Background and the current law 

Understandably the avoidable tragedy that befell the 96 Liverpool FC supporters who lost their lives at Hillsborough Stadium on 15 April 1989 has continued to inform regulation of the safety of football spectators. In the immediate aftermath of Hillsborough the existing legislation, the Safety at Sports Grounds Act 1975, was swiftly augmented by the Football Spectators Act 1989. That Act required that football grounds be licensed, through the Football Licensing Authority, to admit spectators. Significantly it introduced criminal penalties for breaching that requirement. 

The power of the Football Licensing Authority, that body later to be superseded by the Sports Ground Safety Authority (SGSA), to grant licences was made subject to Section 11 of the 1989 Act. Section 11 carved out a right to the Secretary of State to direct by secondary legislation (Order) a condition in licences imposing requirements regarding the seating of spectators at designated football matches.

Following the recommendation in Lord Justice Taylor's 1990 Hillsborough Stadium Disaster Inquiry report, an Order was made requiring that the top two divisions of senior English football have "all seater" grounds. Further it was directed that once a club had been required to meet that condition, its ground must remain all seated. This position is distinct from that of other sports such as rugby and horse-racing where spectators are able to stand on terraces.       

Assisted by previously undreamt of income streams from broadcast rights, the top clubs were able to substantially renovate, and in many instances simply rebuild their grounds into modern stadia compliant with the new licensing "all seater" requirement. With access to better sight lines and facilities, initially at least few mourned the old grounds and the crude concrete terraces from where the majority of spectators had previously viewed the match.

The current position 

Gradually time has altered the above perspective. The conventional wisdom of a direct correlation between standing at matches and the deaths of the Hillsborough victims has been increasingly questioned. Moreover, there is the emergent possibility that the all seated regulation is adversely impacting upon spectator safety. That possibility is rooted in the simple fact that the prohibition on standing at all seater grounds, and stewarding aimed at enforcing that prohibition, has been far from an unqualified success.  Significant numbers of fans continue to stand at games despite years of soft persuasion, and harder warnings. 

There is now a general acceptance amongst clubs that there will always be a core of their supporters who will refuse to sit. The collateral safety problem being that where groups of spectators elect to stand, their seats become a risk. In moments of high drama, where standing fans become mobile, the seats present a tripping, or toppling hazard. Thus for the clubs there is something of a safety dilemma: conventional wisdom since 1989 prevents standing areas due to the risk of progressive crowd collapse; but in practice some provision of standing areas may be necessary to improve safety.    

The position in Scotland 

North of the border football has had a different experience. The Football Spectators Act 1989 does not apply, the SGSA has no jurisdiction and there are no legislative provisions requiring all-seated accommodation. The ability to host a match is governed solely by safety certificates issued by the local authority having regard to the terms of the 1975 Act and the Fire Safety and Safety of Places of Sport Act 1987.

In accordance with section 2 of the 1975 Act and section 27 of the 1987 Act the local Council is required to include in the safety certificate such terms and conditions as it considers necessary or expedient to secure the reasonable safety of spectators. In determining the contents of a safety certificate the Council take account of the advice of Safety Advisory Group, a multi-agency advisory group including representatives of the emergency services, and also the guidance published by the SGSA, the so called Green Guide.

In 2015 Celtic FC were granted a certificate by Glasgow City Council that permitted standing in a quadrant of their ground housing 2,600 supporters. A small number relative to the overall ground capacity of 63,000, but large enough to house the portion of the home support resolutely intent on standing. The successful application was predicated on "railed seating" whereby a seat is retained (UEFA presently still insists on all seater stadia for its competitions) but is folded away and locked in position allowing the spectator to stand in their own designated space behind a waist-high rail. Thus engineering out the tripping or toppling risk. 

Celtic are clear that railed seating has successfully delivered safe standing for the club. That confidence has not gone unnoticed. All major English clubs and the FA themselves have made discreet visits to the Celtic Park to examine their "experiment" in operation. League 1 club Shrewsbury Town FC have gone further and introduced a railed seating section.       

Safe Standing 

For decades there has been no, or little, appetite for re-visiting the SGSA's implacable position that all spectators being seated is a pre-requisite to safety in the top two tiers of English football. The 2010 private members Safe Standing (Football Stadia ) Bill sought to  wrest control from the 1989 Act and the SGSA and  empower all football clubs to build safe standing sections subject to establishment of minimum safety criteria. The bill failed through lack of Parliamentary time. Now it appears however that the issue may have returned to the Government's legislative agenda.     

In the summer of 2018, the Ministry for Sport and Civil Society announced the commissioning of an external analysis relating to the all-seater policy. CFE Research's "Standing at Football - a Rapid Evidence Assessment" reported there to be insufficient evidence at present to justify a change in the regulatory framework: 

"… to understand further the potential implications of introducing permitted standing areas, research should be framed around the safety implications of standing in all-seater stadia, versus managed standing in alternative accommodation. Given the serious impact that a progressive crowd collapse could have, strengthening evidence on the extent to which this is a risk in different stadia with different types of crowd, and the role that crush barriers could play in preventing this, appears to be a priority."

Consequently the SGSA commissioned independent research throughput 2019/20 on the nature and scale of standing at football and the associated safety risks and how to mitigate them. The emerging findings of this research, published last month, suggest that the SGSA cautiously find favour with repealing the prohibition on standing in the top two divisions. It notes that the railed seating safety bars have had a positive impact on spectator safety, particularly in mitigating the risk of crowd collapse with reduced opportunity for forward or backwards movement during celebratory moments compared to seated areas. The rails or barriers have also improved orderly egress, and reduced both the number of supporters leaning on/over perimeter fences, and also the conflict and points of tension often triggered by persistent standing. Importantly the introduction of areas of safe standing has not encouraged more standing in areas of the ground where the prohibition on standing remains. The findings make a number of discreet safety points:      

• There is no 'one size fits all' approach. Strategies to assure the safety of supporters must take account of the physical features of the stadium, the behaviour and culture of supporters who occupy those areas, and the match context.
• There remains a risk of injury by way of climbing on unlocked seats, seat backs and barriers – which will require steward monitoring to prevent such behaviours. 
• Safe standing areas are popular and the stadium should be stewarded with particular attention to preventing unauthorised entry which could lead to over-crowding. Incorporating wheelchair platforms into areas is important for the development of progressive inclusive and diverse range of supporters to engage with football. 
• Standing sections require to be strategised and located to prevent conflict with neighbouring fans who continue to sit and may have sight lines obscured or blocked.   
• Sections of grounds occupied by the away supporters remained beset by persistent standing clubs should consider safe standing in those areas of the ground to overcome those problems. 

Should the final report from the SGSA lead to the Order prohibiting standing areas being repealed for the Premier League and Championship clubs, and power entrusted to the SGSA to license discreetly standing sections,  the thought process for clubs on the subject will only be beginning.

Health and safety law 

If the Order is repealed and standing in grounds is permitted and licenses are granted, there will still be key duties under health and safety law and fire safety law for clubs to consider before such arrangements are in place. 

Clubs have a legal duty under the Health and Safety at Work etc Act 1974 to ensure the health and safety of employees, spectators, and other members of the public affected by their activities, so far as is reasonably practicable. This means that businesses should not expose those individuals to a material risk, i.e. one that is more than minimal or trivial, without taking significant measures to eliminate or mitigate the risk.  Clubs will therefore need to assess the risks of standing areas and the necessary control measures. 

Clubs have similar duties under the Regulatory Reform (Fire Safety) Order 2005 in respect of the reasonable precautions to be taken to ensure fire safety.  Risk assessments will need to be undertaken in each situation to focus on the specific features of the stadium in question as even if licenses are granted, clubs may still face criminal liability should standing areas be considered a breach of health and safety law or fire safety law. 

Finally, there is a requirement for football grounds to have a safety certificate granted by the Local Authority which will set out detailed terms and conditions with which the certificate holder must comply. The local authority's key obligations include ensuring that football clubs take responsibility for spectator safety meaning that, regardless of whether the Order is revoked and standing permitted, the safety of such standing areas will continue be a key consideration for local authorities issuing safety certificates. 

Key considerations 

Should clubs wish to create a safe standing area, a thorough risk assessment of the installation will be required and consideration given to the club's duties under health and safety and fire safety law to ensure that they are not in breach of these regimes. Such risk assessments should look at the engineering of the provisions, their effect on crowd behaviours within and beyond the safe standing section, the changes in access and egress flows, and the nature and scope of stewarding. 

Even if the Order is repealed, a license for safe standing will still be subject to the SGSA's discretion and similarly, safety certificates will be at issued at the discretion of the local authority. It is essential that clubs start/continue to liaise and build relationships with the SGSA and local authorities. Should they wish to build such an area, clubs must ensure that they do so with considerable input and dialogue from local authorities on the requirements and best practice for ensuring safety of spectators so as not to fall foul of the multiple and overlapping regulatory regimes in this area.  

If your business requires assistance in respect of the health and safety risks regarding "safe standing" at football grounds Addleshaw Goddard LLP is able to advise on the legal risks and assist in dialogue with local authorities. 

Our Health and Safety team is part of our Global Investigation team.  The team is led by Erin Shoesmith and benefits from the expertise of a number of Legal Directors including Alan Fox, Adrian Mansbridge and Tony McGlennan, together with support from solicitors, trainees and paralegals. The team also benefits from the insight of our AG Integrate Consultants, including former Principal inspectors at the Health & Safety Executive, who bring a wealth of technical knowledge along with operational and enforcement experience.