Examination of Witnesses (Questions 146
- 159)
TUESDAY 28 OCTOBER 2008
MR MALCOLM
CLAY AND
MR MARTIN
BURTON
Chairman: For the second part of this
session we are now going to look at the specific impact of the
Licensing Act on touring circuses and I would like to welcome
Malcolm Clay, the Secretary of the Association of Circus Proprietors
of Great Britain and Martin Burton, the Founder and Director of
Zippos Circus. Adrian Sanders is going to start.
Q146 Mr Sanders: Martin—or
Zippo!—welcome. You say in your submission that the government
changed its mind on whether or not circuses should be licensed.
Has it been explained why?
Mr Burton: It has never been explained
why at all. We received a letter a long time before the Licensing
Act 2003 from the Home Office saying that circuses would not be
drawn into licensing and we more or less therefore took it off
our radar and at the very last moment it appears that circuses
would be brought within the Act. We had no time by then to consult
or be part of the process of consulting with the people who were
drawing up the Act.
Q147 Mr Sanders: You have also disagreed
with the government's view on musical entertainment. Would you
like to explain a bit more on that; that you differentiate musical
entertainment within a circus to say how it is treated in a fairground?
Mr Burton: No, I think that music
in a fairground is incidental, I can appreciate that; and I think
by and large that music in a circus is incidental: that is, a
juggler can still juggle without any music accompanying him and
a trapeze artist can still make his or her tricks on the trapeze.
The music, I believe, is incidental. The days when you might have
a poster that said, "Zippos Circus featuring lions, tigers,
elephants and Harry's Big Band of 14"—we do not advertise
the music on the programme. In fact you will find, as I was reminded
only this morning, it is quite difficult to find out the names
of the pieces of music that might accompany various acts because
very often if it is a live band it is something that is more or
less improvised. So I think that the music is quite incidental
and, as we proved recently, in Birmingham, you can do it without
music—it is not necessary.
Mr Clay: Could I explain that
before the introduction of the Act circus was an unlicensed entertainment
and the authority was two-fold: in the provinces there was a specific
statutory exemption for circuses from entertainment licensing;
in the London boroughs it was by decided case, where it was held
that the music played at a circus was ancillary to the entertainment,
so that circuses were never licensed when they performed within
the London boroughs, on the basis that the public did not buy
circus tickets to listen to the music—they watched a performance.
I think the gent said at the time that the lady dancing on the
back of a bareback horse may have been performing to music but
it was the performance of the lady that the public were paying
to see and the music was only incidental to that.
Q148 Mr Sanders: I find it difficult
to understand a circus without music. You said you had a performance
without music in Birmingham?
Mr Burton: I had some well publicised
complications in Birmingham quite recently, in which they asked
us to remove the music for certain acts and we did so without
detriment.
Q149 Chairman: One of the purposes
of licenses is that if an event is to be held at which a very
large number of people are expected to attend then there are potential
problems in terms of traffic congestion, in terms of the possibility
of some kind of disorder or certainly crowd management and is
it not therefore the case that with a circus which might attract
a large number of people to each performance they should at least
tell the local authority that this is going to happen and that
the local authority should have the opportunity to maybe impose
some conditions?
Mr Clay: Traditionally local authorities
have always been aware that a circus was visiting and I think
this is borne out by the fact that prior to licensing we had very
strict health and safety inspections which were undertaken by
the local authority environmental health department. Fairgrounds
are inspected by the HSE but circuses are inspected by the local
authorities, and we must be possibly the only business that was
being inspected on a weekly basis by environmental health because
in every town that we went to inevitably the inspector would turn
up and he would look at what we call the travel distances within
tents—that is the point from perhaps the furthest seat to
perhaps the public exit from the tent; look at fire precautions,
extinguishers, etcetera, where people were perhaps likely to trip.
So we have never traditionally had a problem with the local authority
not being aware that we were in the town; and of course the whole
of the circus industry is very publicity orientated, and if the
locals did not know that we were there then you would not get
the crowds that you were perhaps envisaging.
Q150 Chairman: You said that prior
to the Act you were not licensed but that during the passage of
the Act you were given reason to believe that you would be exempt.
Can you set out to us exactly why you felt you were told that?
Mr Clay: The correspondence was
with me as the Secretary of the trade body. When the Licensing
Act kicked off it was with the Home Office and I received the
consultation document from the Home Office, the name of which
is something like Time for a Change. I immediately wrote
to the Home Office and said, "Are you suggesting that circuses
are now going to be brought into licensing?" and the response
was, "We do not know." I then wrote to the Home Office
with a full explanation of why previously we had not been licensed,
whether it was in the London boroughs or in the provinces. I then
got a second letter from the Home Office saying, "Thank you
for the explanation"—I do not think the Home Office
really understood what the background was—finishing, "It
is not the government's intention to licence circuses." On
that basis we were quite relaxed about it; we did not participate
in the consultation process because there was no need. The draft
Bill was then published and I looked at it and I could not see
where the exemption was for circus. So I wrote, admittedly to
the Home Office at first because I did not realise it had passed
to DCMS, and got no response. I then wrote to DCMS and it took
a long time—a matter of several months—to get a response
from DCMS, which said, "No, we are now going to licence circuses;
we forgot to tell you," by which time it was too late. So
this is what has led to this unfortunate situation where we have
a licensing procedure and if the government thinks that circuses
should be licensed then obviously the industry must go with it.
But what the Act does is to try to shoehorn a travelling entertainment
into a system which is specifically drafted for permanent premises,
which is why we have this problem that the DCMS cannot really
decide as to whether we are licensing the piece of grass where
the circus tent is going to be put up, or are we licensing the
interior of tent, the configuration of the seating, etcetera.
The licensing may define—and I understand your concerns—but
the Act itself just does not fit the industry that it is trying
to bring into licensing.
Q151 Chairman: Although DCMS said
that they had changed their minds and it was the government's
intention that circuses should be licensed, I know from the evidence
that you have submitted that in actual fact in large parts of
the country in practice they are not because the local licensing
officer decides that it is not necessary to have a licence.
Mr Clay: I think licensing officers
are in a very difficult position. If they look at the Licensing
Act there is nothing which specifically licences circuses. The
authority for licensing circuses is within the DCMS guidance,
which was issued in both the first edition and the second edition,
which contains statements about the music being an important part
of the performance. I think in the first rush of licensing that
licensing officers went strictly by the DCMS advice. I think having
got other issues out of the way because of the licensing of pubs
and clubs etcetera they have looked at this and some of them are
prepared to take their own line and say, "We do not think
circus is a licensable entertainment." It is the inconsistency
which is the problem because you can go to a town where the licensing
officer says, "No, don't worry. I don't want an application,"
and then perhaps the next week you go seven miles down the road
into the next borough and you have to be licensed because the
officer is not as flexible.
Q152 Chairman: Can you give us any
indications of what proportion of licensing officers think you
should be and what proportion do not?
Mr Clay: My experience is that
the licensing officers in the rural areas are less inclined to
want to license circuses and the officers in the cities and major
towns are probably more likely to want to license circuses.
Mr Burton: My experience is that
Zippo's Circus will write a very detailed letter to the local
licensing officer explaining what is in our circus and explaining
why we think that is non-licensable and they will write back and
agree or disagree with us. Increasingly as this year has gone
on licensing officers have declared my circus and its content
as non-licensable. Clearly there are activities which bring a
form of entertainment within the Licensing Act and clearly not
all circuses are the same, although I would suggest most touring
ones are quite similar to mine. If we look in the recent past,
then since July 80% of licensing officers that we have asked have
declared my circus non-licensable. That, of course, would not
be every single venue because we do hold some premises licences,
but when the question has been asked 80% now would say ours is
a non-licensable form of entertainment.
Q153 Chairman: So is the problem
slowly disappearing?
Mr Burton: It is not slowly disappearing
because, as Malcolm has already said, there is an inconsistency
because you do not know when somebody is going to turn round and
suddenly say, "Yes, this is licensable," which is what
happened to me in Birmingham in September. That is a graphic example
of why the licensing officers and the circuses need some very
clear guidance from the DCMS about what should and should not
be licensed.
Q154 Chairman: Is there not a danger
that DCMS issues some very clear guidance that may actually result
in some of the licensing officers who presently say you are not
licensable deciding that you are?
Mr Burton: Of course there is
that danger, although I have met with the past four ministers
at the DCMS and, without exception, every one of the four has
agreed that the circuses' licensing situation is currently unsatisfactory
and needs sorting. I do not think that we have necessarily always
agreed how it should be sorted, but the principle of is there
a case to answer and should this be sorted out better is agreed
by all parties, so I am quite confident that the willingness is
there within the DCMS to tackle this problem.
Mr Clay: It is this grey area
which is so difficult to contend with. If we have a juggler (and
juggling is not a licensable activity) and the juggler has a girl
assistant who wiggles about and passes him his hoops and clubs,
is she dancing? People are smiling but it is a serious point.
Where on the scale does the juggler's assistant come into the
area of dance? At the moment Zippo's Circus has a Spanish boy
on a low wire who kicks his legs and dances. Is dancing on the
tight wire, although it is a circus skill, included within the
definition of dancing? The dancing is only an artistic way of
expressing the routine. We have these grey areas. Licensing officers
are saying, "We don't really want to be bothered. We've never
had problems with circuses." The first time that we had a
licensing officer who said, "I don't think categorically
you should be licensed," we mentioned it to the DCMS and
they then had a go at the licensing officer and said, "No,
you mustn't say that."
Mr Burton: I am now reluctant
to give you the names of those officers.
Q155 Chairman: We will not press
you on the names. In their submission to us the DCMS has suggested,
slightly bizarrely, that you should be treated in the same way
as an aircraft or a train in that you might have a portable premises
licence issued by the local authority where the circus is based.
Does that hold any attraction for you?
Mr Clay: Yes, I think it holds
considerable attraction. If the concern from the DCMS is health
and safety and the internal layout of tents --- That is not a
point which the industry accepts because the DCMS do not seem
to understand that we are still inspected by the Environmental
Health Department who we always look upon as having responsibility
for the circus industry. If we were to have effectively a travelling
licence where our home authority or a designated local authority
looks at our tent and looks at our seating and the way that it
is put together and says that is acceptable and it meets the HSE
standards, we would be happy with that. The overall problem is
this flexibility, having to change routes at the last minute.
It is a coincidence that since the introduction of the Act we
have had two of the worst summers in living memory when we would
normally expect to be on nice dry parks and we save the hard standing
as there is only a limited number of hard standing circus sites
that we will visit in either spring or autumn, but instead the
circuses have had parks booked which have just been so soft that
either the council has said, "I'm sorry, but we're not going
to let you churn the park up," or we know that if we drive
onto that park then the cost of reinstating it afterwards is going
to wipe out any potential profit. If we had had a bad summer four
years ago we would have looked round very quickly for a suitable
hard site, possibly a football ground car park which, if the fixtures
are right, may work for us. We have two problems. The first is
that 28 days notice for a premises licence is the minimum if everything
goes smoothly. If there is an objection, however spurious it is,
then it is all going to be too late for us, but very rarely will
you know 28 days in advance that you are going to have four weeks
of persistent rain. A lot of circus sites do dry out surprisingly
quickly. The 28 days notice does not work for us. The Temporary
Event Notices does not work because you still have your notice
period which can be a problem. Circus tents accommodate between
500 and 1,100 people maximum. The circuses trade from Tuesday
to Sunday. Everything is wrong for us with Temporary Event Notices.
Q156 Chairman: You would not be allowed
a tent above 500, would you?
Mr Clay: No. That is the problem.
The smaller end of the industry would scrape in on the Temporary
Event Notices. The larger ones cannot, which is unfortunate because
the circus, being an activity which does not sell alcohol and
an activity which finishes by 9.30 pm or 10 pm at the latest,
is brought into a system which is really designed for dancing,
the selling of alcohol, et cetera, but there is no other avenue
available to us. We cannot cope with either the notice for a premises
licence and very rarely can the Temporary Event Notices system
accommodate what we need. It goes back to the point that had there
been consultation and an understanding of how the industry works
we would not have been shoehorned into this situation. We have
been faced with a different premises licence every week for a
40-week season, whereas your local pub or club has one licence
application to make. That would never have happened if there had
been consultation.
Q157 Mr Evans: Malcolm, we are sometimes
accused of being a bit of a circus here, none more so than when
you brought the circus to Westminster a few months ago! We are
extremely grateful to you for doing that because it gave us a
great insight into what you do. Few people have any idea as to
the costs of these licences that would fall on—if there
is such a thing—an average circus. Can you give us an idea
of what costs circuses have to meet?
Mr Clay: When we started licensing
we calculated that the licences were costing £1,000 a time.
The public notices column of your local paper is the most expensive
column to advertise in. If we could have advertised in the entertainments
column it would have been cheaper. We have the problem of trying
to affix the notices to trees in parks and railings where if you
put them out of reach of the locals who are tempted to pull them
down then people cannot read them. You are probably operating
your business 200 miles away at that time so you do not know what
is happening with your notices. The cost has been a problem and
it is a problem that has diminished slightly and the industry
has had to cope with it. The real problem with all of this is
the flexibility. You know what your licence is going to cost and
the industry, by the nature of the people who run it, is quite
resilient, but you cannot cope with arriving in a town and not
being able to trade for a week because your expenses remain exactly
the same.
Q158 Mr Evans: You seem to have a
running theme on advertisements in local newspapers. Could you
just say how effective you think advertising in the local newspapers
the licence application is? Do you think it is the most cost-effective
way of doing it?
Mr Burton: Are you asking me whether
people read the public notice columns?
Q159 Mr Evans: Yes.
Mr Burton: I think they read those
when their own son or daughter is getting married, otherwise they
do not bother. No, it is not effective. The blue notices bring
it to people's attention, but there is a problem with keeping
the blue notices up and that is that I am afraid kids like to
take them down.
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