Previous Section Back to Table of Contents Lords Hansard Home Page

In this country, I have sought for many years to persuade the Government to establish an independent anti-doping agency and I have spoken to that effect in your Lordships' House on many occasions. I congratulate Ministers, particularly those in the Home Office, who have worked to put in place the independent anti-doping agency, UKAD, members of which are now working to ensure that it is supported in its work with the relevant powers of entry, authority, co-operation with law enforcement agencies and financial support to tackle the supply chain and the importation of banned

15 Jan 2010 : Column 726

substances under the WADA Code. If successful, we can, through proactive work, ensure that the United Kingdom never becomes a home for a BALCO, the genesis of Operation Puerto or a ready base for those who seek to make a living through the promulgation and use of banned performance-enhancing substances in sport.

In this context, I congratulate Andy Parkinson, the chief executive, on his leadership and direction of UKAD. No such agency can succeed without the chief executive earning the respect of his colleagues and peer group. He has achieved that already. With people of this quality in charge, there is real hope for those who seek a proportionate yet effective programme of action against doping in sport. Without such action, we will have competition between chemists' laboratories, not between top-level athletes. That would endanger the health of young athletes and wreck the principles on which fair competition in sport is built.

Since I introduced the first inquiry as Minister for Sport back in September 1987, which produced a report entitled The Misuse of Drugs in Sport, I have held the belief that we need primary legislation to address a number of areas in this field. In recent months, I have been working on a draft Private Member's Bill to introduce the legislation required to enact relevant measures, which will cover tackling the supply chain, sharing information and-directly relevant to this Bill-establishing the legal framework for entering premises with a search warrant to support the work of the IOC, WADA and UKAD. Today's Bill may be the vehicle to address the key issue raised by the president of the International Olympic Committee. Following close consideration of the debate today, and subject to the timing of the Bill in Committee, it may be possible-I hope that it will-through amendment to provide the legal framework for the relevant agencies to gain entry with a search warrant into premises during the London Olympic Games in 2012 and to provide the legal framework necessary to take action against those who are in breach of the WADA Code.

When this subject was first raised, the public debate went to the heart of the Bill. On the one hand, it remains my firm view that any powers to enter premises for the purpose I am outlining must be with a search warrant and that, in turn, the police must have sufficient cause to believe that an incident has been committed which is sufficiently persuasive for a magistrate or a court to provide such a search warrant. On the other hand, there are those who seek legal powers to allow the police to undertake random checks without a warrant, a subject recently aired by the British Athletes Commission. For the avoidance of doubt, random checks for this purpose would be wholly unacceptable to me, as I am sure they would be to the movers of this Bill, who emphasise the importance of obtaining search warrants and the pursuance of the due process of law.

However, I regret to inform the House that, at present, there are no powers available to the police which would allow them-either during, before or after the Olympic Games in London, 2012-to search premises for evidence that, say, the banned practice of "blood doping" in sport was taking place; thus my call for primary legislation in this area.



15 Jan 2010 : Column 727

Much work is being done by the CPS, the British Olympic Association, LOCOG and government officials on this subject. I commend their commitment and detailed review of these issues. Our consideration of this subject in Parliament should seek to continue to work in parallel with the cross-government working group and with the results of full engagement with the law enforcement agencies. We need to see where the gaps are. We need to consider how to tackle breaches of the WADA Code. We need to act against blood doping and the increasing prevalence of gene doping. We need to avoid legislation being rushed through Parliament as a result of a doping scandal in sport.

London 2012 is the driver. We need to ensure that we do not give the police draconian powers, but seek the level of scrutiny, process and checks and balances required before searching premises with a warrant. We have the opportunity to give the Olympic world considered legislation that embraces best practice worldwide in order to tackle the challenges faced by the growing sophistication of those engaged in doping in sport.

To provide the House with one key example, I will focus on where there is evidence of blood doping, or where it is alleged, and, in so doing, seek to reflect some of the invaluable work under way by members of the cross-government working group, which I have mentioned. Blood doping is topical. It is a matter of concern both to the IOC and, in particular, to winter sports. It was a major issue in the Turin Winter Olympic Games four years ago and is high on the agenda for the Vancouver Winter Olympic Games which begin next month.

There are those who believe the Fraud Act 2006 is the best way of tackling the practice of blood doping in sport. I have serious reservations about that proposition. Any case referred to the CPS by the police for consideration of the question of prosecution must be reviewed in line with the test set out in the code for Crown prosecutors. This test has two stages. First, the CPS must be satisfied that there is enough evidence to provide a realistic prospect of conviction against each defendant on each charge. This means that a jury or a bench of magistrates or a judge hearing a case alone, properly directed in accordance with the law, is more likely than not to convict the defendant of the alleged charge. If the case does not pass the first stage-the evidential stage based on the strength of the evidence-it must not go ahead, no matter how important or serious it may be.

The advice offered to me is that an athlete found in possession of blood and/or blood doping paraphernalia could potentially be guilty of an offence of possession of an article for use in the course of, or in connection with, fraud, contrary to Section 6 of the Fraud Act 2006. An athlete who injects himself with blood prior to an event could be guilty of an offence of attempted fraud contrary to Section 1 of the Criminal Attempts Act 1981. An athlete who injects himself with blood prior to an event in which he then competes could be guilty of an offence or fraud by false representation, contrary to Section 2 of the Fraud Act 2006.

However, as lawyers would rightly point out to me, the Fraud Act 2006 was not envisaged to cover cheating in sporting competitions. As one legal adviser put it,



15 Jan 2010 : Column 728

The courts would be resistant to such an approach and I am certain that supporters of this Bill would share that view as a matter of principle-particularly since the current Government's view, which I share, is that criminalising athletes for doping is a disproportionate response to a sporting problem. However, I do believe in criminalising the supply chain.

Moreover, it would be questionable whether the police would be able to obtain a search warrant from a JP. The general rule that underpins the Bill is that a justice of the peace, under Section 8 of the Police and Criminal Evidence Act, has power to issue a warrant authorising a constable to enter and search premises where he is satisfied that there are reasonable grounds for believing that an indictable offence has been committed and there is material on the premises which is likely to be of substantial value to the investigation of the offence. Although fraud is an indictable offence, experts are of the view that the offence probably only takes place when the athlete competes in the event, so no offence will have been committed at the time when the premises are searched. That advice goes further when considering the Human Tissue Act 2004 and the Human Tissue (Quality and Safety for Human Application) Regulations 2007, which apply to blood and "blood components" and are thus unlikely to apply in the context of the Olympic Games.

I contend that, on this evidence, there is no likelihood under the current law that an enforcement officer would obtain a search warrant to enter Olympic premises in 2012. In other words, English law as it stands, and as applied to the Olympic Games in London, does not offer a solution which would allow anti-doping authorities to obtain a warrant to enter and search a room in the Olympic village where a breach of the WADA code is reasonably suspected; or, just as important, if not more so, premises nearby or elsewhere in England where it is suspected that blood doping activity is taking place.

In my opinion, a search warrant should be issued by the police only for the purpose of investigating a suspected criminal offence for which the CPS would have to be willing to prosecute, and not for the purpose of investigating a breach of sports rules which govern athletes. Being able to obtain a warrant to enter and search the relevant premises is the only way successfully to detect and investigate a potential doping violation and prevent the cheats from reaching the starting line. Today, no law exists in the country to provide confidence that any such warrant would be issued. Without such a law, there is the possibility of using Olympic entry forms to obtain the consent of athletes. However, there are many in your Lordships' House who would have reservations that, without a legal basis, any such request could well fall foul of the potential obligations of the European Convention on Human Rights, and in particular Article 8-the right to respect for a person's private and family life, his home and his correspondence.

In conclusion, the position is clear: the timing of implementing the PACE powers is far too long to address the problems both of blood doping and other contraventions of the WADA Code, at and before the

15 Jan 2010 : Column 729

London Games. There are many anti-doping offences in sport which are not indictable under the Misuse of Drugs Act and the Medicines Act. No possibility exists to use warrants to search relevant premises in that context-in particular, premises under the control of a third party. This leads me to a clear recommendation to the Government. It is time to legislate and to bring forward primary legislation to ensure that we lead the world in anti-doping in sport and provide the legislative framework to meet the IOC president's request that search powers, in line with the Bill, are available in the fight against doping and on the statute book in time for London 2012.

As a supporter of the Bill, I will now seek advice from experts in your Lordships' House as to whether it can be amended to cover the objectives I have set out today. I very much hope so.

11.51 am

Lord Campbell-Savours: My Lords, I want only briefly to intervene, because it would be wrong if someone from the Labour Benches were not to rise to indicate that many of us support the principles enshrined in this legislation. I personally congratulate the noble Lord, Lord Selsdon, on a remarkable campaign. I have been in this institution in one House or the other for nearly 30 years, and rarely have I seen a Member of either House go so diligently about seeking to acquire all the information necessary to secure a substantial piece of legislation. It is substantial-if local authorities, which the noble Lord is calling upon to act with him and others to ensure that the public know what their rights are, were to respond in the way that he suggests, that would have a major effect on the rights of citizens. I hope that they use the local authorities and that those authorities respond in the way that he suggests.

The noble Lord has kept me and others informed throughout his campaign. What I found in the schedule was astonishing. I do not know if everyone here or students outside, who obviously are not here to see what happens in the Chamber, have read it. They should consider the list of Acts which have within them the powers that are the subject of this Bill. It is a long list. The scale of the powers available to the authorities and the amount of pieces of legislation must have come to a surprise to many Members of both Houses.

I congratulate the noble Lord. This proposed legislation is consolidating in the sense that it sets out all the legislative areas. I hope that the Bill goes into Committee and that, ultimately, a Government are prepared to give the Bill the time necessary for its safe passage through both Houses.

11.54 am

Baroness Hamwee: My Lords, I congratulate the noble Lord, Lord Selsdon, on his tenacity in pursuing this issue. As in previous Bills, he used the term "tenacity" when referring to the sponsor of the Bill that was debated immediately before his. However, that term applies to him today. From these Benches, I very much support the premise-no pun is intended-on

15 Jan 2010 : Column 730

which this Bill is based, for the reasons explained by the noble and learned Lord, which I shall not repeat at length.

The balance of powers of the state against those of the individual-perhaps, in this context, one should call the individual the citizen-needs care. The increase in the powers of the Executive, from a neutral position, against those of the citizen needs justification in every case. What we are talking about is, indeed, an invasion of privacy-one which is less publicised than personal invasions of privacy which we debate in the context of DNA, ID cards and so on. Nevertheless, this is extremely important.

I, too, was surprised at the length of the schedule, but I wondered whether it was up to date. My impression, over the term of the current Government, is that there have been far more introductions of the sorts of powers which we all find offensive than appear in this schedule. Rather like the noble Lord, Lord Campbell-Savours, I wondered whether this was a subject on which one should encourage PhD or MA work to bring this all together and to check it out.

I am sorry to insert a note, not of discord, but of caution. This issue requires a more complex, detailed, and perhaps more subtle approach than is in the Bill. Consideration would have to be Act by Act and statutory instrument by statutory instrument, starting from the same basic point that a power needs to be justified-looking at the particular requirements in each case and, indeed, whether the power is required at all. One would hope that one might, through such an exercise, get rid of many of these powers, and certainly co-ordinate and standardise them.

Perhaps the noble Lord in his reply can tell me how much consultation there has been with each of the agencies whose powers are in contention in the Bill. I remember, during consideration of legislation a few years ago, that we listened to a lot of self-justification by some of the agencies. I was not always persuaded by it, but there has to be that sort of exercise.

Like the noble and learned Lord, I feel that there are a number of drafting points, most of which could be considered at a later stage. I shall mention just two. The first is how one defines "danger" as set out in this context. The "Limitations on powers of entry" would allow for entry,

That could cover a huge spectrum of danger, including the amount of possible damage, as well as a time spectrum-immediate or long-term danger-and the degree of danger. Are we talking about an emergency, for instance? That may be what is implicit.

My second and more important point at this stage in the Bill's proceedings is that in Clause 5(2) each requirement in each paragraph must be met. It cannot be the case that there would have to be both a warrant and the agreement of,

That is obviously inconsistent. If there is agreement, there would be no need for a warrant. Again, perhaps the noble Lord can confirm either that I have misread the drafting or that this is something he can take up.



15 Jan 2010 : Column 731

As I said, I do not want my caution to reduce the concern that I expressed on behalf of these Benches about the excessive powers of the Executive, which have grown in such an extraordinary way, as illustrated by the schedule to the Bill, whether or not it is complete. The noble Lord has demonstrated his tenaciousness. I suspect that the Bill is not destined for a long life in this Parliament but the subject certainly needs very careful attention.

Noon

Lord Skelmersdale: My Lords, this has been a very interesting debate, kicked off by the long-running attack of my noble friend Lord Selsdon. Listening to his opening speech, I recalled the final lines of a Noel Coward song:

Clearly, when I say that, I mean it in no disparaging way. He is absolutely right in pursuing a matter which concerns every man, woman and child in this country, as my noble friend Lord Marlesford almost said. Powers of entry have become so widespread and so draconian over this Government's time in office that there has arisen a considerable amount of unease, to put it mildly, both in and outside Parliament. The noble Baroness, Lady Hamwee, remarked on that.

This unease was reflected in the debate on a Motion tabled by my noble friend Lord Onslow, which called on the Government to withdraw a statutory instrument laid under the Proceeds of Crime Act. Although that order was for a specific purpose-namely, the expansion of powers of entry to personnel of organisations who had not had them previously-it is germane on a more general point. The Merits of Statutory Instruments Committee produced a report on this instrument. I am not sure whether the noble and learned Lord, Lord Scott, was able to sign up to it or whether he was a member of the committee at that time. He shakes his head, so he was not; none the less, from his speech today, I am sure that he would have done.

An enormous number of public sector organisations now have employees who are accorded such powers. One of my regrets about the Bill is that these organisations are not listed in a schedule, to go with the long list of legislative authority which the current schedule comprises. The Bill would, I believe, have much more force and resonate more with the public if it contained that as well. None the less, like the noble Lord, Lord Campbell-Savours, I congratulate my noble friend on his diligence: it must have taken hours and hours of work. I know from bitter experience how difficult it is for anyone but a Minister to get such matters right, so I ask the Minister whether the schedule is complete or whether my noble friend has missed one or two Acts or statutory instruments.

To pick a couple of the powers at random, the Regulation of Investigatory Powers Act has been used in some very odd ways-Bournemouth and Poole Council harassing a mother for trying to send her child to a popular school in her catchment area, or Croydon Council trying to catch a person pruning a tree in the borough. The Terrorism Act was used to arrest a tourist photographing St Paul's Cathedral. These examples show the disproportionate way in which legislation can be, and sometimes is, used.



15 Jan 2010 : Column 732

I make these points to put the Bill into context because it is not, regretfully, about why these intrusive powers are used but how. Clause 5 makes it clear that a person authorised by any Act or statutory instrument in the schedule should not exercise power off his own bat but only after application to a judge or magistrate, in the same way as applies to a search warrant. The only exception to this is when there is a danger to life or property. Examples might be when there is, or is likely to be, a gas explosion or perhaps when the sound of shooting is heard inside a house. Either of these scenarios might occur at any time of the day or night, so I find it somewhat curious that Clause 6 is so definitive regarding the timing; unless the court order says something different. To go back to my example of an imminent gas explosion, by the time the authorised person has succeeded in finding a magistrate on a Sunday or in the middle of the night, it might very well be too late. I should be grateful therefore if, when he comes to wind up, my noble friend would explain his thinking behind Clause 6.

However, these are quibbles which can easily be explored in Committee. What cannot be dealt with then are the astonishing number of organisations that have powers of entry. My noble friend Lord Selsdon reminded us that, shortly after inheriting his position, the Prime Minister was concerned enough to institute a review into the need for additional protections and rights for the citizen. The key objectives of that review were, first, to produce a comprehensive list of powers of entry, inspection, search and seizure to provide clarity for the police and investigating agencies and, more importantly, for the public. So, although this Bill is not the complete answer, the Government are "on side" so far as concerns the reasons behind it.

I further understand that this review was attached to a review of the Police and Criminal Evidence Act and that it was included in a consultation paper. I am sure that the Minister will be able to tell us more about that. Given the Prime Minister's obvious desire for something to be done, I find it quite amazing that the review seems to have dropped into a black hole. It was due to have completed its final stage of consultation in the spring of last year. That is around nine months ago. By then, the intention, so the noble Lord, Lord West, told the House, was that proposals would be produced around powers of entry, especially for non-police agencies. I note the word "especially". So what has happened? As I said, I hope and expect that the Minister will tell us.

There is now a certain urgency about this. As we all know, under the Terrorism Act, officers can stop and search anyone in a designated area without having to show reasonable suspicion for doing so. This is covered in Section 44 of the Act. I accept that it is not an exact parallel but it is analogous to the thorny subject of powers of entry. I had the news on Wednesday that the European Court of Human Rights said in a judgment that that legislation breached the right of privacy in a case involving two Britons who were subject to such a stop-and-search procedure outside an arms fare in 2003. Looking into the future to 2013 or 2014, could that not easily happen during the Olympic Games-an interest dear to the heart of my noble friend Lord

15 Jan 2010 : Column 733

Moynihan, whose speech I hope the Minister will take very seriously? Going back to the human rights breach, needless to say, the Home Office is to appeal.

The whole purport of my noble friend's Bill is that "we can't go on like this", and I commend him for bringing it forward yet again.

12.08 pm

Lord Brett: My Lords, I join others in congratulating the noble Lord, Lord Selsdon, on his commitment and persistence in this important area. The noble Baroness used the word "tenacity"; I say "persistence". Both are meant to be complimentary to the sterling efforts that the noble Lord has made on this issue. I appreciate that he has taken the time and effort to discuss his proposals with the Home Office. He used the term "community of interests". I think that we have a community of interests, which is why we shared with him how we consider we will meet our common objective of increasing public awareness-giving people the knowledge that they have the right to have-and raising public accountability.


Next Section Back to Table of Contents Lords Hansard Home Page