Cultural and Community Distribution Deregulation Bill [HL]

Lord Clement-Jones Excerpts

Friday 5th July 2013 Lords Chamber

Moved By

[Lord Clement-Jones]

That the Bill be now read a second time.

[Lord Clement-Jones]

My Lords, up and down the country, local authorities, using powers granted by the Clean Neighbourhoods and Environment Act 2005, which amended the Environmental Protection Act 1990, have been restricting leafleting for cultural events, including performances at comedy clubs, theatres, music venues, art galleries and even village halls. Under powers introduced by the 2005 Act, local authorities can designate areas within which people must buy a licence if they want to hand out leaflets. The Act gives local authorities powers to designate land on which people require a licence to distribute free printed matter, makes it an offence to distribute leaflets on this land without obtaining the consent of the local authority, and permits the local authority to refuse consent or to give or limit consent, for example with reference to the time and place of distribution or the material distributed. It requires a person distributing leaflets to produce, on demand, written evidence of the local authority’s consent, and permits authorities to charge a fee for the issuing of licences.

A survey by the Manifesto Club, the organisation that first identified the issue, found that 27% of local authorities restrict leafleting, including Nottingham, Leicester, Brighton, Swindon, Wolverhampton, Oxford, Bournemouth, Newcastle, Middlesbrough, Manchester, Leeds, Derby, Doncaster, East Hertfordshire, Colchester, Basildon, North West Leicestershire, Sheffield, Rushmoor, Oldham, Kirklees, Birmingham and seven London councils. This means that leafleting restrictions cover the country’s key metropolitan centres and many smaller towns.

Licence fees are prohibitively expensive for small groups. In Basildon, a licence costs £150 for one day, £350 for a Saturday or Sunday and £800 for one week. Oldham charges £50 and Brent £55 per day. Wolverhampton charges £262 per distributor. Some boroughs, such as Hammersmith and Fulham, and Kensington and Chelsea, have a number of separate leafleting zones, each of which requires a separate licence. Hammersmith and Fulham charges £250 for each of its eight zones, so it costs £2,000 to leaflet freely throughout the borough. The Manifesto Club’s research found that these leafleting restrictions fall most heavily on grass-roots art and community events, including comedy clubs, theatres, music performances and art exhibitions. Larger-scale events have the option of more commercial advertising channels, and can afford leafleting licences if they so choose.

However, there is a paradox here. The Local Government Association, as recently as March, extolled the benefits of the contribution of the arts to local communities. Its press release stated:

“Arts investment can bring in £4 for every £1 spent ... From international festivals and museums that attract hundreds of thousands of visitors, to street entertainment revitalising high streets and theatres supporting young people to gain new skills, thriving arts create great destinations, vibrant places to live and have many valuable economic spin-offs. A theatre, museum or festival draws visitors who do not simply spend money on their ticket or entrance fee, but also buy meals in local restaurants, go to local shops, or perhaps stay in hotels as part of their visit. These people might never have visited that location without the pull of its cultural attractions. Businesses also choose to invest in places with a vibrant arts scene because they offer their employees a high quality of life”.

Quite contrary to this enlightened statement, leafleting licence rules have been catastrophic to grass-roots arts organisations, local theatres, jazz nights, comedy nights and arts shows in venues such as theatres, village halls, comedy clubs and small nightclubs, which rely on leafleting to build an audience but cannot afford the high licence fees. In Leicester, a one-off licence application fee is £103, on top of which an organisation must pay £26 per distributor per day. The Leicester Comedy Festival has 200 small comedy acts. It would cost an unaffordable £5,200 per day to allow them all to leaflet. These rules in effect mean that only the most commercial operations are able to freely leaflet in Leicester.

Oxford student societies were asked to pay £100 per month to hand out leaflets, as was the Oxford Jazz Festival. A flyer ban in Leicester Square, London, caused the collapse of several comedy nights and the reduction of many audiences from 75 to 25. A Newcastle jazz club owner said that leafleting restrictions reduced his audiences by 50%. The Sawbridgeworth Evening Women’s Institute was threatened with a fine for handing out leaflets about its annual art exhibition. It no longer leaflets for the event.

Leafleting licence schemes have had a widely recognised adverse effect on the music and arts scene in key British cities, reducing the grass-roots scene and limiting opportunities for emerging artists to win themselves an audience. Leafleting restrictions have had a severe effect on the music and experimental arts scenes in cities such as Leeds, Manchester, Nottingham and Brighton, and on the fringe comedy scene in Brighton and Leicester.

One unintended consequence of leafleting licence schemes has been the commercialisation of the leafleting of the arts scene. In Brighton, for example, the leafleting licence led to the decline of smaller, experimental music nights, and the growth of bigger mainstream club nights. Several comedy festivals, including those in Brighton and Leicester, now have a diminished number of fringe acts, because only those who can afford to take out brochure adverts or pay the leafleting fee are able to reach an audience. Perversely, the more commercial operations, which employ full-time leafleters, tend to leaflet more indiscriminately and create most litter.

[Lord Phillips of Sudbury]

I am sorry to interrupt my noble friend’s flow. If a number of small acts get together and put out a single leaflet, will they be charged separate licence fees or a single licence fee?

[Lord Clement-Jones]

If it is a single leaflet, the fee will be for a single licence, but these acts are small organisations with very different timings for their events during a festival, and they all have different audiences, so they want to put out their own material and find the target audience most appropriate to them.

As I said, commercial operations that employ full-time leafleters tend to leaflet more indiscriminately and create the most litter. Small groups leafleting on their own behalf will leaflet more selectively and responsibly and create very little litter. The leafleting licence scheme punishes the small events and organisations that leaflet most responsibly and cause minimal litter. McDonald’s can leaflet freely, but the local arts centre cannot.

The importance of flyering for grass-roots arts was summed up by David Mulholland, a comedian and promoter for the Soho Comedy Club. He said:

“Flyering is a life and death issue for small clubs that are just starting up. The birthplace of alternative comedy in the UK, the Comedy Store, started above a strip club in 1979 and relied heavily on flyerers to attract audiences until 1993. If flyering had been prohibited in 1979 there would be no alternative comedy scene in the UK”.

Supporters of the Bill have received testimonies from a variety of organisations, stating that leafleting is the primary way in which they can reach a local audience. They include folk music societies, theatre groups, chamber music and early music groups, church choirs, amateur orchestras, amateur dramatics societies, village halls, experimental DJs, unsigned bands who play in pubs, and small comedy clubs.

The Cultural and Community Distribution Deregulation Bill 2013 would exempt small-scale cultural and neighbourhood events from leafleting restrictions. It would reform the Environmental Protection Act 1990 to allow a greater exemption from leafleting restrictions for grass-roots arts and community events. Currently, leafleting for religious, political or charitable purposes is exempt from legislation. The Clean Neighbourhoods and Environment Act 2005 states:

“Nothing in this paragraph applies to the distribution of printed matter … by or on behalf of a charity within the meaning of the Charities Act 1993, where the printed matter relates to or is intended for the benefit of the charity”,

or,

“where the distribution is for political purposes or for the purposes of a religion or belief”.

This means that religious, charitable and political groups do not have to buy a leafleting licence. A wide exemption would avoid the unnecessary penalisation of the informal events that are so valuable to community life.

The Bill would introduce a further exemption that would exclude leafleting restrictions,

“where the distribution is for the purposes of an event which consists wholly or mainly of live entertainment and takes place in the presence of an audience of no more than 600 persons”.

Live entertainment is defined as arts and music events and other cultural, social or recreational events of a similar nature, so the exemption would cover arts, music and theatrical events, as well as local events, such as talks, shows, fetes or coffee mornings. This reform would be compatible with the current regulation on street advertising, which exempts events of this nature from regulations. The Town and Country Planning (Control of Advertisements) (England) Regulations 2007 state that posters will have deemed consent and exemption from planning laws if they announce a local event of religious, educational, cultural, political, social or recreational character.

This reform of leafleting restrictions would recognise the value of local events and free up the arts and music scenes in key British cities from this unnecessary restraint. The strength of British comedy, music and the arts ultimately depends on the health of the grass roots, which allows new talent to emerge and win an audience. This reform would also recognise the importance of free speech in public places, a liberty that has existed for several hundred years in this country, embodied in our strong tradition of pamphleteers. Leafleting is a key civic freedom, with a long tradition in this country going back at least to the late 17th century, when the requirement for printers to be licensed was lifted, and should not be restricted without very good reason.

Problems with litter should be dealt with through the provision of litter bins and other common-sense measures, not by placing restrictions on our civil rights. Leaflets advertising cultural events, an important expression of our community activity, should not be treated in the same way as a burger wrapper or a crisp packet.

The campaign to change the law is supported by a great range of artists across the spectrum, comedians such as Al Murray and Simon Evans, the directors of the Oxford Jazz Festival, the Leicester Comedy Festival, Rick Wakeman and Radiohead’s manager, all of whom recognise the importance of the grass-roots scene to producing new talent. A whole host of organisations are in support, including Equity. The Musicians’ Union says that it has supported the campaign against leafleting bans from its inception and that it is vital to musicians that events where they perform can be advertised and promoted through unhindered and responsible leafleting.

UK Music, the organisation that represents the music industry in the UK, supports the Bill, as do the Association of Independent Festivals, the Association of British Orchestras and the Association of Festival Organisers, which says that this Bill is too modest. It says that the amendment to get free leafleting for up to 600 people works fantastically well for clubs and societies, small concerts and even fund-raising events, but does not do much for a festival that is trying to attract 2,000 people. If I thought that I would get support for going further than I have, I would have done.

The Concert Promoters Association supports the Bill, as does the Agents’ Association. The English Folk Dance and Song Society says that it fully supports the Bill and that a large majority of folk events are presented by amateur and community groups, as well as small folk clubs and local festivals, which are not in a position to pay their local authorities for permission to distribute leaflets about their activities. Their activities should be encouraged, as they bring people together and encourage community cohesion, and they should not be hampered or discouraged in their efforts. The International Association for the Study of Popular Music supports the Bill, as do the Stand Comedy Club and Jazz Services.

In conclusion, I have a few quotes from individuals, which I think are telling. Alison Honour, the head of the School of Arts at Oxford Brookes University says:

“I am writing in support of the campaign against leafleting bans. Arts organisations and artists of all disciplines rely on self-promotion in order to publicise their practice, whether it be exhibitions, performances or events. These activities contribute to communities’ coherence, well-being and positive engagement, and bring a cultural landscape often reaching out to the most remote places and spaces”.

Liam Gardiner Webber, a band and youth theatre member in Nottingham says:

“I’m a member of a small, unsigned band. If we were able to leaflet for our gigs, it would make a huge difference to the numbers who would come and see us. The lack of ability for small venues to leaflet has meant that, as a member of a band and youth orchestra, being able to expand the audience of either beyond family and friends is very difficult. Leafleting would allow for much greater presence for such activities and would in turn boost the culture side of the city”.

An independent promoter said:

“It has been difficult to promote small events, as it seems only the larger companies can afford such licences and therefore get more business, which does affect independent promoters”.

All this is powerful testimony and very powerful support for the Bill. There is no doubt that this legislative change would boost the arts and local economy at no significant cost to national or local government. Political, religious and charitable events are exempt from the need to buy a leafleting licence, which means that small cultural events are being unfairly penalised. It is unjust that the Church of England and political parties can leaflet for free but the village fete or local theatre group must pay. The grass-roots arts are fundamental to community life and the local economy as well as producing talent of international renown. The deregulation of entertainment licensing was, of course, of great benefit, but groups need to be able to promote themselves. Unless we act quickly, irreparable damage will be done to the grass roots across the UK.

I very much hope that the Government will heed these calls for reform and back the Bill. I beg to move.

--- Later in debate ---

[Lord Clement-Jones]

My Lords, I thank all noble Lords who have spoken. In particular, I thank the noble Earl, Lord Clancarty, who really got into the detail of the local arts scene, which he knows so much about, and the noble Viscount, Lord Colville, who has done extremely interesting research into the Wolverhampton situation, which is replicated up and down the country. Taking an example in that way becomes very powerful. I also thank the noble Lord, Lord Stevenson, for his support and his interrogation of why we have this legislation despite the fact that, as he acknowledged, these provisions were passed under the previous Government but have had these unintended consequences.

I thank the Minister for his reply. He had a pretty miserable hand to play in this debate. It had some positive elements but was broadly disappointing. One of his phrases, I think, was that he would be concerned to hear that the powers were being used disproportionately. There is a thick booklet from the Manifesto Club, which details in extenso all the ways in which these powers are being used disproportionately. There are ways of playing a miserable hand but I can tell the Minister that he did not turn it into a silk purse.

I cannot help feeling that if a different department were involved—if the DCLG or the DCMS, praise the Lord, were to have responsibility for this legislation—the response would have been very different, as it was, of course, in such a positive way to my Live Music Bill last year. We really have to lift our eyes from the pavement and noble Lords speaking in the debate made that very clear. I am really disappointed that Defra seems to regard the faint risk of extra litter as more important than our cultural and community life.

The Minister raised a number of objections, including the claim that it will lead to increased street-cleansing costs and divert resources for local government. It is probable that the width of definition of live entertainment underlies what the noble Lord said, as well as in terms of opening the floodgates to all the commercial operators and McDonald’s going mad all over our streets. Other objections in discussions have been made, including that it is difficult to say in advance what size an audience will be. But that is absolutely standard in health and safety, licensing and so on. It is not an issue.

In the debate, the Minister set us the task of changing human behaviour. Let us start with small steps. I do not think that, in order to defend culture and community life at local level, I first have to change human behaviour to justify this very small but significant Private Member’s Bill. Then we all have to be beamed up in some way. I do not know whether we have any “Star Trek” enthusiasts around here, but let us all hang on a star and get digital. We can all use Twitter, e-mail and so on but physical bits of paper handed out to people who happen to be in the right place at the right time is extraordinarily important.

On the cost of litter collection, when the original leafleting restrictions were introduced, the Government’s impact assessment said that the leafleting licensing schemes might or might not save councils money because there would be costs to set it up. It is therefore highly moot whether in a particular case a licensing scheme is cost-effective and, therefore, whether its demise would cost anything in certain cases. The impact assessment said that,

“the total set-up cost to local authorities would be between £450,000 and £750,000; and taking account of the costs of enforcement and the cleaning costs saved, on an annual basis there would be somewhere between a net cost of £37,500 and a net cost saving of £525,000”.

We all know what impact assessments are like across government, which may sound particularly broad-brushed. I do not believe that those figures are any more reliable than the dire consequences the Minister has predicted in this case. It goes on to say:

“This illustrates that it is not certain whether there would be a net financial cost or benefit to this measure”.

If they were uncertain then, I am sure that they are uncertain now.

We then got into the nether regions of tattoo parlours, free magazines, night clubs, bars and so on. Let us throw the kitchen sink at this problem. I can assure the Minister that the Bill is not designed to deal with tattoo parlours. As the noble Viscount, Lord Colville, made plain, there are additional economic benefits which outweigh the disbenefits of a little bit of extra litter from a poetry club or a comedy store. The noble Viscount demonstrated exactly those points.

As a result of the Bill, local businesses and cultural activity would almost certainly thrive. As I have mentioned, Brighton audiences have plummeted. If the Brighton music scene, for instance, returned to its former size, more people would come to Brighton, spend more money, the council’s arts budget would go further and so on. Surely, in the light of the benefits of deregulation, is it not worth the candle?

As to the second objection—the question of the width of “live entertainment”—as I said, we can clearly work on the definition. Amendments could be agreed in Committee if there was the political will. As regards the size of audience issue, this works for licensing so why not for leafleting. If that does not find favour in terms of audience, it could find favour in terms of capacity. The term capacity is used in other forms of legislation, such as that on health and safety.

However, I am heartened by part of the Minister’s response. He seems to accept that there is a problem. He may not think that there is enough of a problem—I am sure he has not read the Manifesto Club’s report and I urge him to do so—but he has undertaken to sit down and talk about it with the Manifesto Club. I hope he will also sit down with DCLG and DCMS. I have seen a ministerial letter from the Creative Industries Minister to that effect in the DCMS and I welcome it. I hope that revised guidance will be agreed for the application of these provisions in the way that he said.

We need to make the Minister’s assurances concrete. Is it an absolutely firm commitment that the guidance will be changed? When will meetings take place? Can we expect to agree new draft guidance? When can we do that? When will this be consulted on? When can we expect it to be implemented? There are a number of concrete issues and I hope the Minister will follow that up in writing after the debate.

I wish to end by returning to the time when the 2005 Act went through and the actions of the Labour Minister, Alun Michael, for whom I had great respect as a Minister. His original outline of the religious, charitable and political exemptions emphasised that they were necessary to protect human rights and political expression. He said:

“The purpose of the exception is to ensure that the human rights of individuals and their legitimate political and democratic activities are not affected by the provisions. By allowing the exemptions, we protect the rights of freedom of expression and freedom of thought, conscience and religion”.—[Official Report, Commons, Clean Neighbourhoods and Environmental Bill Committee, 20/1/05; col. 143.]

This shows that, contrary to the localism argument used by Defra, exemptions are necessary to protect the rights of different groups. It was not all left to council’s discretion.

Surely grass-roots cultural expression needs to be similarly protected. It makes cultural, social and economic sense and I look forward to further discussions with the Minister. I ask the House to give this small but significant Bill a Second Reading.

Bill read a second time and committed to a Committee of the Whole House.