Annex
Department for Culture, Media and Sport responses
to questions from the Regulatory Reform Committee on the Draft
Legislative Reform (Entertainment Licensing) Order 2014
Question 1
There have been a number of amendments made to
the Licensing Act 2003 ("the 2003 Act") since its implementation
and more are proposed by the Deregulation Bill. Given this, why
isn't the Government proposing to bring forward new primary legislation
tailored to meet the present issues relating to the licensing
of premises and events?
a) Have the financial, cultural and community
issues which underpinned the 2003 Act changed to such an extent
that the Act no longer achieves its licensing objectives without
imposing unnecessary burdens?
b) Would these issues be better addressed
through new primary legislation rather than through use of existing
order making powers?
The wider context of reform to the licensing regime
in England and Wales is set out in paragraphs 2.7-2.13 of the
Explanatory Document. In summary, in order to carry out commitments
made in the Coalition Agreement and the 2011 "Plan for Growth",
the Government has conducted two public consultations on entertainment
licensing reform. The first consultation, launched in September
2011, set out a view that the Licensing Act 2003 ('the 2003 Act')
had been a missed opportunity to reform the 'one size fits all'
licensing regime for entertainment. This was linked to the Government's
wider commitment to reduce unnecessary regulation and place greater
trust in people. The 2011 consultation sought views on a broad
proposal to remove licensing requirements for entertainment activities,
and subsequently Government announced a set of deregulatory measures
to Parliament on 7 January 2013. The detail of individual measures
was subject to a further consultation in October 2013 on their
suitability and workability and now, to a significant extent,
these constitute this draft Legislative Reform Order (LRO). The
conclusion that can be drawn from these consultations is that
there is a broad and significant body of public opinion in favour
of deregulating, in a proportionate and responsible manner, elements
of the entertainment licensing regime.
Paragraph 2.15 of the Explanatory Document sets out
that implementation of entertainment licensing deregulation is
taking place by means of changes to legislation in four phases,
using an appropriate legislative vehicle for each phase. Phase
1, the Live Music Act 2012, originated from a Private Member's
Bill, tabled by Lord Clement Jones in July 2010, following a recommendation
for live music deregulation by a Culture, Media and Sport Select
Committee report in April 2009. In 2011, the Government explained
that it would meet the pledge in the Coalition Agreement by supporting
the Live Music Bill and by subsequently examining through the
2011 consultation whether the proposed deregulation in the Live
Music Bill went far enough. The Live Music Act was commenced on
1 October 2012 and was followed by the Government's announcement
on 7 January 2013 proposing further licensing deregulation for
entertainment, including for music.
Phase 2 was the Licensing Act 2003 (Descriptions
of Entertainment) (Amendment) Order 2013, which partially deregulated
plays, dance and indoor sporting events. There was no need for
primary legislation to effect these reforms as the 2003 Act grants
the Secretary of State the power to change descriptions of regulated
entertainment by order, subject to the affirmative procedure.
In addition, as noted in the footnote to Question 1, the deregulation
of exhibition of film on community premises is being taken forward.
During scrutiny by the Delegated Legislation Committee on 11 June
2013, the Minister for Culture, Communications and Creative Industries,
Ed Vaizey MP, stated that the Government was committed to a further
phase of deregulation and proposed to bring before Parliament
an LRO to implement the further measures that had been announced
on 7 January 2013.
As set out in paragraph 3.7 of the Explanatory Document,
the Department considers that existing powers in the 2003 Act
are not broad enough to allow Ministers to introduce new licensing
exemptions or amend existing exemptions by means of statutory
instrument. The Department's assessment was that the proposed
reforms to the 2003 Act satisfied the preconditions for an LRO.
Question 2
Paragraph 2.3 of the Explanatory Document explains
how the use of conditions in a licence granted under the 2003
Act "play an important part in ensuring a "contract"
between a licensing authority and a licensee", and establish
the context of a premises' operation and the standards to apply.
Under the proposals, in a significant number of situations there
will no longer be a need for an entertainment licence. How, in
these circumstances, will a relationship and dialogue exist between
the authority and the provider of the entertainment?
The Department considers that it is disproportionate
for entertainment activities that pose a lower risk to the licensing
objectives to be subject to the licensing regime; while pre-authorisation,
investigation and enforcement should be retained and focused instead
on activities that pose a greater threat to those objectives.
There are many entertainment activities that are
currently exempt from the licensing regime because successive
governments have not viewed licensing burdens as appropriate.
The Government is conscious that unnecessary licensing requirements
can have the effect of discouraging organisers, especially community
volunteer groups, from staging entertainments that benefit communities.
These exempt activities include:
events held in private and without charge with
a view to make a profit (e.g. a large wedding or birthday party);
large screen broadcasts of football matches;
events in places of religious worship;
stand-up comedy;
fireworks displays;
fun fairs;
stock car racing;
outdoor sports, such as the Ryder Cup or three-day
eventing;
spontaneous singing, music-making or dancing;
pub games (e.g. pool and darts);
morris dancing;
entertainment from carnival floats;
music rehearsals;
music that is incidental to other activities;
and
garden fetes and events of a similar nature.
The Licensing Act 2003 (Descriptions of Entertainment)
(Amendment) Order 2013 added to this list by partially deregulating
plays, dance and indoor sporting events. The Department considers
that the new deregulatory measures in this LRO strike a sensible
balance between reducing unnecessary red tape, promoting community
cultural activity and maintaining an appropriate level of protection.
Local authorities can, through guidance and consultation,
help event organisers understand their legal duties arising under
other legislation and assist them to plan and manage successful
events. The Department does not consider it appropriate to require
all organisers of licensable entertainment to be subject to a
regulatory regime that involves administrative and financial costs
regardless of the level of risk to the licensing objectives.
a) What, if any, consideration has been given
to the creation of a mechanism enabling licensing authorities
to impose a form of control on the provision of previously licensable
activities, where the licensing authority perceives a need for
some level of control over, or contact with, an event provider?
The Department does not consider it necessary for
licensing authorities to impose controls over entertainment activities
that qualify for the licensing exemptions set out in this LRO.
The licensing exemptions have been carefully framed so that only
events posing a lower risk to the licensing objectives will benefit
from this reform.
The Live Music Act 2012 introduced a licence review
mechanism for live music in relevant alcohol licensed premises.
This LRO is extending this to recorded music in relevant alcohol
licensed premises. These review procedures enable anyone with
reasonable grounds to complain to a licensing authority about
the effect of the playing of music. If justified and required,
a licensing authority can then impose or re-impose any licence
conditions relating to music (thus effectively making the playing
of live and recorded music a licensable activity once more).
This LRO would allow musicians to perform live music
or play recorded music on local authority, hospital, school and
community premises as long as the consent of the local authority,
health care provider, school or person responsible for the community
premises is obtained (and the performance occurs between 8 a.m.
and 11 p.m.). This requirement is designed to ensure that those
responsible for the premises hosting the entertainment have considered
and approved the effect of the event on other users of their premises
and the wider community.
The Department considers that consistency of approach
between licensing authorities is an important consideration for
those subject to a national licensing regime. Legislation sets
out the licensable activities, how licensing is to be implemented
and the prescribed fees. The Department did not wish to fundamentally
alter the balance of discretion afforded to licensing authorities
by allowing individual authorities the ability to introduce new
circumstances when an authorisation (and fee) would be needed.
Any unnecessary 'form of control' could also have the unintended
effect of discouraging local community entertainments.
b) Was the use of a form of licence review procedure
(as used in the case of music on premises serving alcohol) considered
in the case of the provision of entertainment on local authority,
school, hospital and community premises, where alcohol is to be
served?
The community premises measure (explained further
in paragraphs 7.6-7.14 of the Explanatory Document) is subject
to a condition that the premises are not authorised by a premises
licence for the supply of alcohol on the premises.
The Department considers that entertainment activities
organised by, or on behalf of, a local authority, health care
provider, or school pose a lower risk to the licensing objectives
and that those responsible for those premises can be trusted to
assess what events are appropriate and under what conditions.
On an assessment of the risk to the licensing objectives, the
Department saw no need to build in a review mechanism for live
or recorded music (or other entertainment activities) even if
the premises were licensed for the supply or sale of alcohol.
Such "trusted provider" premises are not typically the
subject of licence reviews. Higher risk late night-entertainment
(between 11pm and 8am) will not qualify for the licensing exemption
measures in this LRO.
c) Have licensing authorities expressed any concerns
about the proposed reduction in their ability to influence how
certain types of events are organised?
The consultation responses from local authorities
(who are also generally the local licensing authorities) largely
welcomed the ability to provide entertainment to the community
without the bureaucracy and cost of obtaining a licence from themselves.
As set out in paragraph 4.12 of the Explanatory Document, the
measure was amended following the 2013 consultation to exclude
certain entities from the definition of 'local authority'. This
was informed by feedback from the London Borough of Newham on
the suitability of the pre-existing definition and the risk to
the licensing objectives.
Question 3
Under the proposals, how will local authorities
become aware of potentially high risk events, and have the opportunity
to work with event organisers to identify issues and minimise
risks?
a) Was consideration given to a requirement on
organisers of events satisfying certain criteria to notify the
local authority, both to enable the offer of advice and support,
and for local services (for example environmental health officers,
fire and ambulance services) to be alert to the possible need
for support or intervention?
b) How will residents' associations and similar
become aware of events where a licence is not required, and have
the opportunity to raise any concerns about local impact, given
that will no longer be a licence and a licence review procedure
under the proposals?
This LRO has been designed so that only entertainment
activities that pose a lower risk to the licensing objectives
will benefit from the licensing exemptions. The criteria that
must be satisfied for each exemption, such as the audience limit
of 500, the timing limitations and the need to secure the permission
of the owner of certain premises for the staging of entertainment,
all provide safeguards against higher risk activities benefitting
from the exemptions. Activities such as outdoor music festivals
and events where alcohol is sold (at least in respect of the sale
of alcohol) will continue to require a licensing authorisation.
The Department is of the view that where entertainment activities,
particularly playing of recorded music, occur in conjunction with
alcohol sale or supply, it is the presence of alcohol that invariably
heightens the risks to the licensing objectives.
The risk to the licensing objectives from, for example,
smaller-scale live music entertainment in workplaces and community
premises, does not justify the administrative and financial burden
of applying for a premises licence or a Temporary Event Notice
(TEN). Compulsory pre-consultation with event organisers will
therefore be reduced under the new regime, for the reason that
this burden is not justified by the low risk to the licensing
objectives. There is nothing to prevent event organisers from
doing so, but the Department believes that organisers should be
trusted to take the necessary steps for organising the smooth
running of their events.
Question 4
Paragraph 3.15 explains that where all the conditions
relating to an exemption are not fulfilled, the entertainment
will be licensable and a licence will be required. What investigative
powers will be available to the responsible body, both to establish
if an event is taking place and whether it satisfies the conditions
necessary to secure an exemption?
The entertainment activities that will no longer
require a licence as a result of these reforms are considered
to present a lower risk to the licensing objectives, either because
of the nature of the activity or the circumstances in which they
will take place. The Department considers that the need for investigation
and enforcement will not be increased because the activities pose
a lower risk to the licensing objectives; indeed licensing authorities
will be able to focus their resources on entertainment activities
that pose a greater risk, such as late night venues or those hosting
large audiences on alcohol licensed premises.
This LRO does not modify existing powers of investigation
and enforcement. Section 179 of the 2003 Act contains powers for
the police or licensing officers to enter premises where they
have reason to believe that they are, or are about to be, used
for licensable activities to ensure that they are being conducted
in line with an authorisation. If the police or a licensing officer
has reason to believe that entertainment not compatible with the
criteria for a licensing exemption is taking place (for example,
because it is continuing past 11 p.m. or they suspect the audience
exceeds 500 people), then they have the powers to enter the premises
and investigate this. Section 180 of the 2003 Act gives the police
the right to enter any premises where they believe that licensable
entertainment is taking place without an authorisation.
It is for local authorities and the police to decide
how best to deploy these powers to ensure compliance with the
licensing regime. Licensing authorities must publish a licensing
policy statement setting out how they run and enforce licensing
in their area, working with the police, other public bodies and
residents. Understandably, licensing authorities operate a risk-based
approach to investigation and enforcement.
a) The Explanatory Document refers (in para 2.4)
to the penalties for failure to comply with the licensing regime.
What penalties does the Department consider appropriate in such
an instance?
It is a criminal offence under section 136 of the
2003 Act for a person to stage licensable entertainment without
an authorisation. The Government expects licensing authorities
and, ultimately the courts, to decide on the appropriate sanctions
within the parameters set out in the 2003 Act. Most minor breaches
are appropriately remedied by written warnings. The paragraph
of the Explanatory Document referred to (2.4) relates to licence
reviews. A licence review may be an appropriate enforcement response
for non-compliance where the premises are licensed for another
purpose, for example the sale of alcohol. This review procedure
further enables conditions to be imposed relating to music entertainment
where relevant complaints have been made (and for other conditions
to be placed on the sale of alcohol).
b) How will the new regime fund the cost of enforcement?
As this LRO is removing unnecessary burdens arising
from the 2003 Act of administering licence applications for lower
risk entertainment activities, there is no new enforcement burden
for local government and other partners. A new burdens assessment
for the policy was completed in 2013 and submitted to the Department
for Communities and Local Government.
Question 5
Given the significant changes which have been
and are being made to the 2003 Act, will the Government be producing
guidance for licensing authorities, potential event organisers
and more general guidance for local neighbourhood groups and similar,
and if so, when is this guidance expected to be available?
By section 182 of the 2003 Act, the Secretary of
State has a statutory duty to issue revisions to existing guidance
to licensing authorities on the discharge of their functions under
this Act, but this revised guidance is subject to annulment by
a resolution of either House of Parliament. The Department has
been preparing revised guidance in anticipation of the commencement
of this LRO and will lay this before Parliament. The 2003 Act
sets out that guidance comes into force on the date on which the
Secretary of State lays it before Parliament and the intention
is to lay this guidance at the point of commencement. We also
intend to amend the licencing forms and notices so that the guidance
notes clearly set out whether an authorisation is needed. Furthermore,
we will continue to work with key stakeholders and in partnership
with other Government departments, to highlight changes to the
2003 Act.
To help ensure that the guidance required by section
182 of the Act is as practical and helpful as possible to both
licensing authorities and other users, the Department has convened
a 'technical group' to review Chapter 15 of the guidance (that
deals with entertainment licensing). The group is made up of expert
representatives of key stakeholders involved in entertainment
licensing who have expressed a variety views on the implementation
of deregulation. This group has met, and once a working draft
has been finalised, the Department intends to provide the House
Librarians with a copy.
Question 6
Para 2.8 refers to representations received by
the Department about the negative impact of the present licensing
regime on the cultural and voluntary sectors and commercial organisations.
Please provide three examples of this impact and explain the licensing
procedures which had to be followed.
a) In each case what was the justification for
the requirement to obtain a licence or Temporary Event Notice
("TEN"), having regard to the licensing objectives in
the 2003 Act?
In each of the examples below, the type of entertainment
is regulated by the 2003 Act and as no exemption applies, a licence
or TEN is required.
Example 1: Volunteer groups: paragraph 24 of the
2011 consultation response document
"The escalating burden of entertainment licensing
and similar regulation has in recent years been a major obstacle
to voluntary arts groups putting on small local events and performances.
The complexity and cost of regulation originally intended for
much larger-scale events has had a detrimental effect on the tens
of thousands of volunteers who give up their own free time for
the benefit of their communities. Voluntary Arts therefore welcomes
these proposals to reduce the regulatory burden on the amateur
groups and individuals that contribute to the Government's vision
of a Big Society." (Voluntary Arts Network)
A voluntary group that uses a venue that is not licensed
for live or recorded music under the 2003 Act currently needs
to submit a TEN for each performance. This example shows that
for a group of volunteers staging live music, plays or dance,
obtaining a licensing authorisation can be a serious and ongoing
burden that can discourage them from staging public performances
altogether.
Example 2: small-scale live music: paragraph 25
of the 2011 consultation response document
"We agree that these proposals would lead to
more performances of live music, particularly in small venues.
Over the past few years our members have been telling us that
the number of gigs available to young musicians who are still
perfecting their craft has gone down. This is primarily due to
a reduction in the number of smaller venues which traditionally
offered this level of gig." (Musicians' Union)
This view was supported by The Live Music Survey
in 2007, which documented a 5% decrease since 2004 in live music
in venues whose core business was not the staging of live music,
known as "secondary venues".
The licensing requirement at present is that if the
music is amplified, a licence or TEN is needed for any performance
between 8am and 11pm where the audience is more than 200 people.
Example 3: Circus: Chapter 8 of the Explanatory
Document
"We have been faced with a different premises
licence every week for a 40-week season, whereas your local pub
or club has one licence application to make". (Malcolm Clay,
Secretary of the Association of Circus Proprietors of Great Britain,
in oral evidence to the House of Commons Culture, Media and Sport
Committee).
Chapter 8 of the Explanatory Document sets out how
the 2003 Act imposes an unreasonable administrative burden on
traditional travelling circuses in terms of having to obtain TENs
for each site they visit. As the number of TENs for which a person
can apply in any year is limited to five (unless a member of the
circus has a personal licence), this can be a major limitation
on a circus business. This LRO clarifies the position for travelling
circuses, who have been subjected to differing treatment by licensing
authorities. Not knowing whether one intended site requires a
TEN or not has added a further burden on this industry.
In the July 2009 response to the Culture, Media and
Sport Select Committee, the previous Government said that it "shares
some of the Committee's concerns about the disproportionate burdens
felt by those who provide entertainment in numerous locations,
including travelling circuses".
Question 7
Para 2.17 refers to the removal of the burden
of administrative inconvenience presently imposed on event organisers.
Please provide three examples of this burden and of concerns about
it raised by event organisers.
Example One
We received a number of consultation responses from
organisations representing performers and event organisers regarding
the administrative burden on event organisers.
The Parent Teachers' Association (PTA-UK) told us
in its 2013 consultation response that this LRO would:
"reduce the administrative burden placed on
PTAs which are entirely run by volunteers",
and
"remove the risk of PTAs being fined for falling
foul of the licensing requirements."
The PTA also saw the benefits of reducing the administrative
burden on organisers when it commented that:
"There is also potential for the level of PTA
activity to increase as a result of the deregulation".
In its 2013 consultation response, Equity explained
that:
"In practice, many circuses must obtain a separate
licence for every single new site they go to—which can be
as many as 40 each season".
and
"They also have problems if a site becomes unavailable
at the last minute, as alternative sites will not ordinarily have
a licence and it takes at least a further 28 days to arrange one."
The following two examples were received directly
from event organisers themselves:
Example Two
Clybiau Plant Cymru Kids' Clubs stated in its consultation
response 2013 that:
"We welcome this measure in principle because
it allows schools the opportunity to undertake fundraising, creative
and cultural events to benefit children, without the extra cost
and burden of paperwork. The cost saving on the licence will allow
schools to divert funds to the care and education of children".
Example Three
Breage Parish Council's 2013 consultation response
read:
"Yes. More freedom to users without unnecessary
paper work, form filling & ploughing through red tape. This
has got to be beneficial to the groups mentioned in this consultation
paper".
a) Do the requirements relating to a licence or
TEN act as a form of checklist for an event organiser of the matters
which must be addressed?
The TEN application process does not act as or include
a formal checklist for the event. It is purely a notification
that a person wishes to provide a licensable activity which is
not authorised by a premises licence or club premises certificate.
The TEN template contains information for event holders on permitted
temporary activities and notes on its completion.
b) What is the level of fees for obtaining a licence
or TEN?
Annual fees are payable to licensing authorities
by holders of premises licences and club premises certificates,
as well as fees for making applications. A fee is payable when
applying for each TEN. There are also certain fee exemptions and
additional fees for large events.
Currently, the main fees for premises licences and
club premises certificates are linked to the national non-domestic
rateable value (NNDR) "band" of the premises. There
are a wide range of fees and fee levels and these are set out
in tabular form at Appendix B of the Home Office consultation,
which is available at:
www.gov.uk/government/consultations/locally-set-licensing-fees
The TEN fee is presently £21 and 120,000 are
issued each year.
Question 8
Paragraph 3.2 describes the consultation on the
draft Order. How were consultees selected, and was the consultation
also accessible through the gov.uk website?
The 2013 consultation document on this draft Order
was published on the gov.uk website.
An email link to the consultation was sent to 144
email addresses. These included long-standing contacts of the
Department who took part in the 2011 consultation, as well as
a number of new stakeholders with whom the Department had had
contact with in the intervening two years. The Department has
a long history of engaging with stakeholders in the field of entertainment
licensing and a list of stakeholders is kept by the Department
to ensure that consultations reach a large number of individuals,
licensing authorities, national councils, charities and groups
representing a range of interests around the country.
Question 9
Paragraph 3.12 refers to an early post-implementation
review of the Live Music Act 2012, which came into force in October
2012. Given the short time which has elapsed since the Act came
into force, the findings are inconclusive and based on anecdotal
evidence from music stakeholders. Why was a decision taken to
rely on this evidence and press ahead with further amendments
in relation to areas of licensing covered by the 2012 Act, rather
than wait until the existence of evidence based on experience
of the Act's effects over a period of time?
The Government's default position on regulation is
that it should be eased where it is no longer considered necessary
to maintain absolute safeguards. In the case of this LRO, the
guiding rationale is that regulation of entertainment activities
under the 2003 Act should only be required where it remains necessary
and proportionate to safeguard the licensing objectives.
In the Impact Assessment for the then Live Music
Bill, the Department made a commitment to undertake a Post-Implementation
Review (PIR) of the legislation in January 2014. The Department
took the view that this provided an opportunity to assist with
the evaluation of a higher audience limit. While, as is acknowledged
in the Explanatory Document, the PIR was conducted a relatively
short period of time after implementation, the Department saw
merit in carrying out a PIR in case it pointed to a need to review
the deregulatory policy on live music, both in respect of the
Live Music Act 2012 and the measures in the proposed LRO.
The PIR found that "There is no evidence to
suggest that the licensing objectives have been negatively affected
since the introduction of the Live Music Act". We concluded
that the PIR did not identify any risks to the licensing objectives
which warranted revision to the implementation of the proposals
set out in this LRO. Delaying the introduction of this LRO—to
allow for a PIR to be carried out further down the line—would
have meant that the various other entertainment activities would
have had to wait several more years to enjoy the benefits of these
reforms.
The Department intends to carry out a full PIR of
all recent changes to the entertainment licensing regime in five
years' time.
Question 10
In Paragraph 3.15, legislation which is capable
of providing protection to those attending an entertainment event
is listed. How does this compare with licence conditions designed
to achieve the same effect? Please provide practical examples.
a) The Local Government Association in its response
to the consultation referred to the effect of the legislation
listed in Para 3.15 (i.e. that it can only be invoked after the
event), and said that it was important that public protection
was not compromised. Explain how the public will be protected
under the new regime, given the move away from specific licence
conditions to reliance on legislation of a more general nature
which is applied after the event.
The Government considers that this LRO is not removing
any necessary safeguards with respect to public safety, but is
re-balancing the Licensing Act so that licensing is targeted on
entertainment activities and events that pose a significant risk
to the licensing objectives, which include public safety. Entertainment
premises that pose a greater risk in terms of public safety, such
as theatres, cinemas, concert halls and similar places with audiences
of more than 500, will continue to require a premises licence
and be subject to tailored conditions suitable for closely seated
audiences. It is also important to note that this LRO makes no
changes to the public safety considerations in respect of alcohol
licensing.
By way of example, a nightclub serving alcohol at
any time and/or playing recorded music after 11p.m. remains subject
to licensing conditions related to minimum numbers of staff and
door supervisors to ensure public safety (such as from the risk
of crowd crushes) and the prevention of disorder. Likewise, a
venue staging professional wrestling remains subject to the licensing
regime, including any condition relating to the proximity of spectators
to the ring. Paragraph 1.16 of the Guidance issued under Section
182 of the Licensing Act sets out some general principles for
licence conditions. There is supporting guidance on gov.uk in
relation to a pool of potential conditions.
In respect of part a), the Department agrees with
the Local Government Association (LGA) that it is important that
public protection is not compromised for events that pose a real
risk to public safety. This is why this LRO will only remove unnecessary
burdens arising from the 2003 Act for the lower risk entertainment
activities, as set out in chapters 4-10 of the Explanatory Document.
We agree with the LGA that the measures in this LRO do not alter
the application of existing legislation, such as the Health and
Safety at Work etc. Act 1974 and the Regulatory Reform (Fire Safety)
Order 2005 (see paragraph 3.15 of the Explanatory Document). These
existing laws contain sanctions for breach of their provisions
that have a preventative effect, and so cannot be said to apply
solely after the event.
The Department considers that licensing, and licensing
conditions, should avoid duplication with other regulatory regimes
so far as possible and should only apply to licensable activities
(for example, a fireworks display is not a licensable activity).
It is the Department's view that many small-scale cultural and
community events can be hampered or deterred by licensing requirements
that impose disproportionate costs. The Department considers that
community entertainment, such as live music, is part of the cultural
heritage of England and Wales and is central to the development
of vibrant communities, particularly in terms of engaging young
people and ethnically diverse communities. Placing unnecessary
burdens on organisers of entertainment can prevent such desired
outcomes.
For more commercial events, the 'Purple Guide' provides
guidance to the events industry on how to manage health and safety
at large scale music and other events, including issues ranging
from crowd control to sanitation. The Health and Safety Executive
website has guidance for event organisers more generally.
Question 11
The Environmental Protection Act 1990 is listed
in Para 3.15. What evidence does the Department have that it will
provide a solution to the concerns of local residents that an
event is creating unacceptable levels of noise pollution?
The Department considers that the Environmental Protection
Act 1990, the planning system, and the 2003 Act each have a role
to play in the reduction of public nuisance from noise. The overall
regulatory regime has to strike a balance between enabling communities
to have well-run entertainment events, the needs of business,
and managing the adverse effects that can come from noise.
The Government has recently reviewed its noise legislation
as part of the Red Tape Challenge and believes that the law currently
strikes an appropriate balance. Neither the Department for Environment,
Food and Rural Affairs (Defra) nor DCMS have been made aware of
specific cases where this legislation has not been effective in
managing unreasonable noise where this has occurred in premises
hosting performances of live and recorded music since the Live
Music Act 2012 came into force.
The Committee may wish to be aware that anyone may
ask the licensing authority to review a premises licence on the
grounds of public nuisance. On a review of a premises licence,
the licensing authority has the power to give renewed effect to
an existing condition that was suspended by the Live Music Act
2012, add a condition relating to live music, or to make new conditions
relating to the sale of alcohol. Where this power is exercised,
performances of live music on premises become licensable once
again. This LRO is proposing to extend this important safeguard
of the licence review so that it applies to recorded music as
well.
Furthermore, under the Anti-social Behaviour, Crime
and Policing Act 2014, new Closure Orders will allow the police
or local authority to quickly close premises which are causing
or are likely to cause nuisance or disorder to the public. Such
closures can last for up to 48 hours or, in more severe cases,
up to six months.
a) Is the Department satisfied that Environmental
Health Officers (EHOs) will be available to deal with noise pollution
issues as and when they arise (often outside normal working hours),
given that an event organiser is not required to notify a local
authority of an event for which a licence is not required?
The Department is satisfied that our reforms do not
impact on EHOs' powers or ability to deal with statutory noise
nuisance. Acceptable noise levels may well vary according to the
time of day, and this LRO is not making regulation of noise nuisance
any less effective. It is for individual local authorities to
decide how they run their noise management services (for example,
whether to have officers on call at night) and this is based on
local needs and circumstances.
From October 2014, the police as well as local authorities
will also have the ability to deal with anti-social noise under
the Anti-social Behaviour, Crime and Policing Act 2014. If the
noise is unreasonable and causes a persistent or continuing detrimental
effect on the community, the police and local authorities will
be able to use Community Protection Notices to deal with the behaviour
by closing premises (through the closure powers).
We would also like to clarify that at present, advance
notice of an event only applies where a TEN has to be given because
the music entertainment is not authorised by a premises licence
or club premises certificate.
b) What is the Department's view on claims (in
the responses to the consultation) that budget cuts will impact
on the availability of EHOs?
Each local authority is responsible for the operation
and resources devoted to running its noise management services
(as well as the licensing and planning regimes). Under the Environmental
Protection Act 1990, local authorities have a duty to take reasonably
practicable steps to investigate complaints where the noise emitted
from a premises might constitute a statutory nuisance. The decision
as to whether or not the noise is a statutory nuisance is made
by the local authority's environmental health department on a
case-by-case basis.
c) Will the changes made by the Order result in
the 1990 Act being used post-event, providing little relief at
the time that noise pollution is taking place?
It may be helpful to clarify that we do not consider
that local authority officers are only able to take action after
the event. We would expect organisers to have considered the impact
of their event on neighbours beforehand, and local authorities
are always able to provide consultation and advice for those planning
events. Local authorities have a statutory duty to serve an abatement
notice before the event to prevent statutory noise nuisance occurring
or reoccurring. The other legislation providing protections for
residents set out in paragraph 3.15 of the Explanatory Document
all contain the power to impose sanctions on those who breach
the terms of their requirements. Legislation can therefore have
a powerful preventative effect.
d) What evidence is there of the impact of the
proposals on the workload of EHOs? Will they face an increased
workload which negates any savings made from reductions in the
licensing burden faced by local authorities?
The Impact Assessment which accompanied this LRO
identified that a key area of impact of public nuisance is noise
pollution, and that increased numbers of performances have the
potential to raise local noise levels. The Impact Assessment concluded
that, under the vast majority of ordinary circumstances, the increase
in noise level would not be significant enough to be considered
deterioration in local environmental quality.
A noise survey conducted in 2008 found that only
3% of those interviewed specifically identified public houses,
clubs, or other entertainment venues as a source of noise that
was bothering them. This indicates that venues that stage live
entertainment tend not to be particularly heavy noise polluters.
Occasionally, however, noise levels might reach levels
which disturb residents in the area. This has direct costs to
households affected, and it also has indirect costs to local authorities
that have a legal obligation to investigate and, where appropriate,
deal with noise complaints. The Impact Assessment is modelled
on a 5% increase in existing noise complaints and the impact this
would have on households and local authorities. The Impact Assessment
sets out the detailed data and assumptions used in calculating
an indicative estimate of the potential costs in relation to noise.
The Impact Assessment concluded that the benefits of the policy
significantly outweigh the costs.
e) What consideration was given to the need for
special conditions to apply in the case of outdoor music events?
The Department considers that outdoor music does
not present an inherently greater risk to the licensing objectives
than music entertainment inside buildings. Summer outdoor music
entertainment in more rural venues such as pubs with grounds can
be at least as reasonable an activity as music entertainment indoors,
taking into account venues such as a pub on a residential street,
or one with flats above or below it.
We consider that there are more relevant factors
affecting the degree of risk to the licensing objectives, such
as the size of the audience and the timing of the performance,
which are reflected in our proposals. The Live Music Act 2012
removed the licensing requirement for unamplified live music and
live music in defined circumstances, in both alcohol licensed
premises and workplaces regardless of whether the activity takes
places indoors or outdoors. However, where amplified music is
performed outdoors, event organisers need to be aware of their
responsibilities in relation to potential noise nuisance under
the Environmental Protection Act 1990 and the criminal sanctions
for breaching abatement orders served under it.
Where music entertainment takes places outdoors on
alcohol licensed premises—such as where a beer garden is
included as part of the licensed premises—then on the review
of a premises licence and where this is justified, the licensing
authority has the power to add a condition relating to music entertainment
outdoors. The Anti-social Behaviour, Crime and Policing Act 2014
allows the police and local authorities to serve new Closure Orders
on problem premises to deal with noise disruption.
Question 12
In the case of "trusted providers" (Chapter
4) is it the case that those arranging an entertainment event
will always have a link to "essential social functions"
(Para 4.2), or could an entertainment event arranger be solely
linked to the administration of the building in question?
There is no requirement for a trusted provider's
entertainment activity to have a direct link to an essential social
function in order for this measure to apply. In this LRO, providers
are trusted because their core activities stem from their primary
and enduring responsibility for the delivery of essential social
functions. However the exemption will only apply provided that
the various relevant criteria—including that the entertainment
is provided by the trusted provider and on its own defined premises—are
met.
An entertainment activity is not organised 'by, or
on behalf of' a trusted provide simply because the trusted provider
owns or administers the premises. If this were to be the case
then all and any entertainment operated lawfully on land or buildings
belonging to a local authority, healthcare provider, or school
proprietor would be eligible for the exemption (e.g. a commercial
company operating under a long term lease from a local authority).
To assist with the smooth implementation of this measure, we will
include in the Guidance (issued under Section 182 of the Act)
the relevant factors that are material to the criteria for this
exemption.
It is worth noting that trusted providers will still
require a licence to supply or sell alcohol for consumption on
the premises.
a) Explain why it is considered that the "trusted
provider" status justifies the absence of a limit on audience
size and why there is no limitation of audience size in the case
of circuses and Greco-Roman and Freestyle wrestling?
The Government believes that local authorities and
certain other trusted civil society organisations should have
greater freedom to manage their own affairs with regard to the
provision of entertainment. This approach presents a low-risk
to the licensing objectives as these trusted providers:
are subject to legal duties, inspection, audit
and other regulatory regimes;
are subject to local scrutiny through being
part of the wider community;
are accountable through their governance structure;
and
have recognised persons responsible for the
day-to-day running and decision-making within individual premises,
with whom regulators, enforcement agencies or local residents
can raise any concerns.
Furthermore, this avoids a situation where, in effect,
the local authorities (who can also be licensing authorities)
have to grant licences to themselves. We also consider it relevant
that local residents have a democratic recourse against a local
authority if they disagree with its licensing policy.
In terms of the audience limit for circuses, we could
see no reason for imposing one, particularly as comparable events,
such as fun-fairs, have no such requirement within the licensing
regime. Our proposals do apply certain criteria to ensure that
deregulation does not have unintended consequences; this measure
will only apply to circuses where the:
entertainment takes place wholly within a moveable
structure;
spectators are accommodated wholly within that
moveable structure; and
travelling circus has not been on the same
site for longer than 28 days.
The Department believes that these factors will,
in practice, have the effect of limiting the size of the audience
for such circuses.
For Greco-Roman and freestyle wrestling, the need
to dispense with a licensing authorisation only applies to performances
with audiences of up to 1,000 people.
Question 13
In devising the new regime, was the potential
for other forms of nuisance (not just noise) to local residents
considered, e.g. travel and transport disruption, parking issues?
The Department considered all four licensing objectives
in framing the policy. The third objective, that of preventing
public nuisance, typically covers noise nuisance, light pollution
and smells. Event organisers may nevertheless contact their local
authority to minimise other forms of disruption, such as to transport
and local parking.
The 2003 Act authorises the use of "premises"
for licensable activities, and any issue of public nuisance has
to relate to and be caused by the premises concerned. Where public
nuisance relates to activities taking place elsewhere, these would
be dealt with by the police or relevant authority and other legislation
can be of assistance: several offences exist under the Highways
Act 1980, including the unauthorised obstruction of a public highway.
Normal parking enforcement regulations will continue to be enforced
by local authorities.
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