The apparently forlorn battle for common sense to prevail on this matter continues. The following is a letter from Dr Howells to Chris Smith, who once held the poison chalice in this Government.

4 September 2002
Dear Chris
Thank you for your letter of 13 August to Tessa Jowell enclosing one from Hamish Birchall who remains unconvinced of the merits of our proposed reforms in relation to the licensing of live music. I am replying on behalf of the Secretary of State as she is overseas.

I should firstly allay your concerns that our proposals for licensing reform would result in a more restrictive regime than the current one. I can assure you that the policies we will be implementing through the Alcohol and Entertainment Licensing Billl represent the position agreed by Cabinet prior to the last General Election campaign and that they will make it easier, not harder, for live music to be performed in licensed venues.

I am sorry that Mr Birchall feels that the Musicians' Union (MU) view was misrepresented in Tessa Jowell's letter to you of 26 July. It represented the Department's understanding of what was said at the MU's meeting with me on 10 July. My officials have held further discussions with Mr Birchall to clarify that position and are continuing to discuss the clauses of the reform Bill at regular meetings with the Musicians' Union and other stakeholder groups.

I can confirm that at the 10 July meeting the Musicians' Union queried why the licensing regime in Scotland could not be adopted for England and Wales. The answer is that, in general terms, the licensing system in Scotland provides that public entertainment is covered by a licence permitting the sale of alcohol but only within formal permitted hours. A public entertainment licence is required for public entertainment which takes place on premises with extended hours. Many licensed premises in Scotland do have extended licensing hours because of the more flexible system operating there. Pubs in Edinburgh generally open later than those in London. There is, however, nothing in the Licensing (Scotland) Act 1976 which denies the Licensing Board the power to restrict or forbid entertainment activities by conditions, either specified in byelaws or attached to licences. Although byelaws prohibiting live music in Scotland are rare, the law provides Boards with these powers should they be necessary.

This is similar to the system we propose whereby conditions would be attached to licences only where they prove necessary. The Scottish system does not simply rely on existing health and safety and noise legislation as the Musicians' Union has suggested. Indeed, entertainment licences may be refused or revoked on the grounds that a pub has caused undue nuisance or disturbance to local residents.

We intend to abolish permitted hours and the new hours, up to twenty-four hours a day, will be tailored to specific premises. The norm would be that most premises would be open later than now. It would therefore be inappropriate to adopt the Scottish system which is based on national permitted hours. We think our approach is more flexible. All public houses will need permission to sell alcohol. When an application for a premises licence is made the applicant will be able to apply for permission to sell alcohol and put on public entertainment at the premises simultaneously. It would cost no more to obtain both permissions than to obtain one. There would be no deterrent in the system to providing live music at the venue but because it would be necessary to disclose details of the activities to take place at the premises, the licensing authority would be able to make sensible decisions about the necessary and proportionate conditions to be attached to the licence to protect local residents and the wider community.

Mr Birchall is concerned that the local authorities who will be administering and enforcing the new system will ignore any guidance that is issued and that previous guidance, in the form of Home Office Circular 13/2000, has not had an appreciable effect on the way in they administer the current public entertainment licensing system. 13/2000 advised local authorities that their conditions should be relevant to venues and that the replication of regulations which may contribute towards higher fees being charged should be avoided. It specifically acknowledged that the guidance was to be considered pending implementation of the wider reforms set out in the White Paper. Under the old regime such guidance has no statutory force.

If some local authorities have not taken this guidance into consideration it is, of course, regrettable. We fully appreciate the inconsistencies that currently exist across England and Wales. Our acknowledgement of this problem is reflected in our proposal to place licensing authorities under a statutory obligation to have regard to any guidance issued by the Secretary of State. The local authorities would not have the discretion they currently enjoy to refuse a licence or impose any condition unless a reasonable objection to the licensee's operating plan had been raised by the police, an environmental health officer, the fire authority or local residents.

In granting or refusing licences, or imposing any conditions, the local councils would be legally bound to take into account the guidance issued by the Secretary of State. Departure from this guidance, without a good and justifiable reason, would provide grounds for an appeal to the courts. The new system would ensure a consistent approach to the handling of applications and any unreasonable decision would be easily identified owing to the transparent nature of the procedures. The new regime would result in local councils being more accountable than they currently are.

Mr Birchall has referred in his letter to a 19th century precedent, but as Tessa Jowell has stated in a previous letter to you, what we are proposing is a licensing regime fit for the 21st century, not the 19th.

We recognise the importance of having a reliable definition of what constitutes a public performance and it is clear that if a musician or other performer is accepting money for a performance then it would be regarded as a public performance.

Similarly, it can be argued that any performance by unpaid performers, which was publicised with the expectation of bringing in extra customers and consequently extra revenue to the licensee would meet the definition of public performance.

If a member of the public engaged in a spontaneous rendition of a song on the piano, inviting a sing-a-long [sic], it would not be considered public entertainment.

I must reiterate, however, that even where a performance is regarded as public, the main current deterrent of an exorbitantly set licensing fee would no longer be available and there should therefore be greater freedom for all musicians and singers.

Mr Birchall also refers to my comments in the House on 22 July. The difference between our positions is simply that the Musicians' Union has not requested that live television events be licensed but rather has stated that it is anomalous that they are not and that live music should be. I will repeat that I would be happy to consider such a representation from the MU if one is made. However, I would expect such a proposal to be resisted robustly by the hospitality and leisure industry which many musicians depend on for their income.

NOTE [The MU's position at the moment is not to lobby for live broadcasts to be licensable as public entertainment but to lobby for a regime along the lines of that operating in Scotland where live music, if ancillary to the main business of a premises, is automatically allowed up to 11pm. The live broadcast exemption, in this case, is being used in support of the MU argument (i.e. much live music in this context is no greater risk to public safety or residential amenity than live TV/radio/satellite broadcasts).]

With respect to the Human Rights Act, which was incorporated into British law in 1998, the Government's position is that it is the responsibility of an individual or organisation to take action if they believe that they have a case under the human rights legislation.

The Department is of course obliged to ensure that the Alcohol and Entertainment Licensing Bill complies with the Act and it is for the Musicians' Union to challenge that position if they see fit. As you know, the Government takes its advice on matters relating to the European Convention on Human Rights from the Law Officers, and not from unsolicited opinions expressed by counsel on behalf of various organisations on the basis of limited information and without sight of a final version of the Bill itself

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I am sorry if the Musicians' Union has gone to any unnecessary expense in seeking counsel's views, but such views will always be of only limited value until the Bill is published. As you are aware, the advice provided by the law Officers to the Government is confidential and cannot be disclosed. Although we are doing all we can to address the concerns of the Musicians' Union, it must be remembered that this is one of many stakeholder groups with whom we are currently liaising. Despite many detailed responses to his letters on licensing reform, and our replies to MP's who have contacted us on his behalf, Mr Birchall remains unconvinced that our policy will produce the outcomes that we have indicated. Ultimately, however, it is for Parliament to decide on the merits of our proposals.

Dr Kim Howells MP