My Lords, the objectives of Amendment 31, on doping in sport, are simple, and they build on considerable exchanges that have taken place at Second Reading and, more recently, in Committee. The first part of the amendment seeks to recognise the United Kingdom Anti-Doping agency—UKAD—and its successor bodies as the main body responsible for eliminating doping in sport in this country. The second part focuses on bodies which are not currently affiliated with or under the control and influence of UKAD and allows the Secretary of State to designate those bodies and to make regulations by the affirmative resolution procedure to outline the relationship between UKAD and other sporting bodies and the powers and responsibilities of UKAD.
I recently had the opportunity to discuss the amendment before the House with a range of individuals from the world of sport. At the most recent meeting, along with the noble Lord, Lord Stevenson, I had the opportunity to meet Emma Drake, a lead lawyer for sport on data protection; Tim Payton from the national governing bodies; Jonathan Taylor, the legal counsel to the United Kingdom Anti-Doping authority; and Alison Faiers from the ECB. They responded to us both a couple of days later by setting out possible changes to the current wording in the Bill and suggesting that UK Anti-Doping be named specifically in the Bill, while retaining flexibility in case of a successor body. Secondly, they said that included for the first time in primary legislation should be a reference to the role of the UK national anti-doping policy. This particularly emphasises the accountability of UKAD to Parliament and its responsibility for implementing and monitoring compliance with the policy. Thirdly, they suggested that we retain a clear reference to the fact that other sports governing bodies that are not subject to the UK national anti-doping policy should be able to rely on a condition in the clause itself, which is precisely what I sought to do before bringing this latest amendment to your Lordships’ House.
It is important to place on record the role of UKAD. It co-ordinates the UK intelligence-led, risk-based testing programme across more than 40 key sports in accordance with the international standard for testing and investigations. It is at the centre of our anti-doping programme in this country, and is very important in the management of highly sensitive personal data—this Bill is about the management of that personal data. When it comes to dealing with highly sensitive personal data, it should be recognised as the body responsible for anti-doping in this country. It already has a broad remit and can test any UK or non-UK athlete staying, training, residing, entering a competition or named as a member of a team participating in a competition at any level within the United Kingdom. Those athletes are eligible for testing as part of UKAD’s national anti-doping programme. UKAD is recognised by the Government and by the DCMS. It is paid for by us as taxpayers and undertakes a vital role in keeping sport clean in this country.
Meanwhile, the Bill is very important because of the context in which data falls as far as sports men and women. The data we are talking about is twofold for the success of an anti-doping policy. First is the whereabouts test. Every athlete who competes
internationally and is part of the national register testing pool has to provide, every day, a 60-minute time slot to be tested without prior notice. That is a major request. Under employment law, you are entitled to go on holiday and your whereabouts not be known by your employer. In sport, the data required extends throughout every day of the year: wherever you are, you are duty-bound to notify your governing body or UKAD of your whereabouts. That seems to me a major issue of privacy. If we are asking athletes to give up that right, as we are in this Bill, to have an effective anti-doping policy—which I fully support—that should be taken very seriously indeed.
The second point is the principle of strict liability. All athletes are solely responsible for any banned substance, regardless of how it got there or whether or not it was the intention of an athlete to cheat. Under the anti-doping programme, you are effectively guilty until proven innocent. The fact that athletes have to adhere to those two requirements of data management makes it incumbent on this House to ensure that the situation under which someone could be tested, or under which UKAD can operate, is very clearly defined in the Bill. Regrettably, I do not believe that it is at the moment.
The issue is even more important because it is about the making and breaking of careers and reputations. Only today, in a different context internationally, we had news that the UCI is investigating Chris Froome’s case under its anti-doping rules. Here it was strict liability again. However, it was also a case where he did not break the rules in terms of performance enhancing substances. His highly sensitive records were made public; he was given a TUE—a therapeutic use exemption—for asthma, but the level at which he tested was above the level recognised by the UCI as acceptable. That is the test being applied. It is headline news. The fact that he is a part of that doping policy has meant that his career, his profile and potentially his future is under the microscope. That is because he signed up to that anti-doping policy. It is the same anti-doping policy that would occur here. Indeed, UKAD was heavily involved in another case earlier this year, as noble Lords will know, with regard to Bradley Wiggins and the famous jiffy bag in June 2011. It said it was hampered by a lack of accurate medical records being available for British cycling, yet his whole career and reputation is under the spotlight as a result of that incident.
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The wording in the Bill is very broad; I argue that it is too broad. We need UKAD to provide some clarity and interpretation and the Secretary of State to come forward with subsequent secondary legislation to set out the powers and responsibilities of UKAD and its relationship with the governing bodies.
The Bill is also replete with a series of questions which, as it stands, are not answered—yet if UKAD was in a position of responsibility they could be answered. For example, what is a sport? Chess has been recognised as a sport by the International Olympic Committee since 2000. It is recognised as a sport in 24 out of the 28 member states of the European Union,
the exceptions being the United Kingdom, Ireland, Belgium and Sweden—yet in Sweden it is likely that chess will be included from next year. The drugs associated with chess are, not surprisingly, memory boosters—drugs such as Ritalin and Adderall—and FIDE, the international federation responsible for chess, has accepted the World Anti-Doping Association code. Internationally it is recognised that doping in chess is a serious and important issue.
However, this country has not recognised chess as a sport and the net result, in the current wording of the Government’s proposals, is that it would not fall within the GDPR exemption and an athlete—or, in this case, a chess player—could simply say, “I do not want my information to be passed on. I am not going to give a urine sample. I am not going to give a biological passport. I am not going to talk about my whereabouts. I am claiming the right of derogation under the GDPR regime”. That surely cannot be what the Government intended.
Given the very broad definition of sport, there is absolutely no clarity. It is worth noting how broad the definition is. It is all-encompassing in the Bill at the moment. Scouting activities would fall within the remit set out. Under rule 9 of the scouting code, activities such as martial arts, horse riding and pony trekking are all subject to the governing body regulations, which include anti-doping regulations, and would therefore fall within the remit of the clause as currently written by the Government.
I want to help the Government. Let us try to clarify this and put a structure around it so that everyone involved in sport—who are being asked to concede fundamental freedoms and rights of personal information being kept private—know where they stand.
There is also the issue of schools. Some schools adopt the WADA code—which means that they would fall into the category we are talking about—others do not. Whether the sanctions imposed by a governing body apply to a certain school and not to another school is an important issue. It is the same with universities. We know that one of the biggest problems with doping in sport occurs in university gyms. Young people, not least rugby players—regrettably, because it is a great sport—often take the opportunity to dose up in school or university gyms in order to bulk out before going into professional sport. Again, they are captured by this wide-ranging clause, and if it was given this responsibility in the Bill, UKAD as the nationally funded body responsible for the anti-doping policy in this country, and highly respected internationally and nationally, would be in a position to clarify many of these issues.
I ask “What is a sport?” because there is no definition in the Bill. Yet when it comes to recognising a sport in the United Kingdom, the sports councils look at whether an activity meets the Council of Europe’s European Sports Charter 1993 definition of sport. That is a clear definition, but it is not defined in the Bill.
The Government’s wording is general and open to wide interpretation. It is my contention that the United Kingdom Anti-Doping agency should be named as the body accountable to Parliament through the DCMS for implementing and monitoring compliance throughout
the UK and with the national anti-doping policy. In effect, from time to time it would set out its respective roles and responsibilities with other governing bodies. It should be recognised in this Bill as the lead body for eliminating doping in sport. It should stand separate from the DCMS to avoid conflicts of interest. It is particularly pertinent to note that of the intelligence testing that UKAD undertakes, only 3% of last year’s tests that proved positive came from the governing bodies, yet it is actually those bodies which know through their coaches the squads and what is going on in their sport. However, some of them may be conflicted while others may not take the issue sufficiently seriously. By placing UKAD at the heart of this and working closely with the sports governing bodies, we could move forward.
Of course there are bodies other than UKAD which have an important role to play in combating doping in UK sport. I note for example the Commonwealth Games Federation or the excellent work undertaken by the British Horseracing Authority, as well as international federations hosting sporting events in the UK, all of which are among them. There is clear provision in my amendment for the Secretary of State to nominate those bodies to continue their good work. It is a straightforward letter which is not subject to a consultation process. I have heard some sporting bodies argue that it is, but it is not at all. No doubt the Secretary of State would seek the advice of UKAD to see which bodies should be granted that status, but there is no question but that the British Horseracing Authority should continue its excellent work.
However, I have to say that the BHA policy poses some real challenges of its own at the moment. Its policy is also based on strict liability where animals are concerned, which in my view is questionable. For example, if a horse eats grass which has been urinated on by, as it walks through the field, a dog whose previous night’s dinner might have contained performance-enhancing substances, it is questionable whether the owner should be banned for doping his horse. Can animals be subject to strict liability? I doubt it and it highlights the complexity of this issue, which is why it is vital that we make provision for an expert body such as UKAD to have oversight of the management of data, which is what we are talking about, because the management of data is fundamentally central to the effectiveness of any anti-doping policy.
I have not received a letter from some of the sports bodies, although I understand that a number of noble Lords may have been lobbied by them, but I was kindly given a copy. In conclusion, I shall deal with the four issues on which they have written. I hope that that will be of assistance. The first point they make is that the Bill seeks to implement and will have a profound impact on sports governing bodies’ ability to carry out regulatory activities. I recognise and agree with that. The Bill should have a profound impact for the very reasons I have been arguing. We are talking about the management of an athlete’s sensitive personal information in the form of his medical records and the removal of that right under this exemption to the GDPR regime. We are all agreed on the need for an effective anti-doping policy, but we should not underestimate what we are asking of athletes in return for keeping to that.
Secondly, the sports governing bodies say that they have worked hard on Clause 23. As I have argued, I believe that the clause is poorly drafted and incredibly wide in scope. Given that we are withdrawing the protection afforded to an athlete regarding when and how their personal data is used, the law needs to be clear. For example, it covers every individual attending a sporting event, including children, St John Ambulance and stewards and, if any body has designated itself, for organising that event it can determine its own doping policy and decide to include all those people. Then there is the final phrase in the paragraph: “in sport generally”. I have no idea what the boundaries of that definition are.
I close by highlighting one final point on what the governing bodies have said. I am talking about a handful of them—the same ones that came to see us last week and which were in favour of the amendment. They seem to have made a significant 180-degree turn on one or two of these issues. I will deal finally with the view that the amendment risks breaching the UNESCO convention against doping in sport. The bodies say that, under the World Anti-Doping Code and UNESCO convention, the authority to carry out testing is clearly divided between national anti-doping organisations, international federations and major events organisations, and that the amendment risks a breach by inappropriately granting the Secretary of State powers where she does not have jurisdiction under the UK’s international commitments.
Nobody is proposing breaching international conventions to which we are a signatory, and there is nothing in the amendment to that effect. Indeed, all the points raised by the bodies have been addressed by my tabling the amendment before your Lordships’ House. I close by reinforcing my view that if we are to withdraw very important rights over personal data, medical information and details of blood and urine samples’ whereabouts from athletes, we should in return provide clarity in the Bill on the exact circumstances in which we are asking athletes to give up that information. I have done that simply by placing UKAD—the current leading body, funded by this country’s taxpayers—in the Bill to undertake that work and put its responsibilities and relationships with the governing bodies of sport into secondary legislation, which can come back to this House by affirmative resolution in due course. With those two minor changes to the Government’s original wording, I beg to move.