are a significant factor in saving lives in It goes on to talk about UN-ECE Regulation 129, to collisions. In a crash, individuals not wearing a seatbelt which the Minister has referred, as intending to provide are twice as likely to die as those wearing a seatbelt. additional safety benefits over and above the existing Therefore the Department for Transport takes this standards. As I understand it, this regulation, which matter very seriously. has been accepted by the EU, is not compulsory. It is especially distressing when a crash involves However, I note that when the impact assessment goes young children. Safety for children in cars has improved on to look at the policy options, it sets out the first one in recent years but, unfortunately, car crashes are one as “do nothing”, which is fairly obvious, while the of the leading causes of child fatalities. This is why the second option would allow the use of regulation 129 department has been involved in developing, under covering standard child restraints in vehicles as well as the auspices of the United Nations, the new standard the existing regulation 44 standard. It states that this is which has been adopted by the European Union. the favoured policy option, and that indeed is what the Child seats currently come in an array of overlapping Minister has said. size groupings which confuse many parents and can encourage them to switch to a forward-facing seat too The assessment then goes on to set out that a third early. This new standard of child seat is known as option to require all new child seats sold from the date i-size, and has many advantages over the existing of implementation to be of regulation 129 standard designs currently allowed. As well as requiring a child was dismissed, which is fairly strong language, on the to travel in a rearward position until the age of 15 months, basis that this would go beyond the requirements of it also provides side impact protection for better protection the EU directive and would be considered to be gold- of the head and neck, with a more rigorous testing plating and not be deliverable. Am I to understand procedure for new designs, including an improved that implementing a directive in a gold-plated way crash-test dummy. Furthermore, by doing away with means that you implement it in such a way so as to the overlapping groupings and moving to a system reduce the number of child fatalities, as well as the based on the child’s height, it will be much easier for number of serious and slight injuries, on the basis, as parents to choose the correct seat. we are told, that the new restraint under regulation The new standard does not replace the current one. 129 is safer? Both standards will run in parallel. Therefore, car Further on in the impact assessment, on page 5, seats complying with either standard may continue to two policy options are set out, excluding the do-nothing be sold and used safely and will not require parents to one. The second one, which I think is the one that has purchase a new design of child seat if they are using been dismissed—I should like to know by whom—states: one which meets the current standard. With the “Require all new child seats sold from date of implementation introduction of i-size, consumers will be given an extra (early 2015) to be of Regulation 129 standard”. option to choose a seat that conforms to the latest standard when purchasing a new car seat for their It continues: child. This also means that manufacturers will not “This would ensure that all new units sold would be of a have to stop making existing designs. However, many higher safety standard, and also ensure that these safer child manufacturers have already designed and tested i-size restraints permeate the market quicker than would be the case products and are ready to bring them to the UK under option 1”. market. Indeed, they are pressing us to make this That is the option that the Minister, on behalf of the change. While it is anticipated that approvals for the Government, has said is favoured and is indeed provided old standard will eventually be phased out, it is not the for in these regulations. Can the noble Baroness confirm intention to prevent existing products being used. that, given the reference to the fact that this would This issue is an important aspect of designing safer constitute gold-plating, the definition of “gold-plating” vehicles, which was a major challenge identified in this would ensure safer child restraints being required and Government’s strategic framework for road safety. I that they would also, therefore commend the regulations to the Committee. “permeate the market quicker than would be the case under I beg to move. option 1”? Viscount Simon (Lab): My Lords, the Minister It would be an interesting example of what gold-plating described this very well. It makes perfect sense. It will means. Perhaps a rather happier wording could have help maintain the health and safety of very young been used in the impact assessment instead of this children. I have only two questions but I do not know enthusiasm for dismissing something as gold-plating. whether she will know the answers. How has the new It might have been a bit more open to have said, “Yes, type of child crash-test dummies been changed? How we have made a decision not to go for the safest has the new side-impact test been changed again? option, the one that would reduce the number of fatalities, serious and slight injuries. We have decided Lord Rosser (Lab): Perhaps I may raise just one or to go for the option that does not make it compulsory two points on these regulations. In particular I refer to but which we recognise might not achieve the same the impact assessment. Impact assessments quite often reduction in fatalities and injuries to young children”. GC 325 Motor Vehicles Regulations 2015[24 FEBRUARY 2015] Motor Vehicles Regulations 2015 GC 326

As that is my understanding, I think it would have requiring parents to go out and purchase a new car been better if it had been put in that way rather than when they simply want to purchase a car seat. That this enthusiasm for using the word “gold-plating”. really is an unacceptable burden. I also notice that the option which was looked at There will be demand from parents who have older was the one that would: cars or cars which do not have the Isofix fitting to purchase a seat for their child. We are satisfied that the “Require all new child seats sold from the date of implementation (early 2015) to be of Regulation 129 standard”. current standard is very safe. That does not mean that we do not want to pursue opportunities to increase the If I have understood this impact assessment correctly, measure of safety. I described earlier the side-impact it estimates that, without it being a requirement, the benefit and the noble Viscount, Lord Simon, followed take-up of the enhanced car seats will still be between up on it. We recognise that existing car seats provide a 70% and 100% by 2020, with what is described as a great deal of safety for children, so we do not feel that “best uptake of 85%”. I would be grateful if the it is necessary to tell parents that they have to buy a Minister could confirm that that is the case. If it is new car in order to buy a seat that meets the new expected that there will nevertheless still be a high standard. uptake of child restraints that conform to the higher standard set by UN-ECE Regulation 129 over a period We accept that over time, as they replace their cars of five years, why was it not considered that the and their car seats, parents will follow the new standards, second option—a requirement that all new child seats but this means that there is a period of time when we sold from the date of implementation are to be of need to have both standards operating in parallel. To regulation 129 standard—should be brought into force put in a date would in fact be artificial. It is sensible to in two, three, four or five years’ time? At least we do all we can to encourage the take-up of the new car would then have had a guarantee that it was going to seats in vehicles which can take the fitting. It will be a come in. matter of parent choice, but the majority of parents want the car seat that provides their child with the I am sure the Minister will correct me if I am wrong greatest protection. It is also true to say that as the but, as I understand it, under these regulations there is volume of sales of the new car seats goes up—they are no date when it will actually become the required currently more expensive than the current car seats—the standard. If we are expecting such a high uptake of price will inevitably come down as economies of scale the new, higher-standard child restraint by 2020, what kick in. is the objection to saying to what would appear to be I think that we will see a very good take-up of these the relatively low percentage that would not conform new car seats, but to make it mandatory would place a to the higher standard that, by that time, you will have burden on some families for whom the purchase of a to conform to the higher standard? I do not understand new car would be exceedingly difficult. What we do why that has not been incorporated into the regulations. not want is for anybody to be tempted not to use a car I can appreciate why the regulations do not require seat because the only one that they can legally purchase everyone to conform from early 2015 but, bearing in cannot be fitted into the car they already have. I think mind the high uptake that is expected, I do not understand that the noble Lord will recognise that. Over time, we why there is nothing in the order to say that from a can see what is happening with the turnover of cars; certain date—two, three, four, five years’ ahead—it that is not something that is ideally predictable. It will will become the required standard. be possible at some point to remove the earlier standard and simply go with the new standard because there 4.45 pm will have been sufficient turnover in the car fleet. I hope, with that understanding that this is a sensible Baroness Kramer: My Lords, perhaps I may respond way that does not place an extraordinary burden on first to the noble Viscount, Lord Simon. Currently, families— there is not a side impact test; that now comes in with the new regulations. The dummies will be designed so that they demonstrate the damage that comes with a Lord Rosser: Am I to take it that the cost of side impact test. If there is further information on the changing an existing car and thus enabling it to take dummies that I have not mentioned, I will gladly write the new fitting or arrangement is either prohibitive or to him and let him know. just not technically feasible? On the point of the noble Lord, Lord Rosser, essentially about why the new seat is not mandatory or Baroness Kramer: I am not an expert in whether why we do not have a date for its becoming mandatory, one can easily retrofit an Isofix fitting—it has a top it is possible that the documentation has not been tether anchorage point. According to the information clear. Part of the new standard does not fit in to the I have just been given, it is not possible to retrofit into car by use of a seat-belt. It requires an Isofix point to a car, so it is a case of buying a car in which this fitting be built in, which is deemed to be a safer way for a seat is part of the original design of the car, because it is so to be anchored. That standard became mandatory for fundamental. new cars from 2012. It would have been seen in many new cars built from around 2006 and even in some Lord Rosser: That is less a comment about not from before then, but obviously many cars that parents wanting to gold-plate an EU directive than it is actually own date from an earlier period and therefore do not saying that in relation to existing cars it is not possible have an Isofix anchor embedded in them. If we were to do it anyway. The Minister has said that it is not a to make this mandatory today, we would effectively be question of cost, but that you actually cannot do it. GC 327 Motor Vehicles Regulations 2015[LORDS] Renewable Transport Fuel Obligations GC 328

Baroness Kramer: I suppose that we could theoretically The Minister of State, Department for Transport require parents to go out and buy a new car, which is (Baroness Kramer) (LD): My Lords, the order follows why we have used phrases such as gold-plating. It is a good deal of consultation and makes some relatively clearly not feasible to bring in the new standard and small but important changes to the renewable transport require parents to have a car that meets it. They may fuel obligation scheme—the RTFO. The changes would be in the second-hand market for cars, or they may improve consistency in the way the RTFO treats two have an older car which, because of family finances, different types of biodiesel, and would encourage they are not in a position to replace. But as I have said, investment in renewable gaseous fuels. The RTFO is a existing car seats offer a great deal of safety to children, certificate trading scheme that places an obligation on and parents have been very satisfied with them. The suppliers of fossil fuels in the UK to ensure that industry has demonstrated their quality, but that does certain amounts of sustainable biofuel are supplied. not mean that we do not keep on improving, and it is The obligation can be met by redeeming renewable the rationale for running the two standards in parallel. transport fuel certificates known as RTFCs. Their value is determined by the market, and trading them Parents are very concerned about safety of their provides a financial reward for those supplying renewable children. As the new car fleet turns over, take-up of transport fuel. the new standard will obviously overrule the old standard and we will reach a point—I cannot tell the noble The RTFO order was amended in 2011 to ensure Lord in which year—at which it will be possible to that only biofuels meeting mandatory sustainability phase out the old standard. criteria were rewarded with RTFCs. The 2011 amendment also introduced new requirements on suppliers to report on the sustainability of the biofuel being supplied and Viscount Simon: I thank the Minister for her reply for this to be assured through independent verification. on side impact testing. From a purely academic point In April last year we published our response to a call of view, side impact testing has been taking place for evidence on additional support mechanisms for privately for many years for research purposes by advanced and more sustainable fuels. At the same TRL, the universities and the manufacturers. It is an time, we concluded a post-implementation review of interesting point of view that it is now being used as a the RTFO scheme. The review considered the extent to logistic point of view, and it is very good that it now which the RTFO had achieved its objectives to support forms part of the legislation. the supply of sustainable biofuels in the UK. The review also noted the significant achievements made Baroness Kramer: I thank the noble Viscount, Lord by the UK biofuel industry to date. Simon, for those comments. We are all very focused on Since the RTFO was introduced in 2008, savings in the issue of safety and we have to give credit to the greenhouse gas emissions, excluding impacts from indirect industry and the consumer for constantly driving forward land use change, have increased from 46% to reach the technical progress that makes cars safer. That is 69% in 2013-14. The most recent statistics also showed something we all want and it is an important part of that 46% of biofuels supplied in the UK were made the work that the Government have done on a whole from a waste or residue such as used cooking oil, series of fronts. With that understanding, I hope that which does not compete for land with food crops. A this is a sensible way in which to bring in a new further public consultation on the proposed changes standard for car seats which gives parents the opportunity to the RTFO order we are considering today ran in the to move to the new standard without making life summer of 2014. impossible for those for whom it would be unaffordable for a whole variety of reasons. Having addressed the This small group of amendments aims to build on range of issues, I hope that noble Lords will be able to the RTFO scheme’s success and deliver two important agree to the regulations and that they can be brought commitments. The amendments will, first, provide into force. consistency in respect of how we treat renewable fuels under the RTFO by aligning the treatment of two Motion agreed. particular types of biodiesel; and, secondly, encourage investment in the development of emerging renewable transport technologies such as sustainable renewable gaseous fuels, by adjusting the reward provided to Renewable Transport Fuel Obligations reflect their higher energy content relative to liquid (Amendment) Order 2015 biofuels. Motion to Consider Hydotreated vegetable oil, or HVO, and fatty acid methyl ester, or FAME, are both renewable fuels that 4.56 pm can be blended with diesel. The biological feedstocks used in the HVO process are similar to those used for Moved by Baroness Kramer FAME: for example, vegetable or plant oils and waste animal fats. In both the FAME and HVO processes, a That the Grand Committee do consider the secondary, non-biological feedstock is used and Renewable Transport Fuel Obligations (Amendment) incorporated into the final fuel. For FAME, this is Order 2015. methanol derived from natural gas, while for HVO it is Relevant documents: 20th Report from the Joint hydrogen produced from natural gas. However, although Committee on Statutory Instruments, 25th Report FAME is deemed to be 100% renewable in calculating from the Secondary Legislation Scrutiny Committee the reward of RTFCs, HVO is currently not. The GC 329 Renewable Transport Fuel Obligations[24 FEBRUARY 2015] Renewable Transport Fuel Obligations GC 330 effect of the order would be to provide for HVO to be fuels for decades to come. We therefore need to develop treated in the same way as FAME. This is in line with technologies and capacity to produce low-carbon fuels our emerging understanding of how HVO should be in the UK, to reduce emissions from road transport treated under the renewable energy directive and is and to encourage sustainable growth and jobs. consistent with the approach in other EU member The proposed changes in the draft order are supported states to these two types of biodiesel. by stakeholders and make a number of worthwhile Our policy aim for gaseous fuels is to level the improvements in that direction. I know that the industry playing field for renewable gaseous and liquid fuels. and investors would like to see greater certainty on the Doing so provides a clear signal that the UK Government pathway to meeting the 2020 transport renewable energy will provide a positive investment climate for those target. The Committee will be pleased to hear that, in looking to supply renewable gaseous fuels in the HGV anticipation of measures to address indirect land use and other sectors. Renewable gaseous fuels are currently change—ILUC—being agreed in Europe later this rewarded at one RTFC per kilogram of fuel supplied, year, we have been working with a very broad group of and liquid renewable fuels at one RTFC per litre. interested parties through our Transport Energy Task However, the energy contained in a kilogram of gaseous Force on precisely how to improve the investment fuel is generally higher than the energy found in a litre climate. The group will report to Ministers in the of liquid fuel. The draft order would provide that coming months. I commend the draft order to the 1.9 RTFCs per kilogram would be rewarded for Committee. biomethane and 1.75 RTFCs per kilogram for both biopropane and biobutane. As is the case now, double Lord Rosser (Lab): The only issue that I wished to the amount of RTFCs would be awarded where the raise—and I am sure that the Minister will hardly be fuel is produced from wastes or residues. surprised—was the report of the Secondary Legislation I am aware that the Secondary Legislation Scrutiny Scrutiny Committee and the concerns it expressed. I Committee has reasonably advised the House that the had intended to mention them in order to give the order may imperfectly deliver the policy, due to Minister the opportunity to put the Government’s uncertainties highlighted by the department in our response on the record. She has, of course, already cost-benefit analysis. I will address the concern that done that in her introductory comments. has been raised. The range of costs and benefits is In the light of the Minister’s speech, it rather begs essentially determined by which sort of biodiesel will the question why the three different scenarios of low, be displaced by extra RTFCs going to renewable gaseous central and high were drawn up for the period 2015-20, fuel. We are estimating discounted carbon-reduction given that, as I understand from her speech, she is benefits of £2.65 million, assuming a 50:50 spilt in the almost dismissing at least one, if not two, of those displacement of biodiesel from waste versus biodiesel scenarios as being based on unrealistic modelling from crop. assumptions. If she is so sure that the issue raised by the Secondary Legislation Scrutiny Committee—that Waste-derived biodiesel is incentivised by being this is about not just a range of carbon savings but a awarded twice the number of certificates per litre range covering both carbon savings and carbon costs—will compared to crop-based biodiesel. As a consequence, not be the case, why did we end up with a cost-benefit it is a more cost-effective option in meeting the obligation. analysis that contained those projections? What is the There would only be a carbon cost should a significant case of having projections that the Government apparently volume of waste-derived biodiesel be displaced—and do not believe for one minute are likely to occur? I then only if approaching 60% of the displacement was would be grateful if she will address that point. of waste-derived biodiesel. One of the things that the Secondary Legislation As biodiesel from waste is the cheaper option to Scrutiny Committee said, in paragraph 28, was: meet the obligation, and is in limited supply, we fully “The central scenario assumes an increase in the size of the expect that biodiesel from crop would be displaced by HGV fleet able to use gaseous fuel from the current 500 to 7,400 increased rewards for renewable gaseous fuels. This by 2020, that 12.5% of fuel used is renewable gaseous fuel and a means that the carbon savings for 2015 to 2020 are 50/50 displacement split between the two types of biofuels. These likely to be towards the higher end of those estimated are modelling assumptions. They do not as the CBA explains … in our cost-benefit analysis central scenario—nearer ‘represent today’s mix of biofuels’”. the £16 million benefit end of the scale. Further, I I am grateful to the Minister for having set out the stress that we have limited options to decarbonise the Government’s response straight away, but I am still a heavy goods sector, and I believe that, in the long little puzzled about why we have ended up with a term, renewable gaseous fuels will be an important document that has raised scenarios which, as I understand element in meeting our carbon-reduction targets. it from the Minister’s speech, the Government are now saying are extremely unlikely. Why include them in the The draft order will also introduce two measures to first place if the Government do not believe that they support effective administration. The first would update are going to happen? What is the answer the point and streamline the powers of the RTFO administrator made by the Secondary Legislation Scrutiny Committee to require information. The second measure would that the 50/50 displacement split between two types of put it beyond doubt that the administrator can apply biofuels does not actually represent today’s mix of mathematical rounding as part of calculating the number biofuels? of RTFCs it issues. Biofuels have proved a complex and controversial Baroness Kramer: I thank the noble Lord, Lord topic over the years. However, we know that vehicles Rosser, for his comments. It is standard practice to are going to continue to require liquid and gaseous look at a range of impacts in developing forecasts. GC 331 Renewable Transport Fuel Obligations[LORDS] Crime and Courts Act 2013 Order 2015 GC 332

[BARONESS KRAMER] without considering both upside and downside, this is I came out of business, and the department very much a considered policy that I think, generally, has been follows the same pattern of talking to the industry and widely welcomed by all players and participants. all the various relevant groups whose behaviour can impact on those forecasts and coming up with a I also point out that the amendment makes only a forecast that seems reasonable and likely and in which small change to the current market for RTFCs. Although it has a high level of confidence. In this case, from the we are concerned to make sure that our modelling is as perspective of the department, it was considered to be good as it can be and that it does not have the quite a conservative estimate. It was chosen as what arrogance to ignore the fact that there are variances could be called the central forecast in which the department and volatilities, we also recognise that, were either the has the greatest level of confidence, based on the upside or the downside scenario to prove to be the one work, research and analysis that it has done. that actually played out, the impact would be relatively small because this is only a very small change in the It is also standard practice to then say, “What if we current market for RTFCs. were wrong?”, and to look at both a more pessimistic range and at what would happen if we could, reasonably, I hope that, on that basis, the noble Lord will feel be more optimistic about the behaviour of certain that the Government have taken a rational approach factors. I would hate to see the department, in doing and that he will feel capable of supporting the order. its analysis, simply going with the forecast in which it had the greatest confidence, without presenting, for Motion agreed. other people to consider, what the impact would be of variations in the underlying factors, both downwards and upwards. That is fairly standard and a wise way to Crime and Courts Act 2013 (Consequential present issues. It is also a way to tease out concerns that then have to be answered. Amendments) (No. 2) Order 2015 The answer to the concerns raised by the noble Motion to Consider Lord, Lord Rosser, is that the department is convinced that all the logic and the discussions with all the 5.15 pm various players indicate that the form of fuel most likely to be displaced is crop-based biodiesel rather Moved by Baroness Kramer than waste-based biodiesel, and because of that, the department has a great deal of confidence in the That the Grand Committee do consider the Crime carbon benefits. Again, we raised those issues to and Courts Act 2013 (Consequential Amendments) discuss the cost-benefit analysis, as I think was entirely (No. 2) Order 2015. appropriate. Relevant document: 21st Report from the Joint Committee on Statutory Instruments Lord Rosser: I asked the Minister about the report of the Secondary Legislation Scrutiny Committee, which ends up saying: The Minister of State, Department for Transport (Baroness Kramer) (LD): My Lords, this order is makes “For this reason, we draw this Order to the special attention of four amendments to the Road Traffic Offenders Act 1988 the House on the ground that it may”— in consequence of the introduction of the Crime and may, not will— Courts Act 2013, which inserted a new Section 5A “imperfectly achieve its policy objective”. into the Road Traffic Act 1988. Is that a view with which the Government agree or Section 5A creates new drug-driving offences of disagree: driving or being in charge of a motor vehicle with a “it may imperfectly achieve its policy objective”? specified drug in the body above specified limits. The Drug Driving (Specified Limits) (England and Wales) Baroness Kramer: The Government have a high Regulations 2014 were made on 24 October 2014. degree of confidence in their central forecast. I have They specified the drugs and their limits, and will never seen forecasts turn out exactly right, to the come into force in England and Wales on 2 March right-hand side of the decimal point. Forecasting is an 2015. Although the new Section 5A applies to Scotland attempt to look into and understand the future, so it is as well, it is for the Scottish Government to make never a perfect science. It is right that that is always regulations to specify the drugs and their limits. I recognised. The noble Lord will also recognise that understand that the Scottish Government are in the biodiesel and biofuel prices will always be volatile in process of considering responses to a consultation and this industry. That affects the trend, and there will be hope to publish an analysis report shortly. The views variance year on year in actual behaviour. It is right offered in the consultation will inform their decision that there is always an element of uncertainty in on the drugs and their limits for the new drug-driving forecasting, but it is also right to use the research, the offence in Scotland. This order therefore applies to analysis and the discussion with the industry to come Great Britain where the amendments extend the penalties up with the scenario in which one has the greatest already available in relation to similar driving offences confidence. That is what I think the department has, connected with drink-driving and drug-driving to the entirely appropriately, done. It has shaped and presented new drug-driving offences. It also provides for the its policy on that basis. Given that understanding that endorsement of an offender’s driving licence counterpart it would be sheer arrogance to present only one scenario and the driver’s record in relation to the new offences. GC 333 Crime and Courts Act 2013 Order 2015[24 FEBRUARY 2015] Crime and Courts Act 2013 Order 2015 GC 334

As noble Lords are aware, the review of drink and to Section 45A—“Effect of endorsement of driving drug-driving law by Sir Peter North concluded that records”—which would come into force instead of there is, amending a revoked Section 45. However, industry “a significant drug driving problem”, asked for more time to get ready for the abolition of the counterpart. To accommodate the needs of industry, and recommended the new offence. Drivers impaired and so that Parliament does not have to revisit this by drugs kill large numbers of people, and there could piece of legislation in the future, this order has been be as many as 200 drug-driving-related deaths a year drafted to refer to Section 45 but also to Section 45A in Great Britain. Statistics show that a drug-driver has of the Road Traffic Offenders Act, to cover the situation 1/50th of the chance of being prosecuted compared to where Section 45 is revoked and Section 45A is a drink-driver. European evidence from the driving commenced. under the influence of drugs, alcohol and medicines project—DRUID—suggests that drug-driving is about The Government believe that it is important that half as prevalent as drink-driving. We estimate it to be those drivers who continue to commit drug-driving around a third as prevalent in Great Britain, so offences and put lives at risk have their counterparts enforcement related to drugs is disproportionately low. or driving records endorsed for a considerable period Ensuring we have the full range of penalties and the of time and so are able to feel the full force of the law ability to record offenders fully to support the new when prosecuted. With the power of social media, it is offence will thus enable more effective law enforcement also important that potential drug-driving offenders and act as a deterrent to those who recklessly risk are not incentivised to refuse to provide a specimen or killing and injuring on the road as a result of taking to refuse to allow that specimen to be analysed, in drugs and driving. order to get a lesser penalty. I urge Members to agree that we must send a strong message that this House, I turn to the detail of the order we are proposing. Parliament and wider society will not tolerate those Section 45 of the Road Traffic Offenders Act 1988 who persist in drug-driving and the threat they pose to provides for the period during which an endorsement other road users. I therefore recommend that the remains effective on the counterpart of a driving licence Committee approves this order. I beg to move. following a conviction where endorsement of the offence has been ordered. This order amends the Act so an endorsement ordered upon a person’s conviction for Lord Teverson (LD): My Lords, I have come very the new offence remains effective until 11 years have recently to this debate, but I was interested to come elapsed since the conviction, in line with other drink- along and listen to it. I am interested in two areas, driving and drug-driving offences, rather than just which are probably old territory—I hope that the four years as it currently stands. Minister will forgive me. This is an important bit of When the relevant part of the Road Safety Act 2006 legislation; drug-driving is equally as dangerous and is brought into force, Section 45, which relates to the as much of a hazard to fellow citizens as drink-driving. endorsement of counterparts, will be repealed and However, I am still unclear how the enforcement of Section 45A, which relates to the endorsement of this testing is to be done in a practical way. We always driving records, will be in force. The amendments think of drug-driving as being about illegal drugs, but made by the Road Safety Act 2006 are part of the presumably some legal highs or even medicinal legislative changes which abolish the paper driving pharmaceuticals, particularly tranquilisers, can be equally licence counterpart so that all endorsements will need dangerous. Is that covered in this legislation? I would to be recorded electronically on a person’s driving be interested to hear and understand that context. record only. This order has therefore been drafted so that when these Road Safety Act changes commence, Lord Rosser (Lab): I thank the Minister for explaining the amendments made by this order to Section 45A the purpose and content of this order. As she said, and will enable the endorsement of a person’s driving as the Explanatory Memorandum sets out, the order record for the Section 5A offences of driving or attempting amends the 1988 Act in consequence of the introduction to drive with a specified drug in the body above to the Act, through the Crime and Courts Act 2013, of specified limits to remain effective until 11 years have new drug-related road traffic offences, which make it a elapsed since the conviction. criminal offence to drive, attempt to drive or be in The order also amends the Road Traffic Offenders charge of a motor vehicle with a concentration of a Act to provide for the penalties applicable to the specified controlled drug above a laid-down limit. The offences of failing to provide a specimen for analysis amendments in the order extend the penalties connected under Section 7 and failing to permit a specimen to be with drink and drugs, including failure to provide a subjected to a laboratory test under Section 7A without specimen, to the new drug-related road traffic offences reasonable excuse in the course of an investigation and provide for the endorsement of an offender’s into whether a person has committed an offence under counterpart and driving record in relation to the new Section 5A. offences. As the Minister said, the new offence comes Noble Lords may be wondering why the Government into force shortly—at the beginning of next week—in have tabled this order so close to the commencement England and Wales. Regulations determined by Parliament of the new Section 5A offences on 2 March. It was last October, I think, specified the controlled drugs originally hoped that the abolition of the paper driving and their limits. licence counterpart would have been completed by the I appreciate that the key debate on this issue has end of October 2014. Our intention was to wait for already taken place and the decisions have been made, that legislation to be made and make the amendment but can the Minister give an up-to-date indication of GC 335 Crime and Courts Act 2013 Order 2015[LORDS] Crime and Courts Act 2013 Order 2015 GC 336

[LORD ROSSER] list. For a new drug to be covered by the new offence, the number of proceedings per year expected to be the following are necessary: the drug has to be recognised brought under the new offence of driving having taken and classified by the Home Office under the Misuse of a relevant controlled drug above the specified limit Drugs Act 1971; a consultation would then need to and whether the ability to test for and prove that drugs follow on whether to add it to those specified under above the specified limit have been taken is sufficiently the offence of drug-driving and at what level to set the robust to expect a proportion of guilty findings similar specified limit; and regulations would need to be approved to that applicable to drink-driving proceedings, namely under the affirmative procedure. So there is a procedure 96%? Perhaps she could also say something about in place to add to the list. whether the necessary equipment to undertake these I am sure the noble Lord, Lord Rosser, will correct tests on those who it is felt may have been driving with me if I have misunderstood this, but one of his questions a concentration of a specified controlled drug above a was essentially about whether or not there should be a specified limit is now available, so that we are ready to difference between the sentencing for impairment caused go as far the bringing into force of these new offences by alcohol and that for impairment caused through is concerned. What is the cost of that equipment? How drug use. The rationale to me is that identifying the many police forces already have it? Who has to pay for specified drug is step one, and then defining the level it? Does it have to be used back at the police station or above which having that drug in one’s system is the do we have equipment that can be used at the road standard of impairment for the offence is step two. side? It would be helpful if the Minister was able to That, essentially, is the way in which this legislation comment on those points. works. In other words, first, the drug is identified—I As I understand the penalties and levels, a zero- have read out the process that is gone through to get a tolerance approach is being adopted towards anyone drug on the list, which obviously involves consultation— who is found to have a concentration of a specified and, secondly, the limit above which that drug in the controlled drug unless they are able to show that it system would be considered an offence is determined. resulted from having taken a drug for medical reasons. The noble Lord will understand that that is, in many The Explanatory Memorandum states: ways, the same as the approach used with alcohol. It is “No formal consultation for these amendments has been illegal to drive with above a certain limit of alcohol in undertaken as these are consequential amendments upon the the system. creation of new drug driving offences”. The noble Lord also asked about testing equipment. Has consultation taken place previously on what the We understand that 12 forces at present have station-based penalties should be and whether they should be on a screening devices. Manufacturers are talking widely to par with, lower than or higher than those related to various forces, who are obviously considering whether drink-driving, or has it just been assumed that they to purchase devices to enhance their capacity to enforce. should be on a similar level? Was a view taken on Mobile screeners are also available. The new mobile whether driving having taken drugs is likely to have a screener tests only for cannabis and cocaine, but those lesser or greater impact on driving ability than having are two of the most prevalent types of drugs detected consumed alcohol? One assumes, in the light of the among drug drivers. Again, police forces manage their comment in the Explanatory Memorandum that the budgets and so they must decide how to use their penalties are on a par with those for similar driving budget to acquire equipment for enforcement. offences connected with drink and drugs, that the impact is deemed to be the same. Perhaps the Minister could confirm that point because, if the impact is Lord Rosser: I am sure the noble Baroness will deemed likely to be greater, one would have thought correct me if I am wrong but 12 forces have station-based that that would have been reflected in the penalty; if it equipment and the new offence comes in at the beginning was deemed likely to be lower, likewise it might have of next week. Does that mean that there is a significant been thought that that would have been reflected in number of forces that cannot enforce this offence the penalty the other way. because they do not have the equipment? Finally, the Explanatory Memorandum states in paragraph 12 that a supplier has been selected to Baroness Kramer: At this point in time, 12 forces evaluate the effect of the new drug-driving offences. have station-based screening devices. We are encouraging Could the Minister say who that supplier is? forces to talk with manufacturers about the kind of products available. I am sure the noble Lord would not want the introduction of the offence to be delayed Baroness Kramer: I thank noble Lords. I should until all forces had decided on the kind of equipment make it clear to my noble friend Lord Teverson that they wished to purchase for enforcement. there is an existing Section 4 offence that is used to deal with driving under the influence of drugs not specified for the purpose of the new offence. That Lord Rosser: I hope the noble Baroness will not remains in place. The existing drug-impaired driving take this as an attempt at withering criticism but offence remains, and therefore all drug-impaired drivers police forces have known for some time that this new can be prosecuted, whatever and how many drugs they offence was likely to come into force. If I understand have taken. I give him that assurance. There is a correctly, it does not look as though many of them process to add drugs to the list of specified drugs. I have been taking active steps to make sure they have will write to my noble friend with the details of how got the equipment to be able to enforce. Is it a question drugs can be added in that process. There is both the of cost? Does this equipment cost a large sum of broad brush and the ability to add new drugs to the money? GC 337 Crime and Courts Act 2013 Order 2015[24 FEBRUARY 2015] Electrically Assisted Pedal Cycles GC 338

Baroness Kramer: I do apologise. It am not being Since 1983, there have been significant improvements clear. Driving under the influence of drugs, even though to technology, in particular in relation to power supply, it has not been specified, has long been an offence, as where heavy lead-acid batteries have largely been the noble Lord is aware, and the method for enforcement superseded by lighter and more efficient lithium-ion has been a blood test. That has been used by all forces batteries. Attitudes towards cycle use, both for consumers over many years and remains in place, so they have and businesses, have also been transformed with regard that capacity. However, with the new list of specified to congestion, operating costs, emissions and health. drugs, many of them are now interested in alternative Finally, legislation and standards in Europe have changed. screening devices, particularly mobile devices, because In 2013, a new EU framework regulation on the that puts them in a position, as it were, to issue a fixed mandatory type approval of two or three-wheel vehicles penalty on the spot. I think we will see that take-up, and quadricycles was not applied to a class of EAPCs. given the new opportunities for enforcement that are The current GB requirements are more restrictive, so provided by forces up and down the country. But of it is right that we now make harmonising changes to course they always have the fallback of using the provide a wider choice of products for individuals and blood test, which has always been available to them businesses. and continues to be. We began a review of the EAPC requirements in I hope that I have covered the range of issues. If I 2010, with an initial consultation on limited changes. have not, I will gladly read through Hansard and Further views were received via the Government’s Red provide a letter with more detail. I hope, on that basis, Tape Challenge Review in the following year. We then that your Lordships will feel that they can support this commissioned the Transport Research Laboratory to, order. “gather, generate and expert-review evidence from a wide variety of sources (including Red Tape Challenge and the 2010 EAPC Motion agreed. consultation responses) on the forces and pressures influencing pedal cycle construction, sale and use in Great Britain, and provide DfT with costed, practical and appropriate options for Electrically Assisted Pedal Cycles legislative change”. (Amendment) Regulations 2015 The amending legislation now before the Committee Motion to Consider is thus the culmination of careful and extensive consideration. 5.37 pm Three main changes are proposed. First, the maximum motor power for bicycles is to be increased from Moved by Baroness Kramer 200 watts to 250 watts. That matches the most popular That the Grand Committee do consider the EAPCs manufactured for the EU market and will Electrically Assisted Pedal Cycles (Amendment) alone significantly increase the choice of products Regulations 2015. available to our consumers. Secondly, we have decided to remove all the current weight limits for EAPCs—that Relevant document: 21st Report from the Joint is, the 40 kilogram limit for bicycles other than tandems Committee on Statutory Instruments or tricycles and the 60 kilogram limit for tandems and tricycles. Again, this matches the position elsewhere in The Minister of State, Department for Transport Europe. (Baroness Kramer) (LD): My Lords, these draft regulations Concern has been particularly expressed by Transport are being made to change the class of electrically for London and the Mayor of London regarding assisted pedal cycles—EAPCs—that are not treated as allowing EAPCs not treated as motor vehicles on the motor vehicles when used on roads in Great Britain. roads to be heavier, but we are satisfied that the change The changes are intended to encourage the use of is largely self-limiting as a 250-watt motor is simply EAPCs to the benefit of both individuals and businesses. not going to provide enough power to move an The current regulations came into force in 1983. unacceptably heavy load. We have no evidence from They set out the requirements that EAPCs must satisfy other European countries, where these vehicles have in order for them not to be treated as motor vehicles been in use for some time, to suggest that they pose when used on roads. Compliant EAPCs are not subject safety risks. Our review of the current position has to vehicle excise duty and do not need to be registered indicated that a realistic unladen weight for a cargo or insured. Riders are not required to hold a driving tricycle is between 125 kilograms and 150 kilograms, licence, although no one under 14 is allowed to ride well above the current weight limit of 60 kilograms. one on roads. The requirements that have to be satisfied The existing weight limit forces manufacturers to use in order for EAPCs not to be treated as motor vehicles parts and materials that are not suitable for commercial on roads relate to their weight, the maximum power of use. The removal of the limit could encourage the use the motor and the speed at which electric assistance of innovative design and allow a greater choice of cuts off. The EAPC must be capable of being propelled construction materials. The third change is to allow solely by pedals, for example, in the event of a depleted vehicles with more than three wheels to be classified as battery or motor failure. However, in practice, it is our EAPCs. There is not much evidence of demand for understanding that most users pedal their machines such vehicles at present, but we consider that harmonising and that, for those where a separate throttle is fitted, with the European convention in this respect has the the riders mix the power delivery between pedalling potential to stimulate demand, particularly for light and the throttle control. urban delivery vehicles. GC 339 Electrically Assisted Pedal Cycles[LORDS] Electrically Assisted Pedal Cycles GC 340

[BARONESS KRAMER] to go around different companies to look at what I previously mentioned the electric assist cut-off products were available. I went to one depot that had a speed. We plan a harmonising change from 15 to show room full of these bikes that exceeded the 15.5 miles per hour. This is simply to align with the 40 kilogram limit, but they were the type that lacked European standard of 25 kilometres per hour. However, pedals. They are out there for sale, though I presume unlike the EU, we will continue to include EAPCs— that they have not been sold because they fall outside those that can be powered solely by the electric motor the regulations. I also presume that they are to be by virtue of a throttle or switch—of up to speeds of re-exported, because they cannot be sold in the United 15.5 mph in the category of EAPCs that are not Kingdom. At some point in the future maybe Ministers treated as motor vehicles on roads. We believe that this might be more sympathetic. If we are governed here is a distinct benefit to our disabled and elderly users. by European regulations and cannot exceed them I Finally, we are taking the opportunity to replace references have no case, but I am interested to hear what the to a withdrawn British standard on power measurement Minister has to say in reply. with the latest British and European equivalent and to recognise any other comparable European measurements. Our impact assessment of the changes anticipates Lord Rosser (Lab): Before I start, I shall say that that they will stimulate significant growth in EAPC have a number of questions. They relate to the impact sales. That growth is forecast to deliver savings to assessment and I suppose that being confronted by a consumers of between £92 million and £267 million 21-page impact assessment full of statements and over the next 10 years through car operating cost figures constitutes a challenge. I am not expecting savings, health benefits, reduced congestion and wider answers today to the questions, some of which are impacts. Businesses are forecast to save between highly detailed, so there is no need for any frantic £5.8 million and £22.9 million through congestion activity behind the Minister. I am more than willing to savings, and goods delivery and van operational savings. have a response subsequent to this meeting, if she The net annual benefit to businesses is estimated to be would like to do it that way. just over £0.6 million per year. Overall, the changes I also note with interest in the impact assessment have been widely welcomed by the majority of the the statement of fact that this measure seeks to increase stakeholders and individuals who commented on the the EAPC sales, draft legislation. I beg to move. “by harmonising GB legal standards for EAPCs with European standards”. Lord Campbell-Savours (Lab): My Lords, while this In some parts of the House that kind of statement might not be the greatest issue confronting Parliament, would be dynamite to those with a certain lack of it is actually quite an important little change. A couple enthusiasm for the EU. Perhaps that is why this item is of years ago I did some research into these bikes. being discussed at 10 minutes to six in the Moses Indeed, I have just sent a note to the Minister’s civil Room, when attendance might be fairly limited, rather servants to check on a particular kind of vehicle which than in another environment that might have provoked I thought might have fallen within this designation, a few more people to turn up. I make that comment but I understand that that is not the case because it somewhat facetiously, bearing in mind the commitment does not have pedals. During the course of her speech, to harmonising with EU standards. the Minister said that bikes without pedals might, at some stage in the future, be the subject of an amendment The Minister has set out that to be currently classified to the law. I think I heard that correctly. as an EAPC—an electrically assisted pedal cycle—in this country the vehicle has to comply with a number The bikes I am referring to do not have pedals and of requirements and has set out the changes. As she do not exceed 15.5 miles per hour, so they cannot go said, those requirements are that: the continuous rated very fast. They do not need an MOT, nor do people power of the motor must not exceed 200 watts for need a licence or insurance for them. People do not standard bicycles and 250 watts for tandems and need to use a helmet at the moment or pay road tax. tricycles; the electrical assistance must cut off when There is very little difference between these bikes and the vehicle reaches 15 mph; and the unladen weight the electrically assisted bikes or mopeds that are covered must not exceed 40 kilograms for standard bicycles by the order before the Committee. To what extent will and 60 kilograms for tandems and tricycles. The changes genuine consideration be made of these more advanced which this order makes to bring us into line with vehicles without pedals? European standards are that: the maximum motor I would imagine that nationally there are a lot of power for standard bikes is increased to 250 watts; the bikes being held in stock that fall under the old regulations. electronically assisted cut-off speed is amended to I have seen these bikes in Tesco, where they cost 15.5 mph; all the weight limits are removed; and around £450. I presume that a number of retailers vehicles with more than three wheels are permitted. must be holding stocks under the old regulations. Were they consulted and did they express a view on whether Although the impact assessment tells us that there the implementation of this regulation should be delayed? will be an anticipated increase in bike sales by 7,850 units to 20,400 by 2024, it does not really explain which of the changes that will be made by this order 5.45 pm will be driving this increase. Is it the increase from It would be good if at some stage in future these 15 to 15.5 mph, which does not appear significant? Is other bikes could be included. Why did I do a bit of it the increase in the maximum motor power for research on them? I wanted one myself. It was interesting standard bicycles from 200 to 250 watts? Is it—as I GC 341 Electrically Assisted Pedal Cycles[24 FEBRUARY 2015] Electrically Assisted Pedal Cycles GC 342 think my noble friend Lord Campbell-Savours the contention that users of EAPCs are less likely—or suggested—the removal of the weight limits? Or is it no more likely—to suffer fatalities, or serious or slight the change permitting vehicles with more than three injuries, than users of cars or trucks engaged in similar wheels? trips? How many vehicles with more than three wheels do Paragraph 5.22 states: the Government anticipate will appear on our roads as “The accident benefits from reduced car use are ignored as a result of this order? If the weight limits are to be any potential costs from increased accidents are not included in removed, could the Minister confirm that these are the earlier section for bikes”. unladen weights, which is what I understand to be the What is the evidence that these two figures would position? I know the Minister addressed this point in cancel each other out, as this would appear to be the her opening comments about not expecting anybody justification for making that statement? to go stupid over the weight limits because of the fact that the bike would not be able to move if it got above The order aligns the UK with the EU 250 watt a certain weight, but is there any weight beyond which maximum motor power limit. Does it also mean that an EAPC—bicycle, tandem, tricycle or vehicle with in future in the UK, drivers of EAPC vehicles with more than three wheels—becomes potentially unsafe engines of between 201 and 250 watts will no longer for the driver or for other road users? Or is the have to undertake compulsory basic training or wear Government’s view that that level would only be reached helmets? If that is the case—I may well be wrong—will in a situation where you could not actually pedal the the Minister point out where in the documentation it bicycle, tandem or tricycle in any case and therefore it says that, and what the impact would be on safety? is an irrelevant consideration? Could she also say if any people in this country On safety, page 1 of the impact assessment states currently drive EAPC vehicles of between 201 watts that the objective is “to simplify and reduce” legislation, and 250 watts with the current regulations in force? What she has been saying is that the current regulations “whilst maintaining or improving safety standards”. on the tax and driving licence act as a deterrent to Can the Minister say a little more about how the order anyone driving vehicles of between 201 watts and will actually improve safety standards? 250 watts. The impact assessment also states on page 1 that, In paragraph 5.2, the impact assessment refers to “the most commonly produced EU bicycles cannot be used in the higher sales of EAPC bicycles having the potential to UK without road tax and a driving licence”. displace journeys by bus. I do not want to exaggerate Since the order will change that situation, could the this because I appreciate that we are talking about Minister say what the impact of the order will be on relatively small numbers, but is there any significant the UK bicycle manufacturing industry, as opposed to estimated impact of this on bus revenue, or is it the retail sector, when the most commonly used EU deemed to be so negligible as to be—I say this in the bicycles can be used in the UK without having to pay best spirit—not worth bothering about? If there is road tax or have a driving licence? My understanding going to be this transfer from bus travel to bike travel, is that the UK bicycle manufacturing sector is stated how would that contribute to the declared objective in the impact assessment to be valued at, I think, just set out in the impact assessment, to which I have over £50 million. It is very small in that sense. Is it not already referred, of, possible that this order and the changes it incorporates “maintaining or improving safety standards”? will be something of a blow to what is left of the UK bicycle manufacturing sector? Is that why the impact I will not raise the next issue regarding a gap in the assessment does not address that issue, saying in wording of the impact assessment. I will forget that for paragraph 5.8 that it, the moment. “concentrates solely on the benefits to the retail sector from Paragraph 5.7 of the impact assessment states that increased sales of EAPCs”? the direct benefits to business are assumed to be, The impact assessment tells us on page 3, although “increased profits from increased bike sales”. the Explanatory Memorandum does not, that: Is that a net figure that also reflects any adverse “The current GB Regulations define an EAPC”, impact on car or van sales, since the documentation as including a requirement—which I think comes on clearly envisages a transfer of journeys from car, van to a point that my noble friend has been making—that: and, indeed, bus as a result of this order? “It must be fitted with pedals by means of which it is capable If I read it correctly, the impact assessment claims of being propelled”. benefits from the order of between £97 million and Could the Minister confirm that that requirement is £290 million over a 10-year period to 2024. Having a not being deleted by the order we are discussing at the gap of nearly £200 million from benefits that, at a moment? maximum, are less than £300 million does not, frankly, Page 5 of the impact assessment states, at paragraph 5.1, inspire confidence in the likely impact of this order. that as, The impact assessment on page 2 states that benefits “no evidence has been provided or otherwise identified that to the cycling industry from increased bike sales are, suggests any significant quantifiable additional safety (accident/ casualty) or other costs, the impact assessment assumes negligible “likely to be displaced by reduced expenditure in other retail costs”. sectors”. However, since the impact assessment holds out the Is it the Government’s view that one will cancel out the prospect of a significant increase in EAPC sales, is it other—and, if so, what is the evidence for that? GC 343 Electrically Assisted Pedal Cycles[LORDS] Electrically Assisted Pedal Cycles GC 344

[LORD ROSSER] contains some very interesting statistics and information, Paragraph 5.16 on page 9 of the impact assessment and I appreciate having received it. I would not wish states, in respect of EAPCs: my comments to be taken as a hostile reaction to it. “Evidence from online appraisal of lifecycle benefits typically provide estimates of life expectancy of 15,000 miles, equivalent to Baroness Kramer: My Lords, I am grateful that the just over 6 years’ use”. noble Lord, Lord Rosser, did not read the impact That works out at some 2,500 miles per year. assessment another two or three times because I suspect Paragraph 5.19 on page 10 of the impact assessment he would have come forward with other questions and states that, queries. I will make sure that those who prepared the “this impact assessment assumes EAPC users cycle 2,392 kms per impact assessment are told of his compliments, if I year”. may take them that way, on the detail that has been That is considerably less than the 2,500 miles per year provided. figure quoted in paragraph 5.16 of the impact assessment. In answer to the noble Lord, Lord Campbell-Savours, Why are the figures so different—unless they are not and partly to the noble Lord, Lord Rosser, I think the comparable, which may well be the case? But if they vehicle the noble Lord, Lord Campbell-Savours, described are not comparable—if I am not comparing like with is classified as a low-powered moped and that it would like—perhaps I may have a response, albeit at some be sensible to have a conversation after this Committee later stage, on what different considerations they are to understand exactly what kind of non-pedal bike he reflecting. is talking about.

6pm Lord Campbell-Savours: They are vehicles which at Lord Campbell-Savours: I have been listening very the moment carry a limit of a 200-watt motor and carefully to my noble friend’s comments. There is a cannot exceed 40 kilograms. danger that the targets will not be met, although if electrically powered bicycles without pedals which fit Baroness Kramer: I think we will have to investigate the same criteria about kilogram limits and miles per that because the noble Lord deserves a more detailed hour are included, they would be far exceeded. We are response. These regulations apply to vehicles which missing an opportunity, if I have understood it correctly. must have a pedalling capacity, so that continues in If it is simply bicycles with pedals, that is going to limit place. Only those kinds of vehicles are covered by the market very much. I suspect that those who have these regulations. I will look at the regimes for the been responding to the impact assessment may well other vehicles the noble Lord has described. have had in mind the kind of electrically assisted I will just try to address some of the questions vehicles to which I am referring. asked by the noble Lord, Lord Rosser, although he has kindly said that we could respond in writing. Particularly when comparative numbers are involved, that will be a Lord Rosser: I thank my noble friend for that wise approach, but I shall make some more general intervention. One of the questions I raised earlier was comments around the questions he raised. For example, whether there is still a requirement for pedals or he asked where the benefits for this would come from whether it has been removed, which is part of the and whether it was because of a particular aspect of point that my noble friend has made. I think that is the change in regulation. The argument as I understand probably the situation, but I am asking for confirmation it—it makes sense to me—is that it is the harmonisation that it is still there. which creates the change because it means that suddenly My final point—I am sure to everybody’s great people in the UK are able to access the much wider relief—is that the net present value of business benefits range of models available in continental Europe but reflected here, which I assume means increased bike which have not been available here because, under the sales, is quoted in paragraph 5.14 of the impact assessment British classification, they would have required registration, as being £2.7 million to £10.3 million over the period taxation, insurance, licensing and so on. A much 2015-24, but in paragraph 5.26 of the same document greater range of models will suddenly become available. as being £2.6 million to £10 million. Is that simply a He asked whether that could have an impact on UK case of slightly different figures being quoted or am I bicycle manufacturers. I would argue that for them not comparing like with like? If I am not comparing one of the most hampering experiences has been the like with like, what are the different factors taken into need to produce one bike for the British market and account in the two sets of figures? Can the Minister another model to compete effectively in the European say whether the net present value of business benefits market. With harmonisation, they can now look at a are in addition to or included in the overall widely model that reaches the entire population of the EU, different benefit figures of £97 million and £290 million? which should change the dynamic significantly. Having I assume that they are in addition to them, but I would a single market, as it were, for electrically assisted be grateful for confirmation. pedal cycles creates an opportunity for UK manufacturers I have raised a number of questions which arise not just to focus on the domestic market alone but on from, frankly, basically one read of the impact assessment. a far broader market. That is potentially a very significant I am afraid I could not face going through it again, opportunity for them. and if I had gone through it again I might well have found the answers to some of the questions that I have Lord Rosser: I appreciate that one can look at the raised. I do not want anybody to take that as a issue as the Minister has done, but the other obvious derogatory comment about the impact assessment. It point is that we can now have bicycles in this country GC 345 Electrically Assisted Pedal Cycles[24 FEBRUARY 2015] Electrically Assisted Pedal Cycles GC 346 that we could not have before, and they are being Lord Campbell-Savours: I am sorry to come back manufactured big time within Europe and presumably on the question of pedals. Is any work being done on not being manufactured on any great scale by the whether we can change the regulations to include bicycle manufacturing industry in this country.Therefore, vehicles without pedals subject to exactly the same we are likely to be dominated by bicycles manufactured limits as the ones with pedals? That would be of great in Europe. But I appreciate that one can look at it the interest to the industry—because if we could develop other way, as the Minister is doing, and say that it is an that, we would have a winner. opportunity for the bicycle manufacturing industry in this country to start to manufacture these bicycles and Baroness Kramer: I do not know. This is not an area sell them. She said that the great majority of those on which I have direct policy responsibility, so I do not who responded welcomed the change. Was there any know of any work that is happening. I would be glad response from the UK bicycle manufacturing industry to share with the noble Lord any particular work that and was it quite happy with what is happening? is being done. On the other hand, the department is always looking at technology. At times we have looked Baroness Kramer: I would be glad to see whether at things such as Segways, and there is constant discussion there is anything that we can share that comes from about mobility scooters, so there is a constant lookout those manufacturers. I am not sure that I can give the for different technologies to see whether they require noble Lord an answer at this moment in time. I am an adjustment in regulation. But at this moment, I sure that he would not want to see a protectionist know of nothing. approach to an industry. Typically, the UK has thrived Under EU law, this regime could not apply to from a much more open trading environment rather vehicles without pedals. I am not aware of what other than a protectionist environment, and I see no reason regimes could be available. We will write to the noble why that should not be true in this industry as well as Lord if there is anything happening that would help any other. flush out some of the issues he has raised. The noble Lord asked about four-wheeled vehicles, The noble Lord, Lord Rosser, continued the discussion which now come within scope, provided that they about three-wheeled and four-wheeled vehicles and meet all the other criteria. Royal Mail in the past, as whether there are particular safety risks around them well as others, have seen this as a potential mechanism or around changing the regulations. We have a lot of for last-mile delivery, rather than sending around white continental European experience to look at, and after van man on all occasions. So there is potential in this reviewing that information there is nothing to indicate area that so far we have been unable to test because that there is any particular safety risk associated with these vehicles have not been available to people. It is changing these parameters. Relatively few four-wheeled an area that we will be watching with great interest. vehicles are sold, and most tricycles that are sold are The noble Lord asked about safety. Perhaps I can at towards the heavier end of the permitted range and the same time address the weight issues. The noble are quite difficult to manoeuvre—but nothing has Lord said that the fact that the power of the engine is indicated to us that there are any particular safety limited constrains the weight of the vehicle—but with risks. a weight constraint there is a constant intention to try I hope that I have covered most of the questions. to lightweight the vehicles to get them under the There were quite a number of very specific questions barrier. Removing the weight restriction gives an ability and I will be glad to follow up on them. I sense a to consider a sturdier construction and a more appropriate general understanding that this is a sensible measure one for those vehicles that carry goods, albeit in relatively for us to support. I hope that the Committee will small amounts—otherwise one would be never be able support the Motion. to move them. We see removing the weight restriction as a safety measure, because in effect it prevents the Motion agreed. gaming of that particular standard, which we do not think has anything much to add. Committee adjourned at 6.13 pm.

Volume 759 Tuesday No. 106 24 February 2015

CONTENTS

Tuesday 24 February 2015 Questions National Curriculum: Animal Welfare...... 1529 Gurkhas...... 1531 Yarl’s Wood...... 1533 Armed Forces: Baltic Defence...... 1536 Specialist Printing Equipment and Materials (Offences) Bill Order of Commitment Discharged ...... 1538 Consumer Rights Bill Commons Reason...... 1539 Human Fertilisation and Embryology (Mitochondrial Donation) Regulations 2015 Motion to Approve ...... 1569 Gambling: Fixed-odds Betting Machines Question for Short Debate...... 1627 Grand Committee Referral and Investigation of Proposed Marriages and Civil Partnerships (Scotland) Order 2015...... GC 305 Referral and Investigation of Proposed Marriages and Civil Partnerships (Northern Ireland and Miscellaneous Provisions) Order 2015...... GC 309 Proposed Marriages and Civil Partnerships (Conduct of Investigations, etc.) Regulations 2015...... GC 309 Non-Domestic Rating (Shale Oil and Gas and Miscellaneous Amendments) Regulations 2015 ...... GC 309 Non-Domestic Rating (Levy and Safety Net) (Amendment) Regulations 2015 ...... GC 314 Local Government (Transparency) (Descriptions of Information) (England) Order 2015...... GC 315 Community Right to Challenge (Business Improvement Districts) Regulations 2015...... GC 317 Motor Vehicles (Wearing of Seat Belts) (Amendment) (No. 2) Regulations 2015...... GC 322 Renewable Transport Fuel Obligations (Amendment) Order 2015...... GC 327 Crime and Courts Act 2013 (Consequential Amendments) (No. 2) Order 2015...... GC 332 Electrically Assisted Pedal Cycles (Amendment) Regulations 2015 Motions to Consider ...... GC 337