Minister say's jamming OK in UK

Subject: RE: Minister say's jamming OK in UK
From: ET
Date: 21 Jul 05 - 04:20 PM

I dont think he knows himself what he means. Most of what he says is made up, lies, or at best ignorant. Dosn't inspire confidence in a Minister. I think there will be uproar when this mess becomes well known -

Subject: RE: Minister say's jamming OK in UK
From: McGrath of Harlow
Date: 21 Jul 05 - 04:38 PM

How long before the first ASBO on a musician? Or a Morris Dancer for that matter. (That might actually be quite popular in some circles...)

Subject: RE: Minister say's jamming OK in UK
From: ET
Date: 22 Jul 05 - 10:03 AM

The Musicians - Lawyers Group - Richard Bridge in particular, is doing stirling work on behalf of musicians - more to come.

But in the meantime, and I hate this legislation, but, many Pubs locally have applied for entertainment where they did not have it in the past - some say they need flexibility to keep trade alive in the face of cheap boose from Tesco etc and fear a smoking ban reduction.

Check that your local has done so. Time almost up.

Tesco meantime are applying for 24 hour drinking - goes down well with anti binge drinking.

Subject: RE: Minister say's jamming OK in UK
From: Richard Bridge
Date: 22 Jul 05 - 05:14 PM

Thank you ET. Hamish and you are doing a lot too...

Yes, PLG has 3 plans we are (like Max) workin on in our spare time, and we may try to re-activate the Marshall-Andrews plan too if it needs it...

None are very likely to bring immediate relief, so applications for licences (with box ticked) need to go ahead, but remember that the Minister has power to make many categories of amendments by ministerial diktat, so if anyone has any good blackmail material, PM me....

Subject: RE: Minister say's jamming OK in UK
From: RichardP
Date: 22 Jul 05 - 05:52 PM

Firstly let me agree that the minister most obviously did not know what he was talking about. The inevitable consequence is that he was delivering a civil service brief, which he only partially understands. A common occurrence for any politician. On the other hand the civil service would not give such a briefing without having a reason for doing so. By november the legal profession will need to have figured out that reason to have a chance of successfully defending anyone who a local council charges with a breach of the act. I suspect that the obvious defence is contained in paragraph 7 of the 1st schedule to the act. This is

"The provision of entertainment consisting of the performance of live music or the playing of recorded music is not to be regarded as the provision of regulated entertainment for the purposes of this Act to the extent that it is incidental to some other activity which is not itself a description of entertainment falling within paragraph 2, or the provision of entertainment facilities."   

One thing is certain. The courts will not accept that that paragraph can possibly have no meaning so some live music must be exempt as a result of it. It was argued in parliament that buying and selling alcohol was the primary activity in a pub bar and hence that there are at least some circumstances where music is incidental to that purpose and so exempt. That would seem to cover most pub bar sessions where the musicians mainly pay for the pleasure of being there by consuming large quatities of the landlirds ale, at their own expense.

The important issues at the moment are not whether that interpretation is true. They are, whether people will put themselves into a position where they may have to employ thath defence and whether local authorities will take action in such circumstances in the knowledge that the defence will be employed. In fact knowing how the legal profession appears to work, there may be a more fundamental question. It appears that the law as referred to in courts is as interpreted in legal books. The UK lawyers on the forum might do us a service by telling us whether the legal press have written authoritative interpretations of that exemption and if so how they have interpreted it.

Richard

Subject: RE: Minister say's jamming OK in UK
From: Richard Bridge
Date: 22 Jul 05 - 07:02 PM

RichardP - there are no authoritative interpretations yet. You understand enough that I wonder why you mislead us on that point. Are you a civil servant or ex-civil servant?

The principal reason for the civil service to give a minister a "difficult" brief (if doing so knowingly) is to cover their own backs, and I strongly suspect that those drafting the Act had litte idea of what they were talking about on the music side. Once that happens, hubris leads to a robust defence of the error.

The weasel word is "incidental", and it may be much narrower than "ancillary". I suggested amendments to clarify this and the DTI blanked us. What they may, ironically, have done, is left themselves nore open to challenge under the Human Rights Act.

Subject: RE: Minister say's jamming OK in UK
From: RichardP
Date: 23 Jul 05 - 04:37 AM

Richard Bridge, if "ancilliary" would allow more unlicensed music than "incidental" you are to be congratulated for suggesting it. If incidental allows more than ancilliary the DCMS are to ge congratulated on retaining it. Only a lawyer could guess which is more generous and if you had two lawyers there would be at least three opinions about which was the wider.

However, the important point is that there is an exemption where the music is incidental/ancilliary to anything other than licensed entertainment. That explicitly includes the licensed supply of alcohol for money. Furthermore clause 7 of the schedule has equal status to clause 1 and any other clause.

Consequently there is a boundary that will eventually be drawn by case law between legal and illegal unlicensed music in a bar and the boundary cannot be at the no music end of that continuum. It might even be at the opposite end so that any music in a bar that is serving alcohol is legal - but I doubt it and even doubt that going that far would be sensible. However, the boundary that the courts have to draw is where the music becomes the major activity and the licensed trade (presumably) becomes incidental.

I don't pretend to know how the courts will draw that line, or how local authorities will decide what to take to court to test the line - and I fear no-one else knows either. However we should not ignore the fact that the line awaits its drawing. Nor should we cease trying to get licences to include music, because that must of necessity be more generous in what it allows.

RichardP

Subject: RE: Minister say's jamming OK in UK
From: ET
Date: 23 Jul 05 - 05:32 AM

This is an interesting legal debate but the real issue is whether a licensee (or even a backing brewery) will want to involve themselves in this - I think they will take a "no risk" view and prevent music if they have no licence.

The rules of interpretation, as I understand them are that:- firstly the courts assume that Parliamnet is competent and interpret the clause literally. If this makes no sense then the mischief rule applies - what mischief did Parliament intend to prevent. If this fails there is something called the Goldern Rule but I fear I forget its meaning.(best possible explanation??)

The interpretation that the "incidental" acception means something is correct. What Literally does this mean. "to the extent that it is incidental to some other activity that is not a description of entertainment in Schedule 2" is interesting.   It therefore does not mean that music performed as a backdrop to a play is exempt because a play is described regulated entertainment. It must, literally, be music (recorded or live)incidental to some other licensed activeity other than regulated entertainment - so literally music incidental to (not a core part of) selling alcohol.

The courts look to Parliamnetary words but could be urged to take into account parliamentary debate. The wretched Howells, pressed to define "incidental" said he thought it was obvious but that he would have a shot at it. He waffled about a restaurant having a pianist playing in a corner...he thought that was ok (although the prime purpose of a restaurant, I would have thought, is not (as yet) licensed - ie selling food.

He said it would not be incidental if it was live music that was advertised and the main purpose of the public being there. So if a band is advertised to play at a pub and it plays loud enough - licence needed. if a session takes place undvertised and largely ignored by the regulars- no licence needed - incidental.

But these are fine points of law and not something I think even the most eloquent of us could pusudade our local licence to risk £20,000 &/or 6 months on.

Subject: RE: Minister say's jamming OK in UK
From: ET
Date: 23 Jul 05 - 05:43 AM

Further to this - and my own views, I have just discussed this with legal colleagues and I now think that the incidental exception is music incidental to some other activiety not in itself regulated entertainment - that other activiety need not be licenced activety,. so Howells piano in a restaurant is incidental, if it is not the main purpose.   

So if a comedian, (main purpose comedy - not yet licensed by new Labour) played a banjo (like Billy Connoly) incidental to his main purpose, not regulated entertainment for the music.

Anyone still awake?

Subject: RE: Minister say's jamming OK in UK
From: ET
Date: 23 Jul 05 - 05:48 AM

Ye Gods - its me again.

Marks and Spencers have late night shopping evening with a Jazz Combo. The Jazz Combo is live music but incidental to the main purpose - shopping.   No licence?

A Cafe without a liquor licence puts on entertainment - incidental to main purpose.

But the Minister says - if advertised then not incidental. But he refused to be drawn into a further definition and the act makes no mention of advertising.

Good night!

Subject: RE: Minister say's jamming OK in UK
From: Richard Bridge
Date: 23 Jul 05 - 06:17 AM

"incidental" - "casual, not essential...a subordinate event"   Concise Oxford.   The government view was was that it was only something of trivial importance that could be "incidental" and that as soon as the provision of the live or recorded music became of significant importance then it was no longer "incidental".

I think this is too narrow, but the government refused to clarify. I have a particular reason but I am not giving it away yet in case the Government does something Machiavellian before we need to use it in anger.

Anyone know a licensee who wishes to risk his livelihood and many thousands of pounds finding out?

Subject: RE: Minister say's jamming OK in UK
From: The Shambles
Date: 23 Jul 05 - 07:01 AM

My point is that as (practically) any live music will now be illegal (practically) anywhere - without Premises Licence entertainment permission - there is not now a need to require a licensee to risk their livlihood in order to test this legislation.

Yes it is unlikely (as before) that a licensee will be prepared to take the risk to go to court (on this aspect alone) - but this Act has changed many things. Perhaps some thought could be given to the way individuals (or groups) could test these aspect of the Act in areas and premises other than pubs/clubs etc?

For example - cafes and other places - not serving alcohol - under the Act - will have to apply for Premises Licence entertainment permission - if they wish to provide Regulated Entertainment. If their normal business (and opening hours) does not require anything that IS licensable - the claim can surely be made that any live music in these premises - is incidental to something that is not in itself licensable?   

I am sure that with a bit of thought many examples of testing the music aspects of this legislation by willing individuls (on full legal aid) can be found?

Subject: RE: Minister say's jamming OK in UK
From: McGrath of Harlow
Date: 23 Jul 05 - 07:11 AM

So basically, if your music is crap, so that no one would have listening to it as a reason for being there, you're all right. If you're good, there might be a problem...

I think a lot of pub sessions should be safe enough with that.

Maybe a useful defence would be evidence of punters complaining to the landlord about that dreadful noise that lot over there are making.
.................................

But of course it isn't actually going to get to court in most cases, so the law doesn't matter too much. The landlords, and, more significantly, the directors of the chain pubs, are going to play for safety, and insist that there's no live music at all. So it's football on the telly instead, and a music centre controlled from behind the bar, when there's no match on. And maybe even the occasional juke box, if you are lucky.

Subject: RE: Minister say's jamming OK in UK
From: ET
Date: 23 Jul 05 - 07:13 AM

Don't rely on Legal Aid. Barristers are soon to go on strike about lack of it!

But an interesting thought. If a non alcohol cafe applies for a premise licence for live music, would a local authority answer the question of a need for a licence if the live music was declared to be low key (forgive the pun, I don't mean in C) and "incidental" to the main purpose?

Subject: RE: Minister say's jamming OK in UK
From: greg stephens
Date: 23 Jul 05 - 08:06 AM

An intriguing point, which I have not seen discussed, is the suggestion that the legality or illegality of playing music may turn on the issue of whether it was or wasn't advertised.
A lot of advertisisng, particularly of acoustic sessions, is not done by the landlord. It is done by participants, via the internet, or specialist local magazines. Or even by non-participating enthusiasts. Which seems to suggest that a landlord's guilt or innocence will be established by actions of people totally beyond his control. Can that be the intention of the bill?

Subject: RE: Minister say's jamming OK in UK
From: The Shambles
Date: 23 Jul 05 - 08:27 AM

Which seems to suggest that a landlord's guilt or innocence will be established by actions of people totally beyond his control. Can that be the intention of the bill?

As to the second question - who really knows what the intention of the Bill/Act was. Especially as regards to live music. But the case with advertising is really the case now - as regards licensees not being able to control what is advertised (by the piblic) for their premises.

But as has been pointed out - the advertising of event (or not) does not really figure in the words of the Act.

Subject: RE: Minister say's jamming OK in UK
From: The Shambles
Date: 23 Jul 05 - 08:35 AM

Don't rely on Legal Aid. Barristers are soon to go on strike about lack of it!

Yes - but it will remain a factor given the cost of any legal actions.

Perhaps anyone who feels that their circumstances would qualify them for Legal Aid and who would be prepared to test aspects of the legislation - should contact The Musicians - Lawyers Group?

And what about a fund for fighting these aspects - that we could all contribute to?

Subject: RE: Minister say's jamming OK in UK
From: ET
Date: 23 Jul 05 - 12:03 PM

If 120,000 who signed the petion pledge a couple of quid each - hmm

Subject: RE: Minister say's jamming OK in UK
From: RichardP
Date: 23 Jul 05 - 12:43 PM

The Act mentions advertising in two respects only:

Advertising of applicaitons for licenses and a total exemption for advertising films. Any other discussion based on advertising - and there has been much on the mudcat over the last few years is solely based on Kim Howell's statements in parliament, which in this respect were never clear and consistent. The contexts in which I recall his use of advertising was mostly likely concerned with advertising with a view to attracting an audience and at least on most occassions a paying audience. But he never said that in so few words.

Most importantly, as Shambles pointed out, those who are sriting about advetising are not writing in about the content of the act.

Subject: RE: Minister say's jamming OK in UK
From: Don(Wyziwyg)T
Date: 23 Jul 05 - 02:02 PM

Advertising has little if anything to do with the act itself. Richard Bridge might be able to confirm this, but I believe the operative word to be "organised".

For a session to be impromptu, there must be no organiser, no as it were guiding intelligence. Just a bunch of people meeting by chance, and starting a session.

It would be difficult to defend, on the basis that arriving with instruments would imply intention to perform, hence some degree of prior organisation.

Don T.

Subject: RE: Minister say's jamming OK in UK
From: The Shambles
Date: 23 Jul 05 - 02:11 PM

One thing is certain. The courts will not accept that that paragraph can possibly have no meaning so some live music must be exempt as a result of it.

That bit at least must be good news? Perhaps it is something that we can build on?

It was argued in parliament that buying and selling alcohol was the primary activity in a pub bar and hence that there are at least some circumstances where music is incidental to that purpose and so exempt. That would seem to cover most pub bar sessions where the musicians mainly pay for the pleasure of being there by consuming large quatities of the landlirds ale, at their own expense.

The important issues at the moment are not whether that interpretation is true. They are, whether people will put themselves into a position where they may have to employ thath defence and whether local authorities will take action in such circumstances in the knowledge that the defence will be employed.

I see what is being said here - but it is surely the other way around?
No defence ever needs to be mounted if local authorities do not - in effect - go on the attack against sessions etc. For there will not be same financial reasons and drive than as present for LAs to insist on entertainment permission in pubs - as the revenue coming from the Premises Licence will be the same to them - whether this permission is in place or not.

So a more accomodating interpretation from them towards any live music in premises where permission is not in place - by considering it as incidental - may now find more favour? Hopefully more than some of the more draconian and unhelpful interpretations that we have seen from many of them under current legislation in order to force licensees to apply and which have made life so difficult for sessions etc.

As stated - the 'incidental' exemption must be seen to apply to some live music and it may as well be of some benefit to all of us - rather than none - so in the short term at least - a more relaxed approach that may involve them in less work should be welcome to our LAs - as the officers involved will be busy enough - without having to look for more work.

I am meeting with the leader of my local authority this week and I shall be making that point to him. If licensees can be assured in advance by our LAs that sessions etc - can take place and be considered as exempt by being incidental - it should be possible for these activities to take place in the majority of premises without entertainment permission.

If this can be managed - there may also be some hope that other events could also take place? Or am I being far too optimistic?

Subject: RE: Minister say's jamming OK in UK
From: ET
Date: 23 Jul 05 - 03:00 PM

I think Shambles has thought this through well and it may be the saviour of session. Under the old legislation I was present when some dragon from the local authority turned up to stop a session by saying even though there was no one in the pub but her, she was being entertained and so a PEL was needed. The next week we turned up with the BBC and she failed to show, but had a go at the licensee later.

Under new legislation there is no need to entertain - only to be incidental.   A local authority in East Yorks has already said informally that it thinks no licence is needed if not advertised and not played to an audience.....if this view is uniform and publicsed may give courage to licensees.

Subject: RE: Minister say's jamming OK in UK
From: The Shambles
Date: 23 Jul 05 - 03:11 PM

I hope this is not too optimistic but it can be pointed out to LAs that they are not charged under the Act to prevent all live music and defend their actions in the courts - they are only charged to ensure the Act's main objectives.

If they can ensure the Act's main objectives without preventing traditional pub activities and the public's freedom of musical expression - life will be a lot easier for all parties.

Subject: RE: Minister say's jamming OK in UK
From: McGrath of Harlow
Date: 23 Jul 05 - 03:44 PM

There's nothing about "impromptu" in the act, unless I'm mistaken. (And it's a word which could mean a whole range of different things in any case, rather like its sister "spontaneous".)

Subject: RE: Minister say's jamming OK in UK
From: Don(Wyziwyg)T
Date: 23 Jul 05 - 04:45 PM

Although the word impromtu does not appear in the act, the inference is clear, that if the music is seen to be designed to bring in more patrons to purchase the drinks on sale, it cannot be described as incidental to the pub's business, but would constitute a part of said business.

This is a legal minefield, and it should be remembered that L.A.s will be under pressure to enforce the letter of the act, which will only be fully determined after some very expensive court appearances.

Bear in mind also that anyone challenging the law in court is unlikely to be able to match the array of barristers and Q.C.s the authorities will field in response.

Judges do seem to find in favour of the litigant with the higher profile representation.

Don T.

Subject: RE: Minister say's jamming OK in UK
From: The Shambles
Date: 23 Jul 05 - 07:06 PM

Although the word impromtu does not appear in the act, the inference is clear, that if the music is seen to be designed to bring in more patrons to purchase the drinks on sale, it cannot be described as incidental to the pub's business, but would constitute a part of said business.

It is fact that as the exemption for live (and recorded) music is now set in the words of the Act - so it is more than inference that there must be some form of live music that IS considered to be incidental and exempt. LAs will have to enforce this letter of the law also and not been seen to be trying to turn all (or any) live music into Regulated Entertainment. any attempt to do this will be contrary to their requirement under the Act and the guidance.

For the statutory guidance to the Act - makes it clear that if any applicant is unsure what may be incidental live music - they are to consult their local Licensing Authority for the details. One can see why LAs may prefer to wait for some court rulings to determine this and only then act in concert - but the Act requires each one to make the first moves.

If they don't first do this locally - there will nothing for the courts to test.

Subject: RE: Minister say's jamming OK in UK
From: RichardP
Date: 23 Jul 05 - 07:16 PM

We seem to be getting a breakout of realism at last in this thread. Let's have a bit more. A few posts ago Don suggested that the "organiser" is the person at risk - this is not an original suggestion - Don is mentioned only because he is the latest to introduce it.

The organiser is only mentioned in one small part of the Act. This is exclusively concerned with entertainment that is closed to members of the (general) public and is not organised for a "qualifying club" such as a working men's club. It then says that no licence is required provided the premises owner and the organiser are not taking a personal profit out of the admission fees. There is nothing in the act related to an organiser of anything in a publicly accessible location.

The phrase "personal Profit" is not used. The phrases are "with a view to profit" and "by or on behalf ofany person concerned in the organisation or management of that entertainment". It is clear that the organiser (or premises provider) must be receiving the income as an individual for the entertainment to be regulated entertainment.

To spike another previous red herring it is explicitly stated that selection of the program content or control of the manner of performance and the provision of personal equipment does not make one an organiser.

Subject: RE: Minister say's jamming OK in UK
From: Don(Wyziwyg)T
Date: 23 Jul 05 - 07:28 PM

There is something not quite right in your inyerpretation Richard.

It has already been stated that the act does not exempt charity events, where no individual is profitting. These still require licensing under the new act.

Also, with respect, the act does mention liability for providing facilities for live music on premises not licensed for it.

Don T.

Subject: RE: Minister say's jamming OK in UK
From: Malcolm Douglas
Date: 23 Jul 05 - 07:38 PM

Neither is any mention made of individuals. A charity event is run "with a view to a profit". That's the whole point of fund-raising events.

Subject: RE: Minister say's jamming OK in UK
From: The Shambles
Date: 23 Jul 05 - 08:00 PM

Perhaps it is also time to suggest that the Act's exemption for 'incidental' live and recorded music exists on its own and is not related to the references by Ministers etc - to music that is spontaneous or impromptu. Two words that don't really get anyone very far.

For any live music to be considered 'incidental' and exempt - (and some must be by our LAs) - it probably follows that it can be regular and does not have to be either spontaneous or impromptu.

The push for us to urge our local licensees to apply for entertainment permission was understandable. However, the deadline is now so close it is probably time for us to accept that we can do little more in that direction.

I would suggest as well as using our MPs at national level - that that it is now time for us to concentrate our attention on our local Licensing Authorities and our elected local councillors to try and ensure that they do not (wrongly) see their role under the Act - is for them to (continue) to prevent live music.

Subject: RE: Minister say's jamming OK in UK
From: McGrath of Harlow
Date: 23 Jul 05 - 08:02 PM

What's going to happen is that where landlords decide to allow music its going to happen, and where they don't (or where they are instructed by their bosses in the chain), it won't. If there's a complaint (for example from a neighbouring pub) and the council decides to lean on the landlord, the landlord will give way.

So there won't be many actual court cases at all. The law matters insofar as it will have an impact on which way councils decide to jump, when some kind of complaint is lodged. And there is plenty of leeway fro them to interpret it either way, more especially since it won't in practice be tested in court except in very occasional cases. Which means it will be quite some time before any case law has built up.

In the meantime I suspect it won't feel very different from what it does now. But I'd hope there might be a few more places, pubs and non-pubs which will have got their heads round applying for a licence to cover live music.

Subject: RE: Minister say's jamming OK in UK
From: The Shambles
Date: 23 Jul 05 - 08:27 PM

We will be into a totally different situation with LAs than we are now and should not assume anything - good or not so good.

The reality will be - as I see it - is is that after this round of applications - if you find a pub where the licensees are willing to hold a session etc but where they feel the LA will take action to prevent it without entertainment permission - neither party has much to lose but to honestly ask the local authority - if the type of activity planned can take place and be considered by them as exempt (as incidental). That is exactly the position dealt with in the guidance in repect of this exemption.

The LA must then provide an answer and are in a difficult position - re the Human Rights Act - if they are seen to have prevented the public's right of musical free expression - where there were no grounds to do so.

Subject: RE: Minister say's jamming OK in UK
From: RichardP
Date: 24 Jul 05 - 01:52 AM

Continuing realism.

Let's nail "profit". There is only one use of the word profit in the Act and it states unequivocally that the individual organiser or premises provider is making a charge for a PRIVATE occasion and with a view to profit. The word has no reference in any case where the public as such has a right of access. Most charity events are open to the public because it is the public's money that is wanted for the charity so are not covered by this clause.

Turning to the private events to which the paragraph applies - these are concerned only with members-only events - such as are currently held by many folk-clubs so as to avoid the need for a PEL. The organiser currently makes a charge for admission which is used to cover the running costs of the club which are mainly used for b the cost of hiring the artists not for the organiser's personal profit. The context permits these arrangements to continue provided the consideration (i.e. door money) is not collected for profit. In this conerxt it has nothing to do with charities as such although there is nothing to prevent a part of the consideration being passed on to a charity.

Subject: RE: Minister say's jamming OK in UK
From: The Shambles
Date: 24 Jul 05 - 06:06 AM

The following from Hamish Birchall.

In last Tuesday's Jeremy Vine interview on BBC Radio 2 (19 July 2005), licensing minister James Purnell casually dismissed the emailed claims of one listener, Susan Mallett, concerning, among other things, nursing homes cancelling musicians because they fear this will require a licence.

In fact, Susan Mallett's fears are well founded. The minister either displayed a woeful lack of knowledge about the legislation for which he is now responsible, or he intentionally avoided the difficulty.

For years I have been performing in hospitals for a small fee. The gigs are organised by a number of charities. The hospital makes a contribution to the musicians' fees direct to the charity involved. To the best of my knowledge, none of these performances has ever been caught by entertainment licensing because they were considered private. Most private gigs were exempt under the old regime. The new Act fundamentally changes this, however, extending entertainment licensing across many private performances that have never been caught before (private members clubs, for example).

A couple of weeks ago I had confirmation from my local authority, Camden, that my hospital performances will be licensable under the new regime (see copy email exchange below).

A Temporary Event Notice, which is what Camden recommends, is arguably not going to break the bank at £21. But applications must be submitted on prescribed forms simultaneously to the police and local authority at least 10 working days before the event. Only the police can object on crime prevention grounds.

This does mean, however, that organising such gigs after 24 November would be considered by Camden at least as a potential criminal offence, punishable by fines up to £20,000 and six months in prison.

~ ~ ~

-----Original Message-----
From: HB [mailto:[e-mail]]
Sent: 06 July 2005 15:15
To: Shaw, Oliver
Subject: Licensing - live music

Oliver

I have another question which I believe you may be able to answer.

I perform about once a month with my jazz trio in hospitals and care homes across London. These events are organised jointly by a charity with which I am registered as a performer, and the hospital or care home concerned. I am paid, albeit a reduced fee. The hospital makes a substantial contribution to that fee directly to the organising charity. The events are advertised within the hospital or care home, and relatives and friends of the patients can attend.

Under the old regime the charity considered that most of these performances were private and therefore exempt. What is Camden's view of such performances under the new Licensing Act?

I look forward to a swift reply.

Many thanks in advance.

Hamish Birchall

------------------

----- Original Message -----
From: Shaw, Oliver
To: 'HB'
Cc: Leonard, Stephen
Sent: Wednesday, July 06, 2005 5:20 PM
Subject: RE: Licensing - live music


Dear Hamish,

Just to get back to you regarding a few of your queries today. Firstly, you asked about the charity performances below. Our view is that the below performances would require a Temporary Event Notice (TEN) if there are less that 500 people present at the event (and less than 12 per year). If there are more than 500 people, the event would require a premises licence. We expect regulations on TENs are released shortly.

You asked about the proportion of Camden bars/restaurants/hotels etc which do not hold a PEL but which have applied to vary their 'premises licence' to host live music. As I explained, we are not in a position to extrapolate that sort of information at this stage. In order to run those sorts of reports, we would need to get a programmer to design, test and run the customised report. Naturally, our commitment to work with the Live Music Forum to asses the impact of the Act on live music and dancing still stands, however this is something that we wont be in the position to look at until post transition.

Similarly, the same applies for your query to Amy regarding the percentage of pubs and clubs applications received to date. This query too would require a customised report to be set up by a programmer. Naturally, you'll appreciate that even if figures could be provided, numbers of applications are arriving at such a high volume at the moment that they would very soon be out of date.

Regards
Oliver Shaw
Licensing Policy Officer
Camden Council
Ph. 0207 974 5940
[e-mail]

Subject: RE: Minister say's jamming OK in UK
From: ET
Date: 24 Jul 05 - 06:49 AM

I have seen some of the Licesing Policy Documents from local authorities and some make good statements about promotion of culture and music. It might depend on the usual tussle between officers and elected members how much notice of this is taken.

In the Times today is an article on the salaries of Cheife Executives of Local Authorities and a sidlelong glance at appointments of eg Director of Cultural Services at Ealing £81,000 and assistant CEO (Cultural Services) at Manachester on £80,000.

Culture ought to be prominent on these sorts of salaries - even local authority offices ought to have a glimmer of culture that is live music!

Subject: RE: Minister say's jamming OK in UK
From: ET
Date: 24 Jul 05 - 07:25 AM

Here is an e-mail I have sent to the Minister. No doubt will be intercepted by a Civil Servant........


One of the (I hope) unintentional consequences of music licensing under Schedule 1 of the 2003 Act is that entertainment given (often freely or at very reduced fees) by musicians for the elderly or sick in hospitals and old folks homes, needs a licence. (either a full premise licence or a limited number of Temporary Event Notices at £21 per time).   You said on Radio that this seems wrong - it is wrong, shamefully wrong. But old folks homes and hospitals are not going to take a risk on £20,000 & /or 6 months and are cancelling these visits, to the detriment of the old and sick. The reason for needing a licence, it is supposed, is that members of the public (relatives) may be entertained.

I am sure that if this is known to the general public they would be horrified.   If it is an unintended consequence you could probably sort it by use of Ministerial powers created under the Act.

Perhaps you will do so.

Subject: RE: Minister say's jamming OK in UK
From: Cobble
Date: 24 Jul 05 - 07:47 AM

How many of you voted for this party at the last general election, you knew what was going on. Typical labour tax grabs, nanny state and worst of all the biggest shower of liars in parliaments history. They are deaf to anything you want, you should know feathering the nest is the only thing they want, jobs for the boys.

                         Cobble.

Subject: RE: Minister say's jamming OK in UK
From: The Shambles
Date: 24 Jul 05 - 09:15 AM

Here is an e-mail I have sent to the Minister. No doubt will be intercepted by a Civil Servant........

If you want a reply - the best way is to write and ask your MP to write to the Minister concerned and ask your question for you. In the case of the 'jamming OK' statement - it may be a good idea if the Minister could be made to repeat or clarify such a statement in the Commons.

Subject: RE: Minister say's jamming OK in UK
From: Richard Bridge
Date: 24 Jul 05 - 11:33 AM

The Act is a muddle. However, the principal relevant offence is in S 136 (1) - either carrying on a licensable activity, or knowingly permitting (you don't have to know its wrong, only that it's going on).

There are some defences in S 136 (2) and eg a person does not commit an offence if his ONLY involvement is to perform live music.

But in Sch. 1, para 1 (6) a person is not to be taken as being "concerned in the organisation or management of entertainment" ONLY if he
(a) chooses the music
(b) determines the manner in whch HE performs or plays it (so a bandleader or choreographer is not safe); or
(c) provides any facilities forthe purposes of HIS performance (so a man who lends another a guitar is not safe)

This does however assume that Sch 1. Para 1(6) informs the construction of S 136 and that is not really what Sch 1 Para 1(6) is for: it is mainly there to help (if that is the right word) figure out when private events are for consideration or profit. I think the courts will probably try to read the Act as a coherent whole (fat chance), so I reckon that that para will determine that a person is involved in organisation or management so that in such a case his involvement will not be ONLY as a performer for the purposes of S 136(2).

Is that clear? (Hollow laugh)

Subject: RE: Minister say's jamming OK in UK
From: RichardP
Date: 24 Jul 05 - 12:12 PM

Richard,

You say "ONLY if he" the act "is not concerned in the organisation or management of the entertainment by reason only that he does one or more of the following- " So he is not involved in the organisation if he does none of those things. He must be involved in the organisation to a greater extend than the three exceptions.

You are correct that it is there only for the the private events for consideration or profit. I can see no way in which it can moderate any other part of the act even if the courts tried to make it do so.

Subject: RE: Minister say's jamming OK in UK
From: Richard Bridge
Date: 24 Jul 05 - 03:07 PM

Something is wrong with your second line of text. What should it say?

Subject: RE: Minister say's jamming OK in UK
From: ET
Date: 24 Jul 05 - 03:11 PM

Good point about e-mails. I have now written to my MP (who is David Davis, Deupty Tory Leader, whom I have contacted before, asking him to tackle Purnell and DCMS.

Subject: RE: Minister say's jamming OK in UK
From: RichardP
Date: 24 Jul 05 - 04:31 PM

Richard

I agree that the some of the sense of what I wrote was well hidden. Try this expanded wording:

"So he is not involved in the organisation if he does only those organisational aspects and even more so if he does none of those things nor any other organisational aspects. He must be involved in the organisation to a greater extend than the three exceptions."


The essence of what I was saying is that there is a world of difference between "only if he" and "if he only". The latter is the sense of the detailed wording. He is not a culpable organiser if the only organising he does is in the three exceptions.

The only offence in that situation is making a profit from organising the private entertainment, otherwise the entertainment is exempt from licencing and so no licence is required.

I don't doubt that you understand that and I am sure that you were not intending to mislead - but we have readers who would not have read it the way that you intended.

Subject: RE: Minister say's jamming OK in UK
From: PennyBlack
Date: 24 Jul 05 - 06:47 PM

This may or may not be a good idea (after playing and supping for 4 hours it makes sense to us)

We are contacting our local councils and asking them their stand on and implementation in regards to the new licence and its effect on live music e.g. acoustic and amplified sessions, amplified Morris accompaniment to Morris (and similar traditional) dance, Busking, open air music and charity collection, etc.

If they reply we will be putting their reply verbatim, on the Fylde Folk Forum web site, for reference, if everyone did the same in their areas, we would all have a better idea what we can do all over the country (I'm sure a thread could be dedicated to it here on Mudcat likewise on the Fylde Folk Forum) or even a website set up just for this purpose.

Let's get it all in writing, it doesn't matter what is said by the likes of James Purnell, and Kim Howell on air as they either don't know what they are talking about or just lie.

just a thought,

PB

Subject: RE: Minister say's jamming OK in UK
From: GUEST,Hamish Birchall
Date: 25 Jul 05 - 04:31 AM

I am responding to Richard P's comments concerning potential culpability of musicians under the new Act.

When I am contacted by the charity that sets up hospital and nursing home performances, it is my responsibility to organise the other musicians in order to make up the trio or quartet that has been requested. That means phoning the other musicians, booking them if they are available, telling them where and when to turn up, and afterwards forwarding their fees. I also have to liaise with the hospital in advance of the performance, checking musicians' access and other logistical details.

This activity on my part clearly falls outside the potential culpability exemptions in Schedule 1, para 1(6). Significantly, such activity is the norm for any musician/bandleader when approached by an entertainment agent, or directly by a potential customer, intent on organising a professional performance.

Significantly also, where private events are concerned, ANYONE concerned in the organisation or management of the entertainment who makes a charge (with a view to profit) is caught, provided the charge is paid by or on behalf of some of those for whom the entertainment, or entertainment facilities are provided.

No distinction is made between agents, bandleaders, marquee hirers, DJs, dance floor providers etc etc: if any one of these were to make a charge in this context, they are caught.

In the past, Richard, you have been something of an apologist for the new Licensing Act.

Do you personally believe the criminalisation of private hospital gigs, or indeed the vast swathe of hitherto private and exempt performances, is justified? If yes, I am sure all your readers would be eager to understand why.

Subject: RE: Minister say's jamming OK in UK
From: ET
Date: 25 Jul 05 - 04:45 AM

I think this is yet another part of this Act which is outrageous. I have written to my MP about it and suggest all Catters in England do the same.   It would make good anit-publicity.

Subject: RE: Minister say's jamming OK in UK
From: Richard Bridge
Date: 25 Jul 05 - 04:49 AM

Richard

I think I agree in part.

The saving in para 1(6) applies so that if a person merely
(a) chooses music; or
(b) determines the way in which HE performs or plays; or
(c) provides any facilities for HIS performance

then doing that thing does not make him "concerned in the management or organisation".

However, where we part company is that if that saving does not apply, eg if a person tells another player how to play, or lends another player an instrument, it seems to me that that person is not to be treated as "concerned in the management" etc.

Obviously then the entertainment, even if not for the public or in a members club, becomes regulated entertainment if that person is also paid (Para 4).

So who now commits an offence?

See S 136 (1) - any person carrying on a licensable activity without a licence commits an offence. By S 1(1) a "licensable activity" includes the provision of regualted entertainment, and our hypothetical person clearly does that.

Is he then, saved by S.136 (2)?   Well, is "his only invovlement" that he "performs live music"? We know the answer to that. He is, for the reasons above, "concerned in the management" (certainly if the event is private but regulated). So he commits an offence - if the event is private but regulated.

Could he possibly be guilty if the event were private but regulated, but not commit an offence if it were public or in a member's club?. That would be hte sort of constructional anomaly the courts would surely find anathema.

I therefore adhere to my original construction of the provisions, subject to the exact location (to which you point) in that construction, of the workd "ONLY".

Subject: RE: Minister say's jamming OK in UK
From: The Shambles
Date: 25 Jul 05 - 01:37 PM

The following from Hamish Birchall

The Department for Culture has told me that James Purnell is to speak at the Musicians' Union 31st Biennial Delegate Conference at Sparsholt, near Winchester, this Wednesday 27 July 2005.

Copies of his speech, to be 'checked against delivery', should be available from DCMS on the day. No doubt he will talk about how much money the government is putting into music education, the Miliband Music Manifesto, the government's commitment to the music industry, his commitment to live music etc etc...

If there are any MU delegates out there prepared keep entertainment licensing centre stage, here are some questions they might put to the minister:

Any broadcast entertainment in bars or anywhere else is exempt from the new Licensing Act. The government has said that, as far as big screen sport in bars is concerned, if there are crime, noise or disorder problems then the bar's licence can be reviewed. Can you explain why the same approach cannot be taken with live music in bars?

The DCMS website claims that the two in a bar rule 'fails to protect local residents from noise nuisance'. What evidence does your department have that one or two musicians have caused a significant noise problem in the 44-year history of this entertainment licensing exemption?

Do you think it reasonable that the playing of recorded music on jukeboxes and other recorded sound systems should be automatically allowed to carry forward on converting an alcohol licence, provided the equipment is already in situ, but live music by even one musician should be illegal unless licensed?

On various BBC radio interviews you have said that once the new licence is obtained, people will never need to apply for a licence again. Can you confirm that if a bar has specified solo or duos only on two or three days of the week on its premises licence application, and this has been authorised, then the licensee would have to re-apply to vary the licence in order to increase the number of performers, or days on which performances could be provided?

In your interview with Jeremy Vine on Radio 2, Tuesday 19 July, you said you 'where there is evidence of real problems' for live music as a result of the new Licensing Act you were 'committed to act'. By November local authorities should be able to say what proportion of all bars, pubs and restaurants have been granted a live music authorisation on their premises licence. What proportion would you expect to have got that authorisation by then, and what would you consider an unacceptably low proportion and evidence of a real problem?

Since the Act gives the Secretary of State power, by order, to change, add or remove descriptions of entertainment, would there be any reason to delay amendment of the Act immediately if the level of live music authorisations were unacceptably low?

Was it the government's intention that performances in hospitals and care homes where relatives and friends can attend, organised for a fee by various charities, should be caught by the Act?

On You and Yours, BBC R4 01 July, you said 'under the current regime there are all sorts of anomalies'. Under the new regime one musician performing in a restaurant not licensed for live music will be potentially a criminal offence for the licensee - but music or sport broadcast on a big screen with a powerful PA is exempt; a concert in a school is likely to be illegal unless licensed, but exempt if performed in a church, royal palace or military base; unamplified musicians accompanying Morris dancers will be exempt, but without the dancers illegal unless licensed; any band can perform on the back of a moving lorry and that is exempt. Do you not consider these to be anomalies?

Subject: RE: Minister say's jamming OK in UK
From: Don(Wyziwyg)T
Date: 25 Jul 05 - 02:00 PM

Roger, in light of the fact that a musician playing for a Morris side becomes illegal if he continues to play when the dancers take a break, perhaps our knowledgable minister would like to explain the situation pertaining when your moving lorry gets stuck in a traffic jam, and is forced to stop.

Don T.

Subject: RE: Minister say's jamming OK in UK
From: Don(Wyziwyg)T
Date: 25 Jul 05 - 02:01 PM

100

Don T.