The Community Empowerment (Scotland) Bill is not a likely candidate as a topic for talk of the terraces. Recent Green Party amendments to that Bill as it passed through Stage 2 of the Committee process at Holyrood might just change that, as there is now cross-party support for the (pre-emptive) right to buy for fans championed by Alison Johnstone MSP.
I wrote about this topic roughly a year ago. My observations in that earlier blog still stand, even now that we have some actual wording to consider. The proposals, found in clauses 62B-62S of the Bill, allow a “supporters’ trust” to register an interest in relation to a Scottish Professional Football Club. There is an analogy to be drawn with Part 2 of the Land Reform (Scotland) Act 2003 and (to a lesser extent) the (English) Localism Act 2011 (see this document relating to Blackburn’s stadium Ewood Park). There is no right to buy outright, but there is a right of first refusal. That is to say, properly constituted fan groups will have first dibs to buy “their” football club, at a fair value.
Perhaps most importantly of all, clause 62S gives supporters “a right to buy a proportion of the shares in that football club at any point when the right to buy that football club has been activated”, provided that stake relates to at least 5% of the shares in the club. Thus fan groups will not be priced out by a need to buy the whole asset. This stands in direct contrast to the Land Reform (Scotland) Act 2003, which often requires a community to put up or shut up for the whole asset exposed for sale (albeit that might not always be the case, if a community had tactically registered an interest for a small part of a large holding). Maybe the land provisions of the 2003 Act could learn something here.
(NB. “Shares” is not defined in clause 62S. This clause of the Bill seems geared towards the (admittedly prevalent) situation of a footballing company rather than any other business structure.)
Reaction to the proposals on the internet and social media has been generally positive, with an occasional smattering of balance. Today, the BBC reported the proposals received a, shall we say, not very complimentary response from the Scottish fitba powers that be.
Are the SFA and SPFL correct to be “astonished”? By way of analogy with another area of law, which pops into my head solely because I am teaching the topic of insurance law to University of Aberdeen students this term, self-regulation is a perfectly valid model in many spheres, but there are times when legislation is introduced for specific reasons. With insurance, the industry enjoyed a carve our from the Unfair Contract Terms Act 1977, but latterly direct regulation of consumer insurance has occurred. With land reform more generally, there are arguments for and against an unregulated marketplace. Whether these legislative proposals are appropriate for Scottish fitba at the moment is very much a question of circumstances. Again, I ask a variation on a question I considered last year: would fans of Rangers, Hearts, Hibs, Gretna, Dundee, Dunfermline, Clydebank and Third Lanark consider these proposals to be in the public interest?
This is only Stage 2 of the Bill. Stage 3 is still to come. That may be the case, but legislation on a football right to buy suddenly looks a whole lot more likely.
I declare a small, insignificant interest. I had some background discussions about the human rights implications of this proposal, but others like James Mackenzie did far more work on this than I did.