The follwing from Hamish Birchall.

Here is a draft reply to the latest from the DCMS for anyone to adapt as they wish:

Dear Ms Vickers

Thank you for your recent email setting out the latest Government position concerning licensable entertainment and the Licensing Bill.

You say that 'spontaneous performance is not licensable' and yet the Performing Right Society (PRS) says that this is licensable. Here is the relevant section from PRS Tariff 'P' which applies to pubs:

3.3 Sundry musical performances Higher Royalty    Standard Royalty

3.3.1
For occasional and spontaneous (ie not pre-arranged or promoted) musical performances, whether instrumental or vocal, by customers or bar employees, the annual royalty is ............................

£83.90 (£82.25)

£55.93 (£54.83)

PRS has confirmed that the song 'Happy Birthday' is still in copyright, so even spontaneous public renditions of Happy Birthday in a pub are therefore licensable. Unlicensed public performance of a copyright work is an offence, so I would be grateful if you would explain why you say that spontaneous performance is not licensable? What action will your department be taking to ensure that landlords pay for the right to host spontaneous performances of live music?

You confirm that a licence would be necessary for Morris dancing in a pub, but that the pub owner can 'simultaneously apply for permission to provide any amount of entertainment at no extra cost'. Unless the pub owner had made his application to host licensable entertainment at the same time as his application to sell alcohol, and this application was subsequently approved by all the necessary agencies, and local residents, he/she will be restricted to 5 licensable entertainment events a year (under the Temporary Event Notice scheme).

Furthermore, obtaining permission to host more frequent entertainment at a later date requires a formal application to 'vary' the licence, a process that is essentially a re-run of the full premises licence application. This involves notification of and approval by the police, fire service, environmental health department of the local authority, planning authorities, local residents, and the licensing committee of the local authority. Your own department has estimated that licence variation will cost between £100-500, not to mention possible compliance costs arising from licence conditions. It is therefore misleading to say there will be no extra costs.

Culture Minister Kim Howells has explained during recent Commons Committee debates that the definition of the performance of dance excludes people dancing for their own amusement.

Does that mean a pub landlord does not commit a criminal offence if people dance for their own amusement on his/her premises? Or would the landlord be guilty of providing an unlicensed dance floor ('entertainment facility') in those circumstances - unless he/she had already ensured that any or all of his floors were licensed as potential dance floors?

These are important questions since many local authorities have prosecuted landlords under current legislation where a few people, or even just one, dance for their own amusement. Last October, two pubs in Soho were fined £5,000 for allowing 11 people to 'sway rhythmically'. I refer you to the report in the London Evening Standard that is reproduced on the Musicians' Union website: http://www.musiciansunion.org.uk/articles/dancing_fines.shtml.

I would also be grateful if you would confirm that under the Licensing Bill a pub landlord would commit a criminal offence if he/she provided a piano for public use and this was not specifically licensed as an 'entertainment facility'. Perhaps you could also confirm that providing a jukebox will not be licensable under the Licensing Bill, no matter how powerfully amplified.

You talk about outdoor events and the 'more informal system of permitted temporary activities'. A present, no public entertainment licence is currently required for events in the open air on public land outside London. Can you explain why your department considers it necessary to extend criminal law sanctions to such activity down to the smallest scale, such as one musician performing acoustically, or one person performing a dance?

Under the new licensing regime, any place which does not hold a 'premises licence' specifically authorising licensable entertainments is restricted to a maximum of 5 temporary events notices are allowed per year per place. Does that mean a village green would be restricted to hosting only five public performances of dance per year, unless it was permanently licensed for such activity by the local authority?

Would the provision of a maypole on a village green become a criminal offence for the local authority, unless it is explicitly licensed as an 'entertainment facility'? If a local authority failed to licence its own entertainment facilities, would the local authority then be obliged to prosecute itself? Perhaps you can explain the benefit to the community of this additional regulation, bureaucracy and administrative cost.

You refer to the recent Lords' amendment that exempted entertainment events where no more than 250 people attend at any one time, and which cease by 11.30pm. You say that the Government has overturned this amendment, although not because of risks arising from unlicensed live music, but principally on the grounds that children could be shown unsuitable films.

Of course, this will happen in any case because of the Government's very broad exemption for broadcast entertainment (Schedule 1, paragraph 7). Films such as The Texas Chainsaw Massacre are already broadcast on national television, and since the government wants to increase children's access to bars, unaccompanied by adults, children will undoubtedly be exposed to such broadcasts and more besides.

Indeed, the broadcast exemption allows big screens and a powerful sound system to be set up in any place without a licence under this Bill. An unsuitable person could therefore organise a musical event for local children simply by tuning in to MTV or any of the proliferating satellite music channels. Opposition Peers proposed amendments that would have made such events licensable. Can you explain why the Government resisted those amendments?

You do not mention the recent reports of the Joint Committee on Human Rights which warn the Government that the Bill continues to carry a significant risk of violating people's right to freedom of expression (Article 10 of the European Convention). The JCHR's most recent report on the Licensing Bill (the 7th Report of the 2002-03 session) also warns that the exemption for places of religious worship, but not secular venues, gives rise to potential discrimination under Article 14 of the Convention, and a potential violation of Article 9. I would be grateful if you would explain what action the Government will be taking to address those warnings.

I look forward to your reply.

Yours sincerely