Culture, Tourism, Europe and External Affairs Committee

Meeting date: Thursday, March 12, 2020

Official Report 630KB pdf

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Subordinate Legislation

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UEFA European Championship (Scotland) Act 2020 Remedial Order 2020 (SG 2020/19)

Good morning, and welcome to the ninth meeting in 2020 of the Culture, Tourism, Europe and External Affairs Committee. I remind members and those in the public gallery to turn off mobile phones. Any members using electronic devices to access committee papers should ensure that they are turned to silent mode. We have received apologies from Beatrice Wishart.

The first item on the agenda is consideration of the UEFA European Championship (Scotland) Act 2020 Remedial Order 2020. I welcome to the meeting Ben Macpherson, Minister for Public Finance and Migration; Lucy Carmichael, the bill team leader; Ninian Christie, solicitor; and Keith White, lawyer, all from the Scottish Government.

The proposed draft remedial order would change the exception to the ticket touting offence that is contained in the UEFA European Championship (Scotland) Act 2020. The order is made under a power in section 12 of the Convention Rights (Compliance) (Scotland) Act 2001 that allows the Scottish ministers to make changes to legislation to remedy an incompatibility with rights that are protected by the European convention on human rights. An order that makes such changes is known as a remedial order.

I invite the minister to make a short opening statement.

Thank you for the opportunity to speak to the committee about the remedial order.

Most committee members will be familiar with the discussion on charity auctions of match tickets that took place during the parliamentary process for the UEFA European Championship (Scotland) Act 2020, but there have been some changes to committee membership since then, so I will briefly set out the background.

At stage 1, the committee supported the creation of an exception to the ticket touting offence for auctions of Euro 2020 match tickets where the proceeds are given to a charity. The Scottish Government gave effect to that through an amendment at stage 2, which inserted what is now section 3 of the act. The amendment was unanimously supported by committee members.

Section 3 currently provides that the exception applies only where the proceeds of an auction are given to a charity that is established in the United Kingdom or the European Union. Following further consideration, the Scottish Government now believes that the section is discriminatory, so I have taken swift action to lay a proposed draft remedial order that broadens the exception to include charities that are established in any territory.

The order makes a second consequential change to ensure that the charities that receive the benefit of the exception to the touting offence will, if not registered in a charity register that is similar to the Scottish charity register, be required to have charitable purposes and provide public benefit in ways that mirror the standards that are provided for in Scots law. The changes will ensure that there are equivalent criteria for Scottish and non-Scottish charities alike, removing any scope for discrimination based on the grounds of the national origin or other status of the charity.

When the order was laid, I wrote to the Presiding Officer to set out the reasons why it was necessary. My officials have updated key stakeholders on the matter, so that they have an opportunity to submit any views. A public notice has also been published on the Scottish Government’s website inviting comments on the order. The period for written representations will end on 28 April 2020. To date, no comments have been received. I expect to lay the draft order as soon as possible after the period for comments ends.

I am happy to take questions from members.

We were obviously pleased that the bill was amended to include the exemption for charity auctions as a result of the committee’s deliberations. Which articles of the ECHR does the act violate?

Following further consideration of the act, we concluded that there is insufficient justification to limit the charities to which the exception applies if we are to comply with article 14 of the ECHR—on prohibition of discrimination—when read with article 1 of the first protocol to the convention, which is on protection of property.

Given that the order—along with the other Scottish statutory instrument that the committee will consider shortly—relates to the underlying legislation that the Scottish Parliament passed to provide for a special regime to facilitate holding the UEFA matches in Glasgow, what happens if the matches are postponed or do not go ahead at all? I presume that the underlying principal legislation is then not triggered, although the order that relates to the act might be passed. What would be the legal position? The legislation has introduced provisions that are to apply exceptionally in Glasgow and, if the reason for that was no longer there, what would happen with the order? Would it just not be triggered?

That is an important question for the implementation of the primary and secondary legislation. In due course, I will say more on the coronavirus in my statement on the regulations that the committee will consider shortly. I can say that there has been no decision about cancelling matches so far, and we are proceeding on the basis that the tournament will go ahead and that Glasgow will host the matches that have been allocated. However, we would have to consider whether amendment of the primary legislation was required.

As the minister says, it depends on the situation. If the event were to be rearranged to a different date, that would have implications for the championship period, which is specified in the act. It would still be helpful to have the ticket touting offence in force because, if the championship was being arranged, ticket touting of match tickets could still happen during that period. We would certainly need to consider that further. As the minister says, we are working on the basis that the legislation will be required, so we are progressing it.

With regard to the championship period and the cessation date, in particular, we need to take consideration of whether amendment of the primary legislation will be necessary.

The convener asked which parts of the ECHR are relevant to the ticket touting aspect, and you stated that it was following further consideration that you realised that there was an issue. What was the trigger point—what happened or was highlighted—to instigate further consideration by the Scottish Government and to require the change?

As the committee will be aware, there is a process after Parliament passes a bill when the Lord Advocate considers that legislation. At that point for this act, it became clear to us that section 3 was not compatible with the ECHR and that swift action was required. My officials and I took that action as quickly as possible.

So it was not an issue prior to the amendments at stage 2.

The amendment that we passed together was deficient and we need to rectify it by way of the order.

I am not clear on that. The bill was passed into an act of Parliament and, after that, it was decided that the act was incompatible with the ECHR. Is that right?

Yes—with regard to that particular section.

In other words, prior to the bill being passed, the Presiding Officer had issued a certificate saying that it was compatible.

09:45  

Keith White might want to come in at some point from a legal perspective.

There is an assessment of the policy, and of its competence, when amendments are being prepared by the Scottish Government, working together as a team. Following an act’s being passed, there is further consideration of the competence of the amendments. It was following that further assessment that the issue was raised. It is unlikely that an issue would have arisen, but, having identified a potential issue, we thought that it was necessary to take steps to rectify it.

The Presiding Officer’s certificate relates to the bill as introduced rather than as passed. The provision was added during the passage of the bill.

What is the point of the Presiding Officer’s confirmation of ECHR compatibility if one can simply amend and bring in incompatible things in the course of a bill’s passage? Does it serve any purpose?

I think that the purpose is so that, when primary legislation is introduced, Parliament has an opportunity to debate the terms in which it is introduced and to consider whether there are any issues of human rights or other issues of competence with it. There is then a separate stage at the end of a bill process for that to be considered.

I accept that the amendment was unanimously supported and that it had good intentions. On a point of practice: before the Scottish Government supports amendments, does someone look from a legal point of view to decide whether they are compatible with the ECHR?

Yes, of course we do. Our legal services directorate has oversight of all amendments that the Scottish Government proposes. The amendment in question was a Scottish Government one that was brought to the committee to reflect the committee’s position—with which the Scottish Government agreed—that an exception from the ticket touting offence should be made for charity auctions. In this instance, on reflection, the drafting of the amendment was not compatible with the ECHR, and the process that we went through together as a Parliament did not manage to bring that to the fore.

Did you believe at the time that it was compatible?

Yes.

Indeed.

For clarity, we in the Scottish Government are reflecting on the fact that this has happened and we will consider whether to further enhance our processes in order to ensure that it does not happen again.

Was the issue flagged up and brought to the Government’s attention by UEFA?

No.

I am not an expert on the matter, but I assume that there are countries that play in the championship that are not in the EU, so they may well have charity auctions that would be affected.

It was not brought up by UEFA. It was brought to the Scottish Government’s attention by the Lord Advocate’s evaluation.

The timetable for the bill was not ideal. We all accepted and expressed that during stages 1, 2 and 3. However, as I said, we are reflecting on what has happened and, through the order, we are taking swift action to resolve and correct the issue.

Obviously, there is a degree of uncertainty about the championship.

The minister describes the action as “swift”. Does the 60-day period for consultation, followed by 40 days for affirmative procedure, mean that the remedial order will not be effective until around mid-June? Does he expect that to have any impact on Scottish charities or on charities in other countries that are brought under the remedial order? Would it have an impact on Scottish charities that wanted to auction tickets before mid-June?

The ticket touting offence will not be brought in until the correction has been made. As I said, the period for comments ends on 28 April. Realistically, we expect to bring in the offence and the order in mid-May, which is when UEFA anticipates issuing the tickets. We will seek to ensure that the correction is made and that an effective offence is in place at that point.

That point being mid-May.

Absolutely. A standard affirmative procedure would be a further 40 days. We are keen to work with Parliament to see whether it is possible to expedite the process so that the offence can come in sooner. Obviously, however, that would be subject to work that would be done with Parliament.

So you want to bring in the offence so that it coincides with the point at which tickets are anticipated to be on sale, which should be mid-May.

There have been a number of tranches of ticket sales, but UEFA has indicated that the actual tickets will not be distributed until towards the end of May. We think that that limits the scope for ticket touting to take place before then. However, we are, of course, also working to send out the message that, even though the offence is not in force—so people would not be committing an offence—they would be unwise to buy tickets from a ticket tout, as they would be likely to be refused entry at the stadium. We hope that that will discourage people from buying tickets in that way in the interim period before the offence is in force.

It is important to reiterate that the decision on whether to permit the transfer of a ticket in those circumstances still lies with UEFA. We have put the exception in the primary legislation and we are correcting it through the order, as we have discussed. If a charity auction takes place, the charity must contact UEFA in order to facilitate that process. We have done our best to raise awareness of that.

Lucy Carmichael mentioned the need to work with the Parliament to expedite the process. Are conversations under way with the office of the Presiding Officer and others to make that happen? I am asking that question because I also sit on the Delegated Powers and Law Reform Committee. When it dealt with the order a couple of weeks ago, the issue that we are discussing was not raised as an area of concern.

There have been some discussions at official level. We have been waiting until after today’s discussion about the order before making a more formal approach to the Presiding Officer.

From what has been said, it seems that there is more potential for ticket touting to take place because of the oversight than there would have been if the act had not been subject to the change. Is my understanding correct?

UEFA has indicated that match tickets in all formats will not be available until the end of May 2020. That reduces the scope for touting before the offence is expected to be in place.

It reduces it but, if there is no offence, there is more potential for ticket touting than there would have been otherwise.

First, UEFA has indicated that it will distribute the majority of tickets through a ticketing app that will be available for download at the end of May. It is anticipated that the app will prevent the replication and duplication of tickets, which will have an effect.

I recognise that attempts to tout tickets might be more likely after the full match draw is known at the end of March. However, we have made clear in the messaging that we have been sending to stakeholders that tickets are non-transferable and that, therefore, people buying touted tickets may be refused entry. That will help to deter people from buying touted tickets. However, as I have said, through the order, we are seeking to remedy the issue with the ECHR in relation to section 3 of the 2020 act, and we want to work with the Parliament to bring in the offence as close to the issuing of tickets in May and, if possible, before that.

That would certainly be preferable.

To be clear, people can still buy tickets before May, even though they will not physically own them until May, when they are issued.

Yes.

What is the difference in terms of time? Was it the original intention to introduce the ticket touting offence earlier than we will be able to because of the issues that have arisen in relation to the remedial order?

That is correct.

I assume that the affirmative instrument will come back to the committee for consideration.

That is part of the discussion that we would like to have. I understand that there are a couple of different processes that we could follow. We would like to discuss that further with Parliament.

Okay.

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UEFA European Championship (Trading and Advertising) (Scotland) Regulations 2020 [Draft]

Agenda item 2 is consideration of the draft UEFA European Championship (Trading and Advertising) (Scotland) Regulations 2020. The minister and his officials are also in attendance for this item. Members should note that the regulations are laid under the affirmative procedure, which means that the Parliament must approve them before the provisions can come into force. Following this agenda item, the committee will be invited, under the next agenda item, to consider the motion and to approve the regulations.

I invite the minister to make a short opening statement.

I will begin by saying something about the impact of coronavirus on the 2020 European championship. Advice in relation to major sporting and cultural events and other mass gatherings will continue to be guided by expert scientific advice. Event partners for the UEFA championship are in regular dialogue with the Scottish Government and others.

The official statement from UEFA is that it is in touch with the relevant international and local authorities regarding coronavirus and its development and that, for the moment, there is no need to change anything in the planned timetable, although the issue will be kept under scrutiny. Of course, the Scottish Government continues to evaluate the situation, and the Cabinet Secretary for Health and Sport will update Parliament again later today.

All of that considered, we are continuing to proceed on the basis that the UEFA European championship 2020 will go ahead. It promises to be a unique and spectacular event, with 12 cities and countries co-hosting the championship for the first time in its 60-year history. The benefits of bringing the third-biggest sporting tournament in the world to Scotland will be significant not just for our economy but for our international reputation.

Subject to parliamentary approval, the trading and advertising regulations will help to ensure successful delivery of the championship by meeting UEFA’s requirements for the protection of commercial rights.

The regulations provide details of the trading and advertising offences and, importantly, exceptions to those offences. Maps and dates of operation of the event zones are also included in the regulations. When considering the regulations, a proportionate approach was taken to ensure that the right balance was struck between minimising any negative impacts on local businesses and allowing them to take advantage of the economic opportunity that the championship represents, while protecting the rights of UEFA and event sponsors who have invested significant funds for the right to be associated with the tournament. That balance has been achieved by, for example, limiting the number of event zones to three, minimising the size of the zones and creating a number of exceptions to the advertising and trading restrictions.

The regulations are, in the main, consistent with illustrative regulations that I shared with the committee in October, which were, in turn, based on the equivalent Glasgow Commonwealth games regulations. The illustrative regulations were also shared with our event partners—Glasgow City Council, Police Scotland, the Scottish Football Association and UEFA—as well as a number of other key stakeholders including the Advertising Association, the Scottish Police Federation, football supporter groups and community groups. We are grateful to those partners, who have helped to shape the draft regulations and periods of restriction. Indeed, suggestions from this committee—to include exceptions for busking and charity collections—have been welcomed and incorporated.

I believe that the UEFA European Championship (Trading and Advertising) (Scotland) Regulations 2020 strike an appropriate balance between allowing normal business activity to continue as far as possible and protecting the rights of UEFA and event sponsors. Subject to parliamentary approval, confirmation of the regulations will allow Glasgow City Council to proceed with the publication of guidance, which is another key milestone in raising awareness of restrictions among businesses and traders ahead of the championship, and ensuring successful event delivery.

I look forward to answering any questions that the committee might have on the regulations.

10:00  

Thank you very much for that. I have a couple of questions to open with.

Can you say anything more about any feedback you might have had from businesses on the illustrative regulations that were published during the passage of the act? I reiterate the committee’s welcome for the exemption for busking, which was highlighted during the parliamentary process. However, the exemption for charity workers is not as clear cut as the exemption for buskers. Regulation 4 includes that as a trading activity that is to be restricted, and the policy note states that it is expected that

“certain charity collectors will be permitted to collect in the events zones in a controlled way to manage numbers.”

Who will determine which charity workers are permitted to operate, and how will they decide what constitutes operating in a controlled way?

We received feedback, for example, about how much advertising and trading would be affected by the restrictions and about the potential costs to businesses. However, we also heard from some businesses, such as hotels, that the impact of the changes was likely to be minimal.

We also received feedback from the Advertising Association, which liaised with officials in a considerable amount of correspondence, and shared a few minor comments from its members, but nothing too extensive.

Overall, the feedback has been that the exceptions are welcome and that the impact will be proportionate, and there has been lots of engagement with a variety of stakeholders, as I mentioned in my opening statement. We have received good feedback and it has been considered as the regulations have been refined.

Any charity collector who has been granted permission by Glasgow City Council under the Civic Government (Scotland) Act 1982 will be allowed to collect within the three zones. Glasgow City Council will manage the number of charity collectors in all zones through this permission process. We understand from the council that some charities have already begun to make contact about collections during Euro 2020.

Thank you very much. Do any other members have questions?

Following the bill receiving royal assent, what engagement was there between the Scottish Government, Glasgow City Council and Glasgow Life with businesses that are situated within the three zones of Merchant City, Hampden park and George Square?

That is an important question, and it is one that we discussed during the bill process, when we spoke about making sure that we talked to those who would be affected. Significant engagement has taken place over several months. Two drop-in sessions were held earlier this week, on 10 and 11 March, at Hampden park and Glasgow city chambers, to seek views on Glasgow City Council’s draft guidance, which is being drafted to provide details of the regulations to businesses, traders, and advertising associations. Those sessions also provided an opportunity to ask questions about the restrictions.

Invitations to attend all sessions were sent to elected members in the Anderston/City/Yorkhill and Langside wards; Merchant City, Trongate and Mount Florida community councils; selected publicans; nightclubs; selected media; inventory owners; businesses in the vicinities of George Square, Merchant City and Hampden park; and 75 street traders, who are both static and mobile licence holders. That shows significant engagement. A contact point was provided for those businesses and for businesses that could not attend, so that any further questions were considered.

The Scottish Government also updated stakeholders such as the Advertising Association and football fan groups when the trading and advertising regulations were laid, to ensure that they were kept informed of the process. There has been significant engagement in recent weeks.

Absolutely. There has been some very significant engagement.

Are you in a position to update us on the alternative arrangements for street traders who would normally operate within those zones, and on how many permits will be available? If you do not have that information to hand, it would be helpful if you could let the committee know in writing.

There has been engagement, some of which took place this week. Some traders operate only within the Hampden park campus, and no trading is permitted within George Square or in Merchant City.

Glasgow City Council has updated us on the number of current licences in the Hampden Park zone: there are currently 75 GCC licence holders in that area. In August 2019, the council indicated that there were 113 licence holders; therefore, there has been a reduction. In addition, Police Scotland has indicated that there are around 23 pedlars licences, which allow traders to operate in that area. However, it is for Glasgow City Council to make the offer to the affected traders—that was what we put in the primary legislation that we passed together—and we look forward to Glasgow City Council doing that in due course.

Schedule 4 of the bill covers “Euro 2020 Product Categories”. I assume that those categories are set by UEFA and that you do not have any influence over what is included in them. I do not understand why white goods such as fridges and freezers are included in the list. I assume that you do not have any influence over the list and that it is prescribed.

We do not. We had significant discussions on that, and I will ask my officials to speak about it in a moment. We were very determined to have exceptions to the product category list, where possible, so that product categories that were not included would not be affected by the offences. That is part of our proportionate response.

Lucy, do you want to say any more?

Not a huge amount. As the minister said, those product categories were suggested by UEFA. We have engaged with UEFA to ensure that we are clear about what falls under the categories and that they are as clear as they can be to the people who are reading them, but they are UEFA’s categories.

Some of them are quite odd—fridges, freezers and “associated parts” for motor vehicles, for example. Anyway, that is fine.

When we took evidence on the bill, there was a degree of frustration that we can specify only a limited period for the legislation and that we cannot produce comprehensive ticket touting legislation. Part of the reason for that is the fact that there is a mixture of reserved and devolved responsibilities. However, at the time, the minister said that he would look at the possibility of a framework bill. Has any progress been made on that, and—following the change in ministerial responsibilities—will he still be responsible for it?

There has not been further consideration of that legislation at this point. However, I did commit to it during the process and we should consider it for future events. We need to seek information on whether we can do something and whether it is right to do it in a more comprehensive manner.

Responsibility for that at the ministerial level sits with the Cabinet Secretary for Economy, Fair Work and Culture, Fiona Hyslop MSP. She leads for the Government on major events, and how we proceed would be at her discretion and direction.

Members have no further questions.

Agenda item 3 is the formal consideration of motion S5M-21118, which calls for the Culture, Tourism, Europe and External Affairs Committee to recommend approval of the draft UEFA European Championship (Trading and Advertising) (Scotland) Regulations 2020. I remind members that only the minister and members may speak in the debate.

I invite the minister to speak to and move the motion.

Motion moved,

That the Culture, Tourism, Europe and External Affairs Committee recommends that the UEFA European Championship (Trading and Advertising) (Scotland) Regulations 2020 [draft] be approved.—[Ben Macpherson]

Motion agreed to.

The committee will report on the instrument in due course. I invite the committee to delegate authority to me and to the deputy convener to approve a draft of our report for publication.

Members indicated agreement.

10:10 Meeting suspended.  

10:13 On resuming—