Dear Mr Knight
As in earlier replies, Dr Howells will want to maintain the proposed reforms as the answer to all our prayers. As this has been ready for some time and we do not yet have this legislation now, and will still not have it for some time to come, I feel the questions should concentrate on the current situation. The folk activities that in particular that have been affected during Dr Howells's stewardship of them, the ones that remain at risk and what Dr Howells intends to do now to protect them.
I feel he must be made to face, comment on and take action now to stop the 'silly' local authority enforcement now, before it is too late, whatever the proposed reforms may eventually do. It does not feel 'silly' to have your activities affected by these enforcement's. The nation cannot afford to lose even one more such event.
On 16/07/01 you have supplied details to Dr Howells, of the particular local authority enforcement of our unpaid participatory traditional tune session and their interpretation that we were more than two 'performers' in a public entertainment. This to be prevented without the premises obtaining a Public Entertainment Licence.
The officers were not aware, and when they were made aware in April 2001,of case law precedent in the licensee's favour, did not produce this to the members when receiving their retrospective endorsement for their actions. Brearley –v- Moreley was the case, where a licensee was found not guilty of providing unlicensed entertainment because customers were providing unpaid, their own music on a regular basis.
The officers (wrongly) stated to the members, in the report to the Social and Community Committee meeting 06/05/01.
"4.5 Historically the Courts have determined that a Licence is required not just where music is provided by paid performers to entertain the public but where members of the public themselves participate in music making. -
7.1 Having witnessed a folk music session involving at least four musicians at the premises Licensing Officers were satisfied that public entertainment was being provided in that the music was performed in a public area of the premises. The exemption for entertainment provided by two or fewer performers did not apply."
Dr Howells in a letter to The Rt Hon Michael Portillo MP dated 14/03/02 included the following, referring to the "two in a bar rule" he stated. "The rule is intended to apply to public performances put on by a public house to entertain the public and should not prevent ordinary people singing together or dancing in a public house."
The following question has still to be answered by Dr Howells, despite being asked by you in a letter dated 16/07/01. "In the absence of any new legislation to deal with this, what measures under current legislation will the Minister now be taking, to ensure that local authority's officers will not view their responsibilities under licensing legislation to be more important than their responsibilities under cultural or other legislation?"
In his reply 14/08/01 he did include the following. "I appreciate Mr Gall's concern about the actions of his local council. However, it would not be appropriate for Ministers to comment on or intervene in individual cases as the methods used to enforce the relevant law is an operational matter for local councils and the police. It might be helpful if I explain the current law and the measures we propose in the licensing reform White Paper which affects entertainment on licensed premises."
It is clear that the White Paper proposals will not free these activities from the new licensing requirement. Even if this were to be the case, Dr Howells has been aware of the problems since early 2001 (if not before) and the proposed legislation is still not available, in late 2002, to deal with the local authority harassment of the valuable cultural activities.
The details of our session's enforcement were again presented, and details of the Belper folk club, to Mr Richard Caborn (for Dr Howells), in the Commons debate on the 27/02/02 (this was before the letter to Michael Portillo on 14/03/02).
Mr Caborn, on behalf of the Government, in the 27 February 2002 Commons debate stated. The hon. Gentleman asks whether we can give guidance to local authorities. I do not think that we can, but I take on board the point that he makes, and I shall speak to officials tomorrow to find out whether we can produce some guidance. If that can be done, I will ensure that it is. I shall also consider the issue that he raised about the website.
1. If no such guidance has been produced, why can this not be done?
2. Why are the DCMS just watching while these enforcement's continue to prevent ordinary people from making music together in pubs? Against Dr Howells statement that the rule should not prevent ordinary people making music together in pubs?
3. I think it would be safe to say that on this matter, local authorities have lost the trust of the public. As the Government are unable or unwilling to prevent the many examples of reckless actions of local authorities under current legislation, what constraints will be introduced to ensure that these will be proportionate under the proposed reforms, as the White Paper is rather short on the detail of how this is to be achieved?
4. What is the Government going to do now, to protect these folk activities, or do they agree with local authorities that these unpaid participatory activities are public entertainment, their participants are performers and that they should be prevented in all premises without PELs?
5. If guidance had been given to local authorities after the Commons debate on 27/02/02, would letters like this one from Greenwich Council, containing the following have been sent?
"Council officers visited your premises on Tuesday 23 April at 9.23pm and observed twelve musicians performing folk music. You are already aware that to have more than two performers at your premises on any day is a criminal offence. The definition of "performers" has never been tested in Court, but even if this was a jam session the Council's view is that these people were "performers". They were being watched by at least a dozen customers, who were tapping their feet to the music and thus being entertained by the performance."