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The Licensing Bill - Message 2 - MU Analysis

The following very detailed assessment of the proposed legislation covering the provision of entertainment comes from Hamish Burchall of the Musicians Union. He more than anyone else knows what's what in this regard.

He has set out his observations as a series of comments on the contents of a letter from the DCMS (Department of Culture, Media and Sports). Below his introduction (in green) you will see the Government's letter quoted in black and Hamish's commenrts in blue. What he has to say gives cause for real concern since it appears that the responsible government department simply does not appreciate the full impact of what it is proposing to make into law.

It's a lengthy read; but if you have any interest in preserving the rights of people to enjoy live music then please persevere to the end.

HAMISH BURCHALL of the MUSICIANS UNION, writes:

The Department for Culture, Media and Sport, responsible for the Licensing Bill, has responded to recent enquiries from members of the public concerned about the implications for live music.

The DCMS letters present what appears to be a reasonable package of reforms - provided the reader lacks a detailed knowledge of the contents of the Bill, a clear understanding of the operation of the present PEL regime, or a clear understanding of the subsisting framework of public safety, noise and crime and disorder legislation. What the DCMS statements leave out is, of course, also significant. When the missing information is filled in, the DCMS arguments begin to look less convincing.

In response to various requests for clarification, I have taken a recent example from the DCMS replies and introduced my own observations (in blue). These will, I hope, explain why the Musicians' Union is opposing key elements of the government's proposed reforms, and why it continues to argue for an automatic permission for live music in licensed premises such as bars and restaurants, within certain parameters (such as performance times). Similar regimes operate successfully in Scotland, Ireland, Germany, Denmark, France and Finland. The Scottish comparison is the most significant since the public safety and noise legislation which regulates performance in this context applies UK-wide. The MU accepts, however, that premises specialising in music, or music and dance (such as nightclubs) may need the exceptional level of control that licensing requires.

The Licensing Bill treats all live music as if it were potentially as lethal as asbestos. This is not only ridiculous, but is a licensing regime liable to abuse by local authorities, and ill behoves a civilised nation. Robin Allen QC, who is advising the MU on the Licensing Bill, has concluded not only that the government's present approach is 'very clearly incompatible with Article 10 [of the European Convention - i.e. freedom of expression], but also that: 'Where live music is concerned, the current Licensing Bill before Parliament is in many respects nonsensical and over-regulatory. It represents an overwhelmingly unjustified interference in the fun, livelihood and cultural life in England and Wales.' There is a more detailed explanation of the Article 10 issues on the MU website: www.musiciansunion.org.uk , and follow links to the Two in a Bar section. Mr Allen's views are not simply those you might expect from a retained legal adviser. They are shared by the newly-formed, independent lobby group 'Performer-Lawyers', most of whom are amateur musicians.

In 1976 the UK government signed up to an international convention which, among other things, imposed a duty to create an environment in which everyone can participate in the cultural life of the community (International Covenant on Economic, Social and Cultural Rights, Article 15). This would include a duty not only to cherish existing traditional musical forms, but also to create social and economic conditions that allow for the natural development of new forms. This means, at least, making it as easy as possible for musicians, be they amateur or professional, beginner or seasoned performer, to congregate together to make music in premises that are already the focal point of the community.

However, even if the government's Licensing Bill resulted in a ten-fold increase in the number of licensed premises where more than two musicians could perform (i.e. to 50%), that would still leave 50% where a performance by one unamplified singer would be a criminal offence. Combatting social exclusion through the arts was one of this government's key aims, but with the Bill in its present form, it is quite likely that the unlicensed premises would be in the very communities where it is most important to provide the infrastructure for musical participation and access.

Unless significantly amended, the present Licensing Bill would be a cultural straitjacket.

The DCMS letter below was sent on 13 December 2002.

Dear ....

Thank you for your letter of 26 November to Tony Blair in connection with our proposals for the reform of the current public entertainment licensing laws. I am replying on his behalf.

I appreciate your concerns with regard to the proposals but would like to assure you that the new licensing system would provide increased opportunities for musicians and other performers. It may be helpful if I explain in detail what is proposed. The "two in a bar rule", which is an exemption from the normal requirement for a public entertainment licence, would be abolished for the perfectly sound reason that one musician with modern amplification can make as much noise as three without...

It is true that the 'two in a bar rule' is an exemption from the 'normal' requirement for a public entertainment licence (PEL) in England and Wales. However, the word normal, in its plain English sense, could hardly describe the present PEL regime. For example, without a PEL, it is a criminal offence to encourage 'community-style singing' in a pub, or to allow a third musician to join a duo for one number, or indeed to allow any more than the same two people to perform during the course of an evening's entertainment. Morris dancing in a pub, a pub garden or car park is also a criminal offence without a PEL. The PEL regime purports to address overcrowding, noise nuisance and crime and disorder, but it exempts the provision of any amount of broadcast music or sport, or jukebox music, however powerfully amplified.

The PEL regime is, in many respects, an outmoded relic of the 18-century when it was introduced as a crime and disorder measure for rowdy Westminster ale-houses. At that time there was no unified police force for London. Public safety and noise legislation was rudimentary or non-existent.

This no doubt explains why 233 MPs signed an Early Day Motion (1182) during the last Parliamentary session, condemning the present rules as 'archaic and just plain daft'.

But in abolishing the two in a bar rule, and in fact virtually all other PEL exemptions (such as secular music in churches outside London, private members clubs, etc) the Licensing Bill renders public performance by even one unamplified musician, paid or unpaid, a criminal offence almost anywhere, at any time - unless first licensed. Much private performance is also caught (if raising money for charity, or if performers are paid). However, the exemption for broadcast entertainment, and for 'incidental recorded music' such as provided on a jukebox, is retained. There is no requirement to declare its provision on licence applications.

This exemption is clearly significant insofar as the government has taken a close look at public safety, noise and crime and disorder legislation that applies to premises like pubs and bars, and has concluded that it is adequate no matter how crowded a pub might be, no matter how powerful the sound system, no matter what time of day or night (remember bars can apply for 24-hour opening), no matter whether large groups of excited young men jump up and down in the bar, and no matter that these groups are prone to spill out onto the streets afterwards looking for a fight.

On the other hand, a monthly performance by an unamplified guitarist in a restaurant would require notification of and approval by the police, fire service, local authority environmental health department, local residents, and finally the licensing committee of the local authority. If such a performance went ahead unlicensed the licensee could face a maximum penalty of a £20,000 fine and six months in prison. The musician could face the same penalty, if they had not first checked that the premises was appropriately authorised for their performance.

Now to the rationale for abolishing the two performer PEL exemption. The DCMS claims this is necessary 'for the perfectly sound reason that one musician with modern amplification can make more noise than three without'. Quite true, but the statement misleadingly implies: 1) licensing is the only way to control noise breakout from pubs; 2) musicians with amplifiers are a major source of noise complaint; 3) 'modern amplification' renders the present regime out of date.

Not one of these justifications bears up under close scrutiny:

1 Noise

Ironically, many of the premises currently responsible for most disturbance to local residents will already hold PELs because the licence is obligatory for late-opening. The overwhelming cause of noise complaints is nothing to do with music (live or recorded), but is due to noisy customers in the vicinity of licensed premises. Abolition of the two performer PEL exemption will do nothing to address that problem.

Irrespective of public entertainment licence controls, there is plenty of legislation to control noise, both pro-actively and reactively. The perception of complainants, and indeed MPs, that the legislation is inadequate, is due largely to ineffective enforcement.

Town and country planning Acts allow for the imposition of pre-emptive noise controls on premises. The present Licensing Act 1964 confers general powers on licensing justices which they use to impose noise-limiting conditions on the grant and renewal of liquor 'on licences' for pubs, bars, restaurants and so on. Under the Environmental Protection Act 1990 all local authorities can serve anticipatory noise abatement notices if they are satisfied a noise nuisance is likely to occur or recur, and all local authorities can seize noisy equipment. The time allowed for compliance with an abatement notice is specified by the local authority and may vary from a requirement to stop the noise 'forthwith' to some longer period, as appears to them appropriate in the circumstances.

Camden used a noise abatement notice to close the Shaftesbury Theatre production of 'Umoja' earlier this year. One resident's complaints were enough. Any breach of a noise abatement notice carries a fine of up to £20,000.

Noise at Work Regulations primarily address employee exposure to excessive noise, but may indirectly bear down on noise breakout. The 90 dBa 'second action limit' currently imposed by this legislation is frequently exceeded by amplified recorded music played in bars. The dBa scale is logarithmic which means that an increase of 3 dBa roughly halves the permitted exposure time. Many DJs and sound systems provide recorded music at levels above 100 dBa, which would mean that any staff exposure of an hour or less would be illegal without wearing some kind of hearing protection. Local authorities are supposed to monitor and enforce this legislation. A new EC Directive would reduce the Noise at Work action limits to 80 dBa (first action limit) and 85 dBa (second action limit).

Justices on licences may be revoked on the grounds that a pub has caused noise nuisance problems for local residents. From memory I understand the police can instigate such proceedings using powers under Section 20 (A) of the Licensing Act 1964. Since December 2001 the police have had the power to close noisy pubs immediately for up to 24 hours (Criminal Justice and Police Act 2001, amended the Licensing Act 1964) .

No doubt this is why the National Society for Clean Air recently reported that: 'In general local authorities are content with the flexibility the nuisance provisions allow. However, for adequate enforcement there is a need for clarification (for officers and the public) and better resourcing.' [NSCA National Noise Survey 2002, p6].

Residents Associations in the heart of London recognise that noise breakout from within premises can already be controlled. During a noise nuisance workshop held at a major national conference on licensing reform last year, John Bos, co-ordinator of the Covent Garden Community Associatoin said: 'We agreed that there were two answers to the questions posed in the workshop. "Can it [noise] be controlled?" The answer is "yes" if it comes from premises, and "no" if it comes from people in the street...the main problem is not noise emanating from premises, it's not music bellowing out with dance and disco, or what have you, it's actually noise from people when they arrive or leave, in the street.' [Open All Hours, Report of the National Conference of Licensing Reform, 24 March 2001, Civic Trust]

2 Noise from live musicians a major problem?

Absolutely not. The Noise Abatement Society confirmed that 81% of noise complaints concerning licensed premises are caused by noisy people outside. The remainder are largely caused by noisy amplified recorded music and noisy machinery. While it is perfectly true that powerfully amplified live bands can be a problem on occasion, the UK Noise Association have said that it is rare for them to receive complaints about live music. They get more complaints about loud amplified pre-recorded music. The Institute of Alcohol Studies sponsors the Open All Hours consultation, and canvasses the views of residents# associations on licensing issues. The IAS informed me that no residents# associations have ever made an issue of live music. Their overwhelming preoccupation is how to curb anti-social behaviour of people in the vicinity of licensed premises.

3 The two in a bar rule must be abolished because of musicians' access to modern amplification

Wrong again. Amplified guitars were in widespread use in the 1950s. The two performer exemption was first introduced in the Licensing Act 1961. Heavily amplified pub rock thrived during the 60s and 70s. At that time magistrates controlled the PEL regime, and fees were purely nominal. All that changed in the early 80s when responsibility for PELs was transferred to local authorities, and legislation amended to allow for 'cost recovery' fees. The decline of grass roots gigs dates from this period.

... I am confident that the proposed reforms would provide a licensing framework within which musical performance and dance could thrive and develop, while providing adequate protection for the local people in the community.

This unlikely to be true for pubs, bars or restaurants. In September the licensing Minister, Kim Howells, said that if the Musicians' Union were to lobby for satellite tv to become a licensable entertainment (this is not the MU position), this would be 'resisted robustly' by the leisure industry. Licensed industry commentators do not believe that the existing 5% take-up of PELs will increase significantly during transition from the present to the new licensing regime. The reason is that among licensees there is a profound mistrust of local authorities, due in large part to the well-documented record of over-zealous PEL enforcement. In 2000 even the Home Office officially warned local authorities to ease up on PEL conditions, but few, if any, took notice (Home Office Circular 13/2000). In a recent survey by the trade press (Morning Advertiser), 94% of 1,000 landlords questioned said they would prefer magistrates to control licensing.

The main purpose of this Bill is to allow pubs and bars to open later more easily. In transition most landlords will not want to delay their applications with applications for licensable entertainment that are likely to run into local opposition, and which could reduce the number of people allowed in the premises. This sector of the leisure industry does not believe for one moment that local authorities will adhere to the government's published guidance. Even PEL applications for unamplified live music trigger conditions such as the provision of door supervisors, the setting of a lower capacity for the premises, installation of more toilets and double glazing. Stuart Neame, of Shepherd Neame brewery, has estimated the average cost of compliance at £10,000 per pub. Local authorities would argue strongly that such conditions are 'necessary', but unless licensees have £5,000 spare cash, any appeal to the courts over disputed conditions will be out of the question. Far simpler to stick to the non-licensable entertainments, such as satellite tv and the jukebox.

The Local Government Association recently circulated a paper to the DCMS licensing advisory panel, suggesting that if any live music is to be considered, new licence application forms should require licensees to state the maximum number of musicians, where in the premises they are to perform, and when. This demonstrates a total lack of understanding of the way in which traditional folk sessions, or jazz jam sessions, operate. If adopted, this would undoubtedly mean a continuation of the wholly pointless and depressing cycle of local authority enforcement whereby the number of performers are counted by undercover licensing officers, followed by a swift letter threatening criminal prosecution if an appropriate authorisation is not in force.

In order to vary such conditions, such as increasing the number of performers by one, or indeed obtaining permission to have one live performer, an application to 'vary' the existing licence would have to be made. This would entail payment of a fee (amount not yet known), and notification and approval of the police, fire service, local authority environmental health department, local residents, and finally the local authority licensing committee. 'Necessary' conditions could be imposed, with all the cost implications.

Under the new licensing regime, the concept of a public entertainment licence would completely disappear.

That is simply nonsense: the title of the licence is changed, but for all practical purposes its function, and operation, is largely the same. Indeed its scope, as far as entertainment is concerned, is significantly increased, bringing within the licensing regime for the first time 15,000 churches outside London, all 5,000 registered members clubs, 110,000 licensed premises such as restaurants, pubs, bars and hotels, and hundreds of thousands of hitherto private events where the performance is to raise money for charity, entertainment agencies are engaged to provide live music or DJs for private functions, or indeed where performers are directly engaged for the same purpose. It would appear that historical battle re-enactments are also newly criminalised (unless licensed), as is horse-and-carriage racing.

Permission to sell alcohol, provide public entertainment, stage a play, show a film or provide late night refreshment would be integrated into a single licence - the "premises licence". This would integrate six existing licensing regimes into one, cutting at a stroke significant amounts of red tape.

Given the huge increase in the potential number of licences to be issued, the increased workload for local authorities, and enforcement for non-compliance, this looks like a significant increase in red tape. As Baroness Buscombe commented in the Lords during the first Committee debate on 12 December: 'We believe passionately that this is entirely against what we were led to believe; that is, that this would be a deregulatory measure. The Bill will give us more regulation, more red tape, and more cost.'

Accordingly, under our proposals, any public house would need to obtain permission to sell alcohol for consumption on those premises and would be free to apply simultaneously for permission to put on music or dancing or similar entertainment whenever desired. The fee for such a premises licence would be no different whether the pub simply seeks permission to sell alcohol or if it decides to go for multiple permissions. There would therefore be no deterrent to seeking multiple permissions. The position row is that many pubs are wary of obtaining a separate public entertainment licence because the costs can be prohibitive in some local authority areas.

This is disingenuous: the licence fee would be no different only if the application to host licensable entertainment was made at the point of transition from the old to the new regime. If permission is not sought at that time, the present right of licensed premises to host one or two live performers will lapse, and could only be reinstated by applying to vary the new premises licence. As already mentioned, this would require payment of a fee. 'Necessary' conditions, of course, have significant cost implications, again as already discussed. These are sometimes referred to as 'hidden' costs of compliance, and are probably the greatest deterrent to the provision of licensable entertainment such as live music.

Subject to our continuing discussions with stakeholders, any variation in fees would more likely relate to the capacity of the venue so that smaller venues pay less than large ones. The fees would also be set centrally by the Secretary of State to eradicate the wide and sometimes unjustified inconsistencies that presently exist.

Centrally-set fees are one measure welcomed by the Musicians' Union.

The premises licence would also set the hours that the premises may open for its activities, and set fair, necessary and proportionate conditions under which these activities may take place. This would achieve three important purposes: the prevention of crime and disorder; the assurance of public safety and the prevention of undue public nuisance. It is essential that the greater freedom and opportunities which would be available to licensees and performers are balanced with powers to deal with the small minority who might abuse such freedom, damage communities and bring the industry into disrepute. Under the new regime, local residents would have the right to object to the grant of a licence or certain parts of the operator's proposals and to have their views considered. This means, for example, that any conditions affecting noise being emitted from the premises might be more restrictive after, say midnight, than before.

This might make some sense if the licensing regime was consistent and only applied to high-risk entertainments. But of course it is all-embracing, and is manifestly inconsistent as demonstrated by the uniformly harsh treatment of live music alongside the exemption for amplified broadcast entertainment. Indeed, since there is no requirement to disclose broadcast entertainment, or the provision of 'incidental' recorded music on licence applications, local residents will be denied any chance to comment about that. The present proposals are unlikely to make any impact on the nuisance caused by people outside premises, and that probably explains why the Department for Environment, Food and Rural Affairs (DEFRA) has hastily commissioned an investigation into the noise nuisance implications of the Licensing Bill.

Public entertainment, which would be covered by the premises licence, would be defined as music or dancing, or entertainment of a like kind, which is presented publicly for commercial purposes or for gain. Public singing which is not undertaken for profit or gain would not be affected.

Very confusing. The Bill defines music as '...vocal or instrumental music or any combination of the two' (Schedule 1, para 16) and defines 'premises' as 'any place' (Clause 188). 'Entertainment' is defined, among other things, as 'a performance of live music... in the presence of an audience... provided for the purpose, or purposes which include the purpose, of entertaining that audience' (Sch 1, para 2(f)). The presence of any spectators constitutes an audience (Sch 1, para 2(2)).

If the place is 'made available' (Sch 1, para 1(3)) so as to enable the entertainment, and if it is 'to any extent for members of the public or a section of the public' (Sch 1, para 1(2)(a)) then the public singing would be illegal unless licensed.

This presumably explains why, during the 12 December 2002 Lords Committee debate on the Licensing Bill, Andrew McIntosh, a government whip, confirmed that carol singing in public places such as railway stations or supermarkets would require a licence. Expert licensing lawyers agree that virtually all public singing, whether paid or not, is in fact caught by the new regime, although the government denies that this was their intention.

We would not accept that it is the case that certain types of music, for example acoustic, are never "noisy‰ or that they should be excluded from the licensing regime.

In view of the exemption for amplified broadcast music, or amplified 'incidental' recorded music, however powerful the equipment used, this statement is absurd.

If public music is to be performed at a premises, then the licensing authority would have the power to impose necessary and proportionate conditions in order to protect residents and customers. The conditions would not be standardized. The licensing authority would be required to tailor them to the style of venue. Major venues staging rock bands would be likely to be the subject of more restrictive conditions than a small pub or club which puts on un-amplified live music.

Independent health and safety experts have confirmed that for all but exceptionally high-risk entertainments (such as large numbers of people dancing to music in confined spaces) local authorities already have adequate powers irrespective of licensing controls.

The Health and Safety at Work etc Act 1974 (HSWA) applies to workplaces where public entertainment is taking place, and might include a pub, restaurant or a church. Under the act employers have a duty to ensure the health, safety and welfare of their employees as well as the health and safety of others who may be affected by their work activity. The Management of Health and Safety at Work Regulations 1999 state that employers must undertake a risk assessment of their work activity and workplace. If a landlord of a pub employs a couple of musicians to perform he has to ensure that this activity can be done safely. To do this he will have had to, as a requirement of the Management Regulations, undertaken a risk assessment to identify and control any hazards such as the increased risk of fire or the added burden placed on any electrical systems. Regardless of the requirements or conditions of a licence, employers have a duty to ensure that they meet the minimum requirements of health and safety legislation, and the government has in effect indicated that it believes these minimum requirements are sufficient in every case where satellite or terrestrial tv is provided for pub customers.

Local authorities are empowered to enforce health and safety legislation at certain premises under the Health and Safety (Enforcing Authority) Regulations* [see ref below] 1998 (and previously under earlier enforcing authority regulations). Therefore, if a local authority inspector visits a workplace and finds that health and safety is not properly managed then they have the power to request that improvements be made or that activities stop until the required health and safety standards have been met.

The fire service has also informed me that their inspectors have a similar power in respect of requiring improvements to be made in the emergency lighting and so on. I understand that under the Fire Precautions Act 1971 they can also close a premises immediately if there is an imminent fire hazard.

* Schedule 1 of the Health and Safety (Enforcing Authority) Regulations sets out the 'Main activities which determine whether local authorities will be enforcing authorities' (i.e. of health and safety legislation). Para 9 stipulates the following activities: 'The practice or presentation of the arts, sports, games, entertainment or other cultural or recreational activities except where the main activity is the exhibition of a cave to the public'.

The statutory requirements for employers to undertake comprehensive risk assessments and the statutory inspection and enforcement duties of the local authority and fire service, are a very powerful combination. A lawyer with licensing and health and safety expertise told me that safe capacities can be achieved through this mechanism, without a licence condition. I think this is why Licensing Minister Kim Howells has never claimed that abolition of the two performer exemption was necessary on public safety grounds. He has only said it is because 'one musician with modern amplification can make more noise than three without'.

The Scottish example demonstrates that where live music is secondary to the main business, and is confined to permitted hours, no additional controls are necessary.

The new reform bill would require local authorities to follow rules and procedures. They would have no discretion to refuse a licence or impose any condition unless a reasonable objection to the licensees operating plan has been raised by the police, an environmental health officer, the fire authority or boat residents. In granting or refusing licences, or imposing any conditions, the local council would be legally bound to take into account guidance issued by the Secretary of State. Departure from this guidance, without a good or valid reason, would provide grounds for an appeal to the courts.

This sounds good, but as already explained, the leisure industry is extremely sceptical that government guidance will produce a sea-change in the way local authorities approach licensable entertainments. Significantly, the guidance has not yet been published, and the Lords have already objected strongly that the Secretary of State will have very strong powers that will not be subject to their scrutiny.

As you may know the Licensing Bill was introduced on 14 November and it must now be for Parliament to debate its merits.

And for concerned members of the public to continue to make representations to their MPs.

Yours sincerely

Claire Vickers

Alcohol . Entertainment Licensing Division

Department of Culture, Media and Sports

Well done for getting to the end! Now write to your MP. Go to www.faxyourmp.com. It's best not to borrow standard letters, but to use your own words. The site can identify MPs automatically from post codes.

A footnote: government Ministers continue dismiss out of hand the legal advice that private events where performers are paid are caught by the Bill. In fact, on the day the Bill was published, the Arts Council received a legal opinion from one of the UK's leading licensing lawyers confirming that corporate hospitality events where performers are paid were licensable under the Bill as published. This contradicted the government's own statement published in the Explanatory Notes that accompany the Bill

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