1.The Bill, which had its Second Reading on 3 February, contains a number of measures intended to support the delivery of the 2022 Commonwealth Games which are due to be held predominantly in Birmingham and venues across the West Midlands in July and August of 2022.
2.The Department for Digital, Culture, Media and Sport has provided a delegated powers memorandum. The Bill is to a very large extent the same as the bill of the same name which was introduced during the 2017–19 Session, and which was considered by this Committee in its 58th Report of that Session. In that Report, we drew attention to four provisions. This Report deals with three of those. In the case of the other provision, the Government accepted our recommendation.
3.Clause 13 makes it an offence for a person to carry out Games location advertising. The provision relies on a number of delegated powers all of which are subject to the negative resolution procedure. Clause 13 is substantially the same as clause 12 in the earlier Bill. In our Report on that Bill we said the following about the powers in clause 12:
“2. Clause 12(1) makes it an offence for a person to carry out Games location advertising. The expression “Games location advertising” is defined in subsection (2) to mean the doing of something in, or in the vicinity of, a specified Games location at any time during a specified period, where the thing is being done wholly or partly for the purpose of promoting a product, service or business specifically to members of the public who are either in, or in the vicinity of, the Games location, or watching or listening to a broadcast of a Games event.
3. Where “specified” is used in clause 12(2), it means specified in regulations made by the Secretary of State. Accordingly, clause 12 confers power on the Secretary of State to make regulations specifying the Games locations to which the advertising offence applies and also the period during which the offence will apply. In the latter case subsection (3) sets out the maximum limits for the period: it cannot start earlier than 21 days before the Games begin, and it cannot end more than five days after the Games finish.
4. Clauses 12(4) confers further regulation-making powers in connection with the advertising offence. It allows the Secretary of State to make provision as to when a person is, or is not, to be treated as doing something or being in, or in the vicinity of, a Games location.
5. The Department’s reasons for taking the powers in clause 12 are set out in paragraphs 20 to 25 of the memorandum. The primary reason is flexibility. Operational planning for the Games is still underway, and it is not yet known where all the Games locations will be or when they will be needed for Games events. Leaving to regulations the detail of the specific Games locations, and the period during which the advertising offence will apply, will allow the offence to be shaped so that it does not go beyond the minimum necessary.
6. Regulations under clause 12 are subject to the negative resolution procedure. The Department argues this is appropriate because the powers are narrowly drawn.2 They are limited to dealing with matters of detail; namely, the specific dates, times and areas for which advertising will be restricted. The power is further restricted because the limit on the period in clause 12(3) ensures that the advertising provisions, including the provision made by the regulations, will only operate during a relatively short period of time. Also, the negative procedure is appropriate because it would allow urgent action to be taken to accommodate last minute changes in the schedule for the Games.
7. We do not agree that the powers are narrowly drawn:
8. Not only are the powers wide but their exercise is also liable to have a significant impact because the offence covers such a wide range of activities. The definition of advertising in clause 12 is very broad. It covers all forms of advertising. The only restriction is that it is done wholly or partly for the purpose of promoting a product, service or business specifically to members of the public who are in, or in the vicinity of, a Games location. It would therefore cover advertising of any services, products etc. aimed at persons in the relevant area irrespective of whether or not the thing being advertised had any connection with the Games.
9. We acknowledge that the limit placed on the period for which the advertising offence may apply mitigates against the width of the powers. However, we are not convinced that this is sufficient to make the negative procedure appropriate.
10. One of the points made by the Department is that the negative procedure will provide the flexibility to accommodate the fact that the schedule for the Games is not yet known and may be subject to last minute changes. However, it seems to us that this could be addressed in the same way that this issue was addressed in the London Olympic Games and Paralympic Games Act 2006. Initially, the advertising regulations under that Act were subject to the affirmative procedure in all cases. However, changes were subsequently made in the London Olympic Games and Paralympic Games (Amendment) Act 2011, which allowed the negative procedure to apply where the Secretary of State considered there was an urgent need for the regulations to be made without a draft first having been approved by Parliament. We consider the same approached should be adopted here.
11. Accordingly, we recommend that any exercise of powers under clause 12 should be subject to the affirmative procedure, unless the Secretary of State certifies that by reason of urgency the negative procedure should apply instead.”
4.We have considered the Government’s response to our Report, and also what is said in the memorandum about why the Government still consider the negative resolution procedure to be appropriate. While we acknowledge that the equivalent powers conferred under the legislation for the London Olympic Games and the Glasgow Commonwealth Games may have been wider, the powers conferred by clause 13 must still nevertheless be considered on their own merits. Nothing which the Government have said leads us to believe that we were wrong in our earlier assessment of the scope of the powers and their significance.
5.Accordingly, we remain of the view that any exercise of powers under (now) clause 13 should be subject to the affirmative procedure, unless the Secretary of State certifies that by reason of urgency the negative procedure should apply instead. In recommending that the negative procedure is appropriate for urgent exercises of the powers, we are mindful of the fact that, in this case exceptionally, requiring the draft affirmative procedure to apply would not be practical in circumstances where it was necessary to make the change to the legislation days before the Games were to take place.
6.Clause 16 makes it an offence for a person to carry out Games Location trading. Clause 16 is substantially the same as clause 15 in the earlier Bill. In our earlier Report we said the following about the powers in clause 15:
“12. Clause 15 makes provision in relation to trading in Games locations which is very similar to that made by clause 12 for advertising. It makes it an offence for a person to carry out Games Location trading, with the definition of “Games location trading” having many similarities to the definition of “Games location advertising”. The definition provides for the offence to apply to trading in, or in the vicinity of, Games locations specified in regulations and during a period specified in the regulations, with the same limit on the length of that period. Clause 15 also contains a provision, equivalent to clause 12(4), which allows the regulations to make provision as to when a person is, or is not, to be treated as doing something or being in, or in the vicinity of, a Games location.
13. In our view, similar considerations apply here as apply to clause 12 and the provisions on advertising. The range of matters caught by the trading offence is very broad and is not limited to activities connected to the Games. Also, as with the advertising regulations, wide powers are conferred on the Minister to determine the places to which the trading ban will apply and the extent of the areas over which the ban will apply.
14. Accordingly, we recommend that any exercise of powers under clause 15 should be subject to the affirmative procedure, unless the Secretary of State certifies that by reason of urgency the negative procedure should apply instead.”
7.We remain of the same view about this clause, and accordingly we recommend that any exercise of powers under clause 16 should be subject to the affirmative procedure, unless the Secretary of State certifies that by reason of urgency the negative procedure should apply.
8.Clause 25 confers a power on the Secretary of State to direct a combined authority or a local authority in England (“the directed authority”) to prepare a Games transport plan. The Department states in paragraph 61 of the memorandum that the purpose of the plan is:
“to facilitate and deliver integrated “Games time” transport planning and operations in a clear and practical way. The purpose of such a Plan would be to set out a strategic approach to the planning and coordination of transport to support the Games, covering the transportation of spectators, athletes and the Games Family, whilst at the same ensuring that any disruption to everyday users of the relevant transport networks is kept to a minimum.”
By virtue of clause 25(6), each local traffic authority for a road affected by the plan is under a duty to exercise their functions with a view to securing the implementation of the plan.
9.The functions of the directed authority are not limited to preparing a Games transport plan but also include the power to make traffic regulation orders etc. under section 14 of the Road Traffic Regulation Act 1984 (which allows a traffic authority temporarily to restrict or prohibit the use of a road). Clause 26 modifies section 14 to allow action to be taken under that section for the purposes of implementing a Games transport plan, and for the purposes of facilitating transport services in connection with the Games and travel by persons connected with the Games. Clause 27 allows the directed person to take action under section 14 in respect of a road as if that person were the local traffic authority for the road concerned (although any such action can only be taken with the consent of the local traffic authority for the road).
10.In the earlier Bill the equivalent power was to direct any person to be responsible for the Games transport plan; in other words, it was not limited to a local authority. In our earlier Report, we noted that nothing was said in the memorandum to explain why it was not possible to specify on the face of the primary legislation the body which is to exercise the functions of the directed person. This was in contrast to the legislation for the London Olympic Games and the Glasgow Commonwealth Games where the body responsible for the Games transport plan was specified on the face of the primary legislation. We expressed the view that the delegation was inappropriate in the absence of any explanation justifying why it was necessary in this case to leave it wholly at large who was to be responsible for the Games transport plan.
11.In response to our Report, the Minister acknowledged the difference in approach to that in respect of the London Olympic Games and the Glasgow Commonwealth Games. The Minister said:
“We do believe however, that the proposed approach is appropriate for Birmingham 2022. Local Games transport partners are already leading and working together on transport preparations and planning for the Games. Their approach reflects the transport expertise that already exists across Birmingham and the region and, importantly, the reduced timescale to deliver these Games. The views of local partners will strongly factor into the Secretary of State’s decision on who will formally be directed to prepare the plan.
The Minister went on:
“I have however, carefully considered the issues raised in the report of the DPRRC and recognise the concerns. We have therefore brought forward an amendment that the Secretary of State would be enabled to direct only a ‘local authority or combined authority’ to produce a Games Transport Plan, rather than ‘a person’”.
12.We accept this explanation as to why it is appropriate to provide for a local authority or combined authority to be the person responsible for the Games transport plan and why it is not feasible at this stage to specify which authority that should be. However, given the significance of the functions conferred on the relevant authority and the fact that under earlier legislation the designation of the authority was on the face of the primary legislation, we consider that the designation should be subject to Parliamentary scrutiny, with the negative procedure offering an appropriate level of scrutiny.
1 , Session 2017-19 (HL Paper 391).
2 , Session 2017-19 (HL Paper 414).