Culture, Tourism, Europe and External Affairs Committee
The ‘UEFA European Championship (Scotland) Bill’, hereafter ‘the Bill’, was introduced, on 24 September 2019, in the Scottish Parliament by Fiona Hyslop MSP, Cabinet Secretary for Culture, Tourism, Europe and External Affairs. The Culture, Tourism, Europe and External Affairs Committee ('the Committee') was designated as the lead Committee on the Bill.
The Bill contains a range of provisions which, in broad terms, seek to protect the commercial rights of the ‘Union of European Football Associations’ (UEFA), and its partners, in relation to 2020 European Championship football matches taking place at Hampden Park, Glasgow. The UEFA European Championships normally take place in one, or possibly two, ‘host’ countries. The EURO 2020 Championships are unusual in that to mark the 60th Anniversary of the Championships the event will take place across twelve-member associations of UEFA. The other host cities of EURO 2020 are Amsterdam, Baku, Bilbao, Bucharest, Budapest, Copenhagen, Dublin, London, Munich, Rome and Saint Petersburg. In total, four 2020 European Championship matches will take place at Hampden Park between 15 and 30 June 2020i.
The Bill consists of the following main components—
To prohibit the unauthorised sale of Championship tickets in excess of face value or with a view to making a profit
Prohibiting unauthorised street trading within an ‘event zone’ in Glasgow when such a ‘zone’ is in operation
Prohibiting unauthorised advertising within an ‘event zone’ when such a ‘zone’ is in operation
Creating criminal offences for ticket touting, unauthorised street trading and advertising, and
Providing for the designation of enforcement officers who would be given powers to enforce these offences
The Policy Memorandum to the Bill summarises the purpose of the Bill as being to—
...help ensure successful delivery of the Championship by meeting the commitments required by UEFA in relation to protection of commercial rights for event sponsors during the event. The legislation will put in place restrictions on ticket touting, street trading and advertising. It does not make provision in relation to any of the broader preparations that are underway to host the event for which no additional legislative provision is required1.
Section One of the Bill provides for the provisions of the Bill to apply to an ‘event zone’ within Glasgow. The ‘event zone’ would consist of any of three possible geographic zones which are proposed to be the Hampden Park zone, the George Square zone, and the Merchant City zone. The geographic coverage of the ‘event zone’ is proposed to be defined in subsequent regulations should the Bill be passed. The event zone is considered later in this report.
The Policy Memorandum to the Bill also notes that the drafting of the Bill draws upon the experience of the Glasgow Commonwealth Games Act 2008, albeit the scope of this Bill is narrower than that of the 2008 Act. For instance, the 2008 Act contained provisions dealing with compulsory purchase of land, transport measures and financial support for the Commonwealth Games organising committee. The Policy Memorandum notes that the Scottish Government considers that the approach taken in the Bill is a “proportionate approach given the comparative scale of the event”2. The Policy Memorandum observes, in this regard, that the Bill seeks to—
...balance providing reassurance to UEFA and its sponsors that commercial rights have been protected in key areas while minimising the impact on local businesses and allowing them to benefit from the economic opportunity that EURO 2020 represents2.
The organisation of the EURO 2020 event in Scotland is managed by a ‘Local Organising Committee’ (LOC) which has been established to deliver the event. The LOC consists of representatives from the Scottish Football Association, Scottish Government, Glasgow City Council, Hampden Park Limited, Visit Scotland and Police Scotland.
The Policy Memorandum to the Bill notes that the requirement for primary legislation has “arisen reasonably recently”1. Since the Scottish bid for EURO 2020 matches was successful in September 2014, the Policy Memorandum states that the Scottish Government “had been working to assure UEFA that the existing regulatory framework in Scotland would be sufficient to protect commercial interests”2. Derek Bearhop, Head of Events Strategy and Delivery at the Scottish Government, commented in this regard that—
The Scottish Government did not initially expect that additional legislation would be required in order to deliver the event. However, as UEFA’s requirements became clearer, it was evident that primary legislation would be necessary to provide the level of protection that UEFA sought, and to ensure that our arrangements were consistent with those for the other venues around Europe3.
In evidence to the Committee, UEFA made clear that during the bidding process that a potential need for primary legislation was made clear in the original bid documentation. Following the successful Scottish bid, UEFA provided feedback to the LOC which included “a reference to the need for improved legislation, but the options were left open to the host city”4. UEFA emphasised to the Committee that it does not mandate the legislative approach taken by host cities to meet their contractual requirements to host EURO 2020 matches. Michael Short, legal counsel for UEFA, commented on the approaches being taken across the twelve host cities in the following terms—
For some host countries, primary legislation has been the obvious and / or the lowest friction route. In other countries, secondary legislation, municipality decrees or changes to local authority byelaws are being utilised. In some other places, it is simply a case of using existing laws but reallocating resources in a different way and / or utilising temporary powers.5
Lucy Carmichael, the Scottish Government Bill team leader, detailed the approach being taken by other host cities to meet UEFA requirements as follows—
Scotland, Russia, Italy, Azerbaijan and Ireland have introduced primary legislation, and other countries, including England, will introduce secondary legislation. The remaining six hosts will reach the required levels of protection via other means6.
Ultimately, UEFA wrote to the LOC in April 2019 to confirm that UEFA considered that primary legislation was required for the EURO 2020 matches at Hampden Park. Nonetheless, Glasgow City Council (GCC) made clear to the Committee that GCC had been aware that the existing legislation in Scotland would not be sufficient to meet UEFA’s requirements earlier in the process. Neil Coltart, Group Manager (Trading Standards) at Glasgow City Council, observed that there were “shortcomings in the routine consumer protection legislation” and that these “shortcomings were made clear over a considerable period of time”7. The SFA also shared this understanding and noted that a potential need for primary legislation “was pulled up in UEFA’s evaluation report in August 2014”8. Andrew Niven, Project Leader at the SFA, observed that—
The Scottish Government was aware that it might well be a requirement. We wanted to fully investigate whether there were opportunities to implement the measures in a different way, but we were clear, as were Scottish Government officials, that a bill might ultimately require to be implemented8.
The Minister for Europe, Migration and International Development, Ben Macpherson MSP, was keen to emphasise that the correspondence from UEFA in April 2019 was the point when it was made clear that primary legislation was required. He stated that—
through dialogue and examination by all parties, which included, of course, the Scottish Government, it became clear in April – this was demonstrated in correspondence by letter on 1 April from UEFA to the SFA and other parties – that primary legislation is the most effective and robust way to meet UEFA’s requirements as the rights holder and the requirements of the host city agreement, and to ensure that the ticket touting offence is effective in practice and protects people to the extent that we want. Once that position crystallised, the Scottish Government moved swiftly to introduce the bill10.
The Committee considers it surprising that it took until April 2019 for the Scottish Government to recognise that primary legislation was necessary to underpin arrangements for hosting EURO 2020 matches. This is particularly the case given that partner organisations on the EURO 2020 Local Organising Committee were clearly aware of deficiencies in primary legislation that would require to be addressed via primary legislation in order to meet UEFA’s requirements since 2014.
The Committee considers that the LOC, including the Scottish Government, should not have required a formal letter from UEFA to come to the realisation that primary legislation was necessary. It is not unreasonable to expect that the LOC should have had enough experience to anticipate the need for legislation.
The Committee notes that the Scottish Government considers the Commonwealth Games Act 2008 to represent a ‘gold standard’ in terms of legislation for major events. The Committee notes that the 2008 Act was passed six years in advance of the 2014 Commonwealth Games.
The Committee considers it regrettable the impact that the late realisation that primary legislation was necessary has had upon the ability of stakeholders to engage in scrutiny of the Bill and upon the parliamentary timetable for scrutiny of the Bill.
As a consequence of the late realisation that primary legislation was necessary, the timetable for parliamentary scrutiny of the Bill has, consequently, been significantly constrained in order for the primary and secondary legislation to be in force in advance of the tournament taking place. This has significantly limited the time available to seek views on, and scrutinise, the Bill. For instance, due to the scrutiny timetable the Committee issued a call for evidence on the Bill which only allowed respondents eleven days to respond.
The Committee wishes to sincerely thank all those who provided oral and written evidencei on the Bill particularly given the severely constrained timetable for scrutiny of the Bill.
The Delegated Powers and Law Reform Committee reported on the Bill on 3 October and concluded that “it is content with the delegated powers provisions contained in the Bill”1. The Finance and Constitution Committee had no issues to raise with regard the Financial Memorandum to the Bill. The Financial Memorandum to the Bill is considered later in the report.
The Bill seeks to make it an offence to ‘tout’, i.e. to sell a ticket for a EURO 2020 match, at a price above the ‘face value’ of the ticket. The ticket touting provisions in the Billi essentially replicate those in the Commonwealth Games Act 2008 with two notable exceptions. Firstly, the Bill would result in an offence having been committed whether touting is done in person or via electronic methods. In this sense, the Bill seeks to take account of technological change since 2008 to ensure that touting via electronic means such as, public internet sites or private electronic messaging applications, would constitute an offence. Secondly, in recognition of technological change, the Bill also makes it an offence to tout a ticket whether or not the offence is committed in Scotland.
The offence of ticket touting applies to all EURO 2020 matches and not just to tickets for EURO 2020 matches at Hampden Park. Where a ticket touting offence is committed, the person convicted of the offence would be subject to a fine not exceeding £5,000. In written evidence to the Committee, the Crown Office and Procurator Fiscal Service (COPFS) noted that the COPFS received four reported cases for the offence of ticket touting at the 2014 Commonwealth Games.
Regarding the need for legislation in relation to ticket touting, the Policy Memorandum comments on existing Scottish legislation in this area that—
Scots law restricts ticket touting through section 55 of the Civic Government (Scotland) Act 1982. This does not specifically criminalise the touting of tickets but rather causing annoyance, either to persons being approached to purchase tickets, or any other person who has reasonable grounds to be annoyed by the selling operation. The offence can be committed only by touting in a public place. Furthermore, the offence arises only where touting has continued in spite of a request from a constable in uniform that the tout desists. The Civic Government (Scotland) Act 1982 is not truly concerned with the prevention of ticket touting but rather the prevention of a public nuisance. As such it is incapable of satisfying the policy intention1.
The need for ticket touting provisions to be included in the Bill is supported. The SFA and Hampden Park Ltd. supported these provisions on the grounds that this would provide a “deterrent against ticket touting (online and in person), whilst supporting fair access to tickets for fans and helping to ensure public confidence in the event”2. Similarly, the Association of Tartan Army Clubs commented that—
It is good to note that Police Scotland will have the appropriate power to act, and that this will be made a criminal offence. The fines / punishment should be of such a level that individuals are discouraged from thinking they can still risk touting3.
Section 2(4) of the Bill states that “the touting offence does not apply in relation to acts done by UEFA”. The Committee questioned why the Bill appeared to provide an opt-out for UEFA in relation to the ticket touting offence. UEFA sought to clarify its position in relation to the provisions in the Bill as follows—
UEFA only seeks an exemption from the ticket touting offence for the purposes of ensuring that the initial sale of tickets by UEFA (or any resale through UEFA’s official resale platform) is not caught by the offence and, therefore, prohibited. UEFA is the sole source of all official ticket sales for UEFA EURO 2020. UEFA has absolutely no intention of ‘touting’ tickets in the usual sense of that phrase4.
In oral evidence, Michael Short from UEFA provided additional clarification—
UEFA is the sole seller of any tickets for UEFA 2020. It does so at a profit – we sell our product. For that reason, the wording of the bill may regard a sale by UEFA as a sale for profit, which would then be caught by the definition of touting in the bill, which refers not only to sale above face value, but also to a sale with a view to making a profit5.
When further questioned on whether there was any scenario in which UEFA would sell a EURO 2020 ticket at more than face value, Michael Short stated—
my answer is no. The face value is the face value. We are the original seller of the ticket and we will always sell it at face value. Even through the resale platform, a ticket will be resold to another spectator at the same price. That is part of the terms and conditions of the resale platform6.
The Committee questioned the Minister on this issue. The Minister considered that the provisions in the Bill were necessary on the grounds that it is “required to allow UEFA to make profit both from initial sales and any resale through its reselling arrangement”7. Specifically, the Minister cited Section 2(2)(b) as being necessary to allow UEFA to make a profit whilst accepting that UEFA would be selling tickets at face value. Following further questioning of this position, the Minister stated—
If…the committee feel that the legislation is not clear, we will certainly consider that when we come to stage 2. However, I think that we are both clear that UEFA does not seek to ticket tout and that there needs to be consideration of the mechanisms by which UEFA makes a profit8.
The Committee recognises that UEFA has no intention of engaging in ticket touting. Nonetheless, the Committee considers that the Bill, as currently drafted, could give the impression of providing a special status to UEFA with regard to ticket touting. Given that the policy intention is to make ticket touting an offence then this should apply to all. Accordingly, the Committee recommends that the Scottish Government reflects on whether amendments at Stage 2 therefore are necessary.
There were further issues raised in evidence to the Committee with regard to ticket touting. Firstly, the SPF raised concerns that tickets which were sold or auctioned for charitable purposes, at above face value, could be considered to be an offence. Calum Steele, from the SPF, observed—
it is not unusual for benefactors to bequeath tickets for events such as cup finals as part of charitable fundraising for a completely unrelated entity. That would appear to be touting, in that it seeks to make a profit for the charity, albeit not for material gain for an individual9.
UEFA made clear, in written evidence to the Committee, that “the criminalisation of a charitable auction of a ticket (via a ticket touting offence) is not a requirement of the Rights Protection Programme”10. In oral evidence, Michael Short of UEFA, emphasised that UEFA is able to put in place ‘special tickets’ to enable tickets to be sold for charitable purposes. Mr Short stated—
We would hope to ensure that the bill would never trigger any form of criminal offence on a charity seeking to do good work by auctioning off a ticket – that is our intention. However, the ticket that is used for that option, in order to abide by the ticketing terms and conditions, would have to be a special ticket provided by UEFA that was able to be transferred to third parties11.
In subsequent correspondence12 with the Committee, the Minister confirmed that the Scottish Government would make an exception to the ticket touting offence for the charitable auction of tickets. He stated that—
We are currently looking at how that can best be delivered in practice and think that it is more likely this would be included on the face of the Bill as an amendment, subject to Parliamentary approval. As highlighted by UEFA in its evidence, any charity wishing to auction tickets in this way should contact UEFA in order to ensure that the tickets will be valid for entry12.
The Committee welcomes the Scottish Government’s commitment to make an exception to the ticket touting offence for the charitable auction of tickets. The Committee recommends that the Local Organising Committee should publicise the measures put in place by UEFA to facilitate the sale or auction of tickets for charitable purposes.
Lastly, in relation to ticket touting, the issue of the enforceability of the ticket touting provisions with regard to the online sales of tickets was raised by the Law Society of Scotland and the SPF. For instance, Calum Steele of the SPF observed that—
The nature of online crime means that tackling it is resource intensive and the return is minimal. Putting provisions on touting in the bill is laudable, but I add a health warning that we should not necessarily expect miracles to be performed, either by enforcement officers or by the Police Service of Scotland, in bringing to heel ticket touts that operate online14.
The Committee would welcome the view of the Scottish Government with regard to the enforceability of the online ticket touting provisions in the Bill.
The Bill seeks to prohibit unauthorised outdoor trading, in the ‘event zones’ when these are in operation, unless the outdoor trading is done in line with regulations to emanate from the Bill or is carried out by UEFA. The ‘trading offence’ would result in a person who has conducted such an offence being “liable on conviction on indictment to an unlimited fine or on summary conviction to a fine not exceeding £20,000”1. The Bill would not allow licensed street traders to trade in the event zones when operational. The Policy Memorandum to the Bill notes that there are currently only licensed street traders operational within the proposed Hampden Park event zone. The Bill requires Glasgow City Council to offer alternative trading arrangements to licensed street traders who are affected by the Bill’s provisions. With regard to the need for legislation to deal with this issue the Policy Memorandum comments—
Before concluding that there was a need for primary legislation, the Scottish Government has considered existing powers and discussed these with UEFA. Current legislation only relates to street trading/peddling, as controlled in Scotland under the Civic Government (Scotland) Act 1982 and the Pedlars Acts. UEFA requires the prevention of street trading. The Civic Government (Scotland) Act 1982 is generally not sufficient to meet the key aims of the policy, largely due to the inability to suspend current licences in the proposed event zones on particular days and limit trading to approved event sponsors. The penalties associated with these offences are also less likely to discourage attempts to target the Championship as they are set at a maximum of level 4 on the standard scale (currently £2,500). Therefore, relying on current legislation on street trading would not deliver the requirements specified by UEFA to co-host the Championship2.
The SFA and Hampden Park Limited recognised, in written evidence, that the Bill would mean that “some licensed street traders will be displaced”3 but emphasised the wider benefits that the EURO 2020 matches would bring to Glasgow. Glasgow City Council commented on the proposed alternative trading arrangements in the following terms—
The commitment [in the Bill] is stronger than the duty in the Commonwealth Games Act which stated that the local authority had to work with existing traders.
Traders will still be required to comply with the licensing application process should they wish to trade in an alternative location. However the fee that would usually be associated with applying for a temporary trading licence (£62) will be waived by Glasgow City Council and these applications will be prioritised for processing4.
Michael Short, from UEFA, commented that "from a rights protection programme and UEFA point of view, we very much hope that there is lots of busking to enhance the atmosphere"5.
There were relatively few issues raised with regard to the street trading provisions in the Bill. The Committee did query whether charity collectors and buskers conducting their activity within an operational event zone would be committing a street trading offence. The Minister stated, in oral evidence, that both activities would be made exceptions, via regulations, to the street trading offence6. In subsequent correspondence with the Committee, the Minister provided illustrative trading regulations which would “permit busking without authorisation”7. With regard to charity collections, the Minister stated—
At present, I expect that charity collections in the zones will be authorised under regulation 7. Further discussions with Glasgow City Council about how best to manage this process are underway8.
The Committee welcomes the street trading provisions in the Bill and the Scottish Government’s commitment to make charity collections and busking exceptions to the street trading offence.
The Bill seeks to make it a criminal offence to undertake unauthorised advertising in the event zones when these are operational unless the advertising is authorised by regulations or carried out by UEFA. This proposed ‘advertising offence’ would result in a person convicted of such an offence being “liable on conviction on indictment to an unlimited fine or on summary conviction to a fine not exceeding £20,000”1. The Policy Memorandum notes that this level of fine is equivalent to that for similar offences under the Glasgow Commonwealth Games Act 2008. With regard to the need for primary legislation in this area, the Policy Memorandum states—
Before concluding that there was a need for primary legislation, the Scottish Government considered using existing powers and discussed these with UEFA. The Town and Country Planning (Scotland) Act 1997 and the Town and Country Planning (Control of Advertisements) (Scotland) Amendment Regulations 1984 provide some control over advertising. However, these are inadequate to meet UEFA requirements to co-host the Championship as they are too limited in the degree of substantive control provided. Ambush marketers are becoming particularly innovative in finding ways to associate their brand, in an unauthorised fashion, with large-scale, high-profile events. Although the regulations give local authorities the ability to require the removal of illegal advertisements on private property, the removal process is too slow to enable Glasgow City Council to deal effectively with advertisements installed during the Championship2.
The Policy Memorandum notes that those most likely to be impacted by the proposed advertising offence would be media owners and businesses, such as shops, pubs and restaurants within the event zones. In evidence to the Committee, the Advertising Association (AA) noted that the provisions were similar to the 2008 Act and that the AA had “no specific issues at the time of the Commonwealth Games”3. The evidence that the Committee received in this area mainly related to the need for exceptions to the advertising offence and for the regulations and guidance associated to the advertising offence to be made available as soon as possible. This would enable as much time as possible for affected parties to prepare. Examples of issues raised with potential exceptions to the advertising offence included advertising on buses, taxis and in print media.
In response to the evidence received by the Committee, the Scottish Government wrote to the Committee and set out a wide range of ‘proposed exceptions to advertising regulations’ that the Scottish Government intends to make4. These proposed exceptions addressed potential exceptions raised with the Committee. In subsequent correspondence5, the Minister provided illustrative regulations including regulations dealing with advertising. The illustrative regulations provided by the Minister are considered later in this report.
The Committee welcomes the advertising provisions in the Bill and also the list of proposed exceptions to the advertising offence.
The Committee notes that much of the detail regarding the proposed advertising offence will be contained in regulations and associated guidance. The Committee welcomes the Scottish Government's intention to consult on the draft regulations and guidance.
The Bill sets out, in sections 16 to 28, a range of enforcement mechanisms which are intended to provide a means of enforcing the advertising, street trading and ticket touting offences contained in the Bill. In addition to setting out a range of enforcement powers, the Bill also provides for the creation of ‘enforcement officers’ to implement these powers. The approach taken in the Bill with regard to enforcement replicates that in the Commonwealth Games Act 2008.i
Section 16 of the Bill provides for Glasgow City Council to designate ‘an inspector of weights and measures’ as an enforcement officer and also other individuals who meet criteria to be specified by Scottish Ministers in regulations. Aside from following the approach taken with the 2014 Commonwealth Games, the rationale for designating enforcement officers was also considered to be a practical response to resource constraints. Lucy Carmichael, from the Scottish Government Bill team, summarised the rationale in the following terms—
From a practical perspective, it should also reduce additional resourcing requirements on Police Scotland during the period of the championships. We looked at whether it would make sense to give the powers solely to Police Scotland, which would be different from what happened for the Commonwealth games. However, that would have created an additional burden for Police Scotland, and we thought it would be possible for trading standards officers to carry out that role in an appropriate way1.
The SPF expressed concern, in evidence to the Committee, regarding this approach and stated that—
The SPF thinks that it is very important to maintain the distinction between police officers and others who might be afforded a distinct form of police-like powers - not least because of the unique role that police officers hold in society and the standards to which they are held to account.2
The SPF also emphasised that its concerns with the enforcement officer approach “are not wholly different from those that were highlighted at the time of the Commonwealth games”3.
In contrast, GCC emphasised the experience of Trading Standards Officers within the Council in dealing with major events. GCC stated that—
The Trading Standards Team works closely with Police Scotland on a regular basis and across a large number of events including the Commonwealth Games 2014, European Championships 2018 as well as TRNSMT and other concerts / sporting events. There have been very few issues during these operations and those that have occurred were discussed and resolved promptly. It is the intention that operation planning meetings would be established between the teams for EURO 2020 and take place frequently during the implementation of legislation and throughout the Tournament.4
The Committee sought clarification as to exactly who within GCC would be designated to be an enforcement officer as the Bill refers to an ‘inspector of weights and measures’ being appointed to this role. Neil Coltart provided the following explanation—
trading standards staff in Glasgow include people who are not inspectors of weights and measures. There are 20-odd staff within the trading standards section in Glasgow, and roughly half of them are inspectors of weights and measures.5
Mr Coltart went on to clarify that his expectation would be that those appointed would be local authority staff “within the trading standards and consumer protection public regulation field”6[1]. As noted above, section 16(2)(b) of the Bill also provides for Scottish Ministers to specify criteria, in regulations, for the appointment of enforcement officers. The Scottish Government stated that the purpose of this sub-section would be to enable suitable staff from other local authorities to be appointed to this role, if necessary, and observed that—
The Scottish Government is proposing that all enforcement officers are local authority members of staff and would be happy to consider whether that could be included in the Bill if that would provide reassurance to the Committee. In the first instance, enforcement officers are expected to be drawn from the Trading Standards section of Glasgow City Council.7
The Committee notes that it is intended that enforcement officers will all be local authority members of staff within trading standards and consumer protection roles and drawn from Glasgow City Council in the first instance and potentially from other local authorities. The Committee welcomes the offer from the Scottish Government to bring forward amendments at Stage Two, to make this position more explicit within the Bill and recommends that these amendments are brought forward at Stage 2.
Section 19 of the Bill deals with the power of an enforcement officer to enter and search properties. Section 19(2) states that—
An enforcement officer may take to a place entered by virtue of this section any other person, or any equipment, as may be reasonably required for the purposes of assisting the officer.
The SPF expressed concern at this sub-section on the grounds that “it provides enforcement officers with the unfettered ability to call upon assistance from any other person”8. Neil Coltart, from GCC, sought to clarify the purpose of this sub-section by providing examples of the forms of assistance that enforcement officers may wish to obtain from other person(s) who are not police officers. He remarked that—
The easiest example that I can give you in which it is suggested that there is a breach of not only the provisions concerned, but the Trade Marks Act 1994. In that case, we might ask someone from the brand to come and identify, for example, that the product is a counterfeit pair of Armani jeans or whatever. We would bring such technical experts only rarely and, given the fluidity of enforcement, we would have to proceed on a case-by-case basis.
Another example involves something that we had to deal with during the Commonwealth games, when someone had put a banner way above reasonable-access ground level. We had to bring in someone who could use high-access facilities such as a cherry-picker to provide assistance. Expert technical help would be required in such a specific and carefully managed and controlled set of circumstances.9
The Scottish Government sought to clarify the circumstances when an enforcement officer may seek assistance from another person in the following terms—
These provisions do not allow enforcement officers to call upon others to help with general enforcement activity on a routine basis. Instead, the intention of these provisions is that an enforcement officer should be able to access specialist skills or equipment that may be required in particular situations. The Scottish Government views that the types of people who might reasonably be called upon to assist enforcement officers in carrying out their duties could include a locksmith, an abseiler (for example to remove advertising affixed to a building), someone operating a hydraulic crane (again to remove advertising from a building or other structure), or a waste disposal company (where destruction of property took place as a last resort). This is expected to help ensure that any breaches of the restrictions can be addressed quickly and may help to reduce the call on the resources of Police Scotland to assist with enforcement activity.10
In subsequent correspondencei with the Committee, the Minister provided illustrative regulations relating to enforcement officers based on the Bill as currently drafted and in line with regulations made under the Commonwealth Games Act 2008. The Minister went on to state that—
I will consider whether it is possible to improve the provisions in the Bill through amendments, including on enforcement, in light of points raised by the Committee.11
Lastly, with regard to enforcement officers, the SPF queried what training would be available for those designated as enforcement officers. Neil Coltart, from Glasgow City Council, provided an overview of the likely approach as being—
a half day of training on the detail of the regulations and the bill, and a further half day on areas such as trademarks and association right to make sure that everybody in my team, and anybody else, is aware of the exact nature of the trademarks and the association rights.12
The Committee recognises that it is expected that enforcement officers would only seek assistance from other persons, who are not police officers, on rare occasions. Nevertheless, the Committee considers that Section 19(2) of the Bill, as currently drafted, potentially provides a wide-ranging power to enforcement officers. Accordingly, the Committee recommends that whenever an enforcement officer seeks external expert assistance, the police should be notified in advance.
The Policy Memorandum to the Bill summarises the enforcement powers in the Bill proposed to be available for enforcement officers in the following terms—
These officers will have a range of powers available to them, including the power to seize, conceal or destroy anything which the officer reasonably believes to be an infringing article. An infringing article is anything used in connection with the commission of a Championship offence. They will also be empowered to enter and search any place they believe a Championship offence has been, or is being, committed. This includes the power to use reasonable force to gain entry, although only where a warrant has been granted or where a constable accompanying the enforcement officer reasonably believes that waiting for a warrant to be granted would defeat or prejudice the purpose of taking action…
The Bill places a range of restrictions on the powers of enforcement officers. For example, an infringing article may only be destroyed if it concerns the advertising offence and if the officer does not consider seizing or concealing the article to be a reasonable alternative course of action in the circumstances. Powers to enter and search a home are also restricted, where no warrant has been obtained, to reasonable times of day, and with a concurrent requirement that the officer is accompanied by a police constable.1
The SPF raised a range of concerns with the enforcement powers proposed for enforcement officers. Firstly, the SPF suggested that enforcement officers would have a broader range of powers than those available to police officers. However, Police Scotland noted with regard to the Bill that—
provisions detailed within the UEFA European Championship (Scotland) Bill, relative to Enforcement Officers, strongly reflect those of the Glasgow Commonwealth Games Act 2008.2
The Scottish Government highlighted Section 27 of the Bill which states that “a constable may do anything an enforcement officer may do” whilst also noting that the effect of Section 27(2) of the Bill is to recognise that “a constable has far greater powers than those set out in the Bill and the powers for enforcement officers are narrower in comparison".3
Secondly, the SPF queried the entry and search powers proposed for enforcement officers and whether this would bring into question the primacy of a police constable vis-à-vis an enforcement officer. Specifically, the SPF stated—
In our view the enforcement officer ought to still to be able to apply for a warrant where they consider it is necessary in accordance with the general provisions of section 19 [power to enter and search], but the execution of that warrant should lie with the police. We see no reason why the enforcement officer could not accompany the constable. This approach would remove the question of primacy and ensure that the constable is acting only in support of the warrant and faces no implied power of direction from the enforcement officer.4
In response the Minister considered that the Bill, as currently drafted, contained sufficient safeguards. Mr Macpherson commented that—
In the majority of cases, the enforcement officer would be the individual who has undertaken the investigation of whether a breach has taken place. For that reason, it is logical that the enforcement officer would be the one who engaged primarily in the investigation. However, quite rightly, there are the safeguards in sections 20 [use of reasonable force] and 21 [further restrictions on entering houses], which say that warrants would have to be obtained as appropriate or police officers would have to accompany the enforcement officers as appropriate.5
The Committee questioned the Minister extensively on the powers of enforcement officers to enter and search properties without a warrant or the permission of the property owner and, in particular, with regard to non-domestic properties. The Minister stressed to the Committee that he considers that the power of an enforcement officer to enter and search a non-domestic property, without a warrant, was subject to sufficient safeguards within the Bill. For example, Mr Macpherson observed that—
There are, quite rightly, greater requirements in relation to the use of reasonable force and entering residential property, which relate to warrants and being accompanied by a police officer. However, it is implicit in sections 17, 18 and 19 that proprietor’s permission will have been granted.6
However, the Minister did recognise the concerns which had been raised with the Committee and stated that the Scottish Government would “give the matter further consideration before stage 2”6. In correspondence with the Committee8, the Scottish Government also highlighted the purpose of section 28 of the Bill. Section 28 states—
The Scottish Minister may by regulations specify further procedure which an enforcement officer or, as the case may be, a constable must follow when doing anything under sections 17 to 24.
The Scottish Government noted that this power was not used for the 2014 Commonwealth Games. However, the Scottish Government suggested that “it would consider using that power after further engagement if that might provide further reassurance to parliament".8
On a practical level, the SPF also highlighted, in oral evidence, some examples where minor misunderstandings occurred between police constables and enforcement officers. The Scottish Government responded to the examples cited by the SPF by stating that it would discuss the examples with GCC and Police Scotland “in order to see if any learning can be taken”. The Scottish Government suggested that these discussions would “help ensure that the working relationship between enforcement officers and police officers operates effectively in the future".8
The SPF also raised the issue of how any complaints, and subsequent compensation, would be dealt with against either an enforcement officer or a police constable who was providing assistance to an enforcement officer. The Scottish Government provided the following response, via correspondence, regarding this issue—
The Scottish Government is proposing that all enforcement officers are local authority members of staff. Local authorities have established complaints procedures which could be used should a member of the public wish to complain about the actions of the enforcement officer. In relation to compensation, section 25(1)(a) sets out that if damage is caused by an enforcement officer or by a constable accompanying an enforcement officer then compensation is payable by Glasgow City Council. Compensation is only payable by the Scottish Police Authority if the damage is caused by a police constable who is not accompanying an enforcement officer and only if the person claiming compensation has not committed a Championship offence.11
The Scottish Government, in subsequent correspondence with the Committee, provided illustrative regulations detailing the “process, timescales, review and appeal route for making a claim for compensation".12
Section 19(1) of the Bill provides an enforcement officer with the power to enter and search ‘any place (and any vehicle, vessel, container or other thing at that place)’. The Committee queried whether this would include electronic equipment, such as a laptop computer, present on the premises being searched. The Minister responded as follows—
the provisions in section 19 are subject to permission, so a laptop could be searched only if the owner of the premises and the laptop decided to grant the enforcement officer access to it. As I said, there are protections. I need to double-check that and I am happy to follow that up in writing. However, my understanding from memory is that access to electronic devices is covered under other legislation.13
The Committee highlights the concerns that have been raised with regard to the scope of the powers proposed for enforcement officers and calls on the Scottish Government to consider whether amendments are necessary at Stage 2.
The trading and advertising offences will only apply within certain geographic areas termed ‘event zones’. Section One of the Bill sets out that there will be three event zones: the Hampden Park zone, the George Square zone and the Merchant City zone. The Bill sets out that the geographic coverage of the event zones will be defined in regulations. In addition, section one of the Bill also defines the ‘Championship Period’, when EURO 2020 is taking place, as beginning on 1 June 2020 and ending on 12 July 2020. Michael Short of UEFA explained UEFA’s requirements in relation to the event zones in the following terms—
Within the security perimeters, in the zones where people will require a ticket to attend a match, full exclusivity will be provided to sponsors to do what we call activations. They are promotions and advertising and, for licensees, the selling of products, for which they have exclusive rights. That applies in the tightest zone, which is within the security perimeter.
In the area within the commercial perimeter or the event zone, we are obligated to undertake the rights protection programme—that is where the sponsors benefit from the programme. In that space, as UEFA partners, they have a right to carry out the sole approved activations of any sort, whether that involves advertising by sponsors or sales by licensees. They can expect to be the only approved partners in that area, which is the event zone under the bill. Thereafter, we are obliged to undertake the rights protection programme to increase the protection and value of the rights within those areas. The areas are then negotiated with the host city.1
The Minister wrote to the Committee on 1 Octoberi regarding the event zones as the Minister considered the proposed zones “to be of particular interest to the Committee, to businesses and others in Glasgow”2. The letter included maps of the proposed Hampden Park and George Square event zones. In evidence to the Committee, Lucy Carmichael from the Bill team compared these two events zones with those in operation for the Commonwealth Games in 2014. Ms Carmichael noted that—
The Hampden Park zone is the same size as it was in 2014. The George Square zone is slightly larger and includes some additional approach routes. In 2014, there were a range of other zones because there were a number of different locations for games taking place at different times across a range of cities. Overall, the zones are probably less extensive because the focus is on only three locations in the centre of Glasgow rather than a broader range.3
The Minister noted that the details of the dates of operation of the event zone had been the subject “of initial discussions with Glasgow Life and UEFA about requirements for host cities, and giving consideration to the potential impact on businesses”2. The Minister proposed that the Hampden Park zone would be in operation from 1 June to 30 June 2020. The Minister stated that the rationale for these dates was that these dates include “the four Hampden match days (on 15, 19, 23 and 30 June) and provides time to prepare the stadium and surrounding area in advance of the first match".2
In terms of the George Square event zone, the Minister proposed that these would be in operation for the duration of EURO 2020 from 10 June to 12 July 2020. The Minister observed that the George Square event zone is “expected to be the focal point for the city’s celebrations and entertainment during the Championship”6. The dates proposed, the Minister noted, would “allow preparation of the area before the Championship begins in Rome on 12 June and concludes after the final match has been played”6. Lastly, with regard to the Merchant City event zone, the Minister stated—
dates of operation for the proposed Merchant City event zone are expected to be significantly less than proposed for George Square, and will be discussed with Police Scotland based on safety issues relating to demand and capacities. Work on the map of the proposed zone is ongoing and I expect to be able to share a draft with the Committee and provide further information on its proposed dates of operation soon.6
Neil Coltart, of Glasgow City Council, commented on the approach taken in defining the boundaries of event zones in the following terms—
There will always be a level of compromise and negotiation about such boundaries…
All the zones will have to be the subject of negotiation, discussion and clarification, because we do not want to overly restrict ordinary trade.9
Representatives from the Mount Florida Community Council highlighted, in written evidence, the impact on local residents and businesses of major events. In this regard, it was noted that “the greatest economic benefits of past major Hampden events have been gained elsewhere in Scotland (e.g. hotels in the city centre), the greatest negative impacts of disruption have been felt by residents and businesses closest to the stadium”10. Accordingly, the Community Council stressed the need for “careful consideration to minimise the imbalance between local costs and national benefit for the 2020 European Championships".10
The Policy Memorandum stated that “there has not been sufficient time for a full public consultation to be held prior to introduction”1 and noted that the Scottish Government and GCC have been working together to identify businesses, other organisations and individuals that are likely to be affected by the provisions in the Bill. The Policy Memorandum to the Bill commented on the engagement approach being undertaken as follows—
The Scottish Government, Glasgow City Council and other partners held two drop in sessions to engage with local businesses that may be affected by the Bill to better understand any concerns they may have and any changes to the approach in the Bill that may be possible to respond to these. Individual meetings were offered to businesses that could not attend the drop in sessions.
The Scottish Government wants to continue engagement with those likely to be affected by the Bill after introduction and as part of the process to develop the associated regulations, which will be progressed concurrently with the Bill’s Parliamentary process.2
Lucy Carmichael, from the Scottish Government bill team, commented on the ‘drop-in sessions’ and engagement activities that had been undertaken by the Scottish Government as follows—
Only two street traders attended. For comparison, I think that only one street trader attended a similar event in 2007. My team has had a number of telephone calls with street traders and other businesses that could not attend on those two particular days to try to broaden out the consultation. I also went to Hampden park before one of the Scotland matches last month to walk around and speak to traders in the general area to try to raise awareness.3
In written evidence to the Committee, GCC emphasised that the drop-in sessions had been advertised through letters being written to 950 businesses and 107 traders. E-mails were also sent to 13 media inventory owners and eights trade / business representative organisations, such as the Glasgow Chamber of Commerce. Lastly, GCC stated that it had offered individual meeting to businesses that were unable to attend the drop-in sessions. Neil Coltart, from GCC, commented on the engagement approach the Council would follow in the build-up to EURO 2020 as follows—
Once the legislative process is complete, assuming that that happens, we will have further public meetings. We will also engage with businesses that we know of and can identify as being within those areas to ensure that they understand the requirements and restrictions that are placed on them.
In addition, we will contact business and trade organisations to make sure that they are also aware. We will then use the normal public press process to highlight that there will be changes surrounding the Euro 2020 competition.4
Michael Short, from UEFA, emphasised in evidence to the Committee that a key lesson UEFA had learned from hosting previous European championships was “that we can never do enough to provide guidance and information to relevant stakeholders in advance of the event”5. UEFA expanded, in written evidence, on their engagement approach as follows—
UEFA is committed to undertaking and funding an information distribution programme in respect of the Bill to ensure that all consumers, fans and enforcement authorities are fully aware of the relevant prohibitions and exemptions. UEFA will engage both directly and via its appointed Scottish law firm to ensure that guidelines and / or other helpful information is distributed promptly to all affected stakeholders.6
Representatives from the Mount Florida Community Council highlighted the lack of community involvement within the provisions in the Bill and the lack of engagement with the local community. They stated that Scottish Ministers should be required to consult local community and business representatives when developing regulations under Section 32 of the Bill. The Community Council representatives also noted that the membership of the ‘Local Organising Committee’, which is set out at section 32(4) of the Bill, contains “no direct representation of the local community.7
The Committee notes that due to the late recognition of the need for primary legislation that public engagement on the implications of the Bill for individuals, businesses and organisations affected by the Bill’s provisions has been limited to date. The Committee welcomes the on-going efforts of Glasgow City Council and the Scottish Government to continue to undertake public engagement. The Committee also welcomes the information distribution programme that UEFA intends to implement.
The Committee is unaware of any public engagement that has taken place with local community groups, residents or organisations representing football fans. The Committee recommends that the Scottish Government and Glasgow City Council should consult with these groups.
The Financial Memorandum (FM) to the Bill estimates the total costs associated with the Bill’s provisions to be in the region of £70,000 to £134,000. These costs are split across a range of public bodies, namely the Crown Office and Procurator Fiscal Service, Glasgow City Council, Police Scotland, Scottish Courts and Tribunal Service and Police Scotland. The Scottish Government state that the “financial impact of the Bill is considered to be relatively minor, especially in relation to the economic opportunity provided by co-hosting the Championship".1
The main costs associated with the Bill are expected to be incurred by Glasgow City Council and relate to the attendance of enforcement officers in event zones and the costs of enforcement-related activity. These costs are estimated to range from £45,000 to £84,000. Glasgow City Council commented on the resource impact of the Bill in the following terms—
Although the approach will be proportionate to the scale of the event, the Bill is likely to have an impact on Glasgow City Council’s Trading Standards Team resources and potentially a minor impact on other local authorities if additional enforcement officers are required to be seconded to Glasgow during the Tournament.2
The FM comments on the costs to be incurred by Glasgow City Council, and potentially other local authorities, as being due to—
…staff costs of enforcing the restrictions in the event zones, staff training costs, undertaking an audit of existing advertising in place before the event, and the costs of removing any ambush marketing, as defined at section 11(5) of the Bill. The lower end of the estimate might be more likely to arise if the Scottish national football team does not qualify for the tournament, in which case fewer enforcement officers would be expected to be needed.3
The costs expected to be incurred by the Scottish Government are estimated to be £15,000 to £20,000. The FM attributes these costs as being a consequence of—
…some administrative costs in working with other members of the LOC and UEFA on implementation of the Bill and for post-event evaluation. These costs will be met from the Scottish Government’s existing administrative budget.1
As noted earlier in this report, the Finance and Constitution Committee had no issues to raise with regard to the Financial Memorandum to the Bill.
The Committee notes the Financial Memorandum to the Bill.
Section 35 of the Bill states that the “Act ceases to have effect on 31 December 2020”. The Minister commented on the rationale for this repeal date, given that EURO 2020 ends on 12 July 2020, as being a result of the offences in the Bill relating to—
the championship period and not the period up to the date when the legislation ceases to have effect. The cessation date of 31 December 2020 was decided on just because of the nature of the calendar year end, but if this is a pressing point for the committee you can take a strong position on it, we can certainly consider whether cessation should take place earlier. We are open minded on the issue.1
The Committee is content with the cessation date for the legislation as set out in the Bill.
Much of the detail of the operation of the offences proposed in the Bill, enforcement activity and the delineation and dates of operation of the event zones will be provided in regulations which emanate from the Bill. As noted earlier in this report, the Scottish Government wrote to the Committee on 1 October seeking to provide detail of some of the event zones and on 7 October providing a list of proposed exceptions to the advertising offence. In correspondence with the Committee, on 7 October, the Scottish Government also confirmed that—
illustrative regulations setting out how the Scottish Government would intend to use the secondary powers included in the Bill will be provided to the Committee by Friday 25 October at the latest.1
The Minister wrote to the Committee on 17 Octoberi providing illustrative regulations “in order to provide an indication of how the Scottish Government expects to use its powers in the Bill”2. The illustrative regulations provided are—
Ticket Touting – Exceptions for Use of Internet etc
Sports Grounds and Sporting Events – UEFA European Championship Trading and Advertising
Sports Grounds and Sporting Events – UEFA European Championship Enforcement Officers
Sports Grounds and Sporting Events – UEFA European Championship Compensation for Enforcement Action
The illustrative regulations also contained the map for the Merchant City event zone albeit not the dates of operation of the zone. The Minister observed that the illustrative regulations are consistent with regulations prepared under the Commonwealth Games Act 2008 and are “in accordance with the law as it is now”2. The Minister goes on to observe that—
We are considering what changes might be required to drafting in light of Brexit but the policy intent of the regulations is expected to remain the same.2
The Committee welcomes the efforts made to provide details of regulations which are likely to emanate from the Bill. The Committee received the illustrative regulations after evidence-taking on the Bill had concluded and therefore no evidence has been taken regarding the illustrative regulations.
The Committee notes the illustrative regulations. The Committee would welcome clarification from the Scottish Government as to what possible impact Brexit could have upon the proposed regulations.
The accompanying documents to the Bill state that the provisions in the Bill are based on those in the Commonwealth Games Act 2008. The 2008 Act was frequently referred to by the Minister as being the “gold standard”1. The Committee sought to ascertain what evaluation had been undertaken of the operation of the 2008 Act. In response, the Scottish Government stated that there was “no formal evaluation of how that legislation operated in practice”2. However, the Scottish Government has held discussions with stakeholders, in particular Glasgow City Council, regarding what lessons could be learned from the operation of the 2008 Act. As a result of these discussions, the Scottish Government stated that stakeholders “have been broadly content”2 with the operation of the 2008 Act. The Minister summarised the position in the following terms—
Where appropriate, we have sought to enhance the legislation for 2014, but we also see it as the gold standard. From the anecdotal feedback that was received, the legislation performed successfully and worked well in practice during the period of the games.1
As noted above, the Financial Memorandum to the Bill notes that there is provision within the Scottish Government’s budget to fund a post-event evaluation.
The Committee considers that if legislation is to be referred to as a ‘gold standard’ then a formal evaluation of the operation of the legislation should be undertaken to support such statements. Accordingly, the Committee recommends that a formal evaluation of the operation of the Bill’s provision in practice should be undertaken.
The need for legislation to underpin individual major events being held in Scotland was raised in a range of evidence received by the Committee. For example, the Law Society of Scotland questioned in relation to the ticket touting provisions in the Bill whether it would not be more appropriate to have general legislation dealing with this issue “rather than enact these in a piecemeal fashion as and when major events require”5. In a similar vein, Calum Steele from the Scottish Police Federation stated—
we recognise the strength of large brands such as UEFA, FIFA, the Olympics and the Commonwealth games, but it seems a peculiar approach to consider that our legislation to protect day-to-day image rights is not sufficiently robust to do the job when the big boys come to town. If we have weaknesses, we should address them in a substantive way rather than in a way that involves periodically coming up with sticking plasters – if that is an appropriate descriptor – when large-scale events come around.6
The Minister responded to this issue in the following terms—
We will deliver the legislation together and we will make the event a success. We will reflect on it and on previous events, such as the Commonwealth games, and we will consider together whether, going forward, a framework bill would be more appropriate, effective and expedient.7
The Committee considers that if there are weaknesses in devolved legislation then these should be addressed in a substantive manner rather than in a piecemeal fashion in response to hosting individual major events. The Committee therefore welcomes the commitment of the Minister to consider the need for an events framework bill and would welcome further details, including how this impacts on reserved matters. The Committee considers that the Scottish Government should give serious consideration to developing an events framework bill following formal evaluation of the operation of UEFA European Championship (Scotland) Bill.
The Committee recognises the significant cultural, economic and social opportunities that hosting EURO 2020 matches represent for Scotland. Nevertheless, the Committee raises a range of issues with the Bill, as currently drafted, and the process underpinning the development of the Bill.
The Committee supports the general principles of the Bill.
23rd Meeting, Thursday 03 October 2019
1. UEFA European Championship (Scotland) Bill: The Committee took evidence on the Bill at Stage 1 from—
Lucy Carmichael, Bill Team Leader, Derek Bearhop, Head of Events Strategy & Delivery, and Kirsten Simonnet-Lefevre, Principal Legal Officer, Scottish Government; David Henderson, Public Affairs Manager, Advertising Association; Calum Steele, General Secretary, Scottish Police Federation.
2. Consideration of evidence heard (in private): The Committee considered the evidence heard.
24th Meeting, Thursday 10 October 2019
1. UEFA European Championship (Scotland) Bill: The Committee took evidence on the Bill at Stage 1 from -
Peter Dallas, Hampden Park Ltd, Managing Director; Gillian McNaught, Senior Solicitor, Licensing and Democratic Services, and Neil Coltart, Group Manager (Trading Standards), Glasgow City Council; Andrew Niven, Project Leader, Scottish Football Association; Michael Short, Legal Counsel, UEFA; Ben Macpherson, Minister for Europe, Migration and International Development, Lucy Carmichael, Bill Team Leader, and Kirsten SimonnetLefevre, Principal Legal Officer, Scottish Government.
2. Consideration of evidence heard (in private): The Committee considered the evidence heard.
25th Meeting, Thursday 31 October 2019
2. UEFA European Championship (Scotland) Bill (in private): The Committee considered and agreed a draft Stage 1 report.
All written evidence relating to the Committee's work on the UEFA European Championship (Scotland) Bill can be viewed here:
https://www.parliament.scot/parliamentarybusiness/CurrentCommittees/113030.aspx