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LG/S3/08/R2

2nd Report, 2008 (Session 3)

Stage 1 Report on the Glasgow Commonwealth Games Bill

CONTENTS

REMIT AND MEMBERSHIP

REPORT

Annexe a: SUBORDINATE LEGISLATION COMMITTEE REPORT

ANNEXE B: FINANCE COMMITTEE REPORT

ANNEXE C: extracts from the minutes of the local government and communities committee

7 November (8th Meeting, 2007 (Session 3))

21 November (10th Meeting, 2007 (Session 3))

5 December (12th Meeting, 2007 (Session 3))

16 January (1st Meeting, 2008 (Session 3))

30 January (3rd Meeting, 2008 (Session 3))

6 February (4th Meeting, 2008 (Session 3))

ANNEXE D: ORAL EVIDENCE AND ASSOCIATED WRITTEN EVIDENCE

21 November (10th Meeting, 2007 (Session 3))

Oral Evidence

Nick Brown, Bill Team Leader, Scottish Government;
Ian Campbell, Glasgow 2014 and London 2012 Team, Scottish Government;
David Thompson, Policy Adviser, Scottish Government.

Supplementary Evidence.
Scottish Government

16 January (1st Meeting, 2008 (Session 3))

Oral Evidence

Stewart Maxwell MSP, Minister for Communities and Sport;
Ian Campbell, Glasgow 2014 and London 2012 Team, Scottish Government;
David Thompson, Policy Advisor, Scottish Government;
Beth Elliot, Legal Directorate, Scottish Government

ANNEXE E: OTHER WRITTEN EVIDENCE

Remit and membership

Remit:

To consider and report on (a) the financing and delivery of local government and local services and planning; and (b) housing, regeneration, anti-poverty measures and other matters (apart from sport) falling within the responsibility of the Minister for Communities and Sport.

Membership:

Duncan McNeil (Convener)
Alasdair Allan
Bob Doris
Patricia Ferguson
Kenneth Gibson (Deputy Convener)
Johann Lamont
David McLetchie
Jim Tolson

Committee Clerking Team:

Clerk to the Committee
Martin Verity

Senior Assistant Clerk
Jane-Claire Judson

Assistant Clerk
Ian Cowan

Committee Assistant
Fiona Sinclair

Stage 1 Report on the Glasgow Commonwealth Games Bill

The Committee reports to the Parliament as follows—

introduction

Introduction of the Bill

1. The Glasgow Commonwealth Games Bill was introduced by the Minister for Sport and Communities, Mr Stewart Maxwell MSP on Friday 9 November 2007. The Bill was accompanied by a Policy Memorandum, Explanatory Notes, including a Financial Memorandum. The Parliamentary Bureau, at its meeting of Tuesday 13 November 2007 agreed to refer the Glasgow Commonwealth Games Bill to the Local Government and Communities Committee for consideration at Stage 1.

2. The report of the Subordinate Legislation Committee is attached at Annexe A.

3. The report of the Finance Committee on the Financial Memorandum is attached at Annexe B.

4. Twenty nine organisations and individuals responded to the Committee’s call for written evidence. The Committee took oral evidence on the Bill from witnesses at its meetings of 21 November 2007 and 16 January 2008. Extracts from the minutes of those meetings are attached at Annexe C, and extracts from the Official Reports of those meetings, together with associated written submissions and other written evidence, comprise Annexe D. The Committee wishes to express its thanks to all those who provided written and oral evidence on the Bill.

Aims of the Bill

5. The Bill will make provision in relation to the Commonwealth Games to be held principally in Glasgow in 2014.

6. The Bill will create new criminal offences prohibiting unauthorised advertising and outdoor trading within the vicinity of Games venues, with penalties on summary conviction of a fine not exceeding £20,000 or an unlimited fine on conviction on indictment.

7. The Bill will create a new criminal offence to prohibit the unauthorised sale of Games tickets in public, in excess of face value or with a view to making a profit, with penalties on summary conviction of a fine not exceeding level 5 on the standard scale (currently £5,000).

8. The Bill provides for the designation of enforcement officers empowered to enforce the Games advertising, street trading and ticket touting offences, and make it a criminal offence to obstruct them in their duties, with penalties on summary conviction of a fine not exceeding level 5 on the standard scale.

9. The Bill will provide councils with the power to make Games traffic regulation orders and provide Scottish Ministers with the power to direct councils to make, vary or revoke any instrument which regulates road use in relation to the Transport Plan for the Games.

10. The Bill provides councils with the power to make a compulsory purchase order for land within the area which they believe is required for Games purpose and for Scottish Ministers with power to pay grants and provide other forms of assistance to the Organising Committee of the Games and set conditions on such assistance.

11. The Bill provides Scottish Ministers with the power to repeal the Act from the statute books once the Games have ended.

Consultation

12. The Bill follows on from the Scottish Government publication of the ‘Draft Glasgow Commonwealth Games Bill: Consultation Document’ on 28 June 2007. The Scottish Government received 39 written responses to this consultation. These responses were taken into account by the Scottish Government before introducing the Bill.

13. The Committee is satisfied with the adequacy of the Scottish Government’s consultation on the proposals contained within the Bill.

Subordinate Legislation Committee Report

14. The Committee notes the report of the Subordinate Legislation Committee. The Committee asks the Scottish Government to consider the recommendations of the Subordinate Legislation Committee and where appropriate, bring forward amendments at Stage 2. In particular, the Committee would draw the Parliament’s attention to the amendment suggestions contained in paragraphs 9 (definition of a ‘Games event’) and 50 (enforcement powers) of the Subordinate Legislation Committee’s report.

Policy memorandum

15. The Committee notes the contents of the Bill’s Policy Memorandum and accepts that it provides adequate explanation of the policy intentions behind the Bill.

Financial Memorandum

16. The Committee notes the contents of the Financial Memorandum. It notes that the Finance Committee has consulted relevant organisations and has strongly recommended that the Scottish Government pursues possible Lottery fund avenues as an option to off set the public commitment of funding from Glasgow City Council and the Scottish Government, allowing for more money to be invested in grass roots sport development in Scottish communities.

17. The Committee comments below on concerns relating to the legacy issues relating to the significant amount of public funds allocated to the Games.

introductory

18. This section sets out the interpretation and definition of the three principal terms in the Bill, ‘the Games’, ‘Games event’ and the ‘Organising Committee’.

19. There was no dispute over the definition of ‘the Games’ but there was concern, from North Lanarkshire Council, the Advertising Agency, the Scottish Police Federation, Scottish Enterprise and the Committee itself over the definition of ‘Games event’ and of “vicinity” and “precinct”. These issues are dealt with in paragraphs 24 - 28.

Street trading

20. Sections 2 – 9 deal with the issue of trading. A new offence of trading within the vicinity of a Games event at a prohibited time is introduced (section 2). Further provision is made that authorisation to trade will be subject to any conditions imposed by the trading regulations and may be subject also to conditions imposed by the Organising Committee and to be in breach of these conditions will constitute an offence (section 5). It is also made clear that holding a trading license is not in itself a defence against a trading offence under the Bill (section 7).

Current trading license holders

21. Glasgow Chamber of Commerce1 commented that further clarity on the legislative impact to private car parks and traders such as catering vehicles and the times at which a trading offence can take place would be welcome. Their evidence also requested clarity over those activities treated as ‘trading’ and it suggested that those holding current trading licences that are liable to prosecution during the Commonwealth Games should be notified in advance of the legislation being enforced.

22. At its meeting of Wednesday 21 November, the Committee explored the issue of current street trading licensees, particularly those who have licenses to sell the paraphernalia associated with sporting and other events and activities. In oral evidence, Ian Campbell from the Bill Team commented—

‘It will be for the Organising Committee to decide how it wants to take that forward and how it wants to market and merchandise the games.’

23. The Committee seeks assurances that the position of current licensed street traders are taken into consideration and that they are not penalised financially as a consequence of the Games being held in Glasgow.

The definition of “vicinity”

24. North Lanarkshire Council2 operate Strathclyde Country Park in Motherwell and the large size of the park, which contains several trading operations such as a Holiday Inn and a theme park, means that the Council would like clear guidance and clarification of the definition of ‘in the vicinity of a Games event’. In addition, in view of the location and proximity to the proposed Triathlon Course at the Park, it is likely to prove undesirable and impractical to prevent continued trading. A system of exemptions or authorisations would be useful in tackling these issues. The Advertising Association3 (AA) also wish to see a definition of ‘vicinity’.

25. The Committee pursued the question of what the term ‘vicinity’ means in practice. In oral evidence to the Committee, Ian Campbell from the Bill Team commented that—

‘The meaning of “vicinity” will be defined in the regulations that are brought forward closer to the Games4.’

26. On further questioning on the difference between “vicinity” and “precinct”, Ian Campbell further commented—

‘A “vicinity” and an immediate “precinct” are one and the same thing. The vicinity will be determined by the nature of the venue and the event that is taking place5. ’

27. In relation to the definition of ‘vicinity’ the Advertising Agency points to the clarification given by the Rt Hon Richard Caborn MP in the House of Commons where he stated that—

‘When we talk about vicinity, we mean a few hundred metres’6.

28. The Committee considers that definitions of “vicinity” and “precinct” should be provided at an early opportunity and that they should take into account the practical issues surrounding games venues and events, including street trading and advertising.

Indoor trading

29. The Scottish Police Federation7 comments that section 2 does not appear to cover illegal trading taking place indoors. This then leads to such trading being exempt from penalty and could not be a justification for exercise of the power to enter and search as contained in section 25 of the Bill.

30. Scottish Enterprise8 commented that they felt the regulations in the Bill do not hinder legitimate business involvement in the Games.

advertising

31. Sections 10 – 16 deal with advertising issues including the provision for offences on advertising within the vicinity of a Games event at particular times (section 10), the definition of activities that will be treated as advertising (section 11), provision for the Organising Committee to have the power to authorise persons to advertise in a way which would otherwise constitute an advertising offence (section 12) and for the Organising Committee to be able to impose conditions over and above those provided within advertising regulation (section 13). It also provides that holding an advertising licence before or after the Bill comes into force is not a defence against an advertising offence under the Bill (section 15), and places a duty on the Organising Committee to issue guidance on advertising (section 16).

32. The Advertising Association has a number of comments on this part of the Bill. The Association suggests that the maximum duration of any advertising regulations be specified, that there should be a duty to consult the advertising industry on any secondary legislation and that any advertising regulations issues be subject to affirmative procedure. At present the Bill proposes regulations being laid before Parliament via a negative resolution. The Association also suggests that an advertising defence is introduced. The Association drew the attention of the Committee to the London Olympic Games London Olympic Games and Paralympic Games Act 2006 where regulations concerning the physical location of advertising are subject to affirmative resolution procedure in the House of Commons.

33. Similar to the points made by North Lanarkshire Council in paragraph 25, the commercial businesses that operate within Strathclyde Country Park have permanent and internationally recognised signage in place. There are also concessionary signage and adverts that feature household names and recognisable products. The Council’s own branding is also clearly visible. The Council would suggest a scheme of exemptions or authorisations to deal with these issues and would further suggest that the Council be permitted to advertise itself and its own events within the park without authorisation. The Advertising Association also shares the concerns expressed with regard to advertising and branding in this way.

34. On these issues, the Minster offered assurances to the Committee during oral evidence during the following exchange—

Patricia Ferguson (Glasgow Maryhill) (Lab): The Commonwealth Games Federation places certain requirements on host cities, as is reflected in the bill. However, I am surprised that, even at this stage, local authorities such as North Lanarkshire Council have expressed concerns. For example, businesses that currently trade at Strathclyde country park may not have the opportunity to so do during the games, and there will be limitations on advertising by the council and by the organisations that rent space from it. Have you discussed such issues with the council? Have you been able to allay its fears?

Stewart Maxwell: I certainly hope so. As regulations develop, we will continue to discuss them with the parties involved, including North Lanarkshire Council. I am aware of the council's submission to the consultation and of its concerns about the triathlon in Strathclyde country park. However, the triathlon is a single event on a single day, so the impact should be minimal.

Clearly, we have to protect the games and their good name, but we will be happy to discuss with North Lanarkshire Council and other relevant parties any concerns that they have during the development of the regulations.

Patricia Ferguson: North Lanarkshire Council has viewed the staging of the triathlon at Strathclyde country park as an opportunity, but it might now view the bill as taking away that opportunity because of the restrictions that will be placed on venues. Others may have similar concerns, so how will you address them?

Stewart Maxwell: It is clear that there have to be some restrictions in terms of protecting the games. You should be well aware of that stream of work given your previous role as minister. At the same time, there are massive opportunities for councils throughout the country, particularly those around Glasgow, such as North Lanarkshire Council—which covers Ravenscraig, where new sports facilities will be developed—South Lanarkshire Council and Renfrewshire Council. Councils can make high-profile bids for training camps and can ensure that they maximise the benefits of people coming to live in their areas during the games and of tourists using their areas as local bases for visiting the games. Businesses are also in a good position to maximise their opportunities. We are more than happy to engage with various commercial interests to ensure that we create the maximum possible benefit for them, their employees and the areas surrounding Glasgow9.

35. Fife Council10 requested in their written submission that consideration be given to providing the business community with clear guidance on the processes and opportunities to become sponsors, authorised traders, developers and contractors to ensure that all businesses are aware of the opportunities afforded by the Games.

36. The Scottish Police Federation felt that section 11 (2) is too widely drawn and could see churches prohibited from using their normal notice boards or distributing parish bulletins and asserts that it is inappropriate that such organisations would have to rely on the exercise of discretion in terms of section 14 to avoid punishment for breaking the law. This concern was also identified by the Advertising Association and they have suggested that an advertising defence would be a useful way to tackle this.

37. On the creation of an association right the Advertising Association is firmly of the opinion that the current body of law covering intellectual property rights provides more than sufficient protection to sponsors in relation to the Commonwealth Games. The creation of an association right is, in the Association’s opinion, disproportionate and risks damaging the wider advertising sector by introducing intellectual property rights over words and numeral in common usage.

38. It is clear to the Committee that further work will be required to assuage the concerns of business and those who will be tasked with implementing the advertising provisions. The Committee accepts that many of the issues identified in relation to advertising are reserved matters but the Committee would welcome a clear statement from the Scottish Government as to why the restrictions outlined by the Scottish Government are considered necessary, in particular responding to the points raised by the Advertising Association.

ticket touting

39. Sections 17-20 address issues of ticket touting. There is provision to make it an offence to tout Games tickets (section 17), exceptions for certain advertisers (section 18), and provision relating to internet and other electronic communication issues (section 19).

40. Aberdeen City Council points out that ticket touting can take place anywhere in Scotland and not just in the local authorities where there are Games venues.

41. The Scottish Rugby Union11 drew attention to the complexity surrounding ticket touting and in particular the use of unofficial hospitality packages as a vehicle for the sale of black market tickets and increasing incidence of internet ticket touting The SRU suggests that the solutions found for the Commonwealth Games could be extended to other sporting events and that the Bill affords an opportunity to tackle the problem in the context of sports events as a whole and not just in respect of the Games.

42. In oral evidence, the Bill Team was questioned on the arrangements around ticket touting. In an exchange with Alasdair Allan MSP, Ian Campbell from the Bill Team stated that—

‘We can prosecute for offences that take place outwith Scotland, as long as we can get the people back into Scotland to be prosecuted. We are working with the UK Government to ensure that measures are in place throughout the UK. We have had and are continuing to have discussions to ensure that we can control internet ticket touting as much as we can12.’

43. Glasgow Chamber of Commerce has suggested that the Bill could be applicable to all major events and suggest considering this in relation to the Bill.

44. The remit of the Committee is to scrutinise the contents of the Bill at this stage rather than suggest other uses for the Bill. However, issues over ticket touting are not restricted to the Commonwealth Games and therefore must be considered in context. The Committee considers that where legislation can bring benefits through application to other areas, this should be investigated.

enforcement

45. Sections 21-33 cover the enforcement aspects of the Bill. These include powers conferred to enforcement officers (sections 22-30) and the consequences of enforcement officer actions with regards to compensation and recovery costs (section 31) and obstructing an enforcement officer (section 32).

46. The area of enforcement attracted the largest amount and most detailed evidence submitted to the Committee. In oral evidence, Ian Campbell from the Bill Team stated:

“The principal change that we made after the consultation was on enforcement mechanisms and powers to satisfy police authorities’ concerns on how they would be taken forward. The changes are in the Bill and and set out in the policy memorandum. That is one of the key points that were altered as a result of the consultation.”13

47. However, the Committee received evidence from several organisations who raised concerns over the definition and powers of enforcement officers.

48. ACPOS14 set out specific examples of where the Bill provides enforcement officers with powers beyond that currently granted to police officers. For example, ACPOS cites empowering enforcement officers to take what they consider ‘appropriate’ action to enforce a games offence where this is properly a matter for the courts to determine (section 23 (1)), and the power to destroy an infringing article used in the commission of a games offence, which should rather be presented to the courts as evidence (Section 23 (2)). This last point is supported by the written evidence submitted by the Glasgow Chamber of Commerce, who share similar concerns, considering the destruction of property based on a belief, rather than evidence, that it is being used in a Games offence.

49. Network Rail15 comment on the powers given to enforcement officers to “enter any place”. To enter operational railway land there are set procedures designed to ensure health and safety and access to the railway is the responsibility of Network Rail to give.

50. The Committee recommends that, if enforcement officers are to be enabled to enter railway land, then appropriate provisions will be required to ensure health and safety.

51. Section 26 (10) (b) outlines the circumstances of using reasonable force to enter any place without a warrant. ACPOS felt that the way in which this is worded implies that it would be for the accompanying police officer to decide if the circumstances justify this course of action, which APCOS felt may not be appropriate given the leading role the enforcement officers have in terms of implementing the legislation.

52. This view is supported by the comments made by Ian Campbell of the Bill Team in response to questions put to him by Bob Doris MSP—

‘Ian Campbell: The enforcement officers would work with the police, who could arrest that individual.

Bob Doris: So, the enforcement officer would alert the police to the matter and the police would come along and make the arrest.

Ian Campbell: The enforcement officer would gather the evidence and work with the police, who would have the power of arrest.’16

53. ACPOS also highlighted that section 28 (1) may need clarification in relation to the information a person would be required to provide to enforcement officers such as name, age, address, date of birth etc.

54. ACPOS also had concerns over the lack of inclusion of a power of arrest in respect of games offences, a power that has been included in the London Olympic Games Act 2006.

55. ACPOS acknowledged that changes had been made from the consultation draft, but expressed continued concern at the considerable powers, in some cases exceeding the powers available to police officers, the need to consider training requirements for enforcement officers and reporting mechanisms for Games related offences to the Procurator Fiscal.

56. On traffic regulation orders (section 32), Glasgow Chamber of Commerce suggested that an advanced notification system such as CITRAC be set up to allow road users to make suitable arrangements.

57. The Scottish Police Federation has general concerns about what they perceive as the creation of private police forces which are unanswerable to the local community through the Chief Constable, the Police Board and, ultimately, to the relevant legislature. The Federation accepts that entrusting all policing of the Games to the Police Service may not be practicable. However, they would be happy with the appointment of a policing body accountable to the public that exists, for this particular instance, outwith the structure of the Police Service.

58. On the issue of the creation of private police forces, the Federation does not consider it appropriate that private bodies appoint members of such a force and considers it an important point of principle that such appointments should be made by a public body such as Scottish Ministers or the City Council. in particular, the Federation argues that the authority of any such ‘private police officer’ should be seen to stem from the concept of service to the public rather than service to a private organisation, which in terms of section 1 (3) is a limited company.

59. In relation to the appointment of enforcement officers (section 22 (2) (b)), the Federation considers that criteria should be included in primary legislation and not in subsidiary regulations. Further, the Federation would argue that the word ‘enforce’ in section 23 may be in error as the understanding of the Federation is that the purpose of the Bill in this area is to prevent and punish.

60. The Federation anticipates that police officers would be the group to be called upon to provide “any other person as may be reasonably required for the purposes of taking action” under section 23 (4). As worded, the section gives enforcement power to persons who have not been subjected to any scrutiny by the public or by any body acting on behalf of the public. The Federation considers that this creates the possibility of enforcement officers recruiting on an ad hoc basis, placing in potential danger those called upon to assist them in enforcing what is a right to private profit. The Federation has grave reservations about both the principle and the practice on this issue.

61. On the issue of the judgement of the actions of the enforcement officers being based on whether said officer considers those actions ‘appropriate’, the Federation is concerned that this places the enforcement officer beyond criticism which contrasts significantly with the position of police officers who must justify their actions before courts and before Misconduct Hearings. However, the Federation does approve of the changes made to the former section 21 (draft Bill) now contained in section 26 of the Bill as introduced in relation to the use of force with the public interest served by the requirement of a warrant from the Sheriff and the concurring judgement of a police constable.

62. One of the strongest concerns around enforcement came from the Scottish Police Authorities Forum, who felt that their original concerns on enforcement, which were shared with the Commonwealth Games Bill Team in July 2007 for the draft Bill, have not been taken on board or reflected in the Bill as introduced.

63. These concerns mirror many of those already outlined above, including the ability of the Organising Committee to employ any person and thereafter designate them as Enforcement Officers; concerns that the absence of the enforcement regulations in the Bill itself leaves issues such as background checks, relevant experience and training for enforcement officers who will wield significant powers, as secondary considerations; possible discrepancies between the Policy Memorandum and the Bill itself (in relation to owners and occupiers, sections 25-27 and paragraph 78 of the Policy Memorandum); and the continued absence from the Bill of any public accountability, codes of conduct, complaints systems or management sanctions for enforcement officers.

64. The Committee appreciates that some changes have been made from the draft Bill to the Bill as introduced. However, it is clear that significant concerns remain regarding the recruitment and powers of the enforcement officers and the powers granted to them through this Bill. These concerns have been raised by a number of organisations who will be directly involved in the safety and security aspects of the Games, and have experience, knowledge and accepted professional standing on these issues.

65. Accordingly the Committee recommends that the Government reviews and addresses the enforcement provisions of the Bill in the light of the concerns which have been raised.

trial and punishment

66. Sections 34-36 relate to how offences will be taken forward such as provision for trading and advertising offences to be tried summarily or on indictment and ticket touting and obstruction offences triable only summarily (section 34). Issues relating to penalties (section 35) and to offences by bodies corporate (section 36) are also dealt with.

67. The Committee is content with the provisions made in the Bill in relation to how offences will be taken forward.

transport

68. Sections 37-41 address transport issues surrounding the provision of the Games. These include the Organising Committee’s responsibility for producing a Games Transport Plan (section 37), powers for traffic authorities to make temporary traffic regulation orders (section 38) and urgent traffic regulation measures (section 39). There is also provision for Scottish Ministers to be able to direct a Council to make, vary or revoke a traffic regulation instrument where they consider such action to be necessary (section 40).

69. Several evidence submissions suggested appropriate consultees for the Organising Committee to involve in the development of the Transport Plan.

70. Capability Scotland highlighted the need for disabled people to be involved at every stage of the work to develop and implement the Transport Plan and that the final plan helps disabled people from across Scotland to access and enjoy the Games while not placing restrictions on their ability to travel for other purposes.

71. Network Rail suggest that key industry players such as themselves, the lead Train Operating Company (currently First Scotrail) and Freight operating companies should be included in the Bill as organisations to be consulted. ACPOS commented that the responsibility for consultation on the Games Transport Plan by the Organising Committee should extend to include the local police force (s) for the area which the transport plan affects.

72. Strathclyde Partnership for Transport17 would welcome the inclusion of the relevant Regional Transport Partnership (in this case SPT itself) being named as a consultee with regard the Transport Plan. Further, they recommend that SPT should have approval of the plan prior to adoption.

73. Passengers’ View Scotland18 also urged the Organising Committee to consult widely and to take account of the aims of the National Transport Strategy of reducing emissions and providing better quality transport services that are a realistic alternative to the car.

74. On the Financial Memorandum, the SPT picks up on the reference to the wish of Glasgow City Council to convert ‘Games Lanes’ into bus priority lanes’ after completion of the Games. SPT assert that this may have a significant effect on the Transport system of the city region and would therefore argue that SPT be given statutory status as a consultee.

75. The Committee is content with the provisions in relation to transport and the Transport Plan, and would recommend that work continues on consulting and involving all of the relevant organisations on these issues.

funding and the organising committee

76. Provision for Scottish Ministers to provide or arrange for the provision of assistance to the Organising Committee in the form of financial assistance, goods or services, facilities or staff or acquiring land or other property are made in section 41.

Cost of the Games

77. The Committee notes the Finance Committee’s Report on the Financial Memorandum of the Commonwealth Games Bill. The key financial impact of the Bill will arise from the provision under section 41 to allow Scottish Ministers to provide assistance to Glasgow 2014 Limited. This assistance could take a number of forms, including the payment of grants.

78. The budget, as approved by the Commonwealth Games Federation, consists of expenditure totalling £372.977 million and revenues of £75.140 million, leaving a balance of £297.837 million to be met from public subsidy. The Scottish Government has committed to provide 80% of the net cost, while Glasgow City Council will fund the remainder. The Scottish Government’s contribution is, therefore, estimated at £238million.19

79. To satisfy the requirements of the Commonwealth Games Federation, the Candidate City File included a detailed breakdown of the estimated Games budget. Annex A to the Financial Memorandum provides a summary of the expected revenue and expenditure in the same format. The Committee found this level of detail helpful. However, it does not illustrate the expected profile of the Scottish Government’s funding commitment over the years to 2014.

Legacy and overrun costs issues

80. During oral evidence, the Bill Team was questioned on the safeguards in place to ensure that the Glasgow Commonwealth Games would not suffer the same cost overruns already being experienced by the London Olympics. Ian Campbell from the Bill Team responded—

“One of the main advantages that Glasgow has over both Manchester and London is that more than 70% of the venues are already in place. Only about 20 per cent of our overall budget is for capital works, which should reduce the risk of major overruns that were experienced in Manchester and London.”

On the issue of legacy, the Bill Team commented—

‘That question again takes us back to the fact that most of the facilities already exist and are already being used. We are not going to build an athletics stadium for 50,000 to 60,000 people that will no longer be used after the games.”20

Lottery funding

81. Revenue line 6 of Annex A is for lottery income, indicating that this may be a standard expected element of Games funding. However, this line shows a zero entry. In evidence to the Finance Committee, Scottish Government officials confirmed that—

“no approach was made for lottery funding”.21

82. The Finance Committee sought clarification on support for the London Olympics 2012 and the Manchester Commonwealth Games 2002 from national lottery funds. In evidence to the Finance Committee, the Organising Committee explained that Sport England, the relevant lottery distributor in England, provided funds for both infrastructure development and revenue costs for the Manchester Games, as well as support for the governing bodies of participating sports.22

83. Scottish Government officials explained that the London Olympics –

“are supported in part by specific Olympic lottery games, which required primary legislation in the UK Parliament”. They confirmed that, “It was decided that we would not approach the UK Government to seek legislation to enable that in relation to the 2014 Games in Glasgow.”23

84. In addition to these specific lottery games, the Committee notes that a proportion of funds from other lottery games, which would normally be available to be distributed by bodies such as sportscotland, will be re-directed to fund the London Olympics.24 In a written submission, the Big Lottery Fund Scotland states that it has not yet been able to consider fully any additional support it may be able to provide to the Glasgow Commonwealth Games, but notes that the context will be set by the impact that the London Olympics will have on the income it has available to disburse post-2009.

85. The Committee notes that lottery funding has already been provided to some of the venues that will host events (and training) for the Glasgow Commonwealth Games, and that both the Big Lottery Fund Scotland and sportscotland stated their desire to continue to support participation in grass-roots sport. The provisions of the Bill do not, in themselves, require additional support for sports development. However, at a time when funds will be diverted to the London Olympics, sportscotland emphasised to the Finance Committee that using the Glasgow Commonwealth Games as an opportunity to build a lasting legacy for sport—

“will require significant investment”.25

86. The Organising Committee and Scottish Government officials emphasised in evidence to the Finance Committee that they regarded it as a strength that the Glasgow bid relied on an identified commitment to public funding by the Scottish Government and Glasgow City Council. The Committee acknowledges this.

87. The Committee notes that, notwithstanding the funding assumptions which underpinned the successful bid, the Scottish Government is not now precluded from making a policy decision to try to offset some of that public commitment by seeking lottery funding, allowing more money to be invested in grass-roots sport development in Scottish communities. The Finance Committee strongly recommends that the Scottish Government pursues this issue, and reports to it on progress as soon as possible. This Committee endorses this recommendation.

Broadcasting issues

88. In Committee, Members investigated the projected revenues on broadcasting which the Committee felt was not clear in the Financial Memorandum. In oral evidence, the Bill Team could not provide the specific figures but in a follow up submission, provided the following information –

‘The Commonwealth Games Federation contribution of £31.4 million comprises:

£1.5 million in respect of fulfilling the transfer of knowledge obligations under the Host City Contract; and

£29.9 million in respect of estimated income from the sale of broadcasting rights.

The £29.9 million figure is not capped, but neither is it guaranteed. The Commonwealth Games Federation has agreed to pay the Organising Committee the revenue it receives from the exploitation of the television broadcasting rights, the radio broadcasting rights and the internet rights (other than in relation to the Games website) net of any direct sales costs, commission or taxes. Based on guidance by Fasttrack (events consultants) to the Commonwealth Games Federation, broadcast revenues have been estimated at £29.9million. By way of comparison, broadcast revenue reported by the 2006 Melbourne Games was £24.5 million. It is also worth noting that the host broadcasting costs and agency commission has been estimated at £19.3 million which is included within the IBC/HBO expenditure budget heading.

The Games budget includes a contingency of £40.536 million and a risk element around expected broadcasting revenue has been factored into this26.’

89. The Committee notes the information provided by the Bill Team on broadcasting revenue and will look forward to updates on this as part of the regular updates to the Committee offered by the Minister for Communities and Sport.

Issues relating to the Organising Committee

90. During oral evidence, the Committee investigated the make-up of the Organising Committee and how it would be held to account. The Minister for Communities and Sport commented—

‘The organising committee will be made up from the Government, Glasgow City Council, the Commonwealth Games Council for Scotland and the Commonwealth Games Federation. It will be important for all those partners to ensure that our interests are best served during the development of the games27.’

91. HM Inspectorate of Constabulary commented on whether the provisions made in relation to the Organising Committee and plans for delivery of the Games will ensure good value for money from conception to deployment.

92. The Committee questioned the Minister further on the concerns that had been expressed to the Committee about how projects can drift and be affected by cost overruns. The Minster commented—

‘The Glasgow 2014 strategic group will oversee the organising committee, and Parliament and its committees will also have a clear role in scrutinising development work over the next six years or so. I am happy to reaffirm our commitment to provide an annual progress report to Parliament. I will be happy to update committees and the spokespeople of other parties if situations arise between the annual reports28.’

93. The Committee welcomes the Minister’s commitment to keep the Committee and members in general informed on these issues and look forward to receiving updates and an annual report on the progress towards the Commonwealth Games.

Volunteers, athletes and coaches

94. The Scottish Institute of Sport29 commented on the lack of a power to release volunteers, athletes and coaches working on the Games from work for training purposes and specific periods during the Games.

compulsory purchase of land

95. Provision is made through section 42 to modify the Town and Country Planning (Scotland) Act 1997 (c.8) to allow councils to issue a compulsory purchase order for land which is suitable for and required in order to facilitate the holding of the Games.

96. In relation to compulsory purchase, Gold Seal Home Care Ltd30 highlighted their experience of the compulsory purchase of land that they currently own by Glasgow City Council, which is earmarked as part of the Games village. This company characterised their experience of this as having been a frustrating process exacerbated by a lack of communication and information from Glasgow City Council. Gold Seal Home Care Ltd stated that this has impacted on the long term planning of the business which includes expanding the business and the future of the 100 staff they employ.

97. Progress Property Development Company (PPD) provided comment in relation to the purchase, any remediation work on the land and assemblage of the site, suggesting that the timetable for the notices and valuation hearings for the compulsory purchase of land and/or buildings should be tightened. This is based on the company’s experience of land/building owners employing delaying tactics to frustrate a development in order to obtain a higher value for land than which they would normally be entitled to because of the finite timescale for completion on projects such as the Commonwealth Games.

98. Network Rail commented that the requirements of the Transport Plan may include the necessity for full Disability Discrimination Act compliance for stations and lengthening of platforms and such works would require the purchasing of land. Network Rail has no power to compulsorily purchase land and therefore how such plans would be implemented should be taken into consideration. Network Rail has written to the Games Team as part of their ongoing dialogue with them, and have plans to meet with the Games Team in the near future.

99. Scottish Power Energy Networks31 have commented that the proximity of any Scottish Power plants that may be on or adjacent to land acquired for the Games be taken into consideration.

100. The Committee is concerned that businesses and therefore employment could be adversely affected in the pursuit of land and buildings for the Games. The Committee has been informed of the employment benefits that the Games can bring, but would not wish to see these benefits undermined by job losses to established businesses. Accordingly the Committee seeks a response from the Scottish Government as to the concerns which have been raised in evidence to the Committee regarding the compulsory purchase of land.

other provisions

101. Sections 43-46 addresses subordinate legislation. All orders and regulations are to be made by statutory instrument (section 43) and will be subject to the Scottish Parliament’s negative resolution procedure except for commencement orders and any orders under section 51 (2). In addition, provision is made for Ministers to give public notice, no later than two years before the Games begin, of the general nature of the trading and advertising regulations (section 46). The mechanism for funding to be made available for the Games is also included (section 41).

other issues

102. There are several other issues that do not link directly to a section within the Bill, but that are worth noting.

103. Scottish Power Energy Networks has commented that in terms of sections 37-40 (Transport Plan, Games Traffic Regulation Orders, Urgent Traffic Regulation Measures and Power to Direct Councils) the disruption or any measures that would affect the ability of the Network to maintain electricity supplies should be taken into account.

104. Capability Scotland comment that the needs of disabled people should be built into discussions around ticketing and trading to ensure that every event and linked activity to the Games is barrier free.

105. On the issue of equality in general, the Equality and Human Rights Commission note the updates made recently to the Scottish Government’s own Equality and Diversity Impact Assessment Toolkit. However, the Commission questions, while accepting the mention of disability equality, the Policy Memorandum and its lack of information on the outcomes of the equality impact assessment of the Bill or its policy intentions.

general principles of the Bill

106. The Committee considers that there is broad overall support for the proposals contained in the Glasgow Commonwealth Games Bill. The Bill has been welcomed as containing appropriate measures for the delivery of the Glasgow Commonwealth Games. In this report, the Committee has identified certain places where the proposals in the Bill could be improved further or where the Committee wishes additional information from the Scottish Government. Subject to these caveats, the Committee recommends to the Parliament that the general principles of the Bill be approved.

summary of recommendations

107. The Committee notes the report of the Subordinate Legislation Committee. The Committee asks the Scottish Government to consider the recommendations of the Subordinate Legislation Committee and where appropriate, bring forward amendments at Stage 2. In particular, the Committee would draw the Parliament’s attention to the amendment suggestions contained in paragraphs 9 (definition of a ‘Games event’) and 50 (enforcement powers) of the Subordinate Legislation Committee’s report.

108. The Committee notes the contents of the Financial Memorandum. It notes that the Finance Committee has consulted relevant organisations and has strongly recommended that the Scottish Government pursues possible Lottery fund avenues as an option to off set the public commitment of funding from Glasgow City Council and the Scottish Government, allowing for more money to be invested in grass roots sport development in Scottish communities.

109. The Committee seeks assurances that the position of current licensed street traders are taken into consideration and that they are not penalised financially as a consequence of the Games being held in Glasgow.

110. The Committee considers that definitions of “vicinity” and “precinct” should be provided at an early opportunity and that they should take into account the practical issues surrounding games venues and events, including street trading and advertising.

111. It is clear to the Committee that further work will be required to assuage the concerns of business and those who will be tasked with implementing the advertising provisions. The Committee accepts that many of the issues identified in relation to advertising are reserved matters but the Committee would welcome a clear statement from the Scottish Government as to why the restrictions outlined by the Scottish Government are considered necessary, in particular responding to the points raised by the Advertising Association.

112. The remit of the Committee is to scrutinise the contents of the Bill at this stage rather than suggest other uses for the Bill. However, issues over ticket touting are not restricted to the Commonwealth Games and therefore must be considered in context. The Committee considers that where legislation can bring benefits through application to other areas, this should be investigated.

113. The Committee recommends that, if enforcement officers are to be enabled to enter railway land, then appropriate provisions will be required to ensure health and safety.

114. The Committee appreciates that some changes have been made from the draft Bill to the Bill as introduced in relation to the recruitment and powers of the enforcement officers granted to them through this Bill. However, it is clear that significant concerns remain regarding these powers. These concerns have been raised by a number of organisations who will be directly involved in the safety and security aspects of the Games, and have experience, knowledge and accepted professional standing on these issues.

115. Accordingly the Committee recommends that the Government reviews and addresses the enforcement provisions of the Bill in the light of the concerns which have been raised.

116. The Committee is content with the provisions made in the Bill in relation to how offences will be taken forward.

117. The Committee is content with the provisions in relation to transport and the Transport Plan, and would recommend that work continues on consulting and involving all of the relevant organisations on these issues.

118. The Committee notes that, notwithstanding the funding assumptions which underpinned the successful bid, the Scottish Government is not now precluded from making a policy decision to try to offset some of that public commitment by seeking lottery funding, allowing more money to be invested in grass-roots sport development in Scottish communities. The Finance Committee strongly recommends that the Scottish Government pursues this issue, and reports to it on progress as soon as possible. This Committee endorses this recommendation.

119. The Committee notes the information provided by the Bill Team on broadcasting revenue and will look forward to updates on this as part of the regular updates to the Committee offered by the Minister for Communities and Sport.

120. The Committee welcomes the Minister’s commitment to keep the Committee and members in general informed on these issues and look forward to receiving updates and an annual report on the progress towards the Commonwealth Games.

121. The Committee is concerned that businesses and therefore employment could be adversely affected in the pursuit of land and buildings for the Games. The Committee has been informed of the employment benefits that the Games can bring, but would not wish to see these benefits undermined by job losses to established businesses. Accordingly the Committee seeks a response from the Scottish Government as to the concerns which have been raised in evidence to the Committee regarding the compulsory purchase of land.

122. The Committee considers that there is broad overall support for the proposals contained in the Glasgow Commonwealth Games Bill. The Bill has been welcomed as containing appropriate measures for the delivery of the Glasgow Commonwealth Games. In this report, the Committee has identified certain places where the proposals in the Bill could be improved further or where the Committee wishes additional information from the Scottish Government. Subject to these caveats, the Committee recommends to the Parliament that the general principles of the Bill be approved.

annexe A: SUBORDINATE LEGISLATION COMMITTEE REPORT

1. The Committee reports to the lead committee as follows—

Introduction

2. At its meetings on 4 December and 18 December 2007, the Subordinate Legislation Committee considered the delegated powers provisions in the Glasgow Commonwealth Games Bill at Stage 1. The Committee submits this report to the Local Government & Communities Committee, as the lead committee for the Bill, under Rule 9.6.2 of Standing Orders.

3. The Scottish Government provided the Parliament with a memorandum on the delegated powers provisions in the Bill.1

4. The Committee’s correspondence with the Scottish Government is reproduced in the Annex.

Delegated Powers Provisions

5. The Committee considered each of the delegated powers provisions in the Bill. The Committee approves without further comment: sections 20(4), 38(1), 43(2) and 49(2).

Section 1(2) - Games Event

6. The Committee notes that section 1(2) of the Bill defines a “Games event” as (a) an event held as part of the Games; and (b) any other event held before, during or after the Games specified by order made by Ministers.

7. The Committee noted that any event that is a Games event or associated with the Games appeared to be already covered by section 1(2)(a), and that the purpose of section 1(2)(b) is not clear. It observed that section 1(2)(b) is a very broad power which could be used to specify any eventas being a Games event. It therefore asked the Scottish Government to consider narrowing the scope of this power to introduce a requirement to demonstrate a connection to the Games or the Host City Contract obligations or, alternatively, to provide that the exercise of this power be subject to affirmative resolution procedure.

8. In its response in the Annex, the Scottish Government indicated that it did not intend the power to be as broadly framed and that it intends to bring forward an amendment at Stage 2 to address this. The Committee welcomes this commitment.

9. The Committee draws the attention of the lead committee to its dissatisfaction with this broadly framed power, but welcomes the commitment from the Scottish Government to bring forward an amendment at Stage 2 to narrow the scope of this power to ensure that any Games event which is specified by order is connected to the Games.

Section 2 - Ban on outdoor trading in the vicinity of Games events

10. The Committee noted that the power in section 2(3) to make trading regulations to: (a) “exempt types of trading from the trading offence” and (b) “make such further provision as they [the Scottish Ministers] think fit in relation to trading in the vicinity of Games events” is broadly framed. It was concerned that the power is framed without limits as to its exercise. It could therefore be used so as to determine the substance of the trading offence, for example, by making provision relating to the types of activities caught and the places and times covered by the prohibition on trading. It also noted that there were no guarantees as to how the power will be exercised by the Scottish Government.

11. The Committee was concerned that, while section 45 provides that the Scottish Government will “have regard to” the Host City Contract and any requests or guidance from the Commonwealth Games Federation, this does not in its view provide sufficient safeguard of itself.

12 The Committee was also concerned that negative resolution procedure may not be the appropriate level of Parliamentary control in light of the substantive provisions relating to the offence which will be determined in the trading regulations rather than on the face of the Bill.

13. The Committee noted that the London Olympics and Paralympics Games etc. Act 2006 has similar provisions in relation to trading (and advertising) regulations and that the House of Lords’ Delegated Powers and Regulatory Reform Committee (in its 11th Report of Session 2005-06) considered the regulation making powers which were subject to affirmative procedure to be acceptable. One of the factors considered by the House of Lords’ Delegated Powers and Regulatory Reform Committee in reaching this conclusion, which does not apply to the section 2(3) power to make trading regulations as currently drafted, is that the Olympics regulations shall only apply for such time as is necessary for securing compliance with the obligations imposed by the Host City Contract.

14. The Committee also noted that that the London Olympics and Paralympics Games etc. Act 2006 imposes an additional obligation to consult with persons likely to be affected by the regulations (in the case of trading regulations) and persons representing the interests within the advertising industry of people likely to be affected by the regulations (in the case of the advertising regulations).

15. In light of its concerns, the Committee asked the Scottish Government––

(a) for further information as to how the power will be used;

(b) to consider narrowing the power to ensure that they do not exceed the requirements of the Host City Contract and that they are time limited;

(c) consider the use of affirmative procedure in relation to the exercise of this power; and

(d) for clarification as to the sanction for failure to comply with the section 46 requirement to provide notice of the trading (and advertising) regulations.

Question (a)

16. In its response, the Scottish Government confirmed that the trading regulations will set out the detail of the restrictions on trading and that they will define what activities are to be treated as trading, places which are to be treated as being in the vicinity of a Games event and the times in which the restriction will be in force. It also explained that regulations are likely to apply for different periods and in a different way for different Games events.

17. The Scottish Government also explained that the regulations will take into account the characteristics of different venues and different events and ensure that any restrictions are proportionate in their compliance with the Host City Contract.

18. The Scottish Government informed the Committee that the Commonwealth Games Federation may change the requirements of the Host City Contract and the proposed sporting programme or venues may alter during the period leading up to the Games.

19. The Scottish Government confirmed that the trading regulations could also be used to prescribe: circumstances in which the Organising Committee could authorise a person to trade in a way which would otherwise constitute a trading offence; any fees associated with this authorisation; and the relevant appeal procedure. The trading regulations may also exempt certain types of trading from constituting an offence without the need for authorisation from the Organising Committee, examples of which are set out in the Scottish Government’s response.

20. The Committee notes the explanation from the Scottish Government which accords with its understanding of the scope of the delegated power.

Question (b)

21. In its response, the Scottish Government stated that it did not consider it appropriate to narrow this power to refer to the Host City Contract as its requirements are not defined in sufficient level of detail and that, because the Host City Contract is subject to change, it is not appropriate to subordinate legislation to the terms of a contract. It also stated that the trading regulations will have a natural time limitation as they relate only to Games event.

Question (c)

22. The Scottish Government accepted that these are substantive provisions and confirmed that it intends to put forward an amendment at Stage 2 to require affirmative procedure at the first use of this power. The Committee notes the Scottish Government’s recognition that the trading regulations will be making substantive provisions and welcomes the assurance given that an amendment will be put forward at Stage 2 to require affirmative procedure to be used on the first use of this power. However, the Committee notes the Government’s proposal that any subsequent exercise of the power will be subject only to negative procedure.

23. The Scottish Government states that it considers negative procedure to be appropriate for subsequent exercise of the power as it will require flexibility to react to events leading up to and during the period of the Games. The Scottish Government has not indicated in what circumstances it may be necessary to subsequently use this power other than “if the trading regulations are not having their intended effect, the Government will have to react quickly to protect the Games”. The Scottish Government also stated that, as the Games are likely to take place during the summer recess, further regulations subject to affirmative procedure would require the recall of Parliament in order to approve regulations before they could be made.

24. The Scottish Government has also confirmed that it intends to bring forward amendments at Stage 2 to amend sections 44, 45 and 46 to remove the consultation, consideration and notice requirements in relation to the subsequent use of this power which it states will be exercised in “urgent circumstances”.

25. The Committee accepts that the power is one which is appropriate for subordinate legislation and that the hosting of the Games will involve special circumstances, some of which are not presently known. It also accepts that the Scottish Government may need to react quickly to unforeseen circumstances in advance of the Games, in which case it may require to make trading regulations quickly, and when the Parliament is in recess, and accepts that it is prudent to make provision for this. However, the Committee notes that the Scottish Government is not proposing to restrict the scope of the power (to “make such further provision as [Ministers] think fit in relation to trading in the vicinity of Games events”) on the subsequent exercise of the power. Moreover, it notes that the Scottish Government is proposing to remove some of the comfort associated with the exercise of this power under negative procedure by disapplying the consultation, consideration and notice provisions outlined in sections 44-46 in the context of subsequent exercise of the power.

26. The Committee notes that whilst the Scottish Government states that the subsequent exercise of the power will take place in “urgent circumstances” to react if the existing trading regulations are not having their intended effect, the Scottish Government has not provided any undertaking that the subsequent exercise of the power will be limited to these circumstances.

27. Whilst the Committee acknowledges that there is some force in the Scottish Government’s argument that amendments to the resulting instruments may be needed over recess periods, it is not wholly persuaded that subjecting the power to affirmative procedure for its first exercise and negative procedure for subsequent exercise necessarily enhances Parliamentary scrutiny. Although the Committee accepts that the Scottish Government’s intention may be that the first exercise is the “substantive” use of the power, the Committee is aware that errors are sometimes made and instruments can be swiftly revoked and remade.

28. Given the aforementioned concerns about the wide and unrestricted nature of this power to make trading regulations which will affect individual’s rights, the Committee remains concerned about the width of the power combined with it being subject to negative procedure upon its subsequent exercise and not subject to the restrictions in sections 44-46.

29. The Committee draws the attention of the lead committee to the following ––

  • the Scottish Government has proposed that the first exercise of the power should be by affirmative procedure and that any subsequent exercise of the power be subject to negative procedure;
  • the Scottish Government considers that subsequent exercises of the power would be likely to be required in urgent circumstances;
  • the Scottish Government is considering removal of requirements in sections 44, 45 and 46 (consultation, consideration and notice) from subsequent exercises of the power;
  • if these proposals are put into effect, the Committee’s expectation is that the first exercise of the power would be the “substantive” exercise of the power, however it is not thought any requirement or safeguard to this effect is proposed;
  • as an alternative , it may be possible to create an “open power” under which negative procedure would be adopted only where urgent or unforeseen circumstances existed;
  • the lead committee may wish to press the Scottish Government on the circumstances in which negative procedure would be justified; and
  • the Committee proposes to return to this issue once Scottish Government amendments at Stage 2 are available.

Question (d)

30. The Committee notes that the Scottish Government agrees that section 46, which requires the Scottish Government to give 2 years’ notice of the general nature of the trading (and advertising) regulation and 6 months’ notice of the detailed provisions of the trading (and advertising) regulations before the Games begin, is not framed as a precondition to making the trading regulations. It further notes that the Scottish Government confirms, instead, that the Scottish Ministers must comply with statutory requirements and it would be open to members of the public to seek a remedy in the courts if Ministers did not do so.

31. The Committee acknowledges that an affected party could submit a petition for judicial review to the Court of Session in the event that the Scottish Ministers failed to comply with the notice requirements in section 46 of the Bill.

32. The Committee is satisfied with the Scottish Government’s response.

Section 10 - Ban on advertising in the vicinity of Games events

33. The Committee noted that section 10(2) confers an equally broad power on Ministers to “make such further provision as they think fit in relation to advertising in the vicinity of Games events”.

34. The Committee had similar concerns in relation to this power as outlined above in relation to trading regulations and therefore put the same questions (a), (b) and (c) mentioned above (in relation to section 2), to the Scottish Government in relation to the advertising regulations. The same response was received and the Scottish Government confirmed its intention to bring forward an amendment at Stage 2 to require affirmative procedure for the first use of this power and negative procedure thereafter.

35. The Committee welcomes the Scottish Government’s confirmation that it intends to bring forward an amendment at Stage 2 to require affirmative procedure on the first use of this power and negative procedure thereafter. The Committee makes the same comments as it does at section 2 above in relation to this power to make advertising regulations and draws these to the attention of the lead committee.

Section 19 - Use of Internet etc.

36. Section 19 confers a power on Ministers by regulations to “specify circumstances in which making facilities available in connection with electronic communications or the storage of data is, or is not, to be capable of constituting a touting offence.&rdquo

37. The Committee asked the Scottish Government for—

(a) further clarification of the intended use of this power and why the scope of the intended offence is not capable of being specified on the face of the Bill;

(b) why there is no reference to the Directive on Electronic Commerce on the face of the Bill if the intention is to give effect to the requirements of this Directive in the context of the ticket touting offence;

(c) whether consideration was given to using the powers available under section 2(2) of the European Communities Act 1972 for the purpose of implementing the Directive on Electronic Commerce; and

(d) to consider whether affirmative procedure is more appropriate in the circumstances.

38. In its response, the Scottish Government confirmed that it intends to bring forward an amendment at Stage 2 to require affirmative procedure for the first use of this power and negative procedure for subsequent use for the same reasons given in relation to the trading regulations.

39. The Scottish Government confirmed that the primary purpose of the power is to provide exceptions to the ticket touting offence for internet providers. It added that it considered the level of detail required to comply with the Directive on Electronic Commerce to be inappropriate to be included on the face of the Bill.

40. The Scottish Government also explained that, due to the possibility of changing legal requirements in the fast moving area of internet trading, it considered that it would be best to address internet trading by way of regulations closer to the date of the Games in 2014 in order to take account of any technological or market developments.

41. The Committee is concerned about the width of this power which can be used to specify the circumstances in which internet service providers would and would not be committing a touting offence. Accordingly, the power is not restricted to making exemptions from the touting offence. The Committee notes that the power could be used to alter the substance of the touting offence as it applies to internet service providers.

42. It is not clear to the Committee why the Scottish Government has concluded that section 2(2) of the European Communities Act 1972 (“ECA”) could not be used as the enabling power to implement or take account of the obligations of the Directive on Electronic Commerce, on the basis that it does not provide sufficient penalties which the Scottish Government wishes to associate with the touting offence. The Committee notes that section 35(2) of the Bill provides that the penalty for a person convicted of a ticket touting offence is liable to a fine of no more than level 5 on the standard scale (£5,000). However, Schedule 2 to the ECA (which sets out the penalties associated with the exercise of the power conferred by section 2(2) of the ECA) also provides that it includes fines of up to level 5 on the standard scale (£5,000). In addition to maximum penalties, Schedule 2 to the ECA sets out some restrictions upon the exercise of the section 2(2) ECA power by prohibiting: the imposition or increase of taxation, retrospectivity and sub-delegation. However, the Committee notes that there are no such restrictions on the exercise of the delegated power set out in section 19 of the Bill.

43. The Committee welcomes the Scottish Government’s commitment to bring forward an amendment at Stage 2 to require affirmative procedure for the first use of the power, and negative procedure thereafter. The Committee makes the same comments as it does at section 2 above in relation to this power to make internet touting regulations and draws these to the attention of the lead committee (subject to a note that the consultation, consideration and notice requirements is sections 44-46 do not apply to these internet touting regulations).

Section 21(1) - Enforcement of Games offences

44. The Committee notes that sections 21-33 of the Bill already make extensive provision in relation to the enforcement of Games offences and confer extensive powers on enforcement powers, including a power in section 23(1) to “take such reasonable steps as the officer considers appropriate to enforce a Games offence”. Section 21(1) confers a power on the Scottish Ministers to make regulations to “make further provision about the enforcement of Games offences”.

45. This power was considered by the Committee to be extremely wide. The Committee was concerned that there is no apparent restriction on this power, that further provision in relation to the enforcement of Games offences is likely to have human rights implications and that it is not clear whether further provisions in relation to enforcement of Games offence could conflict with or undermine the powers (and associated restrictions) already on the face of the Bill. In the circumstances, the Committee asked the Scottish Government to provide further justification for the width of this power; explain when it envisages using this power; whether the scope of the power could be less widely drawn including the application of a qualitative test of necessity and expediency in the exercise of this power; and to provide further justification of the use of negative procedure.

46. In its response, the Scottish Government did not accept that the power is as wide as had been suggested by the Committee. It stated that the enforcement regulations cannot be used to either widen or narrow the enforcement provisions already on the face of the Bill (sections 21-33), but that the regulations “are designed to tackle procedural issues such as the appointment process for enforcement officers or set out the application process and jurisdiction for compensation requests”. The Scottish Government further stated that the power is not capable of being used to amend provisions on the face of the Bill and will not therefore conflict with or undermine the powers already outlined on the face of the Bill. As the Scottish Government does not consider the power to be as widely drawn as the Committee considered, it did not consider that a restriction of the application of a qualitative test of necessity and expediency in the exercise of this power would be appropriate. The Scottish Government added that it was of the view that, as the power is designed to tackle procedural issues and will not deal with substantive issues, negative procedure is appropriate.

47. The Committee accepts that the appointment process for enforcement officers and the application process and jurisdiction for compensation requests referred to by the Scottish Government are procedural matters; that they are quite properly the subject of delegated powers; and that negative procedure would be appropriate. However, the Committee does not read the power to make enforcement regulations conferred by section 21(1) to be restricted to the procedural circumstances which are referred to in sections 22(2)(b) and 31(2). It considers that this is supported by the index in the schedule to the Bill which defines “enforcement regulations” as having the meaning in section 21(1) of the Bill.

48. The Committee accepts that enforcement regulations could not amend the provisions on the face of the Bill. Upon further consideration, it considers that if enforcement regulations did undermine the powers and protections on the face of the Bill, this could be seen as an unusual and unexpected use of the power and therefore could give rise to a challenge to vires. However, the Committee observes that the remedies available in such circumstances would be restricted to a motion to annul these enforcement regulations, or to seek judicial review.

49. If it is the Scottish Government’s intention to restrict enforcement regulations to make administrative provisions, the Committee considers this to be acceptable and it suggests that negative resolution procedure would provide an adequate degree of Parliamentary scrutiny in the circumstances. In order to be satisfied that the power to make enforcement regulations will be restricted to the use of administrative powers, the Committee recommends that the lead committee should press for section 21(1) to be restricted to the administrative provisions referred to in sections 22(2)(b) and 31(2).

50. The Committee draws the attention of the lead committee to its dissatisfaction with this broadly framed power although it does note that the Scottish Government intends to use the power for procedural and not substantive matters. Given this intention, the Committee considers that the lead committee should press the Scottish Government for the exercise of this power to be restricted, by amendment, to the administrative provisions referred to in sections 22(2)(b) and 31(2).

Section 47(1) - Ancillary provision

51. The Committee noted that section 47(1) confers powers on the Scottish Ministers to make supplementary, incidental, consequential, transitory, transitional or saving provision for the purpose of, in connection with or to give full effect to any provision of the Bill. Section 47(2) provides that an order made under section 47(1) may apply (with or without modifications) or disapply provisions of the Bill or any Act. It noted that this delegated power is not unusual but that the method of applying (with or without modification) or disapplying the provisions of the Bill or any Act rather than amending the statute is unusual, but that this is explained by the temporary nature of the Games and the requirements associated with it.

52. The Committee took the view that the effect of applying (with or without modification) or disapplying the Bill or any Act does alter the effect of the statute book in relation to particular circumstances if not its actual terms. The Committee therefore asked the Scottish Government to consider providing that the exercise of this power be subject to affirmative procedure in the circumstances where the effect of the exercise of the power is to alter the effect of primary legislation. The Committee also observed that where a delegated power allows primary legislation to be modified in this way, the presumption is that affirmative resolution is appropriate as a higher degree of Parliamentary scrutiny is merited in such cases.

53. In its response, the Scottish Government indicated that the power is restricted by section 47(2) to allow an ancillary order to do no more than apply or disapply primary legislation for Games purposes and that there is no power to make textual amendments to primary legislation. The Scottish Government also responded stating that it does not “share the assumption that subordinate legislation which amends primary legislation should automatically be subject to affirmative resolution” and that this should be determined by the impact of any amendment to legislation. In the circumstances, the Scottish Government has indicated that it considers negative resolution procedure to be appropriate.

54. The Committee recognises that the power to make ancillary provision in section 47(2) does not permit textual amendments to be made to primary legislation. However, it notes that the power allows any statutory provision (of the Bill or any Act) to be applied (with or without modification) or disapplied for the purpose of the Games. The Committee considers that, as currently drafted, the effect of the power would be the disapplication or modification of any provision on the statute book for a Games purpose. It considers that the fact that the statute book would not be amended by textual amendment, but rather temporarily modified or disapplied, is not relevant as the effect would be the same. Furthermore, the Committee considers that the temporary effect upon the statute book does not alter the presumption in favour of affirmative procedure where a delegated power provides for the modification of primary legislation.

55. The Committee also observes that the power, albeit temporary, could have severe effects on the individual. For example the power would prima facie be capable of being read so as to be used to disapply the requirement that statutory investigatory powers are exercised proportionately or reasonably.

56. The Committee noted that the House of Lords Select Committee on Delegated Powers and Regulatory Reform has expressed the view that as a general rule affirmative procedure should be used for any power that consists of or includes the power to amend primary legislation (Session 2002-3 Third Report, December 16, 2002). The Committee does not consider that the Scottish Government has provided sufficient justification for a departure from the presumption in favour of affirmative procedure in these circumstances. The Committee strongly believes that further justification should be sought from the Scottish Government to justify a departure from the presumption in favour of affirmative procedure in the circumstances where a delegated power provides for the modification of primary legislation.

57. The Committee considers that further justification is required from the Scottish Government for the use of this power by way of negative procedure, in light of the presumption in favour of affirmative procedure in circumstances where the power includes the power to amend the application and effect of primary legislation, albeit temporarily and draws this power to the attention of the lead committee for further consideration.

Section 50(2) - Repeal

58. The Committee noted that section 50(2) confers a power on the Scottish Ministers to specify any day after the Games have ended as the repeal day. Section 50(1) provides that the Bill will cease to have effect on the repeal day.

59. The Committee expressed concern about leaving the determination of when the repeal of the Bill should take place to the Scottish Government on the basis that the powers available in the Bill should be available for no longer than is necessary to achieve the purpose of hosting the Games. The Committee asked the Scottish Government to consider limiting the duration of the Bill or limiting the exercise of the delegated powers under the Bill on the face of the Bill.

60. In its response, the Scottish Government indicated that it did not consider that a fixed time limitation on the duration of the Bill or the exercise of the delegated powers would be appropriate, as international events may impact upon the date of hosting the Games. It also stated that most of the provisions of the Bill will have practical effect during the Games only, but that some provisions such as section 41 (Organising Committee funding and other assistance) may be required for a short time after the Games to allow for the rundown of that organisation.

61. The Committee accepts the need to retain some of the Bill provisions for administrative purposes such as the one mentioned by the Scottish Government and that it may not be appropriate for the Bill to be repealed by a fixed period following the Games closing ceremony. However, it does not accept that the trading and advertising regulations have a “natural time limitation” in circumstances where Ministers can designate an event after the Games as a Games event.

62. The Committee notes that the London Olympic Games and Paralympic Games etc. Act 2006 includes a provision that trading and advertisings regulations are to specify or provide criteria for determining the period of time during which they apply and that the regulations shall apply “only for such time as the Secretary of State considers necessary for the purpose of securing compliance with obligations imposed on any person by the Host City Contract.&rdquo

63. Whilst the Committee appreciates that a fixed time limitation on the duration of the Bill may not be appropriate in light of administrative matters, it expects the regulations made under the Bill to be time limited and draws this matter to the lead committee for further consideration. The Committee does not consider that the trading and advertising regulations will be subject to a natural time limitation in the circumstances where events taking place after the Games may be designated as Games events. The Committee also draws the attention of the lead committee to the time limitations of the regulations made under the London Olympic Games and Paralympic Games etc. Act 2006.

ANNEX

Correspondence between the Subordinate Legislation Committee and the Scottish Government

1. Thank you for your letter of 5 December 2007 to Paul Johnston regarding the Subordinate Legislation Committee’s consideration of the Glasgow Commonwealth Games Bill. As the Bill Team Leader, I am responding to the issues raised in your letter.

Section 1(2): Games Event

2. The Committee asked the Scottish Government to consider:

(a) narrowing the scope of this power by introducing a requirement to demonstrate a connection to the Games or Host City Contract obligations or through some other means; or

(b) as an alternative providing that the exercise of this broadly framed power be subject to affirmative resolution procedure.

  • We would like to thank the Committee for raising this issue as it was never our intention to use this power to designate non Games related events. We, therefore, intend to put forward an amendment at Stage Two that would narrow the scope of this power by requiring that a designated an event has a connection to the Games.

Section 2: Trading Regulations

3. The Committee:

(a) asked the Scottish Government for further information as to how it intends to use this broad power;

  • The trading regulations will be used to set out the detail of the restrictions on trading. The trading regulations will define what activities are to be treated as trading, places which are to be treated as being in the vicinity of a Games event and the times in which the restrictions will be in force. The regulations are likely to apply for different periods and in a different way for different Games events. For example, Strathclyde Park is currently proposed to be used only for the one day Triathlon whereas the SECC Arena is currently proposed to be used for 11 days of Netball. The regulations will enable the characteristics of different venues and different events to be taken into account and ensure that any restrictions are proportionate in their compliance with the Host City Contract. The Commonwealth Games Federation may find it necessary to change the requirements which are placed on the Host City and the proposed sporting programme or venues may alter during the period leading up to the Games.
  • The trading regulations could be used to prescribe circumstances in which the Organising Committee could authorise a person to trade in a way which would otherwise constitute a trading offence. This could be used to exempt approved vendors from committing an offence. The regulations could also be used to set out the detail of the procedure for application for authorisation, including any fees which the Organising Committee may impose on applicants and set out a procedure for appeals.
  • The trading regulations may be used to determine circumstances in which trading which would otherwise constitute a trading offence would be permitted without the need for authorisation from the Organising Committee. For example, the regulations could exempt certain news vendors, milk deliveries or charitable sales from being required to seek authorisation reflecting the fact that certain trading activities do not require a street trading licence under other enactments.

(b) invited the Scottish Government to consider narrowing the powers relating to the trading offence to ensure that the powers do not exceed those which are required to give effect to the requirements of the Host City Contract and that the regulations are time limited;

  • We do not feel it would be appropriate to narrow this power in such a way as the Host City Contract does not define its requirements to a level of detail that would allow such a measure to have practical effect. Additionally the contract could be amended and it would not be appropriate to subordinate legislation to the terms of a contract. The regulations also have a natural time limitation as they relate only to Games Events.

(c) asked the Scottish Government to consider whether Parliament’s approval should be sought in relation to the exercise of these powers through affirmative procedure;

  • We accept that these are substantive provisions and intend to put forward an amendment at Stage Two that would require affirmative procedure at the first use of this power.
  • However, we do feel that the Government will require flexibility to react to events leading up to and during the period of the Games and, therefore, feel that negative procedure would be appropriate for subsequent use. If the trading regulations are not having their intended effect, the Government will have to react quickly to protect the Games. As they are likely to take place during summer recess, further regulations which required affirmative procedure would require the recall of Parliament in order to approve regulations before they could be made. Given that this is a unique one off event, this could render such action impractical.
  • Given the points raised above, the Committee may also wish to be aware that we are considering amending sections 44, 45 and 46 at Stage Two to remove the consultation, consideration and notice requirements in such urgent circumstances.

(d) noted that as the requirement in section 46 is not framed as a pre-condition to making trading (and advertising) regulations, it asked the Scottish Government for its view on what the sanction is for failure to comply with these notice requirements.

  • We agree that the requirement to give public notice in section 46 is not a precondition. Ministers must, however, comply with statutory requirements and it would be open to members of the public to seek a remedy in the courts if Ministers did not do so.

Section 10: Advertising Regulations

4. The Committee:

(a) asked the Scottish Government for further clarification as to how it intends to use this broad power;

  • As with the trading regulations, the advertising regulations will set out the detail of the restrictions around advertising. They will define the time and places in which advertising will be restricted, reflecting the unique nature of each venue and event.
  • The advertising regulations could be used to prescribe circumstances in which the Organising Committee could authorise a person to advertise in a way which would otherwise constitute an advertising offence. For example, this could be used to exempt approved sponsors from committing an offence. The regulations could also be used to set out the detail of the procedure for application for authorisation, including any fees which the Organising Committee may impose on applicants and set out a procedure for appeals.
  • As with the trading regulations, the advertising regulations may be used to determine circumstances in which advertising which would otherwise constitute an advertising offence would be permitted without the need for authorisation from the Organising Committee.

(b) invited the Scottish Government to consider narrowing the powers relating to the advertising offence to ensure that the powers do not exceed those which are required to give effect to the requirements of the Host City Contract and that the regulations are time limited; and

  • As with the trading regulations, we do not feel it would be appropriate to narrow this power in such a way as the Host City Contract does not define its requirements to a level of detail that would allow such a measure to have practical effect. As mentioned above, the contract could be amended and it would not be appropriate to subordinate legislation to the terms of a contract. The regulations also have a natural time limitation as they relate only to Games Events.

(c) asked the Scottish Government to consider whether Parliament’s approval should be sought in relation to the exercise of these powers through affirmative procedure.

For the same reasons given in relation to the trading regulations, we intend to put forward an amendment at Stage Two that would require affirmative procedure for the first use of this power and negative procedure for subsequent use.

Section 19: Use of the internet etc

5. The Committee asked the Scottish Government:

(a) for further clarification of the intended use of this power and, in particular, why the scope of the intended offence is not capable of being specified on the face of the Bill;

  • The primary purpose of this power will be to make exceptions from the ticket touting offence for internet providers. In order to comply with the Directive on Electronic Commerce, different requirements must apply to different types of information society services. The level of detail required to comply with this Directive would not be appropriate for the face of the Bill.
  • Internet trading is also a new and fast evolving field. Seven years ago it would have been impossible to foresee the scale of development of internet sites, indeed, the extent to which the internet would have grown. Therefore, rather than set firm rules now, we feel that Internet trading should be dealt with by regulations nearer the date of the Games in order to take into account any technological or market developments.

(b) why there is no reference to the Directive on electronic commerce (Directive 2000/31/EC) on the face of the Bill if the intention is to give effect to the requirements of this Directive in the context of the ticket touting offence;

  • We have not referenced the Directive on Electronic Commerce on the face of the Bill as Community Law, especially in this field, may evolve between now and 2014.

(c) whether it has considered whether the powers available under section 2(2) of the European Communities Act 1972 would be sufficient for the purpose of implementing Directive 2000/31/EC or dealing with matters arising out of related provisions;

  • This has been considered. However, the penalties available under this section of the European Communities Act 1972 are more limited than those we would wish to associate with this offence and special provision would have been required in relation to the penalties. Additionally we consider it to be more transparent to include provision on the face of the Bill.

(d) to consider whether affirmative procedure is more appropriate in these circumstances.

  • We intend to put forward an amendment at Stage Two that would require affirmative procedure for the first use of this power and negative procedure for subsequent use. We feel that negative procedure would be more appropriate for subsequent use for the same reasons given in relation to the trading regulations. The Government may need to react quickly to events and the requirement for affirmative procedure would significantly limit its ability to do so given the timing of the Games.

Section 21(1): Enforcement of Games Offences

6. The Committee asked the Scottish Government to:

(a) provide further justification for the width of this power;

  • We do not consider that this power is as wide as you suggest in your letter. As you note, there is extensive provision for the enforcement of Games offences on the face of the Bill (sections 21 to 33). These provisions set out the powers available to enforcement officers, including the provision of a power to take “such reasonable steps as the officer considers appropriate” (section 23(1)). The enforcement regulations cannot be used to either widen or narrow these powers. Rather, the regulations are designed to tackle procedural issues such as the appointment process for enforcement officers or set out the application process and jurisdiction for compensation requests.

(b) explain the circumstances in which it envisages exercising this power and whether it is intended that further provision so made could conflict with, or undermine, the powers already outlined in the Bill;

  • This power is not capable of being used to amend provisions on the face of the Bill and will not, therefore, conflict with or undermine the powers already outlined.

(c) consider whether the scope of the power could be less widely drawn, including the application of a qualitative test of necessity and expediency in the exercise of this power;

  • As noted above, we do not consider that this power is as widely drawn as you suggest. We do not believe that a necessity test would be appropriate for this power.

(d) provide further justification for the need to use negative procedure for such a wide power affecting the operation of the enforcement provisions set out on the face of the Bill and where the Games are not due to take place until 2014.

  • This power is designed to tackle procedural issues as outlined above and will not be dealing with substantive issues. We, therefore, feel that negative procedure would be the most appropriate considering the pressures on parliamentary time.

Section 47(1): Ancillary provision

7. The Committee asked the Scottish Government to consider providing that the exercise of this power should be subject to the higher degree of Parliamentary scrutiny of affirmative procedure where the effect of the exercise of the power is to modify the Bill itself or the application of primary legislation.

  • It is our view that this power cannot be used to amend or repeal the Bill or any other primary legislation. The power is restricted by section 47(2) to allow an ancillary order to do no more than apply or disapply primary legislation for Games purposes. Primary legislation can be applied in a modified manner but there is no power to make textual amendments.
  • Since the Bill is to have effect for a relatively short period of time (with most of the provisions having practical effect during the Games only), our preference is for both the Bill and subordinate legislation made under it to be capable of standing, and correspondingly falling, alone. This is why, unlike many other ancillary powers, section 47 has been drafted so as to prevent it from being capable of being used to modify (i.e. amend or repeal) primary legislation.
  • We have, for the same reason, drafted other provisions in the Bill so as to modify the way in which other primary legislation applies for Games purposes without going as far as amending or repealing legislative text. Sections 38(1), 39(2) and 42 are examples of this technique.
  • The power cannot be used to do anything other than implement temporary measures which are ancillary to (but which do not reverse or subvert) substantive provisions elsewhere in the Bill. As such ancillary measures cannot be implemented by textually amending primary legislation, we think that negative resolution procedure is appropriate.
  • It is also worth noting that we do not share the assumption that subordinate legislation which amends primary legislation should automatically be subject to affirmative resolution. We believe that this should be determined by the impact of any amendment to legislation rather than on whether the legislation being amended is primary or secondary.

Section 50(2): Repeal

8. The Committee asked the Scottish Government to consider whether limitation of the duration of the Bill or on the exercise of the delegated powers under it should appear on the face of the Bill.

  • We do not believe that a fixed time limitation on the duration of the Bill or on the exercise of the delegated powers would be appropriate. International events have the capacity to impact on the anticipated timetable of the Games. For example, the 2001 Ryder Cup was rescheduled for 2002 following the terrorist attacks of 11 September.
  • As noted above, most of the provisions of the Bill have practical effect only during the Games and will therefore become redundant when the Games have ended. However, some provisions such as section 41 (Organising Committee funding and other assistance) may still be required for a short period after the Games to allow for the rundown of that organisation.

Footnotes:

1 Glasgow Chamber of Commerce written submission

2 North Lanarkshire Council written submission

3 Advertising Association written submission

4 OR Col 239

5 OR Col 239

6 Official Record, Commons, 18 October 2005, column 78

7 Scottish Police Federation written submission

8 Scottish Enterprise written submission

9 OR Col 417

10 Fife Council written submission

11 Scottish Rugby Union written submission

12 OR Col 246

13OR Col 237

14 ACPOS written submission

15Network Rail written submission

16 OR Col 244

17 Strathclyde Partnership for Transport written submission

18 Passengers’ View Scotland written submission

19 The figures used in this report are those in Annex A to the Financial Memorandum to the Bill as introduced. Included in the supplementary written evidence from officials is a revised version of that Annex. The revised version shows an increase in the budget from £372.977 million to £373.393 million. Although there has been a slight increase in the total budget, the level of public subsidy has remained the same. The £372.977 million budget estimate was prepared as a result of the June Evaluation Visit of the Commonwealth Games Federation reflecting the comments they had made. The £373.393 million budget was prepared in response to the formal written Evaluation Report of the Commonwealth Games Federation which was received at the end of September 2007. The supplementary written evidence shows the detailed movements between the two estimates.

20 OR Col 238

21 OR Col 246

22 OR Col 248

23 OR Col 246

24 A SPICe Briefing Paper for the Health and Sport Committee: Lottery Funding of Commonwealth and Olympic Games provides details of the expected impact on sportscotland’s funds.

25 Written submission

26 Extract from letter received by the Clerk from Nick Brown, Bill Team Leader

27 OR Col 415

28 OR Col 415

29 Scottish Institute of Sport written submission

30 Gold Seal Home Care Ltd. written submission

31Scottish Power Energy Networks