Lord C-J says Ministers must ensure the multi-billion pound fashion industry industry is not put at risk
This is a piece I recently did for the House Magazine: ‘From fashion to furniture, Britain’s design sector relies on EU protections, writes Lord Clement-Jones’.
It was notable from her speech at the Mansion House earlier this month that the Prime Minister has woken up to the threat to our broadcasters of exit from the EU through loss of country of origin rules – the rules which have enabled the UK to operate as an international broadcasting hub.
The fact is, however, that this is but one of the many severe threats to our creative industries posed by Brexit.
The Prime Minister also needs to recognise the threat posed by Brexit to the design sector, which includes the fashion industry and furniture lighting and furnishings and many other design areas, from the potential loss of European unregistered design rights for United Kingdom-generated designs.
European design laws protect the individual character of a design, in particular as they relate to shape, texture, contours, lines, colour, ornamentation or materials. UK unregistered design right protects only the shape and configuration of a design.
Recently the Law Society made the news when it revealed that London Fashion Week is under serious threat from Brexit. They said it could lose its status as an event where new clothing creations are unveiled because laws that protect European fashion houses from unauthorised copying may no longer apply in London when Britain leaves the EU next year.
Fashion houses that first reveal an unregistered design on the London catwalk would be at risk from copies going on sale in the EU.
"As the majority in the industry are micro and SME design innovators with less than four employees they are particularly vulnerable to infringement of their designs."
— Lord Clement-Jones
In 2016 the value of UK fashion and textile exports stood at £9.1bn. The fashion industry, through the British Fashion Council, has highlighted the serious consequences for British fashion designers if they lose unregistered EU design rights protection in the other 27 member states. Potentially losing the protection currently available under EU law will leave these UK designers in a disadvantageous position versus their EU competitors.
These are typical but high profile examples of how designers across the board may be forced to launch new designs in EU countries after Brexit.
The potential impact to our economy is massive. UK design and design skills in the UK are currently worth a startling £209bn. This is put at risk if legal protection for design IP is weakened.
The reason for this is that copying is endemic not only in the fashion sector but in the lighting, furniture, furnishings, gift and product and many more design sectors, all of which will also be affected by loss of the EU unregistered design right. As the majority in the industry are micro and SME design innovators with less than four employees they are particularly vulnerable to infringement of their designs.
In the Lords this Thursday I will be seeking a firm assurance from the government that it will provide a solution to the potential loss of EU design rights in one of the fastest growing sectors in the economy. I will be calling on ministers to end this major threat to our design sector and introduce legislation which will offer the same EU unregistered IP rights’ protection as they now enjoy in 28 member states.
Unlike some other Brexit conundrums, in this case the solution lies in government’s hands and we and the design industry have every right to expect urgent action.
Lord C-J helps launch the 2017 Live Music Census Report
I recently helped to launch the excellent Report on the 2017 Live Music Census carried out by Emma Webster Mat Brennan, Adam Behr, Martin Cloonan and Jake Ansell at the Musicians union HQ in Clapham Road. I was asked to give an overview of Parliamentary progress in supporting grassroots music venues. This is what I said:
First of all many congratulations to Emma , Matt, Adam, Martin and Jake for a really impressive high quality report. In this company I can say they make a virtuoso quintet!
It will really underpin and validate the case that so many of us are making inside and outside Parliament about the importance of live music and the closures and potential threats to grassroots music venues, which are such an important part of our music scene both for audiences and musicians.
Just a couple of weeks ago, many of you will remember, there was a very impressive turnout by peers and MP’s in support of John Spellar’s Agent of Change Bill outside Parliament .
The sheer support for the Bill and the far greater interest by Parliamentarians in the welfare of Grassroots Music Venues will be reinforced by the research carried out by the authors of this UK Live Music Census but is also testimony to the concerted activities over the past few years of campaigners such as UK Music, the Music Venues Trust and the MU and many in this room. We are now creating a much bigger campaigning community for music in Parliament.
Parliamentarians are now much more alive to the fact-as shown in today’s report-that there has been in recent years a perfect storm of circumstances for the night-time economy, resulting in a continuing decline in grassroots live music venue and they realize that once gone, these venues will not come back into our towns and cities.
The report itself highlights rising rents and business rates, planning and property development issues, and noise related complaints as the key contributing factors.
There have however been some individual bright spots as result of these issues being raised by campaigners. The campaign for Agent of Change is a case in point.
As a result of a campaign in a previous Housing and Planning bill, Agent of Change principles were made to expressly cover conversions but did not cover new build.
After the introduction of John Spellar’s new Bill which expressly provides for this, Sajid Javid has agreed to include the principle “in detail” in the National Planning policy Framework which will make housing developers building new homes near UK venues responsible for addressing noise issues and this should help protect venues from any new build development in their nearby vicinity.
Also there seems to be some daylight on business rates reform in terms of an indexation switch to CPI, . A discount for pubs is welcome but relief needs to be extended explicitly to grass roots venues as a whole. The London Mayor’s Economic Development strategy recognizes the issue for the London’s night time economy and is pressing the Valuation Office Agency to review its valuation policy, which would be a step in the right direction. But all this needs to happen quickly and it needs to be nationwide.
"We are now creating a much bigger campaigning community for music in Parliament."
— Lord Clement-Jones
Then there is the whole question of secondary ticketing.
In the last couple of years the campaign to stop the rip off against fans by the All Party Parliamentary Ticketing Abuse Group, groups like FanFair Alliance, trade bodies like UK Music and the MMA has by and large achieved a great deal. First of all amendments to the information requirements on ticket resellers through the Consumer Rights Act and then last year in the Digital Economy Act with the outlawing of bots buying up tickets on an industrial basis.
New guidance under the Consumer Rights Act makes it absolutely clear what information must be provided by secondary sellers and provide better protection for audiences, artists and event organisers.
The next step was to make sure that these laws are being obeyed. Having looked at this as a result of debates on the Consumer Rights Bill, the CMA last November reported that it is now taking enforcement action against some of the offending Secondary sellers, and enquiring further into their practices.
At the end of the day however, welcome though all these developments, there is more to be done. And urgently too. Venues are still closing. We need a comprehensive approach to the protection of these venues. That is why I welcome the new enquiry into Live Music being undertaken by the DCMS Select Committee
Specifically as part of that they will be asking : “How the music sector been affected by the closures of small music venues across the country,? Should small music venues be classified as cultural venues? What initiatives can be put in place to help grassroots artists and bands?”
This report will be hugely helpful in setting the scene for the Select Committee.
We need to look at ideas such as a Culture & Heritage Investment Tax relief as Music Venue Trust suggest in their evidence and imaginative schemes such as their Sound+Vision plan.
I hope UK Music will return to the idea of an amendment to the Licensing Act which would create a fifth licensing objective that would oblige licensing authorities to consider the wider benefits of music and entertainment in the community when carrying out their functions. As is stands, the cultural contribution of a grassroots music venue is not considered at all.
Having this fifth objective might just be the critical edge to a decision that will either lead to a venue closing or to it remaining open.
I don’t often quote Ed Vaizey but I thoroughly agree with what he said 2 years ago at Venues Day: “ A vibrant music venue which is breaking new acts has just as much right to be considered a cultural venue as a local or regional theatre”
So we need to make sure that Arts Council England treats Grassroots music -as they do on the continent- as an essential part of our cultural scene. It seems completely weird that the British Council do when our artists tour foreign venues but the Arts Council don’t recognize this.
We mustn’t build our expectations too much but the Select Committee has a good track record and it could produce an important platform for a new set of campaigns.
Enough from me . I was only meant to do a few riffs, so I’d better get off the stage!
Lord C-J Calls for Action on Museum Finance
In a speech in the House of Lords recently I highlighted the problems faced by museums and galleries and the need to go further than the recommendations made by Neil Mendoza in his report last December.
My Lords, we have heard an impressive range of speeches in this debate which have demonstrated the enthusiasm of this House for museums and galleries but also, I am sad to say, illustrating many of the severe problems that they face. I must congratulate that great heritage champion, the noble Lord, Lord Cormack, on instituting this timely debate. It is only too rare that we discuss this sector which, as we have heard, makes a great contribution to our culture, our creative economy, our tourism economy, to social well-being and the quality of our lives, and to our communities. I was taken by the description of the noble Lord, Lord Monks, of museums and galleries being a stimulant for creativity and innovation, and by what the noble Lord, Lord Rees, had to say about the ongoing impact on why people eventually do what they do; it is not purely down to the schools and universities they go to. Like him, I declare a strong interest not only as a regular visitor to national museums—only last night I was at the Science Museum for “Tomorrow’s World Live”, which was pretty exciting—but to university museums as the chair of the Queen Mary University of London Council. If any noble Lord has a slight taste for the macabre, it is certainly worth while going to see the astonishing Barts Pathology Museum in the West Smithfield campus.
As the National Museum Directors’ Council points out, eight out of the 10 most popular attractions in the UK are national museums, and 51.3% of UK adults visited a museum or gallery in 2012. But as the noble Lord, Lord Cormack, made clear, inevitably the context for today’s debate was provided by the Mendoza review published last November, entitled An Independent Review of Museums in England. Before that, we had the Government’s ambitious Culture White Paper and the Culture, Media and Sport Select Committee report in December 2016. At the time of the Select Committee’s report, the then Minister for Culture, Mr Matt Hancock MP, who is now the Secretary of State of course, said that he supported the aims of the White Paper and that he would continue putting its recommendations into practice, so I take some comfort from that.
The Select Committee and the Culture White Paper both emphasise the need for access, diversification and partnership working. I say “hear, hear!” to that. The principal recommendations set out in the Mendoza review were described succinctly by the noble Lord, Lord Kirkham, while the noble Viscount, Lord Eccles, was right to pick out a particular recommendation for a clearer museums role for DCMS. If that is not a veiled criticism, I do not know what is, and I strongly support what the noble Viscount had to say. Some good recommendations were made in the review, and I welcome the response made by Arts Council England. It states that over the period 2018 to 2022 it will invest £36.6 million per annum in museums, which is 9% of the total national portfolio spend. It has also committed that from 1 April 2018 it will open up its redesigned grants for the arts funding programme.
There are some important elements in terms of the response to the review, and I welcome the museums action plan recommended by Mendoza, which I understand will be delivered by Arts Council England and the Heritage Lottery Fund by September this year. It will also be facilitated by DCMS, so perhaps the department is beginning to become more engaged. However, given the financial problems that many museums face, this is no guarantee of survival and we need to do more. As the noble Earl, Lord Clancarty, pointed out, the bare fact is that the Museums Association has stated that despite recognising the severe funding difficulties being experienced by many museums—the Government’s own figures show that local authority funding for museums in England was 31% lower in 2016 than in 2010—the report fails to identify any new resources or capacity to improve the sustainability of the sector, although, as the noble, Lord Cormack, has pointed out, the sums involved are rather small.
"This is no guarantee of survival and we need to do more."
— Lord Clement-Jones
There are funding issues that need tackling. When we were in coalition, a four-year pilot of operational and financial flexibilities for national museums to assist their capacity to generate commercial and philanthropic revenue and to operate efficiently was set up. What has been the evaluation of that pilot scheme? Much mention has been made throughout the debate of the importance of the National Lottery, but one of its founding principles was that there should only be one National Lottery. This is not the situation today. There is the Health Lottery, which is one in all but name. This damages its ability to raise funds for good causes, such as museums. What do the Government plan to do about that?
As a number of noble Lords pointed out, including the noble Viscount, Lord Falkland, we need to increase the appetite for philanthropic giving. There is kudos involved, but matched funding from public funds acting as an inducement is additional to that. A crucial lesson has been learned on the importance of investing in the teaching of fundraising skills. The Creative Industries Federation has argued that we need to incentivise greater corporate giving and we should consider something like the Rouanet law in Brazil, which allows companies to offset donations to the cultural sector against the corporate tax bill. There are a number of aspects that the Select Committee asked the DDCMS to work on in VAT business rates, tax incentives and so on. My noble friend Lady Grender talked of creative enterprise zones. Those are of course important.
What is the Tourism Industry Council now doing relative to museums? Why are museums not represented on it anymore? Will the tourism sector deal agreed as part of the industrial strategy encompass museums? There are many other issues that I could raise relative to museums. I hope that the DDCMS gets into hyperactive mode.
Peers criticize Ebacc
In a debate initiated by Lib Dem President Baroness Sal Brinton Peers, including myself decried the drop in creative subjects taken at GCSE as a result of the the the Government's EBacc measures which focus on STEM not STEAM i.e. the arts are excluded with all the consequent impact on the creative industries and the skills they need to develop.
This is the debate.
This what I said
The dropping by AQA of the history of art A-level forms an important part of the worrying context of the debate today. AQA said in its briefing that, although it recognises the huge importance of the study of the history of art, in the process of developing and obtaining accreditation for its new A and AS-levels in history of art, it had concluded that the new qualifications, developed from the Government’s criteria, would be extremely challenging to mark as a result of the large number and specialist nature of the options creating major risks when it came to awarding grades safely. I interpret this to mean that AQA’s decision to drop history of art A-level was partly based on the fact that there were insufficient experienced examiners. This rightly had the Sunday Times art critic Waldemar Januszczak choking on his carpaccio.
The second reason appears to be the low number of students taking the subject. As AQA said, these issues are exacerbated in the context of very low student entry numbers for these key stage 5 qualifications. Why is that? As my noble friend said, since the introduction of the English baccalaureate, we have seen a decline in the take-up of creative subjects. I shall add only one fact and figure to my noble friend’s dismal facts and figures: 21% fewer arts GCSEs were taken in 2016 compared to 2010. The provision of creative subjects has fallen most significantly in schools with a higher proportion of pupils on free school meals. It is clear that despite assurances by successive Secretaries of State for Education, the introduction of the English baccalaureate has sent a clear message to schools, teachers, parents and students about which subjects are seen as of value. For the sake of completeness, I should add that AQA is adamant that this decision is not driven by commercial or financial factors.
There is great concern at the decision to drop this A-level. The Association of Art Historians has commented:
“The decision to withdraw History of Art at Key Stage 5 marks a considerable loss to young people’s access to—and understanding of—a range of different cultures, artefacts and ideas”.
It also said that the symbolic space,
“the subject occupies within the school system is also fundamental in developing awareness of art history at undergraduate level and beyond”.
It is that “beyond” that creative industry leaders, in all disciplines, are worried about. These industries are grappling with some real issues, particularly skills gaps and shortages. For example, several creative occupations are currently featured in the tier 2 Migration Advisory Committee’s shortage occupation list, which is for non-EEA recruits. One can only imagine how this will look if there is a hard Brexit. Universities specialising in creative industries are keen to recruit their students from the widest pool possible, because talent and skills in these industries are at a premium.
There can be no argument about the importance of our creative industries. They are celebrated for outstanding economic performance in addition to their contribution to the UK’s culture and soft power. The Prime Minister herself has recognised our creative industries are a key strategic sector. For example, the success of UK television and film production, highlighted in official government figures last week as one of the,
“best performing sectors of the UK economy”,
which has helped to,
“maintain growth in a time of post-Brexit vote uncertainty”,
is attributed not only to the tax breaks that the sector enjoys but to the skills and talent base for which it is internationally admired. We simply cannot afford to lose this.
We need therefore to ensure that our education system supports the sector and that a good range of relevant creative subjects are taught in schools. As the Creative Industries Federation’s recent paper on the possible impact of Brexit, mentioned by other noble Lords, points out:
“Long-standing skills shortages in the creative industries stem from inadequate training and provision at schools … Brexit will compound this problem … It is crucial that education and training policy is formulated with a proper understanding of the needs of industry”.
How will the creative industries flourish if creative subjects are elbowed out of the curriculum? These subjects are opening horizons and signposting to possible careers. They can accelerate learning, attainment and success in students following a more traditional academic structure—including the so-called sought-after STEM subjects. My noble friend referred to the Creative Industries Federation’s other paper last month on the creative education agenda, which recommended four matters to the Government. It has done us a service with those recommendations. First, it says:
“Drop the 90 per cent target … The EBacc should not be the headline assessment measure for schools, but used as part of Progress and Attainment 8”.
Head teachers would be able to offer creative subjects as part of a balanced curriculum and it would send a clear message that the wide variety of skills and knowledge that they represent are important to our economy and our society. Secondly:
“Limit ‘outstanding’ to schools that warrant it”,
a point made, I think, by the noble Baroness, Lady Nye, and my noble friend. It goes on:
“A school must teach at least one creative subject, in lesson time, in order to be eligible for an ‘outstanding’ rating”.
Thirdly:
“Audit the skills gap … The Department for Education should conduct a proper audit of the skills and education needed by the creative industries as part of an industrial strategy”.
Fourthly, and finally:
“Adopt proper careers advice … The Government should work with industry to launch a sustained national campaign demonstrating the range of jobs in the creative industries and the subjects that lead to them”.
These are all sensible proposals and should be adopted. I look forward to the Minister’s reply.
Lord C-J calls for restriction on PSPO's
Back in the Summer buskers, civil liberty campaigners and many others protested about the increasing use of PSPO's a subject on which I have been campaigning ever since the Anti Social Crime and policing Bill became law.
See here
https://youtu.be/hI4oGE9JxSk
Recently I held a debate in the House of Lords to highlight the growing problem and the many examples where these powers had been used inappropriately and without proper authority or accountability. Our aim is to get the Government at the very least to change the guidance given to Local Authorities (the "Statutory Guidance") to make sure the powers are properly exercised and if that is enough to amend the original Act.
My Lords, I have for many years been passionate about the future of live music and am only too well aware that many of our most famous acts can have small beginnings, with many well-known artists starting their careers performing in small clubs and pubs or busking on the streets. It was for that reason that I promoted the Live Music Act 2012 and why, on my Benches, we became concerned about the impact of public space protection order powers under the Anti-social Behaviour, Crime and Policing Act 2014.
In response to concerns expressed by my noble friend Lady Hamwee on Report, the noble Lord, Lord Taylor of Holbeach, confirmed the importance of the statutory guidance, which would be consulted on. Ominously, he said that the essence was to allow councils maximum flexibility on the exercise of the new powers. That, I believe, is the root cause of the problem today.
Shortly afterwards, in January, I raised a Question in the House seeking further assurance on busking policy to make sure that local authorities would not resort to a PSPO before they had first exercised their noise-abatement powers. The noble Lord, Lord Taylor, said:
“The Government are certainly not seeking to restrict reasonable behaviour and activity, and we do not believe that these powers do. Live music and street entertainment play an important role in community life and can generate a positive atmosphere that is enjoyed by all”.
He also said:
“We believe that the tests and safeguards set out in the new anti-social behaviour powers will ensure that they will be used only where reasonable”.—[Official Report, 21/1/14; col. 571.]
In June of the same year, I raised issues regarding police attitudes to busking and received an equally positive reply from the noble Baroness, Lady Williams of Trafford, who I am delighted is replying to this debate. She said that,
“the Government are clear that appropriate busking can enrich a community’s quality of life and generate a positive atmosphere that can be enjoyed by many people”.
She also said that,
“we have undertaken … to include reference to busking in the guidance for the new anti-social behaviour powers for use by the police and others. This will be published shortly, in advance of the new powers commencing later in the year”.—[Official Report, 30/6/14; cols. 1531-32.]
Later in the year, in a different context, during the passage of the Deregulation Bill, both in Grand Committee and on Report, my noble friend Lord Stoneham and I pointed out the considerable powers that were already available to prevent noise nuisance. At the same time, we raised our continuing concern that public space protection orders would be used in a heavy-handed way. The Government, this time in the form of the noble Lord, Lord Gardiner of Kimble, gave assurances on both occasions that they were clear that busking can enrich a community’s quality of life and generate a positive atmosphere enjoyed by many people. But later he said:
“The Government do not start from the position that busking requires regulation and control”.—[Official Report, 11/11/14; col. GC 46.]
So right from the start we received a series of ministerial assurances about how the new PSPO would be exercised. Nevertheless, very soon, signs began to emerge of inappropriate use of the PSPO powers.
In February 2015, I asked an Oral Question about the operation of the Act and what use had been made of it to prevent or control busking. In reply, the noble Baroness, Lady Williams, said:
“We have made it clear in the statutory guidance for front-line professionals that they should not use the new powers to stop reasonable activities such as busking or other forms of street entertainment that are not causing anti-social behaviour”.—[Official Report, 12/2/15; col. 1354.]
Despite those ministerial assurances, it was becoming clear a year and a half ago that these powers were being used extensively in an inappropriate and disproportionate way. In fact, they were not just being used inappropriately to ban busking, they were being invoked for much wider purposes—for instance, to ban the homeless from the streets. In February this year, the Manifesto Club published its report, PSPOs: A Busybodies’ Charter, reflecting this, pointing out the extensive and disproportionate use of these powers and calling for proper limits to be placed on them.
In response to an Oral Question this February, I received yet more assurances from yet another Minister, this time the noble Lord, Lord Ahmad of Wimbledon. He said that,
“we have made it clear in the statutory guidance that anti-social behaviour powers should not be used against reasonable activities such as busking, where this does not cross the line into anti-social behaviour”.—[Official Report, 1/2/16; col. 1585.]
Despite a succession of assurances given over the years by at least four government Ministers, the problem of the inappropriate use of PSPOs worsens. Buskers are now falling foul of laws designed to break up dangerous public gatherings and risk being branded as criminals. The problem goes much wider. The Manifesto Club report shows that PSPOs are being used not only to criminalise busking but also the everyday lives of ordinary people, including the activities of the homeless, charity collectors, teenagers, skateboarders, parents dropping off kids at school and even those wearing head coverings.
Sefton Council’s ban on head coverings would include hats. Other councils, such as North East Derbyshire, have prohibited or are seeking to prohibit the carrying of golf bags, or the carrying of skateboards, as in Colchester. At least five have banned rough sleeping. Others, such as Gravesham Council, have prohibited lying down in public, which would prohibit lying on the grass or falling asleep in a public place.
At least six councils have banned or restricted music or street art. Hammersmith and Fulham Council has banned busking and public speaking in the area outside Shepherd’s Bush Tube station after 6 pm. At least 16 have created new criminal offences of loitering or congregating in groups in a public place. Hillingdon Council has prohibited people from gathering in groups of two or more unless at a designated bus stop, and Bassetlaw Council has banned young people aged 16 or under from standing in groups of three or more.
Kettering Council has banned skateboarding and created a curfew for under-18s, meaning it is now a crime for a 17 year-old to be out after 11 pm or before 6 am. In Oxford, the council has proposed a ban on any activity it judges makes people feel uncomfortable, and a city-centre PSPO has banned aggressive begging, street entertainment that causes a nuisance, remaining in a public toilet without reasonable excuse, and allowing dogs to enter any covered space. Hillingdon Council has banned noisy remote-controlled cars and pigeon feeding from its parks. Swindon Council has banned pavement art, thereby criminalising its resident and well-known pavement poet Danny Lake, even though 68% of the public voted against this.
So far, 80 councils have introduced PSPOs and more are threatening to bring them in. Police and local authorities, often based on the decision of a single official, and without consultation or a council decision, are throwing new orders about like confetti. A huge number of people are being dragged into the net of the criminal law. Clearly, the problem of improper use of these new powers extends well beyond busking: it is high time we took stock of this and amended the statutory guidance and, if necessary, the primary legislation, before our freedoms are eroded any further.
However, there may be a ray of sunshine. After my Oral Question last February, at the invitation of the noble Lord, Lord Ahmad, I, together with the Manifesto Club, the Kennel Club, Liberty, Keep Streets Live, the MU, UK Music, and others, wrote to him and his then Home Office colleague, Karen Bradley, to set out the current issues and demonstrate why changes are needed to the legislation and statutory guidance. Karen Bradley—now, I hope, in her new role stoutly upholding the rights of street performers and their contribution to local culture—wrote back defending PSPOs and the procedures used. She did, however, offer to consider amending the statutory guidance, and I replied in July, setting out what campaigners believe are the key problems and the changes needed to solve them. Let me spell these out.
First, PSPOs are targeting activities that are not in themselves harmful. The most problematic examples have banned activities that do not in themselves cause significant public nuisance or harm, such as rough sleeping, begging, loitering, standing in groups, swearing or skateboarding. We want to see a much stronger test before powers are used. PSPOs must target only activities that are causing significant public nuisance or harm; councils should not be able to use them for activities that some people just find annoying or unpleasant.
Secondly, the majority of PSPOs are being passed by single council officers. The Manifesto Club’s research found that out of the 56 councils that have passed a PSPO and provided data, half—that is 28 councils—have done this. Seventeen councils—30%—passed the order through a committee, but only nine—16%—passed it through a decision of the full council. They must be passed only after a debate of the full council and not based on decision of a single officer.
Thirdly, PSPOs are not being consulted on adequately. Although most councils have held a public consultation, in many cases these have been of extremely low quality. There must be a requirement for proper consultation, so that they cannot be imposed having asked just a few vague questions of residents.
Fourthly, the grounds and methods of appeal are too limited. We believe that the Government intended that these powers should be partly checked through the courts. There should be a much better right of appeal. Currently, appellants have very narrow grounds to appeal to the High Court, only six weeks to appeal and have to bear all the costs if they fail. The grounds of appeal should be expanded to something more like the test for judicial review, which would allow the worst cases of unreasonable PSPOs to be challenged and checked in the courts.
I am sure that we are here in the area of unintended consequences. Given Ministers’ assurances, I am sure that they did not intend the Act to be used in this way—banning rough sleeping, placing curfews on teenagers and so on. It is urgent and vital that they recognise that there is a fundamental problem with the Act. This may or may not be resolvable by changes to the guidance. I hope that we are making some progress and that amendments to the statutory guidance are being drafted as we speak but, in the light of the history of ministerial reassurances on this, I do not take anything for granted. I should like to hear specifically what is proposed.
Hence this debate about how the Government plan to ensure that these powers are invoked and exercised in an accountable, appropriate and proportionate manner: to find out whether demands for change, particularly to the statutory guidance, will be met. We cannot have local authorities and police services cracking down on our culture, ripping out the heart of our town centres and destroying the vibrancy of our local communities.
I have a note here from the Salvation Army. It states:
“Thank you for sponsoring a debate on the operation of the 2014 Act. We have had three of our front line locations raise concerns about the way in which Local Authorities are using Public Space Protection Orders in connection with homeless people spending time in public spaces … We would ask that government clarify their guidance to Local Authorities saying that PSPOs are not to be used to disperse homeless people rather than engage with them”.
I hope the Minister can today give cast-iron guarantees that the Government intend to make vital changes and will see them through.
Lord C-J: Blueprint for Creative Industries needed post Brexit vote
I am seriously concerned like many others for the future of the creative industries after the Brexit vote in the referendum. Here is what I said in the Lords debate:
Last weekend I took part in the March for Europe from Park Lane to Parliament Square. It consisted largely of young people and families, all utterly concerned about and opposed to our leaving the European Union. All of them up to that point had seen their identity as bound up with Europe and now see an uncertain and more isolated future. I could not help reflecting while on the march on how my generation had let theirs down by voting in the way that it did and on how many in politics had failed to deliver a more positive message about the benefits and impact of being in the EU over the years, or to create a fairer society of the kind so well outlined by my noble friend Lady Manzoor yesterday and by the most reverend Primate. But whatever our regrets, we cannot afford to sit back and be buffeted by the consequences of Brexit. We need a steely determination to make the best of it and demonstrate to the no doubt overwhelmed Brexit unit how we can mitigate the risks and take the opportunities that arise.
Our tech, digital and creative industries currently punch way above their weight globally. We now need to develop a blueprint to show how they can continue to thrive despite not being in the EU and despite the uncertainties of the exit process, so they will be able more than ever before to benefit from the UK’s creative skills and culture. This depends on the UK in general and London in particular remaining a global hub for creative businesses. The essence of this is our continuing ability to retain, recruit and develop the best and most diverse talent from around the world.
Our film and video games studios, publishers, advertising agencies, music recording facilities and design and post-production houses depend on this flow of talent, failing which other locations within the EU—eastern and central Europe, for example—will appear more attractive. It would be deeply damaging if we or the EU erected barriers equivalent to those in the US, which mean that many UK musicians who plan to perform there find that visa-processing problems mean cancelled tours and postponed engagements. The truth is that the lack of free movement of talent will mean a less creative and diverse culture in the UK and will spell danger for the UK as a creative hub.
Individual parts of the creative sector have many unknowables. Will advertising services, that powerhouse of our creative economy, be subject to EU barriers when sourced from the UK if we are not in the internal market? Activities carried on by the audio-visual group are particularly vulnerable. The audio-visual media services directive has, since 1989, had a major impact by limiting applicable regulation to the country of origin. Almost a quarter of its exports are to the EU. It risks being caught between being unable to relocate production as it would fail to qualify as a British product—but, if so, not being treated as EU content. Once the UK is outside the EU, unless we specifically achieve a negotiated deal, the UK will no longer be able to come within the quotas applied by other European countries for their television broadcast services, which in some cases are as high as 70%.
In funding this type of product, every market matters, and if the EU falls out of the equation it could well mean that investment is no longer forthcoming to the same extent. Amanda Nevill, CEO of the BFI, has also warned of the impact on independent film-makers of the loss of EU funding from the Creative Europe programme. This adds up to the need to put in place at the very least greater government support for investment in these audio-visual products.
Then we have the digital economy, which is a vital part of our future. The digital single market being developed by the EU up to now was seen to be a cornerstone for the future of our tech and creative industries. We will now lose our influence on how regulations and intellectual property reforms are shaped, especially as regards the exceptions to copyright protection which are being developed.
We may also need to adopt safe-harbour provisions of the kind currently required between ourselves and the US in respect of data. Then there are the resources that will be needed now by government here and overseas through our diplomatic and consular services and UKTI in counteracting the impact of Brexit and, as Sir Martin Sorrell has said, targeting fast-growth markets. We need to redouble our efforts to promote Britain as a place to invest in, partner and do business with, especially in the creative industries. Just boosting the budget of the GREAT campaign will not be enough.
When we are outside the EU state aid rules, there may well be some opportunities through improved tax incentives to counteract some of these risks and to maintain the attractiveness of the UK as a destination for the creative industries. But I can see many other industries clamouring for special treatment, too.
I will continue to fight for the closest possible relationship with the EU. But what we need for this sector, as for others, is a cool appreciation of the actions we need to take and the deals we need to do to safeguard them. I am pleased that the Creative Industries Council is taking on this task, constituted as it is largely by a wide range of private sector players in the creative and digital industries, including television, computer games, fashion, music, arts, publishing and film, but co-chaired by Ministers from both BIS and the DCMS.
The Ministers and departments sponsoring our tech, digital and creative industries must immediately, as a priority, start working with the Brexit unit and with Justine Simons, the new deputy mayor for culture and the creative industries in London. It is vital, as she said last week, that we,
“maintain the flow of ideas and creative talent and shore up our cultural economy”.
I sincerely hope that this Government, whoever heads it, take heed of those wise words and recognise the importance of these industries to our future.
Lord C-J promotes Agent of Change amendment to save Live Music Venues
Following my debate on the future of threatened live music venues last December, on the Committee stage of the Housing and Planning Bill I called for the introduction of the Agent of Change Principle into planning law as follows|:
"Some of the concern about the fate of live music venues derives from a report, London’s Grassroots Music Venues Rescue Plan, produced last year by the Mayor of London’s Music Venues Taskforce, which suggested that while London’s music industry is generating billions of pounds for the economy, a vital part of this important cultural as well as economic sector is under threat. The task force, set up by the mayor last year and chaired by the Music Venue Trust, undertook an audit of grass-roots music venues and found that from 2007 to 2015 London had seen the number of spaces programming new artists drop from 136 to just 88.
The situation was mirrored more recently in UK Music’s Bristol live music census, published only this month by Bucks New University. It found that 50% of the city’s music venues were affected by development, noise or planning issues. Those issues pose a direct threat to the future of Bristol’s vibrant ecosystem, which generated some £123 million towards the local economy in 2015 and supported 927 full-time equivalent jobs. So it is an important issue in both those localities and not confined to the metropolis.
One problem faced by live music venues arises when residents move in to an area where noise is emanating from long-standing music venues. The residents make complaints about the noise, and, despite the fact that in most cases the volume levels have remained the same for many years, a complaint has to be dealt with by the local authority and often results in additional licensing restrictions. Such restrictions can limit the venue’s ability to generate income and can be extremely costly to put in place, so this is a major issue when new residents move in and are affected by existing venues.
The London rescue plan advocates, among other policies, support for what is called the agent-of-change principle, and this is reflected by these two amendments. The agent-of-change principle puts the responsibility for noise management measures on the agent of change—that is, the incoming individual or business. This could be a resident moving into a flat near an existing music venue, or a developer that is building a new music venue near an existing residential building. The principle has already been adopted elsewhere—for example, in parts of Australia and the United States—and is proving successful. At present, developers have no legal obligation to sound-proof new residences, forcing developers to spend significant amounts fending off noise complaints, abatement notices and planning applications. The Music Venue Trust has warned that the Government’s 2013 amendments to permit offices, car parks and disused buildings across the country to be converted to residences without planning permission have made the potential situation for venues even worse.
The genesis of these amendments to the Bill is that they were tabled in Committee in the Commons. It appears that Ministers were sympathetic to the case being made but did not, at the end, accept the amendments. Amendment 99 would ensure that residents of buildings converted to residential use are protected from factors, particularly noise, affecting their amenity and enjoyment when buildings are converted to residential use by virtue of a general permitted development order. Such measures would become the responsibility of the agent of change of the permission. Amendment 100 would ensure that residents of buildings converted to residential use are protected from factors, particularly noise, affecting their amenity and enjoyment. Such measures would, again, be the responsibility of the agent of the change of the permission.
Things have moved on since the debate in the Commons. A letter dated 10 March was sent by Brandon Lewis, the Minister for Housing and Planning, and his colleague the Minister for Local Growth and the Northern Powerhouse. It indicates that the Government are amending the permitted development right to include a provision to allow the local planning authority to consider noise impacts on new residents from existing businesses in the area. This is a significant change in the current position. I very much welcome the contents of that letter and I believe that the necessary regulation has now been laid. It is worth quoting part of the letter:
“From the 6 April, a developer will be required to seek prior approval from the local planning authority in relation to the noise impacts on new residents before a change of use from office to residential can be carried out under permitted development. It will in effect allow local authorities to take account of national planning policy and guidance on noise, in a similar way to a planning application, as well as any material concerns raised by owners of music venues in relation to noise. This will help to ensure that before residents move into new housing in close proximity to well-established businesses, including music venues, local authorities are able to require the applicant to put in place noise mitigation measures where appropriate”.
That is all very welcome, but there are quite a number of questions about how this is to be interpreted when the new regulations come into effect on 6 April. For example, is there any intention to apply these regulations to situations where new build as opposed to conversion takes place? If not, why not?
This change is also being effected by secondary legislation not primary legislation and is in fact only guidance. That means that, essentially, this is exhortatory to local authorities as I understand it. It allows them to—but does not necessarily mean that they have to—take into consideration the principle of the agent of change. I would very much like clarification from the Minister about the interpretation of that particular change envisaged on 6 April. If it is only exhortatory, it very much means that local authorities will not arrive at a common position on these cases and in many areas there will still be a threat to music venues.
This territorial application is to England only and not to any other part of the country. Are the Government having any conversations that might take this more widely in other devolved Administrations? Is there any retrospective or transitional element to the guidance? Where relevant permitted developments have been granted in the three-year trial period for when protections for noise were not provided, would venues be entitled to pursue compensation if forced with closure if residents complained once they move in? There are some welcome elements, but there is still some uncertainty surrounding what is proposed and I look forward to what the Minister has to say."
This is what the Minister, Baroness Williams of Trafford, said in reply:
[ these] Amendments would insert into the Bill requirements on local authorities and others where there are already appropriate protections in national planning policy and guidance to address these issues. National planning policy already incorporates elements of the agent-of-change principle by making it clear that existing businesses wanting to develop in continuance of their business should not have unreasonable restrictions put on them because of changes in nearby land uses since they were established.
The Government recognise concerns about the impact of new residents moving into an area with an established live music venue. As the noble Lord said, my ministerial colleagues met industry representatives in January to discuss this matter. We have responded to their concerns by including a provision in the office-to-residential permitted development right. This enables local authorities to ensure that mitigation measures address noise impacts from existing businesses on the residence. It will both help to protect residents’ amenity and to ensure the sustainability of established businesses.
The noble Lord asked about Scotland and Wales. Of course, planning is devolved there. He also asked if there is a plan to apply new prior-approval measures in relation to noise impact to new builds and not just to buildings undergoing a change of use. The permitted development rights take effect on 6 April and apply to changing the use of buildings from office to residential. The application for new build residential property will be considered under the NPPF, which incorporates elements of the agent-of-change principles. The noble Lord also asked if the regulations will only allow local authorities to take noise into account, not oblige them to do so. The regulations allow local authorities to take account of noise where it is relevant rather than obliging them, because that would be an inflexible requirement."
This was my response:
" I am afraid that even as regards Amendments 99 and 100, the Minister has only a partially satisfied customer. As my noble friend has said, it is important that we look in a rather more granular fashion at some of the points that I have raised, particularly on the retrospective aspects and the difference between guidance and putting this on to the statute book.
I am concerned about precisely the point mentioned by my noble friend, which is the example of The Fleece in Bristol, where the local authority played a perfectly proper role. It took account of the NPPF and so on, but in the end it was the Planning Inspectorate that was the real problem. If the local authority is allowed to consider noise impact and then does so, what is the difference between that and the inspectorate perhaps being free or not to take that into account, and therefore it does not impose the same conditions as the local authority? Would it be different if we had something rather more obligatory on a local authority? Would that impose a higher duty on the Planning Inspectorate in those circumstances, thus avoiding the situation that The Fleece found itself in?
I am rather concerned about how strong this particular guidance is going to be. I recognise that the principle is floating around, but how much of a fix do we have on it in order to make sure that the future of our music venues is protected? I am not going to go any further at this time of night, but I would welcome a fairly detailed letter from the Minister. "
So let's see what kind of letter answering the questions is produced!
Lord C-J debates the future of the BBC
Immediately before the publication of the Green Paper (BBC Charter Review Public Consultation) the House of Lords briefly debated the issues raised by the Chancellor's Budget decisions on the licence fee and the implications of leaks from the DCMS about the future of the BBC. This is what I said.
We have just witnessed a smash-and-grab raid. As five years ago, the Chancellor has treated the licence fee as a piggy bank. The director-general has had no alternative but to look cheerful about it, and all the while the Murdoch press gleefully gets government exclusives. I share the disappointment expressed by Rona Fairhead in her letter to the Chancellor last week about there having been no public debate at all about the licence fee. I think the CMS Secretary’s former colleagues on the Select Committee will be astonished, too.
Despite this, there are still major uncertainties. A Perry report recommendation to decriminalise could have an impact of £200 million. The CPI settlement now also appears conditional. We now at least have a debate going forward about the scope of activity of the BBC and the appropriate form of governance for the BBC, but the Secretary of State for CMS and the Chancellor seem to be in disagreement about whether the BBC should continue with popular programming. There is much talk of the BBC’s online presence but, as the example of Channel 4 shows, younger audiences are increasingly migrating to the internet, catch-up and streaming for television consumption.
There are issues to be discussed. In particular whether the BBC should or could move to a publisher broadcaster model. On the trust, my colleagues and I have never felt that the current structure properly resolves the issues of responsibility for the regulation, governance and management of the BBC. Like the CMS Select Committee, I would favour handing responsibility for regulation, including service licences, to Ofcom, as well as the existing responsibility for the public value test. We must have an open debate, and I ask the Minister: is the Green Paper on track for this week?
It is good that the BBC is mustering its supporters despite the sniping of the Murdoch Press and no doubt we will be intensively debating the issues in the months to come.
I also took part in the subsequent debate on the Question asked by Lib Dem colleague Baroness Grender focusing in particular on the Advisory Panel appointed by John Whittingdale the Culture Secretary which
- will meet frequently and contribute significantly to the Government’s charter review
- yet it has no terms of reference,
- will not take its evidence in public,
- and is not subject to appointment by reference to the Nolan principles.
As I said it is no surprise that even Tory peers described them as “assistant gravediggers” (Lord Patton) —and "they clank with special interests" (Lord Fowler)
http://www.publications.parliament.uk/pa/ld201516/ldhansrd/text/150917-0001.htm#15091736000665
The Future of the BBC was also debated by the Liberal Democrats at our Conference in Bournemouth and we will all be keeping a close eye on the review as it unfolds.