Beyond Brexit (European Union Committee Report)

Lord Moynihan Excerpts

Tuesday 12th May 2020 Lords Chamber

[Lord Moynihan (Con)]

My Lords, I too welcome the European Union Committee’s report which makes a series of excellent recommendations. The one area of particular importance to me is the necessity for ongoing co-operation between the UK and the many European entities which impact sport and recreation throughout this country and the European Union. Sport contributes £37 billion to our economy and employs 581,000 people, of whom 31,000 are European nationals. We must now take advantage of new methods of exerting influence on the EU after the transition period. We will need to build close relationships with the EU committees which impact sport and recreation at all levels and, where relevant, use the UK’s diplomatic representation to the EU to exert influence where necessary—and it will be necessary, not least in dealing with the fallout from the Bosman, Cotonou and Kolpak rulings. We must finalise and then monitor and retain reciprocal arrangements which enable skilled workers, for example in seasonal sports such as skiing, to pursue employment.

Sport is also a major soft power tool for promoting our products and services and, indeed, our reputation within the European Union. We need ongoing relationships to make it easy for fans and visitors from the EU to travel to and from the UK. UK sports bodies currently benefit from European Union funding as well as UK funding. They build knowledge and share good practice with their European colleagues. I urge the Government to look at ways of retaining relationships with the relevant institutions and committees and to seek continued dialogue and involvement with European Union programmes which benefit sport and recreation to our mutual advantage. We are inextricably linked to the world of sport and recreation in Europe, not least with the tripartite agreement with Ireland and France on which the future of horseracing in this country will depend. We must win friends and influence people to ensure a win-win relationship in the future.

Income Equality and Sustainability

Lord Moynihan Excerpts

Wednesday 6th May 2020 Lords Chamber

[Lord Moynihan (Con)]

My Lords, I congratulate the most reverend Primate on initiating this debate. It is timely, since Covid-19 has provided politicians with the opportunity to put well-being before growth. The crisis which has brought so much pain and damage has also given rise to greater social interaction and neighbourliness, and a desire not only to take care of each other but to show respect and affection for those who care for us. NHS workers and carers across the country have become an intrinsic, tangible part of our family and daily life, whom we now depend on and embrace. Their prominence has been made possible as fast living and the consumer-driven lifestyles that fuel income inequality have been put on hold. In their place, the appeal for voluntary helpers has exceeded all expectations. Party politics effectively evaporated in the corridors of care. In place of prejudices and barriers, we are witnessing social cohesion, friendliness and mutual support. People have rediscovered those they live with.

Income inequalities are divisive the world over. As with other sustainability issues, the social and business consequences are inseparable. Correlations between a nation’s degree of income inequality and its rates of domestic abuse, crime and obesity will come to the fore again. Every one of these “social” problems blights and imposes a huge tax on society. But this health emergency provides the opportunity for a new approach and for closer collaboration, transitioning to sustainability in an overcrowded world.

It is not just our politicians but our companies, our religious leaders and our opinion formers who have a responsibility as we emerge from Covid-19. We must all take ownership; we must all take action; we must all take an interest. We must not ignore the important lesson we have learned: that we can put well-being before the excesses of economic growth.

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.

Policing and Crime Bill

Lord Moynihan Excerpts

Committee: 4th sitting (Hansard - part two): House of Lords
Wednesday 9th November 2016 Lords Chamber

Moved by

[Lord Moynihan]

214B: After Clause 122, 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 (7) 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 subsections (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, Amendment 214B is the product of some 30 years of discussions I have had with successive Governments, numerous reviews and ministerial answers, during which time many countries have now overtaken us and introduced legislation to criminalise the worst effects of doping in sport. So at least I am confident that the Minister will not be seeking more time to consider this very important subject.

I thank Her Majesty’s Opposition for the work they did in another place. My amendment follows the amendments tabled by Christina Rees, the Labour MP for Neath, who was supported on 24 April this year by Shadow Home Secretary Andy Burnham who said:

“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”.

The amendments tabled today have also been actively discussed in informal conversations with the noble Baroness, Lady Grey-Thompson, from the Cross Benches and the noble Lords, Lord Campbell of Pittenweem, Lord Addington, and others, who have campaigned for many years on this subject. I am grateful to them for the interest they have shown and to colleagues on my side of the House for their expressed support. The Government should be in no doubt of the depth of support for these measures, both in the press and the country as a whole, not least in the wake of the banning of the Russian athletics team from the Rio Olympic Games this year.

The effect of the amendment is set out in proposed subsection (2). It seeks to deal with nothing less than fraud in sport. Those athletes who knowingly take performance-enhancing drugs from the World Anti-Doping Agency’s prohibited list with the intention of enhancing his or her performance to the detriment of the clean athlete—thus potentially denying the clean athlete selection, the prestige of winning or financial gain for professional athletes—would, if the amendment is passed, be guilty of a crime under the legislation.

--- Later in debate ---

[Baroness Chisholm of Owlpen]

I am grateful to my noble friend Lord Moynihan for raising the important issue of tackling doping in sport.

This has been a difficult year for sport and those fighting doping—namely, the World Anti-Doping Agency, the International Olympic Committee and the International Paralympic Committee. We must recognise that these are global issues that cannot be solved by legislative action in any one country, although we must play our part. We are not complacent and continue to do all we can to protect the integrity of sport in this country, particularly where there is strong evidence that calls for government intervention.

As my noble friend mentioned, the Sunday Times allegations against UK Anti-Doping were disappointing to read. UK Anti-Doping immediately launched an independent investigation, the outcome of which recommended a number of actions to be implemented, all of which have been accepted by that organisation. Such action reflects the tough stance that the Government and UK Anti-Doping take on doping in the fight to provide a level playing field for our athletes to compete on.

My noble friend raises a valid point in saying that those athletes who dope are defrauding our clean athletes. 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 would be. However, the Government believe that rather than tackling this through legislation, it should be a matter for sports bodies. We recognise that a sanction in this regard could well act as a strong deterrent to doping cheats who represent the UK or compete in our events.

The UK Government and UK Anti-Doping have a reputation for taking a tough, measured stance on doping. To maintain that, we need to ensure that there is a strong evidence base before any consideration or commitment is given to taking forward any possible legislative options. 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. The relevant government departments and agencies, such as the Home Office, the Ministry of Justice, the National Crime Agency and the Serious Fraud Office, are contributing to the review. We expect the outcome of the review to be published before the end of the year.

In conclusion, I ask my noble friend to be patient for a little longer. The Government are very much alive to the issues he raised and are actively examining what more needs to be done. In fact, the Minister for Sport and Tourism, during a debate on 6 July on doping and the Olympics, said:

“The review is currently under way and, should it become clear that stronger criminal sanctions are needed, we will not hesitate to act”.—[Official Report, Commons, 6/7/16; col. 365WH.]

I hope, therefore, that my noble friend will be happy to withdraw his amendment.

[Lord Moynihan]

My Lords, I thank all those who have participated in the debate and shall comment briefly on the questions and points that have been raised.

First, the interpretation by the noble Lord, Lord Harris, of the reach of the amendment is correct and is set out in proposed new subsection (1). There is a real problem in the perception, for example among athletes and in the world of rugby, that the time to bulk out is when they are at university age or college age so that they can move on to the professional ranks. There are serious issues of doping in sport at that age, and I believe very strongly that when this is passed, as I hope it will be at some stage in the parliamentary process, it will be a very strong deterrent to those young people not to take performance-enhancing drugs.

The noble Lord, Lord Rosser, in a strong and comprehensive speech, focused on Rio. I would reflect on this one point about testing at the Olympic Games. If you test positive at the Olympic Games, you come into the category of the dopey dopers, because the chances are that if you are on drugs at that point, you will get caught. If you want to knowingly cheat fellow athletes out of selection, you take drugs now—in the winter months—and go to countries of the world were testing is non-existent and where you can be pretty sure you can spend four or six weeks enhancing your performance doing six circuits a day as opposed to a normal person’s three, and then retain the benefit of that muscle bank as you move into the summer season, having lost any trace of the drugs in your system. Indeed, you can take a range of drugs that act as a curtain in front of a play, reducing the chance that you will be caught as you move into the season. The huge amount of money that the World Anti-Doping Agency put into testing at the Olympic Games is effectively to catch the dopey dopers, not those who spend a lot of time and effort to enhance their performance during the winter months, and thus cheat fellow athletes out of selection.

I am very grateful to the noble Baroness, Lady Wheatcroft, for her overgenerous words. She was an outstanding member of the advisory board that helped to design and implement the work that the British Olympic Association did to ensure the success of London 2012—so she is being overmodest in saying that her knowledge of the world of sport is not as great as she might like. It is outstandingly good.

I am also grateful to the Minister. I absolutely agree with her starting point that the World Anti-Doping Agency needs to work in tandem with individual countries, working closely together to put in place an effective legislative framework to deal with this issue. However, it is not correct to say that leaving it completely to the World Anti-Doping Agency and to the sporting bodies will solve this problem. It patently is not solving the problem, which is the reason why so many countries are now legislating. Although they need to legislate in harmony, reflecting their own national interest, they have to legislate together, which is exactly what they are doing. In framing the legislation today, I have taken the example of the Germans, the Italians and the Dutch, who have focused on the fact that it is not just the athlete but the entourage who need to be criminalised. The deterrent effect in those countries of putting legislation on to the statute books has already been very effective.

Finally, on the end-of-year review, I said at the outset that I have been working on this since the Copenhagen declaration exactly 30 years ago, since when there have been so many reviews that it would take me a while to go through them all on Google. However, I always welcome further research and reflections from the Government. I note that they talk about the end of the year, which seems to be very close to our consideration of this legislation on Report. I therefore urge the Minister to see whether the review can be completed in time for Report so that we can take it into consideration. Even if it cannot, I would very much hope that, on Report, we can reflect on what my noble friend the Minister has said, as well as on the speeches made today from both sides of the House. We can then see whether we should send a legislative framework down to the Commons, so that in the new year, which is the likely date, Members can take into account the review to which the Minister alluded and, if necessary, amend the legislation at that point. We can consider any further amendments.

I believe there is widespread support for this provision both inside and outside the House and across parties. I very much hope this work will continue between now and Report, with further consideration on Report. In the light of that, and with my thanks to the Minister for her speech, I beg leave to withdraw the amendment.

Amendment 214B (in substitution for Amendment 213) withdrawn.

Charities (Protection and Social Investment) Bill [HL]

Lord Moynihan Excerpts

Monday 14th September 2015 Lords Chamber

[Baroness Pitkeathley (Lab)]

My Lords, mindful of the rules at Third Reading, I will say that I have great sympathy with my noble friend’s amendment but share her concern about the sad accident of timing that has befallen us as far as this Bill is concerned. Like her, I would have felt a lot better if the report of which I have been privileged to be part could have been received, with its recommendations understood, so that the Bill could have been sent to the Commons complete and with the work done. Be that as it may, I hope that when the report comes out Members will be satisfied with its recommendations.

In her introduction, my noble friend said that she was looking forward to seeing how the Government’s thinking had changed over the summer. What has been very striking is how the thinking of charities, and perhaps particularly of some charities’ trustees, has been influenced over the summer by focus on the negative aspects of fundraising. If they did not get it before, many of them get it now—and not before time. I hope that the report will be influential and welcomed and will make not only charity staff and chief executives but trustees much more mindful of their responsibilities in regulating their fundraising activities. Too many trustees have been content to take the money without being too fussy about how that fundraising has been achieved.

Wearing another hat, I chair the Professional Standards Authority for Health and Social Care. We have a concept of right-touch—not light-touch—regulation. We say that, amongst other things, right-touch regulation should be proportionate, consistent, transparent and accountable. I hope we can achieve that with charitable fundraising and, most of all, that in the future it will be far more effective.

[Lord Moynihan (Con)]

My Lords, in the context of the regulation of funding and the regulatory framework for charities, I have a brief question for my noble friend of which I have given him notice. On Report, my noble friend gave a number of commitments to the noble Lord, Lord Wallace of Saltaire, myself and the whole House on the question of public benefit. A lot of work has been done on this during the summer. He said that the Charity Commission would issue new guidance on public benefit and running a charity, that it would do further work on public benefit reporting guidance, that the ISC was going to provide guidance, that the Charity Commission would undertake a 12-month research programme and the ISC would launch a website this autumn. All of that would then be subject to a debate a year on, when the House could see how much progress was being made.

It is appropriate to mention to the House that a lot of work has been done. I could not be more grateful personally, and all those interested in the subject will also be grateful to the ISC and the Charity Commission for a very good start. We hope that, as the Opposition Front Benchers made clear during the latter stages of the debate, the website will be proactive regarding the facilities and engagement with local communities and be a point of contact—an effective method of linking with their local communities schools with charitable status and outstanding facilities.

I am certain that noble Lords in all parts of the House will continue to push for change not just in the sports world but in the arts world, and for engagement between schools that are endowed with superb facilities, excellent teachers and coaches, and the wider community. I would therefore be grateful if the Minister took this opportunity to update the House on the work undertaken during the summer and join me in offering congratulations on the good start, although there is clearly a long road to travel before we achieve the sort of developments that are essential to meet the mood expressed in the House in a number of previous debates. We must ensure that we have the material necessary to have a full debate in a year’s time.

[Baroness Barker (LD)]

My Lords, it has been a pretty miserable summer for the charitable sector and it has not been a great summer for the Charity Commission either. It is in the nature of being a charity to go through periods of being tested, and good charities come out the other side a lot stronger. One can but hope that that will happen as a result of what has transpired over the past few months.

I am not a member of this august committee—I never made it to the shortlist—but I had the great privilege of attending one of its sessions. It was really interesting—one of the most interesting breakfast discussions that I have had for a very long time. While it was absolutely true, as the noble Lord, Lord Leigh of Hurley, said—he was also present on that occasion—that some people still did not quite get it, as the noble Baroness, Lady Pitkeathley, said, a lot of people in the charitable world now absolutely understand that they cannot continue as before and that things must change.

I applaud the amendment moved by the noble Baroness, Lady Hayter, as it is keeping the pressure up on the issue, but I think that it is premature in terms of process. What was most interesting over the summer was the number of people who wanted to chat to me about the ongoing issues. Time and again, people within the charitable sector talked not just about the severe economic pressures but their wish that that sector could be better than the commercial sector and better regulated than the private sector.

I hope that the report from Sir Stuart Etherington’s committee is hard hitting, not ambiguous in any way and issues a real challenge to charities. I am mindful that charities have to continue to raise funds and that people want to continue to donate to them. Although the reputation of individual charities has taken a battering over the summer, they are still among the most efficient and effective organisations tackling some of the biggest problems in our society.

The Charity Commission has not covered itself in glory this summer either, and I want to think long and hard about what responsibilities were given to it and the reserve powers to oversee fundraising. Charities know about the lives of vulnerable people much better than anybody else, and I want to give them the chance to come forward with a regulatory system that is better than the private sector’s.

I, too, add my congratulations to the Minister, who has conducted himself throughout our proceedings in the most exemplary way. He has been extremely good to work with and I thank him very much. In saying that, I do not want him to accept the amendment moved by the noble Baroness, Lady Hayter, and I ask him to ensure that, when the Bill returns from the Commons, we are given sufficient time, through the usual channels, to pay detailed attention to these matters.

Charities (Protection and Social Investment) Bill [HL]

Lord Moynihan Excerpts

Monday 20th July 2015 Lords Chamber

[Lord Wallace of Saltaire (LD)]

My Lords, we return to a simplified version of amendments which the noble Lord, Lord Moynihan, and I moved in Committee. Between the two stages there have been a number of discussions with the Minister, for which I thank him, and with the Independent Schools Council along with others. I must apologise to some of those with whom I was attempting to negotiate for much of Thursday and Friday morning, in that I happened to choose one of the few places in Oxfordshire where you cannot get mobile phone reception.

The context is clear: the rise in quality in resources and facilities at most—though of course not all—independent schools, which arises from their ability to raise fees and fundraise, along with endowments that many of them have, is in contrast with the decline in the resources and facilities of state schools, including their playing fields, music and drama facilities and specialised coaching and teaching of specialised subjects, which is unlikely to be reversed under this Government, since they are committed to shrinking government spending further, including on education. The second part of the context is the charitable purposes of independent schools, which are often rooted in their founding purposes in education for local communities. I am well aware that the Charity Tribunal in 2011 said that purposes can change, and indeed have changed—although they have not entirely been discarded. We discussed this earlier, with the question of housing associations. A housing association that changes itself into something entirely different would have its charitable status questioned. I remind noble Lords that the ruling of the Charity Commission says that schools can choose how they demonstrate public benefit, not that they can disregard public benefit.

The third part of the context is the increased awareness within the educational world of the importance of resilience and self-confidence as wider elements in education, although, unfortunately—and the Independent Schools Council made this point to me—Ofsted no longer pays any attention in assessing state schools to the wider elements of education that encourage resilience and self-confidence. There is a consensus on how important these things are to individual development. Best practice in the independent schools sector recognises this, and there are a number of excellent examples of partnership between independent schools and the local communities—and their schools—in which they are embedded. There are some examples of less good practice, however, which is why the amendment talks about engaging “actively”. One of the weakest points, in the statement agreed between the Independent Schools Council and the Charity Commission, is to say that there will be a new website through which state schools will have a facility to request involvement in partnership activities. We want independent schools to go out to find, explore, pursue and develop partnerships with their local communities and state schools.

The strongest point of the ISC and Charity Commission is the commitment to a research report, 12 months from the introduction of these changes, which will review data from the annual reports of charitable schools as well as the aggregated data that the ISC collects through its census. At present, the details of how that research project is developed will be agreed between the Charity Commission and the ISC.

We are all conscious of the problems of defining public benefit. The NCVO advice on this amendment repeats that too strict a definition of public benefit gets one into enormous problems—and I am looking at the noble Lord, Lord Hodgson, who has said this to me, and many others, many times. But the Charity Commission must monitor that public benefit of some sort is provided. If the Minister is to say that the Charity Commission is not capable of doing that at present, many of us would say that the Charity Commission have been severely constrained in recent years. Faced with a Government who are cutting public expenditure, this very important third sector may need more effective regulation as we have to depend on it more and more.

We hope that we can avoid going down the road to a further statutory definition of public benefit. What the noble Lord, Lord Moynihan, and I wanted to achieve through this process was a strong nudge to the independent schools sector to move in the right direction. It will help us not to divide in this House if the Minister can give us a number of strong reassurances—first, to make it clear to independent schools that they are expected to pursue and develop partnerships, not just to wait and see whether anyone applies. They should see this as part of the social responsibility that all charities should shoulder. Secondly, we should engage with the ISC and the Charity Commission on the terms of the research project to be conducted over the next 12 months and not leave the definition entirely to them. Thirdly, it is important to report to Parliament on the outcome of this research and arrange for it to be debated either through an Oral Statement or otherwise in government time.

I hope that that gives the Minister sufficient space to take us forward, not necessarily to any form of mandatory obligation but certainly to say that we have moved independent schools towards the active partnership with their local communities and schools that we all want.

[Lord Moynihan (Con)]

My Lords, I shall speak to the amendment on the important question of the relationship between independent schools’ charitable status and public benefit and the need for all schools, particularly those with charitable status, to work together with state schools and neighbourhood communities in their vicinity. I intend to concentrate my remarks on the dual use of sports facilities and coaching expertise, although the principles behind my support for progress towards closer educational partnerships extend to all the charitable objectives set out by Parliament in the Charities Act.

In moving a probing amendment in Committee, my intention was to consider the merits and disadvantages in moving from the flexibility of the current system to a more prescriptive approach, reflected in the amendment that we are considering today, which requires all independent schools to engage with local communities, particularly regarding the dual use of sports and arts facilities. A considerable benefit of Committee for me was the opportunity that it provided to delve deeper into proposed legislation and learn significant lessons from the in-depth experience found in this House and outside.

Following Committee, like the noble Lord, Lord Wallace, I have taken the opportunity to meet the Charity Commission, the Independent Schools Council and the Minister to consider how we can make further progress to promote engagement with all independent schools in receipt of charitable status that have the facilities and coaching expertise to engage with local communities and state schools to mutual advantage. I am particularly grateful to my noble friend the Minister, who has upheld his open-door policy to any Member of your Lordships’ House on this Bill.

I spoke in Committee about good practice and cited Tonbridge School as a leading case study of good practice in this country. Under the leadership of Tim Haynes, the head, the school has engaged with 27 primary schools in its vicinity. The reaction from children, parents and the local community can best be described as fulsome praise. His initiative has gone further than engagement through sport, with the subjects of music, drama, dance, chess, art, design, IT, creative writing, science, history, maths, modern languages and classical studies all featuring as part of that engagement. Above all, all independent schools, such as Tonbridge School, in showcasing their facilities, should look to work also with governing bodies of sport, local clubs and those responsible in the primary schools for the school sport premium. That comes with £8,000 for schools with 17 or more pupils, plus an additional £5 per pupil, which could be very useful to fund insurance, transport and related costs incurred as a result of these initiatives.

To be successful, this must be a two-way process. Over the past few days, the Charity Commission has confirmed that it will relaunch and publicise the examples for schools of how to provide benefit for people who cannot afford their fees in its existing guidance, Public Benefit: Running a Charity, by sharing sports facilities. In a significant step forward, it will give new examples relating to sharing sports facilities, arts and music in the guidance Public Benefit: Reporting and in the example trustees’ annual report for “Anytown School”. A significant improvement in good practice should be achieved.

The problem I have with mandatory requirements is the one-size-fits-all approach. For example, many prep schools have to work to capacity to survive financially, even with charitable status. Some do not own their own sports facilities, others share and some are in need of significant upgrading. What is needed is for each school not only to follow best practice but, as the noble Lord, Lord Wallace, stated, for the Charity Commission to publicise it through its channels so that each school can tailor its public benefit accordingly and the House can debate the outcome.

The Charity Commission responded positively to the suggestion of a research report, in which I have more faith than the noble Lord, Lord Wallace. According to its guidelines, that report has to be published 12 months from the introduction of these changes. That research should provide us with a comprehensive picture of the extent of partnerships and enable this House to consider whether legislative steps are necessary, for example, when the next education Bill comes before us during this Parliament.

While there are challenges for independent schools with charitable status, the broader question we should also be debating applies not only to all independent schools but to the state sector, whether well-endowed with sports facilities or not. One of the greatest challenges we face in designing a long overdue and effective sports policy is the oft-quoted statistic about the percentage of our Olympic medallists from the independent sector. That reflects the need to do all we can, far more than at the moment, to identify talented youngsters in all our schools and provide ladders of opportunity for them to climb from primary school to podium.

In response to pressure from all sides of the House on this Bill, the Independent Schools Council has agreed to act by building a new website, Schools Together. The site is currently under development and should be ready to receive information from schools in the autumn term. It was not even on the agenda before Committee. I hope the site will be launched as soon as possible in the autumn. It must be two-way. The site absolutely needs to summarise what is on offer at all independent schools with charitable status and to include a facility for state schools to get involved in partnership activities. From the conversations I have had, I believe that independent schools will reach out to their community in this way by providing information and contact details of their partnership co-ordinators. State schools will be asked to request involvement in partnership activities. Since this is clearly the intent of all who have contributed to this debate at various stages, there should be no reason why all schools do not engage constructively. Once again, if the combined new commitments of the Charity Commission and the Independent Schools Council do not bear fruit in the way the House and the Minister have indicated, we should be able to produce legislative change through a wider education Bill.

I believe that these initiatives represent more than a nudge in the right direction. They are very significant steps forward and would not have happened had there not been the level of interest expressed in your Lordships’ House from all parties. They are tailor-made for the differences between schools and they avoid the cost and administration that a one-size-fits-all legislative approach would deliver. I believe that what I have sought to address constitutes a very strong example of how cross-party support for the interests of sport and recreation, including the arts and curricular subjects, for all children coupled with the promulgation of best practice can be and has been achieved. That is a rare outcome of negotiation between Committee and Report. I fully appreciate the strength of opinion expressed and I share it, but I believe that the changes we have been offered are far reaching and deserve support. I also believe they are for real. There is genuine consensus on this issue among all interested parties. I believe the approach offered will prove to all concerned that the proposed package will achieve even more with the good will of all involved than a one-size-fits-all amendment would deliver. For these reasons, I hope the amendment will not be pressed to a vote and that we can build on these important initiatives and regularly hold all those involved to account when it comes to the outcome of the research project and the website in a year’s time.

Charities (Protection and Social Investment) Bill [HL]

Lord Moynihan Excerpts

Monday 6th July 2015 Grand Committee

Moved by

[Lord Moynihan]

23A: After Clause 13, insert the following new Clause—
“Independent schools’ sports facilities: public benefit
In section 4 of the Charities Act 2011 (the public benefit requirement), after subsection (4) insert—“(5) Independent schools which are charities must engage fully with local communities and state schools with a view to sharing sports facilities and coaching expertise.
(6) The Charity Commission must publish guidance setting out the minimum that independent schools which are charities must do to comply with the duty in subsection (5).””

[Lord Moynihan (Con)]

My Lords, the amendment is in my name and that of my noble friend Lord Glentoran. The principles behind the amendment are reflected in the amendment with which it is coupled, standing in the name of the noble Lord, Lord Wallace of Saltaire, in the context of music, drama and the arts. I support that amendment as well, not least because best practice by independent schools involves both sport and the arts in terms of engaging with the local community.

I was delighted to hear the Minister state, in response to an earlier amendment, that the key issue with regard to the Bill is to give the Charity Commission the tools with which to do the job. That is precisely what we intend in tabling these amendments. The core reason behind them is that there is very good practice by many independent schools in terms of engaging on the use of sports facilities, exchange of coaches and engagement with pupils from the independent sector and the state sector in their catchment area to improve the opportunities for young people in the totality of the catchment area. The problem is that this is not consistently applied. There are pockets—islands—of good practice. The lack of consistency of good practice is the result of the current structure of support that we have in legislation to date. I shall address that in a little more detail.

I say that there are some good examples. I will not rehearse many of them, as I did at Second Reading, but I shall focus on some, not least because of the amendment in the name of the noble Lord, Lord Wallace of Saltaire. Tonbridge School, for example, engages with the local community not only through sporting activities but in music, drama, dance, chess, art and design. Indeed, it brings them all together in true Olympian fashion—the vast majority of the history of the Olympic Games has been about engaging both through the arts and sport. It is good to see a school such as Tonbridge engaging so actively, not just once a year but throughout the year, to ensure that primary-age children in particular benefit from the facilities which the independent sector has and which primary schools and many secondary schools in the area do not.

--- Later in debate ---

[Lord Moynihan]

My Lords, I tread carefully in areas of disagreement with my noble friends Lord Lexden and Lord Hodgson and, indeed, my noble friend the Minister. However, I wish to make one or two observations in response to their comments. The Minister referred to Sir Michael Wilshaw’s Going the Extra Mile report. This was an indictment of sport in schools in this country. It was stated without any equivocal reticence:

“The survey reveals unacceptable discrepancies between the proportion of pupils attending state schools and their representation in elite sport”.

Clearly, that is not simply a function of the relationship between independent schools and state schools but raises a major question about how we support the development of both primary and secondary schoolchildren in sport and recreation and indeed, I would argue, in the wider context of the arts as well.

I agree with my noble friend Lord Lexden that best practice and the encouragement of voluntary local arrangements is ideally the best way forward. However, I have to say to him that I would not be standing in front of this Committee today if those voluntary arrangements were working. The reality is—he has the report in front of him, from which he quoted—that only one-quarter of the schools in partnership with state schools invite pupils to use their music facilities, only one-tenth invite pupils to use their drama facilities and only 6% second coaching staff. Regrettably, these figures strengthen my argument that if we consistently come back year after year and say, “Leave it to voluntary agreements because this is not an area for political involvement”, we are letting down a generation.

We sit in your Lordships’ House in part to look at legislation, balance wholly reasonable points about the non-politicisation of the Charity Commission’s objectives and ensure that guidance takes precedence. Indeed, the amendment before the Committee today, in terms of the arts and sport, emphasises the publication of guidance as the key criterion. It does not require or seek the Charity Commission to publish regulations that then are subject to either affirmative or negative resolution of this House. It seeks to continue through guidance. It seeks a very light-touch statement that, in publishing that guidance, it is wholly reasonable and, I would argue, non-political to ask independent schools—which through their own guidance have been directed in the area of engagement on sport and recreation activities between their schools and the public—to engage fully with those local communities and state schools. That is as far as we would wish to go in legislation, and then we would look to the Charity Commission to publish appropriate guidance.

Of course every school differs, but the statistics I have just quoted—I welcome that they will be published more widely on a website this autumn—are a sign. They are a clear example that the wholly voluntary approach towards best practice, which ideally we would all like to support, is not working.

We need look no further than local authorities. Parliament determined that there should be a voluntary approach by local authorities to support sport and recreation activities in this country and that it should be a discretionary spend item, not a mandatory spend item. What is the consequence of that? A lack of investment in local sport and recreation facilities, a lack of opportunity for girls and women to engage in those facilities because there simply are not the facilities for so many women to participate in sport at a local level, and, frankly, a collapse of opportunity around this country, all because we have left this to voluntary local arrangements—unlike, by the way, Scotland, which has taken a mandatory approach.

My argument with my noble friend Lord Lexden is that although the voluntary approach and the encouragement of voluntary local arrangements has, in part, been outstanding—I am not for a moment arguing that all schools have failed to deliver close working relationships with the local community over sport and recreation and the arts—the reality is that it is a patchwork quilt in this country. Wherever we do not deliver best practice, we let down local communities. We have a very light-touch opportunity in this legislation to rectify that. I simply say to my noble friend that if we take it, we might move from 6% of schools seconding coaching staff to the local communities and in the direction of the outstanding chief master of King Edward’s School in Birmingham, John Claughton, who shares the vision that I am talking about and has come up with some excellent ideas, but there will be no impetus behind that if we simply leave schools to current practice.

We have to change our approach to this if we are going to maximise the opportunities for young people in our society to engage and not walk past independent schools with which they have little to no relationship—I am not talking about best practice; I am, regrettably, talking about the 1,002 schools out of 1,073 that do not second coaching staff. That cannot be acceptable to your Lordships’ House and it cannot be acceptable, sadly, in the wake of the hugely inspirational Olympic Games in London in 2012. We should be engaging with all able-bodied and disabled kids in the locality on where independent schools can play a major role in achieving that objective, rather than, three years on, to have these statistics in front of me, which were published by the ISC and demonstrate, in my view, that the Charity Commission needs to have greater vision to drive forward change in the interests of all young people in this country.

I predict that the proportion of our medallists from the independent sector in Rio 2016 will be even higher than the proportion from London 2012. The proportion of the total team that we take will certainly be higher, not least because it looks highly unlikely that we will take a football team. Football is one sport in this country where you have a pretty perfect relationship between the numbers of independent and state school kids going to play at the national level, with the proportion from state schools being of the order of 93%. That is what you would hope for in every sport, but it exists only in football and not elsewhere. By the look of it we are not going to be sending a men’s or a women’s team from GB, so you can expect the percentages to fall back to closer to where they were in Beijing in 2008.

I conclude by wishing that I was in a position to agree with my noble friend Lord Lexden. I am sensitive to the arguments that my noble friend Lord Hodgson made about politicisation. We need to look at that carefully as we reconsider the amendments that we have tabled. I absolutely understand that there would appear to be a discrepancy between, on the one hand, publishing guidance setting out minimum standards and, on the other, taking into account engaging fully with local communities and state schools. I would argue that there should be a minimum standard, so I do not actually see the discrepancy myself, but I see that it is open to a different understanding. It is something that I am sure the noble Lord, Lord Wallace, and I will review in the light of that excellent intervention when it comes to taking this idea forward to the next stage.

For the time being, I will of course withdraw the amendment standing in my name and could not be more grateful to your Lordships from both sides of the House. This debate has taken an hour—I thought we were going very swiftly until this point, so I apologise for the fact that we have had a full hour—but it has been a quality hour and has been very helpful in identifying key areas that we need to consider between now and Report. In light of the interest and support that exists for taking this further, at this stage I beg leave to withdraw the amendment.

Amendment 23A withdrawn.

Charities (Protection and Social Investment) Bill [HL]

Lord Moynihan Excerpts

Wednesday 10th June 2015 Lords Chamber

[Lord Moynihan (Con)]

My Lords, first, I echo the congratulations which have been offered to my noble friend Lord Bridges, with whom I had the pleasure of working some 10 years ago when on my noble friend Lord Howard’s team. He had clear insight, humour and intelligence which shone through in all our dealings, and there is little doubt that he has replicated that again today and will enjoy life in your Lordships’ House.

I am very supportive of the principles of the Bill, and I declare my interests, which are in the register: I have worked closely with the Haberdashers’ Livery Company on its educational initiatives, and I have interests in a range of sports charities. I am conscious that there is one area which has been much debated in the context of the work of the Charity Commission—the often challenging subject of the public benefit requirement. That is a difficult issue because there are advantages to having clarity in the Bill but that would be complex and challenging, as is the guidance that is available. That debate needs to continue and I intend to raise it in a specific context—the advancement of amateur sport—in Committee.

The Charity Commission has recognised that there is room for improvement, and we need to help charities understand that, far from being an irrelevant distraction, the public benefit is one of the core questions of mission. It is about charities being clear what their aims are, who they serve and how they serve. No simple statutory definition of public benefit exists; it has therefore been contested and is subject to case law. Fee-charging schools have been recognised in the voluntary action research in the Sheffield Hallam University report as very well informed on the subject, yet they have been involved in costly Upper Tribunal cases. So there is uncertainty, misunderstanding on occasion and a lack of impact. This subject has led to opaque debate which I hope will be clarified.

The report concludes that if independent schools are to benefit from the privileges of the charity sector they have to be clear that charities are working for the public benefit in an understandable way. I believe that Parliament needs to define public benefit more precisely, as opposed to the alternative route at present, namely the Charity Commission developing practical guidelines. That is especially important since public benefit needs to be built in to the purposes of the charity.

I am not alone: the Select Committee on Public Administration report stated that the current position on the public benefit test has been,

“an administrative and financial disaster for the Charity Commission and for the charities involved”.

The Charities Act 2006 was considered to be “critically flawed” on the question of public benefit. The report said that the Act removed the presumption of public benefit from religious, educational and anti-poverty charities and required the Charity Commission to create guidance on public benefit, but it did not give a definition. The report stated that changes in the Act left the Charity Commission in an “impossible position” and led to costly Charity Tribunal cases involving independent schools, which I have mentioned. The committee said that the 2006 Act had absorbed vast amounts of energy and commitment, as well as money. Bernard Jenkin, from another place, said:

“We should never have opened up the whole can of worms called public benefit. Parliament needs to legislate, because the time and money being wasted suggests the act as it stands is not well-drafted and needs to be amended”.

I introduced the governance of sport Bill shortly before the election, in which I proposed that the Secretary of State for Education should table an annual report to Parliament for debate in both Houses entitled The Transformation of School Sport, documenting the state of sport in schools in England and Wales. Specifically relevant to today’s debate, I proposed that all schools should publish annually a report setting out policy in relation to sharing schools’ sports facilities and coaching expertise with state primary and secondary schools in order to benefit the local community. Effort made in the previous year to implement such a policy should also be covered. I took the view that all schools holding charitable status should submit reports as set out in Clause 4 and that the Charity Commission should take into account such reports in assessing whether the school continued to meet the public benefit requirement in Section 2(1)(b) of the Charities Act 2011.

In pursuing this objective, I believe that we should place public benefit on the face of the Bill. To avoid the complexity of a wide debate, I suggest that we legislate in a specific area of public benefit as it applies to the promotion of amateur sport, directed at independent schools holding charitable status. Those colleagues on all sides of your Lordships’ House who take a keen interest in sport will, I hope, take the opportunity in Committee to focus on the specific requirement for independent schools to deliver public benefit under the Charities Act. We will explore whether it is possible to define public benefit specifically to ensure that independent schools should be required to share their sports facilities and co-operate with primary schools in their catchment area. Many independent schools achieve this objective and achieve it admirably, through dual use of their facilities, engagement with local clubs in after-school hours, as well as coaching and pupil engagement. But there is a lack of clarity as to what specifically is required from schools to deliver public benefit under the Charities Act. The purpose of my intervention is to continue that dialogue between sports organisations, independent schools and those who will be in Committee as to whether primary legislation in this context is desirable.

Why do I raise the subject of sport? I have in the past highlighted the fact that more than 50% of our medallists at the Beijing Games came from independent schools. That means that half of all our medals for Team GB came from just 7% of the children in this country. In the excellent Ofsted report a year ago entitled Going the Extra Mile, Michael Wilshaw said:

“Only 7% of school-aged pupils attend an independent school in England at any point in time and only up to 14% of students aged 16 or above are reported to have attended an independent school at any point in their schooling. If maintained schools and independent schools were equally successful in nurturing sporting talent, we would expect approximately 86–93% of elite sportspeople to have been educated in a state school. However, 41% of the medallists from the UK team from the London 2012 Olympic Games were reported to have attended an independent school”.

I strongly believe that we need to address this imbalance. Independent schools are very well placed to play an important role in assisting state schools in their catchment area. That statistic of 41% of our medallists from Team GB in the London Games coming from 7% of our children means that thousands of talented young athletes are not being identified in the state sector. We have a duty to identify and develop that talent and to create a pathway for it from primary school to podium.

There are schools that are doing this outstandingly well. Their interpretation of the charitable requirement for public benefit is very clear. I cite Tonbridge School as an example. It works with 27 primary schools; it engages with those schools and provides the opportunity for boys to help with coaching, for state schools in the area to have access to its facilities and for a community action co-ordinator to work with those schools. Every year the school brings nearly 1,000 children from the primary schools in its catchment area to an Olympic day. It also sets up a freshers’ fair at the end of the day, when it invites local clubs, local community clubs and local sports clubs and the governing bodies to come to the school so that they can engage with the primary schoolchildren, their teachers and their parents to encourage them to become engaged in sport.

The best of our independent schools are doing exactly what I seek. The problem is that that is not a universal position for independent schools. I believe that focusing on the legislation before us, as we should, provides an opportunity to unlock the challenge and the real opportunity there will be for enabling public benefit to be interpreted in a very clear way to engage independent schools with local communities. If each of our independent schools built a relationship with the local primary schools and their local communities similar to that of Tonbridge School we would transform this country when it comes to the provision of sporting opportunity and engagement with the state schools and independent schools. That is much needed as part of our legacy from London 2012.

In closing, I cite John Claughton, chief master of King Edward’s School, Birmingham, who shares this vision. He identifies two kinds of resources: facilities and people, and says:

“Much good work has been done over the past decade or so in making the high quality facilities found in many independent schools available to local communities”—

a commitment, incidentally, that pre-dates discussions about charitable status and public benefit. There are numerous examples of partnerships with local schools and communities to be cited. He says:

“Not all former professional sportsmen and women have the skills or the desire to be both teachers and coaches. Many are excellent coaches but do not have the qualifications, desire or skills to be full-time teachers. These colleagues would enjoy working as full-time coaches across a variety of schools … Professional coaches employed (and frequently housed) by independent schools mainly work during the afternoons (when team sports are usually scheduled), early evenings, and at weekends. These members of staff could be employed on contracts where they spend some of their mornings (and non-sports afternoons) working in local state schools. The cost to the state schools would be low (calculated on an hourly basis without the additional costs of employment which are carried by the independent school) but would offset some of the costs incurred by the independent school”.

I believe that we have a far-reaching opportunity through this legislation to address a key, albeit complex, area of charity law. In so doing we can provide much-needed clarity over the concept of public benefit, reduce the Charity Commission’s focus on costly Charity Tribunal cases, and, above all, link our independent schools to state schools through the dual use of facilities and coaching to provide a genuine sports legacy to London 2012.

Iran: Ghoncheh Ghavami

Lord Moynihan Excerpts

Thursday 4th December 2014 Lords Chamber

Asked by

[Lord Moynihan]

To ask Her Majesty’s Government whether they have made representations to the government of Iran on behalf of Ghoncheh Ghavami, a joint British and Iranian citizen who was jailed for a year after attending an International Volleyball Federation World League match in Iran.

[Lord Wallace of Saltaire (LD)]

My Lords, the Government have raised the case of Miss Ghoncheh Ghavami with the Iranian authorities on many occasions, most recently on 23 November. We welcome the news that Miss Ghavami has been released on bail, and will remain in close touch with her family.

[Lord Moynihan (Con)]

My Lords, while welcoming the news that following the Foreign Secretary’s intervention, Ghoncheh Ghavami, a British and Iranian national, is no longer serving the sentence of a year in prison for seeking to attend a men-only volleyball match in Tehran, will the Government do all that they can to ensure that the result of her forthcoming appeal does not return her to prison, that all charges against Ghoncheh are dropped and that she is released from her two-year travel ban?

[Lord Wallace of Saltaire]

My Lords, the Government have been actively engaged on this case and will continue to be so.