Licensing Bill - How will it work ?

Subject: RE: Licensing Bill - How will it work ?
From: The Shambles
Date: 30 Mar 04 - 06:23 PM

On the same basis any "spontaneous" music in a bar, where there is no admission charge gives rise to no profits as defined by the guidance and hence is not licencable and therefore can take place legally anywhere.

Who can find any holes in that argument?

It rather depends on who is making it and who is trying to find holes in it. I fear that if it were LAs wishing to find holes - they would be able to find plenty of support from the words of the Act itself. As Kevin points out, the guidance is only that or secondary legislation - it is not the words of the Act. But the guidance definion of the word "spontaneous" is interesting. Or rather what is not this.

Subject: RE: Licensing Bill - How will it work ?
From: McGrath of Harlow
Date: 30 Mar 04 - 06:39 PM

"Spontaneous" - not at all clear what that means.

I'd say it means voluntarily and un-coerced, and that it does not exclude activities which have been planned in advance. But there are those who would be likely to interpret it far more narrowly.

But has "spontaneous" actually got through to the Guidance? And if so, what is the relationship between it and "incidental". If something is "spontaneous" does that mean it is counted as "incidental"?

I think the number of cases where clubs are going to be allowed to use rooms in pubs for free, so allowing that "godsend" which Richard refers to, are going to be few and far between these days. At one time this happened quite often, because the landlords knew the drinks sales would go up on a club night, but I don't think it's an arrangement found very often now, especially with the general loss of function rooms.

Subject: RE: Licensing Bill - How will it work ?
From: RichardP
Date: 31 Mar 04 - 07:54 AM

1)    Spontaneous is indeed retained, or more accurately, defined and refined in the Guidance.

2)    Incidental is associated with some other entertainment, such as the incidental music for a play. Musicians accompanying Morris or Mummers would be incidental - but very obviously not spontaneous, because no-one is accidentally dressed for either.

3)    The Guidance is equal in importance to the wording of the act for two reasons:

       a) The Act says that it is to exist and is to be followed by the Local Authorities

       b) It is a document that is approved by both houses of parliament just as is the Act. However it is not subject to all of the line by line amendment by parliament.

       c) It is the norm for Acts of Parliament to be supported by secondary legislation - for instance the principles for establishing constituency boundaries are in an Act. Every individual boundary is defined by secondary legislation. The latter are far more meanigufl than the former.

Richard

Subject: RE: Licensing Bill - How will it work ?
From: GUEST,Commentator
Date: 31 Mar 04 - 08:31 AM

I have been introduced to this discussion and would add the following. For reasons that are patently obvious I will neither identify myself nor the location but I know a pub where a Folk Club has been regularly held for many, many years booking all manner of folk artists. It intends to carry on regardless of the LA until such times as it is rumbled or someone rats on it. Come that day it will stop its` club, the "members" being aware of this, and just continue running its` licensed business.It will be a great loss to all.

Subject: RE: Licensing Bill - How will it work ?
From: Kevin Sheils
Date: 31 Mar 04 - 09:35 AM

Richard P

as you clearly quoted from 5.16 Secton 5.16 specifies that private events are not subject to licensing unless run to provide a profit to the premises manager/owner and/or to the event organiser. etc. Whilst this appears to retain the old private "members and guest only" loophole that many clubs run under in Pubs, and seems to imply what you state, typically for this legidlation and guidance section 5.17 could be interpreted as disallowing this loophole in the case of pubs, hotels etc and I quote

5.17 A private event – for example, a wedding reception - held in a separate room of a
public house or a hotel would normally be an event which needs to be covered
by the premises licence held by the public house or hotel. For such events, the
management of the premises would normally be making available entertainment
facilities (for example, a dance floor) and the premises (the room) for the
performance of music for the entertainment of those attending. This would
unquestionably be done for a charge and with a view to profit.

I think the important words in that section are the ones Ive highlighted in bold. I think it likely that even if no charge were being made for the room a LA would interpret the management of the premises as providing the room with a view to profit. The word unquestionably is a problem to me.

Subject: RE: Licensing Bill - How will it work ?
From: McGrath of Harlow
Date: 31 Mar 04 - 09:37 AM

So what is the definition of "spontaneous" officially laid down by the guidance? (I knowmnit's downloadable from that link I gave earlier, but I haven't had a chance to do that yet.) From what you say about Morris dancing, Richard, it appears that it involves that spur-of-the-moment element, which means it is far more restrictive than is really justified.

"Acting, done, occurring, without external cause; voluntary, without external excitement...[f LL spontaneus (sponte of one's own accord)]. (Oxford Concise Dictionary)

Still, if there's a legally binding definition laid down it doesn't affect it even if it's completely off the wall, I accept that it's still what we have to work with. (Though would a questionable definition laid down in a guidance document, rather than in an Act, necessarily be legally binding?)

Subject: RE: Licensing Bill - How will it work ?
From: The Shambles
Date: 31 Mar 04 - 11:23 AM

2)    Incidental is associated with some other entertainment, such as the incidental music for a play. Musicians accompanying Morris or Mummers would be incidental - but very obviously not spontaneous, because no-one is accidentally dressed for either.

*Smiles* There is a problem with this. As the music for (exempt) Morris dancing is exempt under the Act, not because it is considered as incidental live music at all. It is exempt because it is "integral" to the Morris performance.

Also the currently exempt incidental 'recorded, music, like a juke box for example, will be exempt under the Act not because it is incidental to some other form of entertainment (licensable or not).

It is exempt because it is incidental to the main purpose of the venue. This logically will now also be the case for incidental live music and presents a better chance than try the 'spontaneous' route.

Subject: RE: Licensing Bill - How will it work ?
From: The Shambles
Date: 31 Mar 04 - 11:34 AM

I have been introduced to this discussion and would add the following. For reasons that are patently obvious I will neither identify myself nor the location but I know a pub where a Folk Club has been regularly held for many, many years booking all manner of folk artists. It intends to carry on regardless of the LA until such times as it is rumbled or someone rats on it. Come that day it will stop its` club, the "members" being aware of this, and just continue running its` licensed business.It will be a great loss to all.

If it (or any of us ) can live long enough for the new Act to come into force - there will be no need to stop. All the licensee has to to at that point, is to apply for permission and specify the nature of the event they intend to stage. They will not need to state that they are already doing it.

Subject: RE: Licensing Bill - How will it work ?
From: Richard Bridge
Date: 31 Mar 04 - 11:42 AM

No, RichardP, subordinate legislation is not equal in weight to primary legislation. SIs have been held invalid because they were not in accordance with their Acts. Here there is a case in point. What the guidance says about "profit" is quite simply not what the act says. It the LA applies the Act it will have to refuse to follow the guidelines, but if it follows the guidelines it will be in breach of the Act.

Unless something changed while I was busy, "spontaneous" is not mentioned or defined in the Act. Accordingly, whatever the guidelines say (since it is NOT provided for them to amend the Act) a "spontaneous" performance can be a breach of the Act just as much as a planned one.

I suppose the courts might, by application of the Human Rights Act, be able to interpret "incidental" in a way that gives weight to spontaneity, but it is not a natural stretch of the word. Mind you, if they can re-write statute as they did in R-v-A (No2) (about cross examination in rape trials) almost anything is possible.

Subject: RE: Licensing Bill - How will it work ?
From: RichardP
Date: 31 Mar 04 - 01:01 PM

Richard, of course you are right if there is a conflict (i.e. totally incompetent drafting). In this case the Act requires the Sec of State to prepare Guidance and requires Local Authorities to have due regard to it.

If anyone can find a genuine conflict between the two the Act will have precedence. However one of the problems in the debates on the Act was that the Minister said all sorts of desirable things, which were not inconsistent with the wording but were not explicit in it. At least some of those items are explicit in the Guidance and so in those cases the current Minister has now fulfilled the promise in debate.

Richard P

Subject: RE: Licensing Bill - How will it work ?
From: McGrath of Harlow
Date: 31 Mar 04 - 01:34 PM

It's a pretty lengthy document, and in an unwieldy format that makes it hard to search, There is a section headed "Spontaneous singing. music and dancing"- but I couldn't find any definition of "spontaneous". Perhaps it's somewhere else in the 199 page document.

The nearest that paragraph comes to an implied definition is "In the case of genuinely spontaneous music (including singing) and dancing, the place where the entertainment takes place will not have been made available to those taking part for this purpose". Which leaves it wide open, but doesn't seem to insist on it being spur of the moment.

But it's bloody comnfusing. What does "been made available" mean? Would "Is it all right if we play in here on Tuesday?" followed by a "Yes" count as "made available"? And what is the implication of the word "entertainment" here? Presumably this has to mean something over and above people merely making music for their own enjoyment. And that goes against the "spur-of-the-moment" interpretation of "spontaneous".

Subject: RE: Licensing Bill - How will it work ?
From: Richard Bridge
Date: 31 Mar 04 - 03:02 PM

First, both the minister and his servants told many outright lies about the meaning and effect of the bill.

Second, quite obviously, the moment that a landlord/other controller of premises finds that "spontaneous" entertainment has broken out, if he fails to bring it instantly to an end, he/she is then making the premises available for the entertainment.

Third (I have not been to re-check the Act), if my memory is accurate, any musician who has lent another an instrument is not within the performer's exemption for liability, so "spontaneous" performers could face liability even though the landlord did not.

Subject: RE: Licensing Bill - How will it work ?
From: McGrath of Harlow
Date: 31 Mar 04 - 03:22 PM

"quite obviously"

I don't thing "obviously" is a safe word to use of anything in the music related part of the act.

"Made available" could mean merely being allowed to use, or it might mean something more like, having a room made exclusively available. But if it was exclusively available it would seem that it would have become a private event, and therefore Secton 5.16 could apply - which specifies that "private events are not subject to licensing unless run to provide a profit to the premises manager/owner and/or to the event organiser".

But of course, that's the Guidance, not the Act, which seems to say something completely different.

As I said, "obvious" isn't the word for anything here.

Subject: RE: Licensing Bill - How will it work ?
From: The Shambles
Date: 31 Mar 04 - 05:05 PM

Richard, of course you are right if there is a conflict (i.e. totally incompetent drafting). In this case the Act requires the Sec of State to prepare Guidance and requires Local Authorities to have due regard to it.

If anyone can find a genuine conflict between the two the Act will have precedence. However one of the problems in the debates on the Act was that the Minister said all sorts of desirable things, which were not inconsistent with the wording but were not explicit in it. At least some of those items are explicit in the Guidance and so in those cases the current Minister has now fulfilled the promise in debate.

Richard P - are you related to old Sir Humphrey Appleby by any chance?
Would it not have been better if they had just concentrated on getting the words of legislation right? Rather than trying to make it sound like they had, just in order to get the Lords to pass the bloody thing. Then we would not all be so concerned now about damage limitation.

Carol singers we were told by the DCMS, would under the Act, require supermarkets to apply for Premises Licences and permission to provide this regulated entertainment. This may have been before the exemption for incidental recorded music was extended to include incidental live music - but I have not seen any public change in this position.

If supermarkets do not now need additional licensing for the incidental recorded music many of them kindly provide for us, and this will not be rquired under the Act - why would the incidental live music performed by carol singers in supermarkets not also be exempt?

Subject: RE: Licensing Bill - How will it work ?
From: Gareth
Date: 31 Mar 04 - 06:09 PM

Hmmm ! Slight drift, but this reverts back to other problems, mentioned in other threads -

Monday following yet another seroius assult and disorder in a bar in the centre of Pontypridd the local Plodds acted and closed it - Or so the "Echo" said.

Tuesday The owners appealed to the High Court. Result ????
Bar stays open - Untill a full hearing at a date to be advised but no earlier than July.

Now good people - Pray tell us why reform was not needed ?? The Plodds acted under existing legislation, 'cos the NEW ACT ain't enforcable yet, and as I said in an earlier thread, can not be used properly.

I appreciate that yer average Folk Sesion don't put a man on a life support machine, and I have no doubt the PEL strictures are over kill, but .......

Personally Public Health can deal with these matters more efficiently.

Gareth

Subject: RE: Licensing Bill - How will it work ?
From: Richard Bridge
Date: 31 Mar 04 - 06:22 PM

McGrath, interesting idea that "making available" only means "making available" if the landlord has prior notice. I don't see how it could be read that way, but it is not wholly impossible.

My recollection is that 5.16 is completely incompatible with the Act, on "profit"

Gareth, give me the name of the case and I might (if I have any spare time) be able to get enough of the facts to find out why the high court overturned the closure. With what we have so far, it is anyone's guess, and it could be anything from corruption to incompetence.

Subject: RE: Licensing Bill - How will it work ?
From: McGrath of Harlow
Date: 31 Mar 04 - 06:29 PM

We've yet to see whether the new legal structure will actually be any more effective than the present one. If they've made as much of a
Cod's Arse when it comes to the bits to do with this kind of stuff as they have of the bits to do with music, God help us all.

It sounds to me as if the police might not have had the most effective lawyer arguing their case in court.

Subject: RE: Licensing Bill - How will it work ?
From: RichardP
Date: 31 Mar 04 - 06:53 PM

Shambles. I would be amazed if you could produce evidence that anyone said that supermarkets would need to apply for a premises licence just to permit carol singing. I doubt that there is a single supermarket in the land that does not sell alcohol. A premises licence is required to sell alcohol and indeed they all hold a current licence at present. I am not sure whether they need the licence to explicitly state that they play muzak - although it ought to. Certainly, the muzak is not incidental to another entertainment so it is not covered by the incidental consideration. The wise supermarket will include the fact that it may have carol singers in its initial premises application - and there is little likelihood of anyone raising a valid objection that the carols singing will breach the licencing objectives so the licence would cover it from the start. Otherwise the occasional event provision would be sufficient to cover it.

Subject: RE: Licensing Bill - How will it work ?
From: McGrath of Harlow
Date: 31 Mar 04 - 07:22 PM

Interesting point about the implication of supermarkets having to have a drinks licence which could be extended. The same would apply of course to off-licences, which might actuallt be quite good places to have the odd session, if the proprietors were up for it.

I think what Shanbles might have had in mind more, though, was the position of shopping malls or railway station precincts and carol singers, where I am pretty sure it was indicated at some stage of the debates that it was envisaged that they would need a licence to allow this kind of activity.

Subject: RE: Licensing Bill - How will it work ?
From: GUEST
Date: 31 Mar 04 - 07:31 PM

From Compact Oxford English Dictionary

spontaneous

• adjective 1 performed or occurring as a result of an unpremeditated impulse and without external stimulus. 2 open, natural, and uninhibited. 3 (of a process or event) occurring without apparent external cause. 4 Biology (of movement or activity) instinctive or involuntary.


I think an English court would look to an English dictionary rather than the American Websters. So if it is planned in advance it won't be spontaneous.

Subject: RE: Licensing Bill - How will it work ?
From: McGrath of Harlow
Date: 31 Mar 04 - 07:51 PM

But it could be if they were using the Concise Oxford Dictionary, which is the one I quoted... Which is bigger.

In any case the second meaning given in the Compact version doesn't imply anything about excluding planning in advance. "Open, natural, and uninhibited" sounds an excellent way of summing up a good session.

Anyone got a fullsize Oxford Dictionary, or access to its website?

Howevere that wouldn't settle anything - I'm sure that it would show that the word has been used and is used in a range of meanings, like any number of words are. That's why words get re-defined for particular legislative purposes.

Subject: RE: Licensing Bill - How will it work ?
From: The Shambles
Date: 01 Apr 04 - 03:41 AM

Shambles. I would be amazed if you could produce evidence that anyone said that supermarkets would need to apply for a premises licence just to permit carol singing. I doubt that there is a single supermarket in the land that does not sell alcohol. A premises licence is required to sell alcohol and indeed they all hold a current licence at present.

I would be interested to see where you can find 'incidental' as being considered as incidental only to some other entertainment. And how that works for incidental recorded music, when a juke box is the only 'entertainment' provided?

5.18 (page 49) of the latest draft guidance -: The incidental performance of live music and the incidental playing of recorded music may not be regarded as the provision of regulated entertainment activities under the 2003 Act in certain circumstances. This is where they are incidental to another activity which is not in itself entertainment or the provision of entertainment facilities. This exemption does not extend to the provision of other forms of regulated entertainment. -

The Government 'spin' has always tried to claim that there was only to be one Licence (one ring to rule them all etc) but it has always been clear that in practice the entertainment licence concept was still very much alive. This has caused and is still causing confusion.
Not to mention that making music is now thought to be the same crime as selling alcohol is, without the same Licence.

There is a diference between a supermarket (or indeed an off-licence) needing a Premises Licence for the licensable sale of drink and needing to obtain additional in that Licence permission to also provide licensable regulated entertainment. Which was certainly the argument (before the exemption for incidental recorded music was extended to incidental live music) and is the point I am making.

They do not currently need to do this - to provide incidental recorded music and they will not under the Act. So now it follows that they will not require to specify any incidental live music that may take place in their Premises Licence.
   
I think what Shanbles might have had in mind more, though, was the position of shopping malls or railway station precincts and carol singers, where I am pretty sure it was indicated at some stage of the debates that it was envisaged that they would need a licence to allow this kind of activity.

It would appear from 5.14 (page 48) of the latest draft guidance - that it is still envisaged that they will have to. It should be noted that there is nothing in the legislation to prevent shops, stores and supermarkets proposing the inclusion of regulated entertainment in their premises licences. For example, many shops may decide to present a variety of entertainment at Christmas and other festive times or more generally in support of promotional events. Or is there a (Sir Humphrey style) difference between having to - and the legislation - having nothing to stop them from applying for the additional entertainment permission. What a mess!

And again we now have in the Guidance, (the extract that Richard P has suppied in this thread) the DCMS trying to change the words and implications of the Act, into something different. The need for LAs to issue Premises Licence (regulated entertainment permission) to whole public areas. No wonder we are confused. When all that is needed is for LAs to consider this live music to be as incidental live music and exempt, as recorded incidental music in the same places automatically is and would continue to be.

Subject: RE: Licensing Bill - How will it work ?
From: GUEST,Commentator
Date: 01 Apr 04 - 05:48 AM

Shambles,
         Correct me if I have got the wrong ened of the stick but I thought the proposal is that in order to have official permission to hold public entertainment involving more than two performers in the premises one would have to purchase a licence.

Subject: RE: Licensing Bill - How will it work ?
From: McGrath of Harlow
Date: 01 Apr 04 - 05:54 AM

You have, Commentator. The two-in-a-bar exemption currently operating in pubs is to be completely abolished.

Subject: RE: Licensing Bill - How will it work ?
From: The Shambles
Date: 01 Apr 04 - 06:20 AM

Unless something changed while I was busy, "spontaneous" is not mentioned or defined in the Act. Accordingly, whatever the guidelines say (since it is NOT provided for them to amend the Act) a "spontaneous" performance can be a breach of the Act just as much as a planned one.

Yes and as the word 'incidental' does appear as an exemption in the Act but is not defined in it and the latest draft guidance has fudged and side-stepped it, there does not seem too much point in us worrying too much about a word that does not appear in the Act, but in contrast - the latest draft guidance defines - as if it did. Addressing the following, I would suggest will prove to be far more important. As it should keep our lawyers in work for many years to come.

Incidental Music

5.18 (page 49) of the latest draft guidance -: The incidental performance of live music and the incidental playing of recorded music may not be regarded as the provision of regulated entertainment activities under the 2003 Act in certain circumstances. This is where they are incidental to another activity which is not in itself entertainment or the provision of entertainment facilities. This exemption does not extend to the provision of other forms of regulated entertainment.

Whether or not music of this kind is "incidental" to other activities is expected to be judged on a case by case basis and there is no definition in the 2003 Act. It will ultimately be for the courts to decide whether music is "incidental" in the individual circumstances of any case.

In the first instance, the operator of the premises concerned must decide whether or not he considers that he needs a pemises licence. One factor that is expected to be relevant is "volume". Common sense dictates that live or recorded music played at volumes which predominate over other activities at a venue could rarely be regarded as incidental to those other activities. So, for example, a juke box played in a public house at moderate levels would normally be regarded as incidental to the other activities there, but one played at high volume would not benefit from this exemption.

Stand-up comedy is not regulated entertainment and musical accompaniment incidental to the main performance would not make it a licensable activity. But there are likely to be some circumstances which occupy a greyer area. In cases of doubt, operators should seek the advice of the licensing authority, particularly with regard to their policy on enforcement.

How about this as a example of useful guidance?
In the first instance, the operator of the premises concerned must decide whether or not he considers that he needs a pemises licence.

So a the operator of a cafe, not serving alcohol, who wishes to have a juke box or a singer/guitarist as background, will go and ask the local authority if they should pay the very same licensing authority for a Premises Licence, to run for the life of the business and an annual inspection charge.

I wonder what the local licensing authority will say? Or where they will place the volume level or other factors that makes the activity licensable?

Subject: RE: Licensing Bill - How will it work ?
From: Gareth
Date: 01 Apr 04 - 09:14 AM

I have responded to Richard Bridges by PM - More will be posted when possible.

Gareth

Subject: RE: Licensing Bill - How will it work ?
From: RichardP
Date: 02 Apr 04 - 03:54 AM

Below is a quotation from the guidance drawn attention to by Shambles:

In the first instance, the operator of the premises concerned must decide whether or not he considers that he needs a premises licence.

On the face of it his argument that it is nonsense in the specific case he highlights appears to be a strong one. However that is the difference between the law and day to day English.

1)    Think of the alternative - that the Licencing Authority would have to make the first assessment. That would be a free licence for snooping at the Council Tax-payers expense.

2)    Someone has to be the initiator of a licence application. If the Licencing Authority was the initiator - a bootlegger would not be committing an offence under this Act until the Licencing Authority decided that a premises licence was required.

3)    If the Licencing Authority was to be the initiator, it would already have compromised its objectivity prior to considering a marginal application when it was received.

4)    Without maliging the legal professions, it is their job to protect their clients interests by making the maximum use of any loose or wooly wording in legal documents, so the draftsmen have to think like a very competent lawyer and block the routes for weaseling to evade the intention of the law. That statement is nto intended to malign anyone, just to recognise that each must fulfil its proper role in a relationship which is essentially confrontational.

The wider lesson to be dawn from the above is that it is perfectly proper to argue about the objectives of any Bill, Act or Guidance. It is proper to argue about the way in which they seek to meet the objectives. But it is normally a sterile approach to try to base that argument on simple disagreement with the words in which those objectives or actions are described.

Where objectives are wrong - condemn them.

Where the details do not achieve the stated objective - condemn them.

If the words are weird - thats legislators for you.

Richard

Subject: RE: Licensing Bill - How will it work ?
From: The Shambles
Date: 02 Apr 04 - 05:54 AM

Where the details do not achieve the stated objective - condemn them.

I think that one will do on its own - but more positively I think that we have to try to make the details work to encourage live music - even if that was never one of the Act's objectives.

The point I was making is that the operator of a cafe - even after or perhaps especally after reading this guidance - would not know if they required a Pemises Licence to have background live music, although they may be pretty sure that they did NOT need one for a juke box or MUZAK.

If they were brave enough to go ahead with backgound live music, it has to be accepted from reading the guidance, that the line is a very thin one - one as subjective as the level of volume? They would have to be brave, as they would have to be prepared to be prosecuted and take it to court, if their concept of incidental, was not the same as the licensing officers. The result being that they would pay for a Premises Licence or more likely not hold any live music at all - but continue with recoreded music. Does all that sound familar?

The accepted status quo among licensing officers has always been in general, that recorded music is OK but live music is 'iffy'. That is set to continue as old habits die hard and this bad habit is sadly present in the drafters words in this guidance, and that will be latched onto. However and importantly, the words of the Act now make no such distinction. If recorded music is exempt, it is only so because it is incidental. Where this recorded music is considered as incidental and exempt - then live music is also exempt. The Act may not define the word but it does not and cannot have one meaning for recorded music and another for live music.

I feel the drafters of this guidance are trying - by referring for example to the playing of incidental recorded music and the performance of incidental live music - to make or perpetuate a distinction between them, that the words of Act do not make. I would suggest that the word in the final guidance should be the same for both.

For this guidance then suggests that the oprerator ask the licensing authority, who will have read exactly the same guidance. As it is them the operator is going to pay his Premise License fee and the annual inspection charge to - is it really likely that cash-strapped licensing officers with the mindset that they have shown us - are likely to advise this operator that he does not have to pay them?

Or are they to follow the guidance 5.14 (page 48) of the latest draft guidance? It should be noted that there is nothing in the legislation to prevent shops, stores and supermarkets proposing the inclusion of regulated entertainment in their premises licences.

Even though the above rather assumes that these premises will already hold one and ignores those premises, with no licensable activities, that may not need to pay for one.

This is why I think it so important that we ensure that our local licensing committees are the ones that will set policy on matters like - what is incidental. That these are set on what the words of the Act say - rather than what civil servants (in this guidance) and local officials tell these committees, what the Act says.

Important to remember also that our MPs will first have to pass this guidance.

Subject: RE: Licensing Bill - How will it work ?
From: The Shambles
Date: 02 Apr 04 - 06:05 AM

Is it the case that a playable piano in a pub is an entertainment facility?

Is it the case then that a juke box in a pub - is not?

Or (as per the guidance) does a loud juke box then become a entertainment facility?

Is the poor old piano - always an entertainment facility - no matter how hard you bash it?

Subject: RE: Licensing Bill - How will it work ?
From: McGrath of Harlow
Date: 02 Apr 04 - 06:37 AM

Important to remember also that our MPs will first have to pass this guidance.

Is that actually the case? Not that it makes much difference - they'll pass anything they are told to pass. However surely the relevant minister has the delegated authority to approve the guidance without bringing it back to Parliament?

And once again, the assumption keeps on being raised that every kind of "premises" already has to have a licence, and therefore it's just a question of adjusting that as appropriate. Remember, the definition of "premises" in the Act is "any place" - and even in the 21st century there are still quite a lot of places which have never needed to have any kind of licence.

The underlying philosophy of the Act and the Guidance is, at bottom, that we are only entitled to do what we are allowed to do by the authorities, and that we have no prior rights which need to be respected. Even when the authorities see it as appropriate to be relaxed in what they allow us to do, this is not an acceptable basis for a free society.

Subject: RE: Licensing Bill - How will it work ?
From: DMcG
Date: 02 Apr 04 - 12:39 PM

Ok, McGrath, here's the entry from the 10 volume edition of the OED, leaving out all the explanatory notes and references:

1a) Of personal actions: acting or proceeding entirely from natural impulse, without any external stimulus or constraint; voluntary and of own's own accord.

b) Of persons: Acting voluntarily and from natural prompting

c) Of utterances etc: Coming freely and without premeditation or effort.

2) Of motion: Arising purely from, entirely determined by, the internal operative or directive forces of the organism.

3) Of natural processes: Occuring without any apparent external cause; having a self-contained cause or origin.

4a, 4b are phrases 'spontaneous generation', 'spontaneous combustion'

5a) Growing or produced naturally without cultivation or labour.
b) Freq. with fruits, products, productions
c) Produced, developed, coming into existence, by natural processes or changes.

6) Quasi-adv. next

-----------------------

It looks to me as if a session could be spontaneous or not depending which of these definitions you use. For every person, 1a applies, but to the LA (1c) requires no premeditation, so a session would not be spontaneous.

Subject: RE: Licensing Bill - How will it work ?
From: RichardP
Date: 04 Apr 04 - 05:07 AM

McGrath's last posting certainly gets to the fundamentals of the rule of law.

The fundamental basis of society is that one is not allowed to undertake certain acts that are contrary to the common good as established by the society. The most liberal way of establishing what is in the common good is to make an assumption that things are in the common good unless defined as being against that good. Whatever the method of deciding what is against the common good can conveniently be identified as "the authorities". If the authorities are established as representatives of the generality by a fair method then they are justly entitled to be regarded as establishing a liberal society.

This is certainly not the place to divert into discussion of the British electoral system - so I will make no comment on it. However, the Act having passed parliament is a valid (if not optimal) basis for society to operate.

Richard

Subject: RE: Licensing Bill - How will it work ?
From: The Shambles
Date: 04 Apr 04 - 06:30 AM

However, the Act having passed parliament is a valid (if not optimal) basis for society to operate.

No matter what tactics where used to get this Act passed, I think we can all agree on that. However, we must also recognise that the 'spin' was not and is not the words of the legislation. This latest draft 'statutory' guidance is continuing this 'spin'. And if this is passed/accepted, it will only result in even more confusion between what the words of the Act say and the guidance/'spin'. And between what music is licensable and what is not, and for what reasons.

I am not sure if our licensing officers see it this way, but as far as I can see, under this guidance to the the Act, the playing of any recorded music is now licensable. As is the performance of any live music - unless in is considered (in the first instance by the licensing authority but ultimately by the courts) to be 'incidental' (apart of course, from all the many other specific exemptions).

Local authority licensing officers, who have traditionally considered recorded music not to be licensable, and persecuting live music, to be their main goal, will be reading this guidance in orded to form their local licensing policies. The guidance helpfully tells us all that, the Act does not define the word 'incidental'. It also tells an operator that their must first decide if they need a Premises Licence. It also tells us all (including LAs) that in cases of doubt, the operator should seek the advice of the local licensing authority. Which is not really a lot of help as this body will be reading the very same guidance.

So the guidance is fudging and passing the whole shebang to the local licensing authority (and the courts. Which means in effect, that it is being left to the same licensing officers, whose additudes have caused most of the the problems to live music in the first place. So this is why it is so important for us all to get involved at this local level and to do it NOW. To get our local councillors who sit on the licensing committees to set policy based on the interpretation of the Act/guidance, that is the best one for out local areas.

So that these very same licensing officers are carrying out the policies towards live music, that we wish to see - rather than making policy and interpretations, that we do not.

Subject: RE: Licensing Bill - How will it work ?
From: McGrath of Harlow
Date: 04 Apr 04 - 11:15 AM

If dictionary definitions had legal force in this context I suppose you could argue that playing music is "a personal action", and therefore 1a applies, so premeditation is not implied for it be to counted as "spontaneous"; singing a song on the other hand is an utterance, and 1c would apply.

Am I right in taking it that there is in fact no definition of what is meant by "spontaneous" in this guidance document? I imagine that in the absence of such a definition a court would probably not use a dictionary, but would dredge through ancient law books to find precedents. Or, since the word "spontaneous" does not appear in the Act, it would probably treat this highly ambiguous section of the guidance as essentially meaningless.

Subject: RE: Licensing Bill - How will it work ?
From: The Shambles
Date: 04 Apr 04 - 11:42 AM

I had better correct what I said. Looking at the words of the Act. It does in fact also refer to the 'performance of live music' and to the 'playing of any recorded music'.

Schedule 1.

2. (1)The descriptions of entertainment are-

(a)a performance of a play,

(b)an exhibition of a film,

(c)an indoor sporting event,

(d)a boxing or wrestling entertainment,

(e)a performance of live music,

(f)any playing of recorded music,

(g)a peformance of dance,

(h)entertainment of a similar description to that falling within paragraph (e)(f) or (g),

where the entertainment takes place in the presence of an audience and is provided for the purpose, or for purposes which include the purpose, of entertaining that audience.

(2)Any refernce in sub-paragraph (1) to an audience includes spectators.

(3)This paragraph is subject to Part 3 of this Schedule (intepretation).


3 (1)In this Schedule, "entertainment facilities" means facilites for enabling persons to take part in entertainment od a description falling within sub-paragraph (2) for the purpose. or purposes which include the purpose, of being entertained.

(2)The descriptions of entertainment are-

(a)making music,

(b)dancing,

(c)entertainment of a similar description to that falling within paragraph (a) or (b).

(3) This paragraph is subject to Part 3 of this Schedule (intepretation). -

The Act's words for the incidental exemption aspect. From

Part 2 EXEMPTIONS.

Music incidental to other activities

7 The provision of entertainment consisting of the performance of live music, or the playing of recorded music is not to be regarded as the provision of regulated entertainment for the purposes of the Act to the extent that it is incidental to some other activity which is not in itself-

(a) a description of entertainment falling within paragraph 2, or

(b) the provision of entertainment facilities.

Given the words of the Act, I am not sure how the Guidance 5.18 (page 49) can consider a juke box (at any volume) not to be first a licensable entertainment facility, if a playable piano is still to be considered by the DCMS as a an entertainment facility? Perhaps somwone can explain?

Volume is not a word that appears any part of the part of the Act concerning what is incidental and the guidance, (laughingly) refers to what common sense dictates. However, common sense would also dictate that before the recorded music emanating from a juke box could be considered as incidental recorded music and exempt - the juke box would be first licensable as an entertainment facility. Or can the drafters of this guidance be selective with common sense?

Subject: RE: Licensing Bill - How will it work ?
From: GUEST,ET
Date: 04 Apr 04 - 11:47 AM

And the next problem will be fees. The local government association have been seeking a local authority right to set fees from the outset. If they loose that they then seek fees that cover costs. But local authority costs are bound to far exceed the courts because in those costs they will seek to recover all enforcement fees.

My view is that making music is as near a human experience as talking, walking or being an individual. It is hardly the subject for licence. But license it is, and a so called socialist government is here acting way to the right of Ghengis Khan. Hardly surprising that the "guidance" is vague. So is the act on which it is passed.

The "guidance" is a document which is 198 pages long. Be careful if you download and print it. It will cost you a couple of print cartridges and half a ream of paper, will give you indigestion and bring on a rise in blood pressure!

Subject: RE: Licensing Bill - How will it work ?
From: The Shambles
Date: 04 Apr 04 - 11:55 AM

5.19 (page 50)

The spontaneous performance of music, singing or dancing does not amount to the provision of regulated entertainment and is not a licensable activity. The relevant part of the 2003 Act to consider in this context is paragraph 1(3) of Schedule 1 of the Act.

This states that the second condition which must apply before an activity constitutes the provision of regulated entertainment is that the premises (meaning "any place") at which the entertainment is, or entertainment facilities are, provided are made available for the purpose, or purposes which include the purpose, of enabling the entertainment to take place.

In the case of genuinly spontaneous music (incuding singing) and dancing, the place where the entertainment takes place will not have been made available to those taking part for that purpose.

Subject: RE: Licensing Bill - How will it work ?
From: The Shambles
Date: 04 Apr 04 - 01:19 PM

And the next problem will be fees. The local government association have been seeking a local authority right to set fees from the outset. If they loose that they then seek fees that cover costs. But local authority costs are bound to far exceed the courts because in those costs they will seek to recover all enforcement fees.

I have been informed that about 3 months or so ago, the DCMS issued LAs with something called the Draft Fees Order. This was asking them for an assessment of the proposed licensing fees, against the projected cost to the LA of operating the system under the Licensing Act 2003. This to see if a premium would have to be placed in the Council Tax to cover any shortfall.

Interesting to see what your local authority is putting in this assessment and if any council tax premium will be set to cover local licensing costs?

Subject: RE: Licensing Bill - How will it work ?
From: RichardP
Date: 04 Apr 04 - 01:55 PM

I suggest that it might be desirable to try to restate the important issues surrounding the Licencing Act and the Guidance.

The current legal position is that all premises selling alcohol must have a licence.

The current legal position is that all premises hosting entertainment must have a totally separate PEL with the exception of pubs which have two musicians in a bar. The actual meaning of this latter rule is not well defined but might be as tight as only two in a particular premises on a particular day.

There are then other matters that have no relevance to folk music as such.

PEL's cost different amounts in different local authorities and sometimes the LA either makes a very high charge for a PEL or uses a PEL as a second bite at the planning cherry and forcing expensive alterations to premises.   As a consequence, there is believed to be widespread avoidance by restricting entertainment to members of a club. There is also believed to be widespread evasion where organisations operate without a PEL.

The Act combines these two licences into one at a nationally fixed fee and explicitly prevents any conditions that could have been made as planning requirements. It also makes some exclusions regarding what entertainment needs to be licensed.

Apart from the fact that the fee is not yet published, the major concerns therefore are that evasion of entertainment licencing law will be much more difficult and the fear that landlords who now evade the PEL will make a deliberate action to prevent entertainment in their premise by excluding it in their licence even when it will cost them nothing directly.

What might be more significant, although little commented on, is the fact that it is very likely that many new premises licenses will be held by the Brewery, whereas the current license is held by the landlord. There has been much ill-informed comment by some brewers and there is a very real danger that they will fail to include entertainment in the applications whatever the landlord's wishes/inclinations. There needs to be much pressure on brewers to support entertainment in pubs!!

Richard

Subject: RE: Licensing Bill - How will it work ?
From: The Shambles
Date: 04 Apr 04 - 05:06 PM

PEL's cost different amounts in different local authorities and sometimes the LA either makes a very high charge for a PEL or uses a PEL as a second bite at the planning cherry and forcing expensive alterations to premises.   As a consequence, there is believed to be widespread avoidance by restricting entertainment to members of a club. There is also believed to be widespread evasion where organisations operate without a PEL.

I think that does sum up pretty well the thinking behind the entertainemt aspect of this Act. Which is sad. Because it is why this half-assed Act is such a mess and presents so many problms to aspect of music making that the drafters of it, never took the trouble to find out about or addressed when these aspects were brought to their attention.

The Act combines these two licences into one at a nationally fixed fee and explicitly prevents any conditions that could have been made as planning requirements. It also makes some exclusions regarding what entertainment needs to be licensed.

Perfectly logical ones, like the one for live Sky TV coverage of football matches in pubs? Based of course only on the safety concerns of the four objectives of the Act.

Subject: RE: Licensing Bill - How will it work ?
From: Richard Bridge
Date: 04 Apr 04 - 06:00 PM

Sham - your posts of 6.30 and 11.42 both very good.

RP. The "Public Entertainment Licence" was a licence needed if the entertainment (of a relevant kind) was "public". If it was in a club it wasn't public so it did not need a licence. Not a matter of "avoidance" as you so judgmentally call it at all.

The important issue for the act is that the "two in a bar" rule was ludicrously restrictive in some respects. Now it is worse. There is no sensible reason for music performed live without amplification to need to be licensed.

I may have missed another late change, but last time I read the Act from cover to cover, it did not "explicitly prevent any conditions that could have been made as planning requirements". What the guidance may say is another thing. The Act did, if I correctly remember, say that the LAs should have regard to the guidance. But one may perfectly well "have regard" to something, and having regarded it, decide that some other factor outweighs that thing. So I think you will find that the "planning factor" is not dead. Indeed if it were, and a pub between houses (assuming for present purposes that it needed no other planning alterations) wanted to have live bands with large PA rigs, it would be silly if "planning" requirements to control noise breakout could not be imposed. But it is just as silly if they can be imposed if no amplification is to be used.

As to 5.19 and "spontaneous", I remain of the opinion that if you do not stop an activity of which you are aware, and which is occurring on your premises, then you are making the premises available for that purpose. This would be consistent with the jurisprudence about "permitting" premises to be used for the consumption of drugs. If my view is not good law, why not?

I am inclined to the view that a juke box is not an entertainment facility because when you play a record on one, you do not "make" music. If however there were a dance floor than the jukebox might very well be an entertainment facility.

Incidentally, it seems to me that if a computer shop were to hire a computer (even one without speakers) to a nerd who was a wiz with cubase, so that the said nerd might use more processing power to record some phatt tracks, all at the computer shop (he can write them to DVD and take them home) - guess what? They would be providing facilities for making music and so need a licence.

Subject: RE: Licensing Bill - How will it work ?
From: McGrath of Harlow
Date: 04 Apr 04 - 07:07 PM

..."that if you do not stop an activity of which you are aware, and which is occurring on your premises, then you are making the premises available for that purpose.

That is what common sense and legal precedent would appear to indicate - however the guidance specifically says "In the case of genuinely spontaneous music (including singing) and dancing, the place where the entertainment takes place will not have been made available to those taking part for this purpose".

That surely must indicate that the guidance means something else. It apparently envisages a situation where the proprietor is fully aware of what is happening and makes no effort to prevent it, but is not "making the premises available for that purpose".

All very peculiar. I can't see how anyone can be confidently predict what a court would make of that.

But that doesn't necessarily matter too much - what matters more is how the licence holder are going to interpret their responsibilities, and as Richard B points out, a lot of the time this is going to mean breweries or companies, rather than publicans. And they are likely to play safe, so far as our type of music is involved, and rule out informal sessions.

Subject: RE: Licensing Bill - How will it work ?
From: Richard Bridge
Date: 05 Apr 04 - 03:53 AM

McG - t'was not I but another who pointed out that the licences were going to be taken by the breweries, but it does raise an interesting issue. If the brewery has the licence, and teh manager allows (non-spontanteous, just to avoid that issue this time) entertainment, but the brewery does not know...

My feeling is that the manager will in that case have commited an offence, all other things being equal

Subject: RE: Licensing Bill - How will it work ?
From: The Shambles
Date: 05 Apr 04 - 09:57 AM

I am inclined to the view that a juke box is not an entertainment facility because when you play a record on one, you do not "make" music. If however there were a dance floor than the jukebox might very well be an entertainment facility.

With respect Richard - it only really matters what the local licensing authority's view is and what we can make it. But that is my point. Despite the change in the words of the Act where recorded music is now only exempt if it is 'incidental', licensing officers, like the guidance, will tend not to see a juke box for example - as either a licensable entertainment facility or as regulated entertainment, mainly because they have not done so in the past.

But if the recorded juke box music (whatever the volume) is for dancing to (and there is always a floor) - it is difficult to see how under the words of the Act - this recorded music can ever be considered exempt as being 'incidental'. But let us ignore the rather out-dated juke box concept of the guidance and look at the practical aspects of recorded music today. Do you remember Dr Howells on BBC Radio 1 saying that DJ's with stage, decks and PA, for providing dance music would not need a licence? Surely that was all rubbish?

It is quite clear that despite the words of the Act, that no officials really want to see recorded music prevented in the way that they have pesecuted live music has been in the past, despite the fact that according to the words of the Act now, along with live music, recorded music is only exempt - when it is considered as 'incidental'.

What I am slowly getting at is, rather than challenge this incorrect interpretation of the words of the Act, that we just follow this official line. We just make sure that where our LAs set the benchmark and consider recorded music to be exempt as being 'incidental', that live music is also considered by them to be exempt.

That should mean that as long as no one dances and (if we accept the guidance) the volume is low, that any live (or indeed recorded) music can be considered as incidental and as a result - exempt from the additional entertainment licensing permission.............

As Morris dancing and unamplified music that is integral to this, is specifically exempt - there shouldn't be anything for us to worry about and we can carry on as before, whatever level the take-up of the additional licensing permission may turn out to be.

Subject: RE: Licensing Bill - How will it work ?
From: The Shambles
Date: 05 Apr 04 - 10:15 AM

Link to the BBC Radio 1 interview referred to.

http://www.mudcat.org/thread.cfm?threadid=56474

Extract.

KH I'm afraid disgracefully that is another scare that has been put around. If people are rehearsing in a room or a teacher is teaching piano let's say, in his or her home, they do not fall under this.

OK, let's clear up a couple of things. Does this cover paying performances or all performances, say in a pub?

KH No, it covers paying performances.

If you don't pay to get in do you need a licence?

KH No you will need a licence, just like you will now as things stand now, if you have more than two musicians in a pub.

Say no one knows Norman Cook's turning up in the boozer and I have two decks in the corner, do I need a licence?

KH Not if there is only one person in there.

So the two in a bar rule goes, but two decks are OK?

KH Yes laughs

Two decks is cool, OK. I think one of the reasons that people have seen this Bill and thought that this makes no sense, is for the sake of argument. Coldplay can play free in a church, because churches are exempt from this performance licence but Chris Martin couldn't get up in a pub and sing on a Friday night?

KH Yes he could certainly get up and he wouldn't require a licence on a Friday night. If however there were adverts all over town saying, come on over the pub, Chris Martin is on, then you would need a licence. So spontaneous music, in other words, people just suddenly playing a gig together, without any advertising, or not even word of mouth around the place, that's not covered. But if it's a ploy by the owner of the licence, to attract more customers, he needs a music licence.

Subject: RE: Licensing Bill - How will it work ?
From: RichardP
Date: 05 Apr 04 - 12:19 PM

The recent postings have led me to go back to the text of the Act with some interesting and encouraging insight, as well as some items that are obviously unresolved.

Section 136 makes it clear that noone commits an offence under this act by performing music (and several other things outside the immediate Mudcap scope). Offences relating to the performance of music are committed only by owners and supervisers of premises and in some circumstances by organisers of performances.

A different section specifies that private performances are not licensable unless either the premises owner makes the room available for a profit by leasing the room or an event organiser makes a personal profit out of surplus takings (I paraphrase the actual wording in that case).

A performance would certainly not be spontaneous if the owner had made a charge for the bar - but it is nowhere is it stated for spontaneous purposes that making available equates to making a charge as it does for the above case. The thinking appears to be the same but not the presentation. That might be a point to put to a friendly MP before the guidance is voted on.

There is a major difference between the PEL situation and the licencing conditions situation in the case of this Act:

The Licencing Authority can only apply conditions that result form adverse comments - admittedly the Local Authority is one of the commenting bodies for Public Health considerations and sometimes as the Fire Authority. Furthermore, they have to include a justificaiton for any condition that goes beyond the guidance. Finally, the applicant can appeal to the magistrates court against any condition in which the magistracy has the final say.

Richard Bridge, everyone will agree with you that the two in a bar rule was stupid and worse it was ambiguous in any circumstance other than a pub with one bar and only two musicians in an evening. Clarification and relaxation may well have been a worthy campaign during the last parliamentary session when the Bill was alive. Now it is past you have gone back to reminiscing over last years issues rather than concentrating on the way forward in the next few months, when making the act work in our favour is the only worthwhile game in town.

RichardP

Subject: RE: Licensing Bill - How will it work ?
From: McGrath of Harlow
Date: 05 Apr 04 - 12:58 PM

I'd much prefer it is the offence fell on the performers rather than the proprietors. That would put it back on the musicians to decide what to do, in the light of their underrtanding oif teh law. As it is, even if the proprietors - or the company - is completely wrong in their understanding of the law, we are stuck with that.

................

...before the guidance is voted on.

But does the guidance get voted on? And by whom? And who has the power to amend it? My understanding was that the minister has the delegated authority to approve the guidance without any further voting. That may well be a wrong understanding of the legal situation - if anyone knows the actual facts about this, it'd be useful to have them.

Subject: RE: Licensing Bill - How will it work ?
From: RichardP
Date: 05 Apr 04 - 02:48 PM

The Guidance is subject to an affirmative vote in both Houses of Parliament before it comes into force.

Both Houses have Committees which deal with delegated legislation before it goes to formal vote on the floor of the houses.

Almost all such votes pass on the nod, but what the possibility of amendment to details is I have no idea. Certainly without strong reasons provided by people outside the strong probability is that the Guidance will sit around for a few weeks and then be formally endorsed by both houses.

Always remember that although there were lengthy debates and some votes on limited details, all parties in parliament were overwhelmingly in favour of the concept of licencing reform. Furthermore, most of the fundamental changes in the Act were nothing to do with entertainment and were overwhelmingly agreed on.

RichardP
RichardP

Subject: RE: Licensing Bill - How will it work ?
From: Richard Bridge
Date: 06 Apr 04 - 04:29 AM

"Reform" does not necessarily have to mean creating a god-awful mess. You should hear Chris Hepher, head of licensing law at Kidd Rapinet on some of the messes in the alcohol parts. Or Stuart Neame of Shepherd Neame. And of course the police really laid into it a few weeks back saying it seriously undermined their ability to deal with problem drinking.

You, RichardP are the only person I have ever heard prepared to defend any (well, hardly any) of the music licensing provisions, apart from the mendacious Howells (who said in Parliament that three folk singers in a pub was his idea of hell), his successor(s) and his slippery so called civil so-called servants.

May I ask what your day job is and what if any your connection with the government or the executive?

Subject: RE: Licensing Bill - How will it work ?
From: el ted
Date: 06 Apr 04 - 06:05 AM

Post no 200. I thank you.