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How Statutory Instruments are helping football (possibly) 'come home'

9 Jul 2021
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Whether football ‘comes home’ on 11 July or not, the holding of the UEFA European Football Championship – like other major sporting events – has been managed in part by using Statutory Instruments, the most common form of delegated legislation.

Dr Brigid Fowler, Senior Researcher, Hansard Society
Dr Ruth Fox, Director , Hansard Society
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Senior Researcher, Hansard Society

Dr Brigid Fowler

Dr Brigid Fowler
Senior Researcher, Hansard Society

Brigid joined the Hansard Society in December 2016 to lead its work on Parliament and Brexit, as well as contribute to its ongoing research on the legislative process, parliamentary procedure and scrutiny, and public political engagement. From 2007 to 2014 she was a Committee Specialist for the House of Commons Foreign Affairs Committee, where she led on the Committee’s EU-related work. In the first six months of 2016 she was on the research team of Britain Stronger in Europe. She has also worked as assistant to an MEP in Brussels and as an analyst and researcher on EU and European affairs in the private sector and at the University of Birmingham and King’s College London.

After completing BA and MPhil degrees at the University of Oxford in PPE and European Politics, respectively, she spent the first part of her career focusing on the politics of post-communist transition and EU accession in Central Europe, and completed her PhD at the University of Birmingham on the case of Hungary. She has given media comment, appeared before select committees and published several journal articles and book contributions.

,
Director , Hansard Society

Dr Ruth Fox

Dr Ruth Fox
Director , Hansard Society

Ruth is responsible for the strategic direction and performance of the Society and leads its research programme. She has appeared before more than a dozen parliamentary select committees and inquiries, and regularly contributes to a wide range of current affairs programmes on radio and television, commentating on parliamentary process and political reform.

In 2012 she served as adviser to the independent Commission on Political and Democratic Reform in Gibraltar, and in 2013 as an independent member of the Northern Ireland Assembly’s Committee Review Group. Prior to joining the Society in 2008, she was head of research and communications for a Labour MP and Minister and ran his general election campaigns in 2001 and 2005 in a key marginal constituency.

In 2004 she worked for Senator John Kerry’s presidential campaign in the battleground state of Florida. In 1999-2001 she worked as a Client Manager and historical adviser at the Public Record Office (now the National Archives), after being awarded a PhD in political history (on the electoral strategy and philosophy of the Liberal Party 1970-1983) from the University of Leeds, where she also taught Modern European History and Contemporary International Politics.

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Delegated legislation is ‘the legislation of everyday life’. While Acts of Parliament provide a framework, delegated legislation is used to add much of the detail of the law. As a result, it is often this form of legislation that has the most direct practical impact on people’s lives.

Delegated legislation is often used, and attracts notice, when it applies to challenging and potentially controversial areas of public policy, such as immigration or welfare. What may be less well-known, because it is typically less controversial, is that delegated legislation also underpins many of the practicalities of enjoying major sports events – as participant, spectator or host. This includes international events such as the 2020 UEFA European Football Championship that concludes at Wembley on 11 July, 2021. Moreover, while delegated legislation typically receives attention – including from us at the Hansard Society – when it is problematic, in normal times many of the Statutory Instruments (SIs) that are involved in the holding of major sports events are more likely to show delegated legislation being used in one of the ways that it should be used: to apply agreed policy to specific cases, on practical, technical matters, and often for only limited periods.

In 2021, the UK’s hosting of eight Euro 2020 fixtures at Wembley has required exceptions to be introduced to some of the restrictions otherwise currently associated with international travel into England, imposed to tackle the Covid-19 pandemic.

Throughout the last 16 months, many of the Covid Regulations have included a range of exceptions for international sports events and sportspersons. Currently, the Health Protection (Coronavirus, International Travel and Operator Liability) (England) Regulations 2021, which were laid before Parliament on 14 May, exempt from some of the international travel restrictions domestic and international elite sportspersons and their support staff who are participating in, and officials involved in organising and running, a list of designated events. The 14 May Regulations specified 159 elite sports events to which these exceptions would apply. A further 19 events were added to the exemptions list in the fourth set of amending Regulations laid before Parliament on 28 June. Exceptions are being made not just for football but for major domestic and international events in a range of sports including athletics, boxing, cricket, darts, equestrianism, golf, hockey, horse racing, rugby, snooker, squash, Taekwondo, tennis and motor racing. For Euro 2020, representatives of UEFA (the Union of European Football Associations) and FIFA (the Fédération Internationale de Football Association), senior executives from the tournament’s commercial sponsors and partners, and representatives from the countries competing in the tournament, and who have been invited to England by the Football Association, have been exempted from the self-isolation restrictions arising from the country-based ‘traffic light’ risk system.

In non-pandemic times, there is a suite of types of Orders and Regulations – put into law by Statutory Instrument – that are available and regularly used to manage sports events, including international ones. The functions carried out through such SIs include:

1. Making event venues useable, accessible and safe. For security, the authorities often want to ensure that nothing can fly unauthorised in the airspace immediately above major sporting events. This is achieved by making Air Navigation (Restriction of Flying) Regulations. The airspace above Wembley was cleared for Euro 2020 matches by the Air Navigation (Restriction of Flying) (Wembley Stadium) Regulations 2021, for example, made by the Department of Transport in May. Restriction of Flying Regulations are so numerous and routine that they do not involve Parliament at all but are simply made and brought into force by the Minister.

Sometimes, the authorities also want to impose extra restrictions on the movement of road traffic – to manage the arrival and departure by car of large numbers of spectators, or to clear roads needed for the event itself. This is achieved through temporary Traffic Orders made under the Road Traffic Regulation Act 1984. The holding of the Grand Départ for the Tour de France in Yorkshire in 2014, for example, generated a whole set of temporary Traffic Orders closing the relevant stretches of road. (That public roads can be used for cycle racing at all, under certain conditions, is enabled primarily by the Cycle Racing on Highways Regulations 1960.) Again, temporary Traffic Orders are so frequent and uncontroversial that they are not laid before Parliament.

With respect to practical safety arrangements at sports events, it is also worth remembering that much of the detailed regulation of both the police and private security companies takes place through delegated legislation, as does much of the health and safety regulation (including as regards seating arrangements) that determines whether a football ground is permitted to host large numbers of spectators at all. The detailed control of commercial activities in the vicinity of sports grounds – including ticket touting – also often takes place through delegated legislation.

Much of this sort of delegated legislation is not specific to sports events but is used for major public events of all kinds. Typically, such events can be provided for well in advance; but the value of Ministers being able very quickly to make often temporary, practical but enforceable arrangements of this sort can be seen when Traffic Orders and Restriction of Flying Regulations are made at short notice to apply to the scenes of large accidents, in connection with major crimes, or to cover a VIP journey which is not publicised in advance.

2. Banning certain individuals from matches. The Football Spectators Act 1989 gives Ministers the power, during “control periods”, to impose banning orders on particular individuals to prevent them from attending matches, both at home and abroad. Under the Act, Ministers specify the dates of control periods for particular matches or tournaments by Statutory Instrument.

For Euro 2020, the Covid pandemic necessitated the cancellation and then re-specification of the relevant control period, paralleling the cancellation and then re-organisation of the tournament.

The control period for the Championship was first set in January 2020, for June-July of that year (in the Football Spectators (2020 UEFA European Championship Control Period) Order 2020). When the Championship was postponed owing to the pandemic, this Order was revoked (by the Football Spectators (2020 UEFA European Championship Control Period) (Coronavirus) (Revocation) Order 2020). When the Championship was then re-scheduled, a new Control Period Order was made, in March 2021 (the Football Spectators (2020 UEFA European Championship Control Period) Order 2021).

3. Extending licensing hours. Section 172 of the Licensing Act 2003 gives the Home Secretary the power to declare a “celebration period” to mark “an occasion of exceptional international, national, or local significance”, for which s/he may make a Licensing Hours Order (for England and Wales). Under such Orders, the hours for which existing premises licences apply change automatically to the hours covered by the “celebration period”.

Such Licensing Hours Orders are subject to the ‘draft affirmative’ procedure. That is, they must be laid before Parliament as drafts, and cannot be made and then brought into force by the Minister until they have been approved by the House of Commons and usually also the House of Lords.

Typically, occasions that might warrant a temporary change to licensing hours are known about well in advance. For example, the government announced in early March 2018 that it intended to extend licensing hours for the mid-May wedding of Prince Harry and Meghan Markle, and it laid the draft Order before Parliament on 21 March, allowing it to be debated and approved in good time.

On this occasion, the government only announced on 6 July that it intended to extend licensing hours for the Euro 2020 final on 11 July, and it only laid the draft Order before Parliament on 7 July – a Wednesday, in a normal parliamentary week when neither House is sitting on Friday. To allow the SI to be made and brought into force in time, both Houses had to debate and approve it in a single day, the day after it was laid (namely Thursday 8 July). This in turn required the House of Lords to set aside its Standing Order No. 73, which normally bars the House from agreeing to an affirmative SI unless and until it has been reported on by the Joint Committee on Statutory Instruments (JCSI).

The Home Secretary’s power temporarily to change licensing hours is not necessarily one to be exercised lightly. However, it is worth noting that, because SIs made using this power are subject to the ‘draft affirmative’ procedure, they cannot be made into law by the Minister unless and until they have received active parliamentary approval. As such, they are subject to more parliamentary scrutiny than ‘made negative’ SIs such as the Covid travel Regulations, which do not require active parliamentary approval and are laid before Parliament only after the Minister has made them.

4. Granting tax exemptions for the UK earnings of visiting players and officials. The Major Sporting Events (Income Tax Exemption) Regulations 2021 exempt from UK income tax the earnings in the UK, in connection with Euro 2020, of certain individuals who are not resident in the UK and who are accredited by UEFA. The Regulations were made in March by the Treasury, under the Finance Act 2014, having been laid before the House of Commons in January before being debated and approved. The exemption was a condition of winning from UEFA the right to host Euro 2020 matches, but it is not unusual: the same exemption was made for the World Athletics Championships held in London in 2017, for example.

5. Protecting an event brand. Much more rarely, when the UK in some sense ‘owns’ or creates an event rather than just hosting it for an international sports body, UK Statutory Instruments can be used to protect the associated brand and intellectual property. This is done through SIs concerning ‘association rights’ for specific tournaments. These protect the rights of official event partners and allow enforcement against any unauthorised attempts to associate other organisations or companies with the event (such as use of logos, and so forth). This kind of delegated legislation was not required for Euro 2020 (because the tournament ‘belongs’ to UEFA), but it was made for the 2008 Commonwealth Games in Glasgow and 2012 London Olympics, for example.

With the England men’s football team in the final of a major championship for the first time since 1966, there has been speculation that a victory might see the creation of an extra bank holiday to mark the occasion.

Contrary to speculation, this would not require legislation.

As the House of Commons Library has set out, a bank holiday is created using provisions in the Banking and Financial Dealings Act 1971. Bank holidays include those days specifically listed in the Act, as well as days subject to Royal Proclamation by the Queen. The Queen may proclaim additional bank holidays on the recommendation of Ministers: the 1971 Act states that “Her Majesty may from time to time by proclamation appoint a special day to be, either throughout the United Kingdom or in any place or locality in the United Kingdom, a bank holiday under this Act.” The Queen may also by Proclamation change the date of an existing bank holiday set out in the list in the 1971 Act, again acting on the advice of Ministers. If the bank holiday is already made by Proclamation, then the date can simply be proclaimed for a different day.

The research for this paper was supported by the Legal Education Foundation as part of the Hansard Society’s Review of Delegated Legislation

Fowler, B. & Fox, R., How Statutory Instruments are helping football (possibly) 'come home', (London: Hansard Society), 9 July 2021