Human Fertilisation and Embryology Bill [HL]

moved Amendment No. 137: 137: Clause 29, page 33, line 18, at end insert— ““(10B) It is a defence for a person (““the defendant””) charged with an offence of doing anything which, under section 3(1) or (1A), 4(1)(a) or 4A(2), cannot be done other than in pursuance of a licence, to prove that at the material time the defendant believed on reasonable grounds that what they did was not something to which the Act applied.”” The noble Lord said: My Lords, I am sure that Ministers will be pleased to hear that this is the last of my amendments. It is a probing amendment that relates to the defences to the various criminal offences under the Human Fertilisation and Embryology Act and the Bill. The penalties for those criminal offences are rather draconian, or rather stringent, as they probably ought to be but, none the less, there is a problem. A number of criminal offences are set out in the Bill. They include doing any of the following without a licence: storing gametes and creating, storing and using embryos. The terms ““embryos”” and ““gametes”” are, rightly, broadly defined in the Bill. For example, ““embryos”” include eggs that are in the process of fertilisation or are undergoing any other process capable of resulting in an embryo. ““Gametes”” are defined as including germ-line cells at any stage of maturity. The interpretation of both those terms, and therefore the application of the Bill and the requirement for licences are dependent on the current state of our scientific knowledge. However, our understanding of the processes by which eggs develop into embryos and cells develop into germ-line cells is incomplete. It is therefore possible that a researcher could store or carry out research on cells that are not at the outset of their research understood to be germ-line cells at any stage of maturity but, through developments in science, become recognised as early-stage germ-line cells, the storage or use of which requires a licence. It is also possible that a researcher could carry out procedures involving human cells that, contrary to current scientific understanding, give rise to gametes that are capable of resulting in embryos and are therefore embryos for the purposes of the Bill, the use and storage of which requires a licence. It is essential that all researchers who knew or should have known that they are storing or using gametes or creating, storing or using embryos and therefore require a licence should be liable to criminal charges if they fail to obtain one. However, there should be a defence in those limited circumstances where a researcher can prove that he or she reasonably believed that what he or she was storing or creating was not a gamete or an embryo as defined in the Bill. This is a very limited defence because in practice it is likely to arise only in circumstances where the HFEA itself did not recognise the activity at the time it was commenced as being regulated; otherwise the researcher’s belief that the Act did not apply would generally have been unreasonable. Furthermore, under the defence, the researcher would have to cease the activity and seek a licence or destroy the material as soon as it became reasonably clear that that was necessary. I note that a similar defence is contained in the Human Tissue Act 2004. Ideally, it might have been better to amend the definitions, but that is probably not a viable option at this stage, or even in the near future. However, this is a real issue: the accidental creation of a parthenote is one such example, but there are many others. I ask the Minister to consider this amendment as a probing amendment. I beg to move.