The following from Mark Gibbens.

I apologise for the length of this, but I hope it will be useful.

In summary, Kim Howells recently wrote to John Bacon of the Morris Federation with the intention of addressing some of the concerns about morris dancing and the Licensing Bill. What The Minister declines to mention in his letter is that it was also agreed at our meeting (on the 4th April) that he would answer any other questions we left with his civil servant, Dominic Tambling. We submitted several such questions, which were all repeated from earlier representations dating back to February. We're still waiting for the reply to those.

But before the Minister's letter, I have forwarded a response on it from Hamish Birchall.

Best wishes,
Mark Gibbens, Development Officer, English Folk Dance & Song Society
[ Tel 020 7485 2206 | Web www.efdss.org ]

From: "Hamish Birchall" Subject: Morris dancing - open spaces - Minister's latest letter

The Minister's arguments for extending criminal law sanctions over Morris dancing in the open on public land - unless licensed - are utter drivel.

It is ridiculous for him to suggest that 'issues of safety etc ... are no different to those on private land or indoors'. Of course the safety issues are different: on a village green or public park there is unlikely to be any risk of structural weakness in the dance floor, the risk of fire is virtually nil, and at all but the biggest events there is little or no risk of inadequate emergency exits.

Contrast the Minister's arguments with the Government exemption for big screen broadcast entertainment: a pub (or any building or open space) can be packed with boisterous crowds jumping up and down - no entertainment licensing required. Remember also that the performance of dance is exempt from entertainment licensing in places of religious worship, at non-profit-making garden fetes and similar functions.

During last year's World Cup, Bar Oz in Corn Street, Bristol, had to conduct an emergency evacuation because exuberant fans watching a match on the first floor caused ceiling plaster to rain down on customers in the ground floor bar. This was reported in the licensed trade press at the time. The government is aware of this and has concluded that separate safety legislation covers such risks.

The DCMS has also received written representations from the Association of Chief Police Officers who wanted televised sporting events to be included as licensable public entertainment on crime and disorder grounds. The Government rejected ACPO's recommendation. With that in mind, the Minister's suggestion that Morris dancing should be licensable because it carries public nuisance and safety risks would be hilarious if it was not clear that, on this occasion, it is not one of his famous jokes. I would suggest that the Government has no evidence that small-scale dancing on public land warrants increased criminal law sanctions.

It is preposterous that the licensing of village greens and similar places for such activity should be at local authority discretion, and indeed that even if they do licence them, a further permission from the local authority would be required by Morris sides before any non-spontaneous performance. As for spontaneous dancing being exempt, on 24 April I raised this with a legal adviser at the DCMS and the Local Government Association. The DCMS did not reply to my email, but Trish O'Flynn of the LGA did.

The LGA's view, of course, is more relevant than the Minister's since LGA's members are responsible for enforcement. Here is the relevant section of the exchange:

HB:    '... Let's assume that under the new regime the landlord of a typical small pub had been granted an authorisation on his premises licence to continue to host the solo and duo musicians that he has been putting on for years without a PEL. However, he did not seek permission for "a performance of dance" because he believes this
only applies to the sort of performance described by the Minister [i.e. not spontaneous - also in Committee Howells specifically stated that people dancing for their own amusement did not fall within the definition of a 'performance of dance']. Does this mean that this landlord would not be committing an offence to allow pub
customers to clear away the chairs for an impromptu boogie to a CD playing on a jukebox, or one musician playing a song?...'

LGA:    '... my understanding is that he would be committing an offence as Sch.1 para 3 provides that the provision of facilities for public dancing i.e. the cleared dance area would require a licence.'

Since 1976 the Government has had a duty under Article 15 the International Covenant for Economic, Social and Cultural Rights (ICESCR) to take progressive steps to ensure that everyone can participate in the cultural life of the community. It is impossible to reconcile that principle and obligation with the increased regulation of live music and dancing in the Licensing Bill. I think it also likely that over-regulation of public dancing, as with live music, is incompatible with Articles 10 and 11 of the European Convention.

Hamish Birchall

From: Kim Howells
To: John Bacon, President, Morris Federation
Dated: May 2003

Thank you for coming to meet me with your colleagues from the other Morris dancing organisations, the English Folk Dance and Song Society and other folk groups. We agreed that it would be helpful for me to set out the general position in relation to Morris dancing and other folk activities under the Bill.

Public performances outdoors are of course already licensable in Greater London and in some other places where certain legislation has been adopted or applies or byelaws have been made. The Bill will introduce consistency throughout England and Wales and this does mean that in some areas activities which are not currently subject to licensing will be caught.

The Government does not believe that there is any justification for treating public land outdoors in a different manner to other places since the issues of safety etc for performers and spectators are no different to those on private land or indoors. Ministers have always been clear that the Bill is deregulatory in some ways and regulatory in others but that the overall effect is deregulatory. What the Government wants to achieve is better regulation.

The Government will be encouraging local authorities to obtain premises licences authorizing the provision of regulated entertainment for public open spaces on which many performances take place where they are able to do this. No additional licence would need to be obtained by the organisers of the entertainment for the provision by them of regulated entertainment on premises covered by such a licence for the entertainment it authorises, although the consent of the local authority holding the licence would probably be required. Local authorities would, however, be able to refuse permission for example to performers who might cause nuisance to local residents if that was considered appropriate.

I think that there is an important part to be played by the folk arts community here in encouraging local authorities to think now about the areas of public land for which they might obtain a premises licence and how they might make these available to performers.   I suggest that your members should contact their own local authorities, and those in areas where they regularly perform to discuss this with them. You might also consider talking to the Local Government Association about how they think your aims might best be achieved.

It was suggested that the exemption for incidental live music which the Bill now includes could apply to dance and theatre but an exemption cannot apply where these activities are put on specifically to entertain the public and are not therefore incidental. The live music exemption will work in situations such as a piano player in a corner of a restaurant playing background music, but if the public are attending with the intention of being entertained by musicians then the entertainment is not incidental. Spontaneous dancing will be excluded from the new regime so a group of Morris dancers who spontaneously decide to dance at a pub will not be subject to the licensing laws.

If, however, it is arranged in advance with a publican, for example, that Morris dancers will be performing at the pub for the entertainment of the public, or Morris dancing becomes a regular event at the pub, then this will be a licensable activity. It is appropriate for Morris dancing to be a licensable activity in the same way as other similar types of entertainment because it can raise similar issues of for example public nuisance and safety.

I think that your main concern in this area was that there are many premises where you believe performances currently take place without public entertainment licences even though they are probably required. You are worried that in future these premises will not agree to host such performances, either because they do not want to apply for a premises licence to authorise the provision of regulated entertainment because of potential costs or because they will not be aware that they need to do so.

We would, of course, expect premises where folk activities such as Morris dancing happen regularly, such as pubs, to apply for the appropriate authorisations when converting their existing licence with variations, if necessary, to a premises licence.   The Department intends to take steps to ensure that existing licensees are aware that they will need to apply for an authorisation to provide regulated entertainment under the Bill, perhaps by means of a leaflet.

We would be happy to talk to you to help inform our thinking about what such a leaflet might say in respect of entertainment and folk performances more specifically and how best to raise awareness of the requirements for authorisations. We will also make clear that licensing authorities will only be able to attach conditions to licences, following relevant representations, where these are necessary to promote the licensing objectives, including public safety, and will not be able to attach swathes of standard, and sometimes costly, conditions as some do at present. Including in an application for a premises licence to authorise the supply of alcohol an application to authorise occasional performances by folk groups such as Morris dancers should not therefore lead to increased costs for a licensee.

I think that your members also have a role to play here in talking to the licensees of pubs where they regularly perform and making them aware of what the Bill will require in relation to regulated entertainment and what they would need to do to ensure the activities you carry out and the places in which you perform (such as the pub garden or car park) are included in the application for a premises licence.

The system for permitted temporary activities will also be of benefit to your members if they are performing in places which do not have premises licences or club premises certificates authorising the provision of regulated entertainment of the type you provide.

Temporary event notices can be given for one off events such as traditional fairs. This is a light touch system that requires no more than a notification to the local authority and the police so long as the limits provided for in Part 5 of the Bill are complied with and the police do not raise an objection, which they can only do on the basis that the event would undermine the crime prevention objective.   

These notices can cover events lasting for up to 72 hours where a maximum of 499 people attend at any one time. Non-personal licence holders will be able to give five such notices in a year and personal licence holders fifty (a personal licence is a licence granted by a licensing authority which authorises an individual to supply alcohol in accordance with a premises licence). Only five notices may be given in respect of any particular premises within a year, though I have agreed to consider an amendment tabled in Committee in the House of Commons which would increase this limit.

There is no limit to the size of the area that can be covered by a temporary event notice or premises licence and a notice or licence can cover, for example, a town square, part of a park, one street or a number of streets. The precise area covered by a licence or notice will depend on the details of the place to be used given by the applicant or premises user when making the application or notification.

Finally, I encourage you to continue to discuss the Bill's statutory guidance with officials if you have further concerns regarding Morris dancing and other folk activities.

I am copying this letter to those who attended our meeting.

Dr Kim Howells