Sadly the DCMS in their Commentary Jan 2003, still insist on using the word 'musician' when the correct word is 'performer' and 'impromptu', a word which does not appear in this 1899 case law. For the music making in question in this case, was a regular weekly event. But the following shows that non-working musicians, (i.e. customers) are clearly exempt. There has never been any question or claim that any form of payment being made in either local cases affected by the incorrect policy of Weymouth and Portland Borough Council.

3. Entertainment in places where alcohol is sold
3.1 It has been claimed that "110,000 on-licensed premises in England and Wales would lose their automatic right to allow one or two musicians to work. A form of this limited exemption from licensing control dates back to at least 1899."

3.2 This point is disingenuous. In 1899, the courts held that impromptu performances by customers were not licensable, but performances given by a customer or any musician "for a consideration" were licensable. The Report of the Royal Commission on Licensing (England and Wales) 1929 " 1931 (paragraph 249) confirmed this interpretation of the law. Working musicians were therefore not exempted as claimed. The "two in a bar rule" was introduced by the Licensing Act 1964. The Bill does abolish the "two in a bar rule" but introduces new arrangements whereby any pub may obtain permission to stage live musical events at no extra cost when obtaining permission to sell alcohol.

3.3 Under existing legislation all public performances of music in licensed premises are licensable. The only exemption is provided by the "two in a bar" rule, which allows two musicians or less to perform without a public entertainment licence when a Justices' Licence is held.

The members of my council, have had the relevance of this 1899 case law, dismissed to them (but only out of court) by the officers. But only long after the members had been persuaded to endorse the officer's position, without this case law being produced.

Why were the members of the council not informed of the true relevance of this important case law, or of its existence, in the 05/06/01 meeting report? This was made available to the legal dept in May 2001, although they admit to being unaware of it when the initial advice, which has remained unchanged, was given in writing to a Councillor.

This report contains much misleading information. The most incorrect but most influential in convincing the members was the following, for which there is still no supporting case law evidence provided: I wonder if the officers would now advise the members to go to court with this?
[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].

Perhaps also the licensees of the New Star, who have lost their custom because of this wrong interpretation could also be informed by the DCMS, and possibly the issue can be settled in court? Where we
will then see how confident the officers are of the case law support for their interpretation. I am sure that the licensees of the New Star would not now be short of excellent legal advice, for their position that this activity over 5 years was not public entertainment.

The DCMS have wriggled out of one tricky position into another one. It is difficult to see from the above how local authority officers can now continue to dismiss this 1899 case as not relevant, when they include unpaid customers making music as 'performers' and maintain to their members that case law supports this.

Perhaps the DCMS can also contact Weymouth and Portland Borough Council and inform them why they consider case law and existing legislation covers and exempts these events now?
And why under the Bill, as Dr Howells has recently admitted, they will become licensable and present an automatic public safety concern?

It is well past time that this local issue was brought to a final conclusion. There can be no justification under the sprit of the law for the officer's policy, and there is no case law support for the letter of the law, even without the HRA considerations.

To this end, I would be most grateful for any more help, in the form of messages containing your views, sent to the council and copied to the local paper.