Live music making should be encouraged for people of all ages, culture and religion and no single musician should ever in the future be considered to be involved in criminal activity, just for making live music.
Dear Mr Knight
Thank you for the letter from Dr Howells 17/06/01. I would be grateful if you would consider, advise and pass on to Dr Howells the following serious concerns about the accuracy of that letter and the subsequent weakness of the argument contained in that letter, for future legislation? A badly flawed argument that has more holes in it than my old gig bag, one based entirely on these inaccuracies and misinformation, that will continue with legislation that discriminates against and makes criminals of all musicians, for just making live music.
What is required from the Government, is for it to simply ensure that there are safe public premises to enable and encourage as many people as possible to participate in, be exposed to and enjoy the magic and proven benefits of live music making.
Live music making that is a vital element of this nation's culture and identity but has for far too long been subject to interference from unsympathetic, antiquated and unnecessary bureaucratic controls, which are currently making this nation an international laughing stock. For this to be continued under a Government department with a major remit to encourage and protect this culture, and a wonderful opportunity to do so, is totally inexcusable. But of course the Home Office roots of these so-called cultural 'reforms', are still showing. Perhaps if these roots can be grown out, more sensible and forward-looking thinking can yet be demonstrated by the DCMS?
Deregulatory or a regulatory Bill?
Dr Howells makes an incorrect and misleading statement. "I can confirm that we do not currently intend to provide for the licensing (and therefore inclusion in the operating plan) of any public entertainment which is not already covered in the existing public entertainment licensing laws."
As he well knows, there is much public entertainment that is currently exempt from this licensing requirement taking place (quite safely), in some of the 95% of licensed premises that do not have Public Entertainment Licenses. Under the proposals, this live music making is now to be exposed to the current definition of public entertainment. All of this live music making will now be illegal without the premises applying for the entertainment element of the proposed premises licence, specifying the exact nature of this live music making, in an operating plan well in advance. Then this will be subject to local authority approval and conditions being placed on this previously exempt public entertainment. Under this so-called deregulatory Bill, any single musician making music on premises without this entertainment element will be taking part in, what local authorities refer to now, as a criminal offence. This is simply not good enough and does not deserve support.
As the "two in a bar rule" was introduced as a liberalising deregulatory measure, how can the scrapping of this exemption and the exposure of all live music making to the unchanged definition of public entertainment in the proposed Bill, be described by Dr Howells as a deregulatory Bill? Justification given for exposing all live music to the new licensing requirement is - noise. [Ronnie Bridgett on behalf of Dr Howells 07/06/02."The "two in a bar" exemption will be abolished for the perfectly sound reason that one musician with modern amplification or simply microphones can make as much noise as three without, -"]. Does all music making present this concern?
Live TV screening of sports events in pubs.
"If it is the considered position of the Musician's Union nationally that the definition of public entertainment should be expanded, we will certainly consider it."
Why does Dr Howells wrongly imply that the Musicians Union has not already questioned the Government's view that live television should not require licensing as public entertainment in the context of the Government's proposed reforms? Is he really uninformed and unaware that they have? Are written responses to the White Paper, as I have also made, not worth making?
Could he confirm that the Musicians Union raised precisely this point as long ago as July 2000 with the Home Office when that department had PEL responsibility? The MU position was set out in its written response to the licensing White Paper 'It seems from the White Paper that the provision of terrestrial and satellite TV sport in licensed premises will not come under the definition of 'entertainment'. The Union believes that it should, particularly as large, and often rowdy, crowds are involved. We consider it an anomaly that an entertainment licence is not currently required for this type of entertainment'. In the light of this perhaps Dr Howells could explain his statement, and why he has not considered the MU's point, in over 2 years?
The definition of Public Entertainment.
Whatever the views of the Musicians Union may be, it is a matter for them. My view is that to proceed with a long overdue, so-called reform of licensing legislation, without mention of the problems incurred to unpaid traditional folk activities, by the present unsatisfactory definition of public entertainment is unacceptable. To make no attempt in the White Paper to address this definition, demonstrates the unsatisfactory lack of attention given to public entertainment licensing in these proposals. Only made worse by Ministers and Civil Servants making additional and conflicting proposals and statements that do not appear in the White Paper (and being unaware of written responses made to the White Paper). Giving the impression that these statements are an afterthought made up by them as they go along, and adding to the confusion about what exactly is proposed.
"As long as money isn't changing hands, then there's no reason why they should have to have a licence". Following this reassurance given 17/07/02 on BBC Radio 2. Can Dr Howells explain exactly how, without any proposals in the White Paper about changing the current definition of public entertainment, traditional folk sessions, dancing and singarounds (referred to above), are to be considered as not requiring the entertainment element of the premises licence?
Perhaps he could clarify conflicting statements from Ronnie Bridgett of the DCMS? 04/02/02 "It is not planned that the new system will give an exemption to any forms of entertainment. The proposal is that all activities to be held on a Premises Licence (including non-amplified music) would need to be revealed in the operating plan put for approval to the licensing authority." And 08/04/02 "we do not anticipate that spontaneous singing which does not constitute a "performance" under the terms of the Bill or is not undertaken or organised for "reward" as defined in the Bill, will be within the range of the licensing regime. Whereas a musical "performance" as defined in the Bill by a single musician undertaken for "reward" (either his own or the organiser's) will be subject to the licensing regime."
Could Dr Howells confirm that if ordinary people take part in a totally spontaneous outburst of live music making in a pub where "money isn't changing hands", this will not be considered as public entertainment and licensable? What is the situation, if everyone has a great time and with the permission of the licensee, they decide to meet again and repeat it every week? As presumably the element of spontaneity will not apply, will this then become public entertainment, and illegal in premises without the optional entertainment element of the premises licence? Could Dr Howells please explain the additional risk to the public' interest and safety (which necessitates an additional licence), presented to such a non rewarded, live music making activity, with say only four participants - when a reward is made? Or indeed when payment is made to a four-piece folk band making live music in a pub?
Current noise legislation and Noise Abatement Notices.
It is also untrue for Dr Howells to suggest that local authorities cannot enforce Noise Abatement Notices quickly and that these powers "are relatively limited". The noise policy unit at DEFRA has confirmed that local authorities can suspend rights of appeal and enforce these Notices almost immediately, and that all local authorities have the power to seize noisy equipment.
Could Dr Howells confirm that DEFRA and the Chartered Institute of Environmental Health, when asked recently whether, in their view the present legislation was inadequate to deal with noise emanating from premises, that their answer was 'no'? This is reinforced by the DEFRA review of the 1996 Noise Act which found that the majority of local authorities did not feel there was a need to change that legislation, although there may be a need for more resources to underwrite enforcement.
Can Dr Howell please confirm that where some music may sometimes present a noise concern, all noise concerns do not emanate from music, or indeed exclusively from live music making?
Other existing legislation.
. Why does Dr Howells make the absurd claim that blanket entertainment licensing and the optional entertainment element, covering of all live music making, and live music making only, should be stretched to cover, and must be relied on, to deal with general public nuisance? Reform or introduction of that legislation, surely best addresses any shortfalls in legislation designed to deal with the public's safety in general or with criminal activities in particular?
The present public entertainment licensing legislation already favours the same few residents who always seem to complain about activities that benefit the majority. If health and safety legislation and measures to make premises safe, and to deal with public nuisance generally is considered by the Government to be limited or deficient then surely it is this legislation that should be reformed?
I can't help but think the DCMS is getting desperate here in their attempts to try and justify the continuing of unjustifiable blanket licensing of all but only live music making. Because you may always have tried to paint the Forth Bridge by applying the paint with a toothbrush, does it mean that you have to continue to do this, when other more efficient means become available?
Safe capacity and overcrowding.
Will Dr Howells accept that he is quite wrong to claim that a capacity limit can only be set in pubs via a PEL? Will he accept that imposing safe capacity is a regular occurrence where the fire service, who must attend these Court sessions, make a recommendation that a safe capacity should be fixed? The justices use s 4 (1) of the Licensing Act 1964, allowing them to impose conditions that are 'in the public interest'. Such premises may not have dancing without a PEL but they can have music (the reproduction of recorded sound or performed by one or two live musicians).
Is Dr Howells aware that recently, the Magistrates Courts, and John Murphy of the Magistrates Association confirmed that this is common in London, and that licensing lawyer Jeremy Phillips, co-editor of Pattersons, has confirmed that it is also common practice in Birmingham.
Is Dr Howells really saying here that the 95% of liquor licensed premises where a PEL is not present are currently unsafe?
And those premises where no live music or dancing is takes place cannot be made safe now?
Is Dr Howells saying (in a fine example of Catch 22), that there is now no means of placing a safe capacity on them - without music or dancing taking place, and thus creating a need for a blanket public entertainment licence or optional entertainment element.
Ensuring the public's safety in this regard does not seem to have been of pressing concern for this Government as the safe capacity issue has been identified by them for well over two years!
Should it be of some more urgent concern to Dr Howells, if he really believes that the public's safety, in the matter of overcrowding at live TV sports events in pubs cannot currently be dealt with by ensuring a safe capacity?
Can he confirm if a safe capacity is to be imposed on all premises, as an automatic condition of the new premises licence?
Or is a safe capacity only to be imposed if the premises apply for the optional entertainment element?
If the issue is really safety, can overcrowding in licensed and other premises ever be considered by this Government as an optional concern?
Duplication and purpose of entertainment licensing legislation.
The introduction to the White Paper demonstrates the doubt and clear duplication inherent in proposals intended to reform legislation - the purposes for which for which, it is admitted, are not expressly stated in the legislation!
So the people drafting the proposals make them up, despite the considerable duplication involved, in particular for the entertainment aspect and never question if there is actually still a real need for blanket entertainment licensing legislation, on liquor licensed premises especially.
There is very little thought given to premises that just want to provide live music making and do not wish to serve alcohol. Understandably, as this is clearly a reform of liquor licensing arrangements, with entertainment licensing only being tagged-on as an afterthought. The rather strange point made for assuring public safety under Public Entertainment Licensing, is that (because events can attract large numbers of people). Is overcrowding a concern only limited to all, but only live music making events?
4. The purposes of the current arrangements for licensing leisure and entertainment outlets are not expressly stated in the legislation: this itself is a drawback. They should, we think, be judged against the following main objectives:
Alcohol protecting the public from crime and disorder
protecting children from too early an exposure to alcohol
preventing nuisance and disturbance to the public
Public Entertainment Licensing (including theatres and cinemas)
protecting the public and minimising nuisance as above
assuring public safety (because events can attract large numbers of people)
Night Cafe/Late Night Refreshment Houses
protecting the public and minimising nuisance as above
health and safety relating to night-time operation
Cultural effects of permanently linking alcohol consumption and live music making.
It is the unnecessary and permanent linking together of two quite separate elements, alcohol consumption and live music making, for no positive reason, that make these proposals so counter-productive. Live music making should be encouraged for people of all ages, culture and religion. Alcohol consumption on the other hand, is illegal for the young and not encouraged by many cultures and religions and presents many health and social concerns.
Scottish public entertainment licensing legislation.
The unnecessary combination of quite distinct issues also makes it difficult to follow the sensible approach shown in Scotland, where other existing legislation (the same as in England and Wales), is thought sufficient to ensure the interests and safety of the public.
Where during normal opening hours, liquor licensed premises in Scotland do not need additional licenses or permission for any live music making. By linking together alcohol consumption and live music making in these proposals and effectively doing away with 'permitted opening hours'. The sensible approach shown by our fellow EEC neighbour cannot easily be followed. It is not too late surely, to seriously look at this approach? Perhaps Dr Howells could finally detail the reasons why this excellent example for encouraging all live music making cannot, be adopted in England and Wales?
Government control of the power of local authorities.
As for the past two years, the Government has been unable to control or even issue guidance to local authorities when these indulge in enforcement actions that are criticised by the Government. It is difficult to see, without some concrete measures being detailed, how for example local authority employed, environmental health officers who are to be given even 'greater influence', will be constrained to any degree of proportionality. Why, if local authorities do not show this, is it necessary for those affected to have to take expensive legal action? For at present it is enough for a council employee to claim that a live music making event is a public entertainment. Thus its participants are involved in criminal activity and the onus is then on the participants to go to Court to try and prove that they are not, a situation that is set to continue under the proposals. The presumption of innocence does not appear to be a factor in entertainment licensing.
Preventing music making that is not presenting a noise nuisance.
Has Dr Howells seen in last week's Times, the comment by Val Weedon of the UK Noise Association? 'It's rare that we receive complaints about live music in pubs and bars. In fact, it's fair to say that more complaints arrive about the noise levels of amplified pre-recorded music' [Billy Bragg leads lament for grassroots music, Dalya Alberge and Richard Ford, 25 July 2002]
Does Dr Howells accept that many complaints to noise levels of late night establishments using only amplified pre-recorded sound and strangely absolutely no live music, will perversely already have the Public Entertainment Licence. A measure that he claims to be the answer to noise from all live music making! [A PEL is required now for these premises operating out of 'permitted hours".]
I would be grateful if Dr Howells could detail the extent to which the 'variation' he refers to, can be enabled without re-definition of what is licensable, and for its effect on the following?
Can Dr Howells confirm that no current live music making (presenting a noise concern or not), will be prevented on introduction of this proposed legislation? I refer to the live music making taking place in the 95% of liquor licensed premises currently without PELs, if the licensees of these premises do not choose to, with the additional red tape, apply for the optional entertainment element of the compulsory premises licence?
Even if live music making is prevented in only one place, for this reason, it is not acceptable to many. Is this risk acceptable for Dr Howells?
All premises should be made safe for whatever activity is to take place. As they will be paying the same fee, whether the optional entertainment element is applied for or not, why not make all premises safe initially, in the premises licence, for whatever activity may take place, including live music making? The licensee would then have the flexibility to operate this or not and would not have to obtain permission, if they later decided to operate some form of live music making. For example when approached by a folk club looking for a home. The local authority would only need to specifically address any resulting and specific noise or public safety problems, if or when these occurred.
Premises where the main function was dancing, could have any existing legislation and conditions, thought necessary to these particular concerns, imposed on their premises licence. This would not result in other premises where live music making was just additional to their main purpose (and having to choose the entertainment element to enable some live music making), then having standard conditions imposed that did not apply. This would prevent small country pubs continuing to have conditions imposed on them, like having to provide free drinking water for prolonged dancing or 'chill-out' rooms for non existent drug use and hyperactive dancers.
Non-liquor licensed premises.
Is it safe to assume under these proposals that premises which do not wish to serve alcohol but do wish to provide any form of live music making, will still have to specify the exact nature of this in an operating plan? Will have to gain local authority permission for this, but will not have to pay any fee to make their premises safe for live music making?
Licensing legislation should first take into consideration the Human Rights legislation. If there is a real and specific public safety issue, the right to free musical expression can quite correctly be prevented. If there is no such issue, no music making can or should be prevented. That is the current law.
It is difficult for many to see the 'greater freedoms and opportunities' or indeed much 'balance' in measures proposed by a department set up to look after culture. I have no idea exactly what 'industry' Dr Howells is referring to. Is it the selling of drink industry or the music industry? Either way it does not seem to have much relevance to ordinary people who just wish to continue, with the licensee's permission, the tradition of making some music together in a country pub. [Evidence of this long tradition can be supplied.]
I am reminded of the tale of the Emperor's New Clothes. On discovery, which option is the sillier? To continue to strut about naked, or to try and recover some dignity, put some clothes on and try to really improve an unfortunate situation for everyone? Dr Howells may find that if he stopped dismissing every genuine concern and sensible suggestion that is made to him, or stopped using these as an excuse for a light hearted comment, he may find some support, rather than continued to be attacked on all fronts. Many supporters of this Government, who trusted that this reform would address the many difficulties presented by the outdated concept and enforcement of blanket licensing of all but, only live music making, feel their trust was misplaced. THERE IS NO NEED FOR THE OPTIONAL ENTERTAINMENT ELEMENT FOR ALL, BUT ONLY LIVE MUSIC.
Whatever the law is now, about noise, and effective measures to control it, the new law can perfectly well apply, whatever rules the Government requires about noise for all licensed premises (whether or not they provide live music making). It is a complete non-sequitur (or worse) for Dr Howells to try and maintain a reform of entertainment licensing legislation on the basis that a licence for all but only live music making is needed to control noise.
Whatever the law is now, about capacity limits, the new law can perfectly well apply whatever rules the Government requires about capacity for all licensed premises (whether or not they provide live music making). It is a complete non-sequitur (or worse) for Dr Howells to try and maintain a reform of entertainment licensing legislation on the basis that a licence for all but only live music making is needed to control overcrowding.
Whatever requirements in entertainment licensing there might be to control noise (or public safety), they simply do not apply to all live music making, taking place in all premises. On introduction of this legislation, even if only one licensee providing currently exempt live music making, not presenting a noise concern, did not apply for the optional entertainment element, this legislation, and its spurious basis for justification, would have been directly responsible for preventing live music making. Thus the right of freedom of cultural expression would have been prevented, where there were no specific grounds to do so, by the department of this Government set up to promote culture,