Birmingham Commonwealth Games Bill (HC Bill 8)

Birmingham Commonwealth Games BillPage 20

(4) Sections 10 to 12 and Schedule 1 cease to have effect on the day after the day on
which the Games end.

34 Short title

(1) This Act may be cited as the Birmingham Commonwealth Games Act 2019.

(2) 5Nothing in this Act shall impose any charge on the people or on public
funds, or vary the amount or incidence of or otherwise alter any such charge
in any manner, or affect the assessment, levying, administration or
application of any money raised by any such charge.

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SCHEDULES

Section 10

SCHEDULE 1 Ticket touting: providers of information society services

Non-UK service providers: restriction on institution of proceedings

1 (1) 5Proceedings for an offence under section 10 may not be instituted against a
non-UK service provider in respect of anything done in the course of the
provision of information society services unless the derogation condition is
met.

(2) The derogation condition is that taking proceedings—

(a) 10is necessary for the purposes of the public interest objective,

(b) relates to an information society service that prejudices that objective
or presents a serious and grave risk of prejudice to that objective, and

(c) is proportionate to that objective.

(3) In this paragraph—

  • 15“non-UK service provider” means a service provider established in an
    EEA state other than the United Kingdom;

  • “the public interest objective” means the pursuit of public policy.

Exceptions for mere conduits

2 (1) A service provider does not commit an offence under section 10 by
20providing access to a communication network or by transmitting, in a
communication network, information provided by a recipient of the service,
if the service provider does not—

(a) initiate the transmission,

(b) select the recipient of the transmission, or

(c) 25select or modify the information contained in the transmission.

(2) For the purposes of sub-paragraph (1)—

(a) providing access to a communication network, and

(b) transmitting information in a communication network,

include the automatic, intermediate and transient storage of the information
30transmitted so far as the storage is solely for the purpose of carrying out the
transmission in the network.

(3) Sub-paragraph (2) does not apply if the information is stored for longer than
is reasonably necessary for the transmission.

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Exception for caching

3 (1) A service provider does not commit an offence under section 10 by storing
information provided by a recipient of the service for transmission in a
communication network if the first and second conditions are met.

(2) 5The first condition is that the storage of the information—

(a) is automatic, intermediate and temporary, and

(b) is solely for the purpose of making more efficient the onward
transmission of the information to other recipients of the service at
their request.

(3) 10The second condition is that the service provider—

(a) does not modify the information,

(b) complies with any conditions attached to having access to the
information, and

(c) if sub-paragraph (4) applies, promptly removes the information or
15disables access to it.

(4) This sub-paragraph applies if the service provider obtains actual knowledge
that—

(a) the information at the initial source of the transmission has been
removed from the network,

(b) 20access to it has been disabled, or

(c) a court or administrative authority has ordered the removal from the
network of, or the disablement of access to, the information.

Exception for hosting

4 (1) A service provider does not commit an offence under section 10 by storing
25information provided by a recipient of the service if—

(a) the service provider had no actual knowledge when the information
was provided that its provision constituted an offence under section
10, or

(b) on obtaining actual knowledge that the provision of the information
30constituted such an offence, the service provider promptly removed
the information or disabled access to it.

(2) Sub-paragraph (1) does not apply if the recipient of the service is acting
under the authority or control of the service provider.

Interpretation

5 35In this Schedule—

  • “established”, in relation to a service provider, is to be read in
    accordance with paragraph 6;

  • “information society services”—

    (a)

    has the meaning given in Article 2(a) of the E-Commerce
    40Directive (which refers to Article 1(2) of Directive 98/34/EC
    of the European Parliament and of the Council of 22 June
    1998 laying down a procedure for the provision of
    information in the field of technical standards and
    regulations), and

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    (b)

    is summarised in recital 17 of the E-Commerce Directive as
    covering “any service normally provided for remuneration,
    at a distance, by means of electronic equipment for the
    processing (including digital compression) and storage of
    5data, and at the individual request of a recipient of a service”;

  • “recipient”, in relation to a service, means a person who, for
    professional ends or otherwise, uses an information society service,
    in particular for the purposes of seeking information or making it
    accessible;

  • 10“service provider” means a person providing an information society
    service;

  • “the E-Commerce Directive” means Directive 2000/31/EC of the
    European Parliament and of the Council of 8 June 2000 on certain
    legal aspects of information society services, in particular electronic
    15commerce, in the Internal Market (Directive on electronic
    commerce).

6 (1) A service provider is “established” in the United Kingdom, or in a particular
EEA state, if the service provider—

(a) effectively pursues an economic activity using a fixed establishment
20in the United Kingdom, or that EEA state, for an indefinite period,
and

(b) is a national of an EEA state or a company or firm mentioned in
Article 54 of the Treaty on the Functioning of the European Union.

(2) The presence or use in a particular place of equipment or other technical
25means of providing an information society service does not, of itself,
constitute the establishment of a service provider.

(3) Where it cannot be determined from which of a number of establishments a
given information society service is provided, that service is to be regarded
as provided from the establishment at the centre of the service provider’s
30activities relating to that service.

Section 20

SCHEDULE 2 Enforcement of offences under Part 3

Introductory

1 In this Schedule—

  • 35“the 2015 Act” means the Consumer Rights Act 2015;

  • “officer”, in relation to a relevant authority, is to be read in accordance
    with paragraph 7(1) and (2) of Schedule 5 to the 2015 Act, but as if the
    powers conferred by this Schedule were powers in that Schedule;

  • “relevant authority” means—

    (a)

    40in the case of an offence under section 10—

    (i)

    a local weights and measures authority in Great
    Britain, or

    (ii)

    the Department for the Economy in Northern Ireland;

    (b)

    in the case of an offence under section 13 or 16, a local weights
    45and measures authority in England;

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  • “relevant offence” means an offence under section 10, 13 or 16.

Conditions for seizure and detention under Schedule 5 to the 2015 Act

2 (1) For the purposes of enforcing a relevant offence, an officer of a relevant
authority may exercise a power in paragraph 28 or 29 of Schedule 5 to the
52015 Act to seize and detain any goods or documents only if the officer
reasonably suspects that it is necessary to do so for the purpose of—

(a) ending the commission of the offence;

(b) preventing the commission of the offence;

(c) enabling the goods or documents to be used as evidence in
10proceedings for the offence.

(2) Sub-paragraph (1) does not prevent the exercise of the power in relation to
any other legislation of the authority (within the meaning of paragraph 9 of
that Schedule).

Additional powers of search and seizure

3 (1) 15This paragraph applies where—

(a) an officer of a relevant authority is lawfully in any public place
otherwise than in reliance on a power conferred by paragraph 23(1)
or 32 of Schedule 5 to the 2015 Act, and

(b) the officer reasonably suspects that a person has committed, is
20committing or is about to commit a relevant offence.

(2) The officer may—

(a) search or examine anything which appears to be in the person’s
possession or control, and

(b) seize and detain or remove any item which appears to be in the
25person’s possession or control.

(3) The officer may seize an item under sub-paragraph (2)(b) only if the officer
reasonably suspects that it is necessary to do so for the purpose of—

(a) ending the commission of the offence;

(b) preventing the commission of the offence;

(c) 30enabling the item to be used as evidence in proceedings for the
offence.

4 Paragraph 31 of Schedule 5 to the 2015 Act (power to break open container
etc) applies for the purpose of exercising any power conferred by paragraph
3 of this Schedule as it applies for the purpose of exercising a power in
35paragraph 28 or 29 of that Schedule.

Protections relating to search and seizure under paragraph 3

5 (1) Before exercising any power under paragraph 3 in relation to a person, an
officer must produce evidence of the officer’s identity and authority to the
person.

(2) 40The officer need not comply with sub-paragraph (1) if it is not reasonably
practicable to do so.

6 (1) An officer seizing any item from a person under paragraph 3(2)(b) must take
reasonable steps to—

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(a) inform the person that it has been seized, and

(b) provide that person with a written record of what has been seized.

(2) In determining the steps to be taken under sub-paragraph (1), the officer
must have regard to any relevant provision about the seizure of property
5made by—

(a) where the officer is acting in England and Wales, a code of practice
under section 66 of the Police and Criminal Evidence Act 1984;

(b) where the officer is acting in Northern Ireland, a code of practice
under Article 65 of the Police and Criminal Evidence (Northern
10Ireland) Order 1989 (S.I. 1989/1341 (N.I. 12)S.I. 1989/1341 (N.I. 12)).

7 Paragraph 29(6) and (7) of Schedule 5 to the 2015 Act (which prohibits the
seizure of legally privileged items) applies in relation to the power conferred
by paragraph 3(2)(b) of this Schedule as it applies in relation to the power in
paragraph 29 of that Schedule.

8 15Nothing in paragraph 3 or 4 confers any power to search a person.

Retention etc of items seized under paragraph 3

9 An item seized under paragraph 3 by an officer of a relevant authority may
not be detained—

(a) for a period of more than 3 months beginning with the day on which
20it was seized, or

(b) where the item is reasonably required to be detained for a longer
period by the authority for a purpose for which it was seized, for
longer than it is required for that purpose.

(For corresponding provision in relation to seizure under paragraph 28 or 29
25of Schedule 5 to the 2015 Act, see paragraphs 28(7) and 29(8) of that
Schedule.)

10 The following provisions of Schedule 5 to the 2015 Act apply in relation to
items detained as the result of the exercise of the power conferred by
paragraph 3 of this Schedule as they apply in relation to goods or documents
30detained as the result of the exercise of a power in Part 4 of that Schedule—

(a) paragraph 38 (access to seized goods and documents);

(b) paragraph 40 (appeals against detention of goods and documents).

Disposal of seized items

11 (1) This paragraph applies where—

(a) 35a relevant authority no longer wishes to retain a seized item for any
purpose,

(b) the period of 3 months beginning with the day on which the item was
seized has ended (but see sub-paragraph (4)), and

(c) reasonable efforts have been made, without success, to find a person
40entitled to the item, or it is for some other reason impracticable to
return the item to a person entitled to it.

(2) In this paragraph “seized item” means an item seized—

(a) under paragraph 3 of this Schedule, or

(b) in the exercise of a power in paragraph 28 or 29 of Schedule 5 to the
452015 Act for the purpose of enforcing a relevant offence.

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(3) The authority may dispose of the item in whatever way the authority
considers appropriate.

(4) In the case of a perishable item which no longer has any commercial value,
the authority may dispose of the item before the end of the period
5mentioned in sub-paragraph (1)(b).

(5) The persons “entitled” to an item for the purposes of this paragraph are—

(a) the person from whom it was seized;

(b) (if different) any person to whom it belongs.

Power to conceal or destroy advertising

12 (1) 10An officer of a local weights and measures authority in England may do
anything which the officer considers necessary or expedient to conceal any
advertising which the officer reasonably suspects is an offence under section
13.

(2) If the officer considers that it is not reasonably practicable to seize or conceal
15the advertising, the officer may deface or destroy the advertising.

(3) An officer may exercise any power conferred by any of paragraphs 23 and
32 to 34(1) of Schedule 5 to the 2015 Act (powers of entry etc) for the purpose
of exercising a power conferred by sub-paragraph (1) or (2) above.

(4) Nothing may be concealed under sub-paragraph (1) for any longer than is
20necessary to prevent the commission of an offence under section 13.

(5) But a person is not liable by virtue of sub-paragraph (4) for failing to uncover
any advertising if the person took all reasonable steps—

(a) to uncover the advertising as soon as reasonably practicable after the
concealment ceased to be necessary for the purpose mentioned in
25that sub-paragraph, or

(b) to ensure that any other person was able to do so.

Obstruction of officers etc

13 The following provisions of Schedule 5 to the 2015 Act have effect as if the
powers conferred by this Schedule were powers in Part 4 of that Schedule—

(a) 30paragraph 36(1)(a) (offence of obstruction);

(b) paragraph 37 (offence of purporting to act as an officer of an
enforcer).

Exercise of powers outside authority’s area

14 (1) A local weights and measures authority in England or Wales may exercise a
35power conferred by this Schedule in a part of England or Wales that is
outside that authority’s area.

(2) A local weights and measures authority in Scotland may exercise a power
conferred by this Schedule in a part of Scotland that is outside that
authority’s area.

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Compensation

15 (1) A person whose property is damaged in the course of the exercise or
purported exercise of a relevant power by an officer of a relevant authority
is entitled to compensation from that authority if—

(a) 5the exercise of the power was unlawful, or

(b) any force used in the exercise of the power was unreasonable.

(2) In sub-paragraph (1) “relevant power” means—

(a) a power conferred by this Schedule, or

(b) a power conferred by Part 3 or 4 of Schedule 5 to the 2015 Act that is
10exercised (or purportedly exercised) for the purpose of enforcing a
relevant offence.

(3) The amount of compensation payable is the sum of the following amounts—

(a) an amount equal to—

(i) the cost of repairing the property to its previous condition, or

(ii) 15if it is impossible or not commercially worthwhile to repair
the property to that condition, the cost of replacing it, and

(b) the amount of any other loss that is a direct result of the damage to
the property.

16 (1) The Secretary of State may by regulations make provision supplementing
20the provisions of paragraph 15, including (among other things)—

(a) provision about how to make a claim for compensation under that
paragraph;

(b) provision about the person to whom a claim must be made;

(c) provision about the period within which a claim must be made;

(d) 25provision requiring a person to provide specified information when
making a claim;

(e) provision conferring discretion on any person to decide whether a
person is entitled to compensation under that paragraph and, if so,
the amount to be paid;

(f) 30provision requiring a person making a claim to be given specified
information about the decision on the claim;

(g) provision about reviews or appeals.

(2) In sub-paragraph (1) “specified” means specified in the regulations.