HELP with UK Music Licencing problem?

Subject: RE: HELP with UK Music Licencing problem?
From: GUEST,mikethemike
Date: 26 May 04 - 02:11 PM

My apologise for not remaining in the thread of things, had to go away!   But, not being one for all this chat thing I didnt realise that so many people would actually bother to read, let alone answer my question.   Many thanks for your replies. I have had an answer from the local police office in charge of licencing, who assures me that after asking his "learned friends", that I will not need to worry about any licencing because this is a private party, not open to the public . But the organisers should be concerned about the Noise problem with the neighbours, which seems a reasonable remark. The gig is in July, I shall let you all know in due course the outcome. In the meantime I shall follow the thread.    Regards

Subject: RE: HELP with UK Music Licencing problem?
From: The Shambles
Date: 26 May 04 - 11:59 AM

Certainly, the government sought credit for having it removed from the bill during its passage. *Smiles*

I am sure they did. However, I feel that the hard work and credit for this and many other measures that make the Act (only slightly) less of a 'pig's ear' than it might have been, is due elsewhere.

Subject: RE: HELP with UK Music Licencing problem?
From: RichardP
Date: 26 May 04 - 10:11 AM

Shambles,

You wrote "Despite the reassuring tone of all of Richard P's postings - it as well for us to to remember that the original intention of the Bill was that musicians would be committing an offence. "

It is certainly true that the original would have had the effect that musicians could have committed an offence. It is impossible to know whether it was an intention or a case of inappropriate drafting. Certainly, the government sought credit for having it removed from the bill during its passage.

Of course the true cynic would accuse them of including it for the primary purpose of getting credit when it was removed.

Whatever the motivations in the past. The Act does not put musicians at risk of preosecutioin for playing music.

Richard

Subject: RE: HELP with UK Music Licencing problem?
From: RichardP
Date: 25 May 04 - 01:55 PM

Richard,

You will know better than I that no normal person is immune from prosecution for almost anything. However, in the two cases you site I am sure that you would expect to go to court with an incredibly strong defence case unless and until some judge upsets the applecart.

I think that you are right that there are some circumstances where an organiser in a private event could ned a licence, however I am pretty sure that the case which started this thread is not such a case.

There is a risk of tunring this thread into a parallel general thread on licencing rather than concentrating on the particular case which initiated it. Such a generalisation will benefit noone.

Richard

Subject: RE: HELP with UK Music Licencing problem?
From: Richard Bridge
Date: 25 May 04 - 03:31 AM

All from memory, but...

Also if there is more than one musician and one lends another an instrument there is a technical problem.

Another technical problem is if there is a bandleader and the band is paid by payment to the bandleader.

Finally "In your case the organiser would not need a licence under the new Act if the event in his marquee was not open to the public." I am not clear that this is correct in all circumstances.

Subject: RE: HELP with UK Music Licencing problem?
From: The Shambles
Date: 24 May 04 - 07:11 PM

I think you would accept that the effect would be the same and for many small-scale (folk) events, the organiser is very often also a participating musician.

Despite the reassuring tone of all of Richard P's postings - it as well for us to to remember that the original intention of the Bill was that musicians would be committing an offence.

Subject: RE: HELP with UK Music Licencing problem?
From: GUEST,Peter from Essex
Date: 24 May 04 - 03:06 PM

But the offence would arise from the role of organiser not from the role of musician.

Subject: RE: HELP with UK Music Licencing problem?
From: The Shambles
Date: 24 May 04 - 02:05 PM

When the new act comes into force, no musician or singer can commit an offence by singing or playing. Only premises owners/operators and organisers making a profit out of an event can commit an offence.

If the musician was also the organiser of an event, where they knew there to be no entertainment permission, they would be committing an offence.

Subject: RE: HELP with UK Music Licencing problem?
From: RichardP
Date: 24 May 04 - 12:54 PM

Unless you have taken the booking more than twelve months in advance, the new Act will have no impact on your gig.

Under either Act the local police are not directly involved the licencing of entertainment, so don't hold out too much hope or put too much reliance on any information they provide.

When the new act comes into force, no musician or singer can commit an offence by singing or playing. Only premises owners/operators and organisers making a profit out of an event can commit an offence. In your case the organiser would not need a licence under the new Act if the event in his marquee was not open to the public. Even then, if the event was more or less a one-off it would be sufficient for him to serve a "Temporary Event Notice" at no cost.

RichardP

Subject: RE: HELP with UK Music Licencing problem?
From: GUEST,mike the mike
Date: 23 May 04 - 04:45 PM

Many thanks for a speady reply. This is a booking gained by me and me alone I dont use agents. Do I therefore I assume this is classed as being booked direct? This customer saw me, liked me and booked me.
I have also contacted the local licencing officers at the local police station I will let you all know the resulting answer

Subject: RE: HELP with UK Music Licencing problem?
From: Richard Bridge
Date: 23 May 04 - 04:05 PM

I am not going to re-read the new Act again now but I think there may be theoretical problems still capable of arising. It was intended to catch private events at members' clubs, and you may get the sidewash.

Subject: RE: HELP with UK Music Licencing problem?
From: GUEST
Date: 23 May 04 - 03:04 PM

Under the old (still in force) rules - no
Under the new rules - not if you were booked direct. There has been some debate about the situation where an agent is contracted to provide the entertainment.

If the event is not genuinely "private" then a PEL will be required.
Under the old rules this isn't your problem. Under the new rules you will be required to show that you used due dilligence to determine that it wasn't a licencable event.

There are a whole separate set of issues about noise and public nuisance. Local authorities are empowered to confiscate sound equipment in certain circumstances.

Subject: RE: HELP with UK Music Licencing problem?
From: GUEST,Mikethemike
Date: 23 May 04 - 01:22 PM

I am singer/entertainer.
I read all the questions and answers with intrest.   Could somebody answer this poser please. I have been asked to do an evening for a private party, at a private address, in a marque erected in the garden.   The garden is large but still surrounded by other houses.
I use pre-recorded backing tracks which will be amplified ( but not to loud). People will obiously end up dancing. And I plan to finish about 11.30/12.00. Will the organiser need a licence of any kind ?

Subject: RE: HELP with UK Music Licencing problem?
From: Dave Bryant
Date: 04 Feb 04 - 06:58 AM

I hope you don't want to shop them to the authorities ! I think they come in the Tendring area.

I've sung there dozens (possibly hundreds) of times over the last 25 years, and I've never signed a membership form. Perhaps they have got a license now. Have a word with Jon at Thrift Music, as he runs the folk club there. They do of course run many events there during the Folk Festival, and there is also the Shanty weekend during November.

Subject: RE: HELP with UK Music Licencing problem?
From: GUEST,Peter from Essex
Date: 03 Feb 04 - 04:23 PM

Is the RM definitely unlicensed and not insisting on membership?

Subject: RE: HELP with UK Music Licencing problem?
From: Dave Bryant
Date: 03 Feb 04 - 07:22 AM

They never seem to have any problems with licensing rules about 10 miles down the road at "The Royal Marine" Walton-on-the-Naze :-)

Subject: RE: HELP with UK Music Licencing problem?
From: The Shambles
Date: 03 Feb 04 - 01:53 AM

The answer is YES under the current and the new legislation.

At the moment because MIDI is considered as 'recorded sound' and a combination of that and even one live 'performer' is NOT exempt under S 182 'the-two-in-a bar-rule.

Subject: RE: HELP with UK Music Licencing problem?
From:
Date: 02 Feb 04 - 07:50 PM

Please advise if an Entertainments Licence is required for Karaoke at a small bar in Colchester,Essex.The stage holds about 4 people and Karaoke is held twice weekly.
Thank you.Mike Mackenzie

Subject: RE: HELP with UK Music Licencing problem?
From: Roger in Sheffield
Date: 26 Aug 01 - 01:17 PM

The Unicorn link won't work for me - out of date?

Subject: RE: HELP with UK Music Licencing problem?
From: McGrath of Harlow
Date: 05 Feb 01 - 07:43 AM

Sorry - that link just got us back here. ("There must be some way out of this said the Joker to the Thief..."). This one should do better:Sessions under threat in the UK?

Subject: RE: HELP with UK Music Licensing problem?
From: McGrath of Harlow
Date: 05 Feb 01 - 07:38 AM

New legislation is pending in respect of all this, if U understand Lord Bassam of Brighton's reply above in Hamish's initial post.

This would mean that somewhere someone, or more likely a committee of some kind, has been given the job of drawing up draft legislation. And that would normally include a duty of consulting with relevant people, and allowing member of the public to make representations.

So that is the information that we need, so that people like us can make our representations. It's obviously better if possible to get these sort of things right while the legislation or regulations are being drafted, rather than try to get them amended at a later stage.

So any information about that Hamish, or anyone?

This seems to have developed into an exchange between four of us - but there must be other people with useful contributions to make. Especially maybe on that point I raised about what happens elsewhere, especially perhaps Ireland.

Since this is getting rather long, I've started a part 2, with a new title, since that might get a few other people involved.Sessions under threat in the UK?. So I suggest that we adjourn there.

Subject: RE: HELP with UK Music Licencing problem?
From: Richard Bridge
Date: 05 Feb 01 - 07:07 AM

Hamish, you are one or two jumps ahead as usual.

THe parliamentary draftsman does not always know what he is doing, as the decades of muddle about "Road Used as a Public Path" demonstrates. Smetimes this leads the law into stragne byways.

I strongly suspect that a performer is to be viewed here as widely as in what used to be the perforemrs' protection acts, and as now is in Part III of the COpyright Designs and Patents Act - where the policy is one of inclusion. If (for example, and not by way of limitation) you sing out loud in the knowledge that others will hear I would expect that to be a "performance". I see no reason (yet) to think otherwise, with all respect to the learned author you cite. But the only ways to get a better idea would be to doble check in say LEXIS or LAWTEL to see if there are any cases if not deciding the issue at least coming close toit, or possibly trying to find Hansard from when the old Act was passed.

By the way, can you scan and post the whole of S182 and surrounding and related clauses, if you have the textbook?

'Twould facilitate rational debate rather than speculation.

I have had a look at the White paper (found in DOgpile search) and if I am looking at the right thing I don't see it saying what you say, so I am probably looking at the wrong thing. Can you provide a link or a url? I guess it must be on the open gov website somewhere.

Subject: RE: HELP with UK Music Licencing problem?
From: The Shambles
Date: 05 Feb 01 - 04:00 AM

Thanks Hamish. Is it really only just the four of us?

I do appear to be giving the legal mind more credit than possibly others are doing? For I do not believe that 'sloppiness' was the reason that the word 'performers' was used in 1964, in wording legislation on Public Entertainment Licensing. For however unfortunate the result of the legislation may be, there would have been a very good reason to use the word 'performers'. It would have been chosen with great care.

Am I now being told that this care was not taken?

Subject: RE: HELP with UK Music Licencing problem?
From: GUEST,Hamish Birchall
Date: 05 Feb 01 - 03:54 AM

Hello again Shambles, McGrath, Richard

Lawyers cannot agree who counts as a performer. One of the bibles for licensing officers is 'Entertainment Licensing - Law and Practice' (Butterworths), by academic lawyer Dr Colin Manchester.

It was Dr Manchester who e-mailed me last year confirming that 'there is no decided authority' to support an interpretation of s 182 which counts members of the public performers if they join in with music making in a pub (either singing or playing an instrument). His personal view was that a 'performer' was someone specifically engaged by the proprietor for the purpose.

And it was Dr Manchester who pointed out that the provision of s 182 'cannot be public safety because it operates irrespective of the number of persons present' in premises.

I have had two informal opinions from QCs agreeing that this is a 'freedom of expression' issue, one from Simon Mehigan and the other from Robin Allen. Mr Mehigan is an editor of Butterworths 'Licensing Laws', and Mr Allen is the co-editor of the study guide to the Human Rights Act published jointly by the Bar Council and the Home Office last December.

The licensing White Paper has already dispensed in principle with a separate entertainment licensing framework, this being subsumed into the 'Premises Licence' which will apply to all on-licensed premises (pubs, clubs, bars etc).

The White Paper also emphasises that safety conditions should not exceed the safety provision available under existing health and safety legislation, and, by allowing local people to object to the 'operating conditions' (which will include whatever entertainment will be on offer in the premises) this will increase 'local democracy' in the decision to grant a Premises Licence.

Subject: RE: HELP with UK Music Licencing problem?
From: The Shambles
Date: 05 Feb 01 - 02:16 AM

Sorry if I am not able to see this issue in the required detached manner. I speak as one who has spent a lot of time and ennergy in organising an event, which struggles on and remains under a cloud because officals are appearing and couning me and the other musicians as performers.

Section 182's numerical requirements refer to specifically to performers. Not musicians, members of the public or to customers.

It would be obvious to anyone, without a hidden agenda, visiting that they are not witnessing a performance.

The onus is on the officers to define the word, for they remain the only ones who are seeing performers and a performance.

Subject: RE: HELP with UK Music Licencing problem?
From: The Shambles
Date: 04 Feb 01 - 08:30 PM

Thank you Richard but the present situation is that we seem to have something with a devastating legal effect, being exercised without such a definition.

I have found that most of the legal minds I have recently spoken to, know a lot less about informal musical gatherings, than even I know about the law.

Is it possible that musicians and licensees may actually be more qualified than lawyers, to determine what a performer is, or what controls are placed on their livelihoods and right of cultural expression?

Lawyers would certainly more qualified to enable any definition arrived at, to have legal effect.

Perhaps you could inform us what the Section 182 definition of a performer is? This law is the only reason such a definition is required and according to some interpretations, would appear to be anyone who makes music anywhere?

The licensee pays the performer, the customer pays the licensee. The definition really is that simple.

Subject: RE: HELP with UK Music Licensing problem?
From: McGrath of Harlow
Date: 04 Feb 01 - 07:27 PM

"Politicians will never release a licensing system for public entertainment, so you will need to be very clear what you try to lobby for."

Well, I agree with that last bit about needing to be very clear what you are asking for, because you just might get it - but the law at present specifically makes a blanket exception for licensed premises, for certain types of "entertainment".

And the government is apparently committed to changing the existing law - so essentially what would be likely to suit us would be that the new law makes a similar blanket exemption, but not on the basis of numbers but rather on that of non-amplification. And maybe only applying where no admission charge is involved.

And I don't think there's any need to assume that something on those lines that would necessarily be looked on unfavourably, if presented in the right way. I think it seems fairly common-sensical.

Ideally, as I've indicated, I'd like that examption to be extended to other places, like coffee bars and barber shops and anywhere where people might like to get together. But licensed premises would be a start - and they have the advantage, from a government point of view, that there is in place a procedure that is supposed to ensure that they are safe and well-conducted.

If we can't get the relevant text of the legislation off the Internet, I suppose trying to trace it down in hard cover will be the necessary course of action. However the most relevant text is not the existing law, but the proposed replacement - and that should be on the net somewhere.

Subject: RE: HELP with UK Music Licencing problem?
From: Richard Bridge
Date: 04 Feb 01 - 07:05 PM

Hamish, that was good. With respect, Sham, you can't just make up a definition and expect it to have legal effect, however good it might be. As to what one wants, many folk clubs charge entrance. Some also use PA. Politicians will never release a liceinsng system for public entertainment, so you will need to be very clear what you try to lobby for. Magrath, some public libraries will have Halsbury's laws and Halsbury's statutes, or the law department of a local university or poly.

Subject: RE: HELP with UK Music Licensing problem?
From: McGrath of Harlow
Date: 04 Feb 01 - 05:18 PM

Thanks for the article, Shambles. It strengthens the worries I have about the dangers. With an election coming up, this is a good time to write to MPS. And would-be MPs.

But I want to be a bit clearer about a few matters first, because this isn't the kind of thing I expect my MP to be too knowledgeable on - so it'd be handy to have a clearer indication of what the position is as regards proposed legislation/regulations - who has the job of drafting it, what working drafts might be in existence etc.

Something else that would be helpful would be knowing what the legal position is in other countries in the European Union, especially perhaps Ireland. And how about Scotland? (Is this something where the Scotish ASssembly no whas authority rather than Westminster? (And Wales?)

I mean, if someone else has got it more or less how we'd like it, in a way that is consistent with Human Rights requirements, that would be useful to know. No need to re-invent the wheel.

Subject: RE: HELP with UK Music Licencing problem?
From: The Shambles
Date: 04 Feb 01 - 03:42 PM

SCOFF Article here.

Subject: RE: HELP with UK Music Licencing problem?
From: The Shambles
Date: 04 Feb 01 - 06:20 AM

I have tended to concentrate on events where the musician is not a performer, and this is easily demonstrated to anyone wishes to see it. There are those however, who may think they have reasons not to look too hard to see this distinction?

A performer is a member of the public, whose prime reason for being present in a public house, is to make music at the publican's request because the publican is paying them for that service.

A performer is not a member of the public whose prime reasonfor being present in a public house is as a customer. ……If as a customer they may make music as an expression of their cultural identity, having obtained the publican's permission to do so, this does not then make them a performer.

I could be considered to be a bit of an expert in the field of informal musical gatherings but as is probably very clear from the wording of the above, I am not a lawyer. I would be grateful if the legal-minded of us could help and comment constructively on the above, rather than just to quibble.

Even a silent acceptance by licensing authorities of this general interpretation would mean that informal musical gatherings could take place and hopefully be advertised openly, in the present legal uncertainty. This would be a good first step.

It can easily been seen why a licensing officer would see the above interpretation as a 'Trojan Horse' and one that would make enforcement of the Section 182 requirements more difficult. However the law does not exist just to make our lives difficult or to make their lives easy, or does it? Possibly this one does?

If the licensing authorities continue to force this issue, despite HM Government's clear message (above) that they should not do so, they are 'shooting themselves in the foot' I do not see that there is any choice but to use this wonderful opportunity that they have presented to us. The media will have great fun with this. It is up to us to bring it to their attention.

The next step?

The fact that only 20% of licensed premises hold PELs, it is unfortunately very easy to demonstrate the pretty disastrous effect that the Section 182 requirements have had in limiting on the community's rights of cultural expression.

For you have only to look at the musical events taking place in public houses in your area, to see that the majority of these consist of musicians working solo or in duo form. This is rarely I would suggest, entirely out of choice or entirely for artistic reasons.

A number of these events are not advertised, for fear of bringing unwelcome attention from licensing officers. I wonder how many planned events do not even get off the ground, for the same reasons?

All this where there are no issues of noise or public safety.

Subject: RE: HELP with UK Music Licencing problem?
From: McGrath of Harlow
Date: 03 Feb 01 - 02:28 PM

Hamish, what you said there confirmed my worries about the cackfisted way our legislators have when it comes to reforming absurdities, which rends to be just to compound them.

The crucial thing which has emerged from this is that there needs to be a recognition that it is unfair and unjust, and probably illegal to count people playing or singing primarily for their own benefit as "performers".

Coordinated lobbying sounds like a good idea. But I think it would be helpful if we have aclearwer idea of what excatly we would ideally like the situation to be.

I think the essential thing should be that non-amplified music, where no paid entry fee is charged should be protected from any requirements for licensing, unless there is any reason to believe that a public nuisance is being created, or that public safety is being put at risk.

That would cover coffee bars, barber-shop quartets in barbershops or whatever as well as pubs. It would also be very much in-line with the Human Rights requirements.

Subject: RE: HELP with UK Music Licencing problem?
From: GUEST,Hamish Birchall
Date: 03 Feb 01 - 06:18 AM

Sorry about the duplicated message - the first didn't seem to go through.

H

Subject: RE: HELP with UK Music Licencing problem?
From: GUEST,Hamish Birchall
Date: 03 Feb 01 - 06:12 AM

Medieval theologians were divided over just how many angels could dance on a pin-head. Just who counts as a performer under s 182 of the Licensing Act 1964 is an equally spurious debate.

The fundamental principles are: everyone's right freely to participate in the cultural life of the community, [and] to enjoy the arts... (Article 27.1 Universal Declaration of Human Rights); and freedom of expression (Article 10.1, European Convention etc).

Public authorities may only interfere if there is a genuine risk to public safety. Establishing whether this is the case is a statutory duty shared by the licensee and the Environmental Health department of the local authority.

Public disorder issues are dealt with by the police under separate legislation. Noise issues are dealt with under the Environmental Protection Act, and Noise at Work Regulations.

Local authorities, as emanations of the state, share the duty under Article 27 of the UDHR to promote access to every form of cultural life, including sing-alongs in pubs. But the primary legislation itself (s 182), excessive fees and conditions, and a strangulation grip of enforcement together constitutes a grave violation of this right.

It is a national scandal that folk clubs in England are actually being forced into hiding in order to put on performances (in Norwich at least). There really is more than a suggestion of Fascistic oppression about this, and that is what gave rise to the formulation of fundamental human rights in the first place.

The Government's licensing reforms, published in a White Paper last April, mentioned musicians only twice, and both references were negative. The first announced that the reason for doing away with s 182 was because two musicians with amplifiers can make more noise than three without; the second was that musicians could face reduced opportunities for work when s 182 is scrapped.

You are right to say, therefore, that we could be in a worse position if local authorities then fall on all entertainment with the same ravening intensity.

There has to be a profound shift in public opinion in order to bring an end to the present oppressive regulatory regime. This will only be accomplished by persistent lobbying: of local authorities (arts departments particularly), MPs, the Arts Council, the Home Office, the Local Government Association, and lastly, but almost more important, the media.

[e-mail]

Subject: RE: HELP with UK Music Licencing problem?
From: GUEST,Hamish Birchall
Date: 03 Feb 01 - 05:53 AM

Medieval theologians were sharply divided over just how many angels could dance on a pin-head. Who counts as a 'performer' under s 182 of the Licensing Act 1964 is an equally spurious debate.

The fundamental principles are: everyone's right freely to participate in the cultural life of the community, [and] enjoy the arts... (Article 27.1 Universal Declaration of Human Rights, 1948); and the right to freedom of expression (Article 10, European Convention etc etc).

Local authorities may only interfere when public safety is genuinely at risk. Establishing whether this is the case is a statutory duty shared by the licensee and the local authority Environmental Health dept.

Public disorder issues, inside or outside premises, are dealt with by the police under separate legislation.

Where there are no noise or safety concerns, local authorities, as 'emanations of the State', have a duty to encourage local cultural life. But the primary legislation itself (s 182), excessive fees and conditions, and the strangulation grip of enforcement combine to violate these basic rights.

The only plausible argument I have heard for retaining a separate licensing system for public entertainment is that it allows local authorities to tailor other types of condition (parking restrictions, for example)specifically to the premises and the entertainment in question, and that a PEL gives local people have a sense of control of what is going on in the neighbourhood. This is the line local authorities will take in defending their need for strict regulation of public entertainment.

While the first part of that argument is achievable under existing health and safety legislation, the second is more problematic.

The word 'licence' is very reassuring for certain people -it has a ring of authority, even when its function is virtually redundant. The deep divide that exists between kill-joys and good-timers in this country means that it won't be easy for one section of the community to let go of the absurd idea that even a pub sing-along should be licensed.

Entertainment licensing per se was first codified in the 'Disorderly Houses' Act of 1751. The rationale was explicit: 'The multitude of places of entertainment for the lower sort of people is another great cause of thefts and robberies, as they are thereby tempted to spend their small substance in riotous pleasures and in consequence are put on unlawful methods of supplying their wants and renewing their pleasures'.

The relish with which licensing departments enforce PELs surely harks back to these attitudes.

The Government's licensing White Paper (Time for Reform: Proposals for the Modernisation of our Licensing Laws), published last April, was negative about musicians.

There were two specific references: one explaining that s 182 should go because two musicians with amplifiers can make more noise than a band without; the other identifying a risk that musicians could face reduced opportunities for work when s 182 is scrapped.

In other words, the Government knows that the new licensing regime would simply allow local authorities to fall like ravening wolves on all types of entertainment. And I have letters from Camden's Prosecuting solicitors expressing the view all public entertainment should be licensed 'for reasons of public safety' - a view shared by many local authorities.

So it is essential to keep up strong lobbying of local authorities (arts departments), MPs, the Department of Culture, the Home Office, the Arts Council, and the Church of England (Board of Social Responsibility) and to generate as much media coverage as possible. I feel sure that if it were widely known that folk clubs are being forced to perform in secret locations, this would be a great story for local and even national tv. Someone must know a good producer or two...?

Ultimately it is only by a shift of public opinion that the law will be changed so as to end the present oppressive regime.

[e-mail]

Subject: RE: HELP with UK Music Licencing problem?
From: McGrath of Harlow
Date: 02 Feb 01 - 07:34 PM

Well, here is the relevant extract from that site Richard helpfully found us (the link direct seems to have a problem, but I ferreted around on the site, which is Herts County Council's, and got there eventually):

Section 182(1)
(Relaxation with respect to licensed premises of laws relating to relating to music and dancing licenses and billiards)

No statutory regulations for music and dancing shall apply to licensed premises so as to require any licence for the provision of public entertainment:

a) By the reproduction of wireless (including music television) broadcasts

b) By way of music and singing only which is safely provided by the reproduction of recorded sound.

c) By not more than two performers.

d) Sometimes in one of those ways or sometimes in the other.

Which by itself seems to suggest that if they just remove section 182, as Lord Bassam of Brighton indicated they are planning to do, it will mean that a pub will have to apply for licences for anything, including playing a wireless set, or having even a single person singing or playing.

Which doesn't seem a great improvement. But then I got the distinct impression from that Hansard extract that the Lordships don't have a clue about this whole thing, even less than the rest of us.

Subject: RE: HELP with UK Music Licencing problem?
From: Richard Bridge
Date: 02 Feb 01 - 06:35 PM

Format won't copy. Go to

http://www.hertsdirect.org/infobase/docs/worddocs/5211063

Subject: RE: HELP with UK Music Licencing problem?
From: McGrath of Harlow
Date: 02 Feb 01 - 03:27 PM

Could some clever soul find Section 182 and post a link to it, or post the text itelf, if it's not on the net anywhere. (And then of course it will be on the net for any future purposes...I mean, if they are going to get rid of it, it's as well to know, in case there's anything in it we might value.)

Subject: RE: HELP with UK Music Licencing problem?
From: The Shambles
Date: 02 Feb 01 - 03:16 PM

If the distinction between a performer and a member of the public, making music for their own entertainment in a public house, presents a problem. This distinction can be clearly and easily demonstrated in the quite different relationship the publican has with them.

This difference should be immediately obvious to any competent enforcement officer following the Cabinet Office Enforcement Concordat of March 1998, before they proceed with any threats of prosecution.

The performer is employed by the publican to perform. If the publican does not want them to perform, they inform the performer and the performer will not turn up on the night, ready to perform.

The member(s) of the public has usually asked the publican's permission to make music in their public house, and is there because they are a customer. If they are a customer who has come to the pub largely in order to make music and the publican is forced to ask them not to make music, the publican knows this will upset the customer and they are unlikely to come again.

A successful publican is one who does not upset their customers. The licensing authority should recognise this and not place the publican in an impossible position. They should certainly not do so when there are no issues of noise or public safety.

In the case of an informal tradition music session, taking place on licensed premises, with publican's permission, it is quite clear that there are, no performers.

There are only customers providing their own entertainment.

Thus the number of them playing is not relevant.

They are using only their voices or non-amplified instruments.

There are no resulting issues of noise or public safety.

Therefore the requirement for a Public Entertainment Licence under section 182 of the Licensing Act 1964, is clearly not applicable, under these circumstances.

It would appear that the present situation, where central government has indicated that the Section 182 requirements are to be removed, but they remain in existence and still form the licensing authority's bible, is possibly the worst of all worlds.

Publicans, aware of the government's intentions will be understandably reluctant to pay additional funds for a PEL, and enforcement officers seem to be determined that the publicans will not get away with more than two performers, without one.

Sessions, clubs and other informal musical gatherings in pubs, appear to be taking most of the flak of this unsatisfactory situation.

An analogy (that is possibly a little OTT), would be one where those responsible for WW2 concentration camps, seeing that the camps were shortly to be liberated and a new order would be shortly set up, ignore that fact and then set about implementing their current orders, with an increased zeal.

Subject: RE: HELP with UK Music Licencing problem?
From: McGrath of Harlow
Date: 02 Feb 01 - 08:46 AM

Thanks for coming in here Hamish, that's interesting stuff. I've sent an email to Unicorn magazine drawing their attention to this thread and to your post especially.

As I say in a post earlier, Unicorn are trying to get information together about this, arising out of hassles that have effected the Ely Folk Club. The website link I put in my earlier post doesn't seem to work - but here us the email address I've got for them: [e-mail]

I think it might be worth getting directly on to them yourself, because they might well have gathered some useful information by now.

My feeling is that these restrictions probably wouldn't stand up in a court at the end of the day, but the status quo quite suits too many people, and the people who are adversely effected aren't in a position to fight it through expensive court actions. And there's also a worry people have that clarifying the legal position might even make things worse – which, given the way the courts work sometimes, isn't so silly. (Though I think the HRA might have changed the likelihood of this happening a bit.)

Subject: RE: HELP with UK Music Licencing problem?
From:
Date: 02 Feb 01 - 04:29 AM

I wrote the Bishop of Oxford's question, put to the Home Office in the House of Lords on Monday 11 December 2000. I am a jazz musician who has been researching and writing about the live music licensing issue for just over two years. The Church of England lends its name in support of my campaign because they feel that these laws are oppressive and unfair, and that more local access to live music can strengthen the community.

I now advise the Arts Council on the subject They now accept (better late than never) that the legal restrictions on live music, particularly folk and jazz, have become an anachronism and are working with the Department of Culture and the Home Office to ensure that licensing reform benefits local access to 'cultural life'.

What you may not know is that, in 1988, very similar laws were 'struck down' in New York City following a successful 'freedom of expression' lawsuit brought by jazz musicians. The laws (a 3-musician limit in zoned areas)had operated for more than 50 years.

Since the Human Rights Act came into force last October, 'freedom of expression' (Article 10 of the European Convention on Human Rights) has become available as a defence in UK courts.

I hope you don't mind if I take you through my analysis of why the violation of Article 10 for musicians should now be taken very seriously by local authorities.

Why should performances be stopped where there are no safety concerns? Article 10 is a 'qualified right', in the sense that there are limiting conditions. 'Public safety' is the only one that applies here. However, the provision of Section 182.1 of the Licensing Act 1964, which gives rise to all the formal cautions and prosecutions against local live music in pubs and bars, cannot be public safety because it operates irrespective of the number of persons present. For example, there may be only three people in a pub, but if they sing they are breaking the law - unless an entertainment licence is purchased. There can be no overcrowding issue here, and it is usually overcrowding that local authorities mean when they talk about public safety risks. In any event, public houses, like all 'workplaces', are covered by a slew of health and safety Acts and Regulations that cover all activities taking place on the premises. Providing employers have fulfilled their statutory duty to make comprehensive risk assessments, and the Environmental Health department has fulfilled its statutory duty to audit complaince with the appropriate statute - there should be no problem at all. Indeed, under Schedule 1 of the Health and Safety (Enforcing Authority) Regulations 1998, safety inspections may include 'practice or presentation of the arts... entertainment or other cultural activities' within their remit. That phrase has, I understand, been in the statute since 1989. In other words, if the pub was seriously unsafe, then either the local authority, the fire service, or both, must have failed to fulfil their statutory duty to ensure all workplaces are safe. Making live music an excuse to discover this is absurd, irrational and unfair. Satellite tv, for example, which is exempt from the public entertainment licence requirement, often attracts large and noisy crowds - but do you see Environmental Health inspectors wading in to turn off the TV? Not likely. But they can, and should, if there is any significant public safety risk. But local authorities prevent live music on the basis of a breach of Section 182 where no prior assessment of any public safety risk has been undertaken, and where no noise complaints have been received. It is this action that places them at risk of acting unlawfully under the Human Rights Act (HRA). Under the HRA, local authorities have a statutory duty to interpret all legislation compatibly with European Convention rights. Where there two possible interpretations of the law, one of which is compatible and the other not, the compatible interpretation must be taken. The fact that a court may have interpreted a law in a certain way before does not mean that after the coming into force of the HRA, it will interpret the provision in that same way. Nor can that earlier interpretation be relied upon by a public authority (i.e. local authority). Under the HRA all local authority prosecutions must also now pass a stringent test of 'proportionality'. I have adapted some of the above from the Home Office's own 'Core Guidance to Public Authorities'. Here's what they have to say about proportionality: This is a crucial concept. Any interference with a Convention right must be proportionate to the intended objective. This means that even if a particular policy or action which interferes with a Convention right is aimed at pursuing a legitimate aim (for example the prevention of crime) this will not justify the interference if the means used to achieve the aim are excessive in the circumstances. Any interference with a Convention right should be carefully designed to meet the objective in question and must not be arbitrary or unfair. You must not use a sledgehammer to crack a nut. Even taking all these considerations into account, in a particular case an interference may still not be justified because the impact on the individual or group is too severe. Many Section 182 prosecutions would fail these tests. And, since the musicians are quite definitely directly affected by these prosecutions, they could bring proceedings against the prosecuting authority. Compensation could be sought. Folk music is an important cultural tradition which cannot exist without public peformance. It relies on performance for the transmission of this musical heritage to the next generation. Article 10 of the European Convention refers to the '... freedom to... receive and impart information and ideas without interference by public authority...'. It may not be immediately obvious that music would be counted as 'information and ideas', but I have a letter from Philip Alston, Professor of Law at the European University Institute in which he refers to live music as 'this very important form of information'. Professor Alston is the author of many well known law textbooks, particularly in the human rights field. He was chairperson of the UN Committee on Economic, Social and Cultural Rights from 1991 to 1999. The new legal environment created by the HRA also opens UK courts to the world of comparative jurisprudence. And this brings me back to New York City, where jazz musicians brought that successful freedom of expression lawsuit against very similar anti-live music laws in 1988. This ended an oppressive regulatory framework that had stood for more than 50 years. I am not saying that the fundamental rights approach would necessarily have such a dramatic impact here (a 'declaration of incompatibility' may be the best outcome), but since common sense arguments appear to have failed to persuade local authorities to act rationally and fairly in respect of live music, then perhaps it is time to flex some legal muscle.

I am not a lawyer, and would definitely not recommend simply jumping in at the deep end on this. But it something to think about, and if raised in the right context (meetings with your local authority licensing chief, head of the Arts Dept), and with some legal advice, it may persuade local authorities that a fundamental rethink of enforcement policy is called for.

Please let me know if you have first-hand experience of what you regard as heavy-handed local authority enforcement and I will bring it to the attention of both the Arts Council and the Home Office.

With best wishes. Hamish Birchall

Subject: RE: HELP with UK Music Licencing problem?
From: McGrath of Harlow
Date: 01 Feb 01 - 02:39 PM

Well done, finding that Shambles. At least now you know you can bend the ear of the Bishop of Oxford if thing do pear-shape - and Lord Bassam of Brighton. Lord Basam of Brighton indeed - I'm sure our American friends must think you're making this up.

Those guidelines he mentions would be worth getting a look at. And that proposed abolition of "the Section 182 provisions" sounds suspiciously as if they are thinking of removing the minimal existing exclusion for licensed premises, and making things worse rather than better.

Kepp us (and the Bishop of Oxford) posted...

Subject: RE: HELP with UK Music Licencing problem?
From: The Shambles
Date: 01 Feb 01 - 02:20 PM

Lord Bassam says "I would not expect any reasonable licensing authority to act in the manner to which the noble Lord referred".

Let us see tonight if I still have the misfortune to live in in an area where the authority is acting "in the perculiar and perverse way".

Watch this space.

Subject: RE: HELP with UK Music Licencing problem?
From: The Shambles
Date: 01 Feb 01 - 02:08 PM

Licensed Premises: Entertainment Legislation
House of Lords Monday 11 December 2000
2.53 p.m.

The Lord Bishop of Oxford asked Her Majesty's Government: Whether, under Section 182 of the Licensing Act 1964, members of the public count as "performers" if they sing on licensed premises; and, if so, how local authorities can enforce public entertainment licensing legislation in a proportionate manner that is compatible with performers' rights under Article 10 of the European Convention on Human Rights.

The Parliamentary Under-Secretary of State, Home Office (Lord Bassam of Brighton): My Lords, Section 182 of the Licensing Act 1964 exempts licensed premises from the need to obtain a public entertainment licence where the entertainment provided consists of music and singing by not more than two performers. Whether members of the public who sing on licensed premises count as performers is a matter for the licensing authority to decide, depending on the circumstances. Ultimately, the compatibility of this provision with the European Convention on Human Rights would be a matter for the courts to determine. As part of our proposed general reform of the licensing and public entertainment laws in England and Wales, we propose to do away with the Section 182 provisions.

The Lord Bishop of Oxford: My Lords, I thank the Minister for his interesting reply and particularly for his last point about doing away with the section. However, does he agree that currently it is very strange that if a couple of pianists or a pianist and a singer are in a pub and a member of the audience gets up to sing along with them, they are liable to prosecution with quite heavy fines? Indeed, some local authorities have already threatened the owners of pubs with prosecution if they allow that to happen on their premises.

Lord Bassam of Brighton: My Lords, the Government have decided to reform the Licensing Act 1964 for the very reason to which the right reverend Prelate referred. Clearly we need more sensible, modernised laws in this field. I do not know of any authorities which have acted in the peculiar and perverse way to which the right reverend Prelate referred. I am sure that most local licensing authorities act quite reasonably. Of course, if the right reverend Prelate or other Members of your Lordships' House have knowledge of any particular difficulties or complaints, I shall be more than happy to pursue them and to ensure that fair and reasonable enforcement takes place in this field.

Lord Roberts of Conwy: My Lords, the Minister's Answer worries me. Is he saying that if a Welsh male voice choir which has performed of an evening in the local hall or chapel then goes into a pub and, after a suitable intake, believes in venting its good spirits in hymns or other songs, it is breaking the law in so doing?

Lord Bassam of Brighton: My Lords, my noble friend the Attorney-General says that they should not go to the pub, having been to the chapel. I am grateful for that very good joke. I suspect that the issue also depends on whether one considers it to be entertainment. However, that is a rather more complex and vexed question. I would not expect any reasonable licensing authority to act in the manner to which the noble Lord referred.

Lord Jenkins of Putney: My Lords, is it not possible that the performers' unions will have an interest in this matter? If that is so and if my noble friend is approached by Equity on the matter, am I right in saying that I can assure the members of that union that he will lend them an ear?

Lord Bassam of Brighton: My Lords, I may lend them more than one ear and, of course, I shall endeavour to be as helpful as possible.

Baroness Williams of Crosby: My Lords, is this not a perfect example of what, had it been put forward by the European Commission, would have been described as "Europe bans popular singers"? Therefore, will the Minister ask the Home Office to consider the matter carefully and invite the local authorities not to behave in such a silly manner?

Lord Bassam of Brighton: My Lords, the noble Baroness is quite right, and we are ahead of the game. We worked with the Local Government Association earlier this year and jointly published guidance to local authorities on how to act on these matters. We are working very closely with local authorities to ensure that fair enforcement is carried out.

Lord Mackie of Benshie: My Lords, will the Minister give the right reverend Prelate the assurance which he normally gives; that is, that if he provides the names of the pubs and so on, the Minister will investigate personally what is happening there?

Lord Bassam of Brighton: My Lords, at this time of the year it would be a great pleasure personally to visit those pubs.

Lord Cope of Berkeley: My Lords, the Minister referred to the Government as being ahead of the game in this matter. However, I do not recollect that licensing was mentioned in the Queen's Speech. Therefore, will any other measures be laid before us?

Lord Bassam of Brighton: My Lords, it is not a matter for me to determine what will be put forward in other measures. Some aspects of the White Paper have found their way into the battery of measures that we are bringing forward to deal with anti-social behaviour. As we have said on a number of occasions, we shall legislate in this field when parliamentary time properly permits. (ends 2.58pm

Subject: RE: HELP with UK Music Licencing problem?
From: McGrath of Harlow
Date: 31 Jan 01 - 07:30 PM

There are several issues here.

One is the business of finding out what is the best understanding of the law. (And a sighting of the actual legislation would be useful there.)

A second is to find out what the actual situation in different places, and the different interpretations placed on the law. (Which clearly varies very widely.)

A third is identifying if there is anything that can be done to try and make the situation a bit more friendly to informal non-electrified musicmaking.

And a fourth would be to deal with the actual problems that have arisen for Shambles and friends at present.

I can't see us sorting all that out in a hurry. But I'm sure there are people out in the Mudcat world who can throw light on all these issues, and that seems a very good idea to me.

Subject: RE: HELP with UK Music Licencing problem?
From: The Shambles
Date: 31 Jan 01 - 08:25 AM

Refresh

Still need help.

Subject: RE: HELP with UK Music Licencing problem?
From: GUEST,Red Headed Ann
Date: 13 Jan 01 - 12:28 AM

Its all Bollocks. The bottom line is if they want to bust you, they'll bust you and if they dont, they won't. If the publican thinks you'll bring in drinkers he'll take the risk. When he gets found out he'll kick you out. The one the cops can't handle is when they walk in and everyone is singing a different song or playing a different tune. Then you are unconnected individuals singing or playing to yourself. And if you all pretend to be deaf it really does their head in. Another trick is to stop playing and start miming when they come in. You've got to stay dead pan and not crack up. It totally freaks them out. Or start singing hymns and claim to be new age christians. Tell them you'd all like to talk to them about Jesus. You won't see them for dust!

Subject: RE: HELP with UK Music Licencing problem?
From: The Shambles
Date: 12 Jan 01 - 03:27 PM

Richard if the laws of the land were ever as clear as you maintain this one is, there would be not be a need for lawyers to be paid to argue them in court or be any material for them to argue with.

I am sure that if I had the same amounts of money available as say OJ Simpson, my legal team would have far more material to work with on this issue, than his team ever had in organising his defence.

I feel that there would be enough material provided here to demonstrate that there were enough grounds to at least contest your strict interpretation. All one asks for is for a little attention to be paid to detail and the grey areas. You simply refuse to recognise that any of these exist or even be prepared to address any of your own contradictions, when these are challenged.

This law may not need to be changed, just tested where it is being stretched to cover participatory events in pubs, a purpose for which it was clearly not designed. A blind eye being turned to these as Kevin suggests may enable sessions to take place but there would remain a furtive element and an uncertainty to organising these events, which would not really be helpful. At the very least, there needs to be a uniform approach by our licensing authorities to its interpretation and its enforcement. The fact that there is not, would lead me to think that there may be some hope.

I may indeed be considered to be a "smart arse" and also naïve but I believe that the law is made, by us and for our protection not as a tool to enslave us.

Subject: RE: HELP with UK Music Licencing problem?
From: McGrath of Harlow
Date: 12 Jan 01 - 01:24 PM

Noone's planning to challenge it in court at this point Richard, and you haven't been taken on as a lawyer, as you pointed put in your first post. What we've ben trying to do is clarify what the law is, and how it is interpreted in diffeent parts of the country.

And it's not as simple as you seem determined to suggest. You yourself have in fact contradicted yourelf at least once - you said that the Dudley Council guidelines were accurate, andn then that the question of payment was not material, when in fact Dudley Council had said it was a necessary criterion for something to be classed as a public entertaionment.

"The first (issue)is that of a public perfomance licence, and the law is correctly set out on the Dudley website at the link given above." Richard Bridge.

"The common definition of a public entertainment is one which involves one or more of the above activities, is publicly advertised and where a fee is charged either before the event or on entry" Dudley Council website.

Clearly there are plenty of cases where groups of singers and musicians play in bars in pubs where there is no Public Entertainment Licence, on a regular basis, without any problems. I've taken part in such sessions more times than I can remember, in many parts of the country. I've also been in pubs where we've been told not to play, because there isn't such a licence.

What is notb clear is whether it's a queswtion of a blind eye being truned to breaches of the law, because noone has complained about it, or whether the authorities see the music as incidental to what uis taking place in the bar - to quote the Dudley website: "There are exemptions for these requirements, which broadly speaking are as follows:-

If the music is merely incidental at functions...".

I think it is most likely the former - a blind eye being turned to the law in cirumstances where strict application would be silly and counterproductive.

But where the law is not enforced on a wide enough basis, this can have implications as to whether it in fact continues to be enforceable at all. There are lots of silly laws which have fallen into disuse, and which it would not in practice be possible to enforce now, even though they have never been repealed or amended. (Mince pies being outlawed at Christmas, that kind of thing.)

But it would be interested to actually have the words of the legislation involved. Which would be, so far as I can see: "the Local Government (Miscellaneous Provisions) Act 1982", "Schedule 12 to the London Government Act 1963", and "Section 182 of the Licensing Act 1964".

Subject: RE: HELP with UK Music Licencing problem?
From: Richard Bridge
Date: 12 Jan 01 - 12:38 PM

Sham, believe me, at the present time if you had been a client you would have been one of the very few I have had to tell that they were terminated and that I would not accept their instructions. A client with the intelligence to contribute to the debate (which I think you probably would be) is a great help. A client who thinks he knows the law better than his lawyer, and wants to sound like a smartarse is usually a royal pain. James the First is reputed to have been annoying to his legal advisers.

3 people in a session need a PEL. There is no cost-effective way to challenge it unless you qualify for legal aid.