My Lords, at Second Reading, the Government described the exemption of doping in sport as a flexibility permitted within the GDPR. This is welcome. My understanding is that anti-doping in sport comes under Part 2, relating to the permissibility of collecting personal data for reasons of public interest. Therefore, biometric data, for example, may be collected and processed to prevent doping without the explicit consent of the data subject—in this case the athlete. Member states are able to pass into their domestic legislation further restrictions on the processing of special categories of data. This is what the Government do under Part 4 of Schedule 1.
The relevant data controller—a role which currently is not clear in the Bill in the case of sport—will have to produce a document that explains how its procedures comply with article 5 of the GDPR and what its policies on retention and use of personal data within its control are. It will also be under an obligation to maintain a record of the processing it or its data processors have undertaken to comply with article 30 of the GDPR. With respect to this, the data controller has to show how they comply with article 6 of the GDPR and whether they have deleted or retained the data under their control. Sport would be wise to reflect that the Government have said that what is proposed is not an exemption to the Bill but flexibility permitted within the GDPR, which will require sporting bodies to exercise a number of important responsibilities, and that ignoring such responsibilities comes with significant sanctions, some criminal in nature. I would be grateful if the Minister could confirm that my understanding is correct on that subject.
From the perspective of the athletes, the fact that—across the party divide, I understand—we are supportive of this flexibility does not underestimate what we are asking for. The doping regime in sport requires the athlete to be totally responsible for what is in their body at all times. I know of few spheres of activity where the onus on an individual is so severe. Our athletes are guilty before being proven innocent. It is intrusive, to say the least, to have a regime whereby a young gymnast eating beef which may have been imported from a country where the farmer used steroids to fatten his cattle for market is immediately found guilty of a doping offence in this country. It is equally important to recognise that the “whereabouts test” required of all our leading professional and amateur athletes requires them to inform the doping authorities
of where they are for a given period each and every day including their holidays, where in all other forms of employment this intrusive and onerous requirement goes beyond the freedom that an employee can legitimately expect, not least under European law, as well as the freedom to have their holidays uninterrupted on a daily basis by their employers.
I appreciate that these exemptions must respect the essence of fundamental rights and freedoms, and be a necessary and proportionate measure in a democratic society for the purposes of safeguarding the doping regime in British sport, necessary for reasons of public interest and providing for suitable and specific measures to safeguard the fundamental rights and interests of data subjects. I would be grateful if the Minister could confirm that this is the case. This law, which enshrines in UK law a right to be forgotten and for an athlete not to provide a test sample, claiming protection under this Bill, would drive a coach and horses through the anti-doping regime that we have developed in this country under the aegis of UKAD, or UK Anti-Doping, if it was not treated with the flexibility permitted within the GDPR. Thus, I fully support the decision taken by the Government.
I am also in full support of the work of the governing bodies, UKAD and the world of sport in the fight against doping, which poses the greatest threat to clean sport in our generation, particularly since it was reported only two weeks ago by the World Anti-Doping Agency in publishing its 2016 anti-doping testing figures that the number of adverse analytical findings is increasing. We face a world where new technologies and pharmaceutical products, changes in doping patterns, gene editing and state-sponsored doping both within and beyond the borders of Russia are a growing issue, providing not a diminishing but an increasing menace to clean sport.
The amendments that I have tabled are set against this background, probing in nature at this stage, and underline a number of important points which may require further consideration by the House. Currently, the relevant provision, paragraph 21 in Schedule 1, is broadly drawn and would lead to unintended consequences, for there is no definition of doping nor of sport, and the definition of the bodies to be covered by it is non-existent. This could become a lawyer’s paradise. If I and another noble Lord establish an organisation with the broad aims set out in paragraph 21, it seems to me that we would be deemed a “relevant body”. Indeed, there is no mention of the framework currently in place to eliminate doping—namely UKAD, the government-funded UK anti-doping body, which should be referenced in the legislation, providing it with the necessary powers. Looking further at the wording, I would like to ask the Minister whether he agrees with me that,
“doping … at a sporting event”,
covers spectators as well as competitors. If so, we need further work on the wording.
I have stated that I believe that UKAD should be named on the face of the Bill, since UKAD is the arm’s-length body, or ALB, accountable to Parliament through the Secretary of State at the DCMS and
mandated to deliver the Government’s treaty commitments under the UNESCO International Convention against Doping in Sport to protect a culture of clean sport in the UK. This is achieved through the implementation and management of the UK’s national anti-doping policy, which requires funded sports bodies in the UK to comply with the World Anti-Doping Code.
4.15 pm
By naming UKAD in the Bill we will enable it to deliver its current agenda of reforms, which it sees as essential to be a more effective body and with which I agree. This would, for example, extend the reach of UKAD across all sports in the UK covering all levels, including amateur as well as elite. Today it is restricted, given its resources, to work only through the relevant sports and numerous governing bodies and umbrella bodies that exist. It would enable it to demand information from national governing bodies of sport, the NGBs, including the records of treatment of athletes by athlete support personnel. It would enable it to require NGBs to provide UKAD with details of their members, through the provision of their full membership databases. It would enable it to demand production of communications devices, together with their password details and to reach out beyond the remit of governing bodies—for example into university gyms, renowned centres for a small minority of aspiring professional rugby players to add strength and body mass through the use of steroids and other banned performance-enhancing drugs. It would enable it to criminalise doctors who are outside the remit of governing bodies and found to be in breach of the GDPR process when they fail to provide personal data required by the GDPR regime under Clause 21(1) and (2) of the Bill. Finally, it would enable it to have the tools in place to manage a regulated assurance regime that checks on compliance, not just in governing bodies but across sport in the United Kingdom. All could be determined as necessary by UKAD in undertaking its duties if it is, indeed, a controller in this context.
My noble friend the Minister may, in responding, point out that the clause should include bodies wider than just the processes conducted under measures set by UKAD, and that my wording may be deficient in that respect. I understand this opinion, which has been aired by some governing bodies of sport, but if that is the Minister’s view, and it finally proves convincing, a change to my wording could address that, as there are, indeed, other organisations that we may regard as additional to UKAD in the fight against doping. Some examples might be sports which, while working with UKAD in some capacity, have their own related doping rules, such as the FA and the RFU. While it should be pointed out that both the FA and the RFU govern Olympic sports and are therefore fully covered by the World Anti-Doping Agency, which provides the framework for all UKAD’s operations, policies and codes, I believe that UKAD should have ultimate responsibility for accrediting all British anti-doping programmes, and my amendment seeks to achieve this objective.
International federations may apply their own measures when running events in the UK. This might be UK-based federations, such as the Commonwealth Games
Federation, or international federations of sport—or, indeed, the International Olympic Committee or the International Paralympic Committee—when they are running events here. Again, I believe that UKAD should have overall authority to determine whether their programmes, when operating in the UK, are to a standard that fulfils their criteria. We should not seek to bring any event to this country with public or lottery funding, nor should we support any international event on these shores, funded either through lottery funding or public money, which does not meet the standards and procedures set and agreed by UKAD, as the sole recognised body responsible for the fight against doping in sport in the UK. Otherwise, we risk allowing British or international sports organisations to hold events that could circumvent what we, as Parliament, recognise to be the minimum standards in the fight against cheating in sport.
My amendment makes reference to performance-enhancing substances listed in the world anti-doping code.