The following from Hamish Birchall.

For circulation

On 18 February the DCMS published a leaflet entitled: 'The answer to 20 myths about public entertainment and the Licensing Bill'. Kim Howells commented: 'A host of rumours - many of them completely ridiculous - have been circulated about this Bill. Today I am setting the record straight for the benefit of everyone involved in live entertainment, either as a participant, organiser or spectator.'

Before commenting on the list of 'myths' (more than 20 in fact - see below), it is worth setting the record straight about a few other points:

On 17 July 2002, interviewed by Mike Harding on Radio 2, Howells denied folk sessions in pubs would be licensable under the new regime.

On 18 January 2003 Howells agreed such sessions were caught ('Battle over last orders for live music', Daily Telegraph).
Howells' consistent justification for abolition of the two in a bar exemption is the potential for noise nuisance - not public safety risks. He has sent innumerable letters to MPs including the statement: 'We do not accept acoustic music is never noisy'.


But all the evidence points to there being far more noise complaints about recorded music. The biggest source of complaint is noisy people outside pubs. In other words, there is no evidence of any 'pressing social need' to increase licensing controls over freedom of expression. This is one reason why the Joint Committee on Human Rights has been so critical of the government.

In the face of this evidence against their position, the DCMS has resorted publicly to misquoting from an as yet unpublished document produced by the Institute of Acoustics (IoA) without the IoA's knowledge or consent.

The IoA has confirmed that the latest version of their document, currently being rewritten, includes 'televised sporting events' as a potential source of noise nuisance.

The likely title of their forthcoming document is Good Practice Guide on Control of Noise from Pubs and Clubs.

The reference to televised sporting events is omitted from the DCMS publications and in the Guidance that has just been published to accompany the Licensing Bill (Guidance Issued Under Section 177 of the Licensing Act 2003, para 8.28).

Last week, Geoff Kerry, the President of the IoA wrote to the Secretary of State at the DCMS complaining about the way in which IoA material had been used.

On 15 November, Tessa Jowell launched the Licensing Bill as 'a central plank in the government's drive to tackle anti-social behaviour'.

Before the Bill was published, the Association of Chief Police Officers, ACPO, had formally warned the DCMS against the exemption for televised sport on the grounds it was frequently a source of disorder.

Last Monday, 24 Feb, at a DCMS briefing of music business journalists, Howells claimed he was unaware of this.

At the same briefing, Howells said he 'didn't know' of the English Folk Dance and Song Society (EFDSS - the leading body representing traditional song and dance).

In fact, EFDSS had been in direct contact with his office last year on several occasions, asking to be included on the Licensing Bill's advisory group. They were refused (although they have this week been included on the new working group set up to advise on the Guidance that accompanies the Bill).

Here are the DCMS 'myths' with my comment below:

"Existing public safety and noise legislation does NOT cover all of the issues dealt with by licensing law."

It is perfectly adequate to deal with small-scale live music that finishes at a reasonable hour. In Scotland live music that is secondary to the main business is automatically allowed if it finishes during permitted hours. Safety and noise legislation applies UK-wide. The government has, of course, decided that existing safety, noise and crime and disorder legislation DOES cover every possible risk arising from the provision of big screen broadcasts in pubs. For more detailed info visit the MU website: Click here for the M.U.

"Music in pubs will not be harmed by the Bill."

Given the depressed state of local gigs, almost any increase would be welcome. But will there be any significant increase? When the new Bill is enacted, 78,000 pubs and bars, 25,000 restaurants, and 4,000 clubs will lose their automatic right to host one or two performers. No-one knows how many will take up the option to host live music under the Bill, least of all the Government.

In an article published in the Daily Telegraph on 18 January, Kim Howells said: 'Maybe it won't work, but no-one has come up with a better way of doing it'. [Battle over 'last orders' for live music', by Colin Randall, Daily Telegraph, Arts and Books section, p11]. Of course, others have come up with better ways of doing it: Scotland, Ireland, Denmark, Germany, France. And even if 50% of licensed premises opt to host live music, that will leave 50% where organising a solo, acoustic gig would be a criminal offence. The provision of big screens and a massive sound system will, however, be perfectly legal.

"It will NOT cost anything extra for a pub to apply to provide entertainment as well when applying for permission to sell alcohol."

Good - but this is only true if the applications for alcohol and licensable entertainment are made simultaneously. If they are not, an additional fee will be payable for 'variation' of the premises licence if the licensee wants to have live music.

Variation means starting the whole process over again: notification of and approval by the police, fire service, environmental health, local residents, and finally the licensing committee of the local authority. Why is this necessary for live music, if crowds can jump up and down in these places in front of big screens and powerful PAs and that is not licensable?

What about the potential hidden costs of compliance: local authority licensing conditions? Government assurances that local authorities will only be able to impose 'necessary' conditions has not satisfied the leisure industry who, the Minister himself has said, would 'resist robustly' if satellite tv were to become a licensable entertainment (Howells letter to Chris Smith MP, 4 September 2002). If the leisure industry is worried, musicians are entirely justified in their concern that local authorities will have almost complete control over live performance.


"Local authorities will NOT be able to impose unreasonable conditions on licences."

Unless applicants can fund expensive appeals to magistrates court, local authorities will be able to impose any condition they believe is necessary.

"Individual performers will not be disadvantaged by the Bill"

Wrong: if pubs and bars, or any other premises, do not obtain the permission to host live music, performances by solo musicians will be illegal.

"Performers will NOT need to be individually licensed."

Correct.

"Performers will NOT now be liable to a fine or to imprisonment just for playing or singing."

It is amazing to think that the Government actually allowed such an offence to get into the Bill in the first place. The Joint Committee on Human Rights specifically criticised this Clause (Clause 134), now amended, thank goodness.

"A licence will not be needed every time someone plays a musical instrument."

Quite right.

"Rehearsing or practising will NOT be licensable."

A welcome clarification of intent, but our legal advice is that use of professional rehearsal studios by musicians is covered by the present wording of the Bill. The government also doesn't understand that rehearsal studios are often used to showcase bands, and such events are caught if they are public or the premises are made available for profit.

And rehearsals of plays, which may involve only one person playing a role and the presence of one spectator, ARE licensable (Schedule 1, para 12(2)).

"Music tuition will NOT be licensable."

The MU does not claim that it is - but the Government has confirmed that public master classes are caught (Lord Andrew McIntosh, House of Lords, 1st committee stage debate, 12 December 2002).

"Busking will NOT be licensable."

Our legal advice is that it is caught by the Bill as worded. The DCMS argues against this: their interpretation is that the premises will not have been 'made available' (Schedule 1, para 1(3)), and therefore the busking doesn't meet the second of two required conditions (the other being whether the event is public, or for profit, or in a club - para 1(2)).

However, the DCMS interpretation would mean that anyone can take over 'any place' that is not actively being 'made available'. It would mean that anyone could take over a disused warehouse for a music and dancing event and that escapes licensing. Was that the government's intention?

Recently, Howells has been arguing against an exemption for acoustic music because 'six Japanese drummers could perform in a pub'. If we take the DCMS at their word, that would mean the Japanese drummers may not be able to perform in a pub, but they could certainly busk outside!

Government Ministers in the Lords have confirmed that carol singers in shopping malls or railway stations would need a licence. This would equally apply to buskers. Clearly the DCMS is itself confused.

"Testing a musical instrument in a shop will NOT be licensable."

The Performer-Lawyer Group argues that this is caught. Certainly public demonstrations (so-called 'clinics' by an endorsee) do fall within the Bill's definitions: they are both public and for profit. Irrespective of entertainment licensing, the testing of musical instruments in shops by the public is covered by copyright licensing: the Performing Rights Society have a tariff for this type of public 'performance'.

"Community venues will not be disadvantaged by the Bill: Village, church and parish halls, and other community buildings will NOT need to pay for licences to provide entertainment."

This is no change from the present regime that applies outside London. Such premises inside London will, however, benefit. (For historical reasons, London's entertainment licence legislation is slightly different).

"Any entertainment provided in a church will NOT be licensable"

Correct: following the government u-turn of 03 February. A welcome move.

"Church bell ringing will NOT be licensable."

Correct: a result of the u-turn above.

"Spontaneous performance will NOT be licensable so: spontaneously singing 'Happy Birthday' will NOT be illegal."

There is no definition of spontaneous in the Bill, and renditions of Happy Birthday are unlikely to be spontaneous. This example is not an MU claim about the Bill, although the Performer-Lawyer Group puts forward a very persuasive argument that, technically, a planned rendition of Happy Birthday in a restaurant is caught. As with the testing of musical instruments in shops, and again irrespective of entertainment licensing, Happy Birthday is still in copyright and any public performance without copyright permission is technically an offence!

"Spontaneous pub singalongs will NOT be licensable."

Good.

"Carol singers, going from door to door, or turning up unannounced in a pub and singing, will NOT be licensable."

Our legal advice says this is licensable under the Bill as worded. An expert licensing lawyer, Chris Hepher, has written to the DCMS pointing out that carol singing on people's front door steps is licensable (contact 020 7353 0505). The Performer-Lawyer Group, comprising professional lawyers who are also amateur performers, has also come to the same conclusion (contact Richard Bridge: 01634 272720).

"A postman whistling on his round will NOT be licensable."

Not an MU claim, but amusing nonetheless.

"Private events where invited guests are not charged will NOT usually be licensable so: A school nativity play, which took place before a non-paying private audience of parents will NOT be licensable."

But if the events are to raise money for charity the Bill specifically says they will be licensable.

"A licence will generally NOT be required for performances taking place at a private party where the host organises the music and does not charge their guests."

Our legal advice, and that of Chris Hepher and the Performer Lawyer Group, is that if a bandleader charges a fee at a private event, then licensing is required. The Government has just tabled an amendment to this section of the Bill (Schedule 1, para 1(4)) but again the legal advice is that the clause remains ambiguous.

"A licence will NOT be required for a band playing in a marquee at a wedding reception in someone's garden."

That depends. See above.

"A performance in an old people's home, hospice or hospital before a non-paying private audience of staff and patients will NOT require a licence."

But in any public area it would be licensable, and some local authorities already regard hospital wards as a public area. Any private performance to raise money for charity would be caught (viz Schedule 1, para 1(6)).