Amendments made: No. 8, in

clause 3, page 5, line 11, leave out 'within' and insert

'not later than the end of'.

No. 9, in

clause 3, page 5, line 18, leave out 'within' and insert

'not later than the end of'.

No. 10, in

clause 3, page 5, line 25, leave out 'within' and insert

'not later than the end of'.

No. 11, in

clause 3, page 5, line 32, leave out from 'words' to end of line 33 and insert

'from ''(which requires'' to ''that day)'' there were substituted ''(which requires an election to be made not later than the end of a period of six months)''.'.—[Mr. McCabe.]

Question proposed, That the clause, as amended, stand part of the Bill.

I am grateful for being able to speak to the clause. I invite the hon. Member for Birmingham, Hall Green or the Minister to set out in relatively straightforward terms the impact of the clause, if any, in light of the recent court judgment, because it has been difficult to get hold of the written view of that.

I hope that I can catch your eye again after that explanation, Mr. Conway, because it has been difficult to understand the extent to which the human rights findings in that case mean that the Bill is relevant, to how many people it might apply, and in what circumstances the retrospective measures will apply.

In other words, what are the circumstances surrounding conception? Are there specific, identified people, or is the Bill a catch-all? Does the Minister believe that the measure will have a once-and-for-all effect on certain retrospective cases, or will it, as many people fear, apply, quasi-retrospectively, to cases that emerge? If anything, those cases are likely to be more common, in spite of the Court of Appeal's view in the Blood case that they would never occur again. It is now obvious to doctors that they cannot do what was done in that case. Worldwide experience suggests that that may well happen again, whether inadvertently or not, and I should be grateful for an explanation in respect of those points and for a chance to question further the Minister and the hon. Member for Birmingham, Hall Green.

Clause 3 is designed to acknowledge the position of a defined group of people who have found themselves in the circumstances that we are discussing, perhaps as a result of a lack of clarity about the legal position that pertained before the Bill was introduced. Proposed new section 28(5A)(d) in clause 1 makes it clear that, in future, the man must consent in writing to the sperm and an embryo being used. The various

paragraphs go through the scenarios that may be presented.

Clause 3 acknowledges the existence of a group of people who have found themselves in extremely unfortunate circumstances. It provides symbolic recognition of the fact that they have not been able to put the name of the father on the birth certificate.

As I said on the amendments, it is a question of striking the right balance and making it clear that, in future, consent will be a pre-requisite for acknowledgement taking place. As the hon. Member for Oxford, West and Abingdon (Dr. Harris) said, it is right that consent has become much more central to all our concerns, particularly in the health service. The Bill makes that an express consideration. At the same time, the measure is designed to ensure that people who were perhaps in an unclear legal situation can now find themselves in a proper situation.

Clause 3 is retrospective, so it is unusual. It enables article 8 of the European convention on human rights, which relates to the right to a private and family life, to be complied with where there was found to be a clash between the Human Fertilisation and Embryology Act 1990 and human rights provisions. All existing children will be covered, as will all future children born before the Bill is passed in the circumstances that we are discussing. This is a real attempt to provide people with clarity. If the situation arises before the Bill is passed, the requirement for consent does not bite. If the situation arises after the Bill is passed, that requirement does bite.

The scope of the judgment on the human rights issue is not clear. Let us say that, in a prospective case, there was no consent for removal of the sperm—that is, under common law, it was unlawfully removed. The provisions to which I referred earlier, proposed new section 28(5A)(d) and so on, require consent in writing. If that is not obtained in a future case, what is there to prevent a human rights action? If the judgment was clear that even where there was no consent, children had the right to registration, why would that aspect of the Bill not be outwith the Human Rights Act 1998?

We believe that the measure is a proportionate and appropriate response to the requirements of the Human Rights Act. Again, it is matter of striking the right balance. That is not to say that a court could not consider the point, but should the legislation be considered under the human rights umbrella, we believe that it would meet the requirements under article 8. Clearly, no one can pre-empt litigation and a judgment, but we believe that the Bill strikes the right balance: people can benefit from the human rights legislation, but the law is equally clear in relation to consent.

I am grateful for that clear answer, which I understand and accept. My question relates to clause 3. Given that the law was clear in 1990—one can argue whether it is right, although I believe that the McLean report confirms that it was correct—why is it necessary to apply retrospective provisions to those cases where it cannot be shown that there was expressed consent?

The clause ensures that people can see their legal position clearly. It could be argued that if a court decided one way, the legislation would not be needed. However, I think that it is important to have clear scenarios in the Bill that let people know what their legal rights and responsibilities will be. It is right to set out the circumstances in clause 1 in which in future written express consent will be required, then to set out in clause 3 the circumstances in which the requirements in clause 1 will be disapplied. The whole thrust of the Bill is to say that express consent should be obtained in all circumstances. That is recommended in all the work that the Human Fertilisation and Embryology Authority undertakes. It is important to make that point. Without clause 3, there would be an infringement of the rights of existing children, such as Diane Blood's children. Clause 3 exists to enable the rights of children under the human rights convention to be acknowledged. There is a clear acknowledgment in the retrospective provisions in clause 3.

I would be grateful if the Minister could further clarify how many children she believes are affected. If she has that information, can it be made available to us before the Bill passes through all its stages? I see the point that she is making. The fact that the Bill has been passed might be persuasive in future actions because it makes the point explicit. My understanding was that the need for expressed consent was in previous legislation, albeit in regulations. I need to check that.

Without seeing the court judgment—I am not sure whether I have simply been unable to get it or whether it has been reserved and has not yet been produced—it is hard to judge whether what the Minister says is likely to be correct. I appreciate that she is sincere in what she says, but the question remains of whether the Bill should be applied retrospectively where there was not expressed consent, but not prospectively simply by virtue of further legislation making clear what I believe, and what the McLean report maintained, was already clear?

If I am not satisfied after looking at the legal judgment, perhaps we might revisit that narrow issue at a later stage. At this stage, I am content to see clause 3 stand part of the Bill. If the Minister can respond to my question about the numbers, I should be grateful.

I understand between 30 and 40 children are in this position. I can certainly clarify whether we have any more exact information for the hon. Gentleman.

Question put and agreed to.

Clause 3, as amended, ordered to stand part of the Bill.

Clause 4 ordered to stand part of the Bill.