2008 Chapter 4

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These Notes relate to the Glasgow Commonwealth Games Act 2008 (asp 4) which received Royal Assent on 10 June 2008

GLASGOW COMMONWEALTH GAMES ACT 2008

EXPLANATORY NOTES

INTRODUCTION

1.     These Explanatory Notes have been prepared by the Scottish Government in order to assist the reader of the Act. They do not form part of the Act and have not been endorsed by the Parliament.

2.     The Notes should be read in conjunction with the Act. They are not, and are not meant to be, a comprehensive description of the Act. So where a section or schedule, or a part of a section or schedule, does not seem to require any explanation or comment, none is given.

SUMMARY

3.     The Act gives effect to the commitments made by the Scottish Government as part of Glasgow's bid to host the 2014 Commonwealth Games. It provides the Scottish Ministers, Councils and the Organising Committee with the powers necessary to ensure the delivery of the Games. It also provides the legislative framework needed to enable the Scottish Government to fulfil the requirements which the Commonwealth Games Federation place on host cities.

4.     The main measures of the Act:

• Create new criminal offences prohibiting unauthorised advertising and outdoor trading within the vicinity of Games locations, with penalties on summary conviction of a fine not exceeding £20,000 or an unlimited fine on conviction on indictment;

• 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);

• Provide 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;

• Provide councils with the power to make Games traffic regulation orders;

• Provide the 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;

• Provide councils with the power to issue a Compulsory Purchase Order for land within their area which they believe is required for Games purposes;

• Provide the Scottish Ministers with powers to pay grants and provide other forms of assistance to the Organising Committee of the Games and set conditions on such assistance; and

• Provide the Scottish Ministers with the power to repeal the Act from the statute book once the Games have ended.

BACKGROUND

5.     The Commonwealth Games is one of the largest multi-sport events in the world and has been held every four years since 1930, with a short intermission between 1938 and 1950. It involves elite athletes from around the Commonwealth drawn from the 71 different nations and territories who are members of the Commonwealth Games Federation.

6.     The Commonwealth Games is the only multi-sport event in which Scotland competes in its own right and responsibility for organising our participation rests with the Commonwealth Games Council for Scotland.

7.     On 16 August 2005, Glasgow launched its bid to host the 2014 Commonwealth Games. The bid had three main partners, the Scottish Government, Glasgow City Council and the Commonwealth Games Council for Scotland, who together established a Bid Team to take forward the bid on their behalf.

8.     On 9 May 2007 the Commonwealth Games Council for Scotland submitted proposals to the Commonwealth Games Federation for a Glasgow Games. This was referred to as the Candidate City File and contained detailed information on a number of areas including sports, venues, security, finance and transport.

9.     On 9 November 2007, Glasgow was elected as the Host City for the 2014 Commonwealth Games at the Commonwealth Games Federation General Assembly in Colombo, Sri Lanka. Immediately after the announcement the Scottish Government, Glasgow City Council, the Commonwealth Games Council for Scotland and the Organising Committee signed the Host City Contract as required by the Commonwealth Games Federation. This contract sets out the obligations of the parties to that contract, which include fulfilling all commitments made in the bidding process, and Commonwealth Games Federation requirements relating to the Games. The majority of these requirements are set out in the Commonwealth Games Federation Technical Manuals.

10.     The Host City Contract requires the Scottish Government to introduce legislation necessary to prohibit ambush marketing, eliminate street vending and control advertising space during the period of the Games, no later than 30 June 2010. The Technical Manuals - which form part of the Host City Contract - also contain measures which require a legislative response, for example, that "appropriate regulations should be put in place to prevent ticket scalping". The Scottish Government has also provided guarantees to the Commonwealth Games Federation that all the commitments given in the Candidate City File will be met. Some of these commitments will require new powers for the Scottish Ministers and councils to ensure they can be delivered as described by 2014. For example, new council powers are needed to allow the creation of a functional Games Route Network.

11.     As part of the process towards meeting these requirements, the Scottish Government published the "Draft Glasgow Commonwealth Games Bill: Consultation Document" on 28 June 2007. This set out draft legislative plans addressing these issues. This draft Bill was developed with particular regard to the London Olympic Games & Paralympic Games Act 2006 which was brought forward in response to International Olympic Committee requirements very similar to those of the Commonwealth Games Federation. For example, it also requires controls to be placed on advertising, street trading and ticket touting. Offences in relation to these activities now exist in relation to the 2012 London Olympic Games and Paralympic Games. These measures were extended to Scotland during the previous parliamentary session through a Legislative Consent motion.

THE ACT - AN OVERVIEW

12.     The Act contains 51 sections set out under the following headings:

• Introductory

• Street Trading etc.

• Advertising

• Ticket Touting

• Enforcement

• Trial and punishment

• Transport

• Funding etc.

• Compulsory acquisition of land

• Subordinate legislation: procedure

• Final provisions

COMMENTARY ON SECTIONS

INTRODUCTORY

Section 1: The Glasgow Commonwealth Games

13.     This introductory section sets out the interpretation of three principal terms in the Act:

"the Games" refers to the 2014 Glasgow Commonwealth Games,

"Games location" is a place in which an event, which could be a sporting or cultural event, is held as part of the Games or any other place used in connection with the Games which is specified by order as being a Games location. For example, such an order could be used to designate the Games Village as a Games location.

The "Organising Committee" is a company limited by guarantee established by the Scottish Government, Glasgow City Council and the Commonwealth Games Council for Scotland to deliver the Games. It was incorporated on 11 June 2007.

STREET TRADING ETC.

Section 2: Ban on outdoor trading in the vicinity of Games locations

14.     This section makes it an offence to trade within the vicinity of a Games location at particular times (the "trading offence"). Indoor trading (i.e. trading in a building) is not covered by the offence. Scottish Ministers are given a power to make further provision about trading around Games locations which can be used to set out further exceptions to the offence. The offence does not apply to any trading by the Organising Committee or the Commonwealth Games Federation although the trading regulations may require either or both to comply with prescribed conditions.

15.     The Commonwealth Games Federation may find it necessary to adjust the requirements which are placed on host cities, or the proposed sporting programme or venues may alter during the period leading up to the Games. For this reason, the detail of these restrictions will be brought forward in subordinate legislation in order to make a proper assessment of what is required and where closer to 2014. The regulations are likely to apply restrictions for different periods and in different ways for different Games locations. This would 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. For example, Strathclyde Park is currently proposed to be used only for the one day Triathlon where as the SECC Arena is currently proposed to be used for 11 days of Netball. The extent and the duration of restrictions will therefore reflect the nature and use of the venue.

Section 3: Trading activities, places and prohibited times

16.     This section allows the trading regulations to define what activities will be treated as trading. It also allows those regulations to define what is meant by "vicinity of a Games location" for this purpose and to set the times during which the trading prohibition will apply.

Section 4: Authorised trading

17.     This section allows the trading regulations to determine circumstances in which the Organising Committee may authorise persons to trade in a way which would otherwise constitute a trading offence. Such authorisation will be subject to any conditions imposed by the trading regulations and by the Organising Committee under section 5.

18.     Subsection (2) provides that the regulations may require the authorisation to be granted only if a trading licence already exists for a particular place, or if the person applying for authorisation already holds a trading licence. Regulations may also provide for the authorisation to be treated as if it were a trading licence which would eliminate the need for the authorised trader, for example, to obtain a street trading licence under another enactment once authorised under the Act. Regulations may also set out the procedure for application for authorisation, set a limit on the level of fees that may be charged and provide for a right of appeal against a refusal by the Organising Committee to grant authorisation.

Section 5: Trading authorisation: conditions

19.     This section provides that an authorisation to trade under section 4 will be subject to any conditions imposed by the trading regulations and may be subject also to conditions imposed by the Organising Committee. Trading in breach of these conditions will constitute unauthorised trading and will be an offence.

Section 6: Trading permitted without authorisation

20.     This section allows the trading regulations 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. This could be by reference to the person who is trading, the nature or purpose of the trading or the application of any profits. 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.

Section 7: Existing trading licences

21.     This section makes it clear that holding a trading licence granted before or after this section comes into force is not a defence against a trading offence under the Act. A person who holds or is awarded an ordinary street trading licence will, therefore, be required to obtain authorisation from the Organising Committee in order to trade in the vicinity of a Games location at a prohibited time without committing an offence under the Act.

Section 8: Alternative arrangements where existing trading banned during Games

22.     This section places a duty on councils to work with existing licensed street traders and market operators to try to identify alternative trading arrangements during the times when the trading offence applies.

Section 9: Guidance and information about trading

23.     This section allows the Organising Committee to issue guidance about trading within the vicinity of Games locations. It also allows for the trading regulations to require prescribed persons to inform others of the likely effect of the ban on trading in the vicinity of Games locations (section 2) and of the trading regulations. Those regulations may also require a person who grants a trading licence to inform the licensee of the effect of section 7.

ADVERTISING

Section 10: Ban on advertising in the vicinity of Games locations

24.     This section makes it an offence to advertise in the vicinity of a Games location at particular times (the "advertising offence"). The Scottish Ministers are given a power to make further provision about advertising around Games locations which can be used to set out further exceptions to the offence. The offence does not apply to advertising by the Organising Committee or the Commonwealth Games Federation although the advertising regulations may require either or both to comply with prescribed conditions.

25.     As with the ban on street trading within the vicinity of Games locations (Section 2), much of the detail of the restrictions has been left to secondary legislation in order to enable a full assessment of what is required closer to 2014. This could involve changes in the requirements of the Commonwealth Games Federation or proposed venues which may affect the detail of the regulations.

Section 11: Advertising activities

26.     This section provides a definition of activities that will be treated as advertising. It must be a communication to the public or a section of the public for the purpose of promoting an item, service, trade, business or other concern. An illustrative (but not exhaustive) list of activities which will be treated as advertising if done for that purpose is set out in subsection (2).

27.     Subsection (4) allows the advertising regulations to define what is meant by "vicinity of a Games location" for this purpose and to set the times during which the advertising prohibition will apply.

Section 12: Authorised advertising

28.     This section allows the advertising regulations to determine circumstances in which the Organising Committee may authorise persons to advertise in a way which would otherwise constitute an advertising offence. Such authorisation will be subject to any conditions imposed by the advertising regulations or by the Organising Committee under section 13.

29.     Subsection (2) states that the regulations may provide that authorisation is to be granted only if an advertising licence already exists for a particular place, or if the person applying for authorisation already holds an advertising licence. Regulations may also provide for an authorisation to be treated as if it were an advertising licence. This could allow an advertiser to apply to the Organising Committee for authorisation without having to also apply to the council for an advertising licence. Regulations under this subsection may also set out the procedure for application for authorisation, set a limit on the level of fees that may be charged and provide for a right of appeal against a refusal by the Organising Committee to grant authorisation.

Section 13: Advertising authorisation: conditions

30.     This section provides that an authorisation to advertise under section 12 will be subject to any conditions imposed by the advertising regulations and may be subject also to conditions imposed by the Organising Committee. Trading in breach of these conditions will constitute unauthorised advertising and will be an offence.

Section 14: Advertising permitted without authorisation

31.     This section allows the advertising regulations 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. This could be by reference to the person who is advertising, the nature or purpose of the advertising or the circumstances of its display.

Section 15: Existing advertising licences

32.     This section makes it clear that holding an advertising licence granted before or after this section comes into force is not a defence against an advertising offence under the Act. A person who holds or is awarded an ordinary advertising licence will, therefore, be required to obtain authorisation from the Organising Committee in order to advertise in the vicinity of a Games location without committing an offence under the Act.

Section 16: Guidance and information about advertising

33.     This section allows the Organising Committee to issue guidance about advertising within the vicinity of Games locations. It also allows for the advertising regulations to require prescribed persons to inform others of the likely effect of the ban on advertising in the vicinity of Games locations (section 10) and of the advertising regulations. Those regulations may also require a person who grants an advertising licence to inform the licensee of the effect of section 15.

TICKET TOUTING

Section 17: Ban on ticket touting

34.     This section makes it an offence to tout Games tickets (the "touting offence"). A Games ticket is defined in section 48 as any ticket, card, electronic device or other thing which entitles an individual to attend an event held as part of the Games or any other event connected with the Games specified by order made by Ministers.

35.     Subsection (2) sets out what is meant by touting a Games ticket. A person touts a Games ticket if that person does any of the acts mentioned in subsection (3) in a public place or, even if not in a public place, does the act in connection with the selling of a Games ticket for more than its face value or with a view to making a profit. Note that it is the person disposing of the ticket who must be aiming to make a profit from it, even if the act which constitutes the offence is carried out by someone else. (For example, an advertiser may commit an offence by advertising the sale of tickets by a person where that person is making a profit from the ticket sales, whether or not the advertiser makes a profit from selling advertising space to the ticket seller is irrelevant. Subsection (7) makes this clear.)

36.     Subsection (3) lists various activities relating to selling or trading tickets or otherwise dealing in ticket sales. These include selling or offering to sell a Games ticket, exposing a Games ticket for sale or advertising such a ticket, making a ticket available for sale by another person of giving away a ticket where that is conditional upon the payment of booking fee or other charge or the acquisition of some other goods or services. These are all acts that may constitute a touting offence under subsection (2).

37.     Subsection (4) gives the Organising Committee and the Commonwealth Games Federation the power to sell or deal with tickets in ways which would otherwise be considered touting, and gives the Organising Committee the power to authorise other persons to sell or deal with tickets in ways which would otherwise be considered touting.

38.     The Act cannot make touting activity an offence in other jurisdictions but subsection (5) ensures that persons who engage in touting in places outwith Scotland (perhaps by using computer systems located in another country to effect internet sales) will commit an offence under Scots law.

39.     Subsection (6) makes it clear that a booking fee or other charge is counted as part of the amount paid for a Games ticket for the purposes of determining whether or not a touting offence has been committed (i.e. in determining whether a sale is for an amount above face value). Similarly, the value of anything acquired along with the ticket will count towards the amount paid for the ticket (for example, if a small item is sold at an inflated price and the buyer gets a free ticket with the item then that sale and the price paid could be treated as sale of a games ticket for that price). Finally, if a ticket is exchanged rather than sold for money the value of the thing exchanged may be counted as the price paid for the ticket.

Section 18: Exception for certain advertisers etc.

40.     This section provides an exception for advertisers from committing a touting offence if the sale of the ticket would be for above the face value of the ticket or with a view to making a profit but the advertiser does not, and could not reasonably be expected to know that fact. If, for example, a newspaper advert for Games tickets displayed a sale price that was obviously in vast excess of the normal face value of tickets to comparable sporting events, the publication that carried that advert could not argue that it could not reasonably have known that the sales were for above face value. In which case the advertising publication would be committing a touting offence.

Section 19: Use of internet etc.

41.     This section allows the Scottish Ministers to make regulations to determine circumstances in which use of the internet or other electronic media may or may not constitute a touting offence.

Section 20: Authorised ticket sales

42.     This section allows authorisations given for the purpose of section 17(4)(b) to be subject to conditions imposed by the Organising Committee and states that such authorisation must be given in writing. Subsection (4) gives power to the Scottish Ministers to make regulations limiting the amount of any fee charged by the Organising Committee in relation to authorisations.

ENFORCEMENT

Section 21: Enforcement officers

43.     This section provides a definition of "enforcement officers" who are individuals designated as such by the Organising Committee.

44.     Subsection (2) restricts the power of designation so that only inspectors of weights and measures (commonly known as trading standards officers) or other individuals who meet criteria specified in regulations may be designated. Designation of an inspector of weights and measures may only be made with the consent of the council which appointed the person to be an inspector of weights and measures.

Section 22: General enforcement power

45.     This section sets out the general range of powers that this Act confers on enforcement officers. Subsection (1) allows enforcement officers to take such steps as they consider appropriate for the purpose of preventing or ending the commission of a Games offence or in connection with proceedings, or anticipated proceedings, in respect of a Games offence.

46.     Subsection (2) specifies steps that are included within this general power which include seizing, concealing or destroying anything which the officer believes to be an infringing article. This power is subject to restrictions set out in section 23.

47.     Subsection (3) defines an "infringing article". This could be an article used in connection with the commission of a Games offence or receptacle used as a container for such an article, for example a box containing goods being sold by an unauthorised street trader.

48.     Subsection (4) enables an enforcement officer to be assisted by another person as may be reasonably required for the purpose of taking action in this section.

Section 23: Restrictions on general enforcement power

49.     Subsection (1) sets restrictions on the power of enforcement officers to seize infringing articles. They can only do so for the purpose of ending the commission of a Games offence, preventing the future commission of such an offence, enabling the article to be used in proceedings for such an offence (as evidence) or to enable the article to be forfeited in accordance with Part 2 of the Proceeds of Crime (Scotland) Act 1995 (c 43) (which makes provision for property which has been used in crime to be forfeited).

50.     Subsection (2) requires a seized article to be returned when retention of it is no longer justified for the purposes mentioned in subsection (1); however, this requirement does not apply to perishable articles which no longer have any commercial value.

51.     By virtue of subsection (3) an advertisement may be concealed for the purpose of ending the commission of an advertising offence or for preventing the further commission of such an offence. Concealment must cease when no longer required for either of these purposes (subsection (4)).

52.     Under subsection (5) an infringing article may be destroyed only if it is appropriate to do so to end or prevent the further commission of an advertising offence and seizure or concealment would not be a reasonable course of action in the circumstances. Destruction is, therefore, only available as a measure of last resort.