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Memorandum submitted by Roger Gall
Please find the following case study. This demonstrates the shortcomings of the Licensing Act 2003, its effects on one particular cultural activity and the difficulties presented to the public, in addressing all licensing matters, at the local level. This was an issue under the previous legislation and the comparison demonstrates many areas where the Licensing Act 2003, which on paper should have improved such matters has failed to do so in practice. The Act should not affect live music which is not performance.
I understand that this Committee does not normally investigate individual cases of complaint or allegations of maladministration. However, this case also demonstrates very well the failure of the current procedures which are supposed to be set up to address such matters and I would request that the Committee not only considers the broader implications but takes what ever steps it can to ensure that this local situation is finally addressed and the public of this borough can receive the safeguards that Parliament intended.
The intention of Parliament was to provide the public protection by ensuring that the Licensing Authority only acted on policy that was democratically agreed. The evidence I provide will demonstrate that officers employed by my council would seem to take the opposite view. That as long as a matter does not appear as democratically decided and binding policy in the Statement of Local Licensing Policy, that they alone can carry on making their own policy and advising as they wish. So in practice, the legislation locally has become what those who are paid to enforce it, wish it to be at the time. As a result, any member of the public could find themselves be liable to prosecution for being in contravention of a quasi 'policy', without being informed of this in advance, in the document which Parliament expects to provide this function.
The two pieces of advice which are stated to be local licensing requirements and which present problems to the cultural activity in question do not appear in the recently revised Statement of Local Licensing Policy .
This advice has never been presented for adoption for any Committee, but is now accepted by the Local Government Ombudsman as being 'the council's view' [Appendix 4]. I will deal with the difficulties in dealing with this this in detail in 8. Participatory music sessions but would also like to make comment on and demonstrate areas where this totally undemocratic approach has impacted on other aspects of this legislation.
For both performance and non performance of live music, this legislation is an illogical mess. But even if the Act was the best piece of legislation Parliament ever created, its careless delegation of power to the local level, without adequate control over the historical excesses of the employees of some of our local authorities, would have still turned this legislation into the local lottery that has always been entertainment licensing. I am sure there are some very capable and helpful employees in the licensing and legal sections of our local authorities. Sadly, that has not been my experience.
1. Difficulties in ensuring that the Licensing Act 2003 is followed. 1.1. The Licensing Act 2003 delegates considerable power to the local level but in practice it proves difficult to establish what exactly constitutes this body and how to obtain a policy decision from the local Licensing Authority. It is perfectly sensible for the employees of a Licensing Section to be the first point of contact with the public. The public can democratically challenge any policy, which then can be referred to as being the council's view, or more correctly as the view or policy of the local Licensing Authority. But in this case, changing the council employee's view is required and this is very difficult.
1.2. Council employee's views cannot be referred to as being the council's view, until formally endorsed as policy. The Local Government Ombudsman's standard summary procedure will automatically turn a complaint about the advice provided by council employees, into a complaint against the Council [Appendix 1]. This procedure then provides the council employee's view and actions with an undeserved legitimacy.
1.3. The Local Government Ombudsman defines maladministration as failure to follow the law or a council's own rules. The employees advice has been forced to made two complaints to this 'watchdog'.
1.4. The ruling on the first complaint was that if a council committee accepted this advice, the Ombudsman could not challenge this. In June 2001, the council's employees presented a report which recommended that the Social and Community Committee endorse the enforcement action already taken at the Cove House Inn by the council's employees, and the interpretation on which it was based. The committee felt that it had little choice but to do this. The legislation under which this advice was offered, was then replaced by the Licensing Act 2003. This change should have solved the problem, but I will show here that it did not.
1.5. The second ruling was that, even when there was no evidence offered of any committee being presented with this advice, was that this represented the council's view and the Ombudsman could not challenge this either. The whole point of this complaint was to demonstrate the councils employee's failure to obtain the endorsement and to correctly form policy, as required by the Licensing Act 2003.
1.6. The Local Government Ombudsman' s rulings would lead the Select Committee believe that as everything was undertaken correctly, this must be exactly how Parliament intended the Licensing Act 2003 to work. I will leave this Select Committee to decide if this is indeed the case [Appendix 1].
2. Curfews 2.1. An undated report for the first scheduled review of the Statement of Local Licensing Policy is attached [Appendix 2]. Reference Number 010, of that report calls for some kind of a curfew to be included. The Licensing Manager's response makes it clear that such a measure would in effect, be against the law. However, the Dorset Echo dated 22 February 2008 [Appendix 3] shows that the Council's officers were ignoring this and were supporting Inspector Meteau's later call for the adoption of a 3am curfew. "PC Mike McCabe and borough council enforcement officer Mike Hale will be visiting venues in the next 10 days to ask licensees to sign up to the scheme."
2.2. Serious questions must be asked when police and council employees decide to apply pressure on licensees to try and circumvent this legislation. A fixed curfew remains a curfew, whether imposed or claimed to be 'voluntary' The current legislation remains until Parliament agrees to a change.
2.3. There is nothing in the Statement of Local Licensing Policy which calls for it but there is now in practice, a curfew on live music in most local pubs, even where permission for the sale of alcohol is granted for much later. This is achieved mainly by council employees ensuring that the licensees put this in the application. This limitation is achieved by council employees making strong implications to licensees, that applications for later sale of alcohol are unlikely to be granted without such a curfew. The application will then be said to have been granted without alteration using delegated authority and without the need for the Licensing Committee. This 'horse trading' was the approach when these same council employees were responsible only for entertainment licensing. 2.4. This new legislation has made very little difference to such practices, which do not further live entertainment, have very little to do with the objectives of this legislation or the wishes of Parliament. They would seem to be motivated by what is judged to be most convenient, to those who are employed to enforce the legislation and who would seem very determined to avoid a Licensing Committee hearing.
3. Cultural strategies - Section 182 Guidance - 13.57 and 13.58. 3.1. Where there is any indication that events are being deterred by licensing requirements, statements of licensing policy should be re-visited with a view to investigating how the situation might be reversed. This would seem to provide all the protection required but it is simply ignored locally. I was informed "that the council did not do them any more" when I asked who to contact over the local Cultural Strategy.
3.2 . There is more than simply some indication, that what are stated to be local licensing requirements have deterred the cultural activity, which used to take place at the New Star [See 7 and 8 of this submission].
4. Section 177 4.1. If the intention of Parliament was to safeguard unamplified music from unnecessary licensing restrictions, this end has not been achieved by S 177. My review submission asked for this exemption to be included in the Statement of Local Licensing Policy, where all the all the other exemptions are listed.
4.2. An undated report for the first scheduled review of the Statement of Local Licensing Policy is attached [Appendix 1]. The Licensing Manager's response to Reference No 002 and 005 does not explain why this exemption is not to be included but it will be of interest to the Select Committee, as this response contains what is stated in [a],[b],[c] & [d] as being this council's understanding of Section 177.
4.3. .My understanding for [a] is that the premises not only need to have a capacity of not more than 200 people but that the venue would need to have authorisation to that effect. Many Premises Licences are issued without an imposed safe capacity and these would be precluded from S177.
4.4. The implication of [b] is that the only premises whose application has been decided by a Licensing Committee could qualify. That would preclude from qualification, the majority of the applications, which are decided by council employees. Where licensees in these premises have been persuaded by employees to limit their application for live music, all unamplified music would also have to finish before midnight and S177 could not apply.
4.5. The suggestion is that only 24 licenses out of 358 were granted as a result of a Licensing Committee hearing. This low figure may not be of concern to the Select Committee, if the remainder, granted by the council's employees enabled live music to continue until the time permitted for alcohol sales.
4.6.The council employees just ignore important parts of the Act in encouraging later alcohol sales at the expense of the time for live music. I hope his practice is of great concern to the Select Committee.
5. Licensing Committees 5.1. Licensing Committees are now required to discharge all licensing functions. This important reform has made little difference to local practice. The local Licensing Committee or Sub Committee only sit occasionally to hear the few applications which the Licensing Section decide to refer to it.
5.2. I have made two attempts to correct this and other aspects, during the public consultation process for both the original document and the first review of the Statement of Local Licensing Policy. The Management Committee only discusses the council's employees comments on the submissions and if there is no comment on a particular point, the committee does not hear it. Most of the points in this submission were contained in my submission to the review, but the Licensing Manager's response, would not give the Select Committee that impression [Appendix 2].
5.3. My attempted submission, in support for the New Star's variation was ruled not to be relevant. The council's employees alone decided this and the application. The correspondence on this is detailed [Appendix 4]. You will see that the matter was to be referred to during the policy review - you can also see that the officers did not honour this [Appendix 2]. The matter was not referred to the Licensing Committee, as I requested. I would be grateful if the Select Committee's confirmation that the Licensing Manager was incorrect could be conveyed to the Licensing Manager and the matter corrected decided by Committee.
6. Premises Licensing of public spaces 6.1. One of the shortcomings of the Act, presenting problems to Punch and Judy etc, was addressed by Local Authorities being advised to obtain Premises Licence Entertainment Permission for outside areas. The legislation assumes that those applying for Premises Licence Entertainment Permission will actually wish to provide some. However, this measure has inadvertently provided a means where entertainment can be prevented and limits on the conditions which can be placed by a Licensing Authority, can be exceeded.
6.2. If a Local Authority did not wish to provide any entertainment on these areas or wished to place limits which were additional to those it could impose as the Licensing Authority, there is nothing to prevent this. For the Local Authority becomes in effect the licensee and then has every right to provide the type of entertainment it wishes to, or provide no entertainment at all on these areas. The Act ensures that Licensing Authorities cannot interfere on grounds of taste but this is way that Local Authorities could quite legally discriminate against certain forms of entertainment on the grounds of taste.
6.3. This action was undertaken locally for 19 public spaces and has formed an additional layer of bureaucracy. Additional permission must now be obtained from the Local Authority to use these areas, although as permission for Regulated Entertainment has already been granted, it is difficult to see on what grounds any proposed use, covered by this permission, could be refused. Any entertainment taking advantage of these licensed areas has a built-in 8.30pm curfew, whatever the nature of the entertainment.
6.4. I suggest that the attraction of this measure to the employees of the local Licensing Section, was that it offered them more control, rather than less, and to enable the local Punch and Judy show on the beach.
7. Participatory music sessions. 7.1. The council employees tend to ignore their enforcement at the New Star [Appendix 5]. An undated report for the first scheduled review of the Statement of Local Licensing Policy, contains no mention of the New Star session [Appendix 2]. The New Star session pre-dated the Cove House Inn session and there is no question of this session being advertised in any form.
7.2. The new Star session continued for two years after the enforcement action at the Cove House Inn established that entertainment permission (then in the form of a Public Entertainment Licence) was required. Then, a councillor trying to help the situation, openly questioned the council's employees, as to why the Cove House Inn session was required to be licensed and the New Star session was not. A letter then informed the licensee that they had to either pay to obtain permission or stop the session. The licensee did not accept that the long-running activity was now licensable. So this session ended.
7.3. Unlike the New Star, the Cove House Inn did provide conventional entertainment, in the form of small-scale performance, exempt under the old 'two-in-a-bar-rule. The Cove's licensee did not accept that the session required additional licensing but by eventually obtaining the PEL, the licensee not only enabled the session to continue but enabled larger-scale conventional performance. Letters to both licensees, pointing out that they face prosecution with a possible £20,000 fine or a six month prison term, was referred to by the council's employees as 'encouraging' the licensees to apply. The Cove House Inn then went on to obtain Premises Licence Entertainment Permission under the Licensing Act 2003 and the session continues every week, but licensed of course, as a performance of Regulated Entertainment.
7.4. Attached is correspondence showing the result of my efforts to establish if the New Star session could re-start without Entertainment Permission under the new Act [Appendix 6]. Later, the New Star did obtain Entertainment Permission and the licensee wished to restart the sessions. Efforts were made by me and by others to do this but it has proved not to be possible. The customers had taken their music making elsewhere. This demonstrates that the activity, now deterred by so-called local licensing requirements, is not the conventional performance of licensable Regulated Entertainment which it is advised to be. It is self-evident that if the New Star session were this, and with the Entertainment Permission now in place, all the licensee would need to do, is employ a performer to provide it. As this music making was made by customers for their own enjoyment, such an approach is not possible.
7.5. These two pub session provide local examples of a national activity. Customers meet in pubs, on a regular basis to make music together for their own enjoyment. Any discussion with the participants will show that they have nothing more than the licensee's agreement to make music on a particular night. The participants are under no obligation to turn up and under no obligation to make any music for any period, should they turn up. Should the participating customers choose to go elsewhere, the licensee would just have to accept this.
7.6. To expect a licensee to pay good money to enable an activity such as this, as a performance of Regulated Entertainment, when they have so little control, is unrealistic. This expectation can only limit the spread of such activities and place them in direct competition for available nights, with paid live entertainment. This is what has historically prevented the spread of these activities and limited them to off-peak mid-week dates of the week only.
7.7. The main factor now for determining if this cultural activity is a performance of licensable Regulated Entertainment under the Licensing Act 2003 is whether it is provided for the purposes of an audience. Customers participating in the Cove House Inn session often joke about this aspect, on the many perfectly satisfactory nights, over the past 8 years, where there are no other customers present.
7.8. In practice, the presence of other customers has a much relevance to the satisfactory outcome of the session as the presence of other customers may have on participatory pub games of darts or pool. If any other customers who happen to be present during these sessions are judged by the council's employees to be forming an audience, and thus be a performance of licensable Regulated Entertainment, then the same must be true for other customers present during participatory games of indoor sport.
7.9. The attached letter to my MP, shows that the council's employees have no intention of advising that participatory games of indoor sport are licensable Regulated Entertainment [Appendix 6].
7.10. The problem has been the advice provided by the council employees. The legal advice especially, has not been designed to inform, but only to support a view that was already held. It is undemocratic and will obviously act as a deterrent, to demand that the only way locally that such traditional cultural activities can now be made legal is to expect those who unable to make the music (the licensee), to obtain the permission, when those who make the music (the customers) are unable to obtain the required permission.
7.11. Under the Licensing Act 2003, the council employees advice on this activity could be summarised as the only way that it can take place in pubs, is by the licensee obtaining Premises Licence Entertainment Permission, as a performance Regulated Entertainment and that it could not qualify for the exemption for a performance of live music which is incidental. And that if this presents problems, it is the fault of the Act.
7.12. The employees do accept when the point where indoor sports in pubs become Regulated Entertainment but do not have the same approach for pub music making. Conventional performance has only fairly recently moved from pub function rooms into the bars and the main body of our pubs and in the process it seems to be forgotten that music making for its own sake, is as old a tradition as pub games and that with a the licensee's approval, the customers have every right to express themselves musically. 7.13. My council's employees have incorrectly advised the elected members that the courts had decided that, even when made by the public for their own enjoyment, such music making was licensable. This was before they were provided with case law, Brearley -v- Morely 1899, where the complete opposite was established. A licensee was acquitted on appeal of providing unlicensed entertainment because the court judged that the customers were making their own entertainment.
8. The Act's exemption for a performance of incidental live music. 8.1. What the council employees advise and what the Local Government Ombudsman accepts as being the Council's view of what the Licensing Act supports under this exemption, is contained in the attached correspondence [Appendix 7]. This despite not appearing as policy in the Statement of Local Policy and never being presented for endorsement by any committee. The Local Government Ombudsman states: She enclosed information available and commented on the Council's view of what constituted incidental music. This was considered to be; music that could take place without an audience, music that would not be advertised or held on a regular basis: and music that would not be amplified [Appendix 1].
8.2. The local policy on enforcement for this exemption, was sought and the following was carefully advised, in the letter to me dated 5 May 2006 [Appendix 7]. The Licensing Manager again copied this to Jim Knight MP on 20 March 2007 [Appendix 6]. As you know, the Act contains no definition of 'incidental' and my legal team advise me that in these case 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 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."
8.3. The above advice is not the adopted policy, but it is stated to be the Council's view. It is forming policy in practice and has deterred the New Star session from restarting. What is the status of this advice?
8.4. Any music making which could take place without an audience is not Regulated Entertainment, so would not need this exemption. It is an audience which defines a performance of Regulated Entertainment. This advice means that all performance (i.e. to an audience), would be prevented locally, from qualification under this exemption, including the example provided in the S 182 Guidance, a performance of (amplified) live music as part of stand up comedy. This advice is also in direct contrast to the following from Hansard.
Jim Knight: I would not have become interested in the subject if it were not for Roger Gall, a constituent of mine, who lives on Portland, where there is a folk jamming session on a Friday night in a pub called the Cone House Inn. It became known that the landlord was comfortable with people coming along on a Friday night and playing their music. These sessions were not advertised. Such an event, which is not advertised or actively encouraged, may be a passive part of the atmosphere of the pub, and it may begin to build up business and become a substantial attraction and profit maker for the publican. Would the Minister regard such an activity as one that should be regulated under the Bill?
Dr. Howells: It seems that that 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. I do not know whether that gives him any comfort. Often, if it is intended that the everyday meaning of a term be used in legislation, it must be judged commensurate to the circumstances of each case. I know that that has drawn some guffaws from Opposition Members, but I hope that the combination of the term ''incidental'' and the explanation that I have tried to give, taken together with the guidance that the Department will issue, will be sufficient to ensure that licensing authorities give due consideration to whatever music is being performed. 9. Entertainment facilities Schedule 1. 3. 9.1. This Act contains many things which are supposed to encourage music and dancing but has introduced Entertainment Facilities, which applies only to music and dancing only. The provision of a pool table is not a licensable Entertainment Facility but the provision of a piano or dance floor would be. As the Act stands, this measure is clearly discriminatory. Can the Select Committee ensure that this measure is extended to cover all the activities listed in as possible Regulated Entertainment in Schedule 1, or preferably that this measure is deleted from the Act?
10. Schools and places of learning. 10.1. A central record of schools with Entertainment Permission is not held [Appendix 8]. The only way to establish this information is to ask each individual Licensing Authority. Only four local schools have this [Appendix 9]. Temporary licensing arrangements can be made to cover up to ten specific licensable activities. However, most of our schools have pianos, stages and dance floors. These are fixed facilities for enabling persons to take part in licensable music and dancing and so the Act requires them to obtain permanent Premises Licence Entertainment Permission. Can the Select Committee establish how many schools with fixed Entertainment Facilities are currently in contravention of this aspect of the Act?
11. Conclusion 11.1. The enforcement action at the Cove House Inn was in the year 2000. My MP has been involved for all of that time and has played a part in a major revision of licensing legislation as a member of the Bill's Committee Stages. I am in pretty much the same position, except that my part in 'organising' the sessions in any unlicensed premises would mean that I now face prosecution along with the licensee. And that any request for information on licensing matters, are now judged by the council's employees to be vexatious [Appendix 1]. I would be most grateful if the Select Committee's could end these local problems.
11.2. I hope that the evidence provided here can also help prevent similar situations elsewhere. This experience has made me somewhat of an authority on all the positive aspects of participatory sessions and the negative effects which licensing has on them. I would be glad to provide the Select Committee with any further information they may require to ensure that such beneficial cultural activities can be free from the burden of licensing controls which Parliament has never intended to be applied to such activities.
11.3. The partial exemption known as the old 'two-in-a-bar rule' only applied in pubs. This aspect is at least recognised, that the premises were already designed with the safety of the public in mind and that performances of small-scale music making did not require any additional licensing permission.
11.4. My council's employees are now in effect ruling, that pubs, which have already been made safe for the staff and customers and have the provision of a Premises Licence, become unsafe when those same customers make music for their own enjoyment. The Licensing Act 2003 accepts that there are types of music making, tuition and rehearsal being examples, which are not performance and therefore not licensable, . It seems to be an interpretation that the admission of the public to such music making, will automatically turn this into licensable Regulated Entertainment.
11.5. I suggest a change to where such an activity would take place anyway, that the presence of others be seen as incidental and not forming an audience, especially where a Premises Licence is already in place.
11.6. The Government argue that TV sports in pubs, have all the safeguards required from other legislation and do not require additional Premises Licence Entertainment Permission. Can the Select Committee ensure that this logic is extended to cover all the other activities that currently are required to obtain this additional permission? There may once have been a need for additional permissions for fixed venues where entertainment takes place. There may well still be a need for additional permissions for temporary sites. I suggest where venues are already made safe for the public, that the type of additional licensing permissions required in the Licensing Act 2003, now form an expensive, unwieldy, unfocused and unnecessary layer of non-accountable local bureaucracy.
September 2008 |