Deregulation Bill

Lord Clement-Jones Excerpts

Thursday 5th February 2015 Lords Chamber

Moved by

[Lord Clement-Jones]

28: After Clause 64, insert the following new Clause—
“Copyright in broadcast
(1) The Secretary of State may by regulations made by statutory instrument repeal, in whole or in part, section 73 of the Copyright, Designs and Patents Act 1988 (reception and re-transmission of wireless broadcast by cable).
(2) A statutory instrument containing regulations under this section may not be made unless a draft has been laid before, and approved by a resolution of, each House of Parliament.”

[Lord Clement-Jones (LD)]

My Lords, this amendment would give the Secretary of State power by regulation to repeal Section 72 of the Copyright, Designs and Patents Act 1988 in part or in full. My noble friend the Minister will be only too well aware from the debate in Committee on 11 November that there are very strong views in the House on this subject. Although I was not able to be present for that debate because I was abroad, a great many noble Lords presented compelling and persuasive reasons why an outdated provision set up in the 1980s is now putting at risk the ability of commercial public service broadcasters to invest in original UK content and should be repealed.

The fact is that when Section 73 of the Copyright, Designs and Patents Act was put in place in 1988, the world was a very different place. Britain was an analogue nation. The overriding policy priority was, quite rightly, to encourage competition to analogue PSBs. In effect, those broadcasters were forced through measures like Section 73 to subsidise new entries to the TV platform market. The policy has been a great success. We have one of the most competitive media markets in the world at all levels: channels, production and TV distribution. But the provision has done its job. In a globalising internet age, subsidising nascent competition is not the issue. What matters now is maximising investment in original UK TV content to the benefit of viewers and the UK creative economy.

The PSBs invest around £3 billion a year in original UK content. ITV itself invests around £1 billion a year in programming, the vast majority of which is made up of original UK content. Ofcom has pointed out that the PSBs still account for the vast majority of investment in new programming. But to keep on making world-class content available universally and for free depends on the ability to make a commercial return on successful investment, hence the need to repeal Section 73. Successor legislation in the form of the “must offer” provisions in the Communications Act 2003, which is already in the PSB licences, already exists.

I am pleased that the Government recognise the importance of the issue and have promised a review to address it. Indeed, on 15 January the Secretary of State promised in the Commons that we could expect a consultation within weeks, but we have not yet seen much evidence of that. For many in this House, this is a hugely important issue and we are concerned about the lack of information available. I therefore ask the Minister if he can today provide me and other noble Lords who care deeply about this important matter with more detail on the review. Can he tell us when we might expect the review to start and to conclude? When time is of the essence, I cannot be the only one wondering if the consultation will be launched before the election. Can he outline what we can expect the review to cover and the range of issues it will include? I would also welcome more detail on what questions are likely to be asked and what the terms of reference might be. Just as important is that he should indicate what he expects will happen to the findings of the review.

The noble Lord, Lord Grade, who sadly is not in his place, said that from what he had read in the newspapers, he had perceived a slight rumour about an election coming down the tracks, and clearly it is approaching fast. Can my noble friend outline the mechanism by which the Government plan to implement the recommendations of the review? I know that I am not the only one in the Chamber who is concerned that we should not lose momentum. I have therefore tabled this amendment, which is supported by many noble Lords. It does not pre-empt the findings of the review, but it would provide the Secretary of State with a mechanism to deal with the key issue before us: the repeal of Section 73. It would remove the need for primary legislation to repeal the section. Moreover, let us not forget that the European Union has started infringement proceedings against the Government on Section 73 as it believes that it is incompatible with EU law. The amendment would provide whoever is in power after May this year with a safety net by putting in place a mechanism to repeal the section.

I wonder whether my noble friend can go on to explain in his response why the consultation and the review also plan to look at whether other regulation around the PSB system on issues such as prominence is necessary. Electronic programme guide prominence not only ensures that people can actually find the public service content we require our PSBs to produce; it also enables those PSBs funded by commercial means to maximise viewing figures and thus maximise the value of the advertising they sell. It seems very odd to me that the Government would consider a key pillar of the PSB system to be something which can somehow be traded away. Prominence is part of a compact we make with the PSBs. Our commercial PSBs have all agreed fairly recently to new 10-year licences with Ofcom on the basis that they would continue to receive this prominence. It is in exchange for prominence that they agree to the public service obligations we place on them. If we are seeking to deregulate and remove this prominence, are we also seeking to get rid of public service content?

My noble friend Lord Grade outlined in Committee that the pay-TV platforms are arguing that if retransmission fees are introduced, the appropriate prominence regime for the PSBs on electronic programme guides should be abolished and they should be free to charge the full market rate to PSBs. In the light of what I have said, this is clearly a diversionary tactic and an attempt to deconstruct the whole of the public service broadcast regime. I hope that the Government have not been gulled by that approach.

I urge the Government to accept the amendment and, depending on the outcome of the review and/or the EU infringement proceedings, help to protect the television industry and the investment by PSBs in content. They should continue to invest in making the programmes that viewers love and of which of course this country is rightly proud. I beg to move.

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[Lord Clement-Jones]

My Lords, first, I thank noble Lords all around the House for their very strong support for this amendment. We heard a great deal of experience and understanding of the industry and the issues involved, and some very cogent arguments as to why this review is extremely important and indeed urgent, and why a mechanism is needed by which the review recommendations when they come out can be implemented quickly.

It is not quite a Damascene conversion from the Opposition Front Bench, but certainly there was an indication of some wavering there. Whatever it was, it was appreciated. Also, I thought that “banking the primary legislation” was a good phrase, because that is entirely the intention of this amendment. The only area of suspicion was exactly as my noble friend the Minister indicated: when both Front Benches agree that a matter is complex, we are in very dangerous territory indeed.

The absolute essence of this, agreed upon by virtually every speaker, was the need to pursue this matter with vigour. It is not party political. The noble Baroness, Lady Ford, had it absolutely right. This is a matter for forensic inquiry into the best way of stimulating investment in the industry. In response to the noble Lord, Lord Skelmersdale, the reason for wanting a mechanism in place before the review comes to a conclusion is because speed is of the essence.

It is not often that Ministers pray in aid parliamentary counsel’s views in opposition to an amendment. I am deeply admiring of the fact that parliamentary counsel had time to cast his eye over my humble amendment. Clearly, there is further work is to be done on it.

I do not think that the Minister really answered a number of issues in his reply. I understand that he does not have a great deal of detail about the review or its terms of reference. We heard about the timescale and I am grateful for that, but really, considering that the review was announced some months ago, we should have had a great deal more progress made on this. We should have an answer as to why the whole EPG prominence issue has been included in this. The noble Lord, Lord Gordon, had it absolutely right in terms of the interdependence of the content providers and platforms. It is extremely important in this day and age as convergence takes place that we set the rules very clearly. There is a problem of declining investment in programme content by PSBs, as my noble friend Lord Storey mentioned; it is a real worry.

The Minister said that my amendment would not give the necessary powers, and I must accept that. The weight of parliamentary counsel coming down against it is like Ministers saying there are technical flaws in one’s amendment. I would dearly love to have an all-powerful amendment to put before the Minister. Perhaps—who knows?—that might be forthcoming at some stage.

The Minister promised a broad consultation, which is probably a matter of concern rather than reassurance. I hope that he is aware that the intent behind this amendment was either to get him to agree to it—which of course he has not—or to get satisfactory assurances from him about the progress of the review. Sadly, I appear to have failed on both counts. The phrases most commonly used throughout this debate by all noble Lords were “long grass” and “back burner”, while “red herring” was also mentioned. Although I will withdraw the amendment, I do so without feeling too assured of the current state of play. I was very pleased to hear that the Minister will keep us in touch with the start date of this great review, and that it will take eight to 12 weeks, and I hope that we will make rather better progress than we have done to date. In the mean time, I beg leave to withdraw the amendment.

Amendment 28 withdrawn.

Moved by

[Lord Clement-Jones]

29: After Clause 64, insert the following new Clause—
“Busking deregulation
(1) Omit paragraph 14 of section 54 of the Metropolitan Police Act 1839 (penalty on persons committing in thoroughfares the offences herein mentioned).
(2) Omit sections 32 to 44 of the London Local Authorities Act 2000.”

[Lord Clement-Jones]

My Lords, it is just the stroke of fate that means the House must hear another amendment from me straight after the previous one, but I am sure noble Lords never get bored of hearing about busking and the issues surrounding it. I very much hope that we have some aficionados around the House who will support my amendment.

I am sorry that I was not able to be present in Committee for the equivalent amendment moved at that time. However, my noble friend Lord Stoneham very ably put the case there and I am extremely grateful to him for doing so. He emphasised that busking is an essential part of London’s street culture. My noble friend Lord Gardiner of Kimble, too, in response said:

“The Government are clear that busking can enrich a community’s quality of life and generate a positive atmosphere enjoyed by many people”.

He also said:

“The Government do not start from the position that busking requires regulation and control. Busking should be about freedom of the individual, and only if necessary should local action be taken to curb certain excesses”.—[Official Report, 11/11/14; cols. GC 46-7.]

My starting point today is precisely from those words. My aim is to show not only that across the UK are many voluntary schemes coming into effect to promote and ensure that there is a thriving and popular busking scene but that, particularly in London, there are myriad ways of tackling noise and other nuisance if necessary other than by introducing repressive local authority licensing schemes under the 2000 Act, or using outdated legislation in London under a 170 year- old Metropolitan Police Act.

In Liverpool, York and many other cities, voluntary codes have been or are being agreed which obviate the need for licensing. Following work by the mayor’s busking task force and drawing inspiration in particular from Liverpool’s experience, Busk in London has been created. It is organising National Busking Day in July and a young buskers’ competition. With the MU and others, it is co-ordinating agreement across the London boroughs on a new busking code and voluntary online registration as the way forward in London. That will be launched on 18 March and celebrated on National Busking Day.

I hope my noble friend will agree that the aim must be to minimise the amount of regulation surrounding the performance of live music and continue the work begun with the Live Music Act 2012. I am sure that this voluntary action will demonstrate, as it has in Liverpool, that we can encourage appropriate busking without a cumbersome licensing system and only relying on statutory powers inter alia against noise, nuisance, obstruction and vagrancy as a backstop against those who do not stick within acceptable boundaries.

However, as my noble friend said in Committee:

“Regrettably, though, street entertainment can sometimes be a source of conflict between buskers, businesses and residents. Complaints of noise, nuisance and anti-social behaviour can arise, and police and local councils have to respond and try to find solutions”.—[Official Report, 11/11/14; col. GC 46.]

In response, some councils and the police have actively used inappropriate or archaic legislation to discourage busking in a disproportionate way. My noble friend Lord Stoneham gave the example of the London Borough of Camden using Part 5 of the London Local Authorities Act to ban street music at any time, amplified or unamplified, except through a special busking licence. Breach carries a fine of up to £1,000. Again, in Committee, my noble friend Lord Gardiner said:

“If we were to accept the amendment, the Government would indeed be saying that London councils should not have the option to decide whether or not to license busking based on local circumstances. Indeed, we feel that this is not a subject for top-down government solutions; it is for local authorities to determine fair, reasonable and transparent policies in relation to managing our streets”.—[Official Report, 11/11/14; col. GC 47.]

Why not? The Licensing Acts regulate the parameters of action for local authorities. Those powers are not held by any other locality. Why should London be the exception?

The amendment would also remove Section 54(14) of the Metropolitan Police Act 1839. My noble friend Lord Stoneham reminded us of the experience of the King’s Parade, the winners of the mayor’s busking competition, Gigs, who were busking in Leicester Square and were bundled into a van by eight officers and held at Paddington police station for more than six hours. The Minister said that although Section 54(14) is rarely used, the Metropolitan Police need to retain the provision to give their officers the tactical option of dealing with what they call busking-related offences. What are they? Are we talking of three-card trick artists on Westminster Bridge or pickpockets in Covent Garden—that is, activities totally irrelevant to legitimate busking? Does that not show a completely false understanding by the Metropolitan Police of what busking is?

I was struck by and grateful for what my noble friend Lord Paddick, who has great experience of London policing, said. He said:

“My Lords, as a former Metropolitan Police officer of 30 years’ experience, I cannot think of any offence that a busker might commit that is not covered by other legislation or requires the use of the Metropolitan Police Act”.—[Official Report, 11/11/14; col. GC 47.]

There are effective solutions and adequate powers that are proportional to deal with noise nuisance and other problems to which busking occasionally gives rise. Busk in London plans to work with the local authority noise and licensing teams in London to ensure that we bust any myths about current legislation not being usable against problem buskers. The Environmental Protection Act 1990 enables councils to issue noise abatement notices against buskers who cause noise nuisance. A breach of a Section 80 notice carries heavy fines and allows a local authority to seize and confiscate instruments and equipment. Section 80 notices can also be issued pre-emptively if it is likely that a busker will cause a noise nuisance. There are many examples—in Cardiff, Boston, Oxford and Newcastle—of the EPA and noise abatement notices being successfully used against problem buskers. The EPA is flexible enough to impose conditions on buskers who have caused issues, and able to deal successfully with complaints about a busker while allowing him to play for agreed intervals.

Likewise, I could take the House through the extensive powers available to deal with obstruction, illegal street trading, begging and other problems. In passing, I should say that, sadly, there are new powers under the Anti-social Behaviour, Crime and Policing Act 2014, which came into force last year, which could be used in a heavy-handed way. The new community protection notices and public space protection orders create new powers that could be used disproportionately and pre-emptively by local authorities. I have an Oral Question about the use of those powers against busking to be debated soon, so I will not pursue the matter today, except to say that it appears that Canterbury is already invoking them and Bath may be about to.

I hope that the Minister will applaud the initiatives that are taking place in London and elsewhere in our major cities to promote busking and encourage it as an art form, but I also hope that he will accept that there is quite enough general legislation to deal with noisy busking without specific legislation for London. There are quite enough powers in existence to ensure that nuisance busking can be prevented without having to keep Part 5 of the 2000 Act or Section 54(14) of the Metropolitan Police Act 1839. I beg to move.

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[Lord Gardiner of Kimble]

That is extremely helpful of my noble friend as it allows me to reinforce the efforts of the excellent Mayor of London as the honest broker in trying to get a London-wide code of practice. I think that there have been very constructive discussions with local authorities. I am sure that my noble friend Lord Clement-Jones will have more detail on that than I do. However, I think that that is precisely the way forward that my noble friend Lord Deben would find most agreeable.

Busking is undoubtedly a legitimate activity which often contributes to the vibrancy of a local area, and, per se, we do not believe that it does need control. However, it is important that backstop powers are available for specific circumstances. I know that this will not suit many of my noble friends but I hope that I have explained our reasons. Picking up the suggestion made by the noble Lord, Lord Rooker, we have looked at this with the Law Commission. I hope that, on that basis, and for the other reasons I have given, my noble friend will feel able to withdraw his amendment.

[Lord Clement-Jones]

My Lords, we have had quite an interesting jam session on busking deregulation. I thank all speakers in the debate, starting with the noble Earl, Lord Clancarty. I am glad that he referred to Jonny Walker of the Keep Streets Live! campaign, who has been so instrumental in trying to get some sense into busking regulation and to get a code of conduct agreed in so many parts of the UK. He made some important points about the need for national guidelines, if possible, to create some coherence across the UK, and pointed out that local councils should not simply go in, in a knee-jerk way, with all guns blazing.

I very much thank the noble Lord, Lord Deben, who made a wonderful speech that was passionate, persuasive and, indeed, life enhancing. He was spot on about the London boroughs; they do vary in their attitudes. I was at a meeting yesterday morning with almost all the London boroughs, including Camden. Progress is being made on the creation of a Busk In London code. We hope that it will be launched with the consent of all the London boroughs on 18 March. The mayor has been absolutely instrumental in this; the use of his bully pulpit has been so helpful.

After hearing the speech of the noble Lord, Lord Deben, I thought that he had set my noble friend some pretty impossible tests—and indeed that was the case: I do not feel that my noble friend met those tests in his response. The noble Lord, Lord Deben, made one very provocative remark—thought it is not provocative on these Benches—when he described London as the capital of the European Union. I am sure that he will be challenged on that aspect of his speech.

I also thank the noble Lord, Lord Stevenson, for starting to make the constructive suggestion about the Law Commission; that is extremely important. The point is that we should be making the policy. I see the noble Lord, Lord Condon, in the Chamber. I am sure he was ruminating over the 1839 Act because I am sure he used it every day when he was a young constable. I doubt whether more than one in 20 police constables has a clue about the 1839 Act. It is produced for absolutely no purpose, in extremis, because a particular group of residents wants to see a result. It has been used totally inappropriately. I am afraid that, whenever it is used again, it will be used totally inappropriately, because there are many other powers.

I thank the Minister for some aspects of his response, in particular his positive approach. He says that busking plays an important role in our lives; that it generates a positive atmosphere; that we do not, per se, start on the basis that we must somehow control it; and that we need backstops. I want to see the end of these powers because they are not backstops, they are front-stops: in many cases, they absolutely stop busking unless it is licensed. That does not seem very satisfactory.

We have had a good debate. I hope the Law Commission will take this on. You can certainly count on the busking community, and the many who support them, to carry on and to try to get the culture of enforcement right. Enforcement should be undertaken only against inappropriate busking. We should allow busking that is musical and positive and that brings joy to our streets, particularly in London, so that they can flourish. I beg leave to withdraw the amendment.

Amendment 29 withdrawn.