 |
| THE PEL LAW IN THE UK - is it Killing Traditionl Music? |
| PEL - Questions and Answers by Hamish Birchall last updated 17.05.02 Q: Who needs a public entertainment licence (PEL)? A: Anyone organising any public performance of live music virtually anywhere in England and Wales. Without first obtaining a PEL from their local authority they could face a criminal prosecution. Venues affected could include village halls, schools, hospitals, libraries and so on. An Occasional PEL is available for one-off events. Annual PELs are required for regular events. Q: Does that mean even a piano recital in your own home could be illegal? A: Yes, if the public were invited to attend. Q: What is the penalty? A: Unlicensed live music is a criminal offence. The maximum penalty is a £20,000 fine and six months in prison. Q: Is amateur performance exempt from the PEL requirement? A: No. It is immaterial whether or not performers are paid, or whether admission is free or conditional upon payment of an entry fee. The PEL fee may be waived, however, if the event is for a charitable or educational purpose. Q: When is an entertainment ‘public’? A: Unfortunately the legislation that defines public entertainment does not define the term public. Case law is therefore the only guide. In Gardner v Morris (1961) it was determined that the number of members of the public that were present was irrelevant. The test was whether any ‘reputable’ member of the public could gain entry! Broadly speaking if a member of the public could gain entry without discrimination, by payment or otherwise, then the event would be public. Q: Are any exemptions allowed? A: Yes, performances that are: part of a religious service; in a place of public religious worship (outside London); on Crown land; by up to two live performers in liquor on-licensed premises (bars, restaurants etc). Q: What about private members clubs? A: It is possible to avoid the necessity of a PEL by setting up a private members club. However this can be complicated, so it would be a good idea to get legal advice. For example, if alcohol is on sale on the club premises formal registration must be made to the magistrates court so that a hearing can consider all aspects of the club formation (a minimum required number of members, rules, committee structure etc). This is not an easy option. If alcohol is not to be sold on the club’s premises formal registration is not necessary. However it is advisable to set up the club with membership forms, committee, membership list etc, if only to reassure a local authority that it is properly constituted (in case they threatened action on the basis that a particular event was public). But this is not the end of the story. You need to check whether your local authority has adopted the Private Places of Entertainment Act 1967 – if they have, you would need to obtain a different type of formal licence! Q: If I were to play a guitar in my local pub and use backing tapes is that OK? A: No. Combining even one live musician with any form of 'recorded sound' is illegal in such premises without a PEL. The term 'recorded sound' also covers minidisc and/or MIDI files. Q: How many on-licensed premises have PELs? A: There are about 111,000 on-licensed premises in England and Wales, including all pubs. Only 5% currently hold annual PELs. Q: Do members of the public count as 'performers' if they participate by singing along during a performance in these premises? A: Yes, many local authorities interpret the law in this way. They cite case law precedent from 1793 (Clarke v Searle) to support this position. The British Institute of Innkeepers has published guidance for licensees which states that encouraging 'community-style singing' is illegal without a PEL, and even spontaneous singing is technically an offence. Q: Does that mean more than two people singing could be a criminal offence in over 100,000 pubs, bars and restaurants? A: For the licensee - yes, particularly if it was advertised as a regular activity. Q: What if I engaged one musician and invited different singers to 'do a turn'. Provided only two were performing at any one time, would that be OK? A: No. The recent Appeal Court decision (London Borough of Southwark v Sean Toye, Administrative Court, 21 February 2002) came down in favour of the strict reading of the 'two-in-a-bar rule' which means that only the same two performers are allowed during the course of an evening's entertainment in liquor on-licensed premises without a PEL. Q: Does a pub need a PEL for any form of recorded sound or satellite television? A: No - provided no live musicians play at the same time. Q: What is the rationale for PELs? A: To ensure public safety, minimise public disturbance and the potential for crime and disorder - reasonable enough, on the face of it. Regulation is certainly necessary for events that might become dangerously overcrowded, noisy or boisterous. But for premises that already count as ‘workplaces’, like bars, restaurants and hotels, PELs duplicate existing public safety provision under separate legislation. In Scotland, for example, where exactly the same health and safety legislation applies to workplaces as in England, no PEL is required for live music in pubs during permitted hours. Across the UK external noise is also separately regulated, whether it emanates from a neighbour’s hi-fi, a pub or a factory [Environmental Protection Act 1990, Noise and Statutory Nuisance Act 1993, Noise Act 1996, Town and Country Planning Acts can impose noise conditions on premises]. Public order outside premises is the responsibility of the police, and, under Section 17 of the Criminal Justice and Police Act 2001, the police can immediately close licensed premises in the interests of public safety and to prevent disturbance arising from excessive noise for up to 24 hours. Q: What is the Government doing to reform PELs? A: It has proposed radical reform of both liquor and public entertainment licensing, and accepts that there is duplication of existing legislative provision for public safety etc. A White Paper (Time for Reform: Proposals for the Modernisation of our Licensing Laws) was published in April 2000. It proposed to end public entertainment licensing as a separate licensing regime. But it also carried a risk assessment that musicians could lose work as a direct result of abolishing the 'two in a bar rule'. That arises because they propose a regime where there will be no exemptions. There is a real risk, however, that local authorities would treat venues providing one or two musicians as strictly as they now enforce against premises wanting to put on trios or larger bands. Under the reform proposals all venues which serve or sell alcohol or provide any entertainment to the public would be required to obtain a 'premises licence' which would, in essence, be an amalgamation of the present liquor and entertainment licence. Local authorities will become the licensing authority, and would decide the conditions to be imposed on those activities and on the premises itself, including the opening hours. Local residents and interest groups, such as musicians/promoters, will - in theory - also have a say. Recent comments from the DCMS suggest that local authorities 'would be obliged to consider favourably' plans for entertainment activities. Conditions imposed would be based solely on 'disorder, safety or nuisance factors'. Future licence fees will be centrally set in banded levels, but there will still be scope for local variation. There is, predictably, much debate about the precise fee levels, and the formulae that will be used to calculate them. The White Paper proposed fees that would be considerably lower than many currently set by local authorities. But the Local Government Association is lobbying vigorously to retain the local, discretionary fee structure and for higher fees than those proposed in the White Paper. It is worth noting that in Scotland, licensees do not have to pay anything above the cost of a liquor licence to provide entertainment, whether live or recorded (although noise conditions will be imposed on entertainment beyond permitted hours). Behind the scenes debate will continue until the Government publishes a new licensing Bill, at which time a Regulatory Impact Assessment concerning licence fees will also be made available to Parliament. The entertainment industry's level of concern about inconsistency in local authority PEL fees led to the publication last year (at the same time as the White Paper) of Home Office Circular 13/2000. This was a formal warning to local authorities that overcharging for PELs could be 'ultra vires', and a warning not to impose, in its words, excessive conditions. It appears, however, that local authorities have taken little notice of the Circular. Most London borough councils, for example, have since increased their PEL fees in line with inflation. Both the licensing White Paper and the Circular are available on the DCMS website: www.culture.gov.uk. Q: When will new licensing legislation be introduced? A: A new licensing Bill was promised just before the 2001 General Election, but it was dropped from the Queen's Speech. The Department for Culture, Media and Sport, responsible for licensing since 8 June 2001, is now saying that legislation will be introduced ‘as soon as Parliamentary time permits. In the meantime it has suggested that it may consider issuing further guidelines to local authorities. There have been some recent press reports hinting that a new alcohol and entertainment licensing Bill is to be presented in the next Queen's Speech (November 2002) |
 |
|