Subject: RE: PEL: First Lord's defeat of the bill
From:
The Shambles
Date: 14 Jan 03 - 09:03 AM
The following from Hamish Birchall.
For information: I have copied this statement below to John Smith and Bob Wearn at the MU, to Kim Howells, and to the Shadow Culture Ministers Nick Harvey (Lib Dem), and John Whittingdale (Cons):
FAO Peter Marsh, MCM Research, Oxford
Peter, thanks for your time yesterday morning on the phone and for discussing in some depth the work you are currently undertaking for DEFRA: 'Research into the implications for noise disturbance arising from liberalisation of licensing laws'
I was very concerned that the specification of the DEFRA study failed to mention the Musicians' Union as an organisation that should be consulted, or the Licensing Bill's exemptions for certain forms of entertainment. However, I am grateful for your invitation to contribute my view as part of your research and trust that this will be included in the published research alongside the contributions of other organisations already consulted by MCM, such as the British Beer and Pub Association, the UK Noise Association, and the British Entertainment and Discotheque Association. I am authorised by the Executive Committee of the MU to represent its views on the implications of the licensing reform for its members.
The Licensing Bill is deregulatory insofar as it will allow pubs and bars to open later more easily, but the licensing control of live music is dramatically increased. Under the Bill, almost all public music making in England and Wales becomes a criminal offence unless licensed. This arises because a range of significant public entertainment licensing exemptions are abolished: public concerts in churches outside London, private charity fund-raising events, private events were performers charge a fee, private members clubs, events in the open on public land, and, of course, the two performer exemption in 110,000 liquor licensed premises (the 'two in a bar rule').
The new licensing criterion 'Entertainment Facilities', paragraph 3 of Schedule 1, would even render the provision of a piano in a bar a criminal offence without a licence. That is because it would be a facility for enabling persons to take part in music-making for purposes which include the purpose of being entertained. There is no requirement for anyone actually to be playing the piano, nor for the presence of an audience. The maximum penalty for unlicensed performance, or music-making facilities, is a £20,000 fine and six months in prison. This is clearly an all-embracing regime in respect of live music.
However, the Bill exempts the provision of amplified entertainment in the form of broadcast entertainment such as music or sport on widescreen tv, or the playing of recorded music, provided it is incidental to some other activity, like eating or drinking, that is not a licensable entertainment (see Schedule 1, paragraphs 8 and 7). These entertainments are often powerfully amplified. This suggests that, as far as noise and public safety is concerned, there is adequate legislative protection already in place to allow some live music to be exempt in places like bars, pubs or restaurants, at least up to 11.30pm. As far as I am aware there is no correlation between incidental live music, such as folk or jazz, with any crime and disorder issues. On the contrary, they tend to attract a good humoured crowd. On the other hand, as the Association of Chief Police Officers has pointed out, satellite tv sport is often associated with crime and disorder (the control of which is one of the stated licensing aims) which in itself frequently causes serious noise disturbance to local residents. ACPO made representations about this to the DCMS prior to the Bill's publication:
"Televised Sporting Events: The televising of live sporting events, generally upon large screen televisions, within licensed premises is a further matter of concern. Very often such events, usually football matches, are accompanied by drinks promotions, they attract large crowds and are quite frequently the source of disorder. We note that the televising of such events does not fall within the definition of entertainment. Because of these issues we are of the opinion that the applicant for a premises licence should be required to specify the intention to host such events within the operating plan. This would allow the licensing authority, taking into account police representation, the opportunity to impose conditions on the premises licence pursuant to the licensing objectives.We are cognisant of the fact that appropriate definition of the terms 'sporting event' and 'large screen television' may pose a challenge for those drafting the legislation, but do not believe the problem to be insurmountable."
In spite of ACPO's view, under Clause 17 of the Bill (Application for premises licence) only licensable activities are required to be declared on the operating schedules that must accompany the premises licence application. There is therefore no requirement to declare the provision of widescreen tv or jukebox music with the licence application, however powerful the amplification equipment installed.
The government has consistently argued that abolition of the current PEL exemption for two performers in premises with a justices on licence is necessary not for public safety, but for noise reasons: 'one musician using modern amplification can make more noise than three without'. But the Bill renders even solo unamplified performance a criminal offence unless licensed, even though research data points to noisy people outside premises as the overwhelming source of complaint (81% according to the Noise Abatement Society). Noise complaints about the playing of amplified recorded music are common, and complaints about live music relatively rare according to the National Society for Clean Air and the UK Noise Association.
The government has claimed that the Bill would result in a substantial increase in live music, particularly in pubs and bars. Some might argue that any improvement on the current 5% of 110,000 premises that could employ more than two musicians would be good (only 5% hold annual public entertainment licences). The MU does not agree, however, with the government's view. Culture Minister Kim Howells himself has already suggested reasons justifying the MU position: in a letter to Chris Smith MP sent on 4 September 2002, he said that if the MU were to lobby for satellite television to become a licensable entertainment this would be 'resisted robustly' by the leisure industry. He did not go on to explain why the leisure industry took this position, but it seems reasonably clear: the leisure industry believes that if satellite tv were a licensable entertainment, most smaller bars and pubs where it is provided would be subject to the same onerous conditions local authorities are prone to impose on any live music. The industry is unpersuaded by government assurances that local authorities will adhere to published guidance over licensing conditions, many of which have major cost implications, such as the provision of door supervisors, a lower capacity set for the venue, installation of more toilets, double glazing etc. These conditions are relatively common now, even where a public entertainment licence is being sought to allow unamplified folk sessions. Although the Bill provides a right of appeal to Magistrates over disputed conditions, only businesses with at least £5,000 to spend in the courts could contemplate a legal challenge. In the transition from the present to the new regime, most landlords will want their application to progress as smoothly as possible. Declaring licensable entertainments almost always leads to local objections, and this could delay the application significantly. You claimed that only residents in the 'immediate' vicinity of licensed premises would be allowed to object. But I couldn't find the term 'immediate vicinity' in the Bill, Explanatory Notes, Framework for Guidance, or Regulatory Impact Assessment.
Licensees of smaller premises will be wary of applying for permission to host live music - far simpler to keep the satellite tv and jukebox which are exempt. Thousands of licensees could therefore lose their present right to host one or two performers, and any live music (or dancing) at all will become a criminal offence in such premises. Of course, it would be possible for them to apply at some later stage, but that process will be bureaucratic and time consuming: it will require consultation with the police, environmental health, fire service and the public. A fee will be payable for the variation procedure, the amount has yet to be decided. If variation is not a viable option, only five events a year could be hosted via the Temporary Event Notice procedure (so long as no more than 499 people participate, and the event lasts no more than 72 hours).
As we discussed, MU concerns are shared by the Joint Committee on Human Rights (JCHR) which has written to Baroness Blackstone (5 December 2002) questioning the Bill's apparent inadequacy in protecting resident's rights under Article 8 of the European Convention. The Committee also shared the MU view that the proposed restrictions on musicians' may amount to a violation of their right to freedom of expression under Article 10 [Joint Committee on Human Rights, 'Scrutiny of Bills: Progress Report, First Report of Session 2002-03', HL Paper 24, HC 191, published 20 December 2002]. I understand that the Department for Culture responded yesterday to the JCHR.
In conclusion, the licensing exemption for satellite tv and jukebox music, coupled with the likely increase in pubs and bars opening after midnight, has, in my view, the potential to significantly increase noise disturbance to local residents. This would not be because of any live music, but rather because of the nature of the exempt entertainments and the premises likely to take full advantage of that exemption.
Hamish Birchall
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