REGULATION OF ENTERTAINMENT UNDER THE LICENSING BILL

Contents

Introduction
1.        The Licensing Bill
2.        The provision of regulated entertainment under the Bill
3.        Entertainment in places where alcohol is sold
4.        Entertainment in community centres and village and parish halls
5.        Entertainment in schools and colleges
6.        Entertainment in private homes and gardens
7.        Entertainment in churches, synagogues, mosques and other places of worship
8.        Entertainment in sports clubs
9.        Music and dance studios
10.        Music shops and recording and broadcasting studios
11.        Why licence entertainment
12.        Folk music and traditional activities such as Morris dancing, wassailing etc.
13.        Clowns, story-tellers, magicians, children's entertainers, stand-up comedians
14.        Carol singing
15.        Church bell ringing
16.        Spontaneous singing
17.        Rehearsing or practising
18.        Music lessons
19.        Exemptions for broadcast entertainment and incidental music
20.        The Bill's compliance with the European Convention on Human Rights
21.        Entertainment events held to raise money for charity
22.        Licensing of live music in Scotland
23.        The new licensing regime and existing laws
24.        Penalties for carrying out licensable activities without a licence

Introduction

Many individuals and organisation have expressed serious concerns about the effect that the Licensing Bill will have on live music, and other forms of entertainment. Many of the fears that exist are unfortunately based on misinterpretations of its provisions. The Bill has been drafted, as all Bills are, by Parliamentary Counsel following instructions from the Government. We have considered the alternative interpretations that have been put to us but have concluded that they are incorrect.

This paper seeks to address the issues raised in relation to entertainment and correct any misconceptions. It begins with a short explanation of what the Bill does say in relation to entertainment and what this means in practical terms. It then deals with a number of issues relating to particular entertainment activities and some more general points. The paper gives examples where possible but it must be borne in mind that it is always possible to think up a case where one parameter has changed that might alter the position in regard to the new licensing regime. The information provided in the first part of this paper should, however, make it relatively simple to work out whether or not a particular activity is licensable.

1.    The Licensing Bill

1.1    The Government believes that the Licensing Bill will provide a new licensing regime that increases the opportunities for musicians and other performers. We believe that these reforms will give the arts in England a new lease of life rather than sounding its death knell as some are suggesting. The Department for Culture, Media and Sport is of course also responsible for the arts and we continue to have both performers and their audiences at the forefront of our minds as we take the Licensing Bill through Parliament.

1.2    Under the new licensing regime there will be no public entertainment licence:

it will completely disappear. Permission to sell alcohol, provide entertainment for the public, stage a play, show a film or provide late night refreshment will be integrated into a single licence - the "premises licence", cutting significant amounts of red tape at a stroke. Under the new regime, any public house will need to obtain permission to sell alcohol for consumption on those premises and will 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 will be no different whether the pub simply seeks permission to sell alcohol or if it decides to apply for additional permissions, for example to provide entertainment. The existing cost and bureaucracy, which acts as a deterrent in many cases, will be removed.

1.3    The position now is that many pubs are wary of obtaining a separate public entertainment licence because the costs can be prohibitive in some local authority areas. Subject to continuing discussions with stakeholders, any variation in fees will more likely relate to the capacity of the venue so that smaller venues pay less than large ones. The fees will also be set centrally by the Secretary of State to eradicate the wide and sometimes unjustified inconsistencies that presently exist. The Regulatory Impact Assessment, which accompanies the Bill, estimates that the one-off cost of applying for a premises licence would be between £100 and £500, with an annual charge of between £50 and £150.

1.4    Guidance will also be issued by the Secretary of State to licensing authorities when the Bill is passed that will make it clear that any conditions attached to licences must be tailored to the needs of the particular premises and must be necessary for promoting the licensing objectives. This should prevent the issuing of swathes of unnecessary and irrelevant conditions, which may prevent licensees applying to hold public entertainment events.

2.    The provision of regulated entertainment under the Bill

2.1    The Bill considers entertainment in terms of the provision of regulated entertainment. Only entertainment, or entertainment facilities, that come within this definition will be licensable. For the most part this paper uses "entertainment" as a short hand for entertainment and entertainment facilities.

2.2   In order to be regulated entertainment, the entertainment must satisfy two conditions. The first of these is that it must be provided:

(a) to any extent for the public or

(b) exclusively for members of a qualifying club for members and their guests or

(c) where (a) and (b) do not apply, for consideration and with a view to profit.

2.3   The Bill further says that entertainment is only to be regarded as provided for consideration if any charge:

(a) is made by or on behalf of any person concerned in the organisation of the entertainment; and

(b) is paid by or on behalf of some or all of the persons for whom that entertainment is provided.

2.4   This means that all performances will be licensable if the public are admitted. If they are not, licences will generally only be needed if those attending are charged to attend, with the aim of making a profit (including raising funds for charity). Payment to an agent or to a band to appear at a private wedding, for example, would not result in a requirement for a licence unless the guests are charged to attend with a view to profit. We are not aware of many weddings being staged in order to secure profit from invited guests. The reference to "on behalf of" in paragraph 2.3 above implies agency, that is someone buying a ticket on someone else's behalf with their money and not his own. A licence would not therefore be required where the host of a private party pays for entertainment that is subsequently enjoyed by his guests or where a company that pays for entertainment at its in-house Christmas party for staff, where neither the guests nor the staff pay for tickets to attend the event at a level that would generate profit for the organiser.

2.5    Performances at places such as hospitals and old people's homes would also not be licensable unless the public were able to attend, or a charge was made to those inhabitants or patients who attended with a view to do more than cover costs.

2.6   The second condition that must be satisfied in order for entertainment to be regulated is that the premises on which the entertainment is provided are made available for the purpose of enabling the entertainment to take place.

2.7    The descriptions of entertainment covered by the Bill are:

• the performance of a play,
• an exhibition of a film,
• an indoor sporting event,
• a boxing or wrestling entertainment,
• a performance of live music,
• any playing of recorded music,
• a performance of dance

• or entertainment of a similar description to any of these, where the entertainment takes place in the presence of an audience and is provided for the purpose of entertaining that audience.

2.8   Entertainment facilities are defined by the Bill as facilities for enabling persons to take part in music making, dancing or similar entertainment, for the purpose of being entertained. An antique piano in a pub that was only provided for decorative effect would not give rise to the need for a licence. And a licence would not be required if the pub operator did not allow the public to play it. A licence would only be required if it was used to entertain people at the premises or by people on the premises to entertain themselves.

3.    Entertainment in places where alcohol is sold

3.1    It has been claimed that "110,000 on-licensed premises in England and Wales would lose their automatic right to allow one or two musicians to work. A form of this limited exemption from licensing control dates back to at least 1899."

3.2   This point is disingenuous. In 1899, the courts held that impromptu performances by customers were not licensable, but performances given by a customer or any musician "for a consideration" were licensable. The Report of the Royal Commission on Licensing (England and Wales) 1929 - 1931 (paragraph 249) confirmed this interpretation of the law. Working musicians were therefore not exempted as claimed. The "two in a bar rule" was introduced by the Licensing Act 1964. The Bill does abolish the "two in a bar rule" but introduces new arrangements whereby any pub may obtain permission to stage live musical events at no extra cost      when obtaining permission to sell alcohol

3.3    Under existing legislation all public performances of music in licensed premises are licensable. The only exemption is provided by the "two in a bar" rule, which allows two musicians or less to perform without a public entertainment licence when a Justices' Licence is held.

3.4   We are abolishing the two in a bar rule for two very good reasons. First of all, the effect of the rule is very restrictive - it restricts drastically the forms of entertainment that may be carried out. Only entertainment consisting of one or two performers of live music is exempt. Anything beyond that - including the performers combining live music with sound recording-requires an additional licence. The perverse effect of the rule is that many types of music and other forms of entertainment are discouraged by reliance on the existence of the rule. Furthermore, this means that the range of cultural experience available to the general public is narrowed severely.

3.5    Secondly, the rule is anachronistic. It is quite possible for a single performer using amplified equipment to give rise to considerably greater nuisance than four or even more entertainers performing acoustically. The Government simply does not accept that live music in pubs is never a source of disturbance. The Institute of
Acoustics lists "amplified and non-amplified music, singing and speech sourced from inside the premises" as a principle source of noise disturbance from pubs, clubs and other similar premises. It is equally the case that the public safety issues that the Bill addresses can arise where there are one or only two performers. It is therefore important that the likely risks are considered and proportionate steps taken to address them if necessary.

3.6   What we are putting in place is a simple, cheap and streamlined licensing system that should encourage - if industry makes full use of the reforms - a huge opening up of the opportunities for performing all sorts of regulated entertainment.

3.7   The Musician's Union proposed in February 1998 that every venue currently covered by a Justices' Licence (to permit the sale of alcohol) that wished to engage live performers should be required to have an entertainment licence. Although there will of course be no entertainment licence as such under the new regime, only a permission to provide entertainment on the premises licence, this is the model that we have followed. The Musician's Union also suggested that the playing of recorded music should be treated in the same way. Recorded music is a licensable activity under the Bill but there is an exemption for incidental music that is discussed later in this paper.

4.    Entertainment in community centres and village and parish halls.

4.1    Under the present system live music is licensable in community centres and village and parish halls. Outside Greater London these venues do however enjoy an exemption from fees. Under the Licensing Bill the cost of a premises licence is likely to be negligible for these places and, taken with the savings,, which will be made in other areas such as liquor licensing, the result will be a net reduction in costs for these venues. The Bill will give the Secretary of State powers to waive or reduce fees if she thinks it appropriate. During the passage of the Licensing Bill through Committee in the House of Lords, the Government gave an undertaking that it was considering very carefully the case for such an exemption.

4.2    These halls will also be able to benefit from a more informal system of permitted temporary activities that the Licensing Bill will introduce. Anyone can notify up to five of these per year, or fifty if they are a personal licence holder. Each event can last up to 72 hours and up to five events can take place at one premises in any year where less than 500 people attend. These permitted temporary activities will require a simple notification to the licensing authority and the police and a small fee of around £20.

5.    Entertainment in schools and colleges

5.1    Entertainment provided by a school or college to which the public are admitted is currently licensable and will continue to be licensable under the new regime. This is mainly because the public safety issues involved would be the same as for any other venue.

5.2    A concert or other performance in a school or college which takes place for parents and students without payment will, however, be exempt from the licensing regime. Similarly, if the school charges parents and students but does so only to cover its costs, no licence would be required. This would mean that the school nativity play in the form that we all know would not need a licence.

5.3   Any performance of music, dancing, etc that is being performed for students as part of their education would be exempt as it would not be provided for the purpose of entertainment.

6.    Entertainment in private homes and gardens

6.1    The Private Places of Entertainment (Licensing) Act 1967 already enables local authorities to licence many private events that are promoted for private gain. The only places otherwise exempt under the 1967 Act are premises licensed for other purposes. The Licensing Bill draws together these varied permissions into a single scheme that is clearer and easier for everyone to understand and use.

6.2    However, any performances of live music that take place in private homes and gardens for private parties and weddings will not be licensable unless the host takes the unusual step of charging the guests to attend with a view to making profit.

6.3   The Bill does nothing to affect what people are entitled to do in their own homes unless the public are admitted or guests are charged with a view to profit rather than to simply cover costs.

7.    Entertainment in churches, synagogues, mosques and other places of worship

7.1    The Government has been at pains to ensure that appropriate exemptions may be enjoyed by any faith when they are engaged in worship or any form of religious meeting.

7.2    Outside London current public entertainment licensing law exempts music in "a place of public religious worship or performed as an incident of a religious meeting or service." "A place of public worship" means only a place of public religious worship that belongs to the Church of England or to the Church in Wales or which is for the time being certified as required by law as a place of religious worship. The Licensing Bill maintains an exemption for any entertainment for the purposes of, or incidental to, a religious meeting or service.

7.3   As currently drafted the Licensing Bill would remove the exemption that churches outside London currently enjoy in relation to music that is not performed as part of a religious service. - for example , a secular concert performed at churches that might range in size from the small local parish church right up to St Paul's CathedraL However, the Government understands the breadth and depth of feeling that surrounds the issue.

7.4   Both Baroness Blackstone and Kim Howells have made it clear that the Government will amend the Bill to avoid placing unnecessary burdens on churches. DCMS is discussing possible solutions with church organisations and suitable amendments will be tabled for consideration at Report stage in the House of Lords.

8.    Entertainment in sports clubs.

8.1    Contrary to some claims, sports clubs do not enjoy any exemptions for the provision of entertainment to which the public are admitted. In addition, if a club is selling alcohol as a registered members club for its members and their guests, it needs a certificate of suitability from the local authority for entertainment provided after 11pm and a special hours certificate from the magistrates' court. If they are currently holding activities without licences it will be for other reasons such as that they are private events.

9.    Music and dance studios.

9.1    The Licensing Bill will not result in the licensing of performances in a rehearsal studio or broadcasting studio for the simple reason that no audience would be present. A licence would only be required if the equipment in the studio is being used to provide entertainment to the public and as rehearsal studios do not generally provide entertainment or the facilities for people to take part in entertainment there is no requirement for a licence. However, if a dress rehearsal is provided for the public an authorisation will be required. A broadcasting studio recording a programme without an audience is similarly exempt.

10.   Music shops and recording and broadcasting studios

10.1   With regard to a music shop, if a customer wishes to test a new musical instrument, for example, there would be no requirement for a licence. The playing of the instrument in the shop is for the purpose of demonstrating and selling the instrument, and not for the purpose of entertaining the potential purchaser.

10.2 Performances in a rehearsal studio or broadcasting studio are not licensable where there is no audience present. Entertainment facilities at such studios only give rise to a requirement for a licence if the means provided for making music are provided for enabling persons to take part in an entertainment. Rehearsal studios are not providing an entertainment or providing facilities for people to take part in an entertainment. A broadcasting studio recording a programme without an audience is similarly exempt because it does not charge the musicians for the facilities. On the contrary, it pays them.

11.   Why licence entertainment

11.1   The Government requires certain types of entertainment to be licensed because they raise issues of public safety, nuisance and sometimes crime. The Government does, however, recognise that the licensing system should be able to take into account the nature of the entertainment and treat it accordingly. Under the present system local authorities sometimes attach swathes of standard conditions to entertainment licences whether or not they are needed. This will not be possible under the new licensing regime. Major venues staging rock bands would therefore be the subject of more restrictive conditions than a small pub or club that puts on unamplified live music.

11.2 The Government does not accept that certain types of music, for example acoustic, are never "noisy" or never raise public safety issues and should therefore be excluded from the licensing regime. If music is to be performed for the public at a premises, then the licensing authority should have the power on receiving representations to impose necessary and proportionate conditions in order to protect residents and customers.

11.3 Nor does the Government accept that existing health and safety and noise legislation provides sufficient safeguards where premises are used for entertainment. Health and safety assessments relate to premises in normal use. Their use for entertainment often gives rise to particular issues, for example:

• Temporary cabling and staging
• Blocking of fire exits
• Unusual distribution of people in the premises
• Certain aspects of crowd behaviour
• Unusual noise disturbance

It is to address these and similar issues that public entertainment has been and continues to be a licensable activity.

12.   Folk music and traditional activities such as Morris dancing, wassailing etc.

12.1   There is no reason why any of these activities should be adversely affected, as at present any performance that involves more than two musicians or dancers in a single session would require a licence. Under the new regime licences for music and dancing can be obtained for any premises where an application to sell alcohol is made at the same time for no additional cost.

12.2 As detailed above, centrally set licence fees and the control of conditions imposed by licensing authorities will remove the deterrent of high charges for licences and allow these activities to flourish. In addition, spontaneous singing and dancing would not be caught.

12.3   Unfortunately, music is also sometimes associated with drugs culture and related crime. This is not just true of nightclubs. The 16th Annual Brecon Jazz Festival resulted in 90 arrests for controlled drugs offences and 23 people were taken into custody for public order disturbances.

13.   Clowns, story-tellers, magicians, children's entertainers, stand-up comedians

13.1   These entertainments would not of themselves be licensable. They might however require a licence if, for instance, a comedian played the guitar and sang a number of songs as part of his act and the entertainment fulfilled the other conditions of a licensable activity.

13.2 Even if these performers activities were licensable because, for example, a guitar was played as part of the performance, no licence would be required for performances that took place in private homes or gardens for private parties unless the host took the unusual step of charging the guests to attend with a view to making profit. The same would apply to performances at children's or old people's homes. However, if the entertainment takes place at a venue to which the general public are admitted, or if the audience was charged, with a view to profit, to attend, a licence would be required.

14.   Carol Singing

14.1   Carol singers going from door to door, or just deciding to sing in a particular place, or even turning up unannounced in a pub and singing - whether collecting for charity or not - would not be providing regulated entertainment, just as drinkers in a public house who suddenly decided to start singing carols would not be licensable. However, where a place such as a shopping centre arranges for a group of singers to sing carols this will be the same as their arranging any performance of live music. It will be the provision of regulated entertainment and will need to be provided under the authorisation of a premises licence or temporary event notice.

14.2 The position for carol singers within London would be no different under the new regime. Outside London, carol singers who perform organised events inside a building would continue to be licensed - they are currently licensed under the Local Government (Miscellaneous Provisions) Act 1982. However, carol singers who perform organised events in the open air would require a licence for the first time once the Bill comes into force. However, it is not unreasonable to expect that a shopping centre, railway station or similar premises obtain a premises licence or temporary permission to enable such entertainment to take place.

15.   Church bell ringing

15.1   Church bell ringing would not be licensable. First, if the bell ringing were incidental to a church service it would be exempt. Secondly, if it is undertaken as a hobby or for fun, it would not be licensable because there would be no audience present on the premises and finally, the bells would not be licensable as an "entertainment facility" because the church would not charge the bell ringers for the use of the facilities. However, if an organised bell ringing event takes place for the public that would be licensable.

16.   Spontaneous singing

16.1 Section 2 above sets out what is regulated entertainment for the purposes of the Bill Any spontaneous singing, for example of "Happy Birthday" would not be licensable.

16.2 This is not explicitly stated in the Bill because it does not need to be. Legislation sets out definitions of the activities that need to be licensed and any exemptions that might apply. It does not provide exhaustive lists of the activities that are not licensable. This is unnecessary. An activity is either within the scope of the definition or exemption but if it is not it is not covered by the provisions of the Bill The Government is not going to change the form of Government Bills that has been used for hundreds of years just because the Musician's Union disapprove of it.

16.3 Contrary to some suggestions, a postman whistling on his round would not require a licence.

17.    Rehearsing or practising

17.1   Practice or rehearsal of any form of entertainment would not be licensable unless the public were allowed to attend or a charge was made for a private audience. A dress rehearsal to which the public were admitted would be licensable.

18.   Music lessons

18.1   Music teachers will also not be licensable because there is no public performance and the playing of music in this context is not for the purpose of entertaining the students but for the purpose of educating them. An end of term concert given by the pupils of a particular teacher would also be exempt so long as the invitation to attend was only open to family and friends and the general public were not invited, unless a charge was made to attend with a view to a profit (ie to cover more than costs).

19.   Exemptions for broadcast entertainment and incidental music

19.1   Broadcast entertainment on satellite or terrestrial T.V will be exempt from the licensing regime. This is for a number of reasons, including that the Bill is deregulatory and does not require the licensing of any forms of entertainment that are not currently licensable. It is also the case that no professional bodies responsible for public safety have approached the Government arguing that it is necessary to licence such activities under the Bill.

19.2   In the Bill we have identified entertainments that need to be licensed in their own right. For example, music and dancing because of, among other things, noise and drugs culture and late night refreshment because of disturbance. Watching television - which almost every citizen does every day of their lives - does not in itself give rise to the need for licensing.

19.3 The Bill also contains an exemption for the playing of recorded music that is incidental to other activities that are not of themselves entertainment. Jukeboxes in a pub would not therefore need to be included on a premises licence, unless, for instance, a dance floor was also provided. The reasons for this exemption are similar to that of broadcast television that is that the playing of incidental recorded music does not of itself give rise to issues that require it to be licensed. A DJ playing to a public audience would, however, be licensable.

20.   The Bill's compliance with the European Convention on Human Rights

20.1   Baroness Blackstone has made a statement under section 19(1)(a) of the Human Rights Act 1998, saying that she is satisfied that the provisions of the Licensing Bill are compatible with the European Convention on Human Rights.

20.2 The Joint Committee on Human Rights has written to the Department for Culture, Media and Sport for further information in relation to two specific matters. The Department has replied and awaits the Committee's response.

20.3 The right of freedom of expression has to be balanced in a sensible and proportionate way with the rights of local residents to the peaceful enjoyment of their possessions.

21.   Entertainment events held to raise money for charity

21.1   Under the existing regime licensing authorities may waive or reduce fees for charitable events taking place outside Greater London.

21.2 Charitable events will not be exempt under the new regime because the risks associated with charity events where the aim is to raise money, albeit in a good cause, are no different to those at other types of public performances; for example charitable events, such as major concerts like Live Aid, do not give rise to any diminished risk to the safety of the public. It is perfectly sensible that the safety of the public is properly considered whether a concert is staged to raise money for a charity or conducted for profit.

21.3 The Secretary of State has powers under the Bill to set licensing fees and will be able to waive or reduce fees as she sees fit.

22.   Licensing of live music in Scotland

22.1   It is often argued that the entertainment licensing that is used in Scotland should apply to England and Wales. Licensing law in Scotland has been separate to that of England and Wales for many years.

22.2 In general terms, the licensing system in Scotland provides that public entertainment is covered by a licence permitting the sale of alcohol, but only within formal permitted hours. Many licensed premises in Scotland do have extended licensing hours because of the more flexible system operating there. There is, however, nothing in the Licensing (Scotland) Act 1976 which denies the Licensing Board the power to restrict or forbid entertainment activities by conditions, either specified in by-laws or attached to licences. Although by-laws prohibiting live music in Scotland are rare, the law provides Boards with these powers should they be necessary. This is similar to the system proposed under the Bill whereby conditions would be attached to licences only where they prove necessary. As we intend to abolish permitted hours and the new hours, up to twenty-four hours a day, will be tailored to specific premises it would be inappropriate to adopt the Scottish system, which is based on national permitted hours. Our approach is more flexible.

22.3   Finally, the Licensing Bill sets out a system for licensing in England and Wales, not Scotland, and not any other country. Scotland is currently reviewing its licensing laws.

23.   The new licensing regime and existing law

23.1   There are claims that that existing regulations relating to noise, fire and health and safety are sufficient and that entertainment should not therefore be licensed. There is however no law in this country, which addresses public nuisance generally.

23.2 It is also the case that in several respects, premises providing public entertainment are exempt from aspects of safety legislation precisely because the matters are dealt with by licensing law. Live performances raise issues of public safety and nuisance that must be addressed both to ensure the safety of those attending such events and the rights of local residents. But where these issues are not of concern due to the nature of the performance, costly conditions will not need to be attached to the licence.

24. Penalties for carrying out licensable activities without a licence

24.1   While it is true that performers who take part in a musical performance would potentially commit an offence if an appropriate authority under the Bill has not been granted, a defence of "due diligence" is provided in clause 137 of the Bill. This provides a defence against the criminal offence where "the act was due to a mistake, reliance on information given to him or to an act or omission by another person or to some other cause beyond his control, and he took all reasonable precautions and exercised all due diligence to avoid committing the offence". Accordingly, a musician should check that any venue has proper permission to stage regulated entertainment, but if he is misled by the organiser, he is fully protected by the Bill.

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.

DCMS January 2003