Ver very long post - sorry about this, but no convenient website to put it on to make a link to.

The Performer Lawyer Group has just made the following press release: -


PERFORMER-LAWYER GROUP
care of: - MacDonald Bridge, Solicitors
Forge House, High Street, Lower Stoke, Nr. Rochester, Kent ME3 9RD
Tel: 01634 27 27 20 Fax: 01634 27 27 21 Email: McLaw @btinternet.com

PRESS RELEASE 26/07/05:        THE CRIMINALISATION OF LIVE MUSIC
The Performer - Lawyer Group are lawyers who themselves perform: mostly music or drama. The group was formed in 2003 by solicitor and folk musician Richard McD. Bridge to lobby about the irrational terms of the Licensing Bill.

LICENSING ACT HOSTILE TO LIVE MUSIC
The Licensing Act 2003 is a major piece of legislation. It will regulate "licensable activities" from November 2005. It is largely about alcohol, pubs, clubs and drinking hours, which are controversial enough. Its over-sweeping approach is unhelpful to amateur dramatics, circuses and possibly even darts matches. But for musicians its impact on live music is an unprincipled disaster. It makes crimes out of many things that were not. It does so without regard to the cultural importance of live music and performance. The government deviously says nothing is regulated now that was not regulated before. In reality, music-making is now regulated in much wider circumstances.

Until now a public entertainment licence ("PEL") was usually needed if an entertainment was public. Some private events needed licences under the Private Places of Entertainment Act 1967. Now a licence will be needed in members clubs and at many more private events. Many more outside events will need licences. Hundreds of musicians earn their livings playing in pubs under an exemption for up to two musicians, called the "two-in-a-bar-rule". This rule exempted pubs from PELs if they had up to two live musicians, or recorded music. They will lose the benefit of that exemption for live music – but not for recorded music (see below). The government says this is necessary in case the White Stripes (a very popular American two-piece group) play at an English pub. How likely is that? Did Chicory Tip ever cause pub riots?

IRRATIONALITY
The Government gives two main reasons – safety, and public order (including noise nuisance). Neither stands up, there is no coherent rationale, and the Act is peppered with flaws. In 2003 the Association of Chief Police Officers told ministers: "Live music always acts as a magnet in whatever community it is being played. It brings people from outside that community and having no connection locally behave in a way that is inappropriate and disorderly." This betrays prejudice as well as bad grammar.

There is a welter of legislation covering safety and noise, so the new controls add nothing significant. Ironically, for this very reason, local authorities are now told in government guidance that the licences they issue must not duplicate other regulation. There are existing powers both to "stop now" and to confiscate equipment. Most capriciously, however, the Act regulates live music, but exempts broadcasts of any kind. So too in most pubs recorded music will escape (see below), even if all three are amplified on the same systems.

The Act regulates a string quartet in the local library at an open night, a jazz band at a village fete, pub sessions playing folk music, a singalong at a pub piano, a carol concert in a shopping centre, and even (according to some licensing authorities) some benevolent performances at old folks' homes or in hospitals. Is this rational? The Act also covers commercial dance halls and rap or death metal concerts, etc. Are these really the same?

BIAS AGAINST LIVE MUSIC
The Act treats recorded music and broadcasts especially favourably. The replay of anything lawfully broadcast is not regulated (Schedule 1 paragraph 8). Pubs that could play recorded music under the "two-in-a-bar-rule" will still (under the transitional provisions) be entitled to a licence to replay recorded music. Recorded music under that rule is an "existing licensable activity" as defined in paragraph 1(1) of Schedule 8. These are usually called "grandfathered rights". If a grandfathered right is specified in a licence application under paragraph 2(4)(a) of the Schedule, then it MUST be included in the licence that MUST be granted under Paragraph 4(2) unless the police show it would make crime likely ((Paragraph 3(3)). Then these things will be permitted, no matter how loud, no matter how unruly the audience is likely to be.

Coming back to the "White Stripes", live music under the "two-in-a-bar-rule" is specifically excluded from being a grandfathered right by paragraph 1(2)(a) of Schedule 8 – but not recorded music, no matter who plays it, whether that DJ is as famous as the White Stripes or not.

The error here is two-fold. As any frequenter of music can tell you, there is less trouble where music is the priority rather than alcohol and romance. Further, the creative is discriminated against in favour of the consumption of manufactured output. The two-faced government advances the "White Stripes" argument against live performers in pubs – but ignores the equivalent possibilities, indeed probabilities, for recorded music. Some local authorities claim DJ "performers" will need licences, too, but for the reasons above this seems unlikely in most pubs, and the government has shown no intention anywhere in the Act to regulate DJs as performers.

REGULATION BY FEAR
The Act requires the owner of premises (indoor or out, including village halls, scout huts, etc) or the organiser to get a licence from the local authority for an event, even a charitable event if a charge is made. If there is no permanent licence he may give a "temporary event notice" for the event, limited to 12 per year (of course subject to a fee). Some fees have increased enormously.

Absence of a necessary licence is an offence. There are some exemptions for mere performers, but they are a mess, almost certainly as far as licensable private events are concerned, and probably therefore licensable public or club events. If one member of a band or troupe arranges or choreographs the performance of another, the first commits an offence but the second not. A conductor may be liable but the band not. If one member of a band lends another an instrument, he commits an offence but the borrower not. Extraordinarily, these things can turn an otherwise unlicensable private event into a licensable one. The penalty under the Act for music without a licence is £20,000 and/or 6 months imprisonment. So, seeing the complicated provisions in the Act, no one will take a risk and for example musicians playing at hospitals or old folks' homes are being cancelled because of fear of needing a licence (whether one is actually needed or not).

IRRATIONAL EXEMPTION STRUCTURE
There are some exemptions – as well as those mentioned above – and some obviously needed are missing. The exemptions are ill thought out. Below are some examples.

"Incidental" music (live or recorded) is exempt if incidental to some other licensed activity. The Government refused to define "incidental". Ministers have said that if an event is advertised, or if anyone is paying much attention to it, it cannot be incidental, but this is not based on any words in the Act.

Morris dancing with acoustic music is exempt. This was a sop to get Lib Dem peers on-side in the Parliamentary debate. When the dancing stops and it therefore gets quieter and safer the acoustic music must stop unless licensed!

There is no other recognition of the importance of our culture or folklore – which must make England almost unique among the countries of the world, and arguably is contrary to our obligations under the International Covenant on Economic, Social and Cultural Rights (ICESCR) that we ratified in 1976.

There is no general exemption for unamplified music. The government says this is necessary in case a troupe of bagpipers or Japanese drummers decide to play in a pub. How likely is that? Is it more or less likely than loud recorded music, or broadcasts?

There is no general exemption for "spontaneous" music. The government has repeatedly said that such music is not regulated. They say that "jamming" is not regulated. They have never pointed to any words in the Act to justify such a statement. The statements are probably wrong.

Places of public worship and religious meetings are exempt but not church halls. Church and village halls may benefit from reduced or zero fees if they get (if they can get) a licence.

There is a distinct possibility that rehearsal rooms may in some circumstances need licences. It turns on detailed wording that ought to have been clarified and was not.

CONCLUSION
The Government keeps saying that it supports live music and the Licensing Minister says the Act will make more opportunities for live music. The truth is that the universal requirement of a licence to make music (except in limited circumstances in private), backed with swingeing penalties for anyone who makes premises or facilities available for music, will kill the roots of live music and stifle the creativity of musicians young and old. Meanwhile, we all hear disaffected youth complain "there is nothing to do". Where will the music industry find real musicians (as distinct from clones made in a televised factory) when there is nowhere for performers to hone their skills?

This is now an Act. The Minister says the Government will review the legislation if it does not do what is intended. The Act contains power for the minister to amend many parts of it without a full and time-consuming parliamentary process. Urgent pressure is needed. That review and amendment could and should take place now to save live music from extermination.





BELOW: a selection of recent public ministerial statements, with the reasons they are wrong.


James Purnell: BBC Radio 4 - You & Yours – Friday 1st July 2005

Purnell: 'It's, you know, it is a seven page form for most people.'
FALSE because: The vast majority of pubs, bars, restaurants and hotels do not hold a public entertainment licence. So applying for live music now or in the future will mean filling out at least 15 pages of application forms –even for solo or duo performances, plus plans etc – see below.


James Purnell/John Humphrys: BBC Radio 4 - Today – Wed 29 June 2005:

Purnell: 'Now as long as they tick the box which says we want to put on an entertainment they won't have to pay any more and it is a much much easier system.'
FALSE because: A typical bar or restaurant will pay considerably more if they 'tick the box' for live music, and the application process is more complex than the old licensing regime. Ticking the box immediately incurs the cost of publicly advertising the application, often over £200. There is also the cost of having new 1:100 scale plans made of the premises. Then there are potential knock-on costs of possible legal representation if there are local objections, or objections from 'relevant authorities' that have to be dealt with by a public hearing. There are more potential costs incurred if typical local authority conditions are imposed, such as installing CCTV, crush rails, double glazing, air conditioning, new lavatories or wiring, or providing registered bouncers. If the applicant considers such conditions unreasonable, there is the cost of appealing to the magistrates' courts. But he may never get that far – a live music application will fail if the local authority doesn't get round to processing it within two months. Under the old regime there was no such 'time out' limit. Plans were not required if merely renewing an entertainment licence, and the scale was at the applicant's discretion. Nor were applicants required in advance to set out a weekly performance timetable, citing whether the music is amplified or not. For bars and restaurants a completed entertainment licence application was not usually more than 4 sides of A4. Under the new regime it is more likely to run to 15 pages or more. Under the old regime it went to 6 different authorities, not 8 as under the new regime. So it is much easier not to 'tick the box' for live music, particularly since jukeboxes automatically carry forward, if they are already in situ, and big screen broadcast entertainment is exempt.

John Humphrys: Forever? I mean they tick the box and that's it?
James Purnell: That's exactly right. They never have to apply for a licence again.
FALSE because: It is not "exactly right". It is not even close in most cases. Live music applicants must set out on the form the days and times during day when performances are being proposed. Many licensees will be wary of applying for live music 24/7. Local residents and the local authority would almost certainly object. Most applicants will compromise, applying for live music on a few days a week, perhaps just continuing the solo/duo acts they were automatically allowed in the past. Assuming such an application is eventually authorised, it will be a criminal offence for the licensee to put on live music on days and times not specified on the original application (except possibly under a temporary licence). If they had applied to continue solo or duo acts only, they would not be free to put on bands of three or more performers. In order to change or increase the live music, a new 'variation' application would have to be made, plus the licence fee, advertising costs, and potential for all the knock-on costs set out above.


James Purnell: BBC Radio 4 - YOU & YOURS – Friday 01 July 2005

James Purnell: '…but you know just generally it makes it easier for people to put on live music…'
FALSE because: As above:

James Purnell: '…And in effect people transferring the licences that they had previously into the new Act and that does mean, er, filling in a form and providing some information. Er, you know, the light at the end of that tunnel is that they can then know that they'll never have to apply for a licence again….'
FALSE because: As above:

James Purnell: '…Well, the general point is, yes we do recognise that there is a burden, and people getting their applications in at this stage. But once they've done so they will then never have to apply for a licence again.'
FALSE because: As above:

James Purnell: 'And under the current regime there are all sorts of anomalies and all sorts of antiquated rules which do mean that, day to day, people facing restrictions.' – [the implication is that these will be removed]
FALSE because: The new Act creates even more anomalies: one musician performing in a restaurant not licensed for live music is potentially a criminal offence for the licensee, but music or sport broadcast on big screens and a powerful PA is exempt; a concert in a church, royal palace, or military base is exempt, but illegal unless licensed in a school; acoustic music with Morris or similar dancing is exempt, but without the dancers illegal unless licensed; a performance in an unlicensed village hall is illegal, but legal if the musicians performed on the back of a moving lorry. Two famous musicians need regulation but one famous DJ does not (probably).

James Purnell: 'But if they do go out and get a licence we feel that it will be easier for them to operate because they will be able to put on whatever events they want to after that and they will never have to reapply for that licence.'
FALSE because: As above:


Jeremy Vine/James Purnell: - BBC Radio 2 – Tuesday 19 July 2005

James Purnell: 'If you're applying for an alcohol licence in effect you only have to tick one extra box and, er, you can then get a public entertainment licence.'
FALSE because: As above:

James Purnell: 'So, actually most people only have to fill in the 7 pages.'
FALSE because: As above. For most people it will be 15 pages, scale plans, fees, advertising costs, and capital costs and running costs, etc.

James Purnell: 'The the principle I think is fairly clear which is if it's an entertainment, where you're advertising it, people are coming along, paying, expecting to see live music that will require a licence as it does now. '
FALSE because: If live performance is 'to any extent' public it is illegal unless licensed irrespective of whether people pay to attend, whether it is advertised, and irrespective of whether alcohol is sold. If it was "as it does now" then the Act would effect no changes about live music. Certain venues are exempt from entertainment licensing: places of public religious worship, royal palaces, military bases and defined areas within designated ports or airports. The new Act also for the first time captures many private events that used to be exempt, such as charity fund-raising performances, or live music at private members clubs.

James Purnell: 'If it's just people singing along or jamming then it's not, then it doesn't require a licence.'
FALSE because: There is no such exemption. There is no exemption for spontaneity. Schedule 1 paragraph 2(1) is perfectly clear. A performance of live music, if there is an audience (or spectators), and if the purposes include (ie to any extent) entertaining that audience then that is entertainment and so regulated like other entertainment.

James Purnell: '… it's perhaps not surprising that people are worried about the burden they're going through now. What I would say is that the light at the end of that tunnel is they will have, they will never have to apply for it again.'
FALSE because: - See above

James Purnell: 'We think it will be good for live music'                        WHY?