Memorandum submitted by the Association
of Circus Proprietors of Great Britain
EXECUTIVE SUMMARY
— 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 Great Britain. It is the organization consulted by
the UK Government and Regional Assemblies as well as other bodies
such as the HSE on matters relating to circus. It includes in
its membership most of the established touring circuses in the
UK from the very largest to some of the smaller circuses. The
ACP is seen as the lead body for circus and much of its work benefits
the whole of the industry and not just its members.
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.
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.
2. 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.
3. 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.
4. 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 six days.
The required period of notice would be reduced from 10 working
days to a more practical period of, say, five working days.
September 2008
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