The Live Music Forum
Saturday 27th August 2005 - Minister, Camden Council and Lawyers on Private Events
In a recent letter to my MP, Glenda Jackson, licensing minister
James Purnell contradicts the advice recently provided by Camden's licensing
department that the private hospital gigs I often perform would become licensable
under the new regime. Purnell says they are not licensable. But the situation
is not as clear as he makes out.
Strangely, Purnell's letter was circulated by DCMS civil servants on 16 August via email to representatives of the Live Music Forum about a week before Glenda Jackson's office claim to have received it. I finally received my (official) copy via Ms Jackson's office this morning (Sat 27 Aug 2005).
Clarifying the uncertainty about private events is essential. This is in part because those concerned in the organisation or management of such performances may be criminally liable if they have not taken 'all reasonable precautions' to ensure that the venue is licensed, and it turns out the venue is not licensed, or not appropriately licensed, or there is a breach of licence conditions (see Licensing Act 2003, sections 136 and 139).
Purnell's letter to Ms Jackson (see copy text below) appears positive in that his advice is that the performances are not licensable. However, his reasoning is unsupported by specific reference to the Act's relevant sections. Purnell claims that his 'officials have discussed the matter with Camden's officials and they agree with the position I have set out ...'.
Cross-checking with Camden revealed, however, that while DCMS civil servants had phoned one or two members of the licensing department some three weeks ago, Camden's licensing lawyers told me they knew nothing about this. One of those lawyers agreed this was a crucial question and one that, in his view, had not yet been resolved.
The minister's position is cast into further doubt by a new licensing law reference book: 'Alcohol & Entertainment Licensing Law', by Professor Colin Manchester, Jeremy Allen and Susanna Poppleston [Cavendish, 2005; ISBN 1-85941-672-1, £35 approx].
Chapter 5 'Licensable activities: the scope of control' is an illuminating discussion about, among other things, the meaning within the Act of the expression 'for consideration and with a view to profit'. Assuming the hospital event not to be public as defined under the new Act (which is itself arguable since friends and relatives can and do often attend), the minister's position turns on his interpretation of this key phrase. Although he does not explicitly say so, he implies that its meaning is clear. But this is not the case.
Concerning 'with a view to profit', Manchester, Allen and Poppleston write: 'Regulated entertainment will be provided with a view to profit if the purpose, or one of the purposes of it is financial gain and a financial benefit is obtained by some individual or a private (or public) body.' [5.3.14 'With a view to profit', p152].
As the organiser of the band and a performer I do gain financially from these performances. The charge levied on the hospital by the charity certainly falls within the Act's definition of a charge which explicitly includes 'any charge for the provision of goods or services' (Sch.1, para 1(5)).
The issue is widened considerably as Manchester et al consider private wedding receptions. Their conclusion: these may be licensable where professional entertainment agencies are hired to organise the entertainment (5.3.13, p151, footnote). Clearly this would have far reaching implications if local authorities conclude that the Act obliges them to interpret the law in this way.
Returning to the minister's letter, he says that I 'claim to write for both The Guardian and the magazine Jazz Wise on licensing matters'. As we have come to expect with the minister, he is being very economical with the truth. Unless you are a staff writer for well known publications, DCMS press office always asks those requesting information who they are writing for - particularly if you tell them that you freelance, as I do. Earlier this year I wrote a 2,000 word feature about exaggerated claims made by Citizencard, a well-known producer of photo-ID cards. I submitted it to all the broadsheets. It was finally picked up by the Guardian and published on 23 May (p12 'Fraud fears over teenage 'ticket to adulthood'). It was adapted in collaboration with one of their staff writers, Patrick Barkham, with whom I shared the byline. Patrick is interested in music and asked to see anything else I wrote about licensing, which he has done - although, so far, nothing has been published.
As for Jazzwise, I wrote regularly for that publication during the height of the live music campaign. Of course, there was little to write about in the 18 months following the Act receiving royal assent. But two months ago the editor, Jon Newey, asked me to write another piece. I decided to delay this until I had had a chance to research the fall-out of variation applications in Camden. The magazine Traditional Music Maker has published several of my licensing circulars in recent months.
There is, of course, nothing strange in a former licensing adviser seeking clarification from the Secretary of State on key areas of licensing legislation. I tried unsuccessfully to get those answers during the Bill's passage through Parliament, and it would seem that DCMS and the licensing minister continues not only to avoid a proper legal analysis, but also to mislead the LMF.
I will be seeking a full explanation from DCMS via a formal complaint.
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COPY TEXT OF LETTER CIRCULATED TO LIVE MUSIC FORUM REPRESENTATIVES VIA EMAIL 16 August 2005:
Our ref: CMS18714
Your ref: BIRC01002/01001100
Glenda Jackson MP
House of Commons
Thank you for your letter of 20 July to Tessa Jowell enclosing one from Hamish Birchall of 9 Crestview, 47 Dartmouth Park Hill NW5 1JB, about the Licensing Act 2003 and music in hospitals. I am replying as I have Ministerial responsibility for licensing legislation.
I am surprised that your constituent, Mr Birchall, has written to you seeking clarification about the Licensing Act 2003, given that he was a consultant employed by the Musicians’ Union to advise them on the Licensing Bill during its Parliamentary stages and now claims to write for both The Guardian and the magazine Jazz Wise on licensing matters. However, I am happy to deal with the matters that he raises.
Firstly, I should stress that the 2003 Act devolves the administration of licensing to individual licensing authorities, such as the London Borough of Camden. It is therefore for them to interpret the 2003 Act in the first instance on the basis of their own legal advice. However, my officials have discussed the matter with Camden’s officials and they agree with the position I have set out below.
In order for the provision of entertainment to be licensable, it must be provided for the public, or for consideration and with a view to profit. If either of these conditions apply then a premises licence or temporary event notice would be required to authorise any licensable activities involved.
So in the case Mr Birchall raises, if:
· the musical entertainment in question is not provided for the public (and is therefore a private event); and
· either no charge is made, or a charge is made solely to cover costs (and there is therefore no intention to make a profit);
the performances in the hospital in question will not amount to regulated entertainment as defined in the 2003 Act and a licence will not be required.
Similarly, if anyone invited to attend a private performance was not charged for attending the event but was free to make a voluntary donation to a charity at their own choice, no licence will be necessary.
I do not accept that the Licensing Act 2003 has blurred the lines between private and public performances. The Act sets out clearly the different conditions which must apply in either case before any entertainment falls to be licensed. Mr Birchall is well aware of the debates on these arrangements during the passage of the Licensing Bill, which Parliament endorsed. If he is uncertain about these matters, I hope that I have been able to clarify the matter for him.
I am copying this reply to the Live Music Forum whose members have an interest in the matters, as well as to the London Borough of Camden.
JAMES PURNELL MP
Minister for Creative Industries and Tourism
Simon Richardson, Licensing Policy Branch, x6380