Affected by The Licensing Act 2003

Subject: RE: Affected by The Licensing Act 2003
From: Folkiedave
Date: 24 Mar 06 - 12:06 PM

The ignorance of the many changes resulting from the new legislation was as usual, pretty staggering and at one point both the officer and the councillor were urging me to just go ahead with organising a session in a pub without licensing permission as I would not be the one subject to prosecution............

I hope you got that down in writing! Suggest to them that they do so!!

But I also wonder if they are dropping a gentle hint that they think this act is as stupid as you or I and countless others do - and they will not look to prosecute where there is no complaint and someone is clearly not organising a rave.

Certainly I get an instinctive feeling that that is happening. And as we gradually build up cases where councils have declined to prosecute, any council deciding to prosecute - for singing carols for example - or cabinet moinisters in parks, will find it in a dodgy legal position. Will they really spend money on prosecuting people when the outcome is not sure.

I doubt it.

Subject: RE: Affected by The Licensing Act 2003
From: The Shambles
Date: 24 Mar 06 - 12:23 PM

That I think that may be partly true.

But unless I (or the council) can give my licensee or the others, something a little more concrete than just this impression - they are unlikely to agree to any new sessions starting. Which if it were to prove to be the case that these are perfectly legal - would be just as bad - or perhaps worse that the law preventing it.

I can also see why they do not wish their officers to be tied down but the public and licensees need to have the protection of knowing what the law does or does not allow. And with the new exemption for incidental live music, Morris dancing and the distinction between amplified and non-amplified music in the legislation for the first time (in S177) - there really should be no question that such things are perfectly legal without entertainment permission.

Subject: RE: Affected by The Licensing Act 2003
From: The Shambles
Date: 25 Mar 06 - 11:28 AM

Just having laws which council's may or may not choose to prosecute if not really much good as at some point in the future this could change and will alway vary in different areas and no one has any protection under the law. For it becomes what council employees say that it is and licensees are most unlikely to legally challenge the entertainment aspects.

Councils, through the LGA are not backwards in lobbying Government for changes to legislation they do not like or they feel they are not properly funded to enforce. If they really feel that aspects of this legislation are presenting them with problems - they can say so.

But they are not going to do this unless they are asked the right questions and forced to come up with some answers.

This has been law since November 2005 - do you know if a new session in your area will be required to hold entertainment permission or will be pervented without this?

Do you know what your LA considers as incidental live music?

I am sure there are many similar question that we don't know the answers to......

Subject: RE: Affected by The Licensing Act 2003
From: Folkiedave
Date: 25 Mar 06 - 12:45 PM

I can categorically state that Sheffield Council regards carols at Xmas - anywhere, not just in church, as part of a religious service and therefore will not be prosecuted. They have not prosecuted carols in pubs, nor have they prosecuted carols sung in a local radio station which was unlicensed.

I have this in writing. Hope this helps someone somewhere.

Dave

Subject: RE: Affected by The Licensing Act 2003
From: The Shambles
Date: 25 Mar 06 - 01:04 PM

How much help is this? For does it in fact it mean that any form of similar but secular music making - that cannot be stretched to qualify under this exemption will automatically be considered by them as licensable?

The words I have is that they have taken the view that there is a 'rebuttable presumption' that such gatherings qualify under the exemption in part 2. Para 9 to Schedule 1 of the Act.

I am sure that some legal person can explain what that phrase may mean.............

Subject: RE: Affected by The Licensing Act 2003
From: stallion
Date: 26 Mar 06 - 05:12 AM

This whole debate is starting to really pee me off, I have now berated Martin to publish official guide lines he has recieve, the vagueness is a deliberate attempt shackle raves and noisy spontaneous out burst of fun, the catch all tempered by ignoring quieter events such as sessions in pubs, in a highly organised and policed society as ours it isn't good enough, the real test will come when a "rave" organiser is prosecuted and a cute lawyer makes a council fall on it's own sword by holding up informal sessions, "flaunting" the act, as a precedent. Ain't no lawyer, and I know some of you are and will be quick to point out the short comings of the argument, that's good because we need as much ammunition as possible!

Subject: RE: Affected by The Licensing Act 2003
From: Folkiedave
Date: 26 Mar 06 - 05:42 AM

I have to tell you that I went down that road with Sheffield City Council on the grounds that they were discriminating against secular music. I also tried Human Rights and was told this was discussed at the time of the passage of the Bill.

They told me they do not discriminate and that was that.

Again I suspect this was a hint that "sessions" will not be prosecuted if there are no complaints.

I decided to keep my powder dry for the moment and wait until there were signs (if any) of persecution of sessions.

But I agree that there are serious problems with the way this legislation is being handled with regard to music making and am happy to continue exposing its absurdities.

Subject: RE: Affected by The Licensing Act 2003
From: The Shambles
Date: 26 Mar 06 - 06:31 AM

They told me they do not discriminate and that was that.

Well they would say that wouldn't they?
Mandy Rice Davies

No one is going to prosecute themselves under Human Rights Legislation are they? The case would be brought by someone who thought they were being discrimnated against or when the council were not following the legislation and they would then have to defend their position.

Would you think they be discriminating if they enabled questionable events on the grounds that they were part of a religious service but prevented a new secular session from starting? I think it would be pretty plan that they were. if not why did they choose this exemption rather than one that would have also covered simlar secular events.

I think there is a case that the whole legislation regarding the special treatment of 'religous' music making is discriminatory.

But when you obtain the answer (rather than just hints) as to how they would view a secular session - the answer to whether they were discriminating will be clear.

Perhaps the first question for our local licensing authorites to answer now is how many of their pubs currently do not have any form of entertainment permission?

Subject: RE: Affected by The Licensing Act 2003
From: Andy Jackson
Date: 26 Mar 06 - 04:28 PM

I have stayed out of the discussion until now but following from the last comment:
Would it not be more in our interests to compile lists of pubs WITH entertainment licences and give them our support by offering sessions. Now that's positive!!

Subject: RE: Affected by The Licensing Act 2003
From: The Shambles
Date: 27 Mar 06 - 03:23 AM

I have stayed out of the discussion until now but following from the last comment:
Would it not be more in our interests to compile lists of pubs WITH entertainment licences and give them our support by offering sessions. Now that's positive!!

We do not have to compile any lists. The council will already have the information - all we have to do is ask for it. The Act also requires our councils to promote music and dance - not to prevent it.

On a practical level - pubs with licensing permission can legally hold sessions and many now do. These venues would also be promoting conventional and paid live music. Even if the pub was willing - it may not be possible to find a night that was free that would not also be denying musicians valuable opportunities for paid employment.

Again is it not more practical sense - if the aim is for a long-running session in a reliable and suitable venue - to establish sessions in the generally smaller pubs which for many reasons have not applied for permission to provide conventional entertainment but may be perfectly happy to host a session if asked.

On a less pracital level and more one of principle. If sessions are now in fact legal without licensing permission - surely it would be silly and wasteful not to take a course that would at least establish the facts?

Do you accept that this law means that if you obtain a licensee's permission that whether you should be allowed to play or sing in their pub for your own pleasure should be a matter for a council licensing officer to decide?

Do you accept that this law means that if you obtain a licensee's permission that whether you should be allowed to play pool or darts etc in their pub for your own pleasure should be a matter for a council licensing officer to decide?

The law either allows social indoor sports or similar social indoor music making without entertainment licenses or it does not. As both are included in Scedule 1 - the words of the same legislation cannot mean that one can and one cannot. If either of them are for the purpose of entertaining an audience - they are licensable. If either of them are NOT for the purpose of entertaining an audience - They are not licensable and of no concern to any council's licensing officers.

Subject: RE: Affected by The Licensing Act 2003
From: pavane
Date: 27 Mar 06 - 06:40 AM

Just a (thread creep) note to say that the Government seem to be at it again.

Although I haven't seen it, there is apparently a clause in the Animal Welfare bill which requires ALL animal and bird shows to obtain a licence, at about 200 pounds a time. Looks like they will kill off all the childrens Pony club events and so on. No more animal competitions in local Fetes.

Subject: RE: Affected by The Licensing Act 2003
From: DMcG
Date: 27 Mar 06 - 06:53 AM

While thread-creeping, I was told on Friday by a collector of WWII vehicles recently that the latest regulations intended to prevent people using replica weapons in crimes means he will no longer be allowed to have a barrel on the tanks he owns, and that many other groups such a Civil War re-enactors will (probably) be no longer allowed to use even replica weapons.

Heaven knows what the position for the BBC, film-makers and amateur dramatics is ...

Subject: RE: Affected by The Licensing Act 2003
From: The Shambles
Date: 27 Mar 06 - 07:16 AM

To return to carol singing for a moment. Some are no so fortunate.

South Norfolk District Council do consider that carol singing requires entertainment permission as this council are following the DCMS's advice.

The Daily Telgraph 20 Dec 2005 by David Sapstead.

Up to 70 singers from local churches were to entertain passer-by on Saturday outside the Budgens store in Poringland near Norwich. But the event was called off on Friday because of confusion over the licensing position.

Subject: RE: Affected by The Licensing Act 2003
From: DMcG
Date: 27 Mar 06 - 07:27 AM

I wrote to my MP about that very case on 20th December. He responded within 4 hours by email; I eventually got a response from the DCMS around the start of this month. It was the usual bland, incoherent stuff saying carol singing did not inherently need a licence(whether religous or secular) but if, for instance, a business arranged for them to sing outside his shop then a licence would be required.

Subject: RE: Affected by The Licensing Act 2003
From: Folkiedave
Date: 27 Mar 06 - 11:37 AM

I eventually got a response from the DCMS around the start of this month. It was the usual bland, incoherent stuff saying carol singing did not inherently need a licence(whether religous or secular) but if, for instance, a business arranged for them to sing outside his shop then a licence would be required.

First of all you were lucky they replied so quickly.

Secondly, what they usually do in my experience is say it is a matter for local councils. The councils refer you back to the DCMS!!

I was aware of the carol singers near Norwich but it was a bit too close to Xmas to add my two pennorth at the time. There is no doubt in my mind that there will be continual absurdities, and we need to keep highlighting them.

Subject: RE: Affected by The Licensing Act 2003
From: Tootler
Date: 27 Mar 06 - 12:22 PM

I met someone at the weekend who has, in the past provided music at local English Heritage Properties. This had simply involved sitting in a room during a weekend afternoon, playing his guitar. He has been told it unlikely they will be using him this coming season because of the new licensing laws. I understand National Trust properties could be similarly affected.

More venues lost to the new licensing laws? unless EH & NT are able to sort out the licensing situation.

Subject: RE: Affected by The Licensing Act 2003
From: DMcG
Date: 27 Mar 06 - 12:50 PM

unless EH & NT are able to sort out the licensing situation.
But the problem is that it needs either a temporary licence each time at a handful of pounds but more importantly someone's time, effort and authority to push it through, or something similar to sort it at a national level, negotiating with each and every authority where a house happens to be ... I don't see it happening myself.

I suggest you get your contact to write to his MP and try to ask a question in the house. If he/she is a Labour MP, there's little hope of course. But if its another party something along these lines suggests itself.

"A member of my constituency has been informed that although he has sat in room at an English Heritage property playing period music for most weekends over X years, he will not be allowed to do so in future because of the licencing act of 2003. While this specific case is in the hands of English Heritage itself, will the Culture Secretary identify which of the main purposes of the Act -
(1) The prevention of crime and disorder;
(2) Public safety;
(3) The protection of children from harm;
(4) The prevention of public nuisance.

- made it necessary to bring such cases under the licencing remit at all?"

Subject: RE: Affected by The Licensing Act 2003
From: stallion
Date: 27 Mar 06 - 01:17 PM

Just got this from Martin, does it help?

"Section 177 - Dancing and live music in certain small premises

270 This section provides that where..............

the premises have a capacity limit of 200          any conditions relating to the provision of music entertainment imposed on the license by the licensing authority, other than those set out by the license or certificate holder in his operating schedule, will be suspended except where they were imposed as being necessary for public safety or the prevention of crime and disorder.

271. In addition where

.a premise license or club premise certificate authorises the provision of music entertainment, and

.the premises have a capacity limit of 200

then, during the hours of 8am and midnight, if the premises are being used for the provision of live unamplified music but no other description of regulated entertainment any conditions imposed on the license by the license authority, again other than those set out in the operating schedule, which relate to the provision of the music entertainment will be suspended."

This is from the government guide to the Act and seems to me to be quite clear. Any premises, including those with a capacity of more than 200, could presumably write the provision of amplified/unamplified music into their operating schedule. Perhaps the author's are unreconstructed traddies determined to pull the plug on singer-guitarists !!!

I'll bring a photo copy on Wed.

Subject: RE: Affected by The Licensing Act 2003
From: The Shambles
Date: 27 Mar 06 - 01:35 PM

The important part is:

271. In addition where

.a premise license or club premise certificate authorises the provision of music entertainment,

The entertainment permission has to have been applied for and in place first. In venues where none is in place - no form of live music that is for the purpose of entertaining an audience, can take place.

This is from the government guide to the Act and seems to me to be quite clear. Any premises, including those with a capacity of more than 200, could presumably write the provision of amplified/unamplified music into their operating schedule. Perhaps the author's are unreconstructed traddies determined to pull the plug on singer-guitarists !!!

They could but if they have not - these venues will have to pay again and go through the whole licensing process - just to enable non amplified music. I suggest that this very unlikely to happen?

But this section at least (and the Morris dance exemption) does for the first time make a distinction in licensing law for non amplified music.

Subject: RE: Affected by The Licensing Act 2003
From: stallion
Date: 27 Mar 06 - 01:38 PM

and there is more

Ignore the flippant remark about "traddies". The key people are the landlords and the licensing officers; at the last meeting of the Yorkl LVA John Lacey ( City of York Licensing Officer )emphasiized the positive aspects of the Act, specifically mentioning its role in sustaining the tradition of live music in York pubs. In this respect he was promoting a key objective of our Licensing Policy:

"1.3.5 York's Licensed Heritage

The Licensing Authority recognizes the important part traditional and historic public houses play in our cultural and tourism heritage and would seek to preserve and enhance those assets for future generations.

1.3.6 Live Entertainment and Performing Arts

The Licensing Authority encourages the development of venues for the provision of live entertainment and performing arts, recognizing the contribution made to the vitality or the city. To this end the Licensing Authority will avoid applying measures which will deter live music, dancing and theatre by imposing direct costs of a disproportunate nature.."

City of York Council "Statement of Licensing Policy 2005"

I suggest that residents check out their local licensing policies and the government guidelines to the 'Act.

Subject: RE: Affected by The Licensing Act 2003
From: The Shambles
Date: 27 Mar 06 - 01:49 PM

I suggest that residents check out their local licensing policies and the government guidelines to the 'Act.

My local licensing policy has similar encouraging sounding things. It even contains a specific reference to the public's Right of Freedom of expression under Human Rights legislation.

Perhaps it is the nation's licensing officers who need to be encouraged to actually read these documents and put them into some practical and beneficial form for the public?

Subject: RE: Affected by The Licensing Act 2003
From: The Shambles
Date: 28 Mar 06 - 02:50 AM

The DCMS announce their Creative Economy Programme website (and discussion area).

http://www.cep.culture.gov.uk/index.cfm?fuseaction=main.viewSection&intSectionID=334

Subject: RE: Affected by The Licensing Act 2003
From: Folkiedave
Date: 28 Mar 06 - 04:54 AM

The DCMS announce their Creative Economy Programme website (and discussion area).

Can I suggest that people look for an appropriate part of the website and make suggestions regarding the development of unamplified music? Richard Bridge has already done this. I´ll try and do it in the next day or two.

It might also be worth reminding the government that the Licensing Act does not apply to Scotland.

The government has previously claimed that it made no discrimination between unamplified and amplified music, but here in the letters below there is clear evidence that it does.

Subject: RE: Affected by The Licensing Act 2003
From: GUEST,Hamish Birchall
Date: 28 Mar 06 - 10:21 AM

This is a message for 'Tootler' in response to their posting about the possible loss of live performance in English Heritage properties due to the new licensing legislation.

My first thought is that the performances may qualify for the 'incidental music' exemption (Licensing Act 2003, Sch.1, para 7). It would seem they are just background music, in which case the local authority should be at least asked to consider exempting on these grounds.

If you could identify the properties concerned this would help considerably. I have already phoned the events department at English Heritage HQ, and the person I spoke to had not heard of any performance cancellations.

Hope to hear from you.
Thanks.

Subject: RE: Affected by The Licensing Act 2003
From: The Shambles
Date: 30 Mar 06 - 03:45 AM

This was posted by Stephen Kellet on uk.music.folk.


Another licensing law casualty

The 4th Wednesday of the month folk singaround/playaround at the Chequers public house in Sutton, Cambridgeshire is no more.

The reason? The landlord will not pay for the new license.

According to the DCMS this sort of thing doesn't happen does it?

Stephen

Subject: RE: Affected by The Licensing Act 2003
From: The Shambles
Date: 30 Mar 06 - 03:53 AM

Meanwhile this is how sessions are treated (and encouraged) in Shetland.

Which of course comes under Scottish Licensing legislation where they seem to see that their musical culture as a valuable asset rather than a threat.

http://www.shetland-music.com/tourevnt.htm

Subject: RE: Affected by The Licensing Act 2003
From: Folkiedave
Date: 30 Mar 06 - 05:15 AM

Re: the session at the Chequers closing down.

I agree that it is a disgrace and I agree that this should not happen, BUT, I would respectfully suggest it would be useful to know why the landlord did not apply ("tick the box") at the time of the change over to the new license.

Subject: RE: Affected by The Licensing Act 2003
From: The Shambles
Date: 04 Apr 06 - 06:56 PM

The following from Hamish Birchall

The City of London Corporation, which provides local government services for the 'square mile', has shown that it is possible to interpret the new Licensing Act liberally where live music is concerned.

On 24 March, Barts Hospital issued a press release about a new series of music concerts on the wards of Barts, and other participating hospitals: http://www.bartsandthelondon.org.uk/news/story.asp?id=1102§ion_id=1

The concerts were set up by a charity called Vital Arts: 'bringing musicians, story tellers and performers into the hospital to work on wards, in waiting rooms and other public areas to raise patient spirits and boost staff morale.'
http://www.vitalarts.org.uk/site/projects_01.html

The performances are public for the purposes of the Licensing Act, and they have been widely advertised. But the City of London licensing department today confirmed that, as far as they are concerned, these concerts qualify for the 'incidental music' exemption.

Last Friday (31.03.06), one of their licensing officers advised me: 'there is a strong argument for the music being incidental to the provision of clinical treatment, or infact that the music is actually part of that treatment. The City does not consider that the licensing of these 'performances' would serve any useful purpose, nor indeed would such licensing be within the spirit in which the legislation was enacted.'

This afternoon (Mon 03.04.06), Andrew Whittington, Assistant Chief Trading Standards Officer for the Corporation, said: 'I would reiterate his advice that the City of London, at this stage, does not consider that the music activity outlined in the link to Barts and the London NHS Trust website to be such as to require a licence under the provisions of the Licensing Act 2003. I can see no problem in you publishing this as the current view of this authority but as in all legal issues I would advise you of the following caveats:-
This view only relates to premises within the City of London.
Only the courts can interpret legislation with any authority and the City of London's view may change in the light of future court decisions.

I hope the above clarifies the position but if you come across any different view by other licensing authorities I would be grateful if you could let me know.'
Notwithstanding the caveat about this position applying only to the City of London, this position could prove useful to musicians elsewhere if they find their local authority adopting a less generous interpretation of 'incidental music' exemption (Licensing Act 2003, Sch.1, para 7).

Link to the City of London website:
http://www.cityoflondon.gov.uk/Corporation/about_us/_whatis.htm

Subject: RE: Affected by The Licensing Act 2003
From: The Shambles
Date: 05 Apr 06 - 03:14 AM

The following was just posted on the Yahoo - Action for Music list.

The Farriers Arms in St Albans, the very pub where CAMRA was founded had duos for many years under the two-in-the-bar rule. The landlord was a bit vague about what he needed to do when re-licensing the pub, but he has now been told that a music license will cost him £1,000. So no more music.

The Golden Lion, in London Colney, has a new restriction, even though it has a music license. I asked to have a session there during our festival week. As this particular session is a get together with the local branch of Comhalthas Ceolteori Eireann, which includes a number of very young musicians, we need either a function room without a bar in it, or outside space. The Golden Lion has a function room, but has told that it no longer has permission to have music outside.

More generally, our festival fortnight includes a number of outdoor events, each of which now needs a music license, which was not necessary in the past. The festival director, who is keen to promote access to the arts and has therefore encouraged us to organise outdoor events for the public in places like local parks, is now going spare acquiring the necessary licenses. She also tells us that it has been officially announced that Scottish dancing is not morris dancing for licensing purposes, and a license is needed for it.

Alison Macfarlane

Subject: RE: Affected by The Licensing Act 2003
From: The Shambles
Date: 06 Apr 06 - 10:55 AM

I received the following today.

Bridget Downton
Corporate Director
(Community Services)
Weymouth and Portland Borough Council

5th May [April] 2006

Dear Mr Gall

I write following our recent meeting. You asked for a list of all unlicensed premises. I attach two documents. One shows all premises and the other shows all those with licenses and the times – I hope this helps, it is the only way that we could extract the information from our database.

You raised some other specific points. I have consulted our legal team about these and will deal with them in turn:

Under the Act, it is not an offence for individuals to play live music in unlicensed premises where their only involvement in the provision of the entertainment is the playing of the live music and they take no role in the management/organisation of the same.

The New Starr Inn doe not have a license for regulated entertainment.

We are not in the business of trying to discourage people from learning to play musical instruments and we have worked hard with licensees across the borough to provide advice that means that they apply for the right license. We encourage licensees to apply for a regulated entertainment licence if they are in any doubt and if they think that they are likely to have regular music in their pub.

As you know, the Act contains no definition of 'incidental' and my legal team advise me that in these cases it is normal to use dictionary definitions to aid interpretation. The dictionary definition of incidental includes the word 'casual' which in our view, does impact on the regularity of incidental music. I can confirm that we would advise any licensees asking us that we would regard incidental music as that which:

Could take place without and audience;

Would not be advertised or held on a regular basis; and

Would not be amplified;

As I said in my previous letter, we have had very few issues regarding incidental music to date and we are not keen to apply 'one size fits all' rules. Therefore, we will continue to consider each case on its individual facts wherever possible and to advise licensees accordingly.

Your sincerely

Subject: RE: Affected by The Licensing Act 2003
From: stallion
Date: 06 Apr 06 - 12:59 PM

Had a word with Martin, Councillor Martin. He thinks it is crazy that in planning, when a scheme is rejected, another scheme may be submitted at no extra cost to the applicant. It therefore doesn't make sense, that having paid for the licence, a amendment can't be made, especially since it was new legislation, at no extra cost to the licencee. The costs involved in processing a second planning application are astronomical when compared to the ticking of a box on a licence. This is ludicrous, lunacy. Having said all that, with perhaps the exception of Sam Smiths, who instructed Tennants/Landlords not to tick the relevant box, the blame lays fairly and squarly on the licencees who either couldn't be arsed, or were too thick, to understand the implications of not ticking the box. Maybe L.A's might be peruaded to give licencees an "amnesty", a window, to amend the conditions of their licence now the debate has identified the idiotic nature of the practical application of the Act. I don't think piecemeal interpretation on a case by case basis is a reasonable solution. Perhaps we, as musicians, ought to contest an election or two, possible Tessa "Bare Faced CHEEKS" constituency.

Subject: RE: Affected by The Licensing Act 2003
From: The Shambles
Date: 06 Apr 06 - 02:11 PM

Of the total of 340 local Premise Licenses - 174 do not have any form of entertainment permission.

Of the 166 that do have permission for 'live entertainment' - only 30 make any reference to any permission for indoor sports.

So does that mean that regular social indoor games - like darts etc are illegal in the remaining 310 premises?

My council is trying to maintain that regular social music making is illegal without entertainment permission when both this and regular social indoor games can now equally be considered under the words of Schedule 1 of the Act - as Regulated Entertainment - when they are for the purpose of entertaining an audience.

The New Star has no entertainment permission and according to my council's officers - this seems to prevent the session from re-starting even when it would take place with no one present but its participants.

But the New Star also has no permission for any social indoor games either and there is no question of any regular social indoor games taking place in its skittle alley requiring entertainment permission or of being prevented for the lack of this permission by these same officers.

Surely if one of these is licensable - they both are and if one is not licensable - then neither of them are licensable?

Is this descrimination - by my council's officers against one form of Regulated Entertainment - legal?

Is it the same where you live?

Subject: RE: Affected by The Licensing Act 2003
From: The Shambles
Date: 07 Apr 06 - 04:57 AM

The following from Hamish Birchall.

Earlier this week the City of London Corporation showed that it is possible to interpret the 'incidental music' exemption liberally. Regular music concerts in wards (twice a week), waiting rooms and other public areas of hospitals as advertised by Barts Hospital need not be licensed under the new Licensing Act.

Contrast that approach with one from a local authority in the south west of England. Here is a section of their response sent this week to a local folk musician seeking clarification of the incidental music exemption:

'As you know, the Act contains no definition of "incidental" and my legal team advise me that in these cases it is normal to use dictionary definitions to aid interpretation. The dictionary definition of incidental includes the word "casual" which in our view, does impact on the regularity of incidental music. I can confirm that we would advise any licensees asking us that we would regard incidental music as that which:

Could take place without an audience;
Would not be advertised or held on a regular basis; and
Would not be amplified.
'As I said in my previous letter, we have had very few issues regarding incidental music to date and we are not keen to apply "one size fits all" rules. Therefore, we will continue to consider each case on its individual facts wherever possible and to advise licensees accordingly.'

All performances of live music can take place without an audience, so it is hard to see the point of the first criterion. Advertising is not cited in the new Act as a criterion for the licensing of live music, nor is this implied; likewise the regularity of performances. In any case Barts Hospital advertised their concerts on wards, which are taking place twice a week. Amplification is allowed by the incidental exemption, which makes no distinction between live and recorded music. Where recorded music is provided, amplification is unavoidable.

My Concise Oxford Dictionary leads with this definition of 'incidental': 'Having a minor role in relation to a more important thing, event, etc'. It does not mention 'casual'.

It would seem some local authorities are just making up their own law.
ENDS

Whilst agreeing the general point that is being made here - think I would take issue with the accuracy of the following:

Amplification is allowed by the incidental exemption, which makes no distinction between live and recorded music.

Perhaps the fact that the words of exemption specifically refer to the 'performance' of live music but the 'playing' of recorded music could yet prove to be an important distinction. It may be nit-picking on my part - but it is a distinction that the words of the Act make between live and recorded music.

Subject: RE: Affected by The Licensing Act 2003
From: The Shambles
Date: 09 Apr 06 - 02:43 AM

House Concerts a Federal Case

Subject: RE: Affected by The Licensing Act 2003
From: stallion
Date: 09 Apr 06 - 03:30 AM

re- House concerts etc.
it only requires one sad B*****d to spoil everyones enjoyment.

Subject: RE: Affected by The Licensing Act 2003
From: The Shambles
Date: 11 Apr 06 - 03:18 AM

You may have noticed from the council's letter that they have failed to answer the first question - if the session would be considered by them as Regulated Entertainment.

Howeve, the officers have answered the second question as to what their advice would be to any licensee requesting for the session to be considered under the exemption for a performance of incidental live music.

Their main requirement in a long list - is that it could take place without an audience. In their haste to block all the possible ways that this venue's session could take place - they have overlooked that a performance without an audience is a strange one and possibly not one at all.

But more importantly - that if the session could take place without an audience ( which it can ) it would not qualify as Regulated Entertainment in the first place and would have no need of the incidental exemption .......................

Subject: RE: Affected by The Licensing Act 2003
From: Folkiedave
Date: 11 Apr 06 - 02:11 PM

This goes back to James Furnell´s original argument last
October referring to the Sheffield Carols. If all the people in a music event are taking part then by definition there is no audience.

So get a session together and have a roomful of participants. Or ask the council what there attitude would be towards it.

Of course what heppens then if someone walks in..........

Subject: RE: Affected by The Licensing Act 2003
From: The Shambles
Date: 11 Apr 06 - 02:24 PM

Where did James Purnell make this comment specifically on the Sheffield carols?

It was the case that the event enabled without entertainment permission was because it was judged by Sheffield City Council that this participatory pub session (and the piano) was a religious service?

Subject: RE: Affected by The Licensing Act 2003
From: The Shambles
Date: 11 Apr 06 - 03:08 PM

Am I missing something?

My practical and moral argument under the old legislation was that participatory sessions in pubs should be viewed as indoor sports darts etc.

Under this legislation where both can now be equally qualify as being licensable Regulated Entertainment - this argument is not only a practical and moral one - now it is also a legal one.

Perhaps you can ensure that your local officers finally accept this reality of the new legislation?

For councils can now obviously accept two levels of indoor sports. One level like a exhibition match for the purposes of an audience - which requires entertainment permission, and another level - social games which would take place with no spectators or audience - which do not require entertainment permission.

Why then cannot they accept the same two levels of live music making? Especially when not to do so is placing participatory music making sessions at risk. For although examples are given for indoor sports in the Act's Guidance - it is only the words of the Act that are being enlarged on.

Words that equally apply to live music and indoor sports - which only become licensable Regulated Entertainment if or when they are for the purpose of entertaining an audience or spectators?

The determining point should not be any stray custoners that may wander in and be entertained and considered as an audience or spectators but - far more sensibly whether the indoor sport or social music making would be satifactorly taking place anyway in the absence of anyone other than the participants.

Subject: RE: Affected by The Licensing Act 2003
From: Snuffy
Date: 12 Apr 06 - 06:35 AM

Music and singing should be treated the same as darts, quizzes, etc, but to my mind there are three (not two) levels of activity to be addressed.

1. An exhibition darts match, designed to attract an audience, probably with paid performers, and probably advertised both in the pub and in local media.

2. A darts league match, which is planned in advance and "advertised"
by a fixture list on the pub notice board (i.e. not at all "spontaneous"). Spectators are not expected, but nor are they banned or even discouraged.

3. A few friends meeting in a pub and deciding on the spur of the moment to have a quick game of darts.

I think both we and the council officers would agree that type 1 is regulated and type 3 is not. However, the officers appear to claim that type 2 occurences are "regulated entertainment" for music but not for pub games.

A regular, planned session with low-key "in-house" advertising can be no more and no less "regulated entertainment" than a league match of darts, dominoes or quiz.

Subject: RE: Affected by The Licensing Act 2003
From: The Shambles
Date: 12 Apr 06 - 08:10 AM

As far as the words of the Act's Guidance is concerned - indoor sports are either licensable or they are not and it explains the reasoning for this.

The question of whether any of it is 'spontaneous' or not - is irrelevant as far as the words of the Act go - for the word does not appear in it.

Nor does an event's regularity affect whether it is licensable Regulated Entertainment or not - this factor does not appear in Schedule 1 of the Act.

Howver many types we may prefer to see - perhaps there is agreement that if all regular social music making is licensable - then so are all regular indoor games? And if all regular indoor sports are not licensable - then neither is regular social music making?

And that for local authorities to advise anything else - under the words of this legislation is unlawful and discriminatory?

Subject: RE: Affected by The Licensing Act 2003
From: Snuffy
Date: 12 Apr 06 - 09:46 AM

Although "spontaneous" is not in the act, LGOs seem to interpret the Act as though "incidental" and "spontaneous" have the same meaning: viz. your message of 07 Apr 06 - 04:57 AM

'As you know, the Act contains no definition of "incidental" and my legal team advise me that in these cases it is normal to use dictionary definitions to aid interpretation. The dictionary definition of incidental includes the word "casual" which in our view, does impact on the regularity of incidental music. I can confirm that we would advise any licensees asking us that we would regard incidental music as that which:

Could take place without an audience;
Would not be advertised or held on a regular basis;

This would rule out anything that was in the slightest degree premeditated or prearranged, so it would have to be either spontaneous or regulated.

Darts matches are both advertised and held on a regular basis but this does not appear to make them "regulated entertainment". Can the council officers explain that one?

Subject: RE: Affected by The Licensing Act 2003
From: The Shambles
Date: 12 Apr 06 - 12:51 PM

I think that we can discount the legality of just about everything in the council's last letter. The comment I had when I asked for advice on this letter was that The council's advice is BULLS*$T.

Can the council officers explain that one?

Probably not - but they don't attempt to - they just ignore any mention of anything that does not fit...

Such as the following. This has been supplied to the officers but they have made no comment to date and appear to wish to simply ignore it and its specific relevance to the nature of these local sessions as considered by Parliament?

The following Commons quote from the then Minister concerned Dr Kim Howells made in the Bill's Standing Committee to Jim Knight MP on the 1st April 2003. This in direct response to a question about the local Cove session.
It seems that it is largely a spontaneous activity, to which people turn up occasionally and it seems also that the word has spread that people can hear some nice music. However, as the Hon Gentleman says, the licensee does not spend money on advertising. If it is clear that music is being played in the corner of the pub, that would be incidental in my book.

Subject: RE: Affected by The Licensing Act 2003
From: The Shambles
Date: 12 Apr 06 - 01:10 PM

Re all this about about the event's regularity -

I am coming to the conclusion that most of the problem is confusion among the elected members stemming from the change of the term Public Entertainment to Regulated Entertainment. The officers should know but I am not sure that they really try too hard to correct any wrong impressions that councillors may have.

The Vice Chair of the Licensing Commitee he is telling me that he is advised that the reason the New Star session would have to be considered as Regulated Entertainment because it is 'organised' to take place on a regular basis.

Now the term Regulated - simply refers to what is regulated or is licensable. And whether an activity qualifies - has little or nothing to do with an event's regularity. I have tried to explain this to him but says he is going to ask the officers to provide for him the exact words of the Act which support what they are advising him. This should be interesting..............

Subject: RE: Affected by The Licensing Act 2003
From: Folkiedave
Date: 12 Apr 06 - 01:37 PM

Where did James Purnell make this comment specifically on the Sheffield carols

It was the case that the event enabled without entertainment permission was because it was judged by Sheffield City Council that this participatory pub session (and the piano) was a religious service? ?

He made in a letter to David Blunkett. Hamish has certainly seen it or something similar. Currently I am in Spain so cannot post the exact words. I will do so when I am back in May. I wrote to the Minstry pointing out I thought it was unusual for a Minister to seek loopholes in an Act for which he was responsible. He ignored the comment in his last letter to me.

Sheffield City Council adjudged any carols taking place in their area - whether accompanied or not as part of a religious service. Wherever they took place. As posted earlier in this thread.

What we have now is a farce of the first order. It is a farce becasuse the law means different things in different parts of England and Wales. (It was always so as far as other parts of the UK are concerned). I am not sure how this is justified but I am determined to get past this excuse "We leave it to local authorities to judge what is best in their local area".

Subject: RE: Affected by The Licensing Act 2003
From: The Shambles
Date: 12 Apr 06 - 01:57 PM

I am not sure how this is justified but I am determined to get past this excuse "We leave it to local authorities to judge what is best in their local area".

Well this is true with legislation delegated to them - but only to the extent that what any LA judges to be best MUST follow in the words of the legislation, follow the spirit of it and not be ignored and made-up locally by individual council employees to suit them.

The recourse is the courts - but before that can be an option - councils have to first provide the answers to the questions asked. We largely had those answers under the old legislation but as this was coming to an end - there was little point in going to the courts at that point.

The situation is different when very little of the new legislation has been tested in the courts. It does mean that liberal positions like The City of London's on the incidental exemption can stand until any ruling is made elsewhere and that councils who hold less liberal posisions will most likely find that they will be the ones defending their positions in court.

But all councils must be pushed out of their comfort zones and forced to answer the basic questions and if they then find the legislation a problem to enforce - they can join in the lobby to change it.

Subject: RE: Affected by The Licensing Act 2003
From: GUEST,Cookieless Folkiedave in Spain
Date: 13 Apr 06 - 07:45 AM

The situation is different when very little of the new legislation has been tested in the courts.

I agree entirely BUT how is the legislation going to get tested?   Wetherspoons clearly have enough financial muscle. And we can keep questioning local authorities - but they do succesfully ignore us when we ask the more awkward questions about their logic defying decisions.

As does the DCMS.

Subject: RE: Affected by The Licensing Act 2003
From: The Shambles
Date: 13 Apr 06 - 11:50 AM

The following from Hamish Birchall.

On 17 March a cross-party committee of MPs strongly criticised DCMS for 'inconsistent and unclear advice' during their implementation of the new licensing regime (see BBC report:
Now the Better Regulation Commission has weighed in with another report on licensing reform, equally critical of both DCMS and the government. 'Implementation of the Licensing Act 2003' was published by the BRC earlier this month (PDF file): http://www.brc.gov.uk/publications/licensingact2003.asp

The new report explicitly highlights uncertainty over the 'incidental music' exemption, and puts the blame firmly on the government:
'We find it alarming that the government is unable to clarify its intentions and explain to those affected by its own legislation what they are required to do.' [para 31, p16, full text below]

They add, under 'Observations':
'The uncertainty over incidental music. Should changes need to be made to legislation to resolve this, then they should be initiated immediately.'

In paragraph 4 (and many others), highlights the hidden costs and bureaucracy:

'Although the 2003 Licensing Act is a significant deregulatory and simplification measure that originally enjoyed widespread support, the way it was implemented during 2004 and 2005 led to complaints about increased costs and unnecessary bureaucracy.

The actual experience of applicants and licensees going through the new process was often far from the streamlined, simplified, efficient and less costly process that the Act led them to expect and which we believe Parliament voted for. The Better Regulation Commission is concerned that the policy and administrative decisions taken during implementation were not subject to sufficient consultation and a rigorous analysis of options, costs and benefits.'

In para 74, the BRC adds: 'We are surprised that, after nearly ten years of better regulation under the current government, a major government department should still make the kinds of regulatory mistakes that we have outlined in this review.'

~ ~ ~

Full text of paragraph 31, BRC 'Implementation of the Licensing Act 2003':

'31. Two other things that caused major uncertainty were (a) whether a DPS [Designated Premises Superviser] always needs to be on the premises when alcohol is sold and (b) what constitutes incidental music. Neither is satisfactorily explained in the guidance and subsequent correspondence between licensees and the DCMS has not resolved these issues.

Most licensees respect and want to comply with the law and do not like operating under this kind of uncertainty. Departments should do everything possible to resolve issues of regulatory uncertainty or confusion as soon as they become apparent. We understand that the government has said that case law is needed to clarify the first issue. We find it alarming that the government is unable to clarify its intentions and explain to those affected by its own legislation what they are required to do.
ENDS

Subject: RE: Affected by The Licensing Act 2003
From: Folkiedave
Date: 14 Apr 06 - 03:42 AM

From the Minister's last letter (24/03/06) to me:

"It would be inappropriate for me to comment on a specific performance of music, as licensing authorities are now responsible for administering and enforcing the new licensing regime".

To me that is simply a cop out. It is starting to result in one local authority ignoring blatant breaches of the law, (Westminster with the BBC in Abbey Rd, Tessa Jowell in the Royal Park) whilst Roger's local authority seem to be adopting a "the law means what we say it means" sort of approach. Sheffield seems to take the same approach but from a more liberal standpoint.

There must be lawyers all over the land rubbing their hands with glee. I seem to remember Richard Bridge pointing out something to that effect much earlier on in this debate.

Subject: RE: Affected by The Licensing Act 2003
From: The Shambles
Date: 14 Apr 06 - 07:46 AM

Sorry I messed up with the links.

On 17 March a cross-party committee of MPs strongly criticised DCMS for 'inconsistent and unclear advice' during their implementation of the new licensing regime (see BBC report: http://news.bbc.co.uk/1/hi/uk_politics/4815648.stm