Policing and Crime Bill

Lord Moynihan Excerpts

Report: 2nd sitting (Hansard): House of Lords
Wednesday 7th December 2016 Lords Chamber

Moved by

[Lord Moynihan]

176: After Clause 127, insert the following new Clause—
“National anti-doping provisions
(1) Subsections (2) and (3) apply to—(a) all persons participating in sport in the United Kingdom who are members of a governing body of sport or an affiliate organisation or licensee of a governing body of sport, including national governing bodies of sport, regional governing bodies, sports associations, clubs, teams, associations or leagues (a “relevant body”);(b) all persons participating in such capacity in sporting events, competitions or other activities in the United Kingdom which are organised, convened, authorised or recognised by a relevant body;(c) any other person participating in sport in the United Kingdom who, by virtue of a contractual arrangement or otherwise, is subject to the jurisdiction of a relevant body for the purposes of preventing doping; and(d) any other person in the United Kingdom whether or not such a person is a citizen of, or resident in, the United Kingdom.(2) An athlete is guilty of an offence if he or she—(a) knowingly takes anywhere in the world a prohibited substance with the intention of enhancing his or her performance in any sports competition where there is a reward on offer, whether monetary or in terms of prestige, promotion or protection from relegation; or where that is one of his or her intentions; or(b) has been banned or suspended from participation in any sporting activity, or has been or is a member of any organisation which has been banned or suspended from participation in any sporting activity anywhere in the world, at any time either before or after the day on which this Act is passed; and(i) participates in any sports competition in the United Kingdom where there is a reward on offer, whether monetary or in terms of prestige, promotion or protection from relegation; and(ii) does not have a prohibited substance certificate dated not more than 14 days earlier than the date of the sports competition at the commencement of the sports competition.(3) In subsection (2) “prohibited substance certificate” means a certificate from a medical practitioner in the United Kingdom appointed by the General Medical Council for the purpose of testing athletes for prohibited substances, confirming that in the practitioner’s opinion—(a) the athlete does not have any prohibited substance in his or her body, and(b) the athlete’s body does not retain any advantage in sporting performance by reason of the athlete having taken a prohibited substance at any time either before or after the day on which this Act is passed.(4) A person in the United Kingdom is guilty of an offence if he or she, with the intention of enhancing the performance of an athlete, encourages, assists or hides awareness of an athlete taking a prohibited substance with the intention of enhancing the athlete’s performance, or with that being one of the athlete’s intentions.(5) A medical professional commits an offence if, in the United Kingdom, he or she prescribes a prohibited substance to an athlete and believes, or ought reasonably to believe, that the substance will be used by the athlete with the intention of enhancing his or her performance, or if the professional fails to report any approach for a prohibited substance by such an athlete to the General Medical Council.(6) A member of an organising committee is guilty of an offence if he or she has not taken all reasonable steps to ensure that all athletes permitted to compete in a World or European Championship which he or she is involved in organising, convening, or authorising—(a) have not taken a prohibited substance with the intention of enhancing their performance; and(b) have not been banned or suspended from participation in any sporting activity, or been a member of any organisation which has been banned or suspended from participation in any sporting activity anywhere in the world, during the two years prior to the World or European Championship.(7) In subsection (6), “organising committee” means a Committee established in the United Kingdom on behalf of any international federation of sport, which is recognised by the International Olympic Committee.(8) For the purposes of this section a “prohibited substance” is as defined by the World Anti-Doping Agency or such other agency as shall be designated by the Secretary of State for this purpose.(9) Any person guilty of an offence under subsection (2), (4), (5) or (6) or shall be liable—(a) on summary conviction, to a fine not exceeding the statutory maximum or imprisonment for a term not exceeding six months, or both; or(b) on conviction on indictment, to a fine not exceeding the statutory maximum or imprisonment for a term not exceeding two years, or both.(10) In order to assist with the prevention of offences under subsections (2), (4), (5) or (6), UK Anti-Doping shall discuss the following issues with the World Anti-Doping Agency annually—(a) the effectiveness of Annex I of the International Standard for Testing and Investigations (athlete whereabouts requirements) and its harmonisation with the European Convention on Human Rights;(b) the effectiveness of the international work of the World Anti-Doping Agency; and(c) progress on the development of a United Kingdom roll-out of athlete biological passports.(11) UK Anti-Doping shall submit the results of the annual discussions under subsection (10) to the Secretary of State, who shall—(a) lay before both Houses of Parliament an annual report documenting— (i) whether the athlete whereabouts requirements are effective in combating doping in the United Kingdom and are in compliance with the European Convention on Human Rights, and(ii) the performance of the World Anti-Doping Agency in general in relation to its effectiveness in preventing offences under subsection (2), (4), (5) or (6); and(b) determine whether the Government should remain a member of and continue to support the World Anti-Doping Agency, in the light of that effectiveness.”

[Lord Moynihan (Con)]

My Lords, when athletes choose to cross the doping line, they enter a dark and amoral underworld devoid of honesty, moral scruples and conscience. They are guilty of fraud, yet there is no sport-specific legislation in this country—unlike many other countries—to address fraud in sport. Indeed, there is no legal provision in this country’s sport for the governance of and obligations on governing bodies of sport. There is no effective provision for the prevention of match-fixing, bribery and corruption. There is no mandatory responsibility on local authorities to provide for sporting facilities, and there are no national anti-doping provisions.

My Amendment 176 addresses those who knowingly defraud a clean athlete from selection or recognition in their professional career. In any other walk of life, that is a criminal act because it is fraud. Such fraud is criminal, yet there is no sports law in the United Kingdom and no effective remedy for fraud in sport—no way of tackling the stain on the integrity of sport. As I have said before, and outlined in my petition with the support of the Sunday Times, there is no redemption for the clean athlete denied selection or winnings by a competitor who knowingly cheats. What is worse, the cheat with the chance of a long-lasting benefit derived from an enchilada of performance-enhancing drugs knowingly shreds the dreams of clean athletes with every needle they inject.

That is why, saddened by the failure of international sports bodies, to which I will return, many countries—including New Zealand, Austria, Italy, France, Sweden, Mexico and China—have either criminalised the use of performance-enhancing drugs in sport or enacted legislation which criminalises those who traffic in these drugs. Germany is the most recent country to introduce legislation, proclaiming,

“a declaration of war on cheaters”.

Under its law, athletes found guilty of doping face fines or prison terms of up to three years. Those involved in supplying athletes with performance-enhancing substances could face jail terms of up to 10 years. Yet we in the UK have delayed and failed to introduce long overdue sport-specific legislation.

Even the last director-general of the World Anti-Doping Agency reflected:

“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”.

He is right. Over many years, British Olympic athletes have taken the firm and uncompromising stance that those guilty of cheating should never again be selected to represent their country.

I have referred to the fact that the World Anti-Doping Agency has lost credibility, and I fear that it has. When the news of the endemic doping in Russia and the widespread doping in athletics was broken by the Sunday Times and the German state broadcaster ARD, the president of WADA said that WADA was “pleased” that the relationships with Russia,

“have survived much of the adverse publicity caused by the ARD television programs”.

He further said that he,

“values the relationship with Minister Mutko”,

and would be grateful if the Russian commissar who was reporting to him,

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

These relationships have no place in the corridors of what are meant to be independent organisations overseeing doping in sport. WADA has lost credibility, and that credibility will be restored only when its leaders are truly and wholly independent and not relying on those same countries for votes to enhance their careers, for example, in the International Olympic Committee.

My amendment introduces national anti-doping provisions and, as I said in Committee, criminalises doping by setting a very high legal bar whereby an athlete has knowingly to take the prohibited substance with the clear intention of enhancing his or her performance, or with that being one of the intentions. It is also a criminal offence if a person belonging to the entourage of the athlete—for example, managers, agents, coaches, doctors—or those promoting logistical support for the athlete’s career encourage, assist or hide awareness of the relevant athlete taking a prohibited substance with the intention of enhancing such athlete’s performance, or with that being one of the intentions, to the detriment of a clean athlete and, potentially, their earning power and their career.

That was the first and most important point that I set out in the proposed amendment. It is not intended to apply to those athletes who, undoubtedly by error or mistake, take a prohibited substance. It is very specific to those athletes who knowingly cheat by taking performance-enhancing drugs in order to deny a clean athlete selection or a career.

The second part of the amendment came out of an investigation undertaken by the Sunday Times with regard to a Dr Bonar. Dr Bonar was highlighted at that time as being beyond the jurisdiction of the United Kingdom anti-doping agency. UKAD itself called for the powers to ensure that, instead of just being able to apply sanctions to those doctors affiliated to governing bodies of sport, they could be used against any doctor who knowingly assisted an athlete who cheated—not just 1% or 2% of the doctors in this country but doctors such as Dr Bonar, who was engaged in activities set out clearly by the Sunday Times.

The third point the amendment covers is the fact that if you put a time limit on the effect of a drug in terms of the ban you have to face, the issue of how long the drug benefits the athlete is not taken into account whatever. The key issue is that it is the athlete’s body that potentially retains an advantage in sporting performance long beyond, say, a two, three or four-year ban. For example, if a young person is knowingly engaged in cheating at age 16, 17 or 18 and takes growth hormones—or if I had and turned out to be six feet tall, there is little possibility that I would have suddenly shrunk back to 5’6” when I was 30 or 35; I would have had a lasting benefit from those drugs. It is important that that distinction is clear, and any athlete who has faced a ban would need to satisfy the medical profession—an independent doctor appointed by the GMC—that they have no long-lasting benefit beyond the time of their ban.

The amendment proposes that a member of an organising committee of a world or European championship would be guilty of an offence if they did not take all reasonable steps to ensure that the athletes they are entering for the world athletics championships, for example, next year in London, were clean. They could do that by working with the World Anti-Doping Agency.

I have been very grateful to the Opposition, not least in the other place, who have consistently supported taking action of the form that I have outlined. I think I can do no better than quote the shadow Home Secretary, Andy Burnham—I mentioned this at an earlier stage but I think it is worthy of repetition—who stated:

“People need to be able to trust that what they are seeing on the pitch, on the track or in the pool is real endeavour and not artificially enhanced. If you are using performance-enhancing drugs, you are not just cheating the other athletes but you are perpetrating a fraud against the paying public. For that reason, there is a clear case for it to be a criminal offence. We must send the strongest possible message that it will not be tolerated in sport”—

This is a message which is being considered in detail by many other parliaments in the world, leading to legislation to criminalise the worst excesses—and only the worst excesses—of doping in sport.

I conclude by setting out very briefly who the victims are, because there are those who argue that this is a victimless crime. It is not. The first group of victims are the drug cheats themselves, those young athletes who, pushed to the limits by their ambition and their desire for success and its accompanying financial rewards, are driven to the most desperate of measures and the most dangerous of misjudgments. They not only pay for their use of unregulated, uncontrolled and often untested and unsafe drugs with the heart-breaking penalty of a one-, two- or four-year ban; it is, and has been, far worse. Doping can cost them their very lives. There should be no mistake or misunderstanding: doping in sport is dangerous and the cost of gaining a small competitive advantage can be tragically and prohibitively high. That is, of course, the nightmare scenario, and death by doping is at the far end of the spectrum. But while athletes remain tempted by the huge short-term gains from doping—for example, heightened oxygen-carrying capacity from the use of EPO—there will always be terrible risks. The public never see this most distressing side of doping, and the athlete who dopes either does not know about or chooses to ignore the long-term health problems from such drug use, including greatly increased risks of heart attack or stroke.

The second group of victims are the clean athletes, and it is they whose rights are most at risk of being trampled over by the absence of criminalisation on the statute book. The secret drugs cheats have already callously and deliberately sought to gain selection over another athlete by taking banned performance-enhancing drugs, thereby greatly wronging and defrauding the athlete who has made the decision to stay clean and to live and train by the rules that govern sport. Honest would-be champions suffer when the chance to fulfil their ambitions is stolen from them, when Olympic medals are snatched from their grasp and when they are robbed not just of sporting glory but of all the associated commercial awards. They are cheated out of medals, recognition, sponsorship and everything that comes with being a top sports man or woman. Those innocent athletes—foot soldiers in the fight against doping—make the sacrifices they do in good faith because they believe wholeheartedly in the importance of clean sport. We do not know if a drug cheat can ever be considered clean again; but banned athletes can still train, and, even clean, they can maintain their strength, as I outlined earlier, through doping.

The third group of victims are the legions of loyal sports fans. Sporting events can mobilise the interests and emotions of millions around the globe. From the world of sport emerge national heroes, national institutions, national treasures—legends and heroes are created from sport, particularly Olympic sport, which has a unique place in the hearts and minds of the public. Fans are understandably let down when the athletes whose feats of athleticism they celebrate are exposed as drug cheats and their achievements nullified. Fans expect the Olympic Games to operate on a higher level than any other sporting event, and while it may be vulnerable to legal challenge, there is a certain sense of natural justice in the concept of criminalisation for drug cheats.

Fourthly, the victims are the Olympic Games themselves. Despite their immense success as the biggest sporting event on the planet, the Olympics still epitomise all that is good about sport and encapsulate a distillation of its very essence. The joy found in effort is taken to a new level as athletes stretch themselves to the limits of human physical ability in their quest for “citius, altius, fortius”, breaking records as they go. But the Olympic dream vanishes rapidly if the achievements won by that effort are found to be chemically enhanced and available from the nearest steroid shot.

The final victim of the drugs cheat is sport itself. I firmly believe, and have all my life, that sport is a force for good—a cultural phenomenon that transcends pure entertainment. In its purest form it is a triumph of the human spirit. It is not too far-fetched to say that the timeless and essential qualities of self-discipline, selflessness, fortitude and endurance that the best of sport inspires serve to make the world a better place. The narrative sport adds to our lives is enriching. Sporting metaphors and analogies crowd the modern lexicon. It is not for nothing that we speak of good and bad sportsmanship. The enduring, influential, pervasive power of sport in all cultures should not be underestimated.

Yet, the power of sport is undermined by cheating. It is undermined by those who defraud fellow athletes out of a living and out of selection. Its values are then tarnished, its universal language of fairness, honesty and respect silenced. That is why I believe it is so important that we follow the examples of not just one or two but many countries of the world in recognising that we now need finally to criminalise the worst excesses of doping in sport. I beg to move.

--- Later in debate ---

[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.

Amendment 176 withdrawn.