Powers of Entry etc. Bill [HL]

My Lords, I support the Bill and congratulate my noble friend on introducing his measure. This subject is particularly important in the context of the forthcoming Olympic Games to be held in London in 2012, and in that context I declare my interests as chairman of the British Olympic Association, as a director of the London organising committee—the body established by the Mayor and the BOA to oversee the delivery of the Games—and as a member of the Olympic board which has oversight of the Olympic project. The relevance of this Bill to the Games was made clear by the president of the International Olympic Committee, Jacques Rogge, when he stated on 29 October last year: ""Our view is very simple: athletes competing in the UK must submit to UK law. There is a rule that guarantees the rights of citizens and residents and that will rule the issue of searching rooms"," at the Olympic Games in London. I wish that were the case. What concerns President Rogge is the greatest challenge to competitive sport; the intent of a few—a very few—athletes, coaches and suppliers of banned drugs and performance-enhancing substances to give a competitive advantage through cheating and deception. I intend today to use the example of doping in sport, and the importance of the provision of legal powers to search premises with a warrant, as a case in point to underline the importance of the Bill. President Jacques Rogge, a medical practitioner himself, has made tackling drug abuse in sport a priority for the International Olympic Committee. His laudable commitment, supported by Professor Arne Ljungqvist, has been supported by the World Anti-Doping Agency, which, under the current direction of its president, John Fahey, has sought to become a friend of sport in seeking to establish a global programme of measures to tackle cheating through the use of performance-enhancing drugs. 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 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. 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, ""there is a sense we would be shoehorning the offence into situations for which it was never intended"." 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 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.