Deregulation Bill

Lord Gardiner of Kimble Excerpts

Thursday 5th February 2015 Lords Chamber

[Lord Stevenson of Balmacara (Lab)]

My Lords, once again, we have had a very good discussion about this topic. Although much stress was placed on the unanimity of view last time, I seem to recall myself being somewhat isolated and not in favour of what was proposed. I plead on this that I was simply arguing for good governance and not for a radical change in approach, because I share many of the views that have been expressed today. I simply think that the complexity of the matter is undervalued. The technological changes and all the other things that people are asserting without much evidence need to be tested by proper evidence-gathering and a proper report.

Like other noble Lords, I think that the way forward is to do something with Section 73 of the Copyright, Designs and Patents Act. There is some obvious logic in having the primary legislation already banked in order that it can be implemented when the time comes, but the right process would be to carry out the review to be absolutely certain that the complexities which are present are properly analysed, that the regulatory structure—in so far as it can be—is made future-proof, and that we come forward with a proposal in a coherent and proper way. I hope that the Minister will be able to shed light on the complicated manoeuvrings that are going on behind the scenes but have yet to see the light of day.

[Lord Gardiner of Kimble (Con)]

My Lords, I am most grateful to my noble friend for his amendment. We certainly missed him in Committee, when we had an excellent debate—and we have had a similarly excellent debate today.

The amendment would create the power for the Secretary of State to repeal in whole or in part Section 73 of the Copyright, Designs and Patents Act 1988. Section 73 permits the retransmission, on cable, of the main PSB channels by providing that the copyright in the broadcast is not infringed by such retransmission. The resulting effect of Section 73 is that public service broadcasters are not able to charge cable operators for the retransmission of their services. This is clearly an area where many competing interests, particularly those of broadcasters, platforms and viewers, must in some way be balanced.

The Government’s approach is not to abolish Section 73 without exploring these interactions within the wider framework of regulation that impacts the balance of payments between platforms and PSBs. As has already been mentioned today, the Culture Secretary announced last October that the Government were looking at whether the time was right to remove Section 73 of the 1988 Act, which could allow PSBs to invest more in high-quality content.

Our view is that, rather than doing so in isolation, we need to look at this in the wider context, examining the framework of regulation that governs the balance of payments between broadcasters and platforms. I have heard it said in my short time in your Lordships’ House that when the two Front Benches agree, we are into very difficult territory—but this is an area of complexity that we need to look at properly.

We are very sympathetic—I emphasise, very sympathetic—with the aim of this amendment, which seeks to give Ministers the power to repeal Section 73 following consultations, but our view is that it would not give us all the powers necessary to repeal it fully. As I think everyone accepts, Section 73 does not exist in isolation. It underpins complex commercial arrangements between the cable operator Virgin and the public service broadcasters. We need to consider carefully what the impact of the repeal would be on these existing arrangements and consider what consequential and/or transitional provision would be needed when repealing Section 73. Parliamentary counsel advised that the amendment as drafted does not give Ministers the powers to make such a provision.

The Government intend to consult shortly. I fully understand the impatience, frustration and perhaps more than that, which many of your Lordships have expressed. I want to take this opportunity to run through the detail that I have available to me. I do not have all the answers, but I would like to explain the following. Part of this issue has been complicated by the Court of Appeal case, and we still await the judgment. But my understanding is that the consultation will definitely be before the election; in fact, we are proposing for it to be launched in a week or so. I understand that it will take eight to 12 weeks to complete, and then it will have to be assessed. I will make sure that all noble Lords who have spoken in this debate receive a copy of the consultation document so that it is available immediately.

It will be a broad consultation on the whole infrastructure, obviously including Section 73. However, it is important that Parliament has evidence of what may be the unforeseen consequences: for example, with arrangements for addressing areas that are difficult to broadcast to, such as houses in very steep valleys. As with all these things, it is the unintended consequences for the viewer that we need to watch out for.

I understand my noble friend’s frustration and am sure that in his winding up remarks he will stress that he does not think that the Government have acted as expeditiously as he would like. However, it is important that we make sure we get this right. As I said, we could not accept this amendment in any event because it is defective so far as parliamentary counsel is concerned. Our proposal is that we will consult—as I said—and then bring forward legislation to repeal Section 73 once the process and all the permutations and unforeseen circumstances that there potentially may be have been properly addressed. It is for those reasons and not for reasons of delay or lack of concern that I ask my noble friend to withdraw his amendment.

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[Lord Stevenson of Balmacara (Lab)]

It is really unfortunate to have drawn the straw following that contribution. The noble Lord has spoilt my day, but that was a very nice way of doing it; I thank him very much.

I was going to start with a little riff on why the true author of this amendment was being withheld from us, as the noble Lord, Lord Clement-Jones, mentioned that he had not been able to be in Committee. It is an irony beyond irony that the first amendment in his name was the rather beautifully named “parasitic packaging” amendment, for which he produced a parasitic package—the noble Lord, Lord Stoneham, who not only replicated every word and phrase that the noble Lord, Lord Clement-Jones, would have used but did so in such a brilliant and concise way that he immediately won the hearts of all of us in Committee. We welcomed back the noble Lord, Lord Stoneham, for round two, on the amendment to remove Section 73, which was not quite so successful but was pretty good, and then he went on to busking. Busking was a tour de force; it was almost as good as what we have just heard from the noble Lord, Lord Deben, because he listed every one of the blooming regulations—I think there were 11 of them—that we are told are inhibiting busking in our greatest world city. I have to say to him, though, that he had obviously missed three because the noble Lord, Lord Clement-Jones, has now done even more research and produced another few that he has added to the list.

I absolutely buy what the noble Lord, Lord Deben is selling today, that this is a ridiculous farrago of regulation that needs to be sorted out. There has to be some clarity about what the authorities want out of the regulations that they wish to put forward. There has to be some sense of equity between those who wish to perform and those who wish to listen, and the rights and responsibilities of neighbourhoods in terms of pollution and other things. There has to be the clarity of a single piece of legislation that everyone can refer to.

When the Minister responded in Committee, he used a ridiculous phrase, a chilling remark that I still sometimes wake up and think about in the middle of the night:

“the Metropolitan Police have a desire to retain necessary powers”.—[Official Report, 11/11/14; col. GC 48.]

Come on. It is so easy to say that, and so difficult to get up the energy to say, “Okay, let’s know what these things are”. What are these necessary powers, and what exactly is this desire that the police seem to bear in their corporate bosom to do something about those who wish to entertain and perform in a way that I would have thought to most people would be a very appropriate thing to do in such a major city?

It is up to the Minister to come back on this amendment. I hope that he can step up to the mark and give us a bravura performance, on whatever instrument he chooses, but he should pick up on one point that was raised in discussion in Committee by my noble friend Lord Rooker, who said that there is an obvious and clear remedy for this. The Law Commission exists to tidy up exactly this sort of arrangement, and the Minister said that he would go off and consult on whether it was the appropriate body. First, of course, he said that it was not the appropriate body, but then he was told in no uncertain terms—because that is what my noble friend does—that the commission does indeed look at these things; it is quite happy to update, refresh and reform legislation or regulation that needs it. Surely that is the way forward, and I look forward to hearing from the Minister—in music.

[Lord Gardiner of Kimble (Con)]

My Lords, I thank my noble friend for his amendment because it has precipitated a most enjoyable debate. As has been said, these matters were considered in Committee. I assure my noble friend that, following that debate, we have looked again at these issues even more thoroughly. However, I repeat my own sentiments from Committee: the Government are clear that live music and street entertainment play an important role in community life, and can generate a positive atmosphere that can be enjoyed by all. Indeed, only this morning a guitarist in Westminster station was doing precisely that. If I might digress and respond to my noble friend Lord Deben, my definition in life is “drains and radiators” as to how people perform in their lives.

The Government therefore do not start from the position that busking requires regulation and control. However, in our view it is important that backstops are in place on those rare occasions when an anti-social busker does not respond to requests from the police, or when other legislation, such as that relating to noise or anti-social behaviour, is found to be insufficient. It is in those circumstances that we believe the two pieces of legislation mentioned still have a role to play.

As I explained in Committee, the Metropolitan Police Service has advised that it still uses the powers under the 1839 Act for operational and tactical reasons. I am sure that I am not going to satisfy all my noble friend Lord Deben’s demands. I was most grateful to the noble Lord, Lord Stevenson, for mentioning the intervention from the noble Lord, Lord Rooker; that helpful intervention precipitated officials having detailed discussions with the Law Commission regarding Section 54 of the 1839 Act. The Law Commission has advised that it would be able to recommend repeal of a specific provision only if it appeared, following research and consultation, not to have any practical utility. In this case, the Law Commission has advised that it would be highly unlikely to recommend repeal in the face of sustained opposition from the police.

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[Lord Deben]

I do not know whether my noble friend will understand this, but it is often difficult to know the division between Westminster and Camden and between Westminster and the Royal Borough of Kensington and Chelsea. Unless we have a London-wide agreement, it puts buskers in an extremely difficult position. I am sure that my noble friend, like me, has wrongly put money in a parking meter because different local authorities have different times for parking. Is it not sensible to say that if there are going to be special local authority arrangements, they should at least cover the whole of the central part of London so that people do not need to take a local authority map to discover that in Camden they would be arrested but in Westminster—a very good council—they would not?

[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.

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[Lord Collins of Highbury (Lab)]

My Lords, I wish to address three areas of concern regarding the noble Lord’s proposals: the impact on the current consultations; the impact on public confidence; and the impact on the National Lottery. We exchanged views on these issues in Committee but I want to reiterate some of the concerns.

The current DCMS consultation closes on 4 March. At the same time, the Culture, Media and Sport Select Committee is separately investigating society lottery regulation and should report its findings fairly shortly. We have argued for a detailed study of the proposals and their consequences.

I hear what the noble Lord, Lord Mancroft, says, but it is not just the National Lottery that may have concerns. Smaller lotteries and other charities have raised concerns that they may be squeezed by large society lotteries, which could expand and push the smaller ones to one side. Certainly, we on this side of the House would want to discuss the implications of that in detail before we consider any changes. Changes to this sector must be proportionate and evidence-based. We must not risk negatively impacting on the perception of charities—and, in turn, on the levels of public trust and confidence.

It is difficult to come to any conclusion on whether to substantially increase the sizes of prizes, of the individual draw or of annual proceeds caps as there is insufficient information available on this market. Without understanding how many lotteries are hitting the prize limits, the individual draw or the annual caps, and which would therefore benefit from being able to sell more tickets with higher prizes, I do not think that we can say that there is sufficient evidence for a change in policy.

There is a strong case for making more information available—certainly for increasing the data available on each society lottery’s ticket breakdown. We would like to see the Gambling Commission maintain up-to-date and publicly available data tables that show the proportion each lottery divides between good causes, prizes and expenses. It is fundamental to public confidence that the people who buy tickets understand the choices that they make. What are they supporting? How much of the money that they contribute will go to a good cause? That really is important.

I have also raised before, in the Chamber and in Committee, concerns over lottery operators, and in particular the loophole exploited by the Health Lottery. It is supposedly made up of 51 separate companies, yet they have the same three directors, the same office and the same branding. In effect, it operates as an alternative to the National Lottery. I do not think we can disregard concerns about the National Lottery. We do not fully understand the consequences. If we deregulate this market and other people come in, we are looking at a serious potential threat to the National Lottery.

The National Lottery was established on a monopoly basis for a very good reason: to balance people’s desire that the money goes to a good cause with the effect of gambling. There is no doubt that people participate in a lottery because they want to win; it is not simply about giving money to a good cause. From the way the Health Lottery and other operators market themselves, we can see that if we deregulate without properly considering all the consequences, we could have new entrants to the market. The market might grow, but it could certainly be distorted. I have mentioned this before: we could have companies such as Tesco, which has the infrastructure to mount a lottery, becoming a lottery operator, and, no doubt, giving 20% of its money to good causes—but we still do not understand how that could impact on the National Lottery.

As we have heard in previous debates, the National Lottery is not just about great big amounts of money going to big exercises. A huge amount of money—80%—goes in small amounts to local causes, which would not otherwise have been able to raise the money themselves. It has made a huge impact on our society, and we should not risk it without fully understanding the consequences.

[Lord Gardiner of Kimble]

My Lords, I thank my noble friend for tabling these amendments. He is certainly tenacious in these matters.

The amendments seek to remove or relax regulations governing the amounts that society lotteries can raise and the level of prizes they can offer. The effect of the amendments together 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. Our concern is that this could put society lotteries in direct competition with the National Lottery, and this might present a serious risk to the good causes funded by the National Lottery. The best way of raising funds is through encouraging people to play by offering them the life-changing prizes that are possible only through mass participation in a single national lottery. Indeed, the lottery was set up in 1994 to do just that.

As the noble Lord, Lord Collins of Highbury, rightly suggested, the National Lottery has been an enormous success, raising more than £32 billion for good causes in its 20 years of existence. It has funded everything from very large-scale national projects to thousands upon thousands of small-scale local groups, and this has had a truly transformative effect across the United Kingdom.

Society lotteries have also been very successful at raising funds for good causes and they have grown significantly in recent years. We welcome that success and are clear that they are part of a wider good-cause landscape. However, we cannot let their success be at the expense of the National Lottery.

Even if all the amendments are not taken together, it is unclear what effect making changes to individual limits will have. The limits taken as a package have so far allowed society lotteries to flourish while maintaining the success of the National Lottery. If we wish to change these limits, either singly or as a package, it must surely be done on the basis of evidence and with a clear understanding of how any changes will impact on society lotteries, both large and small, as well as on the National Lottery.

The Government agree with my noble friend that it is now time to consider these limits. That is why we are currently consulting through a call for evidence, asking for views on how we can ensure that society lotteries continue to flourish alongside the National Lottery. In addition, as has been mentioned, the Culture, Media and Sport Select Committee is currently investigating society lotteries and will be considering whether their current limits are appropriate.

We are currently gathering the evidence that will highlight whether any reforms are needed, and I believe that it would be unwise to make any changes now without waiting for that evidence. The Government expect to have it after the call for evidence closes on 4 March. Once we have this evidence, any reforms to monetary amounts or percentages can be made through secondary legislation. Therefore, I am confident that the Government could move to make changes if, indeed, it was decided that this was the right and sensible course of action. For those reasons, I ask my noble friend to withdraw his amendment.

[Lord Mancroft]

My Lords, I am not in a position of having to thank many noble Lords for taking part in this enormous debate; nevertheless, I thank the noble Lord, Lord Collins, and my noble friend for replying.

It was clear from the debate in Grand Committee that your Lordships did not appreciate the importance of the issue, and it is clear that your Lordships have not appreciated its importance today. It is, however, clear that over the past few years, while the voice of the BBC in your Lordships’ House has increased significantly, the volume of sound that comes from the charity sector has, sadly, reduced.

Society lottery regulations were designed 40 years ago, when society had rather a different view of gambling. The gambling industry has changed beyond recognition —in particular, the Government themselves are now the largest player in that industry through their ownership and promotion of the National Lottery. In his answer, my noble friend made it clear that protecting the National Lottery is rather more important than any of the other issues on the table.

The noble Lord, Lord Collins, made some useful comments in taking this debate forward. However, I say to him that the information on ticket sales—the number of sales, which charity the money goes to and what percentage of the money goes to the charity—is in the public domain. Every charity files a return to the Gambling Commission, which is put on its website. Any member of the public can see exactly where the money has gone, how much was raised and how much went out in prizes. It is a requirement of regulations that societies do that and there is no question that that should not be changed. There is no reason why that should not continue. I am sure that the noble Lord knows that every charity lottery ticket has the name of the charity written on it. It is not difficult to tell where the money is going.