Data Protection Bill [HL]

Lord Maxton Excerpts

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

[Lord Moynihan]

I hear what my noble friend says. I recognise that the wording may need to recognise any successor body to UKAD, but the importance of putting UKAD in the legislation now arises from the fact that it is an arm’s-length body accountable to Parliament; that it is honour bound—and, indeed, legally bound, at the moment, through the Secretary of State—to deliver the requirements of the UNESCO International Convention against Doping in Sport; and it is the recognised and funded body in this country. It would be possible to add “and to any successor body” to my amendment.

[Lord Maxton (Lab)]

My Lords, how does the noble Lord define sport? That is a major question. For instance, in snooker, which I believe is defined as a sport, it is recognised that beta blockers are a banned substance whereas in other sports they would not necessarily be banned. Dancing is not defined as a sport although it demands very much more activity than either darts or snooker, which is a sport.

[Lord Moynihan]

The noble Lord raises an issue that could well keep the Committee late into the evening and indeed has taxed the minds of many individuals both inside and outside this Chamber. For example, if we consider sport to require physical activity and competition, gardening at the Chelsea Flower Show might well be covered by that broad definition. I hope that my noble friend in sport, and indeed the noble Lord, will forgive me if I do not pursue that path. However, I did say at the outset that there is an important issue here in that we need to define what the Government mean by sport in their amendment, because it is unclear to many people outside this Chamber—and oft debated—what exactly a sporting activity is.

I shall close by touching on the performance-enhancing substances listed in the World Anti-Doping Code and why I believe it is critical that we should cover those. I have reservations about exempting sports bodies from requiring sensitive personal data from athletes simply because they are deemed to be “contrary to the spirit of sport” or, while legal, “could cause harm to an athlete”. My objective has always been focused on tackling doping in sport and I believe that it may go too far to seek an exemption for these additional categories. However, I remain open to persuasion by the Minister on this issue and will listen carefully to both UKAD and to the UK governing bodies of sport if they feel otherwise. If so, in a future amendment we will need to be specific about exactly what we mean by the “spirit of sport” by defining it in primary legislation and being clear about who determines what does cause “harm to an athlete”, and why such protection from the GDPR rights is appropriate in that context.

On the final question of gender, this is a probing amendment since the current position in UK law is that competitive sports men and women who have undertaken a change in their gender are currently prohibited from participating in certain competitions under the Gender Recognition Act 2004. As a result, an athlete who changes their gender would be subject to the onerous sanctions in this Bill if in the process of any medical treatment to assist their change-in-gender process they used banned performance-enhancing substances. This is not unusual where testosterone is prescribed.

In conclusion, I hope that this is the beginning of a legislative path where those who knowingly cheat fellow athletes out of their careers, recognition, selection or financial gain by taking a cocktail of banned drugs are recognised for what they are doing—namely, committing fraud. We also believe that tailor-made legislation should be put in place to criminalise that activity, as it is in every other sphere of life. UK Anti-Doping has the national duty to ensure that all sports comply fully with anti-doping policies and procedures. Under its new chair, Trevor Pearce, its new director of communications, Emily Robinson, and its CEO, Nicole Sapstead, I believe that an effective team is now in place who recognise that a globally leading NADO has to be well resourced, truly independent of the governing bodies of sport and granted additional powers. My amendments to the Bill begin to provide it with the tools it needs and I believe that it is best positioned to lead the campaign. This legislation should make it unequivocally clear that that is the case because that is the best way of protecting the interests of athletes. I beg to move.

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[Lord Stevenson of Balmacara]

My Lords, once again your Lordships’ House is very grateful to the noble Lord, Lord Moynihan, for raising this issue and, as the noble Lord, Lord Clement-Jones, said, for doing so in such a comprehensive way. It is in the context of the much wider range of issues that the noble Lord, Lord Moynihan, has been pursuing regarding how sport, gambling and fairness are issues that all need to be taken together. We have been supporting him on those issues, which need legislation behind them.

Noble Lords may not be aware that we have been slightly accused of taking our time over the Bill. I resist that entirely because we are doing exactly what we should be doing in your Lordships’ House: going through line-by-line scrutiny and making sure that the Bill is as good as it can be before it leaves this House. We saw the noble Lord, Lord Moynihan, at the very beginning of Committee and he then dashed off to Australia to do various things, no doubt not unrelated to sport. He has had time to come back and introduce these amendments—but, meanwhile, the noble Lord, Lord Clement-Jones, and I were debating who was going to pick the straw that would require us to introduce them. We were very lucky not to have to do so because they were introduced so well on this occasion.

Our amendment in this group is a probing amendment that picks up on some of the points already made. It raises the issue of why we are restricting this section of the Bill to “sport”—whatever that is. If we are concerned about performance enhancement, we have to look at other competitive arrangements where people gain an advantage because of a performance-enhancing activity such as taking drugs. For instance, in musical competitions, for which the prizes can be quite substantial, it is apparently possible to enhance one’s performance—perhaps in high trills on the violin or playing the piano more brilliantly—if you take performance-enhancing drugs. Is that not somehow seeking to subvert these arrangements? Since that is clearly not sport, is it not something that we ought to be thinking about having in the Bill as well? I say that because, although the narrow sections of the Bill that relate to sport are moving in the right direction, they do not go far enough. As a society, we are going to have to think more widely about this as we go forward.

[Lord Maxton]

I am slightly confused by what is a performance-enhancing drug. We have seen athletes and other sportsmen banned in this country for taking what I would call non-enhancing drugs: in other words, cannabis or whatever it might be. In that case they are not performance-enhancing drugs but the reverse of them—yet people can be banned even if taking them is deemed legal in the country where they do so. Even if it is legal to take cannabis, the drug can still be deemed a banned drug by the anti-drug authorities.

[Lord Stevenson of Balmacara]

My noble friend is quite right. He has obviously been careful to make sure that he has no personal experience of what he talks about and I would like to make it clear that I have none, either. But it is a very tricky area and we are wrong just to dance around it with the idea that we are somehow doing something important in relation to a particular aspect of drug enforcement.

To do this properly, we need a much clearer approach. I realise that I am in danger of rising above the detail here and going back to my high plain of intellectual approach to the Bill for which I have already been criticised—but I hope that when the Minister responds we can get somewhere on this. A meeting on the particular narrow points raised by the government amendment and by the noble Lord, Lord Moynihan, is required. It would be helpful to see the context in which this might operate. I would be happy to attend such a meeting should that be the case.

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[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.

[Lord Maxton]

As a result of the answer given to me by my noble friend, I have looked this up. It says:

“Use of recreational or social drugs is banned in sport”,


even though they may be,

“detrimental to sporting performance and result in a positive test result weeks later”.

It is not just drugs that enhance performance that are banned but those which do not enhance performance.