Cultural and Community Distribution Deregulation Bill [HL]
(10 years, 10 months ago)
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Lord Clement-Jones
My Lords, up and down the country, local authorities, using powers granted by the Clean Neighbourhoods and Environment Act 2005, which amended the Environmental Protection Act 1990, have been restricting leafleting for cultural events, including performances at comedy clubs, theatres, music venues, art galleries and even village halls. Under powers introduced by the 2005 Act, local authorities can designate areas within which people must buy a licence if they want to hand out leaflets. The Act gives local authorities powers to designate land on which people require a licence to distribute free printed matter, makes it an offence to distribute leaflets on this land without obtaining the consent of the local authority, and permits the local authority to refuse consent or to give or limit consent, for example with reference to the time and place of distribution or the material distributed. It requires a person distributing leaflets to produce, on demand, written evidence of the local authority’s consent, and permits authorities to charge a fee for the issuing of licences.
A survey by the Manifesto Club, the organisation that first identified the issue, found that 27% of local authorities restrict leafleting, including Nottingham, Leicester, Brighton, Swindon, Wolverhampton, Oxford, Bournemouth, Newcastle, Middlesbrough, Manchester, Leeds, Derby, Doncaster, East Hertfordshire, Colchester, Basildon, North West Leicestershire, Sheffield, Rushmoor, Oldham, Kirklees, Birmingham and seven London councils. This means that leafleting restrictions cover the country’s key metropolitan centres and many smaller towns.
Licence fees are prohibitively expensive for small groups. In Basildon, a licence costs £150 for one day, £350 for a Saturday or Sunday and £800 for one week. Oldham charges £50 and Brent £55 per day. Wolverhampton charges £262 per distributor. Some boroughs, such as Hammersmith and Fulham, and Kensington and Chelsea, have a number of separate leafleting zones, each of which requires a separate licence. Hammersmith and Fulham charges £250 for each of its eight zones, so it costs £2,000 to leaflet freely throughout the borough. The Manifesto Club’s research found that these leafleting restrictions fall most heavily on grass-roots art and community events, including comedy clubs, theatres, music performances and art exhibitions. Larger-scale events have the option of more commercial advertising channels, and can afford leafleting licences if they so choose.
However, there is a paradox here. The Local Government Association, as recently as March, extolled the benefits of the contribution of the arts to local communities. Its press release stated:
“Arts investment can bring in £4 for every £1 spent ... From international festivals and museums that attract hundreds of thousands of visitors, to street entertainment revitalising high streets and theatres supporting young people to gain new skills, thriving arts create great destinations, vibrant places to live and have many valuable economic spin-offs. A theatre, museum or festival draws visitors who do not simply spend money on their ticket or entrance fee, but also buy meals in local restaurants, go to local shops, or perhaps stay in hotels as part of their visit. These people might never have visited that location without the pull of its cultural attractions. Businesses also choose to invest in places with a vibrant arts scene because they offer their employees a high quality of life”.
Quite contrary to this enlightened statement, leafleting licence rules have been catastrophic to grass-roots arts organisations, local theatres, jazz nights, comedy nights and arts shows in venues such as theatres, village halls, comedy clubs and small nightclubs, which rely on leafleting to build an audience but cannot afford the high licence fees. In Leicester, a one-off licence application fee is £103, on top of which an organisation must pay £26 per distributor per day. The Leicester Comedy Festival has 200 small comedy acts. It would cost an unaffordable £5,200 per day to allow them all to leaflet. These rules in effect mean that only the most commercial operations are able to freely leaflet in Leicester.
Oxford student societies were asked to pay £100 per month to hand out leaflets, as was the Oxford Jazz Festival. A flyer ban in Leicester Square, London, caused the collapse of several comedy nights and the reduction of many audiences from 75 to 25. A Newcastle jazz club owner said that leafleting restrictions reduced his audiences by 50%. The Sawbridgeworth Evening Women’s Institute was threatened with a fine for handing out leaflets about its annual art exhibition. It no longer leaflets for the event.
Leafleting licence schemes have had a widely recognised adverse effect on the music and arts scene in key British cities, reducing the grass-roots scene and limiting opportunities for emerging artists to win themselves an audience. Leafleting restrictions have had a severe effect on the music and experimental arts scenes in cities such as Leeds, Manchester, Nottingham and Brighton, and on the fringe comedy scene in Brighton and Leicester.
One unintended consequence of leafleting licence schemes has been the commercialisation of the leafleting of the arts scene. In Brighton, for example, the leafleting licence led to the decline of smaller, experimental music nights, and the growth of bigger mainstream club nights. Several comedy festivals, including those in Brighton and Leicester, now have a diminished number of fringe acts, because only those who can afford to take out brochure adverts or pay the leafleting fee are able to reach an audience. Perversely, the more commercial operations, which employ full-time leafleters, tend to leaflet more indiscriminately and create most litter.
Lord Phillips of Sudbury
I am sorry to interrupt my noble friend’s flow. If a number of small acts get together and put out a single leaflet, will they be charged separate licence fees or a single licence fee?
Lord Clement-Jones
If it is a single leaflet, the fee will be for a single licence, but these acts are small organisations with very different timings for their events during a festival, and they all have different audiences, so they want to put out their own material and find the target audience most appropriate to them.
As I said, commercial operations that employ full-time leafleters tend to leaflet more indiscriminately and create the most litter. Small groups leafleting on their own behalf will leaflet more selectively and responsibly and create very little litter. The leafleting licence scheme punishes the small events and organisations that leaflet most responsibly and cause minimal litter. McDonald’s can leaflet freely, but the local arts centre cannot.
The importance of flyering for grass-roots arts was summed up by David Mulholland, a comedian and promoter for the Soho Comedy Club. He said:
“Flyering is a life and death issue for small clubs that are just starting up. The birthplace of alternative comedy in the UK, the Comedy Store, started above a strip club in 1979 and relied heavily on flyerers to attract audiences until 1993. If flyering had been prohibited in 1979 there would be no alternative comedy scene in the UK”.
Supporters of the Bill have received testimonies from a variety of organisations, stating that leafleting is the primary way in which they can reach a local audience. They include folk music societies, theatre groups, chamber music and early music groups, church choirs, amateur orchestras, amateur dramatics societies, village halls, experimental DJs, unsigned bands who play in pubs, and small comedy clubs.
The Cultural and Community Distribution Deregulation Bill 2013 would exempt small-scale cultural and neighbourhood events from leafleting restrictions. It would reform the Environmental Protection Act 1990 to allow a greater exemption from leafleting restrictions for grass-roots arts and community events. Currently, leafleting for religious, political or charitable purposes is exempt from legislation. The Clean Neighbourhoods and Environment Act 2005 states:
“Nothing in this paragraph applies to the distribution of printed matter … by or on behalf of a charity within the meaning of the Charities Act 1993, where the printed matter relates to or is intended for the benefit of the charity”,
or,
“where the distribution is for political purposes or for the purposes of a religion or belief”.
This means that religious, charitable and political groups do not have to buy a leafleting licence. A wide exemption would avoid the unnecessary penalisation of the informal events that are so valuable to community life.
The Bill would introduce a further exemption that would exclude leafleting restrictions,
“where the distribution is for the purposes of an event which consists wholly or mainly of live entertainment and takes place in the presence of an audience of no more than 600 persons”.
Live entertainment is defined as arts and music events and other cultural, social or recreational events of a similar nature, so the exemption would cover arts, music and theatrical events, as well as local events, such as talks, shows, fetes or coffee mornings. This reform would be compatible with the current regulation on street advertising, which exempts events of this nature from regulations. The Town and Country Planning (Control of Advertisements) (England) Regulations 2007 state that posters will have deemed consent and exemption from planning laws if they announce a local event of religious, educational, cultural, political, social or recreational character.
This reform of leafleting restrictions would recognise the value of local events and free up the arts and music scenes in key British cities from this unnecessary restraint. The strength of British comedy, music and the arts ultimately depends on the health of the grass roots, which allows new talent to emerge and win an audience. This reform would also recognise the importance of free speech in public places, a liberty that has existed for several hundred years in this country, embodied in our strong tradition of pamphleteers. Leafleting is a key civic freedom, with a long tradition in this country going back at least to the late 17th century, when the requirement for printers to be licensed was lifted, and should not be restricted without very good reason.
Problems with litter should be dealt with through the provision of litter bins and other common-sense measures, not by placing restrictions on our civil rights. Leaflets advertising cultural events, an important expression of our community activity, should not be treated in the same way as a burger wrapper or a crisp packet.
The campaign to change the law is supported by a great range of artists across the spectrum, comedians such as Al Murray and Simon Evans, the directors of the Oxford Jazz Festival, the Leicester Comedy Festival, Rick Wakeman and Radiohead’s manager, all of whom recognise the importance of the grass-roots scene to producing new talent. A whole host of organisations are in support, including Equity. The Musicians’ Union says that it has supported the campaign against leafleting bans from its inception and that it is vital to musicians that events where they perform can be advertised and promoted through unhindered and responsible leafleting.
UK Music, the organisation that represents the music industry in the UK, supports the Bill, as do the Association of Independent Festivals, the Association of British Orchestras and the Association of Festival Organisers, which says that this Bill is too modest. It says that the amendment to get free leafleting for up to 600 people works fantastically well for clubs and societies, small concerts and even fund-raising events, but does not do much for a festival that is trying to attract 2,000 people. If I thought that I would get support for going further than I have, I would have done.
The Concert Promoters Association supports the Bill, as does the Agents’ Association. The English Folk Dance and Song Society says that it fully supports the Bill and that a large majority of folk events are presented by amateur and community groups, as well as small folk clubs and local festivals, which are not in a position to pay their local authorities for permission to distribute leaflets about their activities. Their activities should be encouraged, as they bring people together and encourage community cohesion, and they should not be hampered or discouraged in their efforts. The International Association for the Study of Popular Music supports the Bill, as do the Stand Comedy Club and Jazz Services.
In conclusion, I have a few quotes from individuals, which I think are telling. Alison Honour, the head of the School of Arts at Oxford Brookes University says:
“I am writing in support of the campaign against leafleting bans. Arts organisations and artists of all disciplines rely on self-promotion in order to publicise their practice, whether it be exhibitions, performances or events. These activities contribute to communities’ coherence, well-being and positive engagement, and bring a cultural landscape often reaching out to the most remote places and spaces”.
Liam Gardiner Webber, a band and youth theatre member in Nottingham says:
“I’m a member of a small, unsigned band. If we were able to leaflet for our gigs, it would make a huge difference to the numbers who would come and see us. The lack of ability for small venues to leaflet has meant that, as a member of a band and youth orchestra, being able to expand the audience of either beyond family and friends is very difficult. Leafleting would allow for much greater presence for such activities and would in turn boost the culture side of the city”.
An independent promoter said:
“It has been difficult to promote small events, as it seems only the larger companies can afford such licences and therefore get more business, which does affect independent promoters”.
All this is powerful testimony and very powerful support for the Bill. There is no doubt that this legislative change would boost the arts and local economy at no significant cost to national or local government. Political, religious and charitable events are exempt from the need to buy a leafleting licence, which means that small cultural events are being unfairly penalised. It is unjust that the Church of England and political parties can leaflet for free but the village fete or local theatre group must pay. The grass-roots arts are fundamental to community life and the local economy as well as producing talent of international renown. The deregulation of entertainment licensing was, of course, of great benefit, but groups need to be able to promote themselves. Unless we act quickly, irreparable damage will be done to the grass roots across the UK.
I very much hope that the Government will heed these calls for reform and back the Bill. I beg to move.
The Earl of Clancarty
My Lords, I support this Bill, the arguments for which the noble Lord, Lord Clement-Jones, has set out so expertly and comprehensively. This is a modest and reasonable Bill, yet one significant for those who will be directly affected by this change, as well as for local communities and the public at large. The Bill is reasonable in that, in one sense, it does no more than iron out an inconsistency that exists in the current legislation.
Like the noble Lord, this problem came to my attention via the campaigning group, the Manifesto Club, which has a particular sensitivity towards how the loss of civil liberties affects the arts. The arts are as much a valid means of expression as the expression of political and religious views which, with regards to leafleting, are exempted by the 2005 legislation. Indeed, as the Minister will no doubt be aware, there is often in practice considerable overlap between all three of these areas. At heart, this is a civil liberties issue before anything else, and it is worth emphasising that the present exemptions for leafleting are already the recognition of the principle of free speech and free expression. With the addition of cultural purposes, the noble Lord’s Bill correctly positions the missing part of the jigsaw puzzle.
By excluding arts and entertainment from the exemptions, the current law has in effect discriminated against the arts, and in a very real way. It is perhaps all too easy, in this age of the internet and social media, to greatly underestimate the continuing importance of leafleting for local and community events, which for many events is the prime means of advertising. It is perhaps gratifying proof of the vibrancy, or potential vibrancy, of our public places and spaces that this is as true of the big city as of the village or small town.
As the noble Lord, Lord Clement-Jones, has outlined, there are clearly big problems everywhere that restrictions have been introduced. Cindy Oswin, a London-based writer and director, says:
“I have worked for many years in small-scale theatre productions where the advertising budget is limited, so hands-on leafleting is necessary to reach a potential audience”.
Martha Littlehailes, chair of a music society in Hackney says:
“We are a tiny organisation and need the publicity that flyering brings”.
Outside London, Daniel James, conductor of an amateur orchestra in Manchester says that,
“publicising our concerts has been hampered by being unable to obtain a flyer licence”.
Elspeth Barnett of Eastbourne, who sings in a local choir, says that they leaflet people as they leave other concerts, or at farmers’ markets. Folk singer Derek Gifford leaflets events organised by local folk clubs in the north-west, all of which, he says,
“have limited budgets and would find difficulty in affording to pay licensing fees for such an activity”.
Independent music promoters have been particularly hard hit by the need for licences. Others make the point that it is a vicious circle in that you need the leafleting to build the audience, but you cannot afford the licence until you do so.
The fact is that leaflets or flyers are a low-cost alternative, which ought in straitened times to be an ideal solution for emerging artists and performers. There are also, of course, the instances of blanket bans on flyering, such as has happened controversially in Leicester Square in London, and in Liverpool, in some cases where the legal basis for such bans is more than dubious. Comedian Nick Doody has said of the Leicester Square ban that it,
“had an immediate, tangible and devastating effect on small and medium-sized comedy clubs in central London”.
Comedian Stuart Goldsmith has said that it,
“makes it impossible for smaller clubs to thrive, and penalises enterprise”.
I suggest to the Minister that the DCMS should be as much aware of this debate as Defra, and that he might pass that message on. Last month, we had a significant debate on the arts led by the noble Baroness, Lady Wheatcroft, in which a recurring theme was innovation and support for the arts at the grass-roots level, so this debate is germane to that. The other point that the DCMS should be aware of is that we need to keep as much of an economic edge as possible in music, theatre and other areas. Any help that can be given at the grass-roots level will in the long run be hugely important to the economy.
The events most affected by these restrictions are those most integral to the local community and cultural scene, whereas the more commercial operations are able to pay for the licences but often have fewer local loyalties. The Minister will perhaps recognise that there is a significant distinction to be made between the highly commercial advertising of a high street chain and a leaflet telling you about events as varied as the village fête, local choir event or folk or jazz night, which is often handed to you by one of the performers themselves. Additionally, the informality and spontaneity of many local cultural events also make them unsuitable for licences which may have complicated tariffs as well as being prohibitively expensive—an expense whose payment has to be decided upon well in advance. These licences are overkill. We are not talking about major pop concerts. The modest audience cap of 600 included in the Bill ensures that this is so. These events are often run on a not-for-profit basis or on a tight budget which may help artists, comedians, musicians, writers and others at the beginning of their careers. As Josie Appleton, director of the Manifesto Club, says:
“We have a strong tradition of pamphleteers in this country who would be turning in their graves if they could see theatre groups charged hundreds of pounds to hand out a few flyers”.
It should be borne in mind that leaflets are not litter until they are discarded, and strategically placed bins ought to do that job. Indeed, far from being mere pieces of litter, flyers can also be an extension of an event aesthetically. This can be particularly true of music events, just as CD covers are for CDs. Emma Webster, expert on live music promotion, states:
“As well as being portable information carriers … flyers form part of the promoter’s ‘branding’ of an event through their design and distribution. The design of flyers … can be an important signifier as to the nature of the event, and is an opportunity for the promoter to creatively market their event”.
Anyone who has attended any of the music memorabilia auctions in recent years will know how much the promotional material for now famous bands will go for, and often by designers such as Jamie Reid who have themselves become well known through this work, all of which started at local venues. Flyer and poster design is an industry in this country in its own right and public spaces are their gallery. It is ironic that at a time when this work is being shown in museums, its contemporary practitioners are effectively being banned by so many local authorities.
Finally, within the larger context surrounding this Bill, the long-term crucial question which needs to be asked is: what should we be now be expecting and demanding of our urban centres? Clare Fischer, artistic director of The Red Hedgehog arts centre at Highgate, makes the point:
“Arts and local events provide a kind of cultural and social ‘glue’ which is vitally important in providing and maintaining a shared identity in the community”.
Do we want our public places to become increasingly prohibitive in character, or do we facilitate them as properly shared spaces? For that to happen, of course, they must also remain publicly owned and within a local authority control that is dedicated to the public good above all else. In an era of council sell-offs and partnerships, a question mark hangs over this. However, that is going beyond the scope of this Bill, being a debate for another time, although one that is urgently required.
I do not believe that the previous Administration intended to penalise either the arts or local communities when they passed the 2005 legislation. I think rather that it was an oversight which all sides of the House can now easily work together to rectify. I hope very much that that is what will happen.
Viscount Colville of Culross
I applaud the noble Lord, Lord Clement-Jones, for introducing the Bill and for bringing this issue to the attention of the House in a number of Questions for Short Debate.
It seems to me that there is a really pressing need to amend the Clean Neighbourhoods and Environment Act 2005 to regenerate our town centres. We have all seen the headlines and know from our own experience the dire state of our town centres across the country. As the Government in their policy document setting up the Portas pilot regeneration schemes, point out,
“our high streets and town centres are facing serious challenges from out-of-town shopping centres”.
The document goes on to offer a way forward for the high streets. It says:
“They need to offer an experience that goes beyond retail—the high street should be a destination for socialising”,
and culture—a sentiment expressed by my noble friend Lord Clancarty.
It seems strange that just as the Government are spending taxpayers’ money to create this buzz, local councils across the country are thwarting their work by strictly controlling leafleting advertising cultural events in city centres. According to the Manifesto report, mentioned by the two previous speakers, councils are regulating spaces where you can leaflet and levying a variety of charges. As the noble Lord, Lord Clement-Jones, said, in some cases licences are extremely expensive and fines for breaking the code can be up to £2,500, which, frankly, would break a small venue. Of course, local authorities want to stop litter and need to charge a small sum from distributors to pay for leaflets to be cleared up and for the scheme to be administered. However, too many councils charge exorbitant fees to license leafleting.
I should like to draw the attention of your Lordships’ House to a particularly blighted town, the centre of which is going through a hard time, part of which I believe is due to the council’s policy on leafleting. Wolverhampton is one of the town centres highlighted in the Department for Communities and Local Government document as being in need of special attention from the television retail guru Mary Portas, who has chosen it as one of the initial 12 town centres to benefit from her help. I am very glad that she has done so as the city centre is in crisis. Thirty years ago it was prosperous, but now one in four retail shops are empty and some streets look like scenes from a post-apocalypse movie. Much of the damage was done several years ago when compulsory purchase orders were put on a third of the town centre commercial properties to make way for a £300 million shopping centre. Guess what happened. Of course, the shopping centre was never built and the properties were all blighted. Now there is not much shopping and no shopping mall. Since then, the council has made strenuous attempts to improve the situation. It has one of the fastest turnaround times for planning applications and has announced a big regeneration scheme for the town centre. However, as I have already pointed out, many councils charge high prices for leaflet distribution licences—much higher than the cost of clearing up the litter. By doing so, I am sure they hope to raise revenue from the scheme. However, Wolverhampton has one of the most expensive leaflet distribution licences in the country. It used to cost £250 per person. However—I would like to correct the noble Lord—it has gone up to £300 per person for a year and a one-off licence for one person for one evening costs £50. Frankly, that is an absurd cost for a small venue which may want to dish out only about 150 leaflets as that is all it can afford, and yet that is the cost of the licence. This seems to be having a deleterious effect on the city’s cultural venues and places for socialising.
I spoke to Steve Harrington, the owner of the Fixxion warehouse project, an arts, film and music venue in the town centre. Apparently, he advises bands coming to play at his venue not even to try to hand out leaflets. The cost of the licence is far too high and if they try to do so without a licence, the council is extremely zealous in prosecuting offenders and usually ends up fining the venue owners as they are the easiest ones to get to. Mr Harrington explained to me that you must do all you can to promote your event and advertise it but Facebook has limited value. To get through to the people who might come to the venue, you have to leaflet them face to face. He used to do that by going to nearby venues, finding queues of would-be customers who might want to come to his venue the following night and handing them leaflets. Now he cannot do that and says that the inability to leaflet is destroying the interaction between venues and the public. He says that, as a result, clubs are leaving the area. Revolution, a country-wide chain of music bars, has just left, saying that its branch in the city had the worst takings in the country. He himself is planning to shut up shop and go to nearby Birmingham, where apparently the city council has a much more enlightened view of how to promote small venues and the small bands coming to those venues. Of course, the expense of leafleting is not the only problem these venues face, but it is a definite problem all the same.
The only people who seem to be able to afford to leaflet in Wolverhampton city centre are the commercial leafleting companies acting on behalf of big businesses, which have the money. They obviously bring revenue to the council but at a heavy cost to regenerating the high street. However, even that stream of money will be threatened if there are no customers using the city centre for them to leaflet. I also spoke to Henry Carver, who runs a non-political business group that is trying to regenerate the city centre. He said:
“We vie with Hull as the unemployment capital of England. What we need to do is to do anything to encourage businesses in the city so that people can be employed”.
This Bill would be one way of doing so. He does not want the council to have to subsidise small businesses for leafleting but wants the cost to be covered in some way. All the same, he believes that the current rules are restrictive.
Wolverhampton is a bad case but, as the noble Lord, Lord Clement-Jones, said, the situation is echoed in other city and town centres across the country, from Leicester to Basildon. Freeing up the ability of cultural centres to leaflet will certainly not solve all their problems. We have to do everything possible to regenerate our high streets. They are the centres of our communities and the cultural engines of our country. To lose them will be to lose an important part of our national life. I urge the Minister to help this Bill to become law.
Lord Stevenson of Balmacara
My Lords, I thank the noble Lord, Lord Clement-Jones, for introducing the Bill. He and I have been locked in closed rooms a number of times recently, dealing with intellectual property. It is nice to see that he is not a one-club golfer and has other strings to his bow. I am sorry about the mixed metaphors. I am reminded of the brilliant game that he played last Session when he brought the Live Music Bill before your Lordships’ House. He entranced us with his arguments there and attracted the attention and support of the Government. He is clearly trying to do the same again here. We wish him well with that.
I thank the other speakers in the debate, which has been of high quality. I am particularly grateful to the noble Earl, Lord Clancarty, and the noble Viscount, Lord Colville, for bringing in the wider context, which is important to this issue. After all, it is about the way in which we want our city centres to operate, and they are in danger if the widest possible range of activities cannot take place there to bring people back to them and to use them.
It is clear that the very excellent speech of the noble Lord, Lord Clement-Jones, which I thought was one of the best that I have heard since I joined your Lordships’ House, covered all the aspects that needed to be brought into play. He did so with passion and rigorous argument throughout. His point seems to be that the existing law is imperfectly achieving its objectives. It disadvantages good and valuable work in local areas, involving the arts, culture and social provision. As a result, we all lose. It encourages commercialisation of activities that depend on a more informal and relaxed use of space and the bringing in of new groups and activities to refresh and innovate. It also does not solve the litter problem that the legislation was intended to address. As other noble Lords have said, other measures would probably be more effective in that regard.
As was said, leaflets are not litter until they are discarded. Perhaps there is a thought there. It is surprising how widely the legislation has been used, and one did not perhaps realise that until it was brought up in debate. That seems to be counterintuitive in the age of the internet. One would think that most of the groups and activities that we are talking about might have used social media and others to attract their audiences. However, it is clear from the evidence that the way in which this activity operates involves a direct link with customers. There is a vicious circle whereby if you cannot make contact by direct leafleting you cannot grow the venue or activity to the extent that it would be able to pay for a licence when that was appropriate.
The argument, of course, is that it is not appropriate. The licences are not cheap and their costs vary across the country. It is not surprising to hear that Brighton is one of the most egregious examples. The Green Party would obviously leap on to such a proposal that could be dressed up as a way of trying to accentuate a green activity by banning litter. However, it is a brave Government who attempt to restrict the activities of the Women’s Institute. If that is their purpose, I wish them luck.
The Government have a responsibility to review the effectiveness of legislation that has been passed, even legislation passed by a previous Administration. It is clear that this law is causing difficulties in an area that we all hold dear. I look forward to hearing the views of the Minister in response.
The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord De Mauley)
My Lords, let me begin by thanking my noble friend, to whom I have listened carefully—as I have listened to other noble Lords—for bringing this issue to the attention of your Lordships.
I clearly understand that community events underpin many aspects of what creates the social cohesion of our society, and one should never underestimate how important they are in bringing people together. I strongly support such endeavours. However, my noble friend will understand that my ministerial interest stems from the potential by-product of littering caused by advertising leaflets being dropped in public area. While I agree that local authorities should not unduly interfere with the organisation and promotion of these kinds of community events, it would be wrong of me not to explain why I have some reservations about my noble friend’s proposition.
My noble friend’s Bill seeks to limit the restrictions that local authorities are presently able to impose on the distribution of free printed matter in their areas of responsibility. As your Lordships will be aware, local authorities have a statutory duty to keep their relevant land free of litter and refuse under the Environmental Protection Act 1990. The Clean Neighbourhoods and Environment Act 2005, which the noble Lord, Lord Stevenson, generously admitted was put in place by the previous Administration, subsequently gave local authorities the power to restrict the distribution of free printed matter such as leaflets and flyers in specified areas if the distribution of such material is causing a problem.
The Bill could constrain those same local authorities that previously could utilise this provision in the Clean Neighbourhoods and Environment Act. They could argue that the positive action they have taken to reduce littering will be undone because their resources will have to be diverted once again into dealing with the extra littering that my noble friend’s Bill could inadvertently cause.
On the other hand, and in line with my noble friend’s train of thought, I can say that the Anti-social Behaviour, Crime and Policing Bill, which is currently being considered in the other place, will make some changes to local authority powers in respect of litter which will require us to review our accompanying guidance. I am happy to make an offer to my noble friend that in the course of that review we will also look for opportunities to review the guidance to local authorities on their powers in respect of leafleting in exactly the situation that he contemplates. We are willing to work with the Manifesto Club and others to draw up best-practice guidelines. It would be easy to present the local authority powers as an unnecessary erosion of a citizens’ freedom. This is indeed the argument of the Manifesto Club in its report of last year, Leafleting: A Liberty Lost?, which argues that leaflets cause no more mess than burger wrappers or crisp packets and implies that there are far more compelling reasons for the restriction of leafleting.
Perhaps I may take your Lordships back to the 1990s, when trials of similar powers to limit leafleting were run in London and Newcastle. Westminster City Council had particular littering issues over the distribution of free magazines in the Oxford Street area and, more significantly, with the distribution of free material by language schools. This in turn encouraged a range of other businesses such as tattoo parlours, amusement arcades and nightclubs to do the same. Westminster put up notices to highlight this issue but also hit the problem at source by challenging those language schools that had not registered with Companies House. This approach was welcomed by other residents, businesses and visitors to the area.
The leafleting problem in Newcastle centred on a large build-up of litter in the early hours of the morning, consisting mostly of flyers advertising bars and nightclubs. Since May 2002, Newcastle’s licensing department, in consultation with local trade representatives, has issued consents to enable individuals to distribute flyers within the city, showing what I hope noble Lords will accept is a constructive and helpful approach. These consents undergo regular checks to ensure that individuals adhere to the conditions and, if they do not, distributors risks having their flyers confiscated.
These trials showed that the restriction of leafleting activity in specific problem areas had a marked effect in both reducing litter and helping local authorities to limit their street-cleansing costs. The evidence gathered through these trials led to an efficient piece of drafting as part of the Clean Neighbourhoods and Environment Act. However, that does not mean that we have stood still.
My noble friend’s proposal would undermine local authorities’ ability to address a problem which they already know exists. With the best will in the world, not everyone who is handed a leaflet or flyer wants to keep it, and it is a sad fact that many people still think that it is acceptable simply to drop the unwanted flyer a few paces further down the street. Under current legislation, controls on leafleting can be introduced only where there is evidence of a pre-existing problem with leaflet litter. Without these controls, there is a risk of the level of littering rising again in these areas, thus increasing the costs to local authorities of complying with their statutory duty to keep the streets clean. These costs would come at a time when local authority budgets were already under pressure and so would be likely to have a knock-on effect on the ability of local authorities to deliver other local and community services.
The current arrangements enable local authorities to develop appropriate solutions to local issues. If a problem arises, local authorities have the flexibility to consider and consult on an approach which tackles the specific problem and which does not unreasonably inconvenience law-abiding citizens. I put it to your Lordships that the creation of a further exemption, as proposed by my noble friend, would serve only to reduce the flexibility that local authorities currently have to tailor their response to the problem, and this would be directly contrary to this Government’s commitment to localism.
As my noble friend mentioned, exemptions exist to the Clean Neighbourhoods and Environment Act to protect well understood and fundamental rights. A local authority cannot apply restrictions to leaflets distributed for political purposes or for purposes of religion or belief, or for or on behalf of a charity. Feedback from local authorities is that they welcome clear delineation regarding to whom these provisions apply.
However, my noble friend seeks to extend the proposed definition of the events to which the exemption would apply. My concern with extending the exemption is that it could open the floodgates to commercial operators putting on events that could potentially attract huge audiences from far beyond the local community. While my noble friend paints a picture of community events or performances by local amateur dramatic societies, in some areas there may be numerous events taking place—for example, in city centres—where the number of leaflets frequently being dropped could be significant. This in itself would create a problem for the local authority enforcement officers. There is certainly no way of policing that only 600 people will see the leaflet, especially now that information of this kind is able to go global at the click of a button.
The focus on leafleting within this debate should not distract us from thinking about the overall issue of littering. In 2011-12, local authorities spent a staggering £840 million on street cleansing, and in the coalition we committed to working to reduce littering. Littering is a criminal offence which imposes unnecessary costs on the public purse and on society as a whole. Dealing with this supposedly victimless crime takes away from valuable services money which could otherwise be provided to the people who need them. We do not accept that more legislation is the only answer to the problem of littering, or even the best solution. If we are to tackle this problem effectively, we need to change people’s behaviour.
It would be remiss of me not to join the noble Lord, Lord Stevenson, in drawing noble Lords’ attention to the role of digital technology. Let us remember that leaflets and flyers are not the only method of advertising events. The cultural and arts sector is often at the forefront of the innovative use of technology. We encourage such organisations to make full use of digital technology to promote their offer, and indeed to join forces with other, similar organisations to share marketing costs. Arts Council England has made money available for research and development in digital innovation, which could include promoting events through digital mobile technology. This approach has the additional benefit of reducing paper use, which is inevitably better for the environment.
I am sure that even if my noble friend does not tweet himself, he will have dipped into his own party’s Twitter account and seen at first hand the speed at which a message can be conveyed via a digital platform. Many forward-thinking promoters are increasingly using media such as the quick response, or QR, code, in which interested parties use their smartphones to scan an advertised barcode to gain information about promotions or to book tickets for events. Surely these and other emerging and exciting digital tools are the way forward, and the old-fashioned paper leaflet or flyer will soon become an exhibit on the “Antiques Roadshow”.
My noble friend raised the issue of charging by local authorities. These powers are not about raising money for local authorities or placing barriers in the way of grass-roots arts organisations. The licensing fees that local councils can charge for permission to distribute leaflets must not exceed the cost of administering the licensing scheme. Not all councils charge a fee for a licence to distribute leaflets, and many councils have no restrictions at all. My noble friend mentioned some which, he suggested, were charging quite a lot of money. I am happy to look at those at the upper end of what he mentioned in case they exceed the cost of administering the power. To be clear, they can charge only the reasonable costs of enforcing the powers under Schedule 3A that do not extend to clean-up. Associated with that point, we have made informal soundings of councils across England. Pretty well all of them that responded expressed concern about the extra costs of cleaning up the litter generated and the damage to the environment.
The noble Earl, Lord Clancarty, asked me to pass on the content of this debate and the Bill to the DCMS. I am happy to say to him that we have certainly been in touch about this debate, and he is quite right that we should do so. The noble Earl also referred to the possibility of more bins being put out to deal with the problem. Through the guidance that we have published for local authorities, we are encouraging them to look at their bin provision and to think about where they might want to provide additional facilities.
Therefore, I assure noble Lords that it is not the aim of the powers in the existing legislation to impose unintentional, unnecessary and burdensome restrictions on the organisation of community and cultural events, which we see as very important. We want to see vibrant, thriving communities with a strong arts and cultural scene, and we would certainly be concerned if we heard that local authorities were using these powers inappropriately or disproportionately.
I hope that my noble friend is pleased by my offer, in the course of the review of local authority guidance in the context of the Anti-social Behaviour, Crime and Policing Bill, to look for opportunities to review guidance to local authorities, specifically on their powers in respect of leafleting, and that he is pleased that we are willing to work with the Manifesto Club and others to draw up best-practice guidelines.
I do not believe that the legislation as it stands places undue restrictions on civil liberties; rather, it enables local authorities to limit their exposure to unnecessary street-cleansing expenses and to develop controls which are appropriate to their local circumstances. I therefore express significant reservations about my noble friend’s Bill, which has the potential both to increase local authority costs and to make existing controls harder to enforce.
The Earl of Clancarty
My Lords, in terms of the exemptions, does the Minister believe that artistic expression is not as important as religious and political expression?
Lord De Mauley
I hoped I had made my position clear on that point. I see cultural and artistic expression as extremely important.
Lord Clement-Jones
My Lords, I thank all noble Lords who have spoken. In particular, I thank the noble Earl, Lord Clancarty, who really got into the detail of the local arts scene, which he knows so much about, and the noble Viscount, Lord Colville, who has done extremely interesting research into the Wolverhampton situation, which is replicated up and down the country. Taking an example in that way becomes very powerful. I also thank the noble Lord, Lord Stevenson, for his support and his interrogation of why we have this legislation despite the fact that, as he acknowledged, these provisions were passed under the previous Government but have had these unintended consequences.
I thank the Minister for his reply. He had a pretty miserable hand to play in this debate. It had some positive elements but was broadly disappointing. One of his phrases, I think, was that he would be concerned to hear that the powers were being used disproportionately. There is a thick booklet from the Manifesto Club, which details in extenso all the ways in which these powers are being used disproportionately. There are ways of playing a miserable hand but I can tell the Minister that he did not turn it into a silk purse.
I cannot help feeling that if a different department were involved—if the DCLG or the DCMS, praise the Lord, were to have responsibility for this legislation—the response would have been very different, as it was, of course, in such a positive way to my Live Music Bill last year. We really have to lift our eyes from the pavement and noble Lords speaking in the debate made that very clear. I am really disappointed that Defra seems to regard the faint risk of extra litter as more important than our cultural and community life.
The Minister raised a number of objections, including the claim that it will lead to increased street-cleansing costs and divert resources for local government. It is probable that the width of definition of live entertainment underlies what the noble Lord said, as well as in terms of opening the floodgates to all the commercial operators and McDonald’s going mad all over our streets. Other objections in discussions have been made, including that it is difficult to say in advance what size an audience will be. But that is absolutely standard in health and safety, licensing and so on. It is not an issue.
In the debate, the Minister set us the task of changing human behaviour. Let us start with small steps. I do not think that, in order to defend culture and community life at local level, I first have to change human behaviour to justify this very small but significant Private Member’s Bill. Then we all have to be beamed up in some way. I do not know whether we have any “Star Trek” enthusiasts around here, but let us all hang on a star and get digital. We can all use Twitter, e-mail and so on but physical bits of paper handed out to people who happen to be in the right place at the right time is extraordinarily important.
On the cost of litter collection, when the original leafleting restrictions were introduced, the Government’s impact assessment said that the leafleting licensing schemes might or might not save councils money because there would be costs to set it up. It is therefore highly moot whether in a particular case a licensing scheme is cost-effective and, therefore, whether its demise would cost anything in certain cases. The impact assessment said that,
“the total set-up cost to local authorities would be between £450,000 and £750,000; and taking account of the costs of enforcement and the cleaning costs saved, on an annual basis there would be somewhere between a net cost of £37,500 and a net cost saving of £525,000”.
We all know what impact assessments are like across government, which may sound particularly broad-brushed. I do not believe that those figures are any more reliable than the dire consequences the Minister has predicted in this case. It goes on to say:
“This illustrates that it is not certain whether there would be a net financial cost or benefit to this measure”.
If they were uncertain then, I am sure that they are uncertain now.
We then got into the nether regions of tattoo parlours, free magazines, night clubs, bars and so on. Let us throw the kitchen sink at this problem. I can assure the Minister that the Bill is not designed to deal with tattoo parlours. As the noble Viscount, Lord Colville, made plain, there are additional economic benefits which outweigh the disbenefits of a little bit of extra litter from a poetry club or a comedy store. The noble Viscount demonstrated exactly those points.
As a result of the Bill, local businesses and cultural activity would almost certainly thrive. As I have mentioned, Brighton audiences have plummeted. If the Brighton music scene, for instance, returned to its former size, more people would come to Brighton, spend more money, the council’s arts budget would go further and so on. Surely, in the light of the benefits of deregulation, is it not worth the candle?
As to the second objection—the question of the width of “live entertainment”—as I said, we can clearly work on the definition. Amendments could be agreed in Committee if there was the political will. As regards the size of audience issue, this works for licensing so why not for leafleting. If that does not find favour in terms of audience, it could find favour in terms of capacity. The term capacity is used in other forms of legislation, such as that on health and safety.
However, I am heartened by part of the Minister’s response. He seems to accept that there is a problem. He may not think that there is enough of a problem—I am sure he has not read the Manifesto Club’s report and I urge him to do so—but he has undertaken to sit down and talk about it with the Manifesto Club. I hope he will also sit down with DCLG and DCMS. I have seen a ministerial letter from the Creative Industries Minister to that effect in the DCMS and I welcome it. I hope that revised guidance will be agreed for the application of these provisions in the way that he said.
We need to make the Minister’s assurances concrete. Is it an absolutely firm commitment that the guidance will be changed? When will meetings take place? Can we expect to agree new draft guidance? When can we do that? When will this be consulted on? When can we expect it to be implemented? There are a number of concrete issues and I hope the Minister will follow that up in writing after the debate.
I wish to end by returning to the time when the 2005 Act went through and the actions of the Labour Minister, Alun Michael, for whom I had great respect as a Minister. His original outline of the religious, charitable and political exemptions emphasised that they were necessary to protect human rights and political expression. He said:
“The purpose of the exception is to ensure that the human rights of individuals and their legitimate political and democratic activities are not affected by the provisions. By allowing the exemptions, we protect the rights of freedom of expression and freedom of thought, conscience and religion”.—[Official Report, Commons, Clean Neighbourhoods and Environmental Bill Committee, 20/1/05; col. 143.]
This shows that, contrary to the localism argument used by Defra, exemptions are necessary to protect the rights of different groups. It was not all left to council’s discretion.
Surely grass-roots cultural expression needs to be similarly protected. It makes cultural, social and economic sense and I look forward to further discussions with the Minister. I ask the House to give this small but significant Bill a Second Reading.