The following from Hamish

For all musicians - please circulate
From Hamish Birchall - 28 June 2004
Email: drum.pro@virgin.net

Musicians should get involved now with their local authority if they want to make the best of the new entertainment licensing regime. Although it may be late 2005 before new licences take effect, over the next few months local authorities will be preparing Statements of Licensing Policy. This involves local consultation. Musicians can and should be a part of this process. This is particularly important for those who organise and promote their own gigs.

The Musicians' Union has just sent all members a leaflet primarily aimed at encouraging landlords and licensees to put on more live music. This is a great idea, and may produce good results, but neither the leaflet or the in-house magazine 'Musician' mentions the freedom of expression legal context. This is an unfortunate omission because this context could be used to influence local authority licensing policy in musicians' favour. This circular explains how that might work (see section 4 below) and includes an already-drafted paragraph that musicians' could ask local authorities to include in their Statement of Licensing Policy.

The MU leaflet also claims: "There will be a single charge for the 'alcohol and entertainment licence' regardless of the nature of the entertainment". That is somewhat misleading. In fact the single charge will only apply to existing pubs/bars etc during the six month Transition Period, and then only if they apply for permission to host entertainment at the same time as converting their alcohol licence to the new premises licence. After the Transition Period an additional fee would be payable by such venues if they wanted to host regulated entertainment.

The new legislation gives the Secretary of State at the DCMS power to change or remove descriptions of entertainment, so lobbying your MP is still relevant. The recent violence associated with bars screening Euro 2004 emphasises the need: if licensing is necessary to prevent overcrowding and noise, why should solo performance be illegal unless licensed, while big screen sport in bars is exempt?

The text below is an edited version of advice commissioned by Jazz Services, 132 Southwark Street, London SE1 OSW, Tel: 020 7928 9089, www.jazzservices.org.uk (Director: Chris Hodgkins). I am very grateful to Chris for his support, and for keeping the campaign flame alight. I am also grateful for the help of Richard Bridge, musician-solicitor founder of the Performer Lawyer Group. (For those who don't already know, my work for the Musicians' Union ceased in September 2003.)

NB: This circular does not constitute legal advice. If you are promoting your own gigs - particularly solo or duo performances currently exempt under the 'two in a bar rule' - you may need to seek independent legal advice from an experienced licensing lawyer, as well as the advice of your local authority.

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New entertainment licensing laws - musicians - local authority involvement etc

Contents:

1    Background
2    Timetable for reform
3    Two in a bar and the new incidental music exemption
4    Recommended action
5    Lobbying

1    Background
The Licensing Act 2003 requires local authorities to prepare a Statement of Licensing Policy and to consult widely in its preparation. The Act does not specify musicians as consultees, but it does say that local authorities must consult with people they consider to be 'representative of businesses and residents in its area' (s.5(3)(f)). The Licensing Guidance, recently approved by Parliament, says that in preparing Statements of Licensing Policy local authorities 'may also consider it valuable to consult local performers, performers' unions (such as the Musicians' Union and Equity) and entertainers involved in the cultural life of the community' (para 3.5, p21). It also stresses the importance of live music and recognises that freedom of artistic expression is a fundamental right (para 3.58, p36).

2    Timetable for reform

Please note the date for the availability of new licences - the 'first appointed day' - has yet to be confirmed by the Department for Culture, Media and Sport. Further delay is possible.

During the next six months local authorities in England and Wales will prepare their Statement of Licensing Policy. This should include how they will promote live music in the context of the new entertainment licensing regime.

At the end of the six months new licences become available on the 'first appointed day'.

This is the beginning of a nine month Transition Period. New licences granted during this time will be dormant.

At the end of the Transition Period (the 'second appointed day') new licences take effect and the old regime finally ceases.

3    Two in a bar and the new 'incidental music' exemption

The new law will cover more gigs than before, including many, and maybe all 'two in a bar' gigs.

However, the new law is open to interpretation.

Local authorities will have some discretion in the way they regulate live music. They cannot ignore the Act, but they must consider carefully when and how to enforce it.

If they seek to interpret and enforce the law restrictively, local authorities should provide good reasons.

There is a new exemption for incidental music (Licensing Act 2003, Sch.1, para 7), but it is unclear how many 'two in a bar' gigs will qualify.

Many, and maybe all, landlords/licensees already providing live music under the 'two in a bar' exemption will need to apply to 'vary' their new premises licence in order to continue providing even this minimal entertainment.

If they don't do this at the same time as converting their existing alcohol licence during the Transition Period, there will be a fee for variation at a later date.

There is a potential cost-saving provision - but not an exemption - for premises up to 200 capacity hosting live music (Licensing Act 2003, s.177).

Venues already holding a public entertainment licence for live music may save money under the new regime .

4    Recommended action

4.1 Start talking to your local authority

Find out who is leading on the licensing policy consultation. If you cannot be directly involved, ensure that your local MU rep is participating (assuming you are a member).

4.2 Read the live music sections of the Licensing Guidance

You should inform yourself about how the new system is meant to work. This is particularly important for musicians who organise and promote their own gigs.

The Guidance was produced by the Department for Culture, Media and Sport, in consultation with the Musicians' Union, Arts Council and others. It is a guide to the new legislation for local authorities and other official bodies involved in licensing, but it is also for performers and the general public. Copies can be downloaded from the Department for Culture website: www.culture.gov.uk. Follow the links to 'alcohol and entertainment', then 'publications'. See Appendix 1 at the end of this document for a list of relevant sections.


4.3 Important principles

Apart from general arguments about the benefit of live music for the community and the need for more venues, live music does enjoy a degree of legal protection from over-regulation through licensing. If this were fully understood and implemented by local authorities, it could help create new venues and would certainly benefit existing gigs.

Understanding two basic principles would put musicians in a stronger position when arguing for a music-friendly licensing policy, particularly where two in a bar gigs are concerned:

The performance of live music is a fundamental right. It is part of the protection for freedom of expression under the Human Rights Act.

It is a 'qualified right' and as such is subject to legitimate restriction by public authorities on the grounds of, among others, public safety, prevention of noise nuisance, prevention of crime and disorder. However, such control must be 'necessary to meet a pressing social need' and must be proportionate to the need.

The courts, and hence local authorities, have a statutory duty to interpret all legislation as far as possible compatibly with fundamental rights (s.3, Human Rights Act 1998). Also, public bodies, including local authorities, must not act in breach of human rights unless primary or secondary legislation obliges them to do so (s.6).

This basic legal context should inform all licensing decisions where live music is involved. But how might this be included in a Statement of Licensing Policy, and what is the practical benefit?

4.4 Paragraph to recommend for inclusion in every local authority's Statement of Licensing Policy

The Licensing Guidance stresses the value of live music, and recognises that it is a fundamental right. It also explicitly refers to the UK's ratification of an international treaty which requires 'progressive measures' be taken to ensure that everyone can participate in the cultural life of the community and enjoy the arts (Article 15, International Covenant on Economic, Social and Cultural Rights). Furthermore, it warns that licence conditions must not duplicate provision available under separate legislation (see Licensing Guidance, para 7.13, and 7.17-7.19).

Taking all this into account suggests that every local authority's Statement of Licensing Policy could include a paragraph like this:

"Live music, dance, theatre etc: This authority recognises its duties under Article 15 of the International Covenant on Economic, Social and Cultural Rights to take progressive measures to ensure that everyone can participate in the cultural life of the community and enjoy the arts. Artistic freedom of expression is a fundamental right, and this authority is bound by s.3 of the Human Rights Act 1998 to read and give effect to all legislation, including licensing legislation, so far as possible compatibly with the right to freedom of expression.

This authority will take all this into account when considering the licensing of live music, dance and theatre. Where the Licensing Act 2003 is open to interpretation which may be more or less restrictive for these activities, the authority will fully explain the reasons for its interpretation of the Act. In such cases, and particularly where licence conditions are proposed, the authority will set out in detail where, how and why it believes subsisting safety, noise, crime or disorder legislation, is inadequate such that licensing is, or licence conditions are, not only necessary, but a reasonable and proportionate means to address the risks arising from the entertainment.

The authority, in accordance with the Licensing Guidance document, will also monitor the impact on regulated entertainment, in particular live music and dancing, of the licensing provisions. Where it is found that such entertainment is being deterred, it will review its policy with a view to reversing that trend."

4.5 What practical benefits could this bring?

A benchmark against which all licensing decisions involving live music could be measured.

Local authority commitment to transparent decision-making.

Help prevent over-prescriptive entertainment licence conditions.

Encourage relaxed interpretation of, for example, the incidental music exemption. This may keep some existing 'two in a bar' gigs out of the licensing regime altogether.

Some redress for musicians if the local authority does not provide adequate justification for a licensing decision which unnecessarily prevents, or disproportionately restricts, performance.

4.6 Discuss implications with landlords/licensees

It is very important to discuss the new licensing regime with licensees. Even now, many do not know what the new Act will mean for 'two in a bar' and/or live gigs in general.

If you are performing in a 'two in a bar' gig, find out whether the licensee knows about the possible 'variation' requirement during the Transition Period.

Do they know about the incidental music exemption?

Do they know about the new requirement to licence 'entertainment facilities', such as musical instruments if these are provided by the venue?

Would they be prepared to press the local authority for exemption under the incidental music exemption?

Do they know about the concession for premises up to 200 capacity?
Are there local bars/pubs etc that might consider putting on live music if persuaded that licensing would not cost very much?

4.7 Provide feedback to Jazz Services, MU and/or Live Music Forum

It is vital to provide feedback, to musicians' organisations and to the Department for Culture: Jazz Services (020 7928 9089, email: education@jazzservices.org.uk), the Musicians Union (020 7582 5566, info@musiciansunion.org.uk), and the Live Music Forum at the Department for Culture, Media and Sport. For the latter see the DCMS website (reference above), or phone DCMS on 020 7211 6000 and ask for the Live Music Forum.

5    Lobbying

During the final stages of debate, the government made a commitment to revisit the Act if there are problems for live music:

"... I can give today a firm undertaking that the Government will review the existing descriptions of entertainment in the Bill six to 12 months after the end of the transition period. If it proves that the Bill has had an unintended, disproportionate, negative effect on the provision of live music, we will use the powers already in the Bill to modify the position through secondary legislation. I say now that the Government are convinced that the Bill will already provide a real shot in the arm for entertainment and allow it to thrive. "
Lord McIntosh, House of Lords, 03 July 2003

It would have been better if he had said '.. if it proves that the Bill has not significantly increased the number of venues for live music, we will use the powers...' etc. Since only 5% of licensed premises in England and Wales currently hold public entertainment licences allowing more than two musicians to perform it is hard to see how the present situation could get much worse.

The power Lord McIntosh referred to is in Schedule 1, para 4 of the Act. This allows the Secretary of State at DCMS by order to change, add or remove descriptions of entertainment. She could in theory add the televising of sporting events in public places to the list of regulated entertainments. Euro 2004 has demonstrated that televised sporting events in bars are a serious law and order problem (rioting against police in Croydon and elsewhere, for example, following England's defeat by France on June 13).

All this presents lobbying opportunities. Here are a few suggestions:

Write to your MP and ask whether he/she considers it fair that while televised sport in bars is exempt, the provision of a piano for regular public use should be illegal unless licensed for safety and noise purposes.

Ask whether, in view of the recent violence associated with televised football in bars, he/she will press the Secretary of State at DCMS to use her powers under Sch.1, para 4 of the Licensing Act 2003 to make such entertainment licensable when broadcast in pubs/bars etc? You could add that Tessa Jowell launched the original Licensing Bill as a 'central plank in the government's drive to tackle anti-social behaviour'.

Ask your MP to ask the Home Secretary whether he will be making representations to the DCMS Secretary of State to use her powers to amend the Licensing Act so that televised sport in bars becomes a regulated entertainment.

If there are local examples of football violence associated with big screen broadcasts in bars you should include these.
If there is a local angle, then the local press may be interested.
Appendix 1: Licensing Guidance - relevant sections

Chapter - Heading: 'sub-heading', paragraph reference

Foreword

1 - Background (whole chapter - 2 pages).

2 - Introduction and Purpose: 'Partnership working' paras 2.7 and 2.8; also 2.21 (new anti-noise powers).

3 - Statements of licensing policy: 'General' paras 3.2-3.6, 'Limitations on special policies' para 3.23; 'Cultural strategies', 3.47-3.49; 'Duplication', 3.53-3.55; 'Live music, dancing and theatre', paras 3.58-3.60.

5 - Premises Licences: 5.2-5.19, plus 5.127; 'Application for premises licences', 5.40-5.46; 'Steps to promote licensing objectives' , 5.48-5.50; 'Advertising applications', 5.52; 'Casinos and bingo clubs', 5.54; 'Vessels', 5.58; 'International airports and International ports', 5.60-5.61; 'Vehicles', 5.62-5.63; 'Trains and aircraft', 5.64; 'Considering applications for new and major variations of premises licences', the whole section; 'Relevant, vexatious and frivolous representations', whole section; 'Large scale temporary events requiring premises licences', 5.127 to end.

7 - Conditions attached to Premises Licences and Club Premises Certificates: all of the first five pages, with particular attention to Duplication and Proportionality sub-sections; 'Public safety', whole section; 'Public nuisance', whole section; 'Copyright and royalties', 7.73.

8 - Permitted Temporary Activities (Temporary Event Notices): 'General', whole section.

11 - Police Powers to close premises: 'Public nuisance caused by noise coming from the premises', 11.28; 'Noise nuisance and liaison with the local authority', 11.43-11.47.

13 - Transitional Matters: 'Variation of new premises licences', 13.25-13.29.

14 - Other Offences: 'Unauthorised licensable activities', 14.4-14.9; 'Defence of due diligence', 14.14

Annexes A, D, E, F, G,