Cultural and Community Distribution Deregulation Bill [HL]

Lord De Mauley Excerpts

Friday 5th July 2013 Lords Chamber

[The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord De Mauley)]

My Lords, let me begin by thanking my noble friend, to whom I have listened carefully—as I have listened to other noble Lords—for bringing this issue to the attention of your Lordships.

I clearly understand that community events underpin many aspects of what creates the social cohesion of our society, and one should never underestimate how important they are in bringing people together. I strongly support such endeavours. However, my noble friend will understand that my ministerial interest stems from the potential by-product of littering caused by advertising leaflets being dropped in public area. While I agree that local authorities should not unduly interfere with the organisation and promotion of these kinds of community events, it would be wrong of me not to explain why I have some reservations about my noble friend’s proposition.

My noble friend’s Bill seeks to limit the restrictions that local authorities are presently able to impose on the distribution of free printed matter in their areas of responsibility. As your Lordships will be aware, local authorities have a statutory duty to keep their relevant land free of litter and refuse under the Environmental Protection Act 1990. The Clean Neighbourhoods and Environment Act 2005, which the noble Lord, Lord Stevenson, generously admitted was put in place by the previous Administration, subsequently gave local authorities the power to restrict the distribution of free printed matter such as leaflets and flyers in specified areas if the distribution of such material is causing a problem.

The Bill could constrain those same local authorities that previously could utilise this provision in the Clean Neighbourhoods and Environment Act. They could argue that the positive action they have taken to reduce littering will be undone because their resources will have to be diverted once again into dealing with the extra littering that my noble friend’s Bill could inadvertently cause.

On the other hand, and in line with my noble friend’s train of thought, I can say that the Anti-social Behaviour, Crime and Policing Bill, which is currently being considered in the other place, will make some changes to local authority powers in respect of litter which will require us to review our accompanying guidance. I am happy to make an offer to my noble friend that in the course of that review we will also look for opportunities to review the guidance to local authorities on their powers in respect of leafleting in exactly the situation that he contemplates. We are willing to work with the Manifesto Club and others to draw up best-practice guidelines. It would be easy to present the local authority powers as an unnecessary erosion of a citizens’ freedom. This is indeed the argument of the Manifesto Club in its report of last year, Leafleting: A Liberty Lost?, which argues that leaflets cause no more mess than burger wrappers or crisp packets and implies that there are far more compelling reasons for the restriction of leafleting.

Perhaps I may take your Lordships back to the 1990s, when trials of similar powers to limit leafleting were run in London and Newcastle. Westminster City Council had particular littering issues over the distribution of free magazines in the Oxford Street area and, more significantly, with the distribution of free material by language schools. This in turn encouraged a range of other businesses such as tattoo parlours, amusement arcades and nightclubs to do the same. Westminster put up notices to highlight this issue but also hit the problem at source by challenging those language schools that had not registered with Companies House. This approach was welcomed by other residents, businesses and visitors to the area.

The leafleting problem in Newcastle centred on a large build-up of litter in the early hours of the morning, consisting mostly of flyers advertising bars and nightclubs. Since May 2002, Newcastle’s licensing department, in consultation with local trade representatives, has issued consents to enable individuals to distribute flyers within the city, showing what I hope noble Lords will accept is a constructive and helpful approach. These consents undergo regular checks to ensure that individuals adhere to the conditions and, if they do not, distributors risks having their flyers confiscated.

These trials showed that the restriction of leafleting activity in specific problem areas had a marked effect in both reducing litter and helping local authorities to limit their street-cleansing costs. The evidence gathered through these trials led to an efficient piece of drafting as part of the Clean Neighbourhoods and Environment Act. However, that does not mean that we have stood still.

My noble friend’s proposal would undermine local authorities’ ability to address a problem which they already know exists. With the best will in the world, not everyone who is handed a leaflet or flyer wants to keep it, and it is a sad fact that many people still think that it is acceptable simply to drop the unwanted flyer a few paces further down the street. Under current legislation, controls on leafleting can be introduced only where there is evidence of a pre-existing problem with leaflet litter. Without these controls, there is a risk of the level of littering rising again in these areas, thus increasing the costs to local authorities of complying with their statutory duty to keep the streets clean. These costs would come at a time when local authority budgets were already under pressure and so would be likely to have a knock-on effect on the ability of local authorities to deliver other local and community services.

The current arrangements enable local authorities to develop appropriate solutions to local issues. If a problem arises, local authorities have the flexibility to consider and consult on an approach which tackles the specific problem and which does not unreasonably inconvenience law-abiding citizens. I put it to your Lordships that the creation of a further exemption, as proposed by my noble friend, would serve only to reduce the flexibility that local authorities currently have to tailor their response to the problem, and this would be directly contrary to this Government’s commitment to localism.

As my noble friend mentioned, exemptions exist to the Clean Neighbourhoods and Environment Act to protect well understood and fundamental rights. A local authority cannot apply restrictions to leaflets distributed for political purposes or for purposes of religion or belief, or for or on behalf of a charity. Feedback from local authorities is that they welcome clear delineation regarding to whom these provisions apply.

However, my noble friend seeks to extend the proposed definition of the events to which the exemption would apply. My concern with extending the exemption is that it could open the floodgates to commercial operators putting on events that could potentially attract huge audiences from far beyond the local community. While my noble friend paints a picture of community events or performances by local amateur dramatic societies, in some areas there may be numerous events taking place—for example, in city centres—where the number of leaflets frequently being dropped could be significant. This in itself would create a problem for the local authority enforcement officers. There is certainly no way of policing that only 600 people will see the leaflet, especially now that information of this kind is able to go global at the click of a button.

The focus on leafleting within this debate should not distract us from thinking about the overall issue of littering. In 2011-12, local authorities spent a staggering £840 million on street cleansing, and in the coalition we committed to working to reduce littering. Littering is a criminal offence which imposes unnecessary costs on the public purse and on society as a whole. Dealing with this supposedly victimless crime takes away from valuable services money which could otherwise be provided to the people who need them. We do not accept that more legislation is the only answer to the problem of littering, or even the best solution. If we are to tackle this problem effectively, we need to change people’s behaviour.

It would be remiss of me not to join the noble Lord, Lord Stevenson, in drawing noble Lords’ attention to the role of digital technology. Let us remember that leaflets and flyers are not the only method of advertising events. The cultural and arts sector is often at the forefront of the innovative use of technology. We encourage such organisations to make full use of digital technology to promote their offer, and indeed to join forces with other, similar organisations to share marketing costs. Arts Council England has made money available for research and development in digital innovation, which could include promoting events through digital mobile technology. This approach has the additional benefit of reducing paper use, which is inevitably better for the environment.

I am sure that even if my noble friend does not tweet himself, he will have dipped into his own party’s Twitter account and seen at first hand the speed at which a message can be conveyed via a digital platform. Many forward-thinking promoters are increasingly using media such as the quick response, or QR, code, in which interested parties use their smartphones to scan an advertised barcode to gain information about promotions or to book tickets for events. Surely these and other emerging and exciting digital tools are the way forward, and the old-fashioned paper leaflet or flyer will soon become an exhibit on the “Antiques Roadshow”.

My noble friend raised the issue of charging by local authorities. These powers are not about raising money for local authorities or placing barriers in the way of grass-roots arts organisations. The licensing fees that local councils can charge for permission to distribute leaflets must not exceed the cost of administering the licensing scheme. Not all councils charge a fee for a licence to distribute leaflets, and many councils have no restrictions at all. My noble friend mentioned some which, he suggested, were charging quite a lot of money. I am happy to look at those at the upper end of what he mentioned in case they exceed the cost of administering the power. To be clear, they can charge only the reasonable costs of enforcing the powers under Schedule 3A that do not extend to clean-up. Associated with that point, we have made informal soundings of councils across England. Pretty well all of them that responded expressed concern about the extra costs of cleaning up the litter generated and the damage to the environment.

The noble Earl, Lord Clancarty, asked me to pass on the content of this debate and the Bill to the DCMS. I am happy to say to him that we have certainly been in touch about this debate, and he is quite right that we should do so. The noble Earl also referred to the possibility of more bins being put out to deal with the problem. Through the guidance that we have published for local authorities, we are encouraging them to look at their bin provision and to think about where they might want to provide additional facilities.

Therefore, I assure noble Lords that it is not the aim of the powers in the existing legislation to impose unintentional, unnecessary and burdensome restrictions on the organisation of community and cultural events, which we see as very important. We want to see vibrant, thriving communities with a strong arts and cultural scene, and we would certainly be concerned if we heard that local authorities were using these powers inappropriately or disproportionately.

I hope that my noble friend is pleased by my offer, in the course of the review of local authority guidance in the context of the Anti-social Behaviour, Crime and Policing Bill, to look for opportunities to review guidance to local authorities, specifically on their powers in respect of leafleting, and that he is pleased that we are willing to work with the Manifesto Club and others to draw up best-practice guidelines.

I do not believe that the legislation as it stands places undue restrictions on civil liberties; rather, it enables local authorities to limit their exposure to unnecessary street-cleansing expenses and to develop controls which are appropriate to their local circumstances. I therefore express significant reservations about my noble friend’s Bill, which has the potential both to increase local authority costs and to make existing controls harder to enforce.

[The Earl of Clancarty]

My Lords, in terms of the exemptions, does the Minister believe that artistic expression is not as important as religious and political expression?

[Lord De Mauley]

I hoped I had made my position clear on that point. I see cultural and artistic expression as extremely important.