On the Scottish question, here is my reply to Howells' letter to Rob Marris MP (sent to Mr Marris on 8 August). You might want to circulate this:
I have been passed a copy of Kim Howells' letter to you concerning the question of whether the Scottish licensing regime, as it applies to live music in pubs and bars, could not be adopted in England and Wales (letter dated 31 July 2002, ref CO2/09176/02941/DC). I am sorry to say that on a number of important points the Minister's reply is misleading:
1) He wrongly implies that the Musicians' Union believes the Scottish licensing regime relies simply on existing health, safety and noise legislation where live music is provided. This is not the case: the Union recognises that in Scotland, PELs, and therefore additional safety/noise controls, apply in premises where music or music and dancing is the main business, and in bars or restaurants after 11pm.
2) Regardless of the notional powers available to licensing Boards, it remains the case that a typical pub or restaurant in Scotland can host live bands up to 11pm without a PEL, and that the safety or noise risks arising from the entertainment are regulated by UK-wide health, safety and noise legislation. The licensee is not usually required to notify the licensing authority about the provision of live music on the point of his/her liquor licence application or at any other time.
Jack Cummins, one of Scotland's leading licensing lawyers and editor of Scottish Licensing Law and Practice, has helpfully provided clarification: Jack Cummins email to Hamish Birchall, 03 August 2002
"Where application is made for an entertainment licence (eg a nightclub) then the various forms of entertainment, including types of musical entertainment, will form part of the application. But yes - for other premises I think there's an assumption that there will often (but not always of course) be some sort of music… some Boards operate a byelaw system requiring their consent for music and other entertainment (the byelaw consent is a conditon of the licence). This has been held in a landmark case to be unlawful, but there are - I think - 2 out of the 56 Boards which persist. Technically, it would be lawful for a Board to insert a condition prohibiting music, but in practice this never happens."
3) The Minister says that in Scotland 'licences may be refused or revoked on the grounds that a pub has caused undue nuisance or disturbance to local residents'. This tends to imply that this power does not exist in England and Wales which, of course, would be untrue.
Since the Licensing Act came into force in 1964, under s 20 (a) 'any person' may apply for revocation of a liquor licence in England and Wales on the same grounds, i.e. that the liquor-licensed premises causes nuisance problems for local residents. The police generally use this power, but it is also frequently used by residents' associations and even individuals.
Since December 2001 the police in England and Wales have also acquired the power to close noisy pubs immediately for up to 24 hours (Criminal Justice and Police Act 2001, amended the Licensing Act 1964).
4) It does not follow that simply because the Government is proposing to abolish permitted hours this renders the Scottish comparison inappropriate. Under the proposed new regime for England and Wales local residents' views will be taken into account when the local authority determines the operating conditions of licence applications (which include opening times). Then, as now, premises staying open late are likely to be subject to additional controls - as they are in Scotland. But up to the point where the additional controls apply the Scottish example suggests that local authorities do not need additional powers to regulate noise nuisance.
5) The fact the licence fees are to be set centrally, and there will be no premium for live music, may help encourage its provision in bars, pubs etc – but only if fees are low. The Government rather naively imagine this alone removes the deterrent. Unfortunately, it is the abysmal record of excessive local authority PEL conditions where live music is being considered that will continue to deter applicants. One of my agents told me today that in order to put on two bands in a shopping centre recently the local council produced a 15-page risk assessment to be complied with which included such gems as 'when loading/unloading the bands will take care not to run over pedestrians'.
The Government says it will address the tendency to over-regulate through 'guidance' provided by the Secretary of State.
6) Irrespective of the entertainment licensing process, it is already the case that employers have a statutory duty to make risk assessments of all activities in the workplace, and that local authorities have a statutory duty to ensure public safety in workplaces (like pubs) where activities include 'entertainment', 'practice or presentation of the arts'.
Furthermore, environmental health officers (EHOs) have the power to order activities to stop immediately if there is an imminent public safety risk, and/or to require improvements to be made to remove the risk. A trained EHO could readily tell whether an amplified sound system, whether for CDs or bands, is likely to cause problems for local residents. The cost of EHO inspections is, supposedly, covered by business rates. In short, local authorities do not need a licensing regime to make sensible decisions about 'necessary and proportionate conditions' that might apply to incidental live music in a pub or restaurant.
On the question of safety risks, apparently it is the Government's view that live televised sport in pubs is less of a risk of overcrowding and noise than, say, a professional guitarist performing unamplified in a restaurant. That alone explains Kim Howells' recent statement in the Commons (22 July, in response to Siobhain McDonagh) that live television in pubs will remain exempt from licensing as public entertainment
. Personally I find it hard to understand a Government that believes the English and Welsh public will rebel en masse against allowing live music in pubs that finishes at a reasonable hour, subject to proportionate controls already available irrespective of PELs, but will embrace without demur the proposal for pubs to open 24/7. For the moment, however, this seems to be Government's position.
Many thanks for taking the trouble to write to the Minister, and please feel free to contact me if you have any further questions on this issue.
MU adviser – PEL reform