Deregulation Bill

Lord Gardiner of Kimble Excerpts

Tuesday 11th November 2014 Grand Committee

[Lord Stevenson of Balmacara (Lab)]

My Lords, in moving Amendment 78ZA, I shall speak to Amendments 78ZB and 78ZC in this group. These are probing amendments, as I have some sympathy for what is being proposed. As a former director of the British Film Institute, I can hardly object to a measure which is aimed, I think, at broadening access to group viewing of films, which must he a good thing. However, I worry that what this clause proposes is at one and the same time oversimplistic and unsighted about some of the problems of operating such venues.

The clause effectively would create two classes of film exhibitor—one that is regulated and another that is unregulated. In the regulated sector would be the majority of current commercial cinema operators and several dozen existing voluntary and community-run enterprises, such as the Ritz Cinema in Thirsk and the Market Hall community cinema in Brynmawr, which in its 120th year was recently awarded “cinema of the year” at the prestigious Screen Awards—something which we should all celebrate.

In the unregulated sector would be the new “community premises” over which the appropriate licensing authorities would have no control. I suggest that we need some definitions. What are the community premises of which the Bill speaks? Will the Minister spell out today the type of venues these community premises would be? Who can operate these events? New Section 6A(2)(b)(i) to be inserted in the Licensing Act 2003 under Clause 58 suggests that they might be,

“a trade, business or other undertaking (for profit or not)”.

I assume that this might include, for example, a pub, a bingo hall or any other place which would otherwise require a local authority licence to attest to its ability to host a public gathering. Perhaps the Minister will confirm that. If such operators were to organise any other type of event, such as a dance or a charity function, particularly if alcohol was to be sold, would these meet the same definition of “community premises” and would they need to be licensed?

The Government have made the proposal sound like an idea to open up windy church halls to genteel afternoon showings of perhaps classics of the silent cinema or even “Brief Encounter” and the like. However, the clause is so loosely worded as to allow for any operator to exhibit any film without a licence. The clause opens up a world in which any group might exhibit virtually any type of film or video presentation in public. What about children? What is role of the BBFC in this matter? What role will the local authority have in all this? I seem to remember that the wonderful film “Life of Brian” is still banned in some local authority areas.

What is a not for profit venue? The Government suggest that this clause is aimed at not for profit venues but no legal definition is offered. Given that the venue itself could be for profit or not, how does that sit with the wording in the clause, which states that the deregulated film exhibition,

“is not provided with a view to profit”?

What does that mean? Does it mean that the film costs less to hire than the price of entry, that the ticket income does not exceed the cost of any venue hire or that the total revenue for the event, perhaps including food and drink, does not exceed total costs, including contributions to the venue’s heating, lighting, staff and other overhead expenditure? We need more detail on that.

At the heart of all this is the question: why should public safety regulations not apply? An existing commercial cinema exhibitor must adhere to licence regimes covering fire, electrical and heating safety, hygienic food handling practices, noise pollution and local environmental rules, as well as, on occasion, fitness to serve alcohol. Why would the Government want to reduce existing levels of public protection? We should remember that these venues will be capable of holding up to 500 people at such an event. What happens if there is a problem such as a fire?

More generally on the size limit, why is it so high? Will the Minister explain the thinking here? I am informed by the Cinema Exhibitors’ Association, which represents well over 90% of UK cinemas, that there are no more than 60 screens nationwide which can show a film to an audience of 500 persons. Why then should an unregulated cinema be allowed to present films in an unregulated environment to so many? I strongly suggest that the Government consider a much lower maximum attendance figure.

Finally, unregulated film exhibition of the type proposed threatens to significantly weaken controls over piracy, which remains a very real threat to the livelihoods of all those working in the wider film industry. What consultations have the Government held with the industry about this, and what reassurances have they given? Are they content with the situation more generally?

Existing licensed cinema operators have a strong history of offering safe, clean, well managed and fair access; the lack of clarity in this clause is not helpful and we need a lot more detail from the Minister when he responds. In an extreme case—it would be extreme, I recognise that—the Government could find themselves deregulating cinema exhibition for a well meaning purpose but letting unsavoury operators into a market that is currently well regarded, law-abiding and safe for its customers and staff. Quite apart from the health and safety, fire, food and environmental regulations gap, will the Minister say how the Government can be certain that the other necessary public protections, such as child protection, will work in practice?

Undefined “community premises” no longer needing to apply for an entertainment licence would effectively fall off the radar of protection and enforcement authorities. The planned changes, although welcome, appear to put at risk the high standards of safety and child protection that have worked well over the years. There would be little or no oversight of the admissions criteria or content shown at community premises and no real control over who could claim such community status and so avoid enforcement. The level playing field in standards for public protection would be lost.

Our amendments point to the need for further work on the maximum audience size, on the definition of community premises and on defining what “not for profit” means in practice—all aimed at avoiding the creation of an unlevel playing field with existing regulated community cinema providers. Assurances are also needed about the continued regulatory role of enforcement bodies in order to ensure that wider public protections are in place to safeguard customers, with regard to, for example, underage admission, BBFC certification, piracy, public decency and safety standards. I beg to move.

[Lord Gardiner of Kimble (Con)]

My Lords, I thank the noble Lord for his amendment. It is important that I should start with the definition of “community premises”, because I hope to be able to reassure the noble Lord and your Lordships as to the modest nature of these measures, and the protections included in them.

Community premises, as defined in Section 193 of the Licensing Act, are those premises which are or form part of a church hall, a chapel hall or other similar building, or a village hall, parish hall, community hall or similar building. The Government’s view is that this modest measure relates only to the exhibition of film in community premises as I have outlined. We do not believe that these events will bring in meaningful competition with local cinemas, even where such cinemas operate on a not for profit business model. This is because the deregulation is subject to certain conditions, one of which is that the exhibition is not provided with a view to profit. This includes where the profit is for charitable or other fundraising purposes.

The Government believe that intention is the key factor here. For example, a film society is not set up to exhibit films for profit; its intention is to explore film culture rather than to generate income. We are therefore confident that the test of intention will provide protection against an exhibitor with a profit-making motive being able to exhibit a film legally under this exemption. To assist licensing authorities that are responsible for enforcement, and event organisers, the Government will issue revised statutory guidance on this exemption. Indeed only yesterday the Minister for Sport and Tourism deposited in the House Libraries a working draft of the revised Chapter 15 of the licensing guidance, to assist with Parliament’s scrutiny of Clause 58.

A rather more blunt measure of whether or not profit was made, without reflecting the intention, could have a detrimental effect on community film screenings. I will explain why. For example, people would have to be turned away from an unlicensed exhibition if their attendance could give rise to a profit being made. It would also require the event organiser to know, with the audience already present, whether they had generated more income than the total cost of the exhibition. If they had, then in the absence of a licence or other authorisation the exhibition of the film could not legally proceed.

The whole point of this exercise is that the Government wish to remove the licensing burden for low-risk entertainment activities, such as the exhibition of a film in community premises as defined in the circumstances of Clause 58. The Government therefore consider that the clause cannot be exploited by anyone seeking to exhibit films on a “for profit” commercial basis, without the need for a premises licence.

Amendment 78ZB would limit to 250 persons the maximum audience allowable for an exhibition of a film in a community premises. I know that the noble Lord was particularly concerned about that point. The Government consulted widely in 2011 on a proposed audience limit for all forms of entertainment. The audience limit of 500 is reflective of the wider outcome of that consultation. An exhibition of a film is a lower-risk activity, and having an audience limit of 500 people maximises the cultural benefit for community groups and does not, in the opinion of the Local Government Association and others, give rise to particular public safety concerns. The limit also provides a read-across to the 499 audience limit for an event authorised by a temporary event notice.

This limit is generally regarded by local authorities and the emergency services as an appropriate audience ceiling for these sorts of events. Further, it is consistent with other entertainment activities within the Licensing Act, such as a performance of dance or of live music. Indeed, it would be very odd if community premises could put on a pantomime for 500 people without the need for an authorisation, but could show a film of that pantomime to an audience of no more than 250 people. I also make it clear that key safeguards remain in place; Clause 58 makes no changes to protections already in place in respect of alcohol licensing, health and safety, noise pollution or fire safety.

In more detail, the noble Lord’s final amendment in this group seeks to add a further condition to the qualifying criteria. The Government’s starting point is that regulation should be required only where it remains necessary and proportionate to safeguard the licensing objectives. The licensing objectives—set out in the Licensing Act 2003—are in respect of the prevention of crime and disorder, public safety, the prevention of public nuisance and the protection of children from harm. The issue of an appropriate audience limit relates most closely to the public safety objective. The Government considered those objectives when preparing these proposals, and concluded that licensing film exhibitions in small community premises could not be justified when assessed against the risk to the four licensing objectives.

The four licensing objectives rightly focus, as I said, on the prevention of disorder and ensuring public safety in places where people gather together in numbers for leisure. They ensure that regulation is focused on what is necessary to protect the public. Very importantly, they also avoid duplication with other regulatory regimes, which can increase the cost of regulatory compliance for all concerned. I will take the proposed conditions in turn. The noble Lord posed these questions, and I hope that your Lordships will find the following reassuring.

As regards fire safety, Clause 58 makes no change to the requirement that community premises owners are responsible for fire safety. This is set out in the Regulatory Reform (Fire Safety) Order 2005, which in most cases is enforced by the local fire and rescue authority.

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[Lord Gardiner of Kimble]

I am most grateful to the noble Lord. If some information can be provided to me during my remarks, I will be able to record it here—but, if not, I will make sure that that noble Lord and the Committee know of the response.

The whole purpose of this part of the Deregulation Bill is to make it easier to exhibit films in village halls and other community premises, as I have suggested. We wish to strike a better balance between necessary protections—I hope that I have outlined what will remain and why that is so important—and removing unnecessary burdens. I think that we would all agree that there are too many examples of burdens sapping the will of volunteers and very often soaking up scarce financial resources.

Where the conditions of this exemption are not met, then, rightly, a licence will still be required. Other key protections will continue to apply, such as alcohol licensing and health and safety and noise abatement legislation.

The noble Lord, Lord Stevenson, asked a number of questions relating to fire safety and health and safety. A person who organises a film screening will continue to be subject to a whole range of legal duties on fire safety, safe workplaces and public nuisance. This includes a common-law duty of care towards the health and safety of those attending the film screening.

On the question asked by the noble Lord, Lord Watson, those responsible for the exhibition of a film on community premises must have in place operating arrangements. That would include a suitable child admission policy implementing the recommendation made for that film by the BBFC or local licensing authority. They may operate a membership subscription scheme which pays for entry to all titles in a season and is limited just to adults, or they could sell tickets to the public and ensure that children are permitted entry only in accordance with the age rating for the film. If there is anything further I have on that, I will write to the noble Lord and ensure that other Members of the Committee are made aware of it.

The noble Lord asked about the weakening of controls on piracy and how this could be controlled. Indeed, a film shown in a community premises must be compliant with the Copyright, Designs and Patents Act 1988 in the same way as a film shown in a cinema.

The noble Lord raised a number of questions. I know that these are probing amendments but it is important that all the points the noble Lord has raised are clarified and there are assurances that this proposal is a force for good. Coming from the countryside, I know that very often cinemas are 30 or 40 miles away from communities. I do not believe there is competition in place. This is about communities enjoying films to which those who live in suburbs and towns have a much readier access. That is the whole purpose of the clause—to ensure that communities have the advantages that those who live in cities and towns and close to cinemas enjoy. I have been to many community film exhibitions near to where I live. They are well supported and anything we can do to encourage communities to enable people to enjoy film is desirable. So if the noble Lord would like to discuss anything further with me before further stages of the Bill, I would be delighted. I hope I have been able to reassure your Lordships, and that the noble Lord will withdraw his amendment.

[Lord Stevenson of Balmacara]

My Lords, that is the first time I have been invited to go to see a movie with a member of Her Majesty’s Government. I will reflect carefully on that. We actually live quite close to each other and there are several local community film venues between our respective villages, so it is feasible to do that. We will think about that.

Film as we see it today is rarely controversial and rarely leads to public disorder but it was not always thus. Those of us who are interested in film history will know that one of the early screenings by the pioneers of cinema—a train arriving at the station in Lyon—resulted in the audience evacuating the hall so fast that it could not be considered safe, because they feared that the train was actually coming out of the screen at them and leapt out of the way to avoid imminent disaster. I do not think even 3D could possibly cope with that. But we should bear that in mind when thinking about what we are doing here.

I will read carefully what the Minister said and may take him up on his idea of a meeting. It is slightly irritating that we did not get sight of the draft licensing regulations. They may have been placed in the Library yesterday but it would have been useful to know that they were around; we could perhaps have saved a few of the questions I raised.

There are three points that I would like to make. First, it is now clear from the noble Lord’s response that the model here is the live music scene—I think he mentioned dances and music—where obviously an upper limit of 500 is perfectly understandable. I do not see this being appropriate in church or village halls or even parish halls, which are not ever going to be as large as that. If that is the restriction, I think the 500 is otiose but I will reflect on that.

Secondly, I still think there is a dichotomy in the way in which this is intended to apply. If it is restricted in operation to church halls, village halls and parish halls but can be run by profit-seeking bodies such as pubs or others, there is still a tension about what is exactly in mind here, but the gap for those who might be wishing to exploit that for profit may not be as bad as I originally feared.

Thirdly, the trick here is to limit the exercise of this to sites that are licensed in the full round of local authority licensing—including fire safety, public health and noise—but the event itself will not be specifically licensed, so that it can be done with a minimum of fuss. I still think there is a tension there about what happens when child protection issues are raised or there are questions about whether the films are certified under the BBFC or by the local authority. We are not quite sure about that. But that is not sufficient to hold back discussions today and I beg leave to withdraw the amendment.

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[Lord Stevenson of Balmacara]

My Lords, Clause 59 mandates the Secretary of State to carry out a review of the alternatives to criminal sanctions for non-payment of the TV licence fee. A television licence is required to watch all live, or nearly live, broadcast television content on any device in the UK. It has become popularly known as the BBC licence fee but that is of course a misnomer—it is a licence to receive a broadcast signal sufficient to be able to watch television or to listen to radio. Nevertheless, the BBC is tasked with collecting the licence fee. The function is subcontracted to a private company under the brand TV Licensing. Failure to have a TV licence is an offence under Section 363 of the Communications Act 2003, punishable by a fine. This clause specifies the timing of a review, which is to commence within three months of Royal Assent and to be completed within 12 months of it beginning. It specifies that a report must be presented before both Houses of Parliament and presented to the BBC Trust.

It is surely an irony beyond satire to have a clause in a deregulation Bill which duplicates what is already happening in the real world. On 9 September 2014, the Secretary of State for DCMS announced his intention to begin a review into TV licence enforcement, which will be independently led, on behalf of the Government, by David Perry QC. The objectives are in fact broader than this clause specifies. They are:

“To conduct a review into the enforcement regime for failure to have a TV Licence to … examine whether the sanctions for contravening this offence are appropriate, fair and whether the regime represents value for money for licence fee payers and tax payers; and … identify and assess options for amending the current enforcement regime, including those for decriminalisation of TV licensing offences, and whether these options would represent an improvement”,

based on certain key considerations.

Mr Perry has to,

“make recommendations to the Government by the end of June 2015”,

which is well within the timescale specified in the clause. He is charged with producing:

“A report setting out an assessment of the current and proposed enforcement regimes, key findings, conclusions and any other supporting information to be submitted to the Government by the end of June 2015”.

The Secretary of State is required to,

“lay this report before both Houses of Parliament and present it to the BBC Trust”.

These requirements are identical, in all but a few words, to the requirements specified in Clause 59. So what, precisely, is the purpose of this clause? It has been overtaken by events, is not required and should be excised forthwith. I look forward to the Government agreeing with me that this clause should not stand part of the Bill.

[Lord Gardiner of Kimble]

My Lords, at Commons Committee stage, the Government supported the amendments tabled by the honourable member for North West Leicestershire. Clause 59 imposes a duty on the Secretary of State to ensure that a review of the TV licensing enforcement regime is carried out—as the noble Lord, Lord Stevenson of Balmacara, mentioned. This review will identify whether the current enforcement regime is appropriate and proportionate. The review will also ensure that there is a strong, evidence-based case for any potential changes to the TV licensing enforcement regime.

The findings of the review—which has already started—will be completed by June next year and should be considered in the context of the charter review. It will be for the Government of the day to take forward any further actions as they see fit. The current Government are very clear that the review of the licensing enforcement regime is a high priority. Hence, we have taken the decision to commence the review this autumn, in advance of Royal Assent.

If there is potentially an issue with the current regime, it can be of benefit to no one to delay the review or to prevent its findings informing any required change to the existing system. Our overriding aim is to ensure that the system is appropriate, proportionate and fair and that it represents the best value for money for licence fee payers and taxpayers. There was significant support for both of the TV licensing clauses in the earlier stages of this Bill in the other place. We believe that the firm commitments set out by the Government at that time must be honoured, particularly given that strong cross-party support. For that reason, we would not seek to remove the review clause from the Bill.

The current review has clearly defined terms of reference and, although there are no guarantees over decisions that any future Administration may seek to make in this area, particularly if they were minded to go against the will of Parliament as demonstrated in the strong support for these clauses, we do not believe that there should be any delay to the review. However, we think that the retention of Clause 59 ensures that at the absolute latest the review must be completed within a year of having begun. This duty will apply to the future Government and provides a crucial backstop to ensure that this important piece of work completes within the charter review period. That is why, although the noble Lord, Lord Stevenson, made a very interesting point about the Deregulation Bill and I am sure that he will pull my leg about it, the Government believe that this clause should stand part of the Bill. As I have said, strong views were expressed in the other place that we think are important. This provides some backstop to the work of the review. That is why I very much hope that Clause 59 will stand part of the Bill.

Clause 59 agreed.

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Finally, I think I heard the Minister say in the previous debate on the clause stand part that the outcome from the report should feed into the charter and licence review. It would calm a lot of those concerned by this issue if the Minister could change that conditional to a certainty.

[Lord Gardiner of Kimble]

My Lords, this has been a fascinating debate. On occasions it may have strayed to the merits of the BBC rather than the precise clause and amendment in question. But there is no harm in that because, as we all acknowledge, the BBC does extraordinarily good work across a range of issues of which our country can be extremely proud.

The amendment seeks to apply timing constraints to the implementation of any potential—I emphasise that they are potential—changes to the enforcement regime that underpins TV licensing offences. The Government have been very clear on the importance of these issues and of considering the efficacy, proportionality and fairness of the current regime. The amendments concerning TV licensing enforcement, as noble Lords will recall, received significant support, across all parties, in the other place.

As has been mentioned, the Secretary of State announced in September that the review of the regime would be commencing this autumn, and the terms of reference for the review were published and laid in the Libraries of both Houses on 21 October. The terms of reference clearly define the scope of this work. A review will be conducted into the enforcement regime for failure to have a TV licence, examining whether the sanctions are appropriate, fair and represent value for money, and identifying and assessing options for amending the current enforcement regime. It will not consider or assess the licence fee itself or broader issues or options for the future funding of the BBC.

As has been referred to by noble Lords, the review of TV licence enforcement will be led by an independent lead reviewer, David Perry QC. It will begin taking evidence this autumn, and Mr Perry will submit a report making recommendations to the Government by the end of June next year. The enforcement review will start gathering views and data this autumn and, as noble Lords would rightly expect, any findings and recommendations will be based on the best possible evidence.

These findings will then be presented to the Government. The Government have been clear that the findings of the review should be considered in the context of the charter review process, which will not begin until the next Parliament. The BBC charter review is the point at which the Government can consider all aspects of the BBC. As has been mentioned, the current charter runs out on 31 December 2016.

I emphasise that if the existing regime needs to be improved—we should make no presumptions about this until Mr Perry’s review has been able to complete its work and to report findings to the Government of the time—surely it does not make sense to apply any constraints that could hinder moving to a new enforcement regime; nor would any such constraint represent the best approach for licence fee payers, or the courts system. Having said that, and in light of the enforcement review now being in its preliminary stages, I must stress again that the Government are keeping an entirely open mind and look forward to the findings of the review, without any preconceptions about whether or when changes need to be made. It is right that the Government of the day must be free to consider the report when it completes in June 2015 and be able to act without unnecessary limitations at that point.

The noble Baroness, Lady Howe, mentioned Henry VIII clauses. If there were any changes to an enforcement regime under this clause, it would be afforded proper scrutiny in this House, as regulations would be subject to the affirmative resolution procedure. The noble Baroness and, I think, the noble Lord, Lord Watson of Invergowrie, referred to the impact on the revenue of the BBC should decriminalisation go ahead and result in reductions in BBC income. Any impact on BBC services will be examined in the review. I can of course make no assumptions as to the outcome of the review. We obviously want an open process which considers all options available to us and delivers for the licence fee payer. All those points clearly will need to be borne in mind.

[Lord Stevenson of Balmacara]

On the record, will the Minister be clear about my final question? I thought I heard him say that he felt that the outcome of the report should feed into the charter and licence review. In his current speech, he has clearly said that he does not wish to see the Government constrained in any way as to the timing of any changes, if there are any changes. Does that not fly directly against the commitment given when the 2010 licence fee settlement was signed?

[Lord Gardiner of Kimble]

I do not believe that it does. The Government obviously want to be in a position after the report to consider those matters. I have already said that those matters will play a part in the considerations of the charter review but we need to consider what the QC brings forward in his report. I do not think that it conflicts.

We believe that it would be inappropriate to apply a constraint to the timing of implementation of any potential changes to the existing regime and that it would be unnecessarily restrictive to inhibit any potential future changes to the enforcement regime, should the findings of the review lead the Government of the time to be minded to make them through specifying a date before which any change could be implemented. I emphasise that this is about a review of the enforcement. We make no presumptions about the possible outcome or findings of the review. As I have said, the Government have stated that the review findings will be considered in the broader context of the charter review. After June 2015, these matters will take some time but we do not think that there should be an artificial limitation on timing. On that basis, and with the reassurance that they are to be considered in the broader context of the review charter, I ask the noble Baroness to withdraw her amendment.

[Baroness Howe of Idlicote]

My Lords, first, I thank the Minister for his reply and all noble Lords who have spoken very passionately about what the BBC means to them, their colleagues in different parts of the organisation and the general public, with whom I certainly align myself.

I think we have heard from around the Room a clear feeling that people are very concerned that there is a conspiracy here. The Minister has done his best to reassure us on that point but that overview will remain in everybody’s minds. Quite clearly we will have to look carefully at what was said, especially by the Minister. However, I am fairly sure that this issue is likely to return and be considered at different stages of the Bill. With that point made, I am prepared at this stage to withdraw the amendment.

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[Lord Rooker]

My Lords, I think that there is only one other person in the Room who sat through three months of the draft Deregulation Bill. I want to make a suggestion to the Minister that he can answer when he comes to reply to that very powerful speech. Given the amount of legislation that we have just had recited to us that is up to date and modern, why has this issue not yet been referred to the Law Commission? We know that there has been a bit of a problem between Ministers and the Law Commission; that was self-evident when we took evidence from both parties about the reform and updating of legislation. Part of that is to do with deregulation, part of it is modernisation and part of it is legislation that is allegedly of no further practical use—there will be a debate on that next week. In this case, though, bearing in mind that we do not make substantive decisions in Grand Committee, what is the reason why the issue cannot be referred to the Law Commission?

[Lord Gardiner of Kimble]

My Lords, I thank my noble friend for his amendment. The Government are clear that busking can enrich a community’s quality of life and generate a positive atmosphere enjoyed by many people. 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.

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. To answer the noble Lord, Lord Rooker, although I am still waiting for some advice, there is actually no general legislation on the subject of busking but local authorities can have policies on it, including codes of conduct or permit regimes, and occasionally by-laws and local authority legislation, such as the London Local Authorities Act 2000. That Act enables London councils to license busking. Indeed, it is a matter for London councils to determine whether or not they utilise these powers.

The amendment proposes that a government Bill should seek to overturn private legislation promoted by London local authorities and passed by Parliament. 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.

As far as the Metropolitan Police Act 1839 is concerned, while 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 have called “busking-related offences”. We are seeking to strike a balance between freedom to busk and having to control nuisance caused by persons with no musical intent.

[Lord Deben (Con)]

I have often had discussions with the Metropolitan Police. I find the phrase “busking-related offences” precisely the kind of comment always made when you are suggesting that things might be changed. Perhaps the Minister could describe a “busking-related offence” that is not covered by any other legislation.

[Lord Gardiner of Kimble]

My noble friend always intervenes to engage the Committee in important issues with his own touch. It is important to say that I know what he is saying but that, at the same time, if the Metropolitan Police need to have the ability to ensure that they have some means by which they can have assistance as regards a certain possible alleged assistance, for all the cynicism that there may be about the Metropolitan Police, we have to place our trust in them.

[Lord Paddick (LD)]

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.

[Lord Gardiner of Kimble]

Of course, I am receiving advice from the current Metropolitan Police, but I very much take on board what my noble friend of very considerable experience has said to the Committee. We are trying to seek a balance between the freedom and the need to control. I still think that if the police are telling us that for operational reasons they need a specific power, it is reasonable and sensible to listen to them. However—I emphasise the word “however” as we are seeking to strike a balance—in saying that the Metropolitan Police have recognised the need to strike the right balance between protecting the public, law enforcement and not restricting reasonable behaviour and activity, the police have said that they recognise the concerns with the recent arrest of members of the King’s Parade band in Leicester Square, for instance, and have taken steps to ensure that their policing response is proportionate and that officers use their powers appropriately. They have indicated:

“Officers in the West End have been advised that they should not be pro-actively using the Metropolitan Police Act 1839 legislation to deal with busking as it is not an offence per se. Officers have been advised that they should engage with those busking if there is a particular issue and deal appropriately. The expectation will be that individuals will not be arrested under this act, unless it is the only available tactical option.”

I would say to my noble friend Lord Deben that, ultimately, the Metropolitan Police wish that this may remain available as the only tactical option that they might have in their locker.

We believe that this is a sensible approach that will ensure that all types of street entertainment are able to thrive and will minimise the need for the use of powers designed to deal with crime, disorder and anti-social behaviour. I hope that my noble friend will accept that the Metropolitan Police have a desire to retain necessary powers. The impending introduction of the code of practice for buskers across London, to which the Metropolitan Police are contributing, will help to preserve good relations between buskers, councils, the police and local authorities. At the end of the day, all of us very much seek to achieve good community relations. I trust that these factors, as well as the Government’s clear support for buskers and street entertainers, are sufficient to address the concerns.

The noble Lord, Lord Rooker, referred to the Law Commission. My understanding is that if legislation is still in use, it is not appropriate for the Law Commission to deliberate on it—but I will reflect on what the noble Lord has said and I might come back to him on that matter.

[Lord Rooker]

This is the issue that was before the Committee: there are different functions. The commission can look at legislation that might be of no practical use. There is some of that in Schedule 20—none of which was looked at by the Law Commission, I might add; it was dreamed up by civil servants. However, it will also look at modernising legislation. On the basis of the speech given by the noble Lord, Lord Stoneham, the legislation needs modernising, because all the offences are covered by more modern legislation than the 1839 legislation to meet the modern day. So the commission is quite capable of looking at modernising legislation as well as considering legislation that is no longer in use. That is a separate function of the Law Commission.

[Lord Gardiner of Kimble]

My Lords, I hope it might help the noble Lord, Lord Rooker, if I say that I will specifically make known to my colleagues the observation that the noble Lord has made. However, on that basis, I hope that my noble friend will be prepared to withdraw his amendment.

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[Lord Stevenson of Balmacara]

I am not as well briefed as my noble friend Lord Macdonald, but it is also true that the Digital Economy Act suffered from similar problems, which have not allowed it to emerge from the purdah in which it has been placed.

As I was trying to explain before I was accused of being too craven towards the Minister, which is a very unlikely position for me to be in, if a review is already ongoing then we should at least do the decent thing and wait for that. I think that the review will be forthcoming and give us the results.

I still worry about whether we are being told the whole story about this. The noble Lord, Lord Grade, the noble Viscount, Lord Colville, and other noble Lords have suggested that we could expect savings from this area; figures of about £100 million have been mentioned. If that were reinvested in British original content, that must be a good thing—there is no question about that—but what exactly would we see for it? Where has anybody specified in detail what that would be? It would be helpful to have some knowledge of that. Would it be more children’s programming or regional programming, better local news or better investigative work? We do not see quite so much of that as we used to on the commercial channels, and they have PSB ratings and should therefore perhaps be expected to move up to the mark. They need to be a bit more forward about that. I say this because, in September, media analysts at the Bank of America said on this issue that an extra £100 million of revenue for ITV could add about 15% to profits and could be worth 40p a share. I am not saying that that is what is driving this issue, but we might wish to bear it in mind.

I am sure that this issue needs to be resolved. We need a review, which I think has started. It is not right simply to put down an amendment at this stage. We should do this in a proper process, and I hope that the Government will push ahead with their review.

[Lord Gardiner of Kimble]

My Lords, I thank my noble friend for his amendment, because it has enabled a fascinating debate, the basis of which, I think, is that we all care very much about the creative industries and the public service broadcasting channels. They are of enormous importance to our national life, and there is so much to be done in terms of the economic benefit that they bring to our nation. So the Government come to this with that very much in mind.

Section 73 permits the retransmission on cable of the main public service broadcast channels—it is important to say to my noble friend Lord Holmes of Richmond that Section 73 applies only to cable and not to satellite platforms. The effect of it is that public service broadcasters are not able to charge cable operators for retransmission of their services.

Section 73 is part of a much wider framework that supports the availability of TV and investment in television programming in our country. A variety of rules and regulations affect the production, availability and the ease of discovery of PSB programming and its relationship with the different platforms—cable, satellite and digital terrestrial television—that carry it. These include the obligations on PSBs to offer their content to all relevant platforms, the rules governing payments by broadcasters for “technical platform services” and the powers for regulators to compel these services to carry PSB content, as well as Section 73. This is an area where many competing interests are at large and must be balanced; namely, those of broadcasters, platforms and, of course, viewers. The Government believe therefore that we should not abolish Section 73 without exploring these interactions within the wider framework of regulation that impacts the balance of payments between platforms and PSBs. That is precisely the approach the Government propose to take.

The noble Baroness, Lady Ford, referred to the Culture Secretary, who has already announced that the Government are going to look at whether the time is right to remove Section 73 of the Copyright, Design and Patents Act, which could allow PSBs to invest more in high-quality content. We believe that, rather than doing so in isolation, we will look at this in the wider context. I am very conscious that now when I think of the noble Lord, Lord Dubs, I must think of “But”. I know that noble Lords would like the Government to accept this amendment, but we think that it is not sensible to do so in isolation. More work needs to be done and we will examine the framework of regulation that governs the balance of payments between broadcasters and platforms. The Government will examine whether the amount of regulation around these transactions is really necessary.

I should perhaps say to my noble friend Lord Grade that my understanding is that the Government are wholly satisfied that this section is consistent with EU law, but I do not think that I can say much more than that at this moment. A number of noble Lords, including the noble Lord, Lord Stevenson, my noble friend Lord Deben and, in particular, my noble friend Lord Stoneham mentioned the Government’s intentions. They intend to consult by early next year on a proposed approach to Section 73 within the broader framework of the balance of payments debate. We think that that is the right way, given the fact that this matter has complexity. It is not as straightforward as just saying, “Away with this section”. There are intricacies and we need to look carefully at the impact on regulation relating to the must-offer obligations of the PSBs and the must-carry requirements on pay-TV platforms. That is the position and we want to get it right.

I understand that the noble Lord, Lord Dubs, will add another category to his “But” point, but it is for those reasons that I hope that noble Lords will feel that work is about to be put in hand on this area. The Culture Secretary and the Government are serious about ensuring that the work is thoroughly and properly done. For those reasons, I would ask my noble friend if he is prepared to withdraw his amendment.

[Lord Grade of Yarmouth]

I am grateful to my noble friend for that response. As a long-term Charlton Athletic supporter, I have sympathy for the underdog on any occasion. Given the score here today—an unexpected own goal from the Opposition Benches, but there you go—there seems to be a widespread body of strong opinion in terms of the list of obfuscations and get-out-of-jail-free cards alluded to by my noble friend Lord Deben and as regards trying to complicate the issue in order to avoid it. It is not a complicated issue.

The noble Lord, Lord Stevenson, alluded to public interest and talked about the shareholders of ITV, Channel 5 and so on. I do not know about the figures but if £100 million is sitting somewhere, would he rather that money went to News Corp and Liberty Media than to the shareholders of British companies who control the purse strings of what gets invested under the obligations of their licences to broadcast? I was really shocked by that comment.

--- Later in debate ---

[Lord Collins of Highbury]

I do not accept what the noble Lord says because that lottery has exploited a loophole which I had hoped that the Government would be able to close. I am not suggesting for one moment that, in the dodgy sense, there is hidden money but only 20% of the money raised by that lottery goes to good causes. That may be seen to be a reasonable return, but it is advertised on Mr Desmond’s channels and in his newspapers, it is competing with the National Lottery and people think that it is a national lottery. It is even called a “national lottery”, which I think is in breach.

Furthermore, if that company can do it, what if Tesco suddenly decides, “This is a market we need to expand into. It’s a worthy cause. We can say to our customers that we’ve the infrastructure and the stores”? I believe that this is why we need to exercise caution. We have a model that has worked. We need to support local societies, even small societies, in terms of enabling them to raise money, and that includes local lotteries. I do not believe that when people buy those tickets they are necessarily thinking, “I need to win £4 million”, but we know the impact and the dream of the National Lottery, which is why it is so important to regulate the area. I am sorry to have banged on a bit on this, but there is a principle here that is worth defending and protecting. If we move forward in any step to deregulate that, we need to understand fully the consequences for the good causes.

[Lord Gardiner of Kimble (Con)]

My Lords, I thank my noble friend for his amendment and noble Lords for the lively debate that has followed. The effect of this amendment would be to allow society lotteries to offer jackpots of up to £5 million per draw and to hold as many draws as they wish. I know that my noble friend disagrees with this but we do think that this may—and I use the word “may”—present a serious risk to the good causes funded by the National Lottery. We believe that the best way of raising funds is through encouraging people to play by offering them the life-changing prizes possible only through mass participation in a single national lottery.

As the noble Lord, Lord Collins of Highbury, has said, in the past 10 days I have answered two Questions on the Olympics and the importance of the National Lottery. I was asked about the dangers if National Lottery proceeds were to reduce and the impact that that would have on the Olympics. Indeed, it was borne out into the many other aspects of the National Lottery. I am sure that we all agree that the National Lottery has been an extraordinary success, raising over £32 billion for good causes in its 20 years of existence. It has funded everything from large-scale national projects to thousands of small-scale local groups and has had a transformative effect across the whole of the United Kingdom.

It is appropriate today to refer to what the Heritage Lottery Fund has been doing. It has awarded more than £12 million to enable the National Museum of the Royal Navy to turn HMS “Caroline” into a visitor attraction in time for the centenary commemorations of the Battle of Jutland. At the other end of the scale, the Heritage Lottery Fund also awarded more than £5 million to more than 700 projects through its First World War: Then and Now community grants programme.

It is this scale and reach that makes the National Lottery so unique. Ultimately, a total of over £60 million was given to more than 1,000 First World War centenary projects, covering nearly three-quarters of constituencies across the United Kingdom. This is only a fraction of the funding distributed by the National Lottery each year. The Government believe that allowing the sort of direct competition that could result from this amendment goes against the very spirit of the National Lottery. My noble friend makes clear that he does not believe that it puts this at risk, but there are others who feel that it may.

I want to refer to what the noble Lord, Lord Low of Dalston, said about society lotteries. They are undoubtedly very successful at raising funds for good causes and have grown significantly in recent years. We very much welcome that success but we are clear that they are part of a wider good cause landscape and, again, we would not want that to be at the expense of the National Lottery.