UEFA European Championship Bill: BRIA

Options

Prior to development of the Act, four options were considered by the Scottish Government.

Option 1: Do nothing (reliance on existing legislation and regulations)

Under this option it is expected that the event would go ahead and that existing legislation would be relied upon to try to deliver the required protection of commercial rights and discourage ticket touting.

Existing powers are as follows:

Street Trading – In Scotland street trading is regulated under the Civic Government (Scotland) Act 1982^[6], administered by local authorities. The 1982 Act provides for a street trader's licence to be required for trading by a person whether trading on their own or as an employee. There are certain exemptions set out, relating to the sale of certain goods, and for activities in respect of which a pedlar's certificate has been granted. Governance under the Civic Government (Scotland) Act 1982 is generally not sufficient to meet the key aims of the policy, largely due to the inability to suspend current licences in the event zones on particular days and limit trading to approved event sponsors.

Advertising – In Scotland the display of advertisement is controlled by the Town and Country Planning (Control of Advertisements) (Scotland) Regulations 1984^[7]. Local authorities are responsible for the day to day operation of advertising control. Although the Town and Country Planning (Control of Advertisements) (Scotland) Regulations 1984 give local authorities the ability to require the removal of illegal advertisements on private property, the removal process is too slow to enable Glasgow City Council to deal effectively with advertisements installed during the Championship. Ambush marketers in particular are becoming particularly innovative in finding ways to associate their brand, in an unauthorised fashion, with large scale high profile events.

Ticket Touting – Scots law restricts ticket touting through section 55 of the Civic Government (Scotland) Act 1982. This does not specifically criminalise the touting of tickets but rather causing annoyance, either to persons being approached to purchase tickets, or any other person who has reasonable grounds to be annoyed by the selling operation. The offence can be committed only by touting in a public place, and therefore does not cover ticket touting by electronic methods. Furthermore, the offence arises only where touting has continued in spite of a request from a constable in uniform that the tout desists. The Civic Government (Scotland) Act 1982 is not truly concerned with the prevention of ticket touting but rather the prevention of a public nuisance. As such it is incapable of satisfying the policy intention. In addition, anyone selling a ticket would have to provide information regarding the face value, location and any restrictions or conditions as per the Consumer Rights Act 2015 Chapter 5^[8]. Any ticket conditions (such as prohibiting resale) could be enforced at the stadium to try to discourage touting, although by that point the person buying the ticket would be the one affected, rather than the person selling the ticket. This is unlikely to discourage ticket touts, though it may help to discourage the public from buying touted tickets. This is not ideal and it would be better to have specific provisions to limit ticket touting, both in person and by electronic methods, to discourage people who wish to try to profit from reselling match tickets. For street trading of tickets, if this is not licensed under the Civic Government (Scotland) Act 1982 an offence will have been committed.

Benefits

This option would mean the Scottish Government would not be required to produce the Act and associated regulations, but would result in the Championship not meeting the assurances that have been provided to UEFA as a condition of hosting the event. It is expected that the event would still go ahead under this option, although it is possible that UEFA could decide not to proceed with Glasgow as a host of the event.

There would also be less necessity for increased resource from Glasgow City Council (estimated at £45,000-£85,000) and Police Scotland (£5,000) to enforce the enhanced regulation, so this would be a saving compared to option 3.

Businesses that are affected by options 2, 3 and 4 would not be under this option and would be able to trade as usual. This is likely to be most beneficial to street traders in the Hampden Park event zone who would not be able to trade in their usual location under the other options.

Costs

If Scottish Ministers had not prepared legislation then Glasgow would be unlikely to meet UEFA's requirements to host the Championship. Without detailed regulation to prevent ambush marketing or trading activity, UEFA may find it more difficult to secure investment commitment from sponsors, for example to purchase advertising space. This could potentially have a significant negative financial impact on the delivery and success of the Championship in Scotland. Not meeting the standards required by UEFA could have a negative impact on Scotland's reputation as a place to hold major events, and might make it less likely that we are successful in bidding for events in the future, which could have a negative economic impact.

Summary

Ultimately, relying solely on existing legislation would not act as a sufficiently strong deterrent to ambush marketing and trading and would not meet UEFA requirements. Existing legislation was not drafted to support such a large and time critical event as the UEFA Euro 2020 Championship. It is therefore insufficient for example, to prevent illegal ambush marketers from benefiting from an association with the Championship. Nor is it considered sufficient to discourage ticket touting.

Option 2: Voluntary restrictions on trading, advertising and ticket touting

Under this option agreement would need to be reached with street traders not to trade when the zones are in operation on a voluntary basis and a similar approach would be taken with owners of advertising spaces and other businesses.

Benefits

This option would also avoid the cost to the Scottish Government of producing the Act and associated regulations. Street traders and advertisers would not be subject to enforcement action if they accidentally or intentionally breached the voluntary restrictions, though this could disproportionately benefit businesses that decide to ignore the voluntary suspension of trading and advertising compared to businesses that adhere to the voluntary restrictions. There would also be the benefit of reduced resource requirements from Glasgow City Council and, to a lesser extent Police Scotland, for enforcement as for option 1.

Costs

Relying on voluntary compliance with advertising and trading restrictions is not thought to provide sufficient assurance to UEFA that its requirements would be met and would not provide any mechanism to address breaches, due to its voluntary nature. Without this assurance through legislation, UEFA may find it more difficult to secure investment commitment from sponsors, resulting in similar financial and reputational challenges as set out in Option 1.

Summary

This would rely entirely on the goodwill of street traders, advertisers and others to meet the restrictions voluntarily. There would be no way to ensure compliance if this voluntary agreement was breached. Therefore this option would not meet the conditions of hosting the event.

Option 3: Proportionate and limited restrictions (preferred option)

Introduce legislation which prohibits ticket touting for profit and restricts street trading and advertising in 3 event zones in Glasgow, to protect the rights of sponsors during Euro 2020 in June and July 2020.

The Scottish Government is taking a proportionate approach given the size and duration of the Championship, so as to balance protecting commercial rights with the impact on businesses. For example the Scottish Government has limited the scope of restrictions by introducing legislation which will only restrict specific activity within a limited area in three parts of Glasgow for a short and specified time. This proportionate approach reflects the intention of the Scottish Government to ensure that for the majority of businesses in Glasgow it will be business as usual during Championship time. This option will also ensure that sponsors' brand association rights are not compromised in key event locations.

Section 6 of the Act specifies that it is an offence to trade outdoors in an event zone during a prohibited period and Section 12 provides that it is an offence to advertise in an event zone during a prohibited period. The Act enables Scottish Ministers to make associated regulations which set out the extent of the event zones, timings when the restrictions will apply (though these must be within the event period defined in the Act), and exceptions to the trading, advertising and ticket touting offences.

To progress with this option, Scottish Statutory Instruments (SSIs) will be laid before the Scottish Parliament. Illustrative regulations have been shared with Parliament and draft regulations were laid on 17 February 2020. Other regulations will be laid in due course. Maps of the event zones are included in the Trading and Advertising Regulations to reflect the boundaries where the restrictions apply and will be enforced.

It is the intention that certain advertisements and trading activity will be excepted from the restrictions. Details of this are set out in regulations. This includes selling, distributing or providing current newspapers; busking; advertisements on or in moving vehicles, for example buses, vans or trucks; and advertisements displayed on products for sale, as long as they are less than 0.1 square metres in area.

Charity collections in the event zones will be permitted providing that a permission has been granted by Glasgow City Council under section 119 of the Civic Government (Scotland) Act 1982, making use of an existing process. Details of exceptions to the restrictions will be set out in guidance published by Glasgow City Council.

The Act provides an exemption from the ticket touting offence where a ticket is auctioned and the proceeds donated to charity. The ticket touting regulations provide for certain exceptions to the ticket touting offence – for example where electronic data is only being cached, stored or hosted. Again, this will help to ensure that the restrictions are proportionate.

The Scottish Government recognises that the effectiveness of enforcement activity is paramount. It is equally important that an undue burden is not imposed on the pool of resource available to carry out this activity. The Act allows Glasgow City Council to designate an individual as an enforcement officer only if they are an inspector of weights and measures, or are authorised by a local authority to enforce the provisions of section 92 of the Trade Marks Act 1994, or are employed by Glasgow City Council or by another local authority and are, in the Council's view, sufficiently experienced in exercising functions of the kind conferred on enforcement officers by the Act.

The extent of enforcement officers' powers has been considered carefully and the Act places a range of restrictions on these. For example, an infringing article may only be destroyed if it concerns the advertising offence and if the officer does not consider seizing or concealing the article to be a reasonable alternative course of action in the circumstances. Powers to enter and search a home are also restricted to reasonable times when the officer is accompanied by a police constable, or where a sheriff has granted a warrant. The enforcement provisions in the Act, including level of penalties associated with this offence, are very similar to those included in the Glasgow Commonwealth Games Act 2008.

In relation to compensation, the Act sets out that if damage is caused by an enforcement officer or by a constable accompanying an enforcement officer then compensation is payable by Glasgow City Council. Compensation is only payable by the Scottish Police Authority if the damage is caused by a police constable who is not accompanying an enforcement officer. The compensation for enforcement action regulations set out further details on the process to apply for compensation, including information to be submitted and timescales for making a decision. The regulations have been discussed with Glasgow City Council, the Scottish Police Authority and Police Scotland. It is expected that the number of compensation applications will be very low as enforcement officers and police officers will carry out their role in such a way so as to minimise damage. Compensation is not payable where someone has committed a Championship offence.

Benefits

By introducing legislation to support the Rights Protection Programme (a requirement of hosting the event) which adopts a proportionate and time limited approach, the Scottish Government will help to ensure successful delivery of Euro 2020.

This option will ensure there is a safe and celebratory look and feel within proportionate boundaries and will help to maintain the free flow of spectators. Importantly, it will help to secure sponsorship funding by ensuring sponsors' exclusive rights to associate their brands with the UEFA Euro 2020 Championship. Without this sponsorship the event may need to rely more heavily on public investment.

The ticket touting offence will protect UEFA's rights as the only authorised seller of tickets in the primary and secondary market. This will help to ensure fair access to tickets so that as many fans as possible can enjoy the matches. The exception to this offence for charity auctions will allow charities to benefit from fundraising through auctions of tickets, although it is important to note that UEFA should be contacted where an auction is planned in order to ensure that tickets will be valid for entry.

This option will help to ensure that the wider economic, social and cultural benefits of the Championship are realised and enhances Scotland's reputation as the perfect stage for major events, in line with requirements of the organisers, potentially increasing the likelihood of Scotland to be successful in bidding for any future major events.

Costs

The costs of the Act and regulations are considered to be relatively minor, especially in relation to the economic opportunity provided by co-hosting the Championship (as set out in the Economic Impact section). The main costs are for Glasgow City Council in relation to enforcement activity that is required to ensure compliance with the provisions in the Act (£45,000-£85,000). Glasgow City Council expects to incur these costs from early 2020 until shortly after the Championship ends, with the bulk of costs arising in June and July. There are also expected to be some small costs to other organisations including Police Scotland, the Scottish Government, the Scottish Courts and Tribunals Service and the Crown and Procurator Fiscal Service as a result of the Act.^[9] The overall cost of the Act to these five public sector organisations is £80,000-£130,000.

There are no street trading licences currently in place for the proposed George Square and Merchant City event zones, so no existing street traders will be affected by these zones. As of 28 August 2019, Glasgow City Council has indicated there will be an impact on 107 street traders (113 licences). There are 23 Pedlars licences issued by Police Scotland in the event zones. These traders will be unable to trade when the zone is in operation. Glasgow City Council has a duty to offer affected traders alternative trading arrangements, which we expect will mitigate the impact of the restrictions and allow them to still benefit from the opportunity the Championship represents.

A small number of media owners may be able to generate less revenue if they are unable to sell all advertising space in the zones to approved sponsors of the event. Some businesses may need to remove or cover advertising when the event zones are in operation, though this has been mitigated by a number of exceptions to the advertising offence. Certain advertising that is in place in the event zones can remain such as fixed/permanent branding of businesses and other advertising permitted by the Town and Country Planning Regulations. There is also an exception to allow advertising that is not in a competing product category to UEFA sponsors to remain in place as long as it is in place when the regulations come into force. Glasgow City Council will carry out an audit of existing branding before the event. This will help to minimise the impact of the advertising restrictions on businesses. The council will also publish guidance so that businesses understand what is and is not permitted.

Summary

In meeting UEFA's requirements for Rights Protection Programme, the Scottish Government wants to create a backdrop that will be fit to present Scotland's celebration of the Championship locally and to the world. This not only includes the stadium where there are spectators and extensive television camera coverage, but also within the city centre where it will be important to create the celebratory look and feel of the Championship while ensuring safe and secure routes allowing the free flow of spectators, while also safeguarding sponsors brand association rights.

The costs to public sector organisations and businesses are considered proportionate given the expected wider economic benefits of the event and steps that have been taken to minimise the impact on local businesses, for example through limiting the number of event zones to three, minimising the size of all three zones, offering alternative arrangements, and creating exceptions to the advertising, trading and ticket touting restrictions.

Option 4: Extended advertising and trading restrictions

This option would be an extension of option 3 in that there would still be a necessity to have an Act and associated regulations. This option would also meet UEFA's requirements. The legislation would, however, be more wide-ranging and stringent preventing all advertisers and traders from conducting business within a wider space in and around event zones and for longer extended periods of time. This could extend to advertising not only in the three event zones but also in the vicinity of event zones and on vehicles entering the event zones (such as taxis and buses) that are exempt under option 3. Under this option there would be additional event zones to include all train stations and Glasgow airport. The three event zones included under option 3 would also be larger under this option and the Merchant City zone would be in operation throughout the Championship.

Benefits

The introduction of more far reaching and stringent restrictions would exceed the requirements of UEFA. There would also be a high satisfaction level assured from Championship sponsors, potentially more so than under option 3. As the restrictions would apply to more locations, giving event sponsors greater exclusivity than under option 3.

Costs

This option would be expected to increase the number of traders and advertisers negatively affected as a result of the increase in the number of event zones, extended boundaries of the three zones included under option 3 and extended time periods.

Increasing the restrictions on advertising and trading activity could have a detrimental impact on enforcement activity. It would most certainly increase the costs to Glasgow City Council who would have to increase its enforcement officer resource, and potentially the number of enforcement officers it might need to have seconded from other local authorities, in order to cover wider geographical areas for longer periods of time. The overall costs to public sector organisations could be expected to be in excess of the £130,000 upper estimate for option 3.

Summary

This option would be likely to result in high satisfaction from Championship sponsors, giving them scope to maximise revenue. However, it would be expected to increase the number of traders and advertisers negatively affected as a result of the increase in the number of event zones, extended boundaries of the three zones included under option 3 and extended time periods.

Increasing the restrictions on advertising and trading activity would be expected to increase the costs of enforcement activity, which would mainly fall to Glasgow City Council.

Ultimately, this option goes beyond UEFA's requirements and is not considered proportionate.

Sectors and groups affected

As the key purpose of the Act and associated regulations is to restrict ticket touting, trading and advertising activity for the reasons outlined under the policy objectives, there would be an impact on both traders and advertisers under options 3 and 4. Glasgow City Council would also be affected under both these options as local authority enforcement officers would be carrying out the enforcement. There would also be an impact on Police Scotland as police constables may also take enforcement action.

Street trading – Under option 3 (preferred option) street traders with static trading licences and street traders with mobile trading licences will not be permitted to trade in the event zones. As of 28 August 2019, Glasgow City Council has indicated that there are currently 107 street traders (113 licences) and 23 Pedlars licences, issued by Police Scotland, around Hampden Park that are expected to be affected by option 3. Most traders do not operate in the Hampden Park zone every day (though some are permitted to do so under the terms of their licence). The majority trade specifically for football matches or other events held at Hampden. There are no existing street traders in the George Square and Merchant City zones.

In considering how this group could be affected the Scottish Government's aim is to minimise the burden on businesses, and small businesses in particular, maintaining business as usual as far as possible across Glasgow as a whole. This was considered along-side the strong commitment to maximise the wider benefits of hosting the Championship. For this Championship a temporary licencing application scheme has not been put in place for the event zones, as a requirement of hosting the Championship is that only UEFA or Glasgow Life approved partners will be allowed to trade. None of the existing street traders meet this criterion but we have offered contact details for UEFA and Glasgow Life should any existing trader wish to explore these options.

Charity collections in the event zones will be permitted providing that a permission has been granted by Glasgow City Council under section 119 of the Civic Government (Scotland) Act 1982, making use of an existing process. This will ensure that numbers are managed.

The impact on trading for other businesses (for example shops, car garages, bars and restaurants) has been minimised through a number of exceptions in the trading regulations.

Advertising – The Scottish Government expects that the Act and associated regulations would only have a limited effect in relation to advertisers, given the extent of the proposed event zones. In addition, exceptions to the restrictions are set out in regulations as described elsewhere in this BRIA. It is possible that the majority of the advertising space in the zones could be sold to sponsors or Championship partners, in which case any negative impact of the restrictions on media owners would be reduced. The regulations provide that advertising space which has already been sold and cannot be cancelled without a financial penalty, will be permitted. Again, this should minimise the impact on media owners and advertisers. There are a number of exceptions in the regulations to the advertising offence which are expected to minimise the impact on shops, bars, restaurants and other businesses in the event zones.

Local authorities and Police Scotland - There will be implications for Glasgow City Council in conducting its authorisation and enforcement role. The designated enforcement officers will be experienced local authority officers trained in the detailed provisions of the Act and Regulations. The police may also take enforcement action, and so there is also a potential impact on Police Scotland, however, this has been minimised by the Act provisions to allow enforcement officers to enforce the restrictions, not only the police. The enforcement activity will range from a warning being given to ensure the offender is aware how to comply with the restrictions to confiscation and destruction of property.