Data Protection Bill [HL]

Lord Moynihan Excerpts

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

Moved by

[Lord Moynihan]

57: Schedule 1, page 121, line 3, leave out paragraph 21 and insert—
“21(1) This condition is met if the processing is carried out—(a) in connection with measures designed to protect sport in the United Kingdom from athletes taking performance enhancing substances listed in the World Anti-Doping Code which are undertaken by UK Anti-Doping (UKAD) or any successor body mandated by the Secretary of State as a non-departmental public body responsible for such objectives, or(b) for the purposes of national governing bodies of sports, sports clubs, institutions of higher education, schools or managers of sporting events providing information about individual athletes who may be in receipt of performance enhancing substances to UKAD or its successor body.(2) The reference in sub-paragraph (1)(a) to measures designed to protect sport in the United Kingdom from athletes taking performance enhancing substances include measures designed to identify or prevent doping including, but not limited to, requesting information about the gender of the data subject if thought to be relevant to the use of banned performance enhancing substances.(3) For the purposes of this paragraph—(a) data controllers include, but are not limited to, the UK Anti-Doping Agency, medical practitioners recognised by the British Medical Association, national governing bodies of sport, sports clubs, higher education institutions, schools and managers of sporting events;(b) data processors include but are not limited to all sports bodies and individuals appointed by the controller; and(c) data subjects are athletes competing in national junior and senior teams aged 12 years and above.”

[Lord Moynihan (Con)]

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 growing issues, 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.

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[Lord Hayward (Con)]

Is there not always a risk in naming a specific body in any piece of legislation, because government have the habit, on occasion, of changing the name of a body and you then have to change the name on the primary legislation?

[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.

[The Deputy Chairman of Committees (The Countess of Mar) (CB)]

My Lords, if this amendment is agreed to, I cannot call Amendments 58 to 62 because of pre-emption.

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[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.

[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.

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[Lord Moynihan]

I have a great deal of sympathy with and support for the noble Lord, Lord Maxton. I said towards the end of my comments that I have reservations about the Bill applying to categories such as “the spirit of sport”—that is a direct quote—and where there may be harm to an athlete from a drug. I am focused on performance-enhancing drugs, which is why I wrote that into the amendment.

Secondly, I have to say to my noble friend—I may well be wrong, and she has had the advantage of being in the United Kingdom over the past three or four days and may well have spoken to UKAD during that time—that my clear understanding is that UKAD would like to go further than what is in the Bill drafted by the Government. If I am wrong, I will be pleased to reflect on what she has said, but I suggest that it would be worth while, given that my understanding differs from hers, that we have a meeting and encourage UKAD to be present, because my clear understanding is that it would like to go further and have the powers to which I referred in the Bill.

Finally, I turn to the somewhat surprising comment that my noble friend made about spectators at a sporting event being covered. Surely when we are looking at doping in sport it is not intended to cover spectators or anybody at a sporting event. The police, St John Ambulance, stewards—where does the catch-all end? My concern derives from that reflection: this is too general. If we are to be really effective in tackling and eliminating doping in sport, let us at least make sure that the legislation that we enact through due process in both Houses is as accurate and comprehensive as possible. In that context, I echo the comments made by both the noble Lord, Lord Clement-Jones, and the noble Lord, Lord Stevenson.

With the expectation of a further meeting and returning to this at a later stage, I beg leave to withdraw the amendment.

Amendment 57 withdrawn.

Data Protection Bill [HL]

Lord Moynihan Excerpts

Report: 2nd sitting (Hansard): House of Lords
Wednesday 13th December 2017 Lords Chamber

Moved by

[Lord Moynihan]

31: Schedule 1, page 124, line 14, at end insert—
“( ) The references in sub-paragraph (1) to a body or association that is responsible for eliminating doping in sport are to be read as references to UK Anti-Doping (UKAD), its successor bodies or a body designated by the Secretary of State.( ) The Secretary of State must by regulations made by the affirmative resolution procedure specify—(a) the relationship between UKAD and other sporting bodies and associations, and (b) the powers and responsibilities of UKAD,under this paragraph.”

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[Lord Moynihan (Con)]

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 are 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 Parliamentary Under-Secretary of State, Department for Digital, Culture, Media and Sport (Lord Ashton of Hyde) (Con)]

My Lords, I am not quaking in my boots when addressing an amendment from my noble friend, first, because he is a helpful man and, secondly, because I am getting quite used to it, to be quite honest, particularly after the Digital Economy Bill.

As we heard, my noble friend’s amendment would restrict the provision in the Bill that allows anti-doping bodies to process sensitive personal data without consent to just UK Anti-Doping. It would permit other bodies to process sensitive data only if allowed by the Secretary of State. This House agrees, I think, how important sport is and that it can only continue to be successful if it is, and is seen to be, clean. It should therefore come as no surprise when I say that the Government remain fully committed to combating doping and protecting the integrity of sport. We are at one with the noble Baroness, Lady Billingham, on that.

At the moment, a large number of organisations, both domestic and international, work to prevent and eliminate doping in sport in this country in accordance with agreed international standards. UKAD, as the UK’s national anti-doping organisation, plays a vital role. But we must recognise that other bodies, some of which have been mentioned, also have important roles to play, including in particular sports’ national governing bodies. The amendment would see UKAD as the only body with automatic responsibility for processing sensitive data for the purposes of preventing doping in the UK. Other bodies would have a role only if named by the Secretary of State.

I am not convinced that this is a positive change for a number of reasons. First, it is not immediately clear to me why such an amendment is needed. UKAD’s role, and that of other sporting bodies, is set out in the national anti-doping policy, and this arrangement is largely seen to be effective, not just here in the UK but internationally. But we can never be complacent, and that is why my honourable friend the Minister for Sport, Tracey Crouch, has already commissioned a review of UKAD. That review is looking closely at UKAD’s functions, efficiency and effectiveness and has consulted widely. The findings of this review will be published early next year and will inform the revision of the UK national anti-doping policy, which will also take account of the recently published review of the criminalisation of doping. As part of this policy revision process, the Government will consult all relevant stakeholders, and will no doubt welcome discussions with my noble friend Lord Moynihan.

In addition, the arrangement outlined in my noble friend’s amendment would appear to present a number of risks. As he mentioned, the World Anti-Doping Code and the UNESCO convention set a clear framework that allows major events organisers and international federations to conduct their own anti-doping activities. Their ability to test cannot, without risking a breach of the convention, be contingent on them having obtained prior authorisation by a national Government.

Sports bodies change regularly as new sports are recognised and new bodies gain funding and manage competitions. A new round of designations would be required every time a new sporting body came into being or organised competitions or an old body changed its name. Under the system proposed by my noble friend, even a short delay in doing so could allow a drugs cheat to escape sanction by challenging the validity of the data processing undertaken by a sports body weeks, months or even years prior. That is not least because the Secretary of State’s decision to designate a body would itself be subject to judicial review. This could turn a relatively straightforward process of designation into a lengthy process of review, consultation and litigation. Similarly, if international bodies wanted to hold competitions in this country, they would, on the face of it, need to be officially designated by the Secretary of State. In a competitive marketplace, this could discourage organisers of major events from bringing their events to the UK.

To summarise, the Government believe that my noble friend’s amendment will put the UK’s status as a leading destination for clean sport at risk. It will create uncertainty in the sporting world and will be out of step with the recognised international framework that is already in place. It is widely understood that UKAD is the recognised body in the UK with responsibility for enforcing anti-doping rules. But the Bill must not be used as a tool to limit interventions by internationally recognised sporting bodies, such as the England and Wales Cricket Board, the Football Association and the Rugby Football Union. They, like UKAD, should be allowed to set and enforce anti-doping rules in sports. The fact that these bodies are not governed entirely by UKAD’s rules does not make their need to process data without consent for anti-doping purposes any less important. We are clear on that, the World Anti-Doping Code is clear on that, and the bodies themselves are clear on that.

Indeed, I have a statement from four of our leading sports bodies: the Football Association, the Rugby Football Union, the England and Wales Cricket Board, and the British Horseracing Authority. They are not speaking with different voices. This is a joint quote, which they have authorised me to announce. They say:

“We welcome further discussion with all parties on this issue but do not believe that this Amendment, that has not been discussed with or subject to any consultation with our organisations, is the right way to proceed today”.


In answer to the noble Viscount, Lord Falkland, who asked about the horseracing authority, I am afraid he should direct his question to my noble friend Lord Moynihan, because it is his amendment that would change the current system. Therefore, while I understand the desire of my noble friend to assist in the fight against doping, which we all support, I do not believe that the Bill is the proper vehicle to achieve it; nor do I believe that my noble friend’s amendment would in fact achieve it.

Let me be clear: if my noble friend or the noble Lord, Lord Stevenson, want to keep talking about anti-doping in general, I am very happy to do so, as is my honourable friend the Minister for Sport; I have already said that. But the Government have spent a great deal of time working with UKAD and sports bodies to design paragraph 23 of Schedule 1, and I have heard nothing in the debates in Committee and today that would suggest that we should alter our view before the review of UKAD is complete. On that basis, I urge my noble friend to withdraw his amendment.

[Lord Moynihan]

My Lords, I am grateful to all noble Lords who have contributed. I will respond to the Minister first. I was disappointed that he did not respond to the suggestion of the noble Lord, Lord Clement-Jones, which I also touched on, namely, that it was important, if at all possible, to take away this amendment and consider it in greater detail so that the Government could bring it back at Third Reading. The Government have decided not to do so, and in so doing they have argued the following points.

The first was that there has been inadequate consultation—for example, no discussion between the BHA and myself. If I may respond to the noble Viscount, Lord Falkland, I had a conference call with, I think, four BHA people last Friday to discuss in detail the consequences of the proposed amendment. It was a constructive and helpful discussion. It was very important to them that they did not come under the umbrella of UKAD, and they would not. Amendment 31 says very specifically that the references are,

“to be read as references to … UKAD … , its successor bodies or a body designated by the Secretary of State”.

They asked me whether that would be a cumbersome process, and I said, “Certainly not”. The Secretary of State could respond to a letter pretty much immediately by saying, “Continue the good work that you’re doing”. That would be absolutely fine under the amendments I have tabled to Schedule 1.

This would apply to any organising group that exercises authority in anti-doping in this country outside UKAD, which covers the wide majority. Indeed, UKAD can test any athlete in this country, if it so wishes, at any level of competition. But there are organisations which will operate outside UKAD, for example the international federations and the International Olympic Committee. The other organisations which the noble Lord mentioned operate within UKAD in any event. Organisations such as the Football Association and the Rugby Football Union have a relationship with it to continue its good work, not least because those are Olympic sports, so they are covered in any event by the phrase,

“a body designated by the Secretary of State”.

I want further to assist my noble friend the Minister by suggesting that, instead of simply leaving it at that, every single point that he made could be covered by the regulations that he is being asked to bring forward under the Bill. There would be no uncertainty; there would be complete clarity, and we would have the opportunity to address those points in detail prior to that secondary legislation coming forward.

Why was it important to amend a general catch-all clause on sport to deal with these issues? It was important so that the BHA knew its position and could continue the good work with minimum bureaucracy, simply by a letter recognising that it continues the good work. I have heard nobody—not from the Bill team, which I met, not the policy advisers from DCMS and not the BHA, which I had a long conference call with last Friday—mention that there is anybody who seeks to change the way in which the BHA does excellent work in this area. It would simply be recognised on the face of the secondary legislation and so it should be—

[Lord Ashton of Hyde]

Does my noble friend not accept, then, that if the situation is exactly the same as now, he is proposing a new process which will possibly be subject to litigation and achieve exactly the same status that we have today?

--- Later in debate ---

[Lord Moynihan]

First, there is no evidence whatever that it is subject to litigation. If the Secretary of State—

[Lord Ashton of Hyde]

I am sorry to interrupt again. Of course there has not been any litigation because the system that my noble friend proposes has not been put in place.

[Lord Moynihan]

But there are no grounds for litigation. If the BHA is doing good work in anti-doping then, in the context of this paragraph, all that is being done is for that to be recognised within the legislation and by the Secretary of State in designating the BHA to continue its good work. Who would wish to litigate on that? Nobody is changing any relationship between the BHA, and those who work within it, and the excellent anti-doping policy that it currently runs. I am sure the Government would not want to change that.

The reason why this should be on the face of the Bill and in the secondary legislation—the regulations—is that this is of serious importance. We are asking athletes to give up a lot of personal data, and we should protect them when giving up personal data. It is important and right for an anti-doping policy that they should do so, but its importance should be recognised and my noble friend the Minister did not even mention it in his response. It is about the data management.

I conclude by saying simply this, and I will happily give way to my noble friend the Minister. If he is prepared, as I hope he is, to follow the initiative of the noble Lord, Lord Clement-Jones, which I fully support, on improving the wording of the amendment, I stand absolutely ready to find consensus with all governing bodies, the Government, the Bill team and everybody else who is interested in the subject, including all Members of your Lordships’ House, in order to find an improved amendment. I think the amendment works perfectly satisfactorily, and I have just tried to explain that to my noble friend and the House, but I am sure it could be improved by further discussions. Is my noble friend the Minister willing to take it away and bring it back at Third Reading? If he is, I will happily give way.

[Lord Ashton of Hyde]

I have to be very clear about what we are doing, particularly as this is the first group on our first day on Report. To be absolutely clear, I am not content to return to this issue at Third Reading of the Data Protection Bill because we have heard nothing that would suggest to us that paragraph 23 would benefit from further consideration at this time. I have to repeat that the wording on the face of the Bill was drawn up—this is a quote from the governing bodies that I mentioned—

“in close consultation with the sports governing bodies and the Sport and Recreation Alliance and we support the original wording as the right way forward”.

[Lord Moynihan]

I hear what the Minister said. We have had many discussions with different members of governing bodies and others who have argued that this provision could be improved. Indeed, the noble Lord, Lord Stevenson, and I sat opposite UKAD and governing bodies last Monday, so what the right hand in some of these governing bodies is doing is clearly not what the left hand is doing. I think this amendment is a significant improvement that protects the rights of individual athletes. That is what we should be doing in this Bill because it is about data management. Regretfully, because I hoped that the Minister would take this away and come back with a consensus on something better, I wish to test the opinion of the House.