PEL stops session in Cheshire

Subject: RE: PEL stops session in Cheshire
From: The Shambles
Date: 20 Oct 03 - 09:11 AM

Contact details for Macclesfield Borough Council..........

Macclesfield Borough Council.
Town Hall,
Macclesfield,
Cheshire
SK10 1D
Telephone: [phone]
Fax: [phone]

For more contact details - including email.

http://www.ukvillages.co.uk/ukvillages.nsf/b?open&v=Mobberley-Cheshire

Subject: RE: PEL stops session in Cheshire
From: Dave Bryant
Date: 20 Oct 03 - 10:17 AM

John - I think that you may find that it is under the "Public Safety" considerations that an LA might be able to insist on changes to the structure of the premises etc before they grant a PEL. My reading of the act is definitely that you must satisfy the provisions for a full PEL to be granted one in the first place. If the LA then wished to attach further conditions or restrictions not related to "Public Safety" or "Prevention of Crime or Disorder" these would not apply entertainment which falls within the "Small Event" clause.

I think that the "Small Events" excemption was merely created to make it look to the objectors in the House of Lords as though the government was making seriuous concessions, when in fact they were offering very little.

I feel that if the premises are not safe for small-scale entertainment, then they are not safe for large-scale drinking or watching live large screen TV. However I don't think that the government would have had the bottle to suggest that ALL pubs should comply to rigorous safety standards and decided to penalise only those which wished to have live entertainment.

BTW John - I agree with you about the fact that we have yet to see any of the great benefits that the act was supposed to provide such as extended and more flexible licensing hours - although of course, the "Small Events" clause would still be restricted to before midnight.

Subject: RE: PEL stops session in Cheshire
From: John J
Date: 21 Oct 03 - 06:40 AM

Refresh

Subject: RE: PEL stops session in Cheshire
From: McGrath of Harlow
Date: 21 Oct 03 - 06:56 AM

The term PEL refers to a licence under the present law. My understanding is that under the new law there won't be a PEL as such, so I think if that is true we ought to avoid using the term in relation to what is going to happen when the law comes into force, because it just confuses things.

Does anyone know if the other aspects of the act, such as extended opening hours, are on hold until the middle of 2005? Or is it just the music stuff?

I have a suspicion that some local authorities are going to move ahead in practice and start operating under their interpretation of the new law, in advance of it actually coming legally into force. Things could get very confusing.

Subject: RE: PEL stops session in Cheshire
From: Dave Bryant
Date: 21 Oct 03 - 08:11 AM

Kevin, while it might be possible to hold back parts of the act - ie the extended licensing hours, I would have thought that the issuing of premises licenses would have to be in place for next March, when about 1/3 of current magistrate's licenses expire. As the application for an entertainments license (or whatever the new term is) should be made at the same time, surely this should be in place as well. I believe that the LA can make an additional charge if the entertainments part is applied for separately - mind you I'm pretty sure that some LAs (including my own) would like an excuse to do just that.

One of the clubs which I go to (FOLKMOB at the Tudor Barn, Eltham) has hitherto operated as a member's club. If this loophole is now closed, there could be a problem. In order to get a (current) PEL, the LA (Greenwich) wants quite a number of structural changes. As the building is listed, the LA will not grant planning permission for these. The actual owners of the freehold of the building are not much help - who are they ? - you've probably guessed - The London Borough of Greenwich ! Talk abou a vicious circle !

Subject: RE: PEL stops session in Cheshire
From: ET
Date: 21 Oct 03 - 04:31 PM

The new act will not come fully into force until April 2005 and Magistrates have been instructed to consider and renew all liquor licences in 2004 (February) when they all expire. They will be renewed and from then until the following April new applications will be made under the new act with no additional cost for "entertainment" to be added. On the Department of Media, Culture and Sport website under liquor and licences there is a FAQ section which makes re-assuring noises about what is and what isn't public entertainment and what is and what is not to be licensed. Unfortunately these statements do not reflect what the act says - more lies and propaganda. Generally it is the local authority that enfroce PELS. I find it hard to beleive that the police are interested unless it is to help them meet some obscure target.

Subject: RE: PEL stops session in Cheshire
From: McGrath of Harlow
Date: 21 Oct 03 - 05:58 PM

So does that mean that the licences renewed (by a Magistrate) in February will not cover entertainment, but that subsequently any applications for licences will have to be made to the Council, and will cover entertainment (if the box is ticked), but they will not come into effect until April 2005?

Here is the Department of Media, Culture and Sport page about all this. Clear as mud. And devilish slow to load , wouldn't you know.

Subject: RE: PEL stops session in Cheshire
From: Dave Bryant
Date: 22 Oct 03 - 07:01 AM

The government seemed in such a hurry to get this legislation in place and now that it is, they're going to sit on it for over 18 months - why the rush ?

They pushed through this new act, our traditions to bury.
But now that it's law, they're not in such a hurry.
Ale, Ale, Glorious Ale . . . . . .

Subject: RE: PEL stops session in Cheshire
From: The Shambles
Date: 22 Oct 03 - 08:01 PM

The following is from Hamish Birchall

The Frequently Asked Questions (FAQ) section on the DCMS alcohol and entertainment licensing website contains the usual misleading guff and omit key facts:

http://www.culture.gov.uk/alcohol_and_entertainment/QuickLinks/f_a_q/default.htm?properties=%2C%2C%2C&print=

See Q&A reproduced below, plus my comment in bold:

DCMS Q: How do you define public entertainment?
DCMS A: In broad terms, public entertainment is music or dancing, or entertainment of a like kind, which is presented publicly for commercial purposes or for gain.

Comment: Seriously economical with the truth. Under the new and the old law, in broad terms, if licensable entertainment is public it is irrelevant whether it is amateur or for 'commercial purposes' - providing it is a criminal offence, unless first licensed. Maximum penalty for illegal entertainment: a £20,000 fine and six months in jail.

Under the new law, 'regulated entertainment' covers not just music or dancing. It incorporates separate existing licensing regimes for the performance of a play, an exhibition of a film, an indoor sporting event, a boxing or wrestling entertainment. If provided for the public, or in private (for commercial or charity fund-raising purposes), all will be illegal unless licensed as entertainments, irrespective of whether alcohol is sold.

Some of the definitions provided in the Act are very broad. The performance of a play, for example, captures Punch and Judy. Indoor sporting events covers darts contests. For the first time the provision of 'entertainment facilities' becomes a criminal offence unless licensed - even if the facilities are not in use. Providing a piano in a bar for customers becomes an offence in itself, unless licensed.

There are exemptions. These are, broadly: anything broadcast; Morris dancing and dancing of a similar nature and any unamplified live music that is integral to the dancing performance; 'incidental' live and recorded music - but this exemption is disapplied if the venue provides an instrument or any 'entertainment facility' for the performance; any entertainment at a public place of religious worship is exempt; garden fetes and similar functions not for private gain are exempt (but if they seek to raise money for charity they are caught); any entertainment on a moving vehicle is exempt; military bases and royal palaces are exempt.

DCMS Q: How will the Government's proposed licensing reforms affect public entertainment?
DCMS A: Under the new licensing regime, the concept of a public entertainment licence would completely disappear. Permission to sell alcohol, provide public entertainment, stage a play, show a film or provide late night refreshment (between 11.00pm and 5.00am) would be integrated into a single licence - the "premises licence". This would integrate six existing licensing regimes into one, cutting at a stroke significant amounts of red tape.

Accordingly, under the proposals, any public house would need to obtain permission to sell alcohol for consumption on those premises and would be free to apply simultaneously for permission to put on music or dancing or similar entertainment whenever desired. The fee for such a premises licence would be no different whether the pub simply seeks permission to sell alcohol or if it decides to go for multiple permissions. Any variation in fees, which will be set centrally to avoid inconsistencies, is likely to relate to the capacity of the venue so that smaller venues pay less than small ones.

The Government does not intend to require the licensing of any type of entertainment not already covered by the existing public entertainment licensing laws.

Comment: Tosh. Firstly, the concept of public entertainment licensing won't disappear - the name is simply being changed to 'premises licence', or 'temporary event notice'.

Secondly, giving six different licensing regimes the same name still means that six different activities remain illegal unless licensed as 'regulated entertainment'.

Thirdly, it is unlikely that red tape will be cut. It will increase, at least in the short term, for all those alcohol-licensed premises that will need to obtain permission to host even one or two live musicians (if they want to be bothered). 95% of these venues don't hold public entertainment licences now, and they have been free to apply for one since the year dot. The centrally-set, lower licence fees of the new regime may help (when it comes into force in 2005). Thirdly, the 'two for the price of one' licence offer only applies during the six month Transition Period. After that, if live music is desired, licensees must apply to 'vary' their licence, for which a fee (£100-500?) will be payable.

Variation is no light touch. It is essentially the same process as a full-on application. Applying for permission means paying to advertise the application to the public, and possible costs of a public hearing (if there are objections).

Fourthy, there is no guarantee that permission will be granted, and for most premises there will be cost implications arising from licence conditions. Challenging disproportionate conditions means an expensive appeal through the courts. None of this palaver will apply to big screen broadcast entertainment, or the pub jukebox.

The Act gives bars playing recorded music an easy ride through the licence conversion, even if they are known to cause disturbance to local residents. If bars want to feature even solo unamplified musicians, however, they must run the gauntlet of entertainment licensing even if there have been no complaints in the past. The actual entertainment permission process is little changed under the new regime.

The last sentence is code for: 'The Government will not inconvenience its good friend Rupert Murdoch and the pub trade by requiring the licensing of televised sporting events, in spite of the fact that the police asked for this because this entertainment is quite frequently a source of disorder.'

Subject: RE: PEL stops session in Cheshire
From: Blowzabella
Date: 22 Oct 03 - 08:06 PM

What about if you want to do performances in a place which is a public open space - therefore not licensed - can you offer any advice as to how that is affected?

Subject: RE: PEL stops session in Cheshire
From: McGrath of Harlow
Date: 22 Oct 03 - 08:24 PM

My understanding is that such performances will be illegal, unless the council has given a special licence covering it.

That includes busking.

How far they will actually enforce the law is of course unclear, and will probably vary widely from place to place and time to time in an arbitrary way.

Also unclear is how far any of this would actually stand up in face of the European Convention of Human Rights, when push comes to shove.

Subject: RE: PEL stops session in Cheshire
From: The Shambles
Date: 23 Oct 03 - 05:13 AM

Is there any more news 'on the ground' about the Bull's Head session?

Like did the police in fact contact the licencee and if so what did they say?

Are there any MPs, local councillors etc involved?

Is the next scheduled session still going to take place, in the same form and when is this?

Subject: RE: PEL stops session in Cheshire
From: Dani
Date: 23 Oct 03 - 07:54 AM

Reading through this thread, one thing that jumped out at me, as an American, is the alcohol policy for children between the ages of 16 and 18. I am very interested to know about the drinking culture among people these ages.

There is great debate near college campuses here because students seem to go crazy with alcohol when they get there. My own personal opinion is that we don't really educate them in responsible drinking, and then Katy-bar-the-door when they leave home.

Do you find that England's more gradual approach is part of the fabric of family and/or society? What issues do you face on this subject?

Please begin a separate BS thread if you have some insight into this issue and would like to discuss it!

Dani

Subject: RE: PEL stops session in Cheshire
From: Dave Bryant
Date: 23 Oct 03 - 10:31 AM

I don't think things are any better over here in the UK - although under 18s are not allowed to buy alcohol legally, if you go into many young people's pubs (especially Fri/Sat nights) a large number of drinkers will be under-age. There are several late night mini-markets, supermarkets, and off-licences in the area around me, which always seem to have kids hanging around outside asking adult customers to buy alcopops and cigarettes for them. The few times that I've been around the university campus (where I work) when the student's bar throws out doesn't tend to convince me that the majority know anything about "responsible drinking".

When I was at university, we tended to stick to beer and were on very restricted budgets so perhaps getting very inebriated on a regular basis wasn't really an option. Many of our students drive new BMWs so are obviously not as fiscally challenged.

Subject: RE: PEL stops session in Cheshire
From: GUEST,John J
Date: 23 Oct 03 - 10:52 AM

DCMS Q: How do you define public entertainment?
DCMS A: In broad terms, public entertainment is music or dancing, or entertainment of a like kind, which is presented publicly for commercial purposes or for gain.

'Public entertainment': as musicians & singers, we're not intending to entertain others (are we?), but we are performing to please ourselves.

'presented publicly for commercial purposes or for gain': sessions / singarounds are not for commercial purposes, nor are they for gain (other than for our own enjoyment).

Does this mean we're exempt? Or hass the beer I've just been drinking made me look at the situation through rose-tinted spectacles?

JJ

Subject: RE: PEL stops session in Cheshire
From: Malcolm Douglas
Date: 23 Oct 03 - 11:42 AM

No exemption under that heading, as it is arguable that sessions attract trade and are therefore presented both for commercial purposes and for gain. Note that I said arguable; there appears to be no definitive judgement on that. All these things have been debated at great length in the past, here and in the newsgroups, of course.

Subject: RE: PEL stops session in Cheshire
From: McGrath of Harlow
Date: 23 Oct 03 - 01:02 PM

Of course, the legal drinking age here is uniformly 18, whereas I gather in the States it's often 21. Which I imagine must encourage young people to drink in parties, rather than in bars, and must greatly help the drug dealers. (I mean if you're breaking the law anyway, why stick to beer?)

It's pretty normal here for kids a lot younger to have a drink with meals at home.

....
Back from thread drifting - since we ought to be coming up to an election around the time the new law comes into effect, I think we should seek to make sure it's brought into the limelight then..

Subject: RE: PEL stops session in Cheshire
From: clansfolk
Date: 24 Oct 03 - 06:19 AM

If it wasn't for the entertainment of others - wouldn't you just have a several little groups of musicians/singers sat around having a musical conversation - no need to take turns or be loud enough for other people across the room to hear...

Athough I don't agree with the fairness of the new licensing ( and those who know me will be aware of the work I did to opose the changes) - I think now we need to look at keeping sessions etc going and if that means the landlord getting a license (when they become available)that is what has to be - and if the licensee doesn't want a license there will be plenty of premises that will.... very few landlords (yes there are some) are in it to keep music live, most want the extra beer money over the bar...

Subject: RE: PEL stops session in Cheshire
From: The Shambles
Date: 24 Oct 03 - 08:38 AM

No exemption under that heading, as it is arguable that sessions attract trade and are therefore presented both for commercial purposes and for gain. Note that I said arguable; there appears to be no definitive judgement on that. All these things have been debated at great length in the past, here and in the newsgroups, of course.

It is important to remember that this only the DCMS 'broad term' definition of public entertainment. Like many of their statements and those of ministers, it is not the words of either the two pieces of legislation currently in place.

If it were to be the words of current legislation - as for it being arguable that unpaid sessions are presented for gain - this is of course arguable as much as anything else. In a legal sense anything is arguable. If you have enough money and are foolish enough - you will always be able to find a lawyer prepared to take your money.

Until a local authority makes the argument in court and wins - i.e. that a session by taking place on commercial premises that it presented for gain - the definitive judgement must remain to be Brearley -v- Moreley 1899.

What is really so staggering for people who believe in the rule of law - is that legal officers of local authorities - many of whom are not aware that B -v- M even exists - until it is thrust under their noses - are even serious considering advising their council's to make such an argument against unpaid sessions.

What is lacking here is any objectivity. What should happen is that an officer should investigate and find out the facts of each session and then see if the activity is covered by the words and precedents of the law. What actually happens is that the decision is made in advance by officers that the activity will be classed as being licensable - and the law is then interpreted (with no legal support) and simply made to fit.

When licensees and participants state the true facts of the session - they are just ignored - assumed by the officers to be lying or to be too stupid know if they are performing or not - the officers are so convinced that the whole thing is just an attempt to avoid paying for a PEL and that they can get away with pretending that the law says what they want it to say and will allow them to prevent whatever activity they want.

If we do not challenge this attitude now - it will not matter what the current law or the new law actually says - as these powerful individuals will just continue to do as they wish.

Subject: RE: PEL stops session in Cheshire
From: The Barden of England
Date: 24 Oct 03 - 10:30 AM

What does the judgement in Brearley -v- Moreley 1899 actually say, as I for one would love to be able to use this as proof to my local councillors if, and when, the time comes?

Subject: RE: PEL stops session in Cheshire
From: The Shambles
Date: 24 Oct 03 - 12:49 PM

The best way to approach this is to ask your councillor to ask your council's legal officers if they are aware of it and then for them to advise your councillor. If they are not aware of it - they will be able to find it and to review their current enforcement policy - in the light of it. Or to provide some legal support for any other interpretation they may be using. If they can't do this - ask that their interpretation be changed to one the current law can support.

You will hear lots of opinions from officers about what they personally think the interpretation should be - but this is about as valid as yours or any other interpretation. The only place where these interpretations can finally be decided is in court.

But we the public - in whose name the council's are acting, should expect the interpretaion and the advice officers provide to elected councillors to be guided by what case law would lead officers to what is likely to be decided in court.

With the case law as it is - it is rather difficult to see how officers could honestly expect their broad definition that - any unpaid pub customer making music on a regular basis is a performer in a public entertainment - to be accepted in court - if the issue should ever arrive there.
   
The following little summary is from Hamish Birchall and will help with any approach to your local council.

Under current legislation (s.182 Licensing Act 1964) premises in England and Wales which hold a justices on licence benefit from an exemption from entertainment licensing for music and singing provided by one or two live performers.

There is no case law that has determined that where members of the public join in they must be counted as 'performers' under s.182.

The performance of live music is protected by Article 10 of the European Convention on Human Rights. For the police or local authorities to take action which prevented an informal traditional music sessions this could only be justified if there was an imminent public safety risk, to prevent disorder or crime, or if the music caused an unreasonable disturbance to others.

Under s.3 of the Human Rights Act 1998, public authorities (including local authorities) must read and give effect to all legislation so far as possible compatibly with ECHR rights cited in the Act, including Article 10. Note the word 'must'.

In the absence of case law, local authorities have a choice between a narrow or broad interpretation of s.182.

Where enforcement action that would prevent a traditional music session is concerned, provided it causes no imminent safety risk, no crime and disorder, and no disturbance to local residents, local authorities must therefore interpret s.182 of the Licensing Act narrowly, i.e. interpret the word 'performer' such that where members of the public join with a performance they are not counted as performers.

Subject: RE: PEL stops session in Cheshire
From: The Shambles
Date: 24 Oct 03 - 01:34 PM

This may help John.

I don't think that anyone was claiming that 'working musicians were exempted but this prompted DCMS to discuss B -v- M 1899. It may be as well to get your council to approach the DCMS and be advised by them?

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 following is a rather backward way of saying that in 1899 the courts held that impromptu music making by unpaid customers were not licensable. But no one has any idea where the word 'impromptu' comes from as it does not appear in the judgement - for in fact the music making in 1899 was a regular event...........

In the light of this it is rather difficult to see how a local authority can claim legal support for an interpretation that - all music making by unpaid customers is licensable - but they continue to try to do so.

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.

Subject: RE: PEL stops session in Cheshire
From: The Shambles
Date: 27 Oct 03 - 02:32 AM

Does anyone locally know if the Bull's Head session has been prevented or is set to continue this week?

If it to continue - how?

Subject: RE: PEL stops session in Cheshire
From: McGrath of Harlow
Date: 27 Oct 03 - 08:36 PM

Given that the word "impromptu" doesn't appear in the judgement maybe it's not too significant - but according to my Concise Oxford Dictionary, impromptu has two meanings - one being "extempore" (defined as on the spur of the moment etc) and other being "having the character of improvisation", which should cover most things we do in sessions.

But what I would take as being the actual sense of the expression in this context would be "without being prompted", in contrast to the situation where the music is being made "for a consideration", at the prompting of the publican. Essentially therefore having the same sense that "spontaneous" has in the same context. "Spontaneous" in no way implies that the event cannot be a regular occurrence, and organised as such, provided the organising is done voluntarily and not "for a consideration".

Subject: RE: PEL stops session in Cheshire
From: The Shambles
Date: 28 Oct 03 - 02:27 AM

I tend to agree about the word 'impromptu' but our civil servant friends at the DCMS have introduced the word before in exchanges and their interpretation of the word then was 'a one-off' - implying that a regular event would not be considered as 'impromptu'. They may of course have changed their minds?

I have been thinking about any possible attempts by local authorities to argue that as sessions take place in pubs and pubs are commercial premises so they are presented for (indirect) gain.   

As the 1899 case was in a pub - and found not to be licensable - I do not really see how such an argument would succeed in court.........

Subject: RE: PEL stops session in Cheshire
From: Richard Bridge
Date: 28 Oct 03 - 09:25 AM

Sham - B-v-M was a case against the licensee for providing etc. Held - he only provided a piano, not the performance.

So it is possibly not authority that there was no performance, only that he didn't provide it ) which, of course, is a decision of fact, not law.

It may very well be the reason the new law makes the provision of facilities licensable (and of course criminalises the musos (with some exceptions) as well as the landlord) .

Sorry to be a wet blanket.

I've given JB a copy of it and he will no doubt return with his thoughts when he has digested it.

Subject: RE: PEL stops session in Cheshire
From: The Shambles
Date: 28 Oct 03 - 12:41 PM

Richard is your argument rather with our friends at the DCMS? They may well have got it wrong - they have got a lot of other things wrong - as the following words are theirs not mine.

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.

Surely the most important factor in this judgement was the 'consideration'? For had there been one - the licensee would have been found guilty even if the customers had provided their own piano.

Subject: RE: PEL stops session in Cheshire
From: McGrath of Harlow
Date: 28 Oct 03 - 06:32 PM

Interesting how that extract from the DCMS persists in the dogged assumption that, if we aren't somewhere we can buy booze, we couldn't possibly ever wish to sing or play music. (Leaving aside churches, following the amendment.)