Policing and Crime Bill

Lord Moynihan Excerpts

Monday 18th July 2016 Lords Chamber

[Lord Moynihan (Con)]

My Lords, I will draw the attention of the House to the criminalisation of doping in sport. The subject was tabled in another place as proposed new Clause 39 to this wide-ranging Bill by Christina Rees, the Labour MP for Neath, to whom I am grateful.

The most compelling criminal activity in competitive sport is defrauding fellow athletes. For the worst excesses of sports fraud, where professional athletes have obtained money, property, services, a benefit or an advantage dishonestly or by deceit, they can and should be prosecuted for fraud and attract a term of imprisonment. Too often the sports-specific nature of doping in sport makes the use of existing laws ineffective and warrants the introduction of long-overdue sports-specific laws that cover not only the criminalisation of doping but match-fixing and illegal gaming as well.

As I have consistently argued in your Lordships’ House, winning at any cost in competitive sport, keenly contested though it is, is not acceptable. Cheating is inimical to the very essence of sport. Cheating by whatever means, from match-fixing to intentional doping, has no place in sport. Nor should there be any tolerance of cheating through the use of performance-enhancing drugs because of the significant dangers to athletes’ health that it poses.

When I had the privilege to be chairman of the British Olympic Association for the Beijing and London Olympic Games a poll, participated in by well over 90% of the members of Team GB, resulted in a firm and uncompromising stance by our sports men and women that those guilty of cheating should be banned from selection for Team GB for life. Olympic victory takes years of hard work and hours of gruelling training, day after day, week after week. The sacrifices required to win are huge, and only the best will succeed. Those elite athletes, pushing themselves to the limits of the physically possible, have a responsibility to do that fairly and honestly, without resort to a performance-enhancing bullet found in a pill or syringe. When an athlete chooses to cross the doping line, they not only defraud their competitors but cheat themselves.

Every week we read about yet more cases of doping where the athlete feels that the chances of being found out are minimal and the sanctions weak. I believe the time has come to create effective deterrents and criminalise the worst cases of doping in sport, which should include criminal sanctions against the coaches, the doctors, the administrators and the athlete’s entourage as well. It is argued that Olympic values should include the indulgence of human frailty, forgiveness and redemption and that the mark of a true justice system is the prospect of reform and redemption that it offers. These are important values, and society as a whole is defined by our recognition and adoption of them. However, we need to ask, where in this case is the redemption for the clean athlete, denied selection by a competitor who has knowingly cheated and potentially taken the whole “enchilada” of drugs? There is no national team kit for Rio for that clean athlete, no redemption for him or her. What is worse is that the cheat, possibly with a lifelong benefit of a course of performance-enhancing drugs, is back again, potentially strengthened by years on those drugs, while throughout that time they shredded the dreams of clean athletes with every needle they injected.

We should first look to the World Anti-Doping Agency to protect the world’s clean athletes. It was set up to police, educate and lead the crusade against the long-standing threat to clean sport. Sadly, it has consistently failed. It has been not WADA but the law enforcement agencies and the press that have led the fight against doping. It was not WADA but the law enforcement agencies that broke BALCO and exposed Marion Jones. It was not WADA but the Sunday Times and the police, backed by countries where doping in sport has been criminalised, that exposed the former era of pervasive drugs in cycling. It was not WADA but the Sunday Times and the German broadcaster ARD that exposed this year’s endemic cases of doping in Russia and Kenya.

WADA has failed to root out the training camps and countries where doping in sport is endemic. Only the dopey dopers get caught during the Games themselves. Regrettably, the intelligent cheats take drugs out of season away from the testers in countries such as Kenya, where access to drugs is so easy that the Sunday Times could recently easily pose as managers of athletes and gain access to EPO, a notoriously difficult drug to detect at altitude camps. Why has UK Athletics not banned British athletes from training in Kenya? It defies understanding. Why has the IAAF not done the same for international athletes?

At the heart of this failed policy of policing the world for drug abuse in sport, I regret to say that WADA is riddled with inadequate governance, a lack of accountability and rampant conflicts of interest. The president of WADA has shown that he is attached at the hip to his friends in Russia. Russia’s electoral power in the corridors of world sports administration wields significant influence. So it was no surprise recently when the president of WADA wrote to his friend Natalia Zhelanova, the Russian anti-doping commissar, after the Sunday Times broke the story of endemic doping in Russian athletics, saying:

“I wish to make it clear to you and to the Minister that there is no action being taken by WADA that is critical of the efforts which I know have been made, and are being made, to improve anti-doping efforts in Russia”.

He went further, saying,

“I value the relationship I have with Minister Mutko and I shall be grateful if you”—

Natalia Zhelanova—

“will inform him that there is no intention in WADA to do anything to affect that relationship”.

Unexpected and untimely deaths have followed the revelations of endemic doping in Russia, not least that of Nikita Kamaev, the former director of the Russian anti-doping agency, who was found dead in February, apparently from a heart attack, following the announcement that he was working to co-author a book with,

“information and facts that have never been published”.

WADA’s mandate is,

“to promote and coordinate the fight against doping”,

yet that is currently undertaken by proactive Governments—with legislative powers to criminalise doping—and the press, without which we would have yet more cheating athletes heading to Rio this year. The innocent athlete feels guilty with an intrusive regime that is potentially illegal anyway under the European working time directive and is built on a fundamentally misguided principle that a clean athlete is guilty till proven innocent. If you know that dozens of Kenyan athletes have tested positive since London 2012, what more intelligence does WADA need to initiate a proactive investigation into endemic doping last year?

Now, WADA looks increasingly isolated in its opposition to the criminalisation of doping. Nicole Sapstead, chief executive of UK Anti-Doping, had this to say on BBC Radio 5 Live a week ago when asked how UKAD was getting on in the investigation into allegations exposed by the Sunday Times. She replied, “What plays to our advantage is the fact that in Kenya since May it is a criminal offence to actually assist in doping—so to dope or to assist somebody to dope. So if these doctors have indeed done what they are alleged to have been doing, they are facing criminal prosecution. So it might help them or it might help us when trying to uncover the truth”. That comes at a time when the problems surrounding our own anti-doping agency continue to worsen.

When a British doctor claimed to have doped 150 sports stars this year, the organisation did not only make “ghastly mistakes”, in the words of its chairman, David Kenworthy, but it failed in its core mission. It has been shown to be toothless in this context because the law as it stands stops it taking action if the doctor concerned was not affiliated to a British governing body of sport. In other words, it is impotent to act in the face of the actions of over 99% of British doctors. Through this Bill, we now have the opportunity to rectify this inadequacy.

Clean athletes around the world need an international body—a world anti-doping agency—and a domestic national anti-doping agency backed by criminal legislation. Those organisations must be impeccably free of conflicts of interest and professional in their leadership competence, and have the finest independent lawyers and medical experts available to lead them, while remaining accountable to clean athletes. And so it is to national Governments that clean athletes increasingly turn if they are to compete against each other fairly, openly and honestly. This country used to lead in the world of sports administration; now, we lag behind Austria, Italy, France and Spain, all of which have criminalised the use of WADA-prohibited substances and methods. Cyprus, Denmark, Greece, Hungary, Iceland, Luxembourg, Norway, Portugal, Romania, Serbia and Sweden have all enacted sports-specific legislation that criminalises the trafficking of WADA-prohibited substances and methods. Europe is not alone in introducing laws that criminalise doping in sport: China, Mexico and New Zealand have all enacted laws of various breadth and scope that deal with the trafficking of prohibited substances and methods.

In Committee, I hope that we will have the opportunity to consider legislation which, in the context of our athletes, addresses those who knowingly take performance-enhancing drugs with the clear and proven intention of cheating fellow athletes out of selection and their livelihood. We can learn from all the countries that I have mentioned. Now, we have the opportunity to act.

Chancellor Angela Merkel’s grand coalition Government passed a law only this year which Justice Minister Heiko Maas described as,

“a declaration of war on cheaters”.

Under the legislation, athletes found guilty of doping can face fines or prison terms of up to three years. Those involved in supplying athletes with performance-enhancing drugs could face jail terms of up to 10 years. Interior Minister Thomas de Maizière said that the law was meant,

“to deter and to help uncover criminal doping structures”.

I believe equally that our law should be drafted first and foremost as a deterrent. I understand that the Government are still looking into this area. I hope that I will be forgiven for pointing out that they have been looking into this area since I signed the Reykjavik convention as Minister for Sport in 1987. We owe it to clean athletes to act now.

The outgoing director-general of WADA, David Howman, recently stated:

“I want to pose the question: should doping be a criminal matter? It is in Italy and WE think—some of US—that the real deterrent that cheating athletes fear is the fear of going to prison not the fear of being stood down from their sport for a year, two years, four years but a fear of going to prison”.

Howman went further as long ago as 2014, when he stated:

“I think, now, organised crime controls at least 25 per cent of world sport in one way or another. Those guys who are distributing drugs, steroids, and HGH [human growth hormone] and EPO and so on, are the same guys who are corrupting people, the same guys who are paying money to people to fix games. They’re the same bad guys”.

Meanwhile new Dutch analysis has estimated that the prevalence of doping in elite sport is “likely” to be between 14% and 39%. The situation is worsening month by month and year by year, and we need to protect the clean athletes.

Sadly, the current model is broken. The likes of Thomas Bach, the president of the IOC, and John Coates, vice-president of the IOC and president of CAS, the arbitration service, are well positioned to take stock of the current doping crisis afflicting world sport. A new, overdue and totally independent external review is necessary after Rio. It is needed now more than ever. A proactive international Olympic review could lead to a much-needed change at the top of WADA and address a crisis which, if not tackled soon, will bring other sports down with athletics. Otherwise, weak governance of sport and the lack of transparency, accountability and professionalism governing doping in sport will lead to a world in which competition between athletes becomes little more than competition between chemists’ laboratories, as gene doping overtakes substance abuse as the challenge of the 21st century.

For decades, sports administrators have talked of taking a no-compromise approach towards the drug chiefs, but their words are hollow. Their actions read like a catalogue of compromise, mixed with personal ambition and conflicted interests. It is time for far-reaching change. WADA, and the lex sportiva set up by the international sports organisations, has failed in its mission. What we need to do now to actively fight against doping in sport is to introduce criminal legislation, here in the UK, in this Bill.