Memorandum submitted by the Association of Circus
· The experience of the Licensing Act on circuses has been one of unremitting expense, unnecessary bureaucracy and a level of inflexibility which severely restricts the operation of a small industry. It cannot be acceptable that, out of the leisure and entertainment sector, circuses alone should be subjected to such excessive expense.
· Licensing has not added anything to Health and Safety requirements and circuses are subject to the same Local Authority inspections as they were before the Act.
· Licensing has brought no public safety gains; circuses, unlike theatres and many other forms of entertainment do not (with one occasional exception) sell alcohol at their performances.
· The administrative burden placed on circuses under the Licensing Act is far greater than that placed on permanent premises and is out of all proportion to any possible benefits to the community from the licensing of an activity which never previously caused any problems.
· The financial burden placed on circuses is severe and cannot be justified; the main financial burden arises from the inflexibility of the licensing system.
· Many Licensing Officers do not understand why there needs to be the licensing of circuses when there had not been a problem in the past.
· It is inexplicable that circus, a traditional family touring entertainment, is licensable under the Act when fairgrounds, the other traditional form of travelling entertainment, are not.
· Simple administrative and/or legislative solutions exist to address this issue and these are outlined in Section 14 below.
1. The Association of Circus Proprietors (the ACP)
The ACP, founded
in 1932 and being a Registered Employers' Association, is the recognized trade
body for the circus industry in
2. The Circus industry
Members of the ACP operate with circus tents having a seating capacity ranging from 250 to 1,000 people, although most are in the 600 to 1,000 seating capacity range but this capacity will only occasionally be reached. Most touring circuses operate a season from early March to early November, visiting a different town each week and sometimes, in the country areas, visiting two towns in a week. Most circuses will visit approximately 40 different towns in a season. The tour of the circus, (the route) is carefully planned by booking the circus sites two or possibly three years in advance and is then arranged in a sequence which minimizes the journeys between towns and takes into account the nature of each of those circus sites, eg. to fit round local events or to ensure that a site which is a local authority park is used in the summer months when the ground is hard. Health and Safety at travelling circuses, both as a place of work, and more importantly as a place of public entertainment, are the responsibility of the District Councils and the London Boroughs and most weeks circuses will undergo an inspection by the authority's Environmental Health Department. Circuses, unlike theatres and many other forms of entertainment do not, with one occasional exception, sell alcohol at their performances. Circus performances end some time between 9.30 and 10.00 pm.
3. Licensable Premises used by Touring Circuses
Circuses use their own tent, seating and equipment which they bring on to the circus site. These sites may be parks or other open spaces owned by local authorities or may be privately owned sites such as race courses, exhibition grounds etc.
4. Circuses Pre the Licensing Act 2003
Prior to the Licensing Act, circuses were, and had always been, an unlicensed entertainment. The most recent statutory authority for this was in the Local Government (Miscellaneous Provisions) Act 1982 and the London Government Act 1963. There is no record of the absence of licensing having caused any problems or any suggestions that circuses needed to be brought into a licensing system. Circuses are essentially a sedate family entertainment and similarly there is no record of them causing a nuisance. Local Authorities were content to rely on their powers of inspection of circus tents under the Health and Safety legislation.
5. Consultation on the Licensing Act 2003
In 2000 the ACP, as the consultative body, received the consultation document on licensing "Time for Reform; Proposals for the Modernisation of our Licensing Laws". The ACP asked The Home Office if it now intended to license circuses and received a response that The Home Office had not considered circuses. After the then position on absence of licensing was explained The Home Office responded in writing that it did not plan to include circuses in the scope of the White Paper or any future legislation. The ACP relied on that statement and made no further comment. When the draft Licensing Bill was published it was found that it was unclear from the definitions whether circuses were caught by the Bill but surprisingly there was no specific exemption for circuses. Initially letters to the Government went unanswered but eventually the DCMS which then had responsibility for the Bill responded that the Government had changed its mind and was now proposing to license circuses although not fairgrounds. Unfortunately, it had failed to inform the industry and there had been no opportunity to make representations. The Government had failed to follow the procedures laid down in the "Principles of Good Regulation (2000) or the Cabinet Office "Code of Practice on Written Consultation". The DCMS refused to consider amendments to the Bill and circuses, without their knowledge and without notice or consultation had, for the first time, been brought in to a licensing system.
6. The implications of the Licensing Act 2003
Although there is no specific reference in the Licensing Act to circuses, or authority for licensing them, the DCMS in its Guidance Notes issued in July 2004 advised Local Authorities that aspects of a circus performance amounted to regulated entertainment and circuses were licensable, although this interpretation is far from clear in the wording of the Act. Circuses which were using a different open space for one week in most of a year were brought into a system which was designed to license permanent premises where the primary objective for most of them was the sale of alcohol.
7. The Administrative Impact of the Licensing Act 2003
Circuses, to their surprise, found that they now needed to apply for a licence for every site they were intending to use. In most cases these had to be full premises licences because the number of people and trading days permitted under a TENS is inadequate. Many circuses tour the country on a three year cycle which meant that, in the course of that cycle, they needed over one hundred licences. The DCMS was not clear as to whether, if it was the site, the open space, which was to be licensable or the temporary structure, the tent. The DCMS referred to compliance with Health and Safety requirements but it was pointed out that the circus was already subject to stringent Health and Safety inspections from the Local Authorities. The DCMS encouraged Local Authorities to license their own sites for the benefit of circuses but the take-up was small as many Local Authorities either did not have the time to do it or did not want the responsibility of holding the licence or were unclear as to what the requirements were, in licensing terms, for a circus. This immediately gave rise to practical problems. Circus tents are subject to wear and tear and need periodic replacement. While all circus tents are similar, individually the replacement tent can be slightly different which leads to slight changes to the internal lay-out of the seating, etc. ACP members have, in many cases, come to an arrangement with the local licensing officer that drawings of the tent would be submitted for approval not less than 28 days before the actual visit but like every other aspect of the licensing of circuses this isn't satisfactory. Most circuses are comparatively small family run businesses where all of the administration is carried out in a caravan. The burden of dealing with the volume of paper work involved in multiple premises licence applications on people who are essentially practical, rather than administrative, workers is intolerable. The procedure requires notice of the application to be fixed to the premises which is not a problem in the case of a public house but is extremely difficult to comply with in the case of an open space. The notices which need to be fixed to trees or fences are an immediate target for vandalism and if they are displayed at height so as to be out of reach then the public can't read them. At the time of the application the circus may be operating 200 miles away and has no means of checking whether the notices are still displayed. The administrative burden placed on circuses under the Licensing Act is far greater than that placed on permanent premises and is out of all proportion to any possible benefits to the community from the licensing of an activity which never previously caused any problems has achieved. The ACP feels strongly that if the Government had followed the consultation progress these practical difficulties could have been addressed.
8. The Financial Impact of the Licensing Act 2003
The financial burden placed on circuses is severe and cannot be justified. Circuses have the expense of applying for numerous premises licences because they use a different site each week and often different sites in the following year whereas public houses, etc. have the benefit of having to make only one application. The cost in both time and money spent by a circus proprietor in completing the lengthy application form, the publishing of the advertisement in the local press and displaying notices round an empty circus site which may be a considerable distance from where the circus business is then operating or paying to have these services carried out by a third party is unfair and is an additional cost which circuses are struggling to pay. However, the main financial burden arises from the inflexibility of the licensing system. A circus may have booked a particular site two years previously and two months before its visit will have been arranging and paying for publicity. The season of 2008 was marred by torrential rain particularly in the summer months when circus sites were expected to be dry and hard. There were numerous incidents during that year of circuses being told by the site owner only one or two days before the visit that the site could not be used because either it was water logged or was so soft that there would be irreparable damage caused by heavy vehicles. The circus was faced with an unacceptable dilemma. In previous years it would have looked to make a last minute change within that town to a site such as a football ground car park which, while not being as ideal, would have enabled them to trade for that week. As a result of licensing, it was impossible to move to an alternative site because there was insufficient time to serve notice of a licence application, even if the TENS procedure was used. The circus could not move to a different town because there had been no display of posters or other publicity for that week. As a result there were weeks when various circuses were unable to trade and had no option but to remain parked for the week. This meant that money taken in advance ticket sales had to be refunded and members of the public were left disappointed. The various expenses of staff and artistes' wages remained the same which led to the circus making a substantial loss for that week. It cannot have been the intention of the licensing legislation to prohibit trading because it had rained heavily. In those situations where a circus was allowed to use a wet or waterlogged site it has been faced with substantial claims for reinstatement of the surface which have effectively brought that week's trading into a loss when, without the licensing restrictions, the circus would have moved to an alternative site. In relative terms the financial impact on circuses must be far greater than any other industry sector that licensing now encompasses.
9. Temporary Events Notices
The TENS procedure may at times provide some assistance to circuses who need to change site but for the following reasons this is very limited. A temporary event requires 10 working days notice but this period of notice is too long for the circus to be aware that its intended site is not usable; a temporary event is limited to 500 people including staff and artistes but most circuses need to attract a larger audience than this, particularly at weekends, in order to cover their expenses for that week and a temporary event is limited to 96 hours but circuses traditionally trade and will have advertised to do so, for 6 consecutive days in each week.
10. The Licensing Authorities
Circuses have now had to contend with licensing for almost three seasons and the lack of consistency in the way the legislation is applied is of concern. It must be noted that many Licensing Officers are extremely helpful and sympathetic to the plight of circuses and note that the obligation to license circuses is not clearly contained within the Licensing Act but arises from guidance given by the DCMS outside of the Act. Many of them do not understand why there needs to be the licensing of circuses when there had not been a problem in the past. Now that Licensing Officers have seen how licensing is working, a steadily growing number of them are taking the individual view that circus is not a licensable entertainment. While this view is welcome it leads to chaos as a circus may be subject to licensing in one town but exempt when visiting another town only six miles away. The ACP does not sense there is much enthusiasm from licensing officers for the licensing of circuses.
11. The Application of the Licensing Act 2003
Although the DCMS insists that circuses are licensable there is no specific reference to circus in the Licensing Act and it is difficult to understand where circus falls into the various categories of regulated entertainment. The inclusion of circuses is tenuous but the DCMS insists that the correct interpretation of regulated entertainment as set out in the Licensing Act makes circuses licensable.
Regulated entertainment comprises:-
Performance of plays - It is suggested that a clown act may be a play but a display of jugglers' skills would not be licensable.
Live and recorded music, unless it is incidental - circus music must be incidental as the public pay to see the performance, not to listen to the music
Dance performances - do the actions of the juggler's assistant sufficiently amount to dance to make it regulated entertainment?
Any entertainment similar to live music, recorded music or dance - it is not accepted that circus is similar to any of these
Films - this cannot apply
Indoor sporting events - there is nothing competitive about a circus performance
Boxing and wrestling matches - this cannot apply
It has to be asked why circus as a traditional family touring entertainment is licensable in order to achieve the Licensing Objectives as set out in the Act when fairgrounds, the other traditional form of travelling entertainment, are not licensable.
12. The Circus Industry's Experience of Licensing Under the Licensing Act 2003
The experience has been one of unremitting expense, unnecessary bureaucracy and a level of inflexibility which severely restricts the operation of a small industry. It cannot be acceptable that out of the leisure and entertainment sector circuses alone should be subject to such excessive expense. They are faced with an intolerable administrative cost which is out of proportion to what is achieved and through the inability to change circus sites at short notice they may be denied the opportunity to trade.
Why is there now a need to license circuses?
· Do circuses sell alcohol? - No.
· Do circuses attract an unruly element or create disturbances? - No. Circus is a family entertainment where people enter a tent, sit and watch a performance before leaving two hours later.
· Do circuses cause a nuisance in the community? - No. Circus performances finish before 10pm.
· Were there reported difficulties with circuses prior to licensing? - No.
· Has there been any increase in Health and Safety supervision in circuses? - No. Licensing has not added anything to Health and Safety requirements and circuses are subject to the same Local Authority inspections.
· Did the Government consult with the circus industry before it imposed licensing on circuses? - No.
· Does the Licensing Act 2003 make proper provisions for the licensing of a temporary structure which may be used within a different authority each week? - No.
13. The Unfair Treatment of Licences Under the Licensing Act 2003
Circus as a travelling entertainment business is being made to comply with legislation which is designed for permanent premises. This cannot have been envisaged when the legislation was drafted and has produced a situation where one sector of the leisure and entertainment industry is being unfairly disadvantaged by an unnecessary administrative burden, costs which are out of line with those paid by other members of the industry who are required to license premises only once and the imposition of an inflexible system which can restrict the ability to trade while not producing any tangible benefit.
14. How Could Circuses be Treated Fairly?
Frequent meetings have been held with officials at DCMS and with ministers. The department now accepts that there is a disproportionate burden on circuses under the Act, but has so far taken no significant steps to address this very real problem. The ACP has proposed to the Department four possible ways of ensuring that circuses are released from the present financial burden of licensing and are treated more fairly:-
1. The DCMS accepts that its original interpretation, as set out in its Guidance issued under section 182 of the Licensing Act 2003, which states that "in the case of a circus, music and dancing are likely to be the main attractions themselves (and would be regulated entertainment) amidst a range of other activities which are not all regulated entertainment" is, on further consideration, unsound because any music played at a circus or element of dance within a display of circus skills is ancillary to what is not otherwise regulated entertainment. The position could then be rectified by the issue of amended Guidance without the need for further legislation.
1. The DCMS accepts that in the absence of any specific reference to circus in The Licensing Act, traditional circus does not fall into any of the categories of regulated entertainment and as the present system of licensing has not been seen to produce any benefits, circus should be exempt from licensing.
2. There is introduced a form of travelling license similar to the one which is available to cruise ships under the Licensing Act 2003. This could provide for a licence to be issued by the home authority where the circus has its permanent address and is produced either on demand or with a stated minimum amount of notice to the Local Authority where the circus is to trade.
3. The creation of a new class of Temporary Event Notices for events which do not involve the sale of alcohol and which finish no later than 10pm. These events would permit a maximum of 1,000 people and would cover a period of a maximum of 6 days. The required period of notice would be reduced from 10 working days to a more practical period of, say, 5 working days.