London Olympic Games and Paralympic Games (Amendment) Bill

These notes refer to the London Olympic Games and Paralympic Games (Amendment) Bill

as brought from the House of Commons on 12th September 2011 [HL Bill 95]

Explanatory Notes

Introduction

1. These explanatory notes relate to the London Olympic Games and Paralympic Games (Amendment) Bill as brought from the House of Commons on 12th September 2011. They have been prepared by the Department for Culture, Media and Sport, the Home Office and the Department for Transport in order to assist the reader of the Bill and help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament.

2. These notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause does not seem to require any explanation or comment, none is given.

Summary AND BACKGROUND

3. The Bill amends the London Olympic Games and Paralympic Games Act 2006 ("the 2006 Act"), which makes provision in a number of areas for the purposes of the London 2012 Olympic and Paralympic Games ("2012 Games"). In particular, the 2006 Act provides for Ministers to make regulations about advertising and trading in the vicinity of 2012 Games events ("advertising and trading regulations") and makes provision in relation to the sale of 2012 Games tickets and transport, including the management of traffic.

Advertising and trading

4. Under the 2006 Act, advertising and trading regulations are subject to the affirmative resolution procedure – they may not be made unless a draft has been laid before and approved by Parliament (or the National Assembly for Wales or Scottish Parliament in the case of regulations for Wales or Scotland respectively). The Olympic Delivery Authority ("the ODA") – a statutory corporation established by the 2006 Act – is required by the Act to make arrangements to have the effect of advertising and trading regulations made or expected to be made brought to the attention of persons likely to be affected or interested. To that end, the ODA must aim to give two years’ notice of the general nature of the regulations and then six months’ notice of their detailed provisions.

5. Advertising and trading regulations are enforceable by the police and ODA-designated enforcement officers. The enforcement powers include the power to enter land or premises and remove infringing articles (the removal of infringing articles is referred to in these Notes as "seizure"). An article may be seized to end a contravention of the regulations, prevent a future contravention, enable the article to be used as evidence in criminal proceedings for the contravention, or to enable it to be forfeited (in exercise of the courts’ general forfeiture powers in criminal cases).

6. Under the Act, any article seized by an ODA officer must be delivered to a constable. Constables must treat seized articles (whether seized by them or an ODA officer) as if acquired by them in the course of the investigation of an offence. The effect is that, at present, all seized articles must be dealt with by the police who must comply with existing, general legislation about property acquired by the police in connection with the investigation of a suspected offence. Amongst other things, that legislation provides for the return or disposal (including by sale) of such property.

7. Clauses 1 and 2 provide for articles seized in England and Wales in connection with contraventions of advertising and trading regulations to be held and dealt with by the ODA (rather than the police) in accordance with detailed rules inserted into the 2006 Act by the Bill. Articles seized in Scotland may be held by either the police or the ODA. Clauses 1 and 2 also alter the types of Parliamentary procedure and public notice required under the 2006 Act for advertising and trading regulations (other than the first set of those regulations).

Sale of tickets – increase of maximum fine

8. Section 31 of the 2006 Act provides that the sale of 2012 Games tickets in a public place or in the course of a business, other than with the consent of the London Organising Committee of the Olympic Games and Paralympic Games Limited, is an offence subject to a maximum fine not exceeding level 5 on the standard scale (currently £5,000). Clause 3 provides that the maximum fine is increased to £20,000 but makes no other changes to the existing provision on the sale of tickets.

Traffic

9. The 2006 Act provides for the making of traffic orders – both "permanent" (i.e. planned well in advance) and shorter-term temporary controls – by the ODA and local traffic authorities to regulate traffic to implement the Olympic Transport Plan or to facilitate transport services in connection with the 2012 Games. These powers were based on those that apply in normal circumstances under the Road Traffic Regulation Act 1984 ("the 1984 Act"). In relation to temporary orders, this meant that they were confined to the circumstances in which such orders may be made conventionally: for road works; other danger to road users; and litter clearance. Clause 4 provides that temporary orders may be made for Olympic purposes alone. It also empowers traffic authorities to implement temporary controls by notice where necessary or expedient in connection with the 2012 Games – i.e. to address significant sudden and unforeseen circumstances – again following the principles of the 1984 Act.

10. The 2006 Act envisaged that Olympic traffic controls would be enforced under civil procedures and that all relevant legislation under the Traffic Management Act 2004 ("the 2004 Act") would have been commenced to that end. Only those parts of the 2004 Act concerning parking enforcement are in fact in force. Clauses 7 and 8 therefore provide for other existing civil enforcement legislation to be applied (with modifications) to achieve the objectives of the 2006 Act, including in relation to the mechanism for setting penalty charge levels.

11. The 2006 Act provided for temporary "special event" orders under the 1984 Act to be made to facilitate the holding of any London Olympic event (i.e. requiring traffic restrictions other than those covered by the powers in section 14 of the 1984 Act) but it modified those provisions only in relation to complete road closures. Clause 6 applies the modified provisions to lesser restrictions also.

12. Finally, the Goods Vehicles (Licensing of Operators) Act 1995 provides for traffic commissioners to issue licences to operators of goods vehicles. Clause 9 amends the procedural requirements that would otherwise apply in relation to an application to vary an operator’s licence where the variation is connected with the 2012 Games and where a traffic commissioner is satisfied as to other matters.

TERRITORIAL EXTENT AND APPLICATION

13. Clauses 1 and 2 (advertising and trading) and 9 (goods vehicle operator licences) extend to England and Wales and Scotland: see clause 10(5).

14. The extent and application of clause 3 (sale of tickets – increase of maximum fine) mirror the 2006 Act by extending the new higher penalty for illegal ticket sales to the whole of the UK and applying the offence irrespective of where the activity to which it relates actually took place: see clause 10(6) and (8).

15. Clauses 4 to 8 (traffic) extend to England and Wales but apply only to places in England and things done in or in respect of England: see clause 10(7) and (9). This mirrors the extent and application of the 2006 Act transport provisions.

16. Clause 10 (commencement, etc) extends to the whole of the UK.

Territorial application: Scotland

17. The amendments to the 2006 Act in clauses 1, 2, 3 and 9 extend to and apply in Scotland because the related provisions of the 2006 Act and the Goods Vehicles (Licensing of Operators) Act 1995 (which is relevant to clause 9) also extend to and apply in Scotland. The clauses do not provide Scottish Ministers with any new powers, but clause 2 does alter the type of procedure that they must follow in making advertising and trading regulations for Scotland. At present, advertising and trading regulations for Scotland may not be made unless a draft has been laid before and approved by a resolution of the Scottish Parliament. Clause 2 alters this for the second and subsequent regulations only – they will be subject to annulment by resolution of the Scottish Parliament after they have been made by Scottish Ministers. The first advertising and trading regulations will remain subject to the affirmative resolution procedure.

18. This Bill contains provisions that trigger the Sewel Convention. Those provisions are clauses 1, 2 and 3 which amend the 2006 Act in relation to advertising and trading and the sale of tickets and extend to and apply in Scotland. The Sewel Convention provides that Westminster will not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish Parliament. If there are amendments relating to such matters which trigger the Convention, the consent of the Scottish Parliament will be sought for them.

Territorial application: Wales

19. The amendments to the 2006 Act in clauses 1, 2, 3 and 9 apply in Wales because the related provisions of the 2006 Act and the Goods Vehicles (Licensing of Operators) Act 1995 (which is relevant to clause 9) also apply in Wales. The clauses do not provide the Welsh Ministers with any new powers, but clause 2 does alter the type of procedure that Welsh Ministers must follow in making advertising and trading regulations for Wales. At present, advertising and trading regulations for Wales may not be made unless a draft has been laid before and approved by a resolution of the National Assembly for Wales. Clause 2 alters this for the second and subsequent regulations only – they will be subject to annulment by resolution of the National Assembly for Wales after they have been made by Welsh Ministers. The first advertising and trading regulations will remain subject to the affirmative resolution procedure.

20. Clauses 1, 2, 3 and 9 do not relate to matters in Wales within the legislative competence of the National Assembly for Wales which require a legislative consent motion in the Assembly.

Territorial application: Northern Ireland

21. The amendment to the 2006 Act in clause 3 extends to Northern Ireland because the related provision of the 2006 Act also extends to Northern Ireland. Clause 3 does not provide the Northern Ireland Ministers with any new powers. The consent of the Northern Ireland Assembly will be sought.

22. While the advertising and trading provisions of the 2006 Act (to which clauses 1 and 2 of this Bill relate) extend to Northern Ireland, because no 2012 Games events will take place in Northern Ireland, and because it is not intended to make advertising and trading regulations for Northern Ireland, it is not necessary for clauses 1 and 2 to extend to Northern Ireland.

COMMENTARY ON CLAUSES

Clause 1 – Removal of infringing articles

23. Clause 1 amends section 21 of the 2006 Act (offence of contravening advertising regulations). It removes the power of the court by or before which a person is convicted of an offence of contravening the advertising regulations to order that person to pay to a police authority or the ODA sums in respect of expenses reasonably incurred in taking enforcement action under section 21(1) in relation to the matters to which the offence relates: see subsection (1). Sections 22(8) and 28(7) of the 2006 Act provide for a police authority or the ODA to recover from a person responsible for the contravention of advertising or trading regulations, as if it were a debt, the reasonable costs of taking action under sections 22 or 28 (enforcement of advertising and trading regulations).

24. Clause 1 also amends sections 22 and 28. It removes one of the purposes for which an article may be seized in enforcing advertising and trading regulations – the purpose of enabling the article to be forfeited in exercise of the courts’ general forfeiture powers in criminal cases: see subsections ( 2 ) and ( 5 ). The remaining purposes for which an article may be seized are to end a contravention of the regulations, to prevent a future contravention, or to enable the article to be used as evidence in criminal proceedings for the contravention.

25. Subsections ( 3 ), ( 4 ), ( 7 ) and ( 8 ) amend sections 22 and 28 to provide for articles (including animals) seized by the police in enforcing advertising and trading regulations ("infringing articles") to be delivered to an ODA enforcement officer. This reverses the present provision in the 2006 Act. In future, all seized infringing articles (whether seized by a constable or an ODA officer) are to be dealt with by the ODA in accordance with new sections inserted into the 2006 Act by subsection (9).

26. Subsection ( 9 ) inserts five new sections 31A-31E into the 2006 Act which prescribe the way the ODA must deal with seized infringing articles.

New section 31A – Cases involving criminal proceedings

27. New section 31A deals with seized infringing articles whose retention is justified for the purpose of enabling them to be used as evidence in criminal proceedings for contravention of the advertising and trading regulations. It provides that the ODA must store any perishable article (so far as is reasonably practicable) and take care of any animal, pending its return or disposal in accordance with the new sections of the 2006 Act: see new section 31A(2) and (3).

28. Under new section 31A, the ODA must return an infringing article to the owner:

a) at the conclusion, or on discontinuance, of the criminal proceedings; or

b) if proceedings are not issued within the relevant period prescribed in the section (28 days for trading offences and 56 days for advertising offences), at the end of that period.

29. However, the ODA is not required to return an infringing article in any of the following circumstances:

a) Where the ODA, having undertaken such enquiries as it considers appropriate, fails to establish who or where the owner of the article is. In these circumstances, the ODA may apply to a magistrates’ court (or, in Scotland, a sheriff) for a disposal order under new section 31D (about which, see below).

b) Where the owner disclaims the article or refuses to accept it. In these circumstances, the ODA must sell or otherwise dispose of the article in accordance with new section 31E (about which, see below).

c) Where the article is a perishable article that has ceased to be useable for trade. In these circumstances, the ODA may dispose of the article as it thinks appropriate.

d) Where the court, in criminal proceedings for contravention of the regulations, has ordered the infringing article to be forfeited in exercise of its general powers in criminal cases under section 143 of the Powers of Criminal Courts (Sentencing Act) 2000 (or, in Scotland, section 21 of the Proceeds of Crime (Scotland) Act 1995).

e) Where (without ordering the infringing article to be forfeited) the court, in criminal proceedings for contravention of the regulations, awards costs to the ODA against the owner which are not paid within 28 days. In these circumstances, the ODA must sell or otherwise dispose of the article in accordance with new section 31E (about which, see below).

New section 31B – Cases not involving criminal proceedings: articles other than vehicles

30. New section 31B deals with seized infringing articles (other than vehicles) whose retention is not justified for the purpose of enabling them to be used as evidence in criminal proceedings for contravention of the regulations. It makes similar provision to new section 31A.

31. Like new section 31A, new section 31B provides that the ODA must store any perishable article (so far as is reasonably practicable) and take care of any animal, pending its return or disposal: see new section 31B(2) and (3).

32. Under new section 31B, the ODA must return an infringing article to the owner when its retention is no longer justified for the purpose of ending a contravention of the regulations or preventing a future contravention: see new section 31B(4). However, as with new section 31A, the ODA is not required to return an infringing article in the following circumstances:

a) Where the ODA, having undertaken such enquiries as it considers appropriate, fails to establish who or where the owner of the article is. In these circumstances, the ODA may apply to a magistrates’ court (or, in Scotland, the sheriff) for a disposal order under new section 31D (about which, see below).

b) Where the owner disclaims the article or refuses to accept it. In these circumstances, the ODA must sell or otherwise dispose of the article in accordance with new section 31E (about which, see below).

c) Where the article is a perishable article that has ceased to be useable for trade. In these circumstances, the ODA may dispose of the article as it thinks appropriate.

New section 31C – Cases not involving criminal proceedings: vehicles

33. New section 31C deals with seized vehicles whose retention is not justified for the purpose of enabling them to be used as evidence in criminal proceedings for contravention of the regulations. "Vehicle" here and in new section 31B has the same meaning as in the Vehicle Excise and Registration Act 1994 (i.e. a mechanically propelled vehicle, or any thing (whether or not it is a vehicle) that has been, but has ceased to be, a mechanically propelled vehicle).

34. If the ODA receives a written application for a vehicle’s return and is satisfied that the applicant is the owner, it must (except where the vehicle has been seized on a previous occasion) return the vehicle when retention is no longer justified for the purpose of ending a contravention of the regulations or preventing a future contravention (unless the owner disclaims the vehicle or refuses to accept it).

35. If the ODA does not receive such an application, it must request ownership particulars for the vehicle from the Secretary of State (in practice the Driver and Vehicle Licensing Agency (DVLA)). Once those particulars have been received, it must (except where the vehicle has been seized on a previous occasion) return the vehicle to the owner when retention is no longer justified for the purpose of ending a contravention of the regulations or preventing a future contravention (unless the owner disclaims the vehicle or refuses to accept it).

36. Where a vehicle has been seized on a previous occasion, the ODA must return it to the owner as soon as is reasonably practicable after the expiry of the London Olympics Period (unless the owner disclaims the vehicle or refuses to accept it). The London Olympics Period, under section 1(3)(c) of the 2006 Act, ends with the fifth day after the end of the closing ceremony of the London 2012 Paralympic Games.

37. If the owner disclaims a vehicle or refuses to accept it, the ODA must sell or otherwise dispose of it in accordance with new section 31E (about which, see below).

New section 31D – Disposal orders

38. New section 31D provides for the making of disposal orders. Such orders are made by a magistrates’ court (or, in Scotland, a sheriff) on application by the ODA.

39. The ODA will apply for a disposal order where, having undertaken such enquiries as it considers appropriate, it fails to establish who or where the owner of an infringing article is for the purpose of returning the article in accordance with new section 31A or 31B. A disposal order will authorise to the ODA:

a) to dispose of the infringing article as it sees fit; and

b) to apply any proceeds of the disposal towards its costs of exercising functions under the 2006 Act in relation to the regulation of advertising and trading.

40. The court may only make a disposal order if it is satisfied that the ODA has made reasonable efforts to establish who and where the owner of the infringing article is: see new section 31D(2).

41. New section 31D(3) provides that if a person who claims to be the owner of the infringing article, or otherwise to have an interest in it, applies to be heard, the court:

a) must give the applicant the opportunity to make representations as to why a disposal order should not be made;

b) may not make a disposal order pending the making of the representations; and

c) having heard the representations, may (instead of making a disposal order) make an order requiring the infringing article to be returned to the owner.

42. In considering whether to make a disposal order, the court must have regard in particular to the value of the infringing article and the likely financial or other effects of the making the order: see new section 31D(4). The court may make a disposal order even if the value of the infringing article exceeds the maximum fine which could be imposed on conviction of an offence of contravening the regulations: see new section 31D(5).

New section 31E – Sale or other disposal

43. New section 31E provides for the sale or other disposal of infringing articles by the ODA. It will apply in the following circumstances:

a) Where the ODA has attempted to return an infringing article under new section 31A, 31B or 31C, but the owner has disclaimed it or refused to accept it.

b) Where (without ordering the infringing article to be forfeited) the court, in criminal proceedings for contravention of the regulations, has awarded costs to the ODA against the owner and the costs have not been paid within 28 days.

44. If the ODA thinks that there is a realistic prospect of selling the infringing article it must take reasonable steps to sell it at the best price that can reasonably be obtained. But, if (having taken such steps) the ODA fails to sell the article, it may dispose of it as it thinks appropriate. Likewise, if the ODA does not think that there is a realistic prospect of selling the article, it may dispose of it as it thinks appropriate. See new section 31E(2) and (3).

45. In a case where the ODA has attempted to return an infringing article, but the owner has disclaimed it or refused to accept it, the proceeds of sale under new section 31E must be applied towards the ODA’s costs of exercising functions under the 2006 Act in relation to the regulation of advertising and trading: see new section 31E(4).

46. In a case where the court has awarded costs to the ODA against the owner and the costs have not been paid within 28 days, the proceeds of sale under new section 31E must be applied in paying the amount of the costs that are unpaid (with any excess being given to the owner of the infringing article): see new section 31E(5). If, in such a case, the ODA fails to take reasonable steps to sell the infringing article for the best price that can reasonably be obtained, that failure is actionable against the ODA by any person suffering loss (but the validity of any sale is not affected): see new section 31E(6).

47. If, having undertaken such enquiries at it thinks appropriate, the ODA fails to establish where the owner of an infringing article is for the purpose of giving him or her any proceeds of sale that exceed the amount of an unpaid costs award, it may apply to a magistrates’ court (or, in Scotland, a sheriff): see new section 31E(7). Where the court (or sheriff) is satisfied that the ODA has made reasonable efforts to establish where the owner is, it may make an order authorising the ODA to apply the excess of the proceeds of sale towards its costs of exercising functions under the 2006 Act in relation to the regulation of advertising and trading: see new section 31E(8) and (9). In considering whether to make such an order, the court must have regard in particular to the value of the excess proceeds and the likely financial or other effects of making the order: see new section 31E(10).

48. Finally, s ubsections (10) to (12) of clause 1 amend sections 37 and 38 of the 2006 Act (which make provision for Scotland and Northern Ireland respectively). Subsection (1 1) provides that, in Scotland, seized infringing articles may be held by constables or ODA enforcement officers. Where they are held by a constable, they must be returned when retention is no longer justified by a purpose for which infringing articles may be seized (see sections 22(5) and 28(2) of the 2006 Act), unless:

a) they are perishable articles that have ceased to be useable for trade, or

b) the court orders the articles to be forfeited under Part 2 of the Proceeds of Crime (Scotland) Act 1995.

49. Where, in Scotland, seized infringing articles are held by the ODA, they must be dealt with in accordance with new sections 31A to 31E of the 2006 Act (which are modified, in their application to Scotland, by subsection (1 1 )).

Clause 2 – Regulations: Parliamentary procedure and public notice

50. Clause 2 amends sections 20, 23, 26 and 29 of the 2006 Act.

51. The amendments provide for advertising and trading regulations (other than the first such regulations) to be subject to the negative resolution procedure – that is, subject to annulment by resolution of each House of Parliament (or the National Assembly for Wales or Scottish Parliament in the case of regulations for Wales or Scotland respectively). The first advertising and trading regulations remain subject to the affirmative resolution procedure.

52. The amendments relieve the ODA of the duty under the 2006 Act to aim to give two years’ and then six months’ notice of the advertising and street trading regulations (except for the first such regulations). The ODA will remain obliged to aim to give two years’ and then six months’ notice in respect of the first regulations. Also, the general duty on the ODA to arrange for the effect of regulations made or expected to be made to be brought to the attention of people likely to be affected or interested is maintained for all regulations.

53. The amendments also make consequential amendments to section 37 of the 2006 Act (which makes provision for Scotland).

Clause 3 – Sale of tickets – increase of maximum fine

54. This clause increases the maximum penalty for the illegal sale of 2012 Games tickets from £5,000 to £20,000. The new higher penalty applies only to offences committed after the commencement of the provision: see subsection (2).

55. Offences under section 31 of the 2006 Act will remain summary only, despite the higher level of fine available.

Clause 4 – Orders and notices relation to temporary prohibitions etc. on roads

56. This clause amends the provisions of section 14 of the 2006 Act on how the ODA and traffic authorities may establish temporary traffic restrictions or prohibitions to implement the Olympic Transport Plan or to facilitate transport services in connection with the 2012 Games. At present, restrictions or prohibitions may only be applied by order if one of the following justifications also applies: road works; other danger to road users and litter clearance. There may be circumstances where traffic congestion alone threatens implementation of the Plan or transport services and temporary remedial action is necessary; and such circumstances might be urgent in character and justify action without advance publicity – i.e. through the issue of a notice rather than making an order. (The 1984 Act already provides for this in relation to road works, other danger to road users and litter clearance.) Subsection (3) therefore removes the constraint that road works, other danger to road users or litter clearance must be a prerequisite for either the ODA or traffic authorities to make a temporary order under section 14 of the 2006 Act. Subsection (4) provides that a traffic authority may, when necessary or expedient for the purposes of the 2012 Games, effect a control needed urgently by notice.

Clause 5 – Enforcement of traffic regulation orders and notices

57. Section 15 of the 2006 Act envisaged that traffic restrictions imposed under section 14 of that Act would be enforced under civil procedures in accordance with provisions in the 2004 Act, which included the methods by which the penalty charge level for contraventions must be set. Only the provisions of the 2004 Act that relate to parking contraventions are in force. Also, there was an unrelated drafting error in the 2006 Act which means the method for determining the penalty charge levels is not clear.

58. Subsections (4) and ( 6 ) make the necessary provision in relation to parking contraventions in connection with the 2012 Games under the 2004 Act: the ODA will set the levels of penalty charges (following consultation with the London local authorities and Transport for London) which will be subject to the Secretary of State’s approval. Reserve powers are given to enable the Secretary of State to set the level in the event that the ODA fails to do so or he disagrees with the level they propose. Finally the Secretary of State is empowered to determine by which method the ODA will publicise the penalty charge levels.

59. Subsections (2) , (3) and (5) make amendments to section 15 of the 2006 Act which are consequential on the amendment made to section 14 of that Act by clause 4(4).

Clause 6 – Road closures or restrictions

60. Section 16A of the 1984 Act empowers traffic authorities to make temporary special events orders to restrict or prohibit traffic to facilitate the holding of sporting, social or entertainment events on a road. Section 16B of that Act applies various limitations to such orders. Section 16 of the 2006 Act empowers traffic authorities to make such temporary "special events" orders for any London Olympic event whether on or off a road. That section also disapplies the limitations in section 16B of the 1984 Act but only in respect of complete road closures.

61. Subsection (3) extends the disapplication of the section 16B limitations to any restriction (as well as a closure) made in connection with a London Olympic event.

62. Subsection (4) amends section 16 of the 2006 Act to ensure that temporary "special events" restrictions, like the orders and notices made by virtue of section 14, may be enforced under civil procedures in relation to parking contraventions.

Clause 7 – Enforcement of moving traffic contraventions in Greater London

63. Section 15 of the 2006 Act envisaged that traffic restrictions imposed under section 14 would be enforced under civil procedures in accordance with provisions in the 2004 Act, which included the methods by which the penalty charge level for contraventions must be set. Only the provisions relating to parking contraventions are in force.

64. Clause 7 achieves the civil enforcement objectives of the 2006 Act for moving contraventions in Greater London – including enforcement of "Games Lanes" reserved for official traffic – by enabling London traffic authorities to use their existing local civil enforcement powers to enforce contraventions of orders and notices made in accordance with sections 14 and 16 of that Act.

65. The relevant provisions of the London Local Authorities and Transport for London Act 2003 ("the 2003 Act") are applied with appropriate modifications by the new sections 16A and 16B inserted into the 2006 Act by subsection (1). The modifications include the arrangements by which the penalty charges will be set, namely that the ODA will set the levels following consultation with the London local authorities and Transport for London, which will be subject to the Secretary of State’s approval. Reserve powers are given to enable the Secretary of State to set the level in the event that the ODA fails to do so or he disagrees with the level they propose. The modifications also confer power on the ODA (instead of on the borough councils and Transport for London as in the existing section 4(10) of the 2003 Act) to determine the "specified proportion" by which the amount of a penalty charge will be reduced if paid within 14 days (see section 4(8)(iv) of the 2003 Act). Finally the Secretary of State is empowered to determine by which method the ODA will publicise the penalty charge levels.

Clause 8 – Enforcement of bus lane contraventions outside Greater London

66. Clause 8 addresses the problem described in the commentary on clause 7 above but in relation to authorities outside London. The only available powers for civil enforcement of moving contraventions outside London are in the Transport Act 2000 and concern bus lanes, the definition of which will embrace Olympic "Games Lanes" reserved for official traffic.

67. Clause 8 inserts new sections 16C and 16D into the 2006 Act to enable traffic authorities outside London to use their existing Transport Act 2000 civil bus lane enforcement powers to enforce contraventions of Olympic orders and notices made by virtue of sections 14 and 16 of the 2006 Act. The modifications to the enforcement powers include the arrangements by which the penalty charges will be set and follow the principles envisaged in the 2006 Act: the ODA will set the levels, which will be subject to the Secretary of State’s approval. Reserve powers are given to enable the Secretary of State to set the level in the event that the ODA fails to do so or he disagrees with the level they propose. The modifications also specify the proportions of discount for early payment of a penalty charge (half of the usual level of charge) and increase for late payment (one and half times the usual level of charge). Finally the Secretary of State is empowered to determine by which method the ODA will publicise the penalty charge levels.

Clause 9 – Goods vehicle operator licences: waiver of procedural requirements

68. This clause amends the 2006 Act to provide an expedited process for applications from goods vehicle operators who wish to seek, at short notice, a temporary variation to the environmental conditions, in particular hours of operation, attached to their operator licence. This enables a traffic commissioner to give a direction modifying the normal procedures in the Goods Vehicles (Licensing of Operators) Act 1995.

69. Clause 9 inserts new section 16E into the 2006 Act. That section allows traffic commissioners to shorten the application process for variations which have a connection with the 2012 Games but which have not been made with sufficient time to be disposed of before the London Olympics period begins and which could not have been made earlier. Under section 1(3)(c) of the 2006 Act, the London Olympics Period begins four weeks before the opening ceremony of the London 2012 Olympic Games. The process may be expedited by disapplying provision for publication of notices by the operator and by the traffic commissioner, and for allowing the traffic commissioner to abridge notice periods for a public inquiry (if one is to be held) without obtaining the consent of interested parties. One consequence is removing the formal right for objections and appeals from statutory objectors such as local authorities. In addition, removing the requirement to advertise the application in local newspapers will make it more difficult for local residents to make advance representations. However, traffic commissioners’ powers to determine individual applications are retained, including their ability to inspect the operating centre and powers to refuse an application or to impose additional conditions to counter any additional environmental nuisance that may result if the variation is granted. Operators will have to pay the standard fee for an application to vary an operator’s licence, notwithstanding the waiver of the normal requirements for publication of notices, as this will be necessary to cover the expenses of the traffic commissioner in dealing with the application.

70. Any variation granted to an operator is temporary and will last only for the duration of the London Olympics period, which ends with the fifth day after the closing ceremony of the London 2012 Paralympic Games. Additionally an operator would be required to prove to the traffic commissioner’s satisfaction that there was insufficient time to submit an application under normal procedures.

FINANCIAL EFFECTS

71. The Bill is not expected to have any significant financial effects.

72. Under the 2006 Act the ODA is already responsible for the enforcement of advertising and trading regulations and has already budgeted for that cost. Under clause 1 of the Bill, it will become responsible (in place of the police) for the custody of seized articles and for dealing with them in accordance with the new sections inserted into the 2006 Act by that clause. The ODA has estimated that this is likely to result in extra costs to it of approximately £22,000 (with related savings to police budgets). The ODA is funded almost entirely by grant-in-aid from the Department for Culture, Media and Sport and grants from the Greater London Authority and the Olympic Lottery Distributor. The extra costs to the ODA will be met out of its existing budget, save to the extent of any proceeds of sales of seized articles which, under new section 31D or 31E, it is entitled to apply towards its costs of exercising functions under the 2006 Act in relation to the regulation of advertising and trading.

pUBLIC SECTOR MANPOWER

73. The Bill is not expected to result in any changes in the staff of Government departments or their agencies and nor are any changes in wider public sector manpower likely to occur.

Summary of the impact assessments

74. Full Impact Assessments for clauses 1 and 2 (advertising and trading) and 4 to 9 (traffic) were undertaken and are available to Peers from the Printed Paper Office and to the public on the website of the Department for Culture, Media and Sport: www.culture.gov.uk. Clause 3 (sale of tickets – increase of maximum fine) will not criminalise any activity which was previously legal. Only those illegally selling tickets will be affected. Accordingly, a full impact assessment for clause 3 was not undertaken.

75. In general, clauses 1, 2 and 4 to 9 are not expected to have a significant impact on business es and consumers , largely because they relate to measures that are temporary in nature.

76. In the case of advertising and trading, the Impact Assessment states that the transfer of the function of handling seized articles from the police to the ODA will result in a £55,000 net saving to the public purse. The estimated cost to business from any amendments to the advertising and trading regulations that are made at short notice ranges from £0 to £126,700, depending on the nature of the amendment. The most likely scenario – an amendment to the regulations to apply them to an altered 2012 Games road race route – is assessed as having an impact in the range between £0 and £15,400.

77. The Impact Assessments relating to traffic management include a consideration of the impacts of civil enforcement of moving traffic contraventions, especially on the Olympic Route Network (ORN), of traffic regulation orders or notices made at short notice, and of variations to goods vehicles licences made without some of the usual procedural requirements.

78. In relation to the first point, the main use of the new enforcement powers is expected to be for Games Lanes on the ORN where there will be an impact on people who contravene moving traffic regulations and are subject to a penalty. However, the Impact Assessment makes the case that properly enforced Games Lanes will bring significant monetary and non-monetary benefits. Enforcement powers will form part of an overall wider transport strategy (to be maintained by the ODA) that will aim for high levels of compliance and relatively few penalty notices being issued.

79. The key impact associated with the second issue is expected to be the costs incurred by traffic authorities in the making of temporary traffic regulation orders or notices. There is also the potential for additional impact on local residents and businesses through traffic restrictions. However, the Impact Assessment predicts that, providing authorities with the power to make traffic regulation orders and notices for the Games, will reduce the reputational risk arising from Games transport for organisers and public authorities.

80. In relation to the third point, the Impact Assessment notes that only a very small number of operators are expected to apply to vary their licences otherwise than via the usual application procedure. In relation to those applications, it is estimated that individual operators could benefit from small monetary savings (by not having to advertise their applications) and non-monetary benefits in the form of greater flexibility during the London Olympics period. It is expected that there may be small non-monetised costs to society arising from the disapplication of the usual procedural requirements.

Compatibility with the European Convention of Human Rights

81. Section 19 of the Human Rights Act 1998 requires the Minister in charge of a Bill in either House to make a statement about the compatibility of the Bill with the Convention Rights (as defined in section 1 of that Act). Baroness Garden of Frognal has made the following statement–

"In my view the provisions of the London Olympic Games and Paralympic Games (Amendment) Bill are compatible with the Convention Rights."

82. Because clause 1 of the Bill makes provision as to articles seized in relation to contraventions of advertising and trading regulations, it is arguable that it engages Article 1 of the First Protocol to the Convention ("A1P1"), which protects a person’s possessions from unjustified appropriation or interference by the State.

83. The purpose of clause 1 (and the related advertising and trading provisions in the 2006 Act and the regulations to be made under them) is to meet commitments given by the Government to the International Olympic Committee in London’s bid to host the 2012 Games. The main aims of all of the advertising and trading provisions are as follows:

a) To ensure that the 2012 Games are not over commercialised (so that the focus remains on sport) and that all Olympic and Paralympic events have a celebratory "look and feel" consistent with the sporting and competitive ideals of the Olympic and Paralympic movements.

b) To prevent ambush marketing in the areas around 2012 Games events, during the Games. "Ambush marketing" refers to activities undertaken by people who are not the sponsors of an event that suggest that they or their products are associated with the event or which seek to exploit the interest in the event by exposing their brands to people watching it.

c) To ensure people can easily access 2012 Games venues and are not impeded in this regard by advertising or trading activities.

84. In addition, it is a specific aim of clause 1 of the Bill to prescribe a fair, transparent and practical set of rules with which the ODA must comply in dealing with seized articles. In general terms, the intention is to ensure that seized articles are returned to their owner when their retention is no longer justified, unless return is impossible or impracticable.

85. In the Government’s view, these are legitimate aims, in the general public interest, which justify an interference with A1P1 rights. The 2012 Games are a one-off occasion and the Government considers that it is reasonable to enact measures to facilitate the staging of the Games, even where those measures necessitate a limited interference with individuals’ rights. In addition, advertising and trading legislation will further the interests of public safety by ensuring that competitors, officials, spectators and other people attending events are able smoothly to enter and exit venues. It will also protect the rights of those that have made a commercial contribution to the staging of the Games (without which the Games could not take place) by preventing advertising and trading activities that amount to ambush marketing (see paragraph 68(b) above). The Government considers that it is legitimate in a democratic society to take steps to protect commercial investments which have a public interest element to them. In this case, the social benefits which the Government expects the Games to bring could not be achieved without such commercial investments.

86. Moreover, the Government considers that clause 1 and the other, related advertising and trading provisions are a reasonable and proportionate measure to achieve these aims. In common with the provisions of the 2006 Act and the proposed regulations, clause 1, in the Government’s view, strikes a fair balance between the community’s general interests (as reflected in the aims underlying the legislation) and individuals’ right to the protection of their possessions.

87. For example, it is intended that the advertising and trading regulations are expected to apply only to small, individually drawn areas around each 2012 Games venue; in aggregate, the area covered by the regulations will represent a very small proportion of the total land area of Great Britain. Further, the regulations will be a temporary measure – they will apply only for short periods tailored for each venue by reference to the times when Games events are to take place.

88. If the regulations are contravened, it is intended that, where possible, property will not be seized but that infringing articles will simply be concealed, or traders will be asked to move on, in order to halt the contravention. Where articles are seized they will be dealt with by the ODA in accordance with the rules specified in clause 1. In essence, those rules require the ODA to return seized articles to their owner when their retention is no longer justified (either by the purpose for which they were seized or because the court has made a costs or forfeiture order). The only exceptions are where the owner cannot be located or ownership cannot be established, where the owner disclaims or refuses to accept the article, or (in the case of a perishable article) where the article has ceased to be useable for trade. The rules also contain additional safeguards intended to limit the impact on owners’ rights.

89. On that basis, the Government considers that any interference with a person’s A1P1 rights arising from clause 1 of the Bill is justified.

90. Clause 3 increases the maximum penalty available for an offence under section 31 of the 2006 Act from £5000 to £20,000. Insofar as this might engage Article 8 of the Convention (right to respect for private and family life), the Government’s view is it is justified under Article 8(2) as it is in accordance with the law and in pursuance of a legitimate aim, namely the prevention of crime. We consider that a £20,000 maximum fine is a proportionate penalty for this offence, in light of the deterrence necessary to achieve the legitimate aim of crime prevention.

91. Clause 3 is not retrospective and therefore no issues under Article 7 of the Convention (no punishment without law) arise.

92. Clauses 4 and 6 of the Bill introduce new traffic regulation provisions in the 2006 Act allowing traffic restrictions under sections 14 and 16A of the 1984 Act which may limit vehicular access to residential and commercial premises. It is therefore arguable that A1P1 is engaged.

93. The Government’s aims in providing for, and enforcing, traffic restrictions required for the 2012 Games, in particular on the ORN and areas around the 2012 Games venues, are:

a) to ensure the safe and reliable movement of athletes, officials and other members of the Games Family (e.g. accredited media and marketing representatives) between competition and non-competition venues, meeting the journey time commitments for those movements made to the International Olympic Committee;

b) to deter workers and spectators from driving to the venues and parking in the surrounding roads, promoting public transport, cycling and walking for such journeys;

c) to support safe management of the crowds around the venues; and

d) to minimise the impact of the 2012 Games on local businesses and residents going about their everyday business.

94. The Government’s view is that these are legitimate aims.

95. All traffic restrictions to be imposed by order will be publicised in advance and restrictions imposed will be between specified hours of the day and all provisions will be limited in duration to facilitate the holding of the 2012 Games. Where, if required, urgent restrictions are imposed by notice such restrictions will be the minimum required to achieve the efficient movement of traffic. The Government’s view is that such interference, being limited to the minimum required to achieve effective traffic management and being of temporary duration, is proportionate.

96. For these reasons, the Government considers that any interference with a person’s A1P1 rights arising from clause 4 or 6 of the Bill is justified.

commencement and duration

97. Clauses 1 to 9 (advertising and trading; sale of tickets – increase of maximum fine; and traffic) come into force two months after the day on which the Bill receives Royal Assent: see clause 10(1). As no express provision is made in the Bill for the commencement of clause 10 (commencement, etc.), it will come into force at the beginning of the day on which the Bill receives Royal Assent (see section 4 of the Interpretation Act 1978).

98. Clause 3 applies only to offences committed after the commencement of the provision: see clause 3(2).

99. Clauses 4 to 9 are repealed at the end of the London Olympics Period which, under section 1(3)(c) of the 2006 Act, ends with the fifth day after the end of the closing ceremony of the London 2012 Paralympic Games: see clause 10(2). But the repeal of those clauses does not affect any liability incurred, or prevent any liability arising, under a provision of the 2006 Act in respect of a contravention to which a penalty charge is applicable (and a penalty charge may be imposed for the contravention as if clauses 4 to 8 had not been repealed): see clause 10(3).

Prepared 13th September 2011