The following from the Chief Executive Tom Grainger to Jim Knight MP 21/12/01.

In many ways, this is quite a simple subject, made more complicated by some quite extreme interpretations.

No disagreement with this but it is Mr Grainger who is making these extreme interpretations.

As you know, the statutory base for public entertainment licenses is the Local Government (Miscellaneous Provisions) Act of 1982. Having adopted the provisions of this Act, local authorities must, of course, try to comply with its regulations in a consistent manner. The Licensing Act 1964 exempts premises from the need for a licence if there are two or less performers. The argument put forward by Mr Gall and other musicians is that a number of people gathering informally to undertake musical activities do not count as performers. This is the crux of their argument.

Of course the participants are not performers, but case law supports the argument that these activities taking place on a regular basis are not even to be considered as public entertainment and therefore not even subject to the PEL requirement. Brearley –v- Moreley.

From the Council's point of view, we have consistently argued that each case needs to be considered on the circumstances. Thus, an impromptu sing-song is unlikely to lead to the view that people taking part are performers. This contrasts with the other end of the spectrum whereby there could be a group booked and with clear contractual obligations to perform on a regular basis.

The only event Mr Grainger is not prepared to insist on a PEL for is one that is over before he is aware of it. If it is repeated or he knows about it in advance he will insist on a PEL to enable it. I prefer the word informal, impromptu is the council's word. One of the meanings of it is unrehearsed! One could argue that even a regular session, with its varying content, personnel and resulting dynamics is always an impromptu event. The regularity of the activity is not a factor under legislation anyway. The Cove session was prevented from taking place without a PEL not for any of these factors but because the number of participants exceeded two, and these were considered as performers.

Your question is how much discretion is there to Council Members, as to the definition of 'performer'. In our view, there is no discretion to council Members over this matter. The issue is one of interpretation of legislation. Ultimately, of course, it would be for the courts to decide as to whether the kind of events that take place at the Cove House Inn fall within the definition of 'performing'. Having discussed the matter with a wide range of other licensing authorities, we believe the argument that the circumstances in which entertainment takes place at the Cove House Inn is so far removed from the extreme of the impromptu, informal gatherings, that there cannot be an exemption in law. It is, of course, a matter for the Licensee and the Licensing Authority to reach a view on and, as far as I am aware, there is no dispute between these parties. It is a third party that is challenging the approach. If there was a dispute with the licensee, then the Council would need to decide how strongly it believed its case was before it tested the matter in court.

Each authority decides it's own PEL regime. If the members are being asked for their discretion on the lever of the fee, as they are at the next meeting, they must have discretion on what the borough considers to be a performer. The dispute with the licensee must have ended according to Mr Grainger when the licensee was encouraged to apply for a PEL. Encourage being the council's word for issuing threats of prosecution.

As always, there are little complications that need to be taken in to account. In particular, there is some case law dating back to the nineteenth century which Mr Gall and other musicians quote, which seems to imply that under certain circumstances people taking part in regular performances do not count as performers! Equally, there is other case law to suggest that they do count as performers.

The little complications to Mr Grainger view is the actual wording of the legislation and the existing case law. The case law Mr Grainger claims to support his view refers to dancing and dates back to the 18th century, 1793! Whilst this recognises a conflict and which might appear to most people to be a 'grey area', the following conclusion, reached only by his officers, just ignores the case law from 100 years later. Overall, therefore, we concluded some time ago that on the evidence available to us the activities that are undertaken at the Cove House Inn are such that the exemption in (to?) the 1982 Act does not apply. It was this interpretation which led a number of people to call on Councillors to take a policy decision on the matter. As the report to Committee last June suggested, and I have emphasised in various pieces of correspondence, the policy issue is whether to consistently enforce the provisions of the Act.

This conclusion was made when the single officer decided the activity was a public entertainment and counted past three, actions that were later endorsed by the members when, they were instructed by the officers that to do otherwise would not be legal.
The earlier statement that: "From the Council's point of view, we have consistently argued that each case needs to be considered on the circumstances", would seem to contradict with "the policy issue is whether to consistently enforce the provisions of the Act". If indeed they were actually doing this.

You do ask whether better guidance from Government would help. Notwithstanding the need of a general review of the Public Entertainment Licence system (which the officers of the Council generally support) members will be formally asked to take a view on whether to support a change in the law, at the next Social Community Committee. We are not convinced that any further guidance is necessary. To us, the law is clear and inevitably in interpreting the law, there will be some grey areas on which local discretion and judgement is best used. The Cove House Inn is not a grey area. We had some objections to the recent licence renewal which have been resolved. The current system is actually working. It is probably worth repeating that there is no evidence that musical activities within the Cove House Inn (or anywhere else in the Borough) have been adversely affected by the requirement to have a licence.

To deduce from the year-long travesty, that was the Cove House Inn's attempts to obtain a valid PEL and the problems highlighted from this, that there are any positive elements at all and to attempt to claim that the system is working is simply incredible. Or would be if I was not now so used to such nonsense.