Some comments and questions on the latest 'thinking', on the letter from Dr Howells to Rt Hon Chis Smith MP 04/09/02.

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 sounds a perfectly acceptable, flexible and a far cheaper system with a good level of control, to ensure the safety and interests of the public, so what do our civil servants consider is wrong with it, that it cannot provide a starting point for reforms in England and Wales? Are public in Scotland unsafe?

This is similar to the system we propose whereby conditions would be attached to licences only where they prove necessary.

Err no, it is not at all similar and not what is proposed. First every licensee in England and Wales will have to apply and pay for a new, additional personal licence, to first enable them to run liquor-licensed premises.

Under the current proposals, any conditions regarding public entertainment, will only and can only be attached if the licensee has applied, well in advance, for the optional entertainment element of the premises licence and specified its nature in an operating plan. If this application is not made, no such conditions pertaining to entertainment will be necessary, as no public entertainment (as defined by this Bill) can take place.

Under the proposals, all licensees will have to pay the same (increased) fee, as if they were proving entertainment, even if they have not applied for the necessary permission. Which is largely the same as the current and problematical PEL process, in all but name, what ever the intended opening times of the premises were to be.

Only 5% of liquor-licensed premises have currently applied for the additional PEL. A similar take-up rate under the proposals, would be a disaster for live music, as our Government will have scrapped the 'two in bar' exemption from the PEL requirement that at least enables live music, when there are two or less 'performers'.

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.

Again this sounds like more good news to ensure the public's interests. However, in order to be revoked, this Scottish PEL that Dr Howells refers to (one issued presumably for entertainment outside of permitted hours), would first have to be necessary, applied for and issued. Without the premises holding a PEL, the existing health and safety legislation, the same as in England and Wales, must, can and does (in Scotland), more than adequately deal with this concern.

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.

So the reason the people of England and Wales lose the basic freedom of being able to make any (and only) live music in perfectly safe, licensed premises, is because our civil servant think the freedom to serve and consume alcohol for 24 hours, is more important and for some inexplicable reason their 'more flexible' proposals will not enable the people of England and Wales to have them both!

It would surely not stretch either principle or practice very much to specify that all liquor licensed premises, no matter what hours they were open to serve drink, could stage small scale public entertainment? Providing this entertainment was not the main purpose of the premises, between certain hours, without any advanced local authority permission having to be applied for and obtained?





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.

That is one way of doing this. A way that also ensures that all licensed premises will be paying for what only 5% are currently paying, even though many may not wish to provide entertainment. But one that still apparently leaves licensees with the option of not bringing their premises up to the required standard for activities like regular public music making, long-established in the pubs on England and Wales. As this will bring a huge increase in revenue, even leaving aside the fees for the additional personal licence, do not the public have every right to expect that their interests and safety will be ensured in these public premises?

But under these proposals, should a local authority officer witness even one person making music, on these premises. Where advanced local authority permission has not first obtained for this specific activity, this person would be declared to be taking part in a public entertainment, a criminal offence and one that will automatically make the premises unsafe for the public.

This, on premises that are currently subject to regular fire and safety inspections and are already controlled and licensed for the public. Additionally under the proposals, the licensee would have paid to be judged personally capable of running and controlling the public in such an establishment. They would need to have paid for the personal licence and the premises also would have to be judged fit for the public and payment made, to hold the premises licence.

The following is the DCMS's reasoning why a totally 'spontaneous ' activity would not be considered a public entertainment and would not make the premises automatically unsafe for the public.

From Ronnie Bridgett of the DCMS to Richard Bridge 08/04/02

Accordingly, whenever a group of people in a bar break into spontaneous song, the licensee would have to
decide the point (noise level) at which he is at risk of being closed by the police because of "excessive noise" which might be disturbing the public. This is an important point for context and explains why it would not be necessary to bring spontaneous singing (music making) within the licensing regime as adequate public protection would already exist.

So that is perfectly clear then. A licensee can now be trusted to control the premises (including noise concerns), for a 'spontaneous' musical activity, 'as adequate public protection would already exist' but mysteriously not for any identical but regular or advertised event.

I have suspected for a long time that ensuring the public's interest and safety on licensed premises could not possibly be the real reason for these proposals. I think that these latest comments have only confirmed this suspicion.

To claim that there is no deterrent to premises providing live music, because all premise will be forced to pay (in theory) the same increased fee, is to ignore the many factors that are and will still be acting as a big deterrent.

The power vested now in non-elected local authority officers is effectively unchallenged and this power stands to be increased, rather than limited under the proposals, even though many local authorities have a history of ignoring Government PEL guidelines. However, they do have a very effective lobby and speak the same language as our civil servants.

Now and under the proposals, if a local authority should impose conditions or demand certain alterations before they will permit entertainment to take place, they merely have to insist (as indeed they do now), that these measures are required to ensure the public's safety. That will be a matter for the council's judgement and effectively, the end of the matter.

A licensee will have to first comply, and then if they are not satisfied will have to take legal action against the local authority to try and prove (somehow) that the local authority was wrong. There are many reasons why this would not be a wise course for a licensee to attempt.