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HELP with UK Music Licencing problem?
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Subject: RE: HELP with UK Music Licencing problem? From: Jon Freeman Date: 06 Jan 01 - 06:10 PM Richard, surley the nightclub license should cover any addional requirements for these special and clearly identifiable cases and I still fail to see the need for the PER. Could you explain further? Jon |
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Subject: RE: HELP with UK Music Licencing problem? From: Richard Bridge Date: 06 Jan 01 - 06:15 PM Dear Jon, Go to a pub with a punk band playing and watch the "mosh" develop, and you will know why a licence including a requirement to use town hall licensed bouncers is needed. Not to mention the night a punk decided to show his Prince Albert to my daughter as she was in mid-song. THe bouncers were needed for that too. |
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Subject: RE: HELP with UK Music Licencing problem? From: Jon Freeman Date: 06 Jan 01 - 06:33 PM Richard, maybe it is a case of living in different areas (not that I would expect the law to cater for that) but I can assure you that I am a supporter of live music in all forms and do turn out to pubs that are putting on local bands of all styles incuding punk when I can and have not observed any trouble. In this area (and I would suspect others), the trouble tends to come in the "dodgy" pubs and night clubs where I believe drugs play a big factor and under age drinking is another. I see no reason to blame or penalise music for this. I feel that the law should cater, as it does, for certain controls and standards of behaviour and it should be up to the licencee to ensure that these requirement are adhered to but I still fail to see why this should require a PER (as opposed to other licensing laws) and why music should appear to be so singled out. Jon |
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Subject: RE: HELP with UK Music Licencing problem? From: Richard Bridge Date: 06 Jan 01 - 06:38 PM The law very sensibly provides for more care to be taken where unruly bevahiour is likely. Put music, drink, and the two genders together, and unruly behaviour is likely. THerefore it has been regulated (long ago, originally, and without much subtlety). Some form of licensing system is I submit obviously necessary. What I can't see at the moment is a way to redefine to avoid the folk baby being flung out with the mods and rockers bathwater. |
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Subject: RE: HELP with UK Music Licencing problem? From: McGrath of Harlow Date: 06 Jan 01 - 06:40 PM "I find that I have to keep reminding myself that it is the year 2001 and not 1901." Well, Shambles, I doubt very much if there'd have been these sort of problems back in 1901, they weren't so silly. Illegal to sing in pubs? There'd have been riots in the streets!
I'd have thought an easy enough way of drawing the kind of distinction Richard Bridge thnks wouldn't be practical would be just to allow anything that wasn't amplified. I suppose it might mean Trad Jazz making a come back in pubs, but that's be all right. I can't see unamplified singing and playing, however rough and ready, causing disturbances (except maybe on occasions when musicians get thrown out for annoying the regulars).
But now you're back Richard, could I pick your brains. Earlier you said "The first (issue)is that of a public perfomance licence, and the law is correctly set out on the Dudley website at the link given above."
Did that include the include the bit where they said "The common definition of a public entertainment is one which involves one or more of the above activities, is publicly advertised and where a fee is charged either before the event or on entry"? Because if you did, and if you and Dudley Council are right on this, then this whole thing is a misunderstanding so far as sessions are concerned. |
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Subject: RE: HELP with UK Music Licencing problem? From: The Shambles Date: 07 Jan 01 - 02:38 AM Mabe a useful way to approach the claim that a session was a public entertainment or a performance would be to demonstrate the uneven quality of such gatherings.
It would be immediately clear to anyone attending that there was no attenpt made to entertain or perform to anyone, in the accepted sense of those words. It is a event where the players themselves can practice and learn new tunes.
In fact the session would not be all that different to say a choir rehearsal. Would such a rehearsal be described as a public performance, if it was held in a pub without a PEL? How about it Richard, should we be stressing the fact that its nature is really more of a rehersal in a public place, rather than a public entertainment? Should it really not be looked at as a practice night rather than a public performance anyway? Surely that is the sensible way out of this mess? |
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Subject: RE: HELP with UK Music Licencing problem? From: The Shambles Date: 07 Jan 01 - 03:44 AM I am not trying to stage a public entertainment in an establishment that does not have a Public Entertainment Licence. If I were trying to perform there with a three-piece band, the law is clear (if a little strange), that the establishment should have a PEL.
The local authority are claiming that what I am trying to do, which is to hold an informal musical session, constitutes such a public entertainment. On the grounds that more than two musicians will be playing and therefore does need a PEL.
As the threatened action is not against me but is against the publican, who does not want to obtain a PEL and is unlikely to want to contest the issue with the council, this interpretation of the law is unlikely to be tested in court. The only likely outcome of this pressure being applied on the publican to obtain a PEL to enable this event to take place, will be that the session will be asked to go somewhere else. Given the laws definitions of what a public entertainment is, I do not agree that the event I am trying to hold constitutes a public entertainment. Therefore it does not require a PEL. |
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Subject: RE: HELP with UK Music Licencing problem? From: McGrath of Harlow Date: 07 Jan 01 - 09:14 AM The other thing that occurs to me is that there is a specific exception where the music etc is merely incidental to the main activity, with the example of a boxing match or a fairground.
In a bar in a pub, a few people playing to each other in acornwer are surely incidental to the main activity, (which I suppose is drinking and social interaction) unless maybe you've driven all the regulars out...
All right, there are sessions which are entertainment, but most are, for most people, something happening in the background. That's not saying the music may not be very high quality, but it's a different kind of activity from a concert or a dance. And that "incidental" exception does appear to offer room for commonsense to be applied.
I wonder if we've got any magistrates on the Mudcat who'd like to comment?
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Subject: RE: HELP with UK Music Licencing problem? From: The Shambles Date: 07 Jan 01 - 05:06 PM Spooky or what?………. There was a TV programme on tonight about architecture called 'Victoria Died In 1901 but Is Still Alive Today!'
The following is a Q and A, from An introduction The Human Rights Act.
DOES THE HUMAN RIGHTS ACT AFFECT THE WAY GOVERNMENT AND PUBLIC BODIES BEHAVE?
Yes. The Human Rights Act says that all public authorities must pay proper attention to your rights when they are making decisions that affect you. Public authorities include Government Ministers, civil servants, your local authority or health authority, and also agencies like the police, the courts and private companies when carrying out public functions. That's nothing new - respecting rights and balancing rights and responsibilities has always been an important part of public service in this country. But the Human Rights Act makes sure that those in authority over you will have to check that they do not ride roughshod over your rights, even when they believe they are doing so for a good reason. They will have to be careful about the balance they are striking and think hard about how they can cause the least possible harm to individuals. More can be found here www.homeoffice.gov.uk/hract. |
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Subject: RE: HELP with UK Music Licencing problem? From: The Shambles Date: 07 Jan 01 - 05:12 PM The one I gave above, did not seem to work |
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Subject: RE: HELP with UK Music Licencing problem? From: McGrath of Harlow Date: 07 Jan 01 - 08:06 PM Useful stuff. But complicated. Couldn't we get the EFDSS or the Muisuicians Union to do the heavy lifting here? |
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Subject: RE: HELP with UK Music Licencing problem? From: The Shambles Date: 08 Jan 01 - 03:00 AM I think it would be fair to say thet the MU concerns itself more with the interests of professionl and semi-profesional musicians than the interests of music-making in general. Where these may clash or be unclear, the issue will quite understandably be seen from the point of view of the majority of their membership. The problem here is one the freedom of public expression in largely un-paid events, not one that the majority of its hard-gigging members are too interested in. |
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Subject: RE: HELP with UK Music Licencing problem? From: McGrath of Harlow Date: 08 Jan 01 - 04:41 PM The MU always seem to be at festivals with a recvruitingt stand aimed at folkies - and meeting and playing music with friends in pubs is something professionals and semi-professionals like to do sometimes too.
In fact it's part of the process for getting the contacts that provide chances for work. For example a session can lead to an offer of a gig for a musician. So in principle they should be onside.
But are there no magistrates or JPs out there with advice or anecdotes? Or publicans?
And I know it says Uk up there - but how do these things work out in other places? |
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Subject: RE: HELP with UK Music Licencing problem? From: The Shambles Date: 08 Jan 01 - 07:27 PM At the very start of all this I did Email the MU and was impressed to receive a very prompt reply from the Assistant General Secretary of the MU, themselves, no less.
It was very precise and factual and confirmed that the fact that the act requiring a PEL applied to three of more performers in pubs, whether they were paid or not. I have not explored the question of whether a session would constitute a public entertainment, with them but it maybe a good idea to do so. |
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Subject: RE: HELP with UK Music Licencing problem? From: McGrath of Harlow Date: 08 Jan 01 - 07:43 PM ESpecially in a context where it was essentially more like a practice session, as you suggested Shambles - a chance for musicians to find whether they like playing together - in a situation where the music itself is really incidental, and therefore arguably excluded from the restriction.
I think continuing that dialogue with the MU would be well worth it. All the MU people I've ever chatted with at festivals have seemed very helpful They seem to see amateur folk musicians as allies rather than as any kind of enemy - and there are an enormous number of instruments around with MU stickers on the case most places folkies congregate. |
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Subject: RE: HELP with UK Music Licencing problem? From: Richard Bridge Date: 10 Jan 01 - 06:48 PM Public = the public can in effect get in. |
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Subject: RE: HELP with UK Music Licencing problem? From: The Shambles Date: 10 Jan 01 - 07:56 PM The law is pretty clear that two musician playing in a pub is not a public entertainment and does not need a PEL.
In the above case the public certainly can in effect get in but it is clearly not considered a public entertainment.
It is not quite so clear that the addition of one more musician then automatically makes the event a public entertainment, without the further definitions of what a public entertainment consists of, being taken in to account. Well not to me, but I am a musician not a lawer. |
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Subject: RE: HELP with UK Music Licencing problem? From: McGrath of Harlow Date: 11 Jan 01 - 02:00 PM "Public = the public can in effect get in."
But what is "entertainment" in this context? The Dudley guidelines appear to indicate that payment was a necessary condition.
There re all kinds of things which people can get into which are not counted as "entertainments", even where they might be quite enjoyable. Political meetings, church services, funerals, auctions...
But Shambles - as I read it, it isn't that two musicians playing together in a pub do not per se counted as public entertainment - it's that if this is counted as public entertainment, there is an automatic permission for it, under the pub's license.
But it is quite arguable that in certain circumstances musicians playing in a pub are not providing a public entyertainment at all (however good they may be). Their playing is merely incidental to the real business in hand and therefore specifically excluded from the definition of public entertainment.
The point being that the customers should be presumed to have come there primarily for a drink and to meet friends, and have not paid any admission charge. Musicians in this context are no more an public entertainent than the pictures hanging on the wall are an art exhibition. |
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Subject: RE: HELP with UK Music Licencing problem? From: Richard Bridge Date: 11 Jan 01 - 02:56 PM Oh dear. One more time. Public = public can get in. Entertainment = to be gawped at or possibly but not necessarily participated in or enjoyed. 2 public entertainers = no licence needed. 3 public entertainers = licence needed. If you want to change the law, hassle Tony Blair. Or perhaps the Department of Culture Media and Sport (or whatever they have now changed the name to). Not your publican or the council. If you want to go broke, get a solicitor and seek a declaration that the Human Rights Act renders the previous law unlawful. If you are entitled to legal aid, (I think we do have some members who are) get a legal aid solicitor. As good a choice as any might be Benedict Birnberg, and another might be Chris Magrath. Both in the directory. Or there's that other human rights firm that acted for the MaWhinney Four (the name will come back to me soon). |
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Subject: RE: HELP with UK Music Licencing problem? From: McGrath of Harlow Date: 11 Jan 01 - 03:23 PM So a funeral is a public entertainment? I think it's a bit more complicated than that.
BY which I mean that the fact that something happens in public and can be worth watching does not in itself mean that it counts as a public entertainment.
IT seems pretty clear that there is a very wide variety of ways in which the law is interpreted and administered. I think it'd be useful to have a clearer picture of what this variety actually consists of.
For example most poeple seem to assume that this no-more-than-two performers business means no more than two at a time. Whereas it can and has been interpreted to mean no more than two in a session, even if they are performing solo. |
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Subject: RE: HELP with UK Music Licencing problem? From: McGrath of Harlow Date: 11 Jan 01 - 03:23 PM So a funeral is a public entertainment? I think it's a bit more complicated than that.
BY which I mean that the fact that something happens in public and can be worth watching does not in itself mean that it counts as a public entertainment.
IT seems pretty clear that there is a very wide variety of ways in which the law is interpreted and administered. I think it'd be useful to have a clearer picture of what this variety actually consists of.
For example most poeple seem to assume that this no-more-than-two performers business means no more than two at a time. Whereas it can and has been interpreted to mean no more than two in a session, even if they are performing solo. |
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Subject: RE: HELP with UK Music Licencing problem? From: The Shambles Date: 12 Jan 01 - 09:35 AM Oh dear!
Richard your first contribution to this thread started by saying
"I am a copyright lawyer, but this is not solicitor-client advice (for that, there are fees, and what our law society calls a "client care" letter (translation, contractual terms of business))."
Thank goodness for that. Please keep your advice, free or otherwise. For as you are pointed out above all you are expressing here is basically a personal view, no more valid than anyone else's view in this thread. From what you have demonstrated here, if I were going to pay any lawyer for any advice on this subject, it certainly would not be you.
I feel that, if you wanted to, you have may be able to provide some helpful advice on this issue. As it is, your patronising contributions and simplistic definitions, seem to demonstrate that you have failed to grasp the implications of this issue or even to have actually read the wording of the law you referred to.
In my view, your insultingly short and long-suffering sounding, definition of the word public, over a issue of music in a PUBLIC house, even if they had been intended to be helpful, was a definition that was totally unnecessary. It appeared to me to be stating the 'bloody obvious ', just to further your apparent need to exercise your sense of superiority over those poor non-legal people in trouble and asking for help. You have gone on to produce yet another post, in the same patronising tone.
The clear and simplistic view of this or any other law, that you stick to, is the type of sure and certain interpretation, that some solicitors tend to give to prospective clients before they start to take their money. After that point they tend to give a less sure interpretation and things tend to become more complicated and expensive. I would like to thank all of those who have seen the implications of this issue and have contributed helpful suggestions in this thread with a view to get a common sense view and solution to this problem. |
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Subject: RE: HELP with UK Music Licencing problem? From: GUEST,Roger the skiffler Date: 12 Jan 01 - 10:45 AM Well, namesake,I'm not a lawyer (except for the barrack-room variety) but I don't think pubs have to pay a vast amount for "licenced for singing and dancing" status, certainly most village halls etc are.... and I've seen at least one church in Colchester (perhaps it's an Essex thing)licenced to sell beer wines and spirits. With the amount of extra drink thirsty singers consume I'd have thought it worth any licencee investing. The law may be an ass re 2 people or 3 but there's no point railing against it- the landlord needs to keep his nose clean with the licencing authorities. RtS |
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Subject: RE: HELP with UK Music Licencing problem? From: The Shambles Date: 12 Jan 01 - 11:03 AM Richard.
Public = public can get in.
2 public entertainers = no licence needed. Are 2 darts or pool players in a pub team on a match night with an audience, public entertainers?…. By your definition. Yes.
Does a pub have to hold a public entertainment licence?….By your definition. No.
3 public entertainers = licence needed. Are 3 darts or pool players in a pub team on a match night, with an audience, public entertainers?…. By your definition. Yes.
Does the pub have to hold a Public Entertainment Licence? ….Again by your definition, Yes.
No one (even you) it would appear, is really claiming to that the need for a PEL is being interpreted as applying to 3 darts or pool players, providing largely their own entertainment.
Then it surely must follow that it cannot apply to 3 musicians, providing largely their own entertainment, with the publican's permission of course. |
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Subject: RE: HELP with UK Music Licencing problem? From: Richard Bridge Date: 12 Jan 01 - 12:38 PM Sham, believe me, at the present time if you had been a client you would have been one of the very few I have had to tell that they were terminated and that I would not accept their instructions. A client with the intelligence to contribute to the debate (which I think you probably would be) is a great help. A client who thinks he knows the law better than his lawyer, and wants to sound like a smartarse is usually a royal pain. James the First is reputed to have been annoying to his legal advisers. 3 people in a session need a PEL. There is no cost-effective way to challenge it unless you qualify for legal aid.
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Subject: RE: HELP with UK Music Licencing problem? From: McGrath of Harlow Date: 12 Jan 01 - 01:24 PM Noone's planning to challenge it in court at this point Richard, and you haven't been taken on as a lawyer, as you pointed put in your first post. What we've ben trying to do is clarify what the law is, and how it is interpreted in diffeent parts of the country.
And it's not as simple as you seem determined to suggest. You yourself have in fact contradicted yourelf at least once - you said that the Dudley Council guidelines were accurate, andn then that the question of payment was not material, when in fact Dudley Council had said it was a necessary criterion for something to be classed as a public entertaionment. "The first (issue)is that of a public perfomance licence, and the law is correctly set out on the Dudley website at the link given above." Richard Bridge.
"The common definition of a public entertainment is one which involves one or more of the above activities, is publicly advertised and where a fee is charged either before the event or on entry" Dudley Council website. Clearly there are plenty of cases where groups of singers and musicians play in bars in pubs where there is no Public Entertainment Licence, on a regular basis, without any problems. I've taken part in such sessions more times than I can remember, in many parts of the country. I've also been in pubs where we've been told not to play, because there isn't such a licence.
What is notb clear is whether it's a queswtion of a blind eye being truned to breaches of the law, because noone has complained about it, or whether the authorities see the music as incidental to what uis taking place in the bar - to quote the Dudley website: "There are exemptions for these requirements, which broadly speaking are as follows:-
If the music is merely incidental at functions...".
I think it is most likely the former - a blind eye being turned to the law in cirumstances where strict application would be silly and counterproductive.
But where the law is not enforced on a wide enough basis, this can have implications as to whether it in fact continues to be enforceable at all. There are lots of silly laws which have fallen into disuse, and which it would not in practice be possible to enforce now, even though they have never been repealed or amended. (Mince pies being outlawed at Christmas, that kind of thing.)
But it would be interested to actually have the words of the legislation involved. Which would be, so far as I can see: "the Local Government (Miscellaneous Provisions) Act 1982", "Schedule 12 to the London Government Act 1963", and "Section 182 of the Licensing Act 1964".
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Subject: RE: HELP with UK Music Licencing problem? From: The Shambles Date: 12 Jan 01 - 03:27 PM Richard if the laws of the land were ever as clear as you maintain this one is, there would be not be a need for lawyers to be paid to argue them in court or be any material for them to argue with.
I am sure that if I had the same amounts of money available as say OJ Simpson, my legal team would have far more material to work with on this issue, than his team ever had in organising his defence.
I feel that there would be enough material provided here to demonstrate that there were enough grounds to at least contest your strict interpretation. All one asks for is for a little attention to be paid to detail and the grey areas. You simply refuse to recognise that any of these exist or even be prepared to address any of your own contradictions, when these are challenged. I may indeed be considered to be a "smart arse" and also naïve but I believe that the law is made, by us and for our protection not as a tool to enslave us. |
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Subject: RE: HELP with UK Music Licencing problem? From: GUEST,Red Headed Ann Date: 13 Jan 01 - 12:28 AM Its all Bollocks. The bottom line is if they want to bust you, they'll bust you and if they dont, they won't. If the publican thinks you'll bring in drinkers he'll take the risk. When he gets found out he'll kick you out. The one the cops can't handle is when they walk in and everyone is singing a different song or playing a different tune. Then you are unconnected individuals singing or playing to yourself. And if you all pretend to be deaf it really does their head in. Another trick is to stop playing and start miming when they come in. You've got to stay dead pan and not crack up. It totally freaks them out. Or start singing hymns and claim to be new age christians. Tell them you'd all like to talk to them about Jesus. You won't see them for dust! |
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Subject: RE: HELP with UK Music Licencing problem? From: The Shambles Date: 31 Jan 01 - 08:25 AM Refresh Still need help. |
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Subject: RE: HELP with UK Music Licencing problem? From: McGrath of Harlow Date: 31 Jan 01 - 07:30 PM There are several issues here.
One is the business of finding out what is the best understanding of the law. (And a sighting of the actual legislation would be useful there.)
A second is to find out what the actual situation in different places, and the different interpretations placed on the law. (Which clearly varies very widely.)
A third is identifying if there is anything that can be done to try and make the situation a bit more friendly to informal non-electrified musicmaking.
And a fourth would be to deal with the actual problems that have arisen for Shambles and friends at present.
I can't see us sorting all that out in a hurry. But I'm sure there are people out in the Mudcat world who can throw light on all these issues, and that seems a very good idea to me. |
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Subject: RE: HELP with UK Music Licencing problem? From: The Shambles Date: 01 Feb 01 - 02:08 PM Licensed Premises: Entertainment Legislation House of Lords Monday 11 December 2000 2.53 p.m.
The Lord Bishop of Oxford asked Her Majesty's Government: Whether, under Section 182 of the Licensing Act 1964, members of the public count as "performers" if they sing on licensed premises; and, if so, how local authorities can enforce public entertainment licensing legislation in a proportionate manner that is compatible with performers' rights under Article 10 of the European Convention on Human Rights.
Lord Jenkins of Putney: My Lords, is it not possible that the performers' unions will have an interest in this matter? If that is so and if my noble friend is approached by Equity on the matter, am I right in saying that I can assure the members of that union that he will lend them an ear? |
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Subject: RE: HELP with UK Music Licencing problem? From: The Shambles Date: 01 Feb 01 - 02:20 PM Lord Bassam says "I would not expect any reasonable licensing authority to act in the manner to which the noble Lord referred".
Let us see tonight if I still have the misfortune to live in in an area where the authority is acting "in the perculiar and perverse way". Watch this space.
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Subject: RE: HELP with UK Music Licencing problem? From: McGrath of Harlow Date: 01 Feb 01 - 02:39 PM Well done, finding that Shambles. At least now you know you can bend the ear of the Bishop of Oxford if thing do pear-shape - and Lord Bassam of Brighton. Lord Basam of Brighton indeed - I'm sure our American friends must think you're making this up.
Those guidelines he mentions would be worth getting a look at. And that proposed abolition of "the Section 182 provisions" sounds suspiciously as if they are thinking of removing the minimal existing exclusion for licensed premises, and making things worse rather than better.
Kepp us (and the Bishop of Oxford) posted...
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Subject: RE: HELP with UK Music Licencing problem? From: GUEST,ham.drum@virgin.net Date: 02 Feb 01 - 04:29 AM I wrote the Bishop of Oxford's question, put to the Home Office in the House of Lords on Monday 11 December 2000. I am a jazz musician who has been researching and writing about the live music licensing issue for just over two years. The Church of England lends its name in support of my campaign because they feel that these laws are oppressive and unfair, and that more local access to live music can strengthen the community. I now advise the Arts Council on the subject They now accept (better late than never) that the legal restrictions on live music, particularly folk and jazz, have become an anachronism and are working with the Department of Culture and the Home Office to ensure that licensing reform benefits local access to 'cultural life'. What you may not know is that, in 1988, very similar laws were 'struck down' in New York City following a successful 'freedom of expression' lawsuit brought by jazz musicians. The laws (a 3-musician limit in zoned areas)had operated for more than 50 years. Since the Human Rights Act came into force last October, 'freedom of expression' (Article 10 of the European Convention on Human Rights) has become available as a defence in UK courts. I hope you don't mind if I take you through my analysis of why the violation of Article 10 for musicians should now be taken very seriously by local authorities. Why should performances be stopped where there are no safety concerns? Article 10 is a 'qualified right', in the sense that there are limiting conditions. 'Public safety' is the only one that applies here. However, the provision of Section 182.1 of the Licensing Act 1964, which gives rise to all the formal cautions and prosecutions against local live music in pubs and bars, cannot be public safety because it operates irrespective of the number of persons present. For example, there may be only three people in a pub, but if they sing they are breaking the law - unless an entertainment licence is purchased. There can be no overcrowding issue here, and it is usually overcrowding that local authorities mean when they talk about public safety risks. In any event, public houses, like all 'workplaces', are covered by a slew of health and safety Acts and Regulations that cover all activities taking place on the premises. Providing employers have fulfilled their statutory duty to make comprehensive risk assessments, and the Environmental Health department has fulfilled its statutory duty to audit complaince with the appropriate statute - there should be no problem at all. Indeed, under Schedule 1 of the Health and Safety (Enforcing Authority) Regulations 1998, safety inspections may include 'practice or presentation of the arts... entertainment or other cultural activities' within their remit. That phrase has, I understand, been in the statute since 1989. In other words, if the pub was seriously unsafe, then either the local authority, the fire service, or both, must have failed to fulfil their statutory duty to ensure all workplaces are safe. Making live music an excuse to discover this is absurd, irrational and unfair. Satellite tv, for example, which is exempt from the public entertainment licence requirement, often attracts large and noisy crowds - but do you see Environmental Health inspectors wading in to turn off the TV? Not likely. But they can, and should, if there is any significant public safety risk. But local authorities prevent live music on the basis of a breach of Section 182 where no prior assessment of any public safety risk has been undertaken, and where no noise complaints have been received. It is this action that places them at risk of acting unlawfully under the Human Rights Act (HRA). Under the HRA, local authorities have a statutory duty to interpret all legislation compatibly with European Convention rights. Where there two possible interpretations of the law, one of which is compatible and the other not, the compatible interpretation must be taken. The fact that a court may have interpreted a law in a certain way before does not mean that after the coming into force of the HRA, it will interpret the provision in that same way. Nor can that earlier interpretation be relied upon by a public authority (i.e. local authority). Under the HRA all local authority prosecutions must also now pass a stringent test of 'proportionality'. I have adapted some of the above from the Home Office's own 'Core Guidance to Public Authorities'. Here's what they have to say about proportionality: This is a crucial concept. Any interference with a Convention right must be proportionate to the intended objective. This means that even if a particular policy or action which interferes with a Convention right is aimed at pursuing a legitimate aim (for example the prevention of crime) this will not justify the interference if the means used to achieve the aim are excessive in the circumstances. Any interference with a Convention right should be carefully designed to meet the objective in question and must not be arbitrary or unfair. You must not use a sledgehammer to crack a nut. Even taking all these considerations into account, in a particular case an interference may still not be justified because the impact on the individual or group is too severe. Many Section 182 prosecutions would fail these tests. And, since the musicians are quite definitely directly affected by these prosecutions, they could bring proceedings against the prosecuting authority. Compensation could be sought. Folk music is an important cultural tradition which cannot exist without public peformance. It relies on performance for the transmission of this musical heritage to the next generation. Article 10 of the European Convention refers to the '... freedom to... receive and impart information and ideas without interference by public authority...'. It may not be immediately obvious that music would be counted as 'information and ideas', but I have a letter from Philip Alston, Professor of Law at the European University Institute in which he refers to live music as 'this very important form of information'. Professor Alston is the author of many well known law textbooks, particularly in the human rights field. He was chairperson of the UN Committee on Economic, Social and Cultural Rights from 1991 to 1999. The new legal environment created by the HRA also opens UK courts to the world of comparative jurisprudence. And this brings me back to New York City, where jazz musicians brought that successful freedom of expression lawsuit against very similar anti-live music laws in 1988. This ended an oppressive regulatory framework that had stood for more than 50 years. I am not saying that the fundamental rights approach would necessarily have such a dramatic impact here (a 'declaration of incompatibility' may be the best outcome), but since common sense arguments appear to have failed to persuade local authorities to act rationally and fairly in respect of live music, then perhaps it is time to flex some legal muscle. I am not a lawyer, and would definitely not recommend simply jumping in at the deep end on this. But it something to think about, and if raised in the right context (meetings with your local authority licensing chief, head of the Arts Dept), and with some legal advice, it may persuade local authorities that a fundamental rethink of enforcement policy is called for. Please let me know if you have first-hand experience of what you regard as heavy-handed local authority enforcement and I will bring it to the attention of both the Arts Council and the Home Office. With best wishes. Hamish Birchall |
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Subject: RE: HELP with UK Music Licencing problem? From: McGrath of Harlow Date: 02 Feb 01 - 08:46 AM Thanks for coming in here Hamish, that's interesting stuff. I've sent an email to Unicorn magazine drawing their attention to this thread and to your post especially.
As I say in a post earlier, Unicorn are trying to get information together about this, arising out of hassles that have effected the Ely Folk Club. The website link I put in my earlier post doesn't seem to work - but here us the email address I've got for them: trpthomas@aol.com
I think it might be worth getting directly on to them yourself, because they might well have gathered some useful information by now. My feeling is that these restrictions probably wouldn't stand up in a court at the end of the day, but the status quo quite suits too many people, and the people who are adversely effected aren't in a position to fight it through expensive court actions. And there's also a worry people have that clarifying the legal position might even make things worse – which, given the way the courts work sometimes, isn't so silly. (Though I think the HRA might have changed the likelihood of this happening a bit.)
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Subject: RE: HELP with UK Music Licencing problem? From: The Shambles Date: 02 Feb 01 - 03:16 PM If the distinction between a performer and a member of the public, making music for their own entertainment in a public house, presents a problem. This distinction can be clearly and easily demonstrated in the quite different relationship the publican has with them.
This difference should be immediately obvious to any competent enforcement officer following the Cabinet Office Enforcement Concordat of March 1998, before they proceed with any threats of prosecution.
The performer is employed by the publican to perform. If the publican does not want them to perform, they inform the performer and the performer will not turn up on the night, ready to perform.
The member(s) of the public has usually asked the publican's permission to make music in their public house, and is there because they are a customer. If they are a customer who has come to the pub largely in order to make music and the publican is forced to ask them not to make music, the publican knows this will upset the customer and they are unlikely to come again.
A successful publican is one who does not upset their customers. The licensing authority should recognise this and not place the publican in an impossible position. They should certainly not do so when there are no issues of noise or public safety.
In the case of an informal tradition music session, taking place on licensed premises, with publican's permission, it is quite clear that there are, no performers.
There are only customers providing their own entertainment.
Thus the number of them playing is not relevant.
They are using only their voices or non-amplified instruments.
There are no resulting issues of noise or public safety.
Therefore the requirement for a Public Entertainment Licence under section 182 of the Licensing Act 1964, is clearly not applicable, under these circumstances.
It would appear that the present situation, where central government has indicated that the Section 182 requirements are to be removed, but they remain in existence and still form the licensing authority's bible, is possibly the worst of all worlds.
Publicans, aware of the government's intentions will be understandably reluctant to pay additional funds for a PEL, and enforcement officers seem to be determined that the publicans will not get away with more than two performers, without one.
Sessions, clubs and other informal musical gatherings in pubs, appear to be taking most of the flak of this unsatisfactory situation. An analogy (that is possibly a little OTT), would be one where those responsible for WW2 concentration camps, seeing that the camps were shortly to be liberated and a new order would be shortly set up, ignore that fact and then set about implementing their current orders, with an increased zeal. |
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Subject: RE: HELP with UK Music Licencing problem? From: McGrath of Harlow Date: 02 Feb 01 - 03:27 PM Could some clever soul find Section 182 and post a link to it, or post the text itelf, if it's not on the net anywhere. (And then of course it will be on the net for any future purposes...I mean, if they are going to get rid of it, it's as well to know, in case there's anything in it we might value.) |
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Subject: RE: HELP with UK Music Licencing problem? From: Richard Bridge Date: 02 Feb 01 - 06:35 PM Format won't copy. Go to http://www.hertsdirect.org/infobase/docs/worddocs/5211063
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Subject: RE: HELP with UK Music Licencing problem? From: McGrath of Harlow Date: 02 Feb 01 - 07:34 PM Well, here is the relevant extract from that site Richard helpfully found us (the link direct seems to have a problem, but I ferreted around on the site, which is Herts County Council's, and got there eventually):
Section 182(1)
No statutory regulations for music and dancing shall apply to licensed premises so as to require any licence for the provision of public entertainment: a) By the reproduction of wireless (including music television) broadcasts
b) By way of music and singing only which is safely provided by the reproduction of recorded sound.
c) By not more than two performers.
d) Sometimes in one of those ways or sometimes in the other.
Which by itself seems to suggest that if they just remove section 182, as Lord Bassam of Brighton indicated they are planning to do, it will mean that a pub will have to apply for licences for anything, including playing a wireless set, or having even a single person singing or playing.
Which doesn't seem a great improvement. But then I got the distinct impression from that Hansard extract that the Lordships don't have a clue about this whole thing, even less than the rest of us.
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Subject: RE: HELP with UK Music Licencing problem? From: GUEST,Hamish Birchall Date: 03 Feb 01 - 05:53 AM Medieval theologians were sharply divided over just how many angels could dance on a pin-head. Who counts as a 'performer' under s 182 of the Licensing Act 1964 is an equally spurious debate. The fundamental principles are: everyone's right freely to participate in the cultural life of the community, [and] enjoy the arts... (Article 27.1 Universal Declaration of Human Rights, 1948); and the right to freedom of expression (Article 10, European Convention etc etc). Local authorities may only interfere when public safety is genuinely at risk. Establishing whether this is the case is a statutory duty shared by the licensee and the local authority Environmental Health dept. Public disorder issues, inside or outside premises, are dealt with by the police under separate legislation. Where there are no noise or safety concerns, local authorities, as 'emanations of the State', have a duty to encourage local cultural life. But the primary legislation itself (s 182), excessive fees and conditions, and the strangulation grip of enforcement combine to violate these basic rights. The only plausible argument I have heard for retaining a separate licensing system for public entertainment is that it allows local authorities to tailor other types of condition (parking restrictions, for example)specifically to the premises and the entertainment in question, and that a PEL gives local people have a sense of control of what is going on in the neighbourhood. This is the line local authorities will take in defending their need for strict regulation of public entertainment. While the first part of that argument is achievable under existing health and safety legislation, the second is more problematic. The word 'licence' is very reassuring for certain people -it has a ring of authority, even when its function is virtually redundant. The deep divide that exists between kill-joys and good-timers in this country means that it won't be easy for one section of the community to let go of the absurd idea that even a pub sing-along should be licensed. Entertainment licensing per se was first codified in the 'Disorderly Houses' Act of 1751. The rationale was explicit: 'The multitude of places of entertainment for the lower sort of people is another great cause of thefts and robberies, as they are thereby tempted to spend their small substance in riotous pleasures and in consequence are put on unlawful methods of supplying their wants and renewing their pleasures'. The relish with which licensing departments enforce PELs surely harks back to these attitudes. The Government's licensing White Paper (Time for Reform: Proposals for the Modernisation of our Licensing Laws), published last April, was negative about musicians. There were two specific references: one explaining that s 182 should go because two musicians with amplifiers can make more noise than a band without; the other identifying a risk that musicians could face reduced opportunities for work when s 182 is scrapped. In other words, the Government knows that the new licensing regime would simply allow local authorities to fall like ravening wolves on all types of entertainment. And I have letters from Camden's Prosecuting solicitors expressing the view all public entertainment should be licensed 'for reasons of public safety' - a view shared by many local authorities. So it is essential to keep up strong lobbying of local authorities (arts departments), MPs, the Department of Culture, the Home Office, the Arts Council, and the Church of England (Board of Social Responsibility) and to generate as much media coverage as possible. I feel sure that if it were widely known that folk clubs are being forced to perform in secret locations, this would be a great story for local and even national tv. Someone must know a good producer or two...? Ultimately it is only by a shift of public opinion that the law will be changed so as to end the present oppressive regime. ham.drum@virgin.net |
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Subject: RE: HELP with UK Music Licencing problem? From: GUEST,Hamish Birchall Date: 03 Feb 01 - 06:12 AM Medieval theologians were divided over just how many angels could dance on a pin-head. Just who counts as a performer under s 182 of the Licensing Act 1964 is an equally spurious debate. The fundamental principles are: everyone's right freely to participate in the cultural life of the community, [and] to enjoy the arts... (Article 27.1 Universal Declaration of Human Rights); and freedom of expression (Article 10.1, European Convention etc). Public authorities may only interfere if there is a genuine risk to public safety. Establishing whether this is the case is a statutory duty shared by the licensee and the Environmental Health department of the local authority. Public disorder issues are dealt with by the police under separate legislation. Noise issues are dealt with under the Environmental Protection Act, and Noise at Work Regulations. Local authorities, as emanations of the state, share the duty under Article 27 of the UDHR to promote access to every form of cultural life, including sing-alongs in pubs. But the primary legislation itself (s 182), excessive fees and conditions, and a strangulation grip of enforcement together constitutes a grave violation of this right. It is a national scandal that folk clubs in England are actually being forced into hiding in order to put on performances (in Norwich at least). There really is more than a suggestion of Fascistic oppression about this, and that is what gave rise to the formulation of fundamental human rights in the first place. The Government's licensing reforms, published in a White Paper last April, mentioned musicians only twice, and both references were negative. The first announced that the reason for doing away with s 182 was because two musicians with amplifiers can make more noise than three without; the second was that musicians could face reduced opportunities for work when s 182 is scrapped. You are right to say, therefore, that we could be in a worse position if local authorities then fall on all entertainment with the same ravening intensity. There has to be a profound shift in public opinion in order to bring an end to the present oppressive regulatory regime. This will only be accomplished by persistent lobbying: of local authorities (arts departments particularly), MPs, the Arts Council, the Home Office, the Local Government Association, and lastly, but almost more important, the media. ham.drum@virgin.net
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Subject: RE: HELP with UK Music Licencing problem? From: GUEST,Hamish Birchall Date: 03 Feb 01 - 06:18 AM Sorry about the duplicated message - the first didn't seem to go through. H |
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Subject: RE: HELP with UK Music Licencing problem? From: McGrath of Harlow Date: 03 Feb 01 - 02:28 PM Hamish, what you said there confirmed my worries about the cackfisted way our legislators have when it comes to reforming absurdities, which rends to be just to compound them.
The crucial thing which has emerged from this is that there needs to be a recognition that it is unfair and unjust, and probably illegal to count people playing or singing primarily for their own benefit as "performers". Coordinated lobbying sounds like a good idea. But I think it would be helpful if we have aclearwer idea of what excatly we would ideally like the situation to be.
I think the essential thing should be that non-amplified music, where no paid entry fee is charged should be protected from any requirements for licensing, unless there is any reason to believe that a public nuisance is being created, or that public safety is being put at risk.
That would cover coffee bars, barber-shop quartets in barbershops or whatever as well as pubs. It would also be very much in-line with the Human Rights requirements. |
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Subject: RE: HELP with UK Music Licencing problem? From: The Shambles Date: 04 Feb 01 - 06:20 AM I have tended to concentrate on events where the musician is not a performer, and this is easily demonstrated to anyone wishes to see it. There are those however, who may think they have reasons not to look too hard to see this distinction?
A performer is a member of the public, whose prime reason for being present in a public house, is to make music at the publican's request because the publican is paying them for that service.
A performer is not a member of the public whose prime reasonfor being present in a public house is as a customer. ……If as a customer they may make music as an expression of their cultural identity, having obtained the publican's permission to do so, this does not then make them a performer. I could be considered to be a bit of an expert in the field of informal musical gatherings but as is probably very clear from the wording of the above, I am not a lawyer. I would be grateful if the legal-minded of us could help and comment constructively on the above, rather than just to quibble.
Even a silent acceptance by licensing authorities of this general interpretation would mean that informal musical gatherings could take place and hopefully be advertised openly, in the present legal uncertainty. This would be a good first step.
It can easily been seen why a licensing officer would see the above interpretation as a 'Trojan Horse' and one that would make enforcement of the Section 182 requirements more difficult. However the law does not exist just to make our lives difficult or to make their lives easy, or does it? Possibly this one does?
If the licensing authorities continue to force this issue, despite HM Government's clear message (above) that they should not do so, they are 'shooting themselves in the foot' I do not see that there is any choice but to use this wonderful opportunity that they have presented to us. The media will have great fun with this. It is up to us to bring it to their attention.
The next step?
The fact that only 20% of licensed premises hold PELs, it is unfortunately very easy to demonstrate the pretty disastrous effect that the Section 182 requirements have had in limiting on the community's rights of cultural expression.
For you have only to look at the musical events taking place in public houses in your area, to see that the majority of these consist of musicians working solo or in duo form. This is rarely I would suggest, entirely out of choice or entirely for artistic reasons.
A number of these events are not advertised, for fear of bringing unwelcome attention from licensing officers. I wonder how many planned events do not even get off the ground, for the same reasons? All this where there are no issues of noise or public safety. |
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Subject: RE: HELP with UK Music Licencing problem? From: The Shambles Date: 04 Feb 01 - 03:42 PM SCOFF Article here. |
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Subject: RE: HELP with UK Music Licensing problem? From: McGrath of Harlow Date: 04 Feb 01 - 05:18 PM Thanks for the article, Shambles. It strengthens the worries I have about the dangers. With an election coming up, this is a good time to write to MPS. And would-be MPs.
But I want to be a bit clearer about a few matters first, because this isn't the kind of thing I expect my MP to be too knowledgeable on - so it'd be handy to have a clearer indication of what the position is as regards proposed legislation/regulations - who has the job of drafting it, what working drafts might be in existence etc.
Something else that would be helpful would be knowing what the legal position is in other countries in the European Union, especially perhaps Ireland. And how about Scotland? (Is this something where the Scotish ASssembly no whas authority rather than Westminster? (And Wales?)
I mean, if someone else has got it more or less how we'd like it, in a way that is consistent with Human Rights requirements, that would be useful to know. No need to re-invent the wheel. |
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Subject: RE: HELP with UK Music Licencing problem? From: Richard Bridge Date: 04 Feb 01 - 07:05 PM Hamish, that was good. With respect, Sham, you can't just make up a definition and expect it to have legal effect, however good it might be. As to what one wants, many folk clubs charge entrance. Some also use PA. Politicians will never release a liceinsng system for public entertainment, so you will need to be very clear what you try to lobby for. Magrath, some public libraries will have Halsbury's laws and Halsbury's statutes, or the law department of a local university or poly. |
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Subject: RE: HELP with UK Music Licensing problem? From: McGrath of Harlow Date: 04 Feb 01 - 07:27 PM "Politicians will never release a licensing system for public entertainment, so you will need to be very clear what you try to lobby for."
Well, I agree with that last bit about needing to be very clear what you are asking for, because you just might get it - but the law at present specifically makes a blanket exception for licensed premises, for certain types of "entertainment".
And the government is apparently committed to changing the existing law - so essentially what would be likely to suit us would be that the new law makes a similar blanket exemption, but not on the basis of numbers but rather on that of non-amplification. And maybe only applying where no admission charge is involved.
And I don't think there's any need to assume that something on those lines that would necessarily be looked on unfavourably, if presented in the right way. I think it seems fairly common-sensical.
Ideally, as I've indicated, I'd like that examption to be extended to other places, like coffee bars and barber shops and anywhere where people might like to get together. But licensed premises would be a start - and they have the advantage, from a government point of view, that there is in place a procedure that is supposed to ensure that they are safe and well-conducted.
If we can't get the relevant text of the legislation off the Internet, I suppose trying to trace it down in hard cover will be the necessary course of action. However the most relevant text is not the existing law, but the proposed replacement - and that should be on the net somewhere. |
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Subject: RE: HELP with UK Music Licencing problem? From: The Shambles Date: 04 Feb 01 - 08:30 PM Thank you Richard but the present situation is that we seem to have something with a devastating legal effect, being exercised without such a definition.
I have found that most of the legal minds I have recently spoken to, know a lot less about informal musical gatherings, than even I know about the law.
Is it possible that musicians and licensees may actually be more qualified than lawyers, to determine what a performer is, or what controls are placed on their livelihoods and right of cultural expression?
Lawyers would certainly more qualified to enable any definition arrived at, to have legal effect.
Perhaps you could inform us what the Section 182 definition of a performer is? This law is the only reason such a definition is required and according to some interpretations, would appear to be anyone who makes music anywhere?
The licensee pays the performer, the customer pays the licensee. The definition really is that simple. |
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Subject: RE: HELP with UK Music Licencing problem? From: The Shambles Date: 05 Feb 01 - 02:16 AM Sorry if I am not able to see this issue in the required detached manner. I speak as one who has spent a lot of time and ennergy in organising an event, which struggles on and remains under a cloud because officals are appearing and couning me and the other musicians as performers. Section 182's numerical requirements refer to specifically to performers. Not musicians, members of the public or to customers. It would be obvious to anyone, without a hidden agenda, visiting that they are not witnessing a performance. The onus is on the officers to define the word, for they remain the only ones who are seeing performers and a performance.
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