Cultural and Community Distribution Deregulation Bill [HL]

Earl of Clancarty Excerpts

Friday 5th July 2013 Lords Chamber

[The Earl of Clancarty]

My Lords, I support this Bill, the arguments for which the noble Lord, Lord Clement-Jones, has set out so expertly and comprehensively. This is a modest and reasonable Bill, yet one significant for those who will be directly affected by this change, as well as for local communities and the public at large. The Bill is reasonable in that, in one sense, it does no more than iron out an inconsistency that exists in the current legislation.

Like the noble Lord, this problem came to my attention via the campaigning group, the Manifesto Club, which has a particular sensitivity towards how the loss of civil liberties affects the arts. The arts are as much a valid means of expression as the expression of political and religious views which, with regards to leafleting, are exempted by the 2005 legislation. Indeed, as the Minister will no doubt be aware, there is often in practice considerable overlap between all three of these areas. At heart, this is a civil liberties issue before anything else, and it is worth emphasising that the present exemptions for leafleting are already the recognition of the principle of free speech and free expression. With the addition of cultural purposes, the noble Lord’s Bill correctly positions the missing part of the jigsaw puzzle.

By excluding arts and entertainment from the exemptions, the current law has in effect discriminated against the arts, and in a very real way. It is perhaps all too easy, in this age of the internet and social media, to greatly underestimate the continuing importance of leafleting for local and community events, which for many events is the prime means of advertising. It is perhaps gratifying proof of the vibrancy, or potential vibrancy, of our public places and spaces that this is as true of the big city as of the village or small town.

As the noble Lord, Lord Clement-Jones, has outlined, there are clearly big problems everywhere that restrictions have been introduced. Cindy Oswin, a London-based writer and director, says:

“I have worked for many years in small-scale theatre productions where the advertising budget is limited, so hands-on leafleting is necessary to reach a potential audience”.

Martha Littlehailes, chair of a music society in Hackney says:

“We are a tiny organisation and need the publicity that flyering brings”.

Outside London, Daniel James, conductor of an amateur orchestra in Manchester says that,

“publicising our concerts has been hampered by being unable to obtain a flyer licence”.

Elspeth Barnett of Eastbourne, who sings in a local choir, says that they leaflet people as they leave other concerts, or at farmers’ markets. Folk singer Derek Gifford leaflets events organised by local folk clubs in the north-west, all of which, he says,

“have limited budgets and would find difficulty in affording to pay licensing fees for such an activity”.

Independent music promoters have been particularly hard hit by the need for licences. Others make the point that it is a vicious circle in that you need the leafleting to build the audience, but you cannot afford the licence until you do so.

The fact is that leaflets or flyers are a low-cost alternative, which ought in straitened times to be an ideal solution for emerging artists and performers. There are also, of course, the instances of blanket bans on flyering, such as has happened controversially in Leicester Square in London, and in Liverpool, in some cases where the legal basis for such bans is more than dubious. Comedian Nick Doody has said of the Leicester Square ban that it,

“had an immediate, tangible and devastating effect on small and medium-sized comedy clubs in central London”.

Comedian Stuart Goldsmith has said that it,

“makes it impossible for smaller clubs to thrive, and penalises enterprise”.

I suggest to the Minister that the DCMS should be as much aware of this debate as Defra, and that he might pass that message on. Last month, we had a significant debate on the arts led by the noble Baroness, Lady Wheatcroft, in which a recurring theme was innovation and support for the arts at the grass-roots level, so this debate is germane to that. The other point that the DCMS should be aware of is that we need to keep as much of an economic edge as possible in music, theatre and other areas. Any help that can be given at the grass-roots level will in the long run be hugely important to the economy.

The events most affected by these restrictions are those most integral to the local community and cultural scene, whereas the more commercial operations are able to pay for the licences but often have fewer local loyalties. The Minister will perhaps recognise that there is a significant distinction to be made between the highly commercial advertising of a high street chain and a leaflet telling you about events as varied as the village fête, local choir event or folk or jazz night, which is often handed to you by one of the performers themselves. Additionally, the informality and spontaneity of many local cultural events also make them unsuitable for licences which may have complicated tariffs as well as being prohibitively expensive—an expense whose payment has to be decided upon well in advance. These licences are overkill. We are not talking about major pop concerts. The modest audience cap of 600 included in the Bill ensures that this is so. These events are often run on a not-for-profit basis or on a tight budget which may help artists, comedians, musicians, writers and others at the beginning of their careers. As Josie Appleton, director of the Manifesto Club, says:

“We have a strong tradition of pamphleteers in this country who would be turning in their graves if they could see theatre groups charged hundreds of pounds to hand out a few flyers”.

It should be borne in mind that leaflets are not litter until they are discarded, and strategically placed bins ought to do that job. Indeed, far from being mere pieces of litter, flyers can also be an extension of an event aesthetically. This can be particularly true of music events, just as CD covers are for CDs. Emma Webster, expert on live music promotion, states:

“As well as being portable information carriers … flyers form part of the promoter’s ‘branding’ of an event through their design and distribution. The design of flyers … can be an important signifier as to the nature of the event, and is an opportunity for the promoter to creatively market their event”.

Anyone who has attended any of the music memorabilia auctions in recent years will know how much the promotional material for now famous bands will go for, and often by designers such as Jamie Reid who have themselves become well known through this work, all of which started at local venues. Flyer and poster design is an industry in this country in its own right and public spaces are their gallery. It is ironic that at a time when this work is being shown in museums, its contemporary practitioners are effectively being banned by so many local authorities.

Finally, within the larger context surrounding this Bill, the long-term crucial question which needs to be asked is: what should we be now be expecting and demanding of our urban centres? Clare Fischer, artistic director of The Red Hedgehog arts centre at Highgate, makes the point:

“Arts and local events provide a kind of cultural and social ‘glue’ which is vitally important in providing and maintaining a shared identity in the community”.

Do we want our public places to become increasingly prohibitive in character, or do we facilitate them as properly shared spaces? For that to happen, of course, they must also remain publicly owned and within a local authority control that is dedicated to the public good above all else. In an era of council sell-offs and partnerships, a question mark hangs over this. However, that is going beyond the scope of this Bill, being a debate for another time, although one that is urgently required.

I do not believe that the previous Administration intended to penalise either the arts or local communities when they passed the 2005 legislation. I think rather that it was an oversight which all sides of the House can now easily work together to rectify. I hope very much that that is what will happen.

--- Later in debate ---

[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.