Examination of Witnesses (Questions 27
- 39)
THURSDAY 17 JANUARY 2008
Mr James MacDougall and Mr Andrew Hanson
Q27 Chairman:
Good morning to you both. We welcome Mr Anthony Hanson and Mr
James MacDougall of the Central Council of Recreative Physical
Training. Thank you very much for joining us. We have allocated
30 minutes for this session. I would just like to draw your attention,
as I did earlier, to the situation, just to remind you that the
session is open to the public and will be recorded for possible
webcasting. A verbatim transcript will be taken of your evidence.
This will be put on the public record and in printed form on the
Parliamentary website. A few days after this session your office
will be sent a copy of the transcript to check it for accuracy.
Please advise us of any corrections as quickly as possible. You
may submit supplementary evidence after the session to clarify
or amplify any points made during your evidence or answer any
questions which may not be reached today. Could I remind you,
as I did earlier, that it would be enormously helpful if you could
speak as clearly and positively as possible, so that the record
may be as accurate as possible, and, please, would you start by
stating for the record your names and official titles. Do you
want to make a statement before we ask the first question?
Mr Hanson: Very briefly.
Q28 Chairman:
Then, first, if you would like to state your name and title and
then we will proceed with your statement.
Mr Hanson: My name is Andrew Hanson, Head of
Policy at the Central Council of Physical Recreation (CCPR), which
is the representative body for sport and recreation in the UK.
It covers every activity from rugby to rounders and rowing to
rambling. We also have in membership people such as the Scouts
and Guides, who use sport and recreation to deliver their primary
purpose of working with young people. CCPR believes the draft
reform treaty is positive for sport. It is the first treaty to
include a reference to sport and, thereby, enables the EU to take
sport into consideration in the policy-making process and to support
sport with funding streams.
Mr MacDougall: My name is James MacDougall.
I am the CCPR's European and International Officer. CCPR are very
active on the European sporting lobbying front and we are a member
of ENGSO (European Non Governmental Sports Organisations), which
covers 40 different European countries. I have come yesterday
from Brussels where I was with their EU working group discussing
the EU Reform Treaty, amongst other things.
Q29 Chairman:
Thank you very much. I will proceed with our first question. Sport
policy has been developing at the community level since the Amsterdam
Treaty and the Nice Summit in December 1999. Earlier this year,
we saw the Commission's White Paper on Sport, and now a legal
base is being provided. Could you comment further on the policy
development background that has led to sport's inclusion in the
Treaty?
Mr MacDougall: As you say, sport was first mentioned
in European levels in the Treaty of Amsterdam, and that mentioned
really that sport was socially relevant and, indeed, sport is
the biggest social movement in Europe; but it did not go on explicitly
to say anything a great deal more than that, just a couple of
lines. It developed from there through to what we found in the
Treaty of Nice, and what was in there was mainly developed by
the French Minister of Sport at the time, and he was looking,
in particular, for an exemption for sport to EU law, and that
is perhaps a reflection of what there is in America in terms of,
for example, a national football league. The NFL there is a monopoly,
but that is not against American law because sport has an exemption.
That, from a European perspective, is almost impossible to do,
simply because the things that affect sport are not necessarily
always competences at an EU level. For example, tax is still in
the domain of the Member States, so there is no way EU law could
give sport an overall exemption. So, that developed there. The
Minister did not get support from all the EU 15, as it was, and
so what happened in the Treaty of Nice was slightly watered down.
Cynically, you may argue that the reason why the Minister for
Sport in France was particularly interested was because France
were perceived to have been unsuccessful in European football,
in particular, at the time and he wanted to defend French state
aid to football clubs so that they could develop players, and,
shortly afterwards, there were, in fact, proceedings from the
Commission against France on that. The idea was that there were
a lot of things that happened in EU law that actually affected
sport, and this is where the idea of specificity comes from; that
there are specific natures that are different in sport than they
are to EU law. For example, a case before the ECJ was Koch
and Walgrave, and that was where it was brought against the
French National Team, saying for free movement of players you
should have not just French people in the team but anyone from
the EU, and that was thrown out on the basis that we understand
that sport is specific and national teams are national teams and
only have national players in them. So, that is where the idea
of specificity came from, and the ideas that we see in front of
us today in the EU Treaty were also in the previous European Constitution
as well. What we have in the Treaty now is actually quite a vague
statement from a legal standpoint that could be interpreted in
different ways, but what we are looking for from the sport point
of view is a similar aspect to what has happened to culture in
the past. That came into the EU treaties for the first time in
1992, and, again, that was also a soft competence, as we call
it, so a co-ordinating and supporting role, and you have seen
a positive effect on culture, particularly in terms of funding
streams. An example of that is that this year is the European
Year of Intercultural Dialogue and there have just been 27 projects
announced that actually represent the 27 EU Member States, and
all of those projects are cultural projects, there is no sporting
project in there for any funding. So, that is the sort of impetus
and natural progression we would like to see from the Treaty.
Q30 Lord Trefgarne:
You indicated that an increased awareness of sport as a policy
issue would be welcome. Can you give us some examples from the
past where this lack of awareness has been a difficulty and led
to, perhaps, unintended consequences?
Mr Hanson: We had two specific and recent examples.
The Temporary Work at Height Directive, designed for scaffolders,
steeplejacks, people working on oil rigs, essentially laid out
how you should work with ropes to ensure safety. Because the EU
is unable to take sport into account, it also applied to people
who might be teaching rock climbing or teaching sailing. In effect,
the industrial ropes methods proposed within the Directive were
more dangerous than the existing methods used within a sporting
context, and this had two very bad consequences. One would be
that when people went out to climb as an individual, not in a
working context, they would have used the normal climbing procedures
and been perfectly safe, yet if someone was teaching someone to
climb, they would have to teach them according to an industrial
process that would not have been relevant. It took about four
years of work, I believe, to get this turned around. CCPR is involved
in the Adventure Activity Industry's Advisory Committee and worked
with the Health and Safety Commission in England and the Health
and Safety Executive to eventually get a dispensation that the
regulations would be applied in a different way to the recreation
activities, but it took a lot of work for British civil servants
and a lot of work for British sporting bodies to actually arrive
at this. If the EU at policy level had been able to take it into
account in the first place, all that work and expense would have
been avoided. A similar issue is the Water Bathing Directive.
This is about the cleanliness of water for people to bathe. Initially
it had been proposed that that should include sailing, rowing,
yachting and so forth, and essentially it would have meant that
the Thames would not have been clean enough to hold the Oxford
and Cambridge Boat Race. Fortunately lobbying at the European
level was able to get that changed before it came over to Britain.
Lord Lea of Crondall: Could I ask a supplementary
to question one? I did not quite understand something about specificity
as far as national teams.
Chairman: Let me remind you, Lady Young
has specific questions on specificity, which will be coming next,
so it might be better to wait until her questions have been asked
first.
Lord Lea of Crondall: I am sorry, it
came up. I will leave it.
Q31 Baroness Young of Hornsey:
Specificity—the word of the moment. I work in the cultural
sector, so I understand what you are saying with regard to some
of the benefits that have accrued from being recognised by the
EU. I have got two questions, but I will ask them individually,
if I may. Obviously this is a very important issue, and you have
already elaborated on some examples that refer to this. Could
you tell us in a little bit more detail what you consider would
be the implications of not recognising the specificity of sport,
given that, even in some of the examples you have given, people
have found a way around it. What would be different if we do have
this notion of the acceptance of this concept of specificity?
Mr MacDougall: I think the thing that sporting
organisations are particularly looking for is two ideas. Specificities,
as you say, is the word of the moment and the other one from the
sporting area is autonomy, that sporting organisations have the
autonomy to actually choose how they want to develop their sport
for the good of the sport as well, and without the specific nature
within EU law, they do not have that and they do not have any
guarantees to actually do that. There are some cases, we have
shown, where we have managed to get round it, but there are certain
things that are still out there. One that is very politically
alive at the moment is home-grown players and quotas for different
players to develop sport as well. Without the ability to govern
your own sport and develop sport for the good of the nation, it
will be difficult, and that is the specific nature that we want
European law to exempt.
Q32 Baroness Young of Hornsey:
In that particular example that you have given, the arguments
that rage about home-grown players in football, what difference
would it make having that sort of recognition?
Mr Hanson: Essentially if the EU were to recognise
the specificity of sport, it would be able to say, on a carte
blanche basis, that having home-grown player quotas is acceptable
because we understand that, if you want a vibrant international
competition between countries and between clubs, you have to regulate
your sport and, therefore, it would disapply, if you like, the
freedom of movement for sport.
Q33 Baroness Young of Hornsey:
So that mainly affects sport at an elite level.
Mr Hanson: There would be other benefits of
specificity which would not necessarily be at elite level.
Q34 Baroness Young of Hornsey:
Could you give an example?
Mr MacDougall: On exactly the same thing, the
Austrian Chess League, obviously not an elite sport category,
was actually subject to that same ruling as well. They wanted
local people to participate and have Austrians playing, but they
were advised that they would have to accept people from Germany,
from all around Europe as well, to play in their leagues. They
had quotas as well. So it is not just the elite level that it
affects and it is not just football as well. Cricket has a very
good interest, rugby. For example, there are 190 South African
rugby players playing in the French League at the moment, so that
is enough for 12, 14 teams, or something like that. It is a huge
amount of different people.
Mr Hanson: In terms of grassroots implications,
obviously we are all aware of the National Lottery in the UK and
how that funds British sport, in other EU countries their national
lottery is the prime funder of sport without any other government
intervention, and specificity, again, would be able to say that
that is allowed to continue and would not be challenged, as it
has been in the past, in terms of state aid.
Q35 Lord Lea of Crondall:
Could you clarify if my understanding is correct or not correct
that the specificity of the England football team being able to
say, "We want home-grown English men"—there being
no women in it at the moment—is different from saying Arsenal
can have 11 foreign players. Is that correct?
Mr MacDougall: Yes. There was a case, as I mentioned
before, that was specifically on national areas in that national
teams are allowed to say, "We only have national players",
so the English team only says English players, but currently certainly
Arsenal, or any team, can have as many EU member players as it
wants in its life. It is the autonomy of sports organisations
that we are arguing for, that they can choose whether that is
the best thing to develop their football, or all sports, at a
grassroots level.
Q36 Lord Lea of Crondall:
Is there something new in that regard in this document?
Mr MacDougall: This document asks specifically
for the European institutions to look after the specific nature
of sport. As I mentioned earlier, that is possibly a vague statement,
but what can happen there is that the European Commission can
give direction on how they want to approach this. They have mentioned
in the White Paper on Sport that came out in the summer that they
appreciated the need for national teams and, therefore, the need
to develop national players, and they are at the moment doing
a study on quotas and this home-grown issue which is obviously
very salient at the moment, but because it is actually in here
as a soft competence, very much as you heard from the NSPCC and
Save the Children, it will have the new opportunity to affect
other directives, and that might include employment and free movement
of players as well. Sport can be mentioned.
Q37 Baroness Young of Hornsey:
There is a second question, although it is all interrelated. Autonomy,
specificity: you said that the EU has been reluctant to define
these terms and that, ultimately, you hope to reverse the uncertainty
around sporting governance. Could you say something a little bit
more about that, please?
Mr Hanson: Yes. I think the key issue is that
to date decisions that James has referred to, such as Walgrave
and Koch and Meca-Medina, have all been case by case
basis within the EU Court of Justice. We would like to see something
that would give more certainty to the governing bodies rather
than a case by case basis, something that allows influence on
the European Court of Justice from the Commission to make more
a consistent judgment on sport rather than the governing body
having to wait every time to know whether this time they will
take into account the specific nature or whether they are just
going to apply competition law, or whatever the law is, in a blanket
manner.
Mr MacDougall: I think, certainly, to overrule
or succeed anything that the ECJ has already said, you of course
need a directive from the European Union. In the current climate
that is not likely. In Meca-Medina, which was a case of
two swimmers who were found to have taken drugs and they complained
that being banned from competition was against their free movement
and their provision to provide a service, the ECJ said, "No,
the specific nature of sport is that you do not cheat, and I am
afraid you cannot compete", but they did say specifically
in that, "But we want every case to come to the ECJ because
every court case is different", and that is the uncertainty
that we do not want from a sporting angle. Regardless of whether
there will be an EU directive on sport, which there will not be,
if there is a soft competence in sport the European Commission
can say, "This is what we feel about certain issues",
and then the sports governing bodies will be able to understand
that that is the likely outcome of anything from the ECJ anyway
so they can understand it before the several-year process of going
to the ECJ.
Q38 Chairman:
What you have said then is that the Lisbon Treaty does not yet
make that possible. The Lisbon Treaty does not go as far as you
would like it to have done to give you that opportunity. Is that
right?
Mr MacDougall: No, I think you will find at
the moment the Lisbon Treaty is fine. We would not particularly
want any further competences to go to Europe. We are happy with
the supporting and the co-ordinating nature that the Lisbon Treaty
suggests, but it does allow other directives, for example, to
involve sport. One that might come up—
Q39 Chairman:
It gives you an opportunity to now ask for further directives
which would strengthen what the Lisbon Treaty makes possible.
Mr MacDougall: Exactly. For example, one that
might come up in the next year is an EU directive on gambling.
That is very important for the European sporting scene. For example,
Finland has over 90% of its sport income coming from its national
lottery. So, certainly from a European point of view, there will
be a lobby that will say that the gambling directive take into
the specific nature of sport, as it says in the Reform Treaty,
so that we can fund the sport from this.
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