BS: PELs in Scotland

Subject: PELs in Scotland
From: Davetnova
Date: 11 Aug 02 - 07:19 AM

While the PEl situation in England and Wales is serious, the impression seems to be that the issue does not exist in Scotland. It may not as far as pubs are concerned but it appears that the small town Highland Games are under threat from PELs. It appears that these small Games now require a PEL and must satisfy council safety , fire first aid regulations etc. This is reported to be be killing of several smaller games and I have no doubt that the principle will spread to smaller folk festivals too.

Subject: RE: BS: PELs in Scotland
From: The Shambles
Date: 11 Aug 02 - 08:01 AM

Is it true to say that the problem, in the case of the Highland Games you refer to is not limited to live music making? Is it the cost?

These events and Folk music festivals, not taking place on liquor licensed premises would of course need to be covered by an entertainment licence. Which should not really be too much of a problem, if the local authorities are sensible and help the organisers to ensure the public interest.

Is there any evidence that local authorities in Scotland are acting in the same manner that has so discredited local authorities in England and Wales?

Subject: RE: BS: PELs in Scotland
From: Ed.
Date: 11 Aug 02 - 08:41 PM

Davetnova,

Forgive me if I've misunderstood, but I'd have thought that it would be a good thing for a fesival to have to satisfy safety, fire, first aid etc.regulations...

Ed

Subject: RE: BS: PELs in Scotland
From: GUEST,Davetnova
Date: 12 Aug 02 - 04:52 AM

Ed - you are of course quite right. I am sorry if I seemed to imply safety was unimportant. My concern was more the way regulations seem to be getting more restrictive and to involve more paperwork and fees. Many of the smaller games/festivals are more akin to village Gala days and at one time it seemed all that was needed were St John's ambulance on site. Applying rules more suited to larger commercial gatherings to these seems to me to be over the top. Just an opinion and I am probably wrong

Subject: RE: BS: PELs in Scotland
From: The Shambles
Date: 12 Aug 02 - 01:55 PM

I am not too sure if the fees are set in the same way in Scotland. Here the more people, the more you have to pay. The very top fees are set on capacity for the large outdoor events, so it is quite possible that the events referred to would suffer as a result.

Some of these outdoor fees are set at quite outageous levels, tens of thousands of pounds! Partly I would suggest to ensure that anyone thinking of staging such an event, will go elsewhwere.

This is not what the fees are supposed to be used for and it would be most unfortunate if the events referred to were to suffer as a result of this.

Subject: RE: BS: PELs in Scotland
From: The Shambles
Date: 12 Aug 02 - 03:37 PM

http://www.freenetpages.co.uk/hp/trg/SCoFF/fees.htm

The above link will demonstrate the hike for large outdoor events here. It would be interesting to know if the situation is the same in Scotland.

Subject: RE: BS: PELs in Scotland
From: The Shambles
Date: 15 Aug 02 - 02:47 AM

This from uk.muisc.folk

OK - here's Howell's answer. I was probably a bit premature to say the English system will be adopted in Scotland, but my reading of the answer indicates that this must be a strong possibility in the interests of uniformity - it makes little sense to operate two separate systems to (supposedly) achieve the same end. Does the comment about abolishing "permitted hours" apply to England and Wales only?

Letter dated 31/07/02 to Rob Marris MP.

"Thank you for your letter of 15 July in which you asked why the proposed licensing system for England and Wales could not be the same as that currently operating in Scotland.

In general terms the system of licensing in Scotland provides that public entertainment is covered by a licence permitting the sale of alcohol but only within formally permitted hours. A public entertainment license is required for public entertainment which takes place on premises with extended hours. Many licensed properties in Scotland do have extended licensing hours because of the more flexible system operating there. Pubs in Edinburgh generally open later than those in London. However, there is nothing in the licensing (Scotland) Act 1976 which denies the licensing Board the power to restrict or forbid entertainment activities by conditions, either specified in byelaws or attached to licenses. Accordingly the Scottish system does not simply rely on existing health and safety and noise legislation as the Musician's Union has suggested. Indeed, licenses may be refused or revoked on the grounds that a pub has caused undue nuisance of disturbance to local residents.

We intend to abolish permitted hours and the new hours, up to twenty-four hours a day, will be tailored to specific premises. The norm would be that most premises would be open later than now. It would therefore be inappropriate to adopt the Scottish system which is based on national permitted hours. We think our approach is more flexible.

All public houses will need permission to sell alcohol. When an application for a premises license is made the applicant will be able to obtain permission for public entertainment on his premises and the sale of alcohol simultaneously. It would cost no more to obtain both permissions than to obtain one. There would be no deterrent in the system to providing live music at the venue but because it would be necessary to disclose details of the activities to take place at the premises, the licensing authority would be able to make sensible decisions about the necessary and proportionate conditions to be attached to the licence to protect local residents and the wider community.

Dr. Kim Howells MP"
Tim Willets

Subject: RE: BS: PELs in Scotland
From: The Shambles
Date: 15 Aug 02 - 02:52 AM

Accordingly the Scottish system does not simply rely on existing health and safety and noise legislation as the Musician's Union has suggested. Indeed, licenses may be refused or revoked on the grounds that a pub has caused undue nuisance of disturbance to local residents.

The fact remains that during normal premitted hours, exsisting H & S legislation (the same as elswhere) is enough to ensure the public's interests and safety. Does this letter sound a little desparate to you?

Subject: RE: BS: PELs in Scotland
From: Jock Morris
Date: 15 Aug 02 - 03:31 AM

Shambles, you say :"I was probably a bit premature to say the English system will be adopted in Scotland, but my reading of the answer indicates that this must be a strong possibility in the interests of uniformity - it makes little sense to operate two separate systems to (supposedly) achieve the same end."

Well, we've had a separate system up here for years, so I can't see Scotland changing its ways now; especially now we have a devolved parliament. We have our own legal system up here, so if we were interested in uniformity then we'd have to adopt the same laws as England as well, not just the same PEL system. Ain't going to happen anytime soon.

Scott

Subject: RE: BS: PELs in Scotland
From: The Shambles
Date: 15 Aug 02 - 07:30 AM

Sorry if I have confused you Jock but it was Tim Willets not I, that said that. I take your point however, and we are trying to follow your example not impose our Civil Servant's strange thinking on you.

For the very best 'Sir Humphreyspeak' admits that the liquor licence covers entertainment in pubs in Scotland. And that the Scottish system is "more flexible", and then says. "It would therefore be inappropriate to adopt the Scottish system which is based on national permitted hours. We think our approach is more flexible"????

So the preferred "more flexible" system changes a situation where the act of three singing in a pub make the premises unsafe, to one where the act of one person singing in a pub make the premises unsafe. Where the participant is taking part in a criminal offence, just by singing, if the licensee has not specified well in advance, the exact nature of this music in an operating plan and obtained official local authority permission.

"the licensing authority would be able to make sensible decisions about the necessary and proportionate conditions to be attached to the licence to protect local residents and the wider community".

Local authorities have always been able to make these SENSIBLE decisions. It is unfortunately that on too many occasions they have not done so. We are now expected to take on trust that these individuals, with even more power, are now able to make sensible decisions, for there is little mention of any means of the Government ensuring that they do.

I can also see a situation where in order to justify their existence, on application for the optional entertainment element, conditions will be placed on premises, where small scale (and currently exempt) music making has already taken place and could take place, without any changes actually being required.

Subject: RE: BS: PELs in Scotland
From: The Shambles
Date: 15 Aug 02 - 07:59 AM

Roger
On the Scottish question, here is my reply to Howells' letter to Rob Marris MP (sent to Mr Marris on 8 August). You might want to circulate this:

Dear Rob
I have been passed a copy of Kim Howells' letter to you concerning the question of whether the Scottish licensing regime, as it applies to live music in pubs and bars, could not be adopted in England and Wales (letter dated 31 July 2002, ref CO2/09176/02941/DC). I am sorry to say that on a number of important points the Minister's reply is misleading:

1) He wrongly implies that the Musicians' Union believes the Scottish licensing regime relies simply on existing health, safety and noise legislation where live music is provided. This is not the case: the Union recognises that in Scotland, PELs, and therefore additional safety/noise controls, apply in premises where music or music and dancing is the main business, and in bars or restaurants after 11pm.

2) Regardless of the notional powers available to licensing Boards, it remains the case that a typical pub or restaurant in Scotland can host live bands up to 11pm without a PEL, and that the safety or noise risks arising from the entertainment are regulated by UK-wide health, safety and noise legislation. The licensee is not usually required to notify the licensing authority about the provision of live music on the point of his/her liquor licence application or at any other time.
Jack Cummins, one of Scotland's leading licensing lawyers and editor of Scottish Licensing Law and Practice, has helpfully provided clarification: Jack Cummins email to Hamish Birchall, 03 August 2002
"Where application is made for an entertainment licence (eg a nightclub) then the various forms of entertainment, including types of musical entertainment, will form part of the application. But yes - for other premises I think there's an assumption that there will often (but not always of course) be some sort of music… some Boards operate a byelaw system requiring their consent for music and other entertainment (the byelaw consent is a conditon of the licence). This has been held in a landmark case to be unlawful, but there are - I think - 2 out of the 56 Boards which persist. Technically, it would be lawful for a Board to insert a condition prohibiting music, but in practice this never happens."

3) The Minister says that in Scotland 'licences may be refused or revoked on the grounds that a pub has caused undue nuisance or disturbance to local residents'. This tends to imply that this power does not exist in England and Wales which, of course, would be untrue.

Since the Licensing Act came into force in 1964, under s 20 (a) 'any person' may apply for revocation of a liquor licence in England and Wales on the same grounds, i.e. that the liquor-licensed premises causes nuisance problems for local residents. The police generally use this power, but it is also frequently used by residents' associations and even individuals.
Since December 2001 the police in England and Wales have also acquired the power to close noisy pubs immediately for up to 24 hours (Criminal Justice and Police Act 2001, amended the Licensing Act 1964).

4) It does not follow that simply because the Government is proposing to abolish permitted hours this renders the Scottish comparison inappropriate. Under the proposed new regime for England and Wales local residents' views will be taken into account when the local authority determines the operating conditions of licence applications (which include opening times). Then, as now, premises staying open late are likely to be subject to additional controls - as they are in Scotland. But up to the point where the additional controls apply the Scottish example suggests that local authorities do not need additional powers to regulate noise nuisance.

5) The fact the licence fees are to be set centrally, and there will be no premium for live music, may help encourage its provision in bars, pubs etc – but only if fees are low. The Government rather naively imagine this alone removes the deterrent. Unfortunately, it is the abysmal record of excessive local authority PEL conditions where live music is being considered that will continue to deter applicants. One of my agents told me today that in order to put on two bands in a shopping centre recently the local council produced a 15-page risk assessment to be complied with which included such gems as 'when loading/unloading the bands will take care not to run over pedestrians'.

The Government says it will address the tendency to over-regulate through 'guidance' provided by the Secretary of State.

6) Irrespective of the entertainment licensing process, it is already the case that employers have a statutory duty to make risk assessments of all activities in the workplace, and that local authorities have a statutory duty to ensure public safety in workplaces (like pubs) where activities include 'entertainment', 'practice or presentation of the arts'.
Furthermore, environmental health officers (EHOs) have the power to order activities to stop immediately if there is an imminent public safety risk, and/or to require improvements to be made to remove the risk. A trained EHO could readily tell whether an amplified sound system, whether for CDs or bands, is likely to cause problems for local residents. The cost of EHO inspections is, supposedly, covered by business rates. In short, local authorities do not need a licensing regime to make sensible decisions about 'necessary and proportionate conditions' that might apply to incidental live music in a pub or restaurant.

On the question of safety risks, apparently it is the Government's view that live televised sport in pubs is less of a risk of overcrowding and noise than, say, a professional guitarist performing unamplified in a restaurant. That alone explains Kim Howells' recent statement in the Commons (22 July, in response to Siobhain McDonagh) that live television in pubs will remain exempt from licensing as public entertainment
. Personally I find it hard to understand a Government that believes the English and Welsh public will rebel en masse against allowing live music in pubs that finishes at a reasonable hour, subject to proportionate controls already available irrespective of PELs, but will embrace without demur the proposal for pubs to open 24/7. For the moment, however, this seems to be Government's position.

Many thanks for taking the trouble to write to the Minister, and please feel free to contact me if you have any further questions on this issue.
Yours sincerely
Hamish Birchall
MU adviser – PEL reform

Subject: RE: BS: PELs in Scotland
From: The Shambles
Date: 26 Oct 02 - 09:55 AM

Some comments and questions on the latest 'thinking', on the letter from Dr Howells to Rt Hon Chis Smith MP 04/09/02.

I can confirm that at the 10 July meeting the Musicians' Union queried why the licensing regime in Scotland could not be adopted for England and Wales. The answer is that, in general terms, the licensing system in Scotland provides that public entertainment is covered by a licence permitting the sale of alcohol but only within formal permitted hours. A public entertainment licence is required for public entertainment which takes place on premises with extended hours. Many licensed premises in Scotland do have extended licensing hours because of the more flexible system operating there. Pubs in Edinburgh generally open later than those in London. There is, however, nothing in the Licensing (Scotland) Act 1976 which denies the Licensing Board the power to restrict or forbid entertainment activities by conditions, either specified in byelaws or attached to licences. Although byelaws prohibiting live music in Scotland are rare, the law provides Boards with these powers should they be necessary.

This sounds a perfectly acceptable, flexible and a far cheaper system with a good level of control, to ensure the safety and interests of the public, so what do our civil servants consider is wrong with it, that it cannot provide a starting point for reforms in England and Wales? Are public in Scotland unsafe?

This is similar to the system we propose whereby conditions would be attached to licences only where they prove necessary.

Err no, it is not at all similar and not what is proposed. First every licensee in England and Wales will have to apply and pay for a new, additional personal licence, to first enable them to run liquor-licensed premises.

Under the current proposals, any conditions regarding public entertainment, will only and can only be attached if the licensee has applied, well in advance, for the optional entertainment element of the premises licence and specified its nature in an operating plan. If this application is not made, no such conditions pertaining to entertainment will be necessary, as no public entertainment (as defined by this Bill) can take place.

Under the proposals, all licensees will have to pay the same (increased) fee, as if they were proving entertainment, even if they have not applied for the necessary permission. Which is largely the same as the current and problematical PEL process, in all but name, what ever the intended opening times of the premises were to be.

Only 5% of liquor-licensed premises have currently applied for the additional PEL. A similar take-up rate under the proposals, would be a disaster for live music, as our Government will have scrapped the 'two in bar' exemption from the PEL requirement that at least enables live music, when there are two or less 'performers'.

The Scottish system does not simply rely on existing health and safety and noise legislation as the Musicians' Union has suggested. Indeed, entertainment licences may be refused or revoked on the grounds that a pub has caused undue nuisance or disturbance to local residents.

Again this sounds like more good news to ensure the public's interests. However, in order to be revoked, this Scottish PEL that Dr Howells refers to (one issued presumably for entertainment outside of permitted hours), would first have to be necessary, applied for and issued. Without the premises holding a PEL, the existing health and safety legislation, the same as in England and Wales, must, can and does (in Scotland), more than adequately deal with this concern.

We intend to abolish permitted hours and the new hours, up to twenty-four hours a day, will be tailored to specific premises. The norm would be that most premises would be open later than now. It would therefore be inappropriate to adopt the Scottish system which is based on national permitted hours. We think our approach is more flexible.

So the reason the people of England and Wales lose the basic freedom of being able to make any (and only) live music in perfectly safe, licensed premises, is because our civil servant think the freedom to serve and consume alcohol for 24 hours, is more important and for some inexplicable reason their 'more flexible' proposals will not enable the people of England and Wales to have them both!

It would surely not stretch either principle or practice very much to specify that all liquor licensed premises, no matter what hours they were open to serve drink, could stage small scale public entertainment? Providing this entertainment was not the main purpose of the premises, between certain hours, without any advanced local authority permission having to be applied for and obtained?





All public houses will need permission to sell alcohol. When an application for a premises licence is made the applicant will be able to apply for permission to sell alcohol and put on public entertainment at the premises simultaneously. It would cost no more to obtain both permissions than to obtain one. There would be no deterrent in the system to providing live music at the venue but because it would be necessary to disclose details of the activities to take place at the premises, the licensing authority would be able to make sensible decisions about the necessary and proportionate conditions to be attached to the licence to protect local residents and the wider community.

That is one way of doing this. A way that also ensures that all licensed premises will be paying for what only 5% are currently paying, even though many may not wish to provide entertainment. But one that still apparently leaves licensees with the option of not bringing their premises up to the required standard for activities like regular public music making, long-established in the pubs on England and Wales. As this will bring a huge increase in revenue, even leaving aside the fees for the additional personal licence, do not the public have every right to expect that their interests and safety will be ensured in these public premises?

But under these proposals, should a local authority officer witness even one person making music, on these premises. Where advanced local authority permission has not first obtained for this specific activity, this person would be declared to be taking part in a public entertainment, a criminal offence and one that will automatically make the premises unsafe for the public.

This, on premises that are currently subject to regular fire and safety inspections and are already controlled and licensed for the public. Additionally under the proposals, the licensee would have paid to be judged personally capable of running and controlling the public in such an establishment. They would need to have paid for the personal licence and the premises also would have to be judged fit for the public and payment made, to hold the premises licence.

The following is the DCMS's reasoning why a totally 'spontaneous ' activity would not be considered a public entertainment and would not make the premises automatically unsafe for the public.

From Ronnie Bridgett of the DCMS to Richard Bridge 08/04/02

Accordingly, whenever a group of people in a bar break into spontaneous song, the licensee would have to
decide the point (noise level) at which he is at risk of being closed by the police because of "excessive noise" which might be disturbing the public. This is an important point for context and explains why it would not be necessary to bring spontaneous singing (music making) within the licensing regime as adequate public protection would already exist.

So that is perfectly clear then. A licensee can now be trusted to control the premises (including noise concerns), for a 'spontaneous' musical activity, 'as adequate public protection would already exist' but mysteriously not for any identical but regular or advertised event.

I have suspected for a long time that ensuring the public's interest and safety on licensed premises could not possibly be the real reason for these proposals. I think that these latest comments have only confirmed this suspicion.

To claim that there is no deterrent to premises providing live music, because all premise will be forced to pay (in theory) the same increased fee, is to ignore the many factors that are and will still be acting as a big deterrent.

The power vested now in non-elected local authority officers is effectively unchallenged and this power stands to be increased, rather than limited under the proposals, even though many local authorities have a history of ignoring Government PEL guidelines. However, they do have a very effective lobby and speak the same language as our civil servants.

Now and under the proposals, if a local authority should impose conditions or demand certain alterations before they will permit entertainment to take place, they merely have to insist (as indeed they do now), that these measures are required to ensure the public's safety. That will be a matter for the council's judgement and effectively, the end of the matter.

A licensee will have to first comply, and then if they are not satisfied will have to take legal action against the local authority to try and prove (somehow) that the local authority was wrong. There are many reasons why this would not be a wise course for a licensee to attempt.