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Update on the English Licensing Act 2003

Issue: 
Traditional Drama Forum - No.8

Article type: 
Features

Since the report from Sarah Crofts in Traditional Drama Forum No.7, the Licensing Bill has become the Licensing Act 2003

In the Lords on 3 July 2003, The Government offered an outright exemption to Morris dancing, and a questionably effective and marginal concession for the conditions that can be placed on the licence for unamplified live music in small pubs. This last minute Government amendment of an amendment is extremely complex - [Section 177 of the Act]. The person to contact for information on this is Dominic Tambling at the Department for Culture on 020 7211 6351.

The Conservatives continued to support the small events amendment but the vote was 145 votes to 75. The full details of this debate can be read on Hansard. http://www.publications.parliament.uk/pa/ld199900/ldhansrd/pdvn/lds03/text/30703-16.htm#30703-16_head0.

What has been achieved?

When the Bill was published it proposed a blanket licensing requirement for almost all public performance and much private performance. All performers were potentially liable to criminal prosecution unless taking all reasonable precautions to ensure venues were licensed for their performance.

Lobbying, including an e-petition, has led to:

  • A complete exemption from any licensing requirement for regulated entertainment provided in a public place of religious worship.

  • A similar exemption for garden fetes and similar events provided they are not for private gain.

  • An exemption from licence fees for village halls and community premises, schools and sixth form colleges.

  • An exemption for the performance of live music (amplified or unamplified) anywhere, if it is 'incidental' to other activities such as eating and drinking (but not dancing, or another licensable entertainment).

  • An exemption from licence conditions (but not the licence itself) for unamplified live music in places such as bars, pubs, clubs, restaurants (i.e. where alcohol is sold for consumption on the premises) between 8am and midnight (subject to review, if, for example, this gives rise to problems for local residents).

  • A limitation on licence conditions for amplified music in pubs, bars etc (subject to the same review procedure above), restricting those conditions to public safety, crime and disorder only.

  • A complete exemption for Morris dancing and similar, and any unamplified live music that is 'integral' to the performance.

  • An exemption from possible criminal prosecution for ordinary performers playing in unlicensed premises or at unlicensed events. Now only those responsible for organising such a performance are liable, this includes a bandleader or possibly a member of a band who brings an instrument for another player to use. There remains a 'due diligence' defence, however (taking all reasonable precautions first etc).

  • A clarification that at private events where the performers are directly engaged by those putting on the event - no longer triggers licensing (however there remains an ambiguity that if entertainment agents are engaged to provide the band, this does fall within the licensing regime).

In spite of all this, the Act does mean 'none in a bar' is the starting point of the new licensing regime. Any public performance of live music or drama provided to attract custom or make a profit, amplified or not, whether by one musician or more, is illegal unless licensed (other than in public places of religious worship or garden fetes etc).

So what will the Act mean?

A positive outcome will depend to a great extent on the proactive efforts of musicians, performers unions, and the music industry, to make the best of the new law.

The Act for the first time extends entertainment licensing across all private members clubs, and registered members clubs. It also captures private events, such as charity concerts, if they seek to make a profit - even for a good cause.

The Act creates a new category of offence for the provision of unlicensed 'entertainment facilities', which would include musical instruments provided to members of the public for the purpose of entertaining themselves, let alone an audience.

However, the 'incidental' exemption could prove to be quite powerful, but that will depend to a great extent on how local authorities choose to interpret the provision. The Guidance that will (eventually) accompany the Act may become particularly important on that point.

So are the mummers of Cerne Abbas and elsewhere now safe? The answer sadly must be no unless we can work to get our local authorities to view the glass as half full rather than half empty. The exemption from the licensing requirement for both incidental, recorded and live music does present them with perhaps an opportunity to view sessions and possibly folk drama favourably?

This should serve as a summary of the Act's provisions but the Government’s explanatory notes can be read here http://www.legislation.hmso.gov.uk/acts/en/03en17-f.htm and the full Act can be read here. http://www.legislation.hmso.gov.uk/acts/acts2003/20030017.htm.

Sincere thanks are due to all those who have tried to keep pace with these developments and lobbied their MPs; Peers and the media and who hopefully will continue to record and monitor developments. Special thanks are due to Hamish Birchall who supplied most of these words and without whose efforts we would all be very much worse off.

The final word from the Rt. Hon. Richard Caborn MP, Minister for Sport and Tourism; from a letter to my MP dated 22 July 2003.

"We have also given an undertaking that we will review the existing descriptions of entertainment in the Act six to twelve months after the transition period. If the Act has had an unintended, disproportionate negative effect on the provision of live music or other forms of regulated entertainment there are powers already in the Act to modify the position through secondary legislation. However we believe that the provisions in the Licensing Act will allow live music and other regulated entertainment to thrive.

Finally the Department will be setting up a forum, comprising representatives of performers, venue operators, local authorities and others whose task it will be to maximise the take-up of the reforms.

We believe that the Licensing Act 2003 will increase the opportunities for musicians and other artists to perform and make it easier and more affordable to stage live entertainment."

Roger Gall