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PRE REGULATORY IMPACT ASSESSMENT
GLASGOW COMMONWEALTH GAMES BILL
1. Should Scotland win its bid to host the 2014 Commonwealth Games, this draft Bill will institute the legislation required to support the delivery of the Games and to protect them from ambush marketing.
BACKGROUND
2. As part of the bidding process, the Scottish government gave a commitment that should Glasgow succeed, legislation necessary to prohibit ambush marketing, eliminate street vending and control advertising space during the period of the Games would be in place no later than 30 June 2010. Additional measures will also be needed to ensure the deliverability of the Games. For example, ensuring that a Games Transport Plan is developed and implemented, that land necessary to deliver the Games can be secured and that mechanisms are in place to fund the Organising Committee of the Games.
3. The winning bid will be announced in Sri Lanka on 9 November 2007. Should Glasgow be successful, we intend to introduce the Bill to the Scottish Parliament shortly thereafter. The secondary legislation needed to institute the necessary regulations will be made around two years before the Games.
AMBUSH MARKETING
4. The Town and Country Planning (Scotland) Act 1997, the Trade Marks Act 1994, the Trade Descriptions Act 1968, the Control of Misleading Advertising Regulations 1988 and the common law of "passing off" already provide some protection against these activities. Nonetheless the short term, high profile nature of these Games leaves it vulnerable to ambush marketing strategies which could successfully operate within the law. The Bill seeks to fill the gaps in the current legal framework to allow the Games to take place free of ambush marketing and unregulated commercialisation.
5. The Commonwealth Games Federation ( CGF) impose a number of requirements and restrictions on cities intending to host the Commonwealth Games. These are set out in the Host City Contract ( HCC) and various Technical Manuals. The Commonwealth Games Manuals are annexed to the Host City Contract, of which the Scottish government will be a signatory, and are legally binding in so far as they relate to the minimum requirements they contain.
6. As mentioned above, the Scottish government has provided a written guarantee (number 7.2.1 in the Candidate City File) confirming that legislation necessary to effectively reduce and sanction ambush marketing (e.g. preventing competitors of Commonwealth sponsors from engaging in unfair competition in the vicinity of Commonwealth sites), eliminating street vending, control advertising space (e.g. billboards, advertising on public transport, etc.) as well as air space (to ensure no publicity is allowed in such airspace) during the period of the Commonwealth Games (including two weeks before the Commonwealth Games), will be in place no later than 30 June 2010.
7. The Host City Contract requires Commonwealth Games venues to be provided " free of advertising, commercial signage, and all other third party sponsor material not previously approved in writing by the CGF Executive Board" (2014 HCC, pg 23). The Commonwealth Games Manual: Brand Protection also states that venues must be delivered " free of any branding, signage, building naming rights, advertising, commercial and/or other propaganda (clean venues) and that during the period of the Games the venues and their immediate precincts are free of any unauthorised branding, signage, advertising, commercial and/or other propaganda" ( CG Manual: Brand Protection, pg 17). In their definition of a clean venue, the Commonwealth Games Federation also state that " All structures, facilities and areas that are visible by spectators, accredited people and broadcast cameras at the Commonwealth Games, should be free of commercials advertising and other messages deemed inappropriate for the Commonwealth Games environment" ( CG Manual: Brand Protection, pg 10).
8. Ticketing is the first and highest profile interaction of the public with the Commonwealth Games. Fairness and equity are seen as the first principle of any ticketing strategy, as outlined in the "Commonwealth Games Manual: Ticketing". Any ticket touting would undermine that principle, reduce equity of access and erode public confidence in the Games. The manual also states that " The unauthorised sale of tickets should not be allowed" and that " Appropriate regulations should be put in place to prevent ticket scalping". The CGF also require the Organising Committee to produce a ticketing strategy that includes strategies to prevent scalping of tickets.
Objective
9. There is therefore a clear requirement placed on the Scottish government, to control street trading and advertising within the vicinity of Games venues and to prohibit the touting of Games tickets.
Risks being addressed
10. If the Scottish government does not deliver the above objectives, then it risks failing to meet its obligations under the Host City Contract or those commitments given in the Candidate City File. These commitments will be legally binding on signature of the Host City Contract if Glasgow is successful in its Bid. The CGF would then be entitled to seek legal action if those commitments were not delivered. There is also the risk that failure to deliver control of advertising space, street trading and ticketing could undermine the confidence of potential sponsors and therefore reduce the amount of private sponsorship the 2014 Games could attract.
11. It is difficult to predict the extent of unauthorised advertising that might occur during the Games, however, at the 2002 Games in Manchester there were 78 recorded Level 1 advertising infringements at Games events. There were also 67 recorded incidents of ticket touting around Games venues. These can only be used as a rough indication as the 2014 Games will take place in a different legislative and geographic context. They may also use different definitions of offences.
Options
12. Options to deal with these issues would be to:
Option 1 Do nothing and host the 2014 Games with existing legislative measures in place.
Option 2 Attempt to meet CGF requirements through non-legislative measures.
Option 3 Legislate to meet CGF requirements.
Benefits
13. Option 1 would leave a free market for companies and individuals to derive commercial benefit from the Games and there would be reduced expenditure related to enforcement. We would however risk legal action by the CGF for failing to meet the commitments given during the Bid phase. This could in turn undermine the confidence of potential sponsors and subsequently the level of sponsorship provided. Unregulated commercialisation may also threaten the image of the Games, and therefore also of Scotland's ability to deliver major events.
14. Option 2 would have the same risks and benefits associated with option 1, however, these may be mediated by non-legislative measures such as information campaigns. These would attempt to win the support and compliance of the business community and individuals by explaining why its important to maintain "clean venues" and control of any secondary ticket market. However, these are unlikely to be effective given the lucrative commercial opportunities provided by the Games.
15. Option 3 would introduce the necessary legislation to ensure commitments given during the Bid process would be met, therefore, protecting the reputation of the Scottish government and reducing any risk of legal action by the CGF.
Consultation
16. These options have been consulted on internally within the Scottish Executive and are now being opened up for wider consultation.
Equality, Equity and Fairness
17. The proposals will not have a greater impact on a particular racial, gender or income group, nor will it have a greater impact on any particular age group or those with disabilities. However, given the concentration of proposed Games venues in the Glasgow area, any subsequent legislation is likely to have a proportionally higher impact on that area.
Enforcement, sanctions and monitoring
18. The proposed measures will be enforced primarily by dedicated Enforcement Officers who are likely to work within the Organising Committee of the Games. They will be empowered to enforce the advertising, street trading and ticket touting offences proposed in the draft Bill. Criminal sanctions will be attached to these offences.
Competition assessment
19. The provisions contained within the draft Bill are likely to impact on marketing and other commercial opportunities associated with the Games. The Act would provide Scottish Ministers with the power to regulate street trading and advertising within the vicinity of Games venues. It is far too early to estimate with any accuracy the likely impact on competition as much depends on how the regulations are drafted, employed and enforced. We will assess the effects on competition when the regulations are made.
20. The ticket touting provisions are designed to ensure that the public are given fair and equal access to Games tickets through prohibiting the unauthorised sale of tickets above face value.
Small/micro firms impact test
21. These provisions are likely to have an impact on small firms. It is too early however to assess the impact of these on existing firms and these will be addressed in connection with the secondary legislation provided for in the Bill. Ministers will consult the business community on the draft Bill and direct the Organising Committee to consult business when preparing their recommendations for secondary legislation.
Summary and Recommendation
22. As stated above, the objective is to ensure compliance with the requirements of the CGF through controlling street trading and advertising within the vicinity of Games venues and prohibiting the touting of Games tickets. We believe that this would be best achieved through the measures outlined in the draft Bill.
OTHER PROVISIONS
23. Other measures are also necessary in order to ensure the deliverability of the Games.
Objective
24. We need to ensure that a Games Transport Plan is developed and implemented, that land necessary to deliver the Games can be secured and that mechanisms are in place to fund the Organising Committee of the Games.
Risks being addressed
25. The Scottish government has provided guarantees that the commitments given in the Candidate City File will be met. This includes making sure that the Games as described in the document can be delivered in reality. These provisions seek to address risks around the implementation of a Games Transport Plan, for example, by ensuring that an appropriate Traffic Regulation Order is available to Local Authorities to implement the commitment to deliver Games Lanes. It also provides powers of direction for Scottish Ministers over Local Authorities to implement the necessary Traffic Regulation Orders.
26. The Candidate City File also states that the necessary powers to secure ownership of land needed to deliver the Games will be available. Local Authorities already have a wide range of compulsory purchase powers available to them, however, given the unique nature of these Games, it was felt that a clear power to issue a Compulsory Purchase Order was needed.
27. Finally it was felt that Scottish Ministers should be given clear powers to fund the Games through the Organising Committee.
Options
28. Options to deal with these issues would be to:
Option 1 Do nothing and deliver those commitments using existing powers.
Option 2 Legislate to provide Local Authorities and Ministers with the powers needed to ensure that those commitments are met.
Benefits
29. Option 1 would remove the need for new legislation, however, our ability to deliver a functional Games Route Network and potentially some Games venues would be open to question.
30. Option 2 would provide clear and specifically designed powers to Local Authorities and Scottish Ministers to ensure that those commitments are met.
Consultation
31. These options have been consulted on internally within the Scottish Executive and are now being opened up for wider consultation.
Equality, Equity and Fairness
32. The proposals will not have a greater impact on a particular racial, gender or income group, nor will it have a greater impact on any particular age group or those with disabilities. However, given the concentration of proposed Games venues in the Glasgow area, any subsequent legislation is likely to have a proportionally higher impact on that area.
Enforcement, sanctions and monitoring
33. The proposed measures will be monitored by Scottish Ministers. For example the new powers to issue a Compulsory Purchase Order for land needed for the Games will be subject to the standard procedural requirements for conformation of orders by Scottish Ministers.
Competition assessment
34. The exercising of these powers by Local Authorities or Scottish Ministers may affect competition in the future.
Small/micro firms impact test
35. These provisions are likely to have an impact on small firms. It is too early however to assess the impact of these on existing firms and these will be addressed in connection with the preperation of future plans associated with them. Ministers will consult the business community on the draft Bill and direct the Organising Committee to consult business when preparing their recommendations for example around the Games Transport Plan.
Summary and Recommendation
36. As stated above, the objective is to ensure that a Games Transport Plan is developed and implemented, that land necessary to deliver the Games can be secured and that mechanisms are in place to fund the Organising Committee of the Games. We believe that this would be best achieved through the measures outlined in the draft Bill.
SUNSET CLAUSE
37. Given that the objective of the Commonwealth Games legislation is to allow Scotland to host a successful Games in line with CGF requirements, the draft Bill contains a Sunset Clause that will ensure that the Act expires a reasonable period after Games activity has ended.
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