Hamish Birchall has sent the following correction to the Radio 2 site.

I don't mean to sound overbearing, because I know how confusing the law in this area can be, but the R2 website news item trailing Kim Howells' interview on PELs is inaccurate and needs correcting. This section is the problem:

'...The so-called 'two in a bar' rule requires pubs and clubs to have a Public Entertainment Licence for performances involving more than two people. This includes musicians playing in informal pub sessions. The rule has allegedly led to the closure by local councils of several long-standing folk clubs and sessions since it became law earlier this year. Musicians Union representative Hamish Birchall will also be giving his views on the issue.'

Corrections/clarifications

1 The 'two in a bar rule' first became law in the Licensing Act 1961, not 'earlier this year'! Prior to 1961 there was no two performer exemption in primary legislation for liquor licensed premises from what was then called a 'music and dancing licence'. However, due to case law precedent (Brearley v Morley, 1899) landlords who simply allowed two, or possibly more, customers to make music for their own amusement during the course of an evening were not required to hold a music and dancing licence.

Until the early 1980s PELs were granted by magistrates and fees were set centrally at purely nominal levels. Over-zealous enforcement of the two in a bar rule did happen occasionally, but because the fees and conditions were reasonable there were relatively few problems.

The widespread closure of local gigs began in the early 1980s when PEL responsibility was handed to local authorities and legislation was amended to allow them to levy so-called 'cost recovery' PEL fees (a principle enthusiastically promoted, apparently, by Ken Livingstone when he led the GLC). In London and many other areas fees rose steeply. In 1982 the Rank Organisation, hit hard in many of its entertainment premises, sought to cap these fees by judicial review. They failed. PEL conditions, set at councils' discretion and only challengeable using a costly appeal to magistrates courts, became increasingly onerous. I have documents showing that as early as 1984 Musicians Union officers were complaining to local authorities about the loss of work for members. As fees rose, so local authority enforcement increased - triggered more often than not by tip-offs from landlords jealous that a competitor might be hosting live music without paying their 'bung' to the council.

In February this year the Appeal Court (London Borough of Southwark v Sean Toye, Administrative Court, 21 February 2002) tightened the interpretation of the two in a bar rule. It decided that Parliament intended the 'rule' to mean that only the same two performers could be allowed throughout the course of the evening in liquor licensed premises without PELs. This strict interpretation had been enforced by London borough councils for some time. The Court decision means that it now applies nationally. The Court also decided that the use of MIDI files during live performance in liquor licensed premises requires a PEL. The two in a bar rule stipulates that any combination of live performer with the 'reproduction of recorded sound' is outside the exemption and requires a PEL.

2 The two in a bar 'rule' applies to any premises licensed to sell liquor under the Licensing Act 1964. This includes restaurants, hotels etc. The Home Office estimated the total number of such premises in England and Wales is 111,000.

3 Clubs, if operated as private members clubs, are exempt from PELs and the two in a bar 'rule'. However, they can only admit members who have been registered at least 24 hours beforehand. The recent busts by local authorities (Belper) were achieved by the council and local police sending in undercover officers who succeed in gaining admission on the night. The practice of sending in undercover officers to put innocuous music-making under surveillance appears now to be widespread. I can provide some of the evidence if you need it.

4 I am an 'adviser' to the Musicians Union. Strictly speaking I should not be described as a 'representative' - I am not an elected official, although I am an MU member of long standing.

All the best
Hamish Birchall
Adviser to the Musicians Union on public entertainment licensing reform