Data Protection Bill [HL]

Debate between Lord Moynihan and Baroness Chisholm of Owlpen

Committee: 3rd sitting (Hansard): House of Lords
Monday 13th November 2017 Lords Chamber

[Baroness Chisholm of Owlpen (Con)]

My Lords, I want to reiterate what my noble friend Lord Ashton said. I think we are learning a lot about philosophy from the noble Lord, Lord Stevenson, during the passage of the Bill. It is a welcome addition as far as I am concerned.

I shall start with brief reference to the government amendments in this group. These amendments, Amendments 58 to 60 and 62 and 63, make further related provision in respect of processing undertaken to ensure the integrity of sport. This is necessary because, unusually, integrity issues in sport often relate to sensitive data, the processing of which may otherwise be prohibited under article 9 of the GDPR. I am grateful to a number of stakeholders for their help in making sure that these amendments will achieve their intended effect.

I turn now to the amendments tabled by the noble Lord, Lord Moynihan, and the noble Lord, Lord Stevenson. Amendments 57 and 61 seek to amend the processing condition in paragraph 21 on anti-doping in sport. This condition was included in the Bill following extensive engagement with sports governing bodies and UK Anti-Doping, which together implement and manage anti-doping policy in the UK. They are also responsible for eliminating the scourge of doping in sport. The paragraph as included in the Bill permits the processing of sensitive data for these purposes. UKAD is of the view that the measure as drafted will enable it to continue to perform this important function.

Amendment 57, tabled by my noble friend Lord Moynihan, who has such great expertise in this area and has done so much over the years to try to combat doping in sport, seeks to narrow the doping provision so that it allows processing only where it relates to an athlete who may be in breach of UKAD’s rules. Amendment 61, tabled by the noble Lord, Lord Stevenson, instead seeks to limit the provision to rules set by a sports governing body with responsibility for a single sport. Neither position reflects the reality of split responsibility for anti-doping in UK sport today. Removing the reference to “sporting event” and “sport generally” may potentially exclude the anti-doping processing carried out by UKAD and by those bodies which set and enforce anti-doping rules in a particular sporting event rather than a particular sport, such as 6 Nations rugby, the IOC or the Commonwealth Games Federation. The Bill must not be limited to only the interventions of UKAD but must allow processing in those sports and sporting events which have their own anti-doping rules. The fact that those bodies are not governed entirely by UKAD’s rules makes their processing no less important. Equally, the provision must allow processing in relation to participants who are not themselves athletes. As noble Lords will understand, the sensitive data or criminal record of a coach or relative may be fundamental to anti-doping cases.

A narrowing of the scope of this paragraph could create loopholes for participants who cheat. For these reasons, I am confident that the original drafting suffices. Paragraph 21 of Schedule 1 was subject to significant engagement with sports governing bodies. Given that the Bill comes out of the government department that is also responsible for sport, we have been able to take extra care. The large number of relationships we have with this sector have been used to test the draft, and UKAD is content.

Several noble Lords mentioned various items which I will also refer to. My noble friend Lord Moynihan wanted me to confirm that athletes cannot rely on the right to be forgotten. That right is not unlimited, and if the personal data has been lawfully processed, and needed to be processed, then it would be there only if there was no overriding legitimate interest for the processing of that data. The controller would have to erase the personal data in these circumstances.

My noble friend also asked why we did not criminalise doping. None of those interviewed as part of the review were in favour of criminalising doping in sport. This was a unanimous view. For example, sports governing bodies expected that their internal investigations would be negatively affected by the criminalisation of doping in sport. It would remain quicker to deal with an instance using regulatory or disciplinary proceedings, which must be proved to the civil standard of the balance of probabilities rather than beyond reasonable doubt. Others noted that the current penalties were already sufficient to end a sporting career.

My noble friend also wanted to know whether doping at a sporting event covered spectators. This is a broad measure to cover processing in connection with measures designed to eliminate doping, for the purposes of providing information about doping or suspected doping. This could include processing of special categories, such as data relating to spectators or third parties providing information, but not only when necessary in connection with anti-doping measures.

The noble Lord, Lord Stevenson, brought up a good point, about why sport is unique when there are other areas that could also be included in this. Particular provision for sport is needed because sports bodies are an unusual type of regulator, where the regulation they carry out is capable of meeting a substantial public interest test yet they cannot rely on paragraph 9—there is no statutory recognition of their function nor is it beyond argument that enforcement of their rules benefits all members of the public, as opposed to the protection of their participants. Reliance on paragraph 9 for this processing would be too narrow, but important to remedy given the amount of sensitive data that might be processed by sports bodies in pursuit of their integrity functions. This is not something that we are aware would apply to other types of regulators.

I will move the government amendments for the reasons I have set out, and will of course be happy to meet noble Lords if they wish to discuss this point further.

[Lord Moynihan]

First, I thank the noble Lords, Lord Stevenson and Lord Clement-Jones, for offering to stand in for me at the last Committee sitting. I was in my place for the first sitting, when we were expecting to reach this amendment, but regrettably had to travel to Australia on two occasions in the last month, only returning about four and a half hours ago. I apologise if I was not as lucid as I would like to have been, and I am very grateful to them for offering to assist if I had been absent again.

I will respond very briefly to a number of points raised. In response to the noble Lord, Lord Maxton, I took into consideration the question of what is a performance-enhancing drug and have suggested, in my amendment, that it should be a drug listed under the WADA—World Anti-Doping Agency—code as a performance-enhancing drug and part of the World Anti-Doping Code. I know this is a contentious issue and that there is an issue about what should or should not be in that code. Indeed, I have many reservations about a number of the drugs in it, which I do not see as performance enhancing, but it is the best international definition at the moment for sport and is used by the International Olympic Committee.