|London Olympics Bill - continued||House of Commons|
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Clause 19: Offence
51. This clause creates a criminal offence for contravening the regulations made under clause 17, punishable by a fine. In the Magistrates' Court the maximum fine will be £20,000, which is higher than the maximum fine which Magistrates can normally apply. The clause provides for higher fines because the offence is considered to be highly lucrative during Games time and is more likely to be committed by corporate bodies. This clause also allows for the possibility that the offender may be required to pay the expenses of the Olympic Delivery Authority or Police Authority who have undertaken enforcement action as described in clause 20.
Clause 20: Enforcement: power of entry
52. This clause gives a constable, or an enforcement officer designated by the Olympic Delivery Authority, the power to enter land or premises in order to prevent or stop unauthorised advertising as defined in regulations in clause 17. Subsection (1)(a) is drafted in sufficiently broad terms to enable officers to enter land where the restrictions in the regulations do not apply. This may be necessary, for example, where neighbouring land is being used to project images into the area where advertising restrictions do apply. This clause provides for immediate enforcement and entry powers, although the intention is that the entry will be gained at a reasonable time (Subsection (2)) and by consent (Subsection (3)). Entry to a dwelling would only be permitted under warrant (Subsection (4)). Officers will be able to seize items used to breach the regulations in order to stop contraventions or if necessary for evidential purposes. Subsection (6) allows for the application of the Police Property Act (1897) which governs proceedings for the return of seized property. The clause also allows the Secretary of State to make regulations to institute a compensation scheme for any damage caused by any enforcement activity, although a person responsible for a contravention of the regulations will not be entitled to compensation. The definition of 'infringing article' in Subsection (10)(b) covers advertisements plus other things such as graffiti which may constitute a contravention of the regulations.
Clause 21: Role of Olympic Delivery Authority
53. This clause places a duty on the Olympic Delivery Authority in relation to the regulations made under clause 19. Specifically, this duty requires the ODA to inform those people likely to be affected and allows the ODA to provide assistance to persons so that they can comply with the regulations.
54. Subsection (4) requires the ODA to publish a strategy for how they intend to publicise the advertising restrictions and how they will exercise the enforcement powers provided for in clause 20. This strategy would, for example, cover matters such as the relevant grade of officer in the ODA that can approve entry onto premises without a warrant.
Clause 22: Local planning authorities
55. The Secretary of State may make an order that requires certain local planning authorities to notify those people to whom it grants consents (in relation to advertisements) of the nature of regulations made and obligations imposed under clause 17. Such orders are to be subject to the negative resolution procedure.
Clause 23: Street trading, & c.
56. This clause imposes a duty on the Secretary of State to make regulations to control trading in the vicinity of Olympic venues. These regulations are required in order to seek to fulfil obligations imposed by the International Olympic Committee and made within the Host City Contract and in order to address issues of amenity and public safety (including avoiding congestion). These regulations will specify the nature and extent of restrictions including the place, time period and type of activity to which restrictions will apply. Regulations may apply during different periods in respect of different places. As is the case in relation to the advertising regulations in clauses 17 to 22, much of the detail of the restrictions has been left to secondary legislation in order to make a proper assessment of what is required closer to 2012; the IOC may change the requirements which are placed on host cities and venues may also change.
57. Subsection (4) provides that the restrictions in the regulations may apply to trading on a highway, in a public place, and to trading on private land but not to trading within buildings (except car parks).
58. The regulations will allow the ODA to authorise trading within the vicinity of Olympic venues. The ODA will in turn be able to delegate this function of granting authorisations. This ability to delegate is required as the ODA may rely on the expertise of local authorities that already license street trading in their areas. The regulations will also include provision about the circumstances in which such authorisations may or may not be granted. For example, the regulations may provide that the ODA is restricted to granting authorisations in relation to areas or types of trading already permitted by the relevant local authority. An authorisation may itself be subject to terms and conditions about the times of trading or steps to be taken to reduce congestion, litter or noise. Such terms and conditions may differ from, or be more onerous than, those of existing trading licences for the same area.
Clause 24: Clause 23: supplemental
59. Subsection (1) sets out in more detail what restrictions and flexibilities will apply to regulations made under clause 23. In particular, the regulations may disapply existing legislation in relation to street trading (including legislation about markets) and exceptions to the application of the regulations may be provided. For example, exceptions which may be provided include permitting certain news vendors and milk floats to trade in the vicinity of venues. Exceptions may also include charitable sales. Subsection (2) applies the affirmative resolution procedure to these regulations. Subsection (4) gives these regulations precedence over any other trading licence granted before or after the regulations are made, including rights granted under enactments and Charters. Subsection (5) prevents the regulations being subject to the process that is applied to affirmative hybrid instruments. Very broadly, a hybrid provision is one that has characteristics of both a public and a private provision.
Clause 25: Offence
60. It is to be a criminal offence to contravene any regulation made under clause 23, punishable by a fine. In the Magistrates' Court the maximum fine will be £20,000, which is higher than the maximum fine that Magistrates can normally apply. The level of fine is applied to this offence for the same reasons provided for the advertising regulations at paragraph 51 above.
Clause 26: Enforcement: power of entry
61. This clause gives a constable, or enforcement officer designated by the ODA, the power to enter premises on which they reasonably believe a contravention of the regulations is occurring. Officers may remove and retain any offending article (either something being sold or something containing items for sale) for as long as its removal is justified by a need to:
Clause 27: Role of Olympic Delivery Authority
62. This clause places a duty on the ODA in relation to regulations made under clause 23. The ODA is required to inform those people likely to be affected by regulations. It may also provide people with any assistance they need to comply with the regulations or to identify alternative ways or places to trade. Subsection (4) requires the ODA to publish a strategy for how they intend to publicise the nature of regulations, to grant authorisations and to exercise enforcement powers. That strategy is to be approved by the Secretary of State before publication.
Clause 28: Other authorities
63. The Secretary of State may make an order that requires those persons who grant authorisations to trade to notify recipients that their rights will be superseded by any relevant regulations made under clause 23. Such orders are to be subject to the negative resolution procedure.
Clause 29: Sale of tickets
64. This clause is based on section 166 of the Criminal Justice and Public Order Act 1994 which deals with ticket touting primarily in relation to tickets for football matches. It creates a criminal offence of touting tickets for the 2012 Olympic Games.
65. It will be an offence to sell a ticket (or anything that purports to be a ticket) for an event held as part of the London Olympics in a public place or in the course of a business without the written authorisation of the London Organising Committee of the Olympic Games (LOCOG). If convicted of such an offence, a person would be liable to a fine up to level 5 on the standard scale (currently £5,000).
66. The meaning of selling a ticket includes offering to sell a ticket, exposing a ticket for sale, advertising that a ticket is available for purchase and giving (or offering to give) a ticket to someone who is paying for other goods and services. The definition is drafted to include where a ticket is offered as part of a package of other goods because this sort of activity has been used to circumvent ticketing conditions in the past.
67. In Subsection (2) the reference to an event held as part of the London Olympics includes non-sporting events and pre-Olympic test events.
68. According to Subsection (2)(c), a person will be treated as acting in the course of a business if they are doing something as a result of which they will make a profit or aim to make a profit.
69. A person ('the advertiser') will commit the offence if they advertise that a ticket is available for purchase and if the person making the ticket so available is acting in the course of a business. However, if the only reason the ticket is made available in the course of a business is by reason of subsection 2(c) and the advertiser did not know or could not reasonably be expected to know that the person offering the ticket for sale was doing so for a profit or with an aim to make a profit then the advertiser will not commit an offence.
70. The LOCOG is required to establish a system for granting written authorisation to official ticket sellers. It will be allowed to charge for such authorisation and will be entitled to exercise unfettered discretion in deciding whether or not to authorise.
71. Subsections (6) to (8) make necessary amendments so that this provision has the same effect in Scotland as it does in England and Wales.
Clause 30: Olympic Symbol etc. (Protection) Act 1995 and Schedule 2: Olympic Symbol Protection
72. This clause introduces Schedule 2. Schedule 2 amends the Olympic Symbol etc. (Protection) Act 1995 (OSPA) which gives protection to the Olympic symbol, motto and other words relating to the Olympics. Schedule 2 allows for joint proprietorship of the Olympic association right, affords increased protection for the Olympic words, symbols and motto, and creates a Paralympic association right.
73. Paragraph 2 provides additional flexibility in relation to proprietorship of the Olympic association right allowing more than one person or body to exercise rights in relation to the Olympic symbol, motto and associated words. Appointments may be made for different purposes, which will allow Paralympic organisations to be joint proprietors of Paralympic words and Olympic organisations to hold rights to Olympic words. Joint proprietorship is necessary because of IOC requirements: the IOC require rights to Olympic intellectual property to pass to the LOCOG in the lead up to and during the Games. However, the British Olympic Association will need to retain residual rights for certain purposes.
74. Paragraph 3 extends the infringement of the Olympic association right to words that are similar to the protected words in OSPA and which create in the public's mind an association with the Olympic Games or the Olympic movement. OSPA already provides protection against the use of mottos and symbols similar to the Olympic symbol and motto. This new measure provides protection to words similar to those protected under the Olympic association right.
75. Paragraph 4 clarifies the exemptions and limitations to the Olympic association right.
76. Paragraphs 6 to 10 create a Paralympic association right - analogous to the Olympic association right offering protection to the Paralympic symbol, motto and associated words. Rights over Paralympic words or symbols which exist at the time that the Paralympic association right is created will be protected. This means that, for example, individuals or companies will be entitled to continue to use existing business names which use words which become protected under the Act.
77. If the International Olympic Committee (IOC) or International Paralympic Committee (IPC) change their motto or symbol, the Secretary of State has power to amend by order that which is protected under the Act.
78. Paragraph 10 raises the fine which can be imposed for committing an offence under section 8 of OSPA (infringement marketing of goods) during the period from 2 months after Royal Assent until 31 December 2012. In the Magistrates' Court the maximum fine will be £20,000, which is higher than the maximum fine which Magistrates can normally apply. The clause provides for higher fines because the offence is considered to be highly lucrative in the lead up to and during Games time.
Clause 31 and Schedule 3: London Olympics association right
79. This clause introduces Schedule 3. Schedule 3 creates a specific event association right in relation to the 2012 London Olympic and Paralympic Games. It seeks to prevent those who use innovative ways of making an association with the Olympic Games (that is who create a general association with the Games without using specific words or symbols protected under trademark or under the Olympic Symbol etc. (Protection) Act from doing so.
80. Paragraphs 1 and 2 establish the principle of the London Olympics association right and define it as any attempt to use any visual or verbal representation that creates an association between the provision of services or goods or a person and the London Olympic and Paralympic Games.
81. Paragraph 3 establishes a combination of words or phrases that constitute a presumption that the London Olympics association right has been contravened. This means that if a person uses these words the presumption will be that he has associated with the Games, in the absence of evidence to the contrary. Subsections (6) and (7) of Paragraph 3 allow the Secretary of State to amend this list of words and phrases by order.
82. Paragraphs 4 and 5 provide exceptions to the London Olympics association right in relation to authorised use. In particular they allow the LOCOG to grant authorisations where individuals (most likely to be sponsors of the LOCOG and of The Olympic Programme) are given permission to associate themselves with the London Olympic Games. LOCOG will be under a duty to maintain a public register of those individuals who have been granted the right to associate with the London Olympic Games and may charge individuals in relation to those authorisations.
83. Paragraphs 6, 7, 8 and 9 provide for a number of exceptions to the London Olympic association right. These include permitting reports of a sporting event of the Olympic Games and indications which are intended to point to the purpose of a product or service.
84. Paragraph 10 sets out the parts of the Olympic Symbol etc. (Protection) Act 1995 which would also apply to this new London Olympic Association right. These include protection of existing rights and permitting the Secretary of State to issue directions to LOCOG in relation to the exercise of this right.
Clause 32: Greater London Authority: powers
85. This clause enables the Greater London Authority (GLA) to play its part in delivering the 2012 Olympic Games. The clause gives the GLA the power to do anything for the purpose of complying with the obligations which are placed on the Mayor of London in the Host City Contract (whether before, during or after the London Olympics), or to prepare for and manage the London Olympics.
86. In exercising this power, the GLA shall have regard to the desirability of consulting and cooperating with the Secretary of State, the British Olympic Association, the London Organising Committee for the Olympic Games, and anyone else with experience or knowledge which might be useful in relation to preparing for or managing the London Olympics.
87. When undertaking actions to deliver the Olympic Games, the GLA must consider how best to maximise the benefits to be derived from the preparations for the London Olympics once the Games are over.
88. The GLA is given particular powers to:
89. The GLA may delegate its function under this clause to the London Development Agency although the provisions of section 5(2) and (3) of the Regional Development Agencies Act (1998) shall apply: this means that the LDA will still be required to contain the Secretary of State's consent for certain activities and its powers in relation to housing will still be restricted.
Clause 33: Clause 32: supplemental
90. When giving financial support to others for activity connected with the London Olympics, the GLA may do so on specific terms or conditions, in particular for any interest which is to be paid on repayment. The GLA is given the power to accept contributions towards expenditure in connection with the Olympic Games.
91. Once the London Olympics are over, the Secretary of State may, having consulted the Mayor of London, make an order to repeal the powers provided by clause 32. This order would be subject to a negative resolution procedure.
92. The order may make incidental, supplementary, consequential or transitional provisions or savings in relation to the cessation of the powers. It may also provide for the transfer of property, rights or liabilities, and make provision relating to the management, control or treatment of anything constructed or done under the GLA's powers to prepare for and stage the Games. The provisions could be of a specific or general nature, and different provisions can be made for different cases or purposes.
Clause 34: Regional development agencies
93. Clause 34 amends the purposes of a regional development agency as listed in the Regional Development Agencies Act 1998 to include the purpose of preparing for the London Olympics. A regional development agency may only take action for the purpose of preparing for the Games at the request of the ODA.
Clause 35: Northern Ireland
94. This clause applies the provisions of the Bill to Northern Ireland, as appropriate.
Clause 36: Offences: arrest
95. The offences of breach of the advertising and trading regulations in clauses 19 and 25 respectively and of ticket touting created by clause 29 are to be added to Schedule 1A to the Police and Criminal Evidence Act 1984 (c.60) - to make these arrestable offences. Subsections (2) and (3) create the same effect in Scotland.
Clause 37: Commencement and duration
96. This clause sets out when provisions of the Act will come into force. The following provisions shall come into force on Royal Assent:
97. The other provisions of the Act shall come into force by order of the Secretary of State. Such an order may be general or specific in its application and may make different provision for different purposes. It may include transitional or incidental provision, and shall be made by statutory instrument.
98. Clauses 8 to 16 (relating to Olympic transport) shall cease to have effect at the end of the London Olympics period.
99. Clause 30 and Schedule 2 regarding Olympic symbol protection shall come into force on Royal Assent. However, criminal proceedings under a provision of the Olympic Symbol etc (Protection) Act 1995 (OSPA) in respect of anything done during the two-month period after Royal Assent shall not take account of amendments made to OSPA by Schedule 2 of the London Olympics Act.
100. Clause 31 and Schedule 3 (London Olympics Association Right) will cease to have effect at the end of 31st December 2012.
Clause 38: Extent and application
101. This clause sets out the territorial extent and application of the Bill. The Bill extends to the whole of the UK except for clauses 5 (Planning), 6(2) and 6(4) (Street Lighting and Cleaning), 8 to 16 (Transport) and 32 and 33, relating to the Greater London Authority, which extend to England and Wales only, although they will only have territorial application to England. The Act confers some regulation and order-making functions on the National Assembly for Wales and the Scottish Parliament in relation to advertising and trading restrictions as they are to be applied to venues in Wales and Scotland which will stage Olympic events.
Clause 39: Short title
102. The short title of the Act will be the London Olympics Act 2005.
EFFECT OF THE BILL ON PUBLIC EXPENDITURE AND PUBLIC SERVICE MANPOWER
103. The bill will allow for the creation of ODA, the executive NDPB which will deliver the venues and infrastructure of the Games. Given its Olympic focus the ODA will be a time-limited body, unlikely to exist beyond 2014. The ODA will be funded from the public sector funding package of £2.375bn, which includes the Olympic precept on London council tax and money raised by the Olympic lottery.
REGULATORY IMPACT ASSESSMENT
104. Copies of the full Regulatory Impact Assessment of the Bill will be available in the House of Commons Library following introduction of the Bill. The regulatory impact assessment assesses the costs and benefits of the Bill. Further regulatory impact assessments will be undertaken before regulations are made in relation to outdoor advertising and street trading (as provided for by clauses 17 and 23).
105. In addition, an Olympic Games Impact Study has been commissioned to assess the likely impacts of hosting the Olympic Games on both London and the UK. This study will provide assessments of the net impacts of the Games. This piece of work is still 'work in progress' but will be published once completed.
EUROPEAN CONVENTION ON HUMAN RIGHTS
106. Section 19 of the Human Rights Act 1998 requires the Minister in charge of a Bill in either House of Parliament to make a statement about the compatibility of the provisions of the Bill with the Convention rights (as defined in section 1 of that Act). Tessa Jowell, Secretary of State for Culture, Media and Sport has made the following statement:
107. A number of rights in the Convention may be engaged by the provisions of this Bill. For example, Article 6 (Right to a fair trial), Article 8 (Right to private and family life), Article 10 (Freedom of expression) and Article 1 of the First Protocol (Right to property) may be engaged in particular by the provisions restricting advertising around venues as well as Articles 6, 8 and 1 of the First Protocol being engaged by the trading restrictions. However, it is considered that the provisions in the Bill are compatible with the Convention. Some key points relating to this consideration are noted below.
108. Clauses 17 and 23 will allow the Secretary of State to make regulations that restrict advertising and street trading and the precise nature of those regulations cannot be specified now - that depends to some extent on the nature of IOC requirements, which may change between now and 2012. But the Bill provides for regulations to be made that are ECHR compliant, for two reasons. First, regulations would be pursuing legitimate aims: protecting the integrity of the Olympic Games by ensuring the Games do not become over-commercialised and by protecting the reputation and rights of others. Secondly, the Bill allows for regulations to be made in a proportionate fashion: limited in terms of the time period, geographical area and forms of advertising and trading that would be affected; and with the nature of regulations well-publicised by the ODA two years in advance of the Games. Furthermore, section 6 of the Human Rights Act 1998 will apply to the Secretary of State when making these regulations. This provides that it would be unlawful for her to act in a way which is incompatible with a Convention right.
109. The provisions in clause 20 and clause 26 that allow constables and officers of the ODA to enforce such regulations are also compatible, since the provisions serve a legitimate aim (in particular to prevent and detect crime) and the Bill contains appropriate and adequate safeguards. For example, the intention is that entry onto premises will be by consent and persons breaching the regulations will be given an opportunity to stop that contravention. In addition, entry into dwellings will require a warrant and the ODA are required to prepare an enforcement strategy which will be subject to the approval of the Secretary of State.
110. Clause 19 places a 'reverse burden' of proof on a defendant to prove that they did not know they were committing an offence in relation to the advertising regulations, or took all reasonable steps to avoid doing so. This is consistent with the presumption of innocence particularly as the matters subject to the reverse burden are matters within the knowledge of the defendant and which would be difficult for the prosecution to prove. Furthermore, this offence is punishable only by a fine (and not a custodial sentence).
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