Baroness Chisholm of Owlpen
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Policing and Crime Bill
Baroness Chisholm of Owlpen ExcerptsWednesday 7th December 2016
(7 years, 4 months ago)
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Baroness Chisholm of Owlpen (Con)
My Lords, Section 32 of the Police (Northern Ireland) Act 2000 limits police jurisdiction throughout Northern Ireland and its adjacent UK waters within the seaward limits of the territorial sea in the same manner as Section 30 of the Police Act 1996 applies in England and Wales. However, within these limits, the police do not have powers suitable for the maritime context.
The new clauses proposed in this group comprise a new Chapter 6A of Part 4 of the Bill, making provision for the police and other law enforcement in Northern Ireland to have powers corresponding to those conferred on law enforcement in England and Wales and in Scotland by virtue of Chapters 5 and 6 of Part 4. In particular, new Chapter 6A provides Northern Ireland law enforcement with maritime-specific powers, such as to stop, board, detain and divert ships for the purpose of preventing, detecting or investigating an offence under the law of Northern Ireland. Unlike the provisions in Chapters 5 and 6 of Part 4, and at the request of the Northern Ireland Department of Justice, the powers are, however, limited to ships in the territorial waters of Northern Ireland and do not extend to international or foreign waters.
There are particular policing accountability and oversight arrangements in Northern Ireland, and it has not been possible for the Department of Justice to secure the necessary agreement with relevant stakeholders within the time available for the exercise of powers by law enforcement officers from England, Wales or Scotland in Northern Ireland waters in hot-pursuit situations. Again at the request of the Minister of Justice in Northern Ireland, these amendments would remove the hot-pursuit provisions that relate to law enforcement officers from outside Northern Ireland entering Northern Ireland waters. The Northern Ireland Assembly agreed the necessary legislative consent Motion in respect of these provisions on 28 November.
I note that the noble Lord, Lord Paddick, has an amendment in this group and I propose to respond to it when winding up. For now, I beg to move.
Lord Paddick (LD)
My Lords, as the Minister has just said, my noble friend Lady Hamwee and I have Amendment 122A in this group. It concerns Chapter 5, which is headed “Police Powers: Maritime Enforcement in Connection with English and Welsh Offences”.
The Bill gives extensive powers to the police in connection with preventing, detecting, investigating or prosecuting offences under the law of England and Wales in relation to a UK ship in England and Wales waters or international waters, a ship without nationality in England and Wales waters or international waters, a foreign ship in England and Wales waters or international waters, or a ship registered under the law of a relevant territory in England and Wales waters or international waters. That seems to me to cover any ship anywhere in the world, although there are restrictions if the UK ship is in foreign waters or if it is a foreign ship in England and Wales waters, when either the Secretary of State’s permission or, in some cases, that of the foreign state to which the ship is registered is required. In one place the Bill talks about “England and Wales waters” and in another it uses the words,
“within the territorial sea adjacent to England and Wales”.
I am not sure why there is different wording in different parts. Perhaps the Minister can explain.
The powers are to stop, board, divert and detain, to search and obtain information, and to arrest and seize. Officers who can exercise these powers include special constables, port constables, customs officials and anyone else the Secretary of State specifies in regulations, subject only to the negative procedure. This gives extensive powers to a whole range of law enforcement officers without restriction in relation to the exercise of the powers relating to a UK ship in England and Wales waters on the basis that the law enforcement officer has reasonable grounds to suspect—the same low level of suspicion required to make an arrest or to carry out a stop and search in the street—that an offence under the law of England and Wales is being or has been committed, or there are reasonable grounds to suspect that the ship itself is being used in the commission of an offence.
Lord Blair of Boughton (CB)
My Lords, it is an unusual pleasure for me to agree completely with the noble Lord, Lord Paddick.
Baroness Chisholm of Owlpen
The noble Lord, Lord Paddick, has again argued for the maritime enforcement powers in the Bill to be restricted to the enforcement of serious offences. As I indicated in Committee, we do not believe it is necessary to limit these powers in this way. The Government believe that we should trust the operational judgment of the police to determine when it is appropriate and proportionate to exercise their powers at sea. For example, we do not believe that the police would commit resources to interdict a vessel in international waters where there had been a theft of an item of, say, confectionery from a gift shop—which, incidentally, would be an indictable offence.
However, a police officer on, let us say, a UK-registered ferry should be able to act when the vessel is in international waters where a person commits a common assault on another person, or where a person exhibits threatening or abusive behaviour. In both cases, we are talking about summary-only offences and in both cases the noble Lord’s amendment would prevent the police acting, even though the law of the land applied and the actions of those individuals might none the less be triable in the courts of England and Wales. We do not impose restrictions on the categories of offences the police can investigate where they take place on other modes of transportation, so, again, I am unclear why we should treat maritime vessels any differently.
Lord Paddick
Can the Minister explain what happens at the moment if a summary-only offence is committed, for example, on a cross-channel ferry? How would that offence be dealt with?
Baroness Chisholm of Owlpen
I think that I will have to get back to the noble Lord on that point.
Lord Blair of Boughton
This is about the difference between a bus, a train and a ship. The ability to stop a ship and push it into harbour is a completely different level of activity from saying, “We’re going to stop the train at Reading because somebody has been assaulted”. I have listened to the argument made by the noble Lord, Lord Paddick, and I completely agree with him. It cannot be right that a single police officer can decide to turn around a cargo ship or a cruise ship in the Irish Sea for a summary offence. I accept that, as the Minister said, there are complications around theft, with the theft of some sweets from a shop being an indictable offence in some circumstances, but we have to make a definition somewhere. This is about being utterly reasonable, and I do not think that the Government are being reasonable here.
Baroness Chisholm of Owlpen
The police are professionals and they must have operational discretion as to when to exercise their powers. I know that a ship at sea is not a bus, which can just move into the side of the road, but a serious offence could have been committed. The police should be able to know when they need to exercise their powers. In answer to the noble Lord’s question, there are currently no powers to take effective enforcement action in such circumstances, other than in relation to modern slavery and drug offences.
Viscount Slim (CB)
My Lords, I am rather disappointed about the police in this situation. Certainly in my life, junior NCOs have taken charge of situations similar to this and had to make decisions. There must be somewhere within the constabulary either a lack of training or a lack of selection of their junior leaders.
Lord Paddick
My Lords, I am glad that I brought back this amendment, if only to hear the noble Lord, Lord Blair, call me utterly reasonable. As for the Minister’s faith in the ability of an off-duty police officer who becomes involved in a brawl on a cruise ship to make completely the right operational decision not to divert the vessel into port, that goes beyond my own experience and that of the noble Lord, Lord Blair, of the way in which it would be natural for some off-duty police officers to behave in such circumstances. Clearly, I am not going to press this to a Division, but I think the House recognises the considerable discomfort that both the noble Lord, Lord Blair, and I have over the legislation as proposed.
“CHAPTER 6APOLICE POWERS: MARITIME ENFORCEMENT: NORTHERN IRISH OFFENCESApplication of maritime enforcement powers: general
(1) A law enforcement officer may, for the purpose of preventing, detecting or investigating an offence under the law of Northern Ireland, exercise any of the maritime enforcement powers in relation to—(a) a United Kingdom ship in Northern Ireland waters,(b) a ship without nationality in Northern Ireland waters,(c) a foreign ship in Northern Ireland waters, or(d) a ship, registered under the law of a relevant territory, in Northern Ireland waters.(2) In this Chapter, “the maritime enforcement powers” are the powers set out in—(a) section (Power to stop, board, divert and detain) (power to stop, board, divert and detain);(b) section (Power to search and obtain information) (power to search and obtain information);(c) section (Power of arrest and seizure) (power of arrest and seizure).(3) The following persons are “law enforcement officers” for the purpose of this Chapter—(a) a constable who is a member of the Police Service of Northern Ireland or the Police Service of Northern Ireland Reserve,(b) a person appointed as a special constable in Northern Ireland by virtue of provision incorporating section 79 of the Harbours, Docks, and Piers Clauses Act 1847,(c) a designated customs official within the meaning of Part 1 of the Borders, Citizenship and Immigration Act 2009 (see section 14(6) of that Act),(d) a designated NCA officer who is authorised by the Director General of the National Crime Agency (whether generally or specifically) to exercise the powers of a law enforcement officer under this Chapter, or(e) a person of a description specified in regulations made by the Secretary of State. (4) Regulations under subsection (3)(e) are to be made by statutory instrument.(5) A statutory instrument containing regulations under subsection (3)(e) is subject to annulment in pursuance of a resolution of either House of Parliament.(6) Regulations under subsection (3)(e) may not make devolved provision except with the consent of the Department of Justice in Northern Ireland.(7) For the purposes of subsection (6), regulations under subsection (3)(e) make devolved provision if and to the extent that—(a) the effect of the regulations is to confer functions under this Chapter on a person of a description specified in the regulations,(b) it would be within the legislative competence of the Northern Ireland Assembly to confer those functions on persons of that description in an Act of the Northern Ireland Assembly, and(c) the consent of the Secretary of State would not be required under section 8 of the Northern Ireland Act 1998 in relation to a Bill conferring such functions.(8) This section is subject to section (Restriction on exercise of maritime enforcement powers) (which makes provision about when the authority of the Secretary of State is required before the maritime enforcement powers are exercised in reliance on this section).”
Baroness Chisholm of Owlpen
My Lords, Chapter 7 of Part 4 of the Bill closes a gap in cross-border powers by providing for urgent cross-border powers of arrest by police and other law enforcement officers across the three UK jurisdictions. Amendments 138 and 140 extend these powers so that they are exercisable by immigration officers and officers of Revenue and Customs, as well as National Crime Agency officers and designated customs officials who have the powers of Revenue and Customs officers. Amendment 137 provides that the powers are exercisable by British Transport Police officers in respect of offences wherever committed in the UK.
Amendment 149 inserts a new clause to provide that all the cross-border powers of arrest will be exercisable by Revenue and Customs officers in relation to any of the functions of HMRC or Revenue and Customs officers. This means that the powers will be available in relation to both tax and customs matters, rather than being confined to tax matters as they are now. The amendments also clarify the meaning of key terms as they apply to the exercise of the cross-border powers by Revenue and Customs officers and immigration officers. These amendments further enhance the effectiveness of law enforcement across the UK, ensuring that criminals are not able to evade the law simply by crossing an internal border. I beg to move.
Lord Rosser (Lab)
I just raise one question on these amendments, although I readily accept that, perhaps if I had read everything sent to me, I would not be asking such questions. As the Minister said, this talks about an extension of powers to immigration officers, Revenue and Customs officers, the British Transport Police and others. Should these provisions have been included earlier in the Bill and it has just been realised that they were not there, hence these amendments being brought forward, or is this some completely new power? If so, what has been happening up to now? What have been the consequences of not having these powers? How detrimental has that been?
Baroness Chisholm of Owlpen
No, this is just closing the gap that we realised was there earlier on. It is not new.
“(9) In subsection (8), in the definition of “investigating force”, the reference to a police force includes a reference to—(a) the National Crime Agency;(b) any of the following (to the extent that their functions relate to the investigation of offences)—(i) officers of Revenue and Customs;(ii) immigration officers;(iii) designated customs officials within the meaning of Part 1 of the Borders, Citizenship and Immigration Act 2009 (see section 14(6) of that Act).(10) In the application of this section in a case where the investigating force is a police force mentioned in subsection (9)(a) or (b)—(a) the reference to a constable in subsections (4)(b) and (5)(b), and the reference to a constable in the investigating force in subsection (7)(a), is to be read as a reference to a National Crime Agency officer designated under section 9 or 10 of the Crime and Courts Act 2013 (“a designated NCA officer”), an officer of Revenue and Customs, an immigration officer or a designated customs official (as the case may be);(b) any reference to an officer of at least, or above, the rank of inspector in the investigating force is to be read as a reference to a designated NCA officer, an officer of Revenue and Customs, an immigration officer or a designated customs official (as the case may be) of at least, or above, the equivalent grade.”
“Cross-border enforcement: officers of Revenue and Customs
In section 87 of the Finance Act 2007 (cross-border exercise of powers: officers of Revenue and Customs), in subsection (4) for “only in the exercise of a function relating to tax (including duties and tax credits)” substitute “in the exercise of any function of the Commissioners for Her Majesty’s Revenue and Customs or of officers of Revenue and Customs, within the meaning of the Commissioners for Revenue and Customs Act 2005 (see section 51(2) to (2B) of that Act)”.”
“Powers to require removal of disguises: oral authorisation
In section 60AA of the Criminal Justice and Public Order Act 1994 (powers to require removal of disguises), for subsection (6) substitute—“(6) Subject to subsection (6A), an authorisation under subsection (3)—(a) shall be in writing and signed by the officer giving it; and(b) shall specify—(i) the grounds on which it is given;(ii) the locality in which the powers conferred by this section are exercisable; and(iii) the period during which those powers are exercisable.(6A) An authorisation under subsection (3) need not be given in writing where it is not practicable to do so but any oral authorisation—(a) must state the matters which would otherwise have to be specified under subsection (6), and(b) must be recorded in writing as soon as it is practicable to do so.(6B) A direction under subsection (4) shall be given in writing or, where that is not practicable, recorded in writing as soon as it is practicable to do so.””
Baroness Chisholm of Owlpen
My Lords, these amendments respond to an amendment tabled by the noble Lord, Lord Dear, in Committee, which concerned the authorisation process for the exercise by a constable of the power to require the removal of a disguise. Section 60AA of the Criminal Justice and Public Order Act 1994 is an important preventive tool, enabling the police to remove disguises in instances where they believe offences may be committed. As an intrusive power, quite rightly this requires prior authorisation from an officer of the rank of inspector or above.
However, as the noble Lord, Lord Dear, explained in Committee, the spontaneous arising or escalation of public order incidents does not always permit sufficient time for this approval to come in written form. Amendment 150 ensures that oral authorisation is permitted where it is the only practicable course of action. This authorisation must then be put in writing as soon as is practicable. Amendment 204 makes a consequential amendment to the Long Title of the Bill.
These amendments have been the subject of extensive discussions between officials and the relevant national policing leads, as well as between MPs and the former Policing Minister, Mike Penning. They will give greater clarity and flexibility to the police in the operational use of this power. I beg to move.
Lord Dear (CB)
My Lords, I support the amendment. I remind the House that I tabled much the same amendment in Committee. I suggested then that the Minister might take the amendment back, consider it and bring it back on Report—which, of course, has been done. So I record my thanks to the Minister and the officials at the Home Office for their support.
Some misgivings were expressed in Committee that face veils—religious coverings—would be caught in this legislation. I would like to make it clear—as I think is now accepted—that the only change in this amendment is to allow authorisation for the police to use existing powers to be given orally and recorded in writing later. I hope that the fears concerning religious coverings have been allayed and I am very pleased to support the amendment.
Baroness Chisholm of Owlpen
My Lords, I remind the House that Clause 120 amends the definition of alcohol in Section 191 of the Licensing Act 2003. The current definition of alcohol covers spirits, wine, beer, cider or any other fermented, distilled or spirituous liqueur. The clause adds “(in any state)” to the definition; the purpose of this is to ensure that all alcohol, no matter in which form it is sold, is covered by the requirements of the 2003 Act.
Amendment 171A seeks to exempt powdered and vaporised alcohol from the 2003 Act and instead to control it as a class C drug under the Misuse of Drugs Act 1971. Controlling powdered and vaporised alcohol as a class C drug would, in effect, prohibit the possession, production and distribution of these forms of alcohol.
Alcohol is a legal substance and the Government’s approach is to minimise the harm caused by alcohol by regulating its sale and supply. The 2003 Act seeks to reduce harm through promotion of the licensing objectives. These are: the prevention of crime and disorder; public safety; the prevention of public nuisance; and the protection of children from harm. The 2003 Act also contains a number of criminal offences, including selling alcohol to a child under the age of 18 and selling alcohol without a licence.
The Government believe that the focus on the four licensing objectives provides sufficient safeguards for the sale of alcohol. It would be contradictory and disproportionate to regulate the sale of liquid alcohol but make alcohol illegal when it is provided in another form, such as powder or vapour. The classification of harmful drugs in the 1971 Act is predicated on an assessment of their respective harms and in accordance with recommendations made by the Advisory Council on the Misuse of Drugs. The 1971 Act places a duty on the Secretary of State to consult the advisory council before bringing a substance within the controls provided for in that Act.
Quite apart from questions over the merits or otherwise of controlling powdered and vaping alcohol in this way, the absence of such a consultation having been carried out means it would be inappropriate to amend the 1971 Act in the manner proposed by this amendment. The Government are not aware of any evidence that the harms posed by powdered and vaporised alcohol are such that it is necessary to consider controlling it as an illegal drug. Powdered and vaporised alcohol are not substances of which the misuse is having or capable of having harmful effects sufficient to constitute a social problem, as is the test under the 1971 Act. Unless and until there is evidence to suggest that these forms of alcohol are meeting that test, I believe that a regulatory approach is the appropriate one.
Clause 120 will ensure that the four licensing objectives continue to be met despite innovations in alcohol products and that the public, especially children, continue to be protected from irresponsible sales of alcohol. On that basis, I would ask the noble Lord to withdraw his amendment.
Baroness Finlay of Llandaff
Before the noble Baroness sits down, will she undertake to ask the ACMD to put this issue on its agenda and keep a watchful eye on it in the future? I declare an interest in that I was a member of the ACMD when khat was being looked at.
Baroness Chisholm of Owlpen
I thank the noble Baroness for that question. Home Office officials have discussed powdered alcohol with the Department of Health and Public Health England and are very much keeping it under review. They may well have to do things at a later date but, for now, they are just keeping a watchful eye on it.
Lord Brooke of Alverthorpe
I am grateful to the noble Baroness, Lady Finlay, for her support and expertise, and to my noble friend Lord Kennedy for weighing in from my Front Bench with support for the amendment. As noble Lords might expect, I am disappointed with the Minister’s response. The Government have consulted —they consulted the drinks industry—but if they had consulted over a wider area, and particularly the committee to which the noble Baroness, Lady Finlay, referred, I think they might have got an entirely different view in reaching their judgment on this classification.
I know quite a lot about the four objectives that govern the Licensing Act and, quite frankly, they are totally inappropriate in trying to deal with this. They were drawn up in the context of liquid alcohol, and there was a list of all the forms in which it is produced, but this is quite different. This is a move in an entirely different direction. I feel that, rather than take a serious look at this, the Government are simply applying the existing legislation as best they can, but they will not be able to implement it.
I will take the Minister’s arguments away, have a look at them and decide whether to come back again at Third Reading. I beg leave to withdraw the amendment.
Baroness Chisholm of Owlpen
My Lords, Amendment 172 seeks to add,
“the provision of social or cultural activities”
to the list of licensing objectives. This would require licensing authorities to make licensing decisions based on this objective, such as placing conditions on licences with regard to the provision of social or cultural activities.
As I explained in Committee, the existing licensing objectives, as provided for in Section 4 of the Licensing Act 2003, seek to reduce harm, which can be evidenced. Licence conditions intended to reduce the level of harm can be easily understood—for example, a requirement to restrict noise levels. Requiring licensing authorities to consider the provision of social or cultural activities would run in contradiction to the other licensing objectives, all of which are aimed at harm reduction.
Importantly, the 2003 Act provides that when a licensing authority receives a compliant application for a premises licence or club premises certificate, it must grant the authorisation unless it receives “relevant representations”. In effect, this means there is a presumption that licensing authorities will grant a licence in respect to an application, with appropriate conditions, unless there are strong concerns in terms of the licensing objectives.
I respect the noble Lord’s intentions with regard to grass-roots music venues and cultural participation, and share his desire to see a vibrant music industry, but I do not feel it is appropriate to use the 2003 Act to pursue that goal. On that basis, I hope the noble Lord will be content to withdraw this amendment.
Lord Clement-Jones
I thank the Minister for her response and the noble Earl, Lord Clancarty, for his contribution. One of the key points that he made, and which we are making with this amendment, is that of course local authorities have to make judgments currently. That runs, to use phraseology used by the Minister herself, directly counter to the arguments that are being made by the Government. She talks about evidence of harm, as if somehow under the current objectives it is all cut and dried and the evidence is absolutely clear-cut, but the fact is that judgments are made by local authorities. I am sure that when the noble Lord, Lord Kennedy, was a councillor in Southwark, he had a very enlightened approach to these matters, but these things are a matter of interpretation, and how you treat the evidence of harm is a subjective matter. In many cases, strong concerns might be disregarded because there are other, supervening objectives that a local authority thinks are important, or it may give more time for remedy.
There are all sorts of aspects, so to regard the current set of objectives as somehow pristine and able to be interpreted with huge clarity by local authorities, in contrast to this confused, woolly cultural objective, is only to confuse the issue. It is really a way of saying that the status quo is fine. But the status quo is not fine, and local authorities need some further guidance on these matters. I am not going to push this amendment further at this stage, but I hope there is a way in which further guidance or some other nudge towards a better solution for our night-time and grass-roots music venues is achievable. I am sure from the nods that I am receiving from the Government Front Bench that there is some sympathy for that approach. Now I am getting completely the reverse—clearly I had lulled myself into a false sense of security, which is always a big mistake in this House.
I hope the drip-drip of the fairly incessant rhythm—perhaps that is the right phraseology to use in connection with live music venues—of the campaign to ensure that we keep our live music venues has some effect. I entirely agree with the noble Lord, Lord Kennedy, that the night-time tsar in London is a fantastic new development, and I hope that other combined authorities will follow what London is doing in that respect.
I believe the Home Office also has responsibility in this area to help to preserve our venues, rather than simply stonewalling and saying, “We’ve got a very fine Licensing Act as it is and we don’t need any further objectives”. When we come to our next debate, I am sure the Government will make the same argument but they may find a rather different response when it comes to a vote. In the meantime, I beg leave to withdraw the amendment.
Lord Rosser
We certainly support the objectives of these amendments. As there was in Committee, there have been plenty of examples of the damage that is currently being done through these terminals and of the problems that we now face.
When the matter was discussed in Committee, the Government said that they understood the concern that such gaming machines could fuel problem gambling and that they were committed to reducing the risks of potential harms associated with such machines. They did not express any enthusiasm for adopting the amendments in Committee and, as has already been mentioned, they said that there was already a review under way which had been announced on 24 October. One assumes that the Government will be looking for the review to make recommendations which will enable them to implement the commitment they said they had in Committee to,
“reducing the risks of potential harms associated with such machines”.—[Official Report, 9/11/16; col. 1231].
Perhaps the Minister could indicate that that is how they are looking at this review and expect it to produce recommendations which will enable them to stick to the commitment that they enunciated when the matter was discussed in Committee.
As has already been called for—and I would do the same—it would be helpful if the Government could indicate now what the timescale is. They said in Committee that the call for evidence period would close on 4 December, which has now passed. I shall not ask the Government on 7 December what their conclusions are from the call for evidence but it would be helpful to know by when they will have come to conclusions. They said in Committee that, following the close of the period of the call for evidence, they would consider proposals based on robust evidence provided to assist in their decisions.
Baroness Chisholm of Owlpen
My Lords, as the noble Lord, Lord Beecham, has explained, these amendments would have the effect of devolving power over licence conditions for gambling premises and gaming machines to local authorities. Such conditions would, among other things, enable licensing authorities to impose minimum staffing levels on premises with such machines. I thank the noble Lord and the right reverend Prelate the Bishop of Bristol for again bringing this important matter to your Lordships’ attention. Let me emphasise that the Government are alive to the concerns about the dangers that fixed-odds betting terminals can pose.
It is worth reiterating that, as we speak, the Government are holding a review into the regulation of gaming machines, gambling advertising and the effectiveness of social responsibility measures on gaming machines, with a specific look at potential harm caused to players and communities. As part of this, we are liaising closely with the Local Government Association, among others, and we have received submissions related to the devolution and/or creation of additional powers for local authorities which we will of course consider alongside other proposals and evidence received.
I emphasise in particular that, as part of the review, the Government and the regulator, the Gambling Commission, are carrying out a thorough process which will look at all aspects of gaming machine regulation, including categorisation, maximum stakes and prizes, location, number and the impact that they have on players and communities in relation to problem gambling and crime among other things. All of these factors are potentially relevant and interrelated, and all should be considered together when looking at whether changes could or should be made to current gambling entitlements. We believe that the correct mechanism for looking at these issues is in collaboration with the regulator, the Gambling Commission, drawing on the best evidence available and subject to open consultation.
In addition, before we take any decision on this issue, we would want to ensure that the following risks were properly considered and consulted on. Any local authority which sought to exercise a power to change the number of fixed-odds betting terminals allowed on licensed betting premises would be likely to find its decision the subject of legal challenge. If these legal challenges are considered robust enough, we may be in a position of devolving a power that could not be effectively deployed. Local authorities have had a number of high-profile legal challenges from bookmakers on planning matters and may be reticent about utilising additional powers if it led to costly and protracted legal cases. We would therefore want to consult with the Local Government Association and local authorities on this issue. Again, I reiterate that the current review process is the appropriate mechanism to assess this, rather than immediately launching into these amendments to the Gambling Act.
We are also mindful of the possibility that piecemeal reform could give rise to unanticipated consequences. For example, if a local authority decides to reduce the number of fixed-odds machines, it may have the effect of encouraging operators to seek to open additional premises, furthering the problem of clustering.
We have already taken steps to tighten the controls on these machines and we have set out our plans for the review of gaming machines, gambling advertising and social responsibility which will include a close look at the issues related to fixed-odds betting terminals. I emphasise that we are taking this very seriously and that the review is looking into all these issues. When the review was announced on 24 October, it was stated:
“The review will be considering robust evidence on the appropriate maximum stakes and prizes for gaming machines across all premises licensed under the Gambling Act 2005; the number and location of gaming machines across all licensed premises; and social responsibility measures to protect players from gambling-related harm (including whether there is evidence on the impacts of gambling advertising and whether the right rules are in place to protect children and vulnerable people).
The review will include a close look at the issue of B2 gaming machines … and specific concerns about the harm they cause, be that to the player or the communities in which they are located.
In launching this review I want to ensure that legislation strikes the right balance between allowing the industry to grow and contribute to the economy while ensuring consumers and communities are protected, including those who are just about managing”.—[Official Report, Commons, 24/10/16; col. 1WS]
On the timetable for the review, as noble Lords know, the call for evidence closed on 4 December. An enormous amount of evidence was generated and there was a great deal of interest from the general public as well as from a variety of interest groups, local authorities, trade bodies and industries, and we will be looking in depth at the evidence that was submitted before considering proposals, which we hope to announce next year.
Given that this process is in train and that we are taking it extremely seriously, I invite the noble Lord to withdraw his amendment.
Lord Rosser
The noble Lord, Lord Moynihan, referred to Her Majesty’s Opposition. I make it clear to him that he continues to have our full support in his objectives and in the amendment that he has tabled. There is certainly no change on that score. As he said, prohibited substances are taken to gain an advantage in sport over fellow competitors. They are taken to produce a false result that is not determined purely and solely by the unaided skill and effort of each competitor but one that will, at the very least, be influenced or, at worst, determined by the taking of a substance which improves performance and creates one unrelated to the skill or effort of the competitor concerned. It is a form of fraud. It is cheating not just fellow competitors but the public, who pay to come to watch the sporting event in the belief that they will see a fair competition with competitors competing on a level playing field. As the noble Lord, Lord Moynihan, pointed out, in recent years many countries have criminalised the use of performance-enhancing drugs in sport or enacted legislation that criminalises the trafficking of such drugs.
I am curtailing what I had intended to say, but I want to refer briefly to the Government’s response in Committee. The Minister said that,
“the Government believe that rather than tackling this through legislation, it should be a matter for sports bodies”.
That statement appears to indicate that the Government would never favour making a criminal offence, as provided for in this amendment. However, as the noble Lord, Lord Moynihan, said in Committee, one cannot say that leaving this to sports bodies has exactly been a staggering success up to now. It is precisely because it has not been a staggering success that we have the problem we do. As the noble Lord, Lord Moynihan, pointed out, a number of other nations have legislated. As he also pointed out, he has taken the example of the Germans, the Italians and the Dutch, who have focused on the fact—this is crucial—that it is not just the athlete but the entourage who need to be criminalised. It is the entourage we have to make sure we—to put it bluntly—get at because they are at the heart of the problem at least as much as the athlete. The noble Lord also indicated that the deterrent effect in those countries of putting legislation on the statute book has already been effective.
That is why I come back to the response that we got from the Government in Committee. We got a clear statement that,
“the Government believe that rather than tackling this through legislation, it should be a matter for sports bodies”.
Having said that, the Minister went on to say:
“In order to have that evidence base, the Department for Culture, Media and Sport is currently conducting a cross-government review of the existing anti-doping legislative framework and assessing whether stronger criminal sanctions are required”.—[Official Report, 9/11/16; col. 1240.]
If you want to give a clear indication of the direction in which you wish to go, how can you say at one moment that the Government believe that, rather than tackling this through legislation, it should be a matter for sports bodies and then, a little later in the same speech, say that a review is taking place to assess whether stronger criminal sanctions are required and that the review is expected to be published before the end of the year?
In giving their response, I hope that the Government will at least clarify whether they believe this is a matter that should be left to sports bodies or whether they accept that there may well be a need for criminal sanctions and going down the road of criminal offences, which is a key part of the amendment that the noble Lord, Lord Moynihan, has tabled. There is not much point in talking about a review if the Government have already made up their mind—as one could interpret from the speech in Committee—that this is a matter for the sports bodies and not the law. I hope, however, that the Government will make clear that they accept that criminal sanctions and the creation of new criminal offences may well be needed to address this problem, as the noble Lord, Lord Moynihan, said in his comments on his amendment.
Baroness Chisholm of Owlpen
My Lords, it is a great honour to be in the presence of two such world-renowned athletes. Their Lordships look so well that it has certainly given me great inspiration to go back to the gym as soon as possible.
I am grateful to my noble friend Lord Moynihan for again raising the important issue of tackling doping in sport. As the House will be aware, the Government are reviewing the issue of criminalisation. The review is now in its final stages and we hope we will soon be in a position to publish. In finalising the report, we will naturally want to take into account the views expressed by noble Lords in this debate.
Anti-doping is a technical area and it is important to stress here that undertaking a review requires a comprehensive evidence base before considering any possible legislative options. The Government are very much alive to the issues and are actively examining what more can be done to enhance our national approach to doping, including the possibility of criminal sanctions, to uphold the highest standards of integrity in sport. We recognise that the desire to dope can be driven financially, and financial penalties are likely to be as damaging to those who cheat as a ban. Until now the Government’s view has been that, rather than through legislation, this should be a matter for sports bodies to sanction. The central question for the current review, however, is whether this approach still holds good.
It is important to underline that serious doping is already covered under existing domestic criminal legislation. Under the Misuse of Drugs Act 1971 and the Medicines Act 1968, the trafficking and supply of many doping substances is a criminal offence, carrying a penalty of up to 14 years’ imprisonment. Tough sanctions are also already in place via the 2015 World Anti-Doping Code. The code includes automatic four-year bans for drug cheats and support staff who are found guilty of doping. Such a ban forms a significant part of an athlete’s relatively short career, and it would also mean they would miss an Olympic Games cycle.
The Sports Minister, Tracey Crouch, is member of the foundation board of the World Anti-Doping Agency and attended its November meeting, where there was acknowledgement from foundation board members that the current code would be subject to further revision in the near future. There was also a call to revisit the discussion around athletes convicted of doping offences being banned from the Olympic Games.
The Government remain committed to tackling doping in sport and we will continue to work with UK Anti-Doping and our sport stakeholders to ensure that our athletes can compete in a clean sport environment. If the evidence is clear that stronger sanctions are needed, we will take action. There is a process in train—indeed, nearing completion—to ascertain whether the evidence points in the direction advocated by my noble friend. I therefore respectfully suggest to him that until we have completed the review, it would be premature to legislate on this matter in the manner proposed in this amendment. My noble friend has suggested that the Government instead pursue a different course by taking a power to implement the review’s findings through regulations. This is a tempting offer, but I still believe that would be putting the cart before the horse, and the House and the Delegated Powers Committee would rightly chastise the Government for legislating on an important area of public policy through a wide-ranging delegated power.
I recognise that my noble friend has been pursuing this issue for a great many years. I think he suggested that the leadership of WADA is conflicted and that independence is needed. At the most recent meeting of the World Anti-Doping Agency governing foundation board, approval was given for a review of WADA’s governance. Furthermore, there will also be a review on non-compliance sanctions. As a regulator, WADA needs teeth, and we are supportive of such an approach. I understand my noble friend’s frustration; none the less I hope he will bear with us for a little while longer. The Minister for Sport, Tracey Crouch, would be very pleased to meet my noble friend next week. In the meantime, I hope he will agree to withdraw his amendment.
Lord Moynihan
I am grateful to all noble Lords who took part in this debate. I hope it is not too mischievous to point out that over the last 30 years—I think it is about 30 years since I was Minister for Sport and had the first review of this matter—we have had a whole range of reviews. I welcome that Tracey Crouch announced a further review nearly a year ago, but it is unfortunate that the timing of its publication may be a matter of a couple of days after Third Reading of the Bill and thus preclude the opportunity for us to consider it and reflect it in the legislation.
I will very briefly respond to questions or comments that were made in the debate. In response to the noble Lord, Lord Kerr, I accept that improvements could be made to the wording of the amendment. I had hoped that my noble friend the Minister would have accepted that we were heading in the right direction, and taken it away with me and the likes of the noble Lord, Lord Kerr, to improve the wording before we got to the next stage, but sadly that was not to be this evening.
I stand second to none in recognising that over many decades the noble Lord, Lord Campbell, has not only been a pioneer but led the campaign to criminalise the worst excesses of doping, and his speech bore testimony to that. He said some very kind things, along with a slightly naughty reference to the benefit that I had from not taking growth hormones—diuretics would have been more appropriate for me, to keep my weight down in the coxswain seat. However, he is wrong on one point: very sadly I did not return from Moscow with a gold medal, but with a silver medal. I have subsequently learned that many of the athletes competing in that regatta were not only on drugs but subsequently sued the German Government for the damage to their health. They won and retained their gold medals. Such is the policy pursued by the International Olympic Committee on 20th-century gold medallists.
I echo what the noble Lord, Lord Addington, who was concerned about the wider application, said. Again, that could have been covered in an improvement to the amendment, but I recognise the point that he made. However, the amendment did not find favour with the Government at this stage and we may not have that opportunity.
I hold out hope that many of the points that the noble Lord, Lord Rosser, made will continue to reflect the position of his party. He has personally given a lot of support on this and shown interest in it during the passage of the Bill, and I am very grateful to him, as I am to the noble Lords on the Front Bench opposite, both of whom have been regularly in touch with me on the subject. It is a pity that the Government have focused on the review as the cornerstone of the reason why we should not be moving ahead now. I genuinely believe we have an outstanding set of Ministers in the DCMS. Karen Bradley and Tracey Crouch in particular have done a lot of very good work in this direction, and I do not think I would be speaking out of turn to say that I have heard them on a number of occasions at least put forward the benefits of considering the criminalisation of doping in sport. I hope therefore that the Government will be open-minded in their review on returning to this subject. There is a momentum, both internationally and nationally, towards legislation on this subject, and that momentum needs to continue. Thanks to the noble Lords who participated in a series of debates, it is continuing in the right direction in your Lordships’ House.
In closing my remarks, I very much hope that that the Minister will convey to her colleagues what she has said about the importance of the review and that they will seriously take it on board. In addition, I hope that an early opportunity will be found for your Lordships’ House to consider the findings of that review and to discuss this in more detail, including the possibility of finding an opportunity to legislate—if that is the wish of your Lordships—at a future stage. However, I recognise that we need to look at the review, take it into account and wait on its publication. With something of a heavy heart, after campaigning for this for some 30 years, ever since the first summit in Copenhagen, when I was Minister in 1987, I beg leave to withdraw the amendment.
“(5A) If on a review under subsection (4) the Minister decides to uphold the Treasury’s decision to impose the penalty and its amount, or to uphold the Treasury’s decision to impose the penalty but to substitute a different amount, the person may appeal (on any ground) to the Upper Tribunal.(5B) On an appeal under subsection (5A), the Upper Tribunal may quash the Minister’s decision and if it does so may—(a) quash the Treasury’s decision to impose the penalty;(b) uphold that decision but substitute a different amount for the amount determined by the Treasury (or, in a case where the Minister substituted a different amount, by the Minister).”
Baroness Chisholm of Owlpen
My Lords, financial sanctions are an important foreign policy and national security tool. Their effective implementation and enforcement are vital to their success. In order to ensure that financial sanctions enforcement is appropriately targeted and proportionate, it is important that a range of alternative enforcement options are available, such as the monetary penalties provided for in Part 8 of the Bill.
The permitted maximum penalty is set at the level of £1 million or 50% of the value of the breach. This level is considered to be adequate to disgorge profits made from financial sanctions evasion and provide a sufficient incentive to improve future compliance in cases where prosecution is not warranted.
In its current form, the Bill states that a decision to impose a civil monetary penalty will be made by the Treasury, and the person upon whom a monetary penalty is imposed has the right to request a review of the decision by a Minister in person. The Minister may uphold the decision and the amount of the penalty, uphold the decision but change the amount of the penalty, or cancel the decision. The Bill does not currently provide the individual with any right of appeal, although both the decision of the Treasury and that of the reviewing Minister are within the scope of a judicial review application. Following further consideration, however, we have concluded that it would be appropriate to provide for a right of appeal to the Upper Tribunal, and Amendment 177 amends the Bill accordingly. Such an appeal route will ensure that there can be a full-merits hearing on points of law and fact, whereas a judicial review hearing in the High Court can examine only points of law.
Amendments 178 and 179 address a separate point. Clause 141 permits the Treasury to extend temporary sanctions regimes and temporary designations to the Crown dependencies and the British Overseas Territories, to ensure that financial sanctions take effect in these territories “without delay”, as required by the resolutions of the United Nations Security Council. However, we have always been clear that the power will not be used in respect of any territory that takes its own measures to apply financial sanctions without delay. In recent weeks the Government of Jersey have taken their own legislative steps to implement sanctions without delay. That being the case, the Government of Jersey have requested that reference to them be omitted from Clause 141. Amendments 178 and 179 give effect to that request. Of course if any other Crown dependency or overseas territory takes similar steps to Jersey, the power in the clause will not be used in relation to that territory. However, as the other territories have not yet done so, it is prudent to retain them in scope for the time being. I beg to move.