Data Protection Bill [HL] — House of Lords, 2017-11-13
Topic: Domestic Commerce
Colin Moynihan (Conservative, Centre-right): 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.