For circulation

Culture Minister Kim Howells is to answer emailed questions about the Licensing Bill on Lamacq Live
BBC Radio 1, Monday 10 February, 8-12pm. See: http://www.bbc.co.uk/radio1/onemusic/features/licensingbill305.shtml

For ideas about questions to ask, see under Questions below. To avoid misunderstandings about the Musicians' Union position on the Bill, go to:
http://www.musiciansunion.org.uk/articles/two_in_a_bar07.shtml (More info under MU position below).

Some supporters of the Bill argue that increased licensing control is good for public safety. The Department for Culture says licensing allows for the prosecution of musicians who trail 'bare cables' through an audience - not mentioning that this is already dealt with by public safety legislation. See Health and Safety - bare cables below. Noise is also dealt with by separate legislation. This is comprehensively covered on the MU website at: http://www.musiciansunion.org.uk/articles/two_in_a_bar17.shtml and scroll down for the Noise heading.

On Thursday 20 February, the National Campaign for the Arts has organised a Licensing Bill Seminar at the Wigmore Hall, London, 2-4pm. Andrew Cunningham, the civil servant at the Department for Culture, Media and Sport (DCMS) who is responsible for the Bill, will be a speaker. To reserve a free place call Jackie Clayton on 020 7333 0375, or email jclayton@artscampaign.org.uk.

The Joint Committee on Human Rights which strongly criticised the Department for failing to provide adequate justification for increased licensing controls, is now considering the government's response. The Committee will publish its conclusions on Monday 10 February. The Committee's office can be contacted on 020 7219 2797.

Parliamentary Timetable
The Bill is still in the Lords. There are two more stages of Lords debate before it goes to the Commons: Report stage and 3rd reading. Report stage will begin on 24 February, and 3rd reading could be concluded as early as mid-March. The MU is working with the Lords in order to re-present amendments at Report stage.

Questions


Since the Bill exempts big screen broadcast entertainment (Schedule 1, para 8) that could be hooked up to a powerful sound system, why is it necessary to criminalise even small-scale public music-making unless licensed?
The government launched the Licensing Bill as a Bill to tackle anti-social behaviour. Why did the government reject the representation made by the Association of Chief Police Officers which argued against the broadcast entertainment exemption because televised sporting events '...attract large crowds and are quite frequently the source of disorder'?
The Minister has written that he 'does not accept that acoustic music is never noisy' to justify licensing unamplified performance. Can the Minister provide up to date statistics which show the number of noise complaints arising from live amplified music or live unamplified music? If so, are they publicly available?
The Bill contains an exemption (Schedule 1, para 7) for the playing of recorded music that is incidental to other activities that are not licensable entertainments or facilities. Does this mean a pub jukebox is exempt no matter how powerful the sound system, provided no-one organises any singing or dancing?
Can the Minister identify specific deficiencies in public safety, noise or crime and disorder legislation that would mean a performance by a string quartet in a hotel lobby, or a jazz trio in a bar, cannot be adequately regulated without licensing?
Since public safety and noise legislation is UK-wide, and in Scotland live music that is secondary to the main business of pubs and bars is automatically allowed during permitted hours, why can we not have this regime in England and Wales?
If under the new regime a pub obtained permission for a duo on Friday and Saturday night, does this mean it would have to apply to vary the new 'premises licence' in order to put on live music on another day of the week?
Clauses 134 and 137 of the Bill mean that musicians are open to criminal prosecution if they don't first check that premises hold the 'appropriate authorisation' for their performance. Why is this necessary?
The Bill defines premises as 'any place' (Clause 188). Will buskers always have to check with a local authority first if they want to busk in a public street or square, or indeed any open space?
If those places don't hold a 'premises licence' for live music, would the busker have to obtain a Temporary Event Permit?
Could the Minister confirm that only five such permits can be granted per year for any place?
If a pub provided a piano for public use, would this be illegal unless licensed?
I am sure you can think of many more.

The MU position
Nothing so far said by the Minister or published by the DCMS suggests the MU should alter its position concerning the potential scope of the Bill's definitions as worded. Clarifying amendments, reflecting the Minister's assurances, are required. Independent legal advice, and expert licensing lawyers support us. They agree, for example, contrary to the Minister's statements, that carol singers on front door steps, and private events where performers charge a fee are caught.

The MU has welcomed the government's proposal to cap licence fees and to set them centrally - where licensing is necessary. Specialist premises already licensed for public entertainment will benefit. Many do pay exorbitant annual fees under the present system. They could save considerably under the new proposals. It also makes sense to rationalise the disparate licensing regimes, although it is unfortunate in many ways that essential reform of public entertainment licensing should be pegged to deregulation of pub opening times. The Licensing Bill applies to regulated entertainment irrespective of whether alcohol is sold.

The MU also welcomes the government's announcement that means churches in London will enjoy the same entertainment licensing exemption that currently applies outside London, and that church halls and community premises in London will get the licence fee exemption that currently applies to these premises outside London.

The MU accepts that there is a case for licensing premises whose main business is music, or music and dancing. It may be easier to enforce certain measures at such premises (such as the provision of chill out rooms) through licensing conditions than through safety legislation - although experts argue about this. These premises may also have a far greater impact on residential amenity than a typical bar or restaurant, and the importance of public consultation is consequently greater.

The MU's prime concern is for over 100,000 smaller premises that will lose the long-standing licensing exemption for small-scale entertainment by one or two live performers. Many MU members rely on work in this sector, as solo or duos. Currently only 5% of 110,000 pubs, bars, clubs, restaurants etc in England and Wales hold annual public entertainment licences allowing more than two performers to work. There is also concern about the implications for private events. Where these are raising money for charity they become illegal unless licensed; this also applies where a charge is made for admission.

It is unlikely that obtaining the 'necessary authorisation' will be a simple matter of ticking a box. The Local Government Association has already indicated that it would like to have information such as a maximum number of performers, where in the premises they are to perform, and when. Even if licensees are prepared to jump through all the obligatory administrative and consultative hoops (police, fire service, environmental health dept, local residents, and finally the licensing committee), and even if the conditions are less costly than at present, if a permission is granted for, say, a duo on Friday evening that will be the limit of their live music permission. If they wish to host a trio, or to provide live music at any other time they will have to apply to vary their premises licence, going through the whole process all over again. This is clearly over-regulation. There is nothing like it in Ireland, Scotland, Germany, Finland, Denmark and France.

A thriving grass roots music sector cannot exist without flexibility, freedom for musicians to sit in, informality and an intimate music-making environment. The Licensing Bill seems almost deliberately designed to kill this off. It is a potential straitjacket for this kind of music-making which was, after all, how folk and jazz was born. As Mike Harding and others have already pointed out, the burgeoning folk scene of the 50s led to the pop explosion of the 60s and 70s.

Health and safety - bare cables
When considering public safety or noise issues in the context of the Licensing Bill don't forget that the exemption for broadcast entertainment (Sch 1, para 8) means that you could set up a bank of big screens and a large PA, invite people to bring their own beer, and provided the entertainment falls within the broadcast entertainment definition, this is not licensable under the Bill. In its recent statements justifying licensing controls on safety grounds, the DCMS has failed to mention the wide-ranging powers already available under health and safety legislation. These apply irrespective of licensing. The paragraph below is from the latest DCMS justification of the Bill which has been distributed to MPs and the wider public. Beneath it in blue are my comments.

"24.2 The penalties provided in the Licensing Bill are maximum penalties and, as with all offences, the courts would decide on the appropriate punishment depending on the facts of the case. Severe penalties might be appropriate in some cases, however rare, for instance where a musician put lives at risk by trailing bare cables through an audience."






Having bare cables trailing through an audience in, for example, a bar would be a health and safety offence in any case. The employer and the musician responsible could be prosecuted.



Under the Health and Safety at Work Etc Act 1974 (HSWA) the employer on site has a duty to create and maintain a safe system of work not only for employees but anybody else who might be affected. If the workplace is a pub, the employer is effectively responsible for the safety of members of the public as well. This undertaking would cover activities ranging from repairs to the provision of entertainment ('entertainment' or 'practice or presentation of the arts' are already defined as activities for which local authorities have a statutory duty to enforce the HSWA in workplaces).



Bare cables trailing through an audience, or trailing through a group of people milling about, could result from a number of plausible scenarios: musician with amplifiers, the use of an air compressor for a bouncy castle, a workman undertaking repairs. If injury or even death resulted from such bare cables, two prosecutions could be pursued: one against the employer and one against the musician or other person responsible for the equipment (as a self-employed person) under sections 2 and/or 3 of the HSWA. The employer, or self-employed contractor, are under the same duty to provide a 'safe system' for people who may be affected.



A prosecution brought under s2 or s3 of the HSWA carries a maximum £20,000 fine at a magistrates court. If the magistrates court considers that their powers are insufficient, for example where a fatality or serious injury has occurred, the prosecution goes to the Crown Court where there is there is no limit on the potential fine. A Bill currently going through Parliament (Health & Safety Offences) is seeking to include imprisonment as an additional sanction.



The duties imposed by the HSWA are widely publicised by the HSE with plenty of published guidance, both hard copy and online. Since 1974, public safety and noise legislation has applied UK-wide. The Scottish example demonstrates that where live music is secondary to the main business, and is confined to permitted hours, no additional controls are necessary.