Nothing so far said by the Minister or published by the DCMS suggests the
MU should alter its position concerning the potential scope of the Bill's
definitions as worded. Clarifying amendments, reflecting the Minister's
assurances, are required. Independent legal advice, and expert licensing
lawyers support us. They agree, for example, contrary to the Minister's
statements, that carol singers on front door steps, and private events where
performers charge a fee are caught.
The MU has welcomed the government's proposal to cap licence fees and to
set them centrally - where licensing is necessary. Specialist premises
already licensed for public entertainment will benefit. Many do pay
exorbitant annual fees under the present system. They could save
considerably under the new proposals. It also makes sense to rationalise the
disparate licensing regimes, although it is unfortunate in many ways that
essential reform of public entertainment licensing should be pegged to
deregulation of pub opening times. The Licensing Bill applies to regulated
entertainment irrespective of whether alcohol is sold.
The MU also welcomes the government's announcement that means churches in London will enjoy the same entertainment licensing exemption that currently applies outside London, and that church halls and community premises in London will get the licence fee exemption that currently applies to these premises outside London.
The MU accepts that there is a case for licensing premises whose main
business is music, or music and dancing. It may be easier to enforce certain
measures at such premises (such as the provision of chill out rooms) through
licensing conditions than through safety legislation - although experts
argue about this. These premises may also have a far greater impact on
residential amenity than a typical bar or restaurant, and the importance of
public consultation is consequently greater.
The MU's prime concern is for over 100,000 smaller premises that will lose
the long-standing licensing exemption for small-scale entertainment by one
or two live performers. Many MU members rely on work in this sector, as solo
or duos. Currently only 5% of 110,000 pubs, bars, clubs, restaurants etc in
England and Wales hold annual public entertainment licences allowing more
than two performers to work. There is also concern about the implications
for private events. Where these are raising money for charity they become
illegal unless licensed; this also applies where a charge is made for
It is unlikely that obtaining the 'necessary authorisation' will be a
simple matter of ticking a box. The Local Government Association has already
indicated that it would like to have information such as a maximum number of
performers, where in the premises they are to perform, and when. Even if
licensees are prepared to jump through all the obligatory administrative and
consultative hoops (police, fire service, environmental health dept, local
residents, and finally the licensing committee), and even if the conditions
are less costly than at present, if a permission is granted for, say, a duo
on Friday evening that will be the limit of their live music permission. If
they wish to host a trio, or to provide live music at any other time they
will have to apply to vary their premises licence, going through the whole
process all over again. This is clearly over-regulation. There is nothing
like it in Ireland, Scotland, Germany, Finland, Denmark and France.
A thriving grass roots music sector cannot exist without flexibility,
freedom for musicians to sit in, informality and an intimate music-making
environment. The Licensing Bill seems almost deliberately designed to kill
this off. It is a potential straitjacket for this kind of music-making which
was, after all, how folk and jazz was born. As Mike Harding and others have
already pointed out, the burgeoning folk scene of the 50s led to the pop
explosion of the 60s and 70s.
Health and safety - bare cables
When considering public safety or noise issues in the context of the
Licensing Bill don't forget that the exemption for broadcast entertainment
(Sch 1, para 8) means that you could set up a bank of big screens and a
large PA, invite people to bring their own beer, and provided the
entertainment falls within the broadcast entertainment definition, this is
not licensable under the Bill. In its recent statements justifying licensing
controls on safety grounds, the DCMS has failed to mention the wide-ranging
powers already available under health and safety legislation. These apply
irrespective of licensing. The paragraph below is from the latest DCMS
justification of the Bill which has been distributed to MPs and the wider
public. Beneath it in blue are my comments.
"24.2 The penalties provided in the Licensing Bill are maximum penalties
and, as with all offences, the courts would decide on the appropriate
punishment depending on the facts of the case. Severe penalties might be
appropriate in some cases, however rare, for instance where a musician put
lives at risk by trailing bare cables through an audience."
Having bare cables trailing through an audience in, for example, a bar
would be a health and safety offence in any case. The employer and the
musician responsible could be prosecuted.
Under the Health and Safety at Work Etc Act 1974 (HSWA) the employer on site has a duty to create and maintain a safe system of work not only for
employees but anybody else who might be affected. If the workplace is a pub,
the employer is effectively responsible for the safety of members of the
public as well. This undertaking would cover activities ranging from repairs
to the provision of entertainment ('entertainment' or 'practice or
presentation of the arts' are already defined as activities for which local
authorities have a statutory duty to enforce the HSWA in workplaces).
Bare cables trailing through an audience, or trailing through a group of
people milling about, could result from a number of plausible scenarios:
musician with amplifiers, the use of an air compressor for a bouncy castle,
a workman undertaking repairs. If injury or even death resulted from such
bare cables, two prosecutions could be pursued: one against the employer and
one against the musician or other person responsible for the equipment (as a
self-employed person) under sections 2 and/or 3 of the HSWA. The employer,
or self-employed contractor, are under the same duty to provide a 'safe
system' for people who may be affected.
A prosecution brought under s2 or s3 of the HSWA carries a maximum £20,000 fine at a magistrates court. If the magistrates court considers that their
powers are insufficient, for example where a fatality or serious injury has
occurred, the prosecution goes to the Crown Court where there is there is no
limit on the potential fine. A Bill currently going through Parliament
(Health . Safety Offences) is seeking to include imprisonment as an
The duties imposed by the HSWA are widely publicised by the HSE with
plenty of published guidance, both hard copy and online. Since 1974, public
safety and noise legislation has applied UK-wide. 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.