Print

‘REGULATED ENTERTAINMENT' - RADICAL REFORM IN THE OFFING..

Consultation on the Coalition government's proposals to reform ‘regulated entertainment' closed on 3 December 2011. The significant deregulation of the licensing of music and dance emerging as a consequence is likely to become law later this year, or early in 2013. In this overview Jeremy Phillips, barrister at Francis Taylor Building and a General Editor of Paterson's Licensing Acts since 1997, considers the proposals and their historical context, as first discussed with Peter White MBE on 16 December 2011 on Radio 4's leading current affairs programme ‘You & Yours'. 

HISTORICAL REGULATION OF MUSIC & DANCING[1]

Theatres closed in 1642 with the loss of court patronage. Certain forms of church and traditional music (e.g. Morris dancing) banned. During the Protectorate music became a largely private matter.

With the Restoration of the monarchy in 1660, strict controls on the issue and observance of licences, previously supervised by both the Judges of Assize and the Privy Council, appear to have been substantially relaxed. This remained the position for over a century partly due, it has been suggested, to the more relaxed social mores which prevailed following the return of the king, and partly because of the increased popularity of wines and spirits which did not initially fall within the justices' purview. From 1700 the so-called ‘justices' licence' was introduced, but despite a number of changes that were made to the legislation during the early eighteenth century, they appear to have had little effect in controlling the number of trading outlets. For a while the system of alehouse licences continued in parallel. By an Act of 1753 applicants for such licences were required to obtain certificates of good character from local clergymen, or householders, before making an application. Statutory provision was made for such justices' meetings to be held annually, with justices having conflicting trade interests being disqualified from the proceedings. At the same time, controls were introduced for the first time[2] for the licensing of music and dancing in central London:

‘Unlicensed music and dancing places within twenty miles, &c., deemed disorderly houses.

Whereas the multitude of places of entertainment for the lower sort of people is another cause of thefts and robberies, as they are thereby tempted to spend their small substance in riotous pleasures, and in consequence are put on unlawful methods of supplying their wants, and renewing their pleasures: In order, therefore, to prevent the wild temptation to thefts and robberies, and to correct as far as may be the habit of idleness, which is become too general over the whole kingdom, and is productive of much mischief and inconvenience: Be it enacted by the authority aforesaid, that from and after the 1st day of December, 1752, any house, room, garden, or other place kept for public dancing, music, or other public entertainment of the like kind, in the cities of London and Westminster or within twenty miles thereof, without a licence had for that purpose, from the last preceding Michaelmas quarter sessions of the peace, to be holden for the county, city, riding, liberty, or division in which such house, room, garden, or other place is situate (who are hereby authorised and empowered to grant such licences as they in their discretion shall think proper), signified under the hands and seals of four or more of the justices there assembled, shall be deemed a disorderly house or place;'

It will be apparent from this extract, taken from the Eighth edition of Paterson's Licensing Acts (1891), that the authorities were not (at that stage) overly concerned with issues of noise, but rather with the character of the custom such premises attracted!

The Licensing Act 1949 contained numerous provisions amending, and in certain respects, extending the law relating to licensed premises and clubs. In particular, the Act was passed for the purpose of extending state management of the trade to all new towns, but the provisions as to state management were subsequently repealed by the Licensed Premises in New Towns Act 1952.

It provided also that the licensing justices, and the confirming and compensation authorities for county boroughs and county petty sessional divisions, should be committees of the whole body of justices or quarter sessions as the case might be; and the number of justices on such committees should be restricted in number. The law relating to the disqualification of justices in licensing matters was also, to some extent, relaxed.

The Act contained important amendments in the law relating to permitted hours in certain parts of the metropolis for licensed premises and certain registered clubs where meals and music and dancing were provided. In such hotels, restaurants and clubs, the permitted hours might be the hours from half past twelve in the afternoon to two o'clock on the following morning, with a break from three o'clock until half past six in the afternoon. Alcohol supplied during the permitted hours might be consumed up to half an hour after the conclusion of such permitted hours, whether supplied with a meal or not. Evasion of control by means of ‘bottle parties' was attacked by prohibiting the consumption of alcohol outside permitted hours at private parties organised for gain.

The year 1961 saw the first general revision of the licensing law for 40 years. The first of several major changes brought about by the Licensing Act 1961 has been described as the creation of three new types of licence, namely restaurant licences, residential licences, and combined restaurant and residential licences. This description is strictly inaccurate because they are ordinary justices' on-licences with conditions that could have been attached under the general power introduced in 1904. What was new about them was not the type of licence but the fact that the discretion of licensing justices to refuse a grant was restricted.

Second, the provisions relating to permitted hours, which had remained substantially unchanged since they were introduced in 1921, were revised so as to allow a slightly extended time for drinking and greater flexibility in fixing the hours, and the 10-minute ‘drinking-up' period was introduced. Provision was made for the removal by local option of the ban on Sunday drinking in licensed premises in Wales and Monmouthshire, which had been in existence since its introduction, as mentioned at para 1.118, by the Sunday Closing (Wales) Act 1881. The provision for the grant of ‘special hours certificates' allowing late night drinking in restaurants and clubs providing music and dancing, introduced by the Licensing Act 1949 in relation to premises in parts of London, were extended to the whole of England and Wales and new provisions of a similar nature for premises providing entertainment as well as meals were introduced.

In 1983 the jurisdiction of justices of the peace to grant licences for music and dancing and similar entertainments in areas in which Pt IV of the Public Health Acts Amendment Act 1890 had been adopted was abolished and replaced by a system under which district councils became the licensing authorities. This change came about under the Local Government (Miscellaneous Provisions) Act 1982, which applied the new system not only to the parts of the country where the 1890 Act had been in force but to all other places outside Greater London, including areas not previously affected by such controls.

‘REGULATED ENTERTAINMENT' IN 2011 - THE ISSUES[3]

"At the moment, the law and regulations which require some (but not all) types of entertainment to be licensed are a mess.

Examples:

  • need a licence if you want to put on an opera but not if you want to organise a stock car race.
  • A folk duo performing in the corner of a village pub needs permission, but the big screen broadcast of an England football match to a packed barn-like city centre pub does not.
  • A carol concert in a Church doesn't need a licence, but does if it is moved to the Church Hall.

Effectively we're imposing a deadweight cost which holds back the work of the voluntary and community sector, and hobbles the big society as well.

Last but not least, laws which require Government approval for such a large range of public events put a small but significant dent in our community creativity and expression. If there's no good reason for preventing them, our presumption should be that they should be allowed.

So this is a golden opportunity to deregulate, reduce bureaucratic burdens, cut costs, give the big society a boost and give free speech a helping hand as well.

We do, though, need to request and examine evidence from this consultation in order to fully evaluate the proposals and to ensure we have a complete picture with regard to any potential benefits or impacts to ensure there are no unintended consequences.

BACKGROUND

The Licensing Act 2003 changed the way that licensing procedures worked.

Having a single licence for permissions for multiple licensable activities was undoubtedly a great step forward for many, who had previously needed to make separate costly and time consuming licence applications.

In this respect, the 2003 Act has been a success. In other respects, it has been less successful. The Government is currently legislating via the Police Reform and Social Responsibility Bill to rebalance alcohol licensing in favour of local communities, for example.

The regime for "regulated entertainment" missed a real opportunity to enable entertainment activities and either simply aped old licensing regimes or instead took a new, overcautious line.

This was particularly apparent with the removal of the "two in a bar" rule .. instead of modernising an old law that had simply gone past its sell by date, the 2003 Act ended up potentially criminalising a harmless cultural pastime.

 New licensing requirements, under the 2003 Act were, for many, a step backwards, bringing costly and bureaucratic processes for low risk, or no risk, events, including:

  • Private events where a charge is made to raise money for charity;
  • School plays and productions;
  • Punch and Judy performances;
  • Children's films shown to toddler groups;
  • School discos where children are charged a ticket price to support the PTA;

WHAT IS ‘REGULATED ENTERTAINMENT[4]'?

  • a performance of a play,
  • an exhibition of a film,
  • an indoor sporting event,
  • a boxing or wrestling entertainment (both indoors and outdoors),
  • a performance of live music,
  • any playing of recorded music, and
  • a performance of dance

PROPOSALS

To remove from the definition of ‘regulated entertainment' (& therefore the need to licence) the following activities where the audience is less than 5000[5] people:

  • Music - live & recorded
  • Theatre (i.e. plays etc..)
  • Sport (indoor - outdoor not covered iae)
  • Cinema (i.e. films etc..) 

BENEFITS

Making it easier for them to put on entertainment may therefore provide an important source of new income to struggling businesses such as pubs, restaurants and hotels.

Using data from the British Household Panel Survey it is estimated that the gain in subjective wellbeing from attending a concert at least once a week is about a third of that associated with being employed (compared to being unemployed). Even attending a concert just once a year can lead to an increase in subjective wellbeing equivalent to around a sixth of that associated with being employed.   

Evidence from the DCMS Culture and Sport Evidence (CASE)1 programme has shown that attending a live music provides a positive boost to subjective wellbeing and that this generally increases the more often an individual engages. Using income compensation figures the impact on wellbeing of attending a concert at least once a week has been estimated at £9,000 a year.

Village halls account for a significant proportion of premises that require an entertainment licence. The halls are often the hub of cultural life in rural communities, so that the proposal will make it easier and encourage activity in village halls for the benefit of the area.

POTENTIAL PROBLEMS

There is also a potential cost to the general population if the proposal leads to an increase in noise nuisance from extra events. However, even if it is small there is the potential for impacts through adverse health effects, loss of productivity and annoyance to the public.

SAFEGUARDS

General

This consultation therefore proposes that only events with an audience of fewer than 5,000 people are deregulated from the 2003 Act.

We propose that all existing conditions on such licences would continue to apply unless the premises decided to apply for a variation to remove or amend them - a situation that should prevent the need for a wholesale reissue of licences by licensing authorities.

Boxing & wrestling will still require to be licensed

Any ‘performance of dance that may be classed as sexual entertainment .. ' excluded from proposals

LIVE MUSIC

Coalition Agreement committed to cutting red tape to encourage the performance of more live music. We intend to honour this agreement in two ways:

(1)    The first is to honour our public commitment to support the Live Music Bill, a Private Member's Bill[6] tabled in 2010 in the House of Lords by Lord Clement Jones, which followed a recommendation for live music deregulation by the Culture, Media and Sport Select Committee in 2009 and a full public consultation on the subject in 2010. Because of this, the Live Music Bill is not the subject of this consultation.

(2)    The second is to examine, through this consultation, whether our proposed deregulation is ambitious enough for the vast quantity of talent in England and Wales that would benefit from a wider deregulation than the Live Music Bill

PLAYS

Licensing Act 2003 provided the first amendments to theatre licensing since the Theatres Act 1968, which released playwrights from the strict censorship of the Lord Chamberlain that had been in place since the introduction of the Licensing Act 1737.

CRIME & DISORDER

Where problems do occur, it is often because of the presence of alcohol sales and consumption.

Most existing venues offering regulated entertainment are already licensed for alcohol and existing controls will continue to apply under these proposals.

Government is also legislating via the Police Reform and Social Responsibility Bill to rebalance the regulation around alcohol licensing. These measures include, for example giving licensing authorities and the police more powers to remove licences from problem premises and increasing the involvement of health bodies and environmental health authorities in licensing decisions, including Temporary Event Notices.

NOISE

All premises, whether licensed for alcohol or not, will also continue be subject to existing noise nuisance and abatement powers in the Environmental Protection Act 1990. These powers require local authorities to take reasonable steps to investigate a complaint about a potential nuisance and to serve an abatement notice[7] when they are satisfied that a nuisance exists or is likely to occur or recur.

Additionally, there are also powers in the Anti-Social Behaviour Act 2003 which allow the police to close licensed premises to prevent a public nuisance caused by noise from those premises. Earlier this year, the Government set out proposals to radically simplify and improve the powers the police and others have to deal with anti-social behaviour.

There is also the Noise Act 1996 which allows the local authority to take action (issuing a warning notice, or fixed penalty notice, or seizing equipment) in respect of licensed premises where noise between 11pm and 7am exceeds permitted levels.

Finally, under the Criminal Justice and Public Order Act 1994, the police currently have powers to remove people attending or preparing for night-time raves on land in the open air - refusal to leave or returning to such land following a police direction is a criminal offence

QUESTIONS (include) 

  • more performances, and would benefit community and voluntary organisations?
  • estimates of potential savings and costs?
  • number of extra events?
  • impacts that have not been identified?[8]
  • Do you agree that events for under 5,000 people should be deregulated across all of the activities listed in Schedule One of the Licensing Act 2003?
  • If you believe there should be a different limit - either under or over 5,000 ..?
  • Do you think that events held after a certain time should not be deregulated?
  • Should there be a different cut off time for different types of entertainment and/or for outdoor and indoor events?
  • Do you think that unamplified music should be fully deregulated with no limits on numbers and time of day/night?"

IMPACTS[9]

"Best estimate - saving to England & Wales - over 10 years - £38m

Some local authorities have suggested that the proposals to remove most forms of regulated entertainment from licensing requirements could potentially lead to an increase in noise related complaints made to local authorities. For indicative purposes, using figures from the Chartered Institute of Environmental Health and DEFRA, we have estimated the potential burden on Environmental Health Officers. An increase in noise complaints could also lead to an increase in alcohol licence reviews, the cost of these to licensing authorities has also been estimated.

The proposal will deliver direct benefits to pubs and entertainment venues by removing fees and the administrative burden of applying for licences or variations to stage entertainment. In addition schools, the third sector, and other secondary venues that currently have to apply for Temporary Event Notices (TENs) to stage entertainment will find it significantly simpler, easier, cheaper and less off-putting to organise and arrange events .

The general public will benefit from an increase in entertainment consumption, particularly at a local level. small venues. Any additional activity by community groups and other parts of the Big Society as a result of deregulation will also have positive benefits for local people and community wellbeing.

For example, a survey for DCMS in 20072 found a 5% decrease in the provision of live music in secondary venues due, in large part, to a decrease in provision in church halls and community centres.

In 2009/10 there were 124,400 applications made to local authorities for temporary event notices (TENs). We have assessed a sample of these and estimate that approximately 74% (92,000) TENS include entertainment in some form and would therefore benefit from the deregulation either by becoming entirely exempt from licensing (about 16,000 of the total)

Post Implementation Review (PIR) Plan - A PIR should be undertaken, usually three to five years after implementation of the policy, but exceptionally a longer period may be more appropriate." 

(1) Extracts from Paterson's Licensing Acts, 8th and 119th edition [1]
(2) Disorderly Houses Act 1751 extracted from the Eighth edition of Paterson's Licensing Acts. At this time Britain was still a largely agricultural society, with a population of under 6 million..
(3) Extracts below taken from DCMS ‘ Regulated Entertainment' Consultation proposal to examine the deregulation of Schedule One of the Licensing Act 2003 (September 2011) http://www.culture.gov.uk/images/consultations/consultation_deregulation-scheduleone_2011_vs2.pdf
(4)Of the 202,000 premises licences, we know that there are 117,000 which include regulated entertainment 
(5) At present, outdoor sports with audiences under 10,000 do not require safety certificates, the only exception to this is football, where there have been historical instances of public disorder, and as such requires a safety certificate if the capacity is 5,000 or greater.
(6) The Bill seeks to amend the Licensing Act 2003 ("the 2003 Act") by partially deregulating the performance of live music and removing regulation about the provision of entertainment facilities. Its purpose is to:

  • remove the licensing requirement for unamplified live music taking place between 8am and 11pm in all venues, subject to the right of a licensing authority to impose conditions about live music following a review of a premises licence or club premises certificate relating to premises authorised to supply alcohol for consumption on the premises ;

  • remove the licensing requirement for amplified live music taking place between 8am and 11pm before audiences of no more than 200 persons on premises authorised to supply alcohol for consumption on the premises, subject to the right of a licensing authority to impose conditions about live music following a review of a premises licence or club premises certificate;

55/1

  • remove the licensing requirement for the provision of entertainment facilities; and
  • widen the licensing exemption for live music integral to a performance of morris dancing or dancing of a similar type, so that the exemption applies to live or recorded music instead of unamplified live music .

[7]  LG Regulation/ LACORS estimate that investigation of a complaint would take 10 man hours at a total cost of £506.30, serving an abatement notice takes 20 man hours at a total cost of £1012.60, and that processing a prosecution would cost £10,000.
[8] E.g. A more innocent seeming condition is that of having to close doors and windows. This will usually have very little cost. However, in a rare case it may effectively require a venue to fit air conditioning.
[9] Extracts taken from DCMS Impact Assessment:
http://www.culture.gov.uk/images/consultations/IA_deregulation-scheduleone_2011.pdf