The Licensing Act 2003 Regulated Entertainment
The Licensing Bill was the subject of much controversy when it first came to public notice. In November 2003, MJ asked experts at the Department for Culture, Media & Sport to outline the main effects of the Licensing Act 2003, which the Bill became in the summer, once it had received Royal Assent.
MJ: What is the background to this Act?
DCMS: The Licensing Act 2003, which regulates entertainment in England and Wales, received Royal Assent last July. The government expects the first appointed day – when applications for new licences can be made – to be in mid-2004. The second appointed day, when the new licences will come into force, will probably be in early 2005. During the transitional period between the two appointed days, existing legislation will continue to apply and existing licences will continue to be in force.
Under the new licensing regime, a single authorisation, usually a premises licence, will be needed to supply alcohol, to provide regulated entertainment, such as a performance of live music, or to provide late night refreshment. (Slightly different rules apply to qualifying clubs, such as working men’s clubs, and these are not dealt with in this article.) The fee for a premises licence will be the same whether an applicant applies for permission for one licensable activity or for two or more. The government believes that the Licensing Act 2003 will provide increased opportunities for musicians and entertainers in England and Wales. In the vast majority of cases, it will make it more affordable and easier to put on live performances. The DCMS is responsible for the arts: as such, the interests of performers and their audiences remain at the forefront of our priorities.
MJ: What is regulated entertainment under the Licensing Act 2003?
DT: The provision of regulated entertainment covers the provision of entertainment or of entertainment facilities. The descriptions of entertainment in the Licensing Act include a performance of live music and entertainment of a similar description to live music.
To be ‘regulated entertainment’ requiring an authority under the 2003 Act, the entertainment must take place in the presence of an audience and be provided for the purpose of, or for purposes which include, entertaining that audience.
MJ: Are there any exemptions from the requirement of a premises licence when providing entertainment?
DT: Yes. But if alcohol is to be supplied or late night refreshment provided at the premises, a licence will be required for those activities. The main exemptions for entertainment under the Act are if it is:
> for the purposes of religious services or at places of public religious worship;
> incidental music – the performance of live music or the playing of recorded music if it is incidental to some other activity which is not itself regulated entertainment;
> at garden fetes – or functions or events of a similar nature if not being promoted or held for purposes of private gain; and
> Morris dancing or any dancing of a similar nature, or a performance of unamplified live music as an integral part of such dancing.
It should also be remembered that many of the places where ISM members will want to play will already be licensed for regulated entertainment because of other activities that take place there, and it is likely that no further licence would be required.
MJ: Will church halls, chapel halls, or similar buildings also be exempt from the requirement for a licence?
DT: The use of church halls, chapel halls, village halls or other premises of a similar nature will require a licence for the provision of regulated entertainment (unless they come within one of the exemptions listed above); but there will be an exemption from having to pay the associated fee. If, however, the licence also authorises the use of the premises for the supply of alcohol or the provision of late night refreshment, a fee will be required for those activities.
MJ: Is their any alternative to obtaining a premises licence?
DT: Yes, the Act provides for a system of temporary permitted activities. This allows Temporary Event Notices (TENS) to be used to license relatively small-scale ad hoc events held in or on any premises involving no more than 499 people at any one time. The premises user must give notice to the licensing authority, together with a small fee, of about £20, and a copy of the notice to the police. Anyone aged 18 or over can have a maximum of five TENs per year. Personal licence holders (required to authorise the sale of alcohol) can have a maximum of fifty TENs. Each event covered by a TEN can last up to 96 hours, and no more than twelve events can take place at any one premise in any year (though this is subject to an overall maximum number of events taking place on 15 days at the same premises in a calendar year). Each event must be at least 24 hours apart from another event held under the authority of a TEN at the same premises by the same premises, user or those associated with him. Provided that these criteria are met, only the police may object to the TEN, and then only on crime prevention grounds. If the police do not object, the event can take place. If the criteria are not met, the licensing authority will serve a counter notice and the event cannot take place.
MJ: What about small-scale musical events?
DT: The Act provides that in certain circumstances some or all of the licensing authority imposed conditions, relating to the provision of live music, will be suspended. These provisions relate only to premises with a capacity limit of 200 or fewer, and other criteria, such as in some cases a time restriction, also apply. These provisions can be disapplied in relation to any condition of a premises licence following a review of the licence, when further conditions may also be added.
MJ: Will entertainment in a school require a licence?
DT: Schools and sixth form colleges will require a licence to stage regulated entertainment to which the public is invited, or where a fee is charged and with a view to profit. They will, however, be exempt from paying the associated fees if the entertainment is provided by and at the school or college and for the purposes of the school or college. If the public was not invited and a charge made to a private audience (like family and friends) just to cover costs – and not to make a profit – then a licence would not be required.
MJ: Will music tuition, either in private or in schools, require a licence?
DT: No. Music tuition will not require a licence as the music (and the premises) is not being provided for the entertainment of an audience, but for the purpose of educating those present.
MJ: What if we hold a concert at which the pupils play for an audience?
DT: So long as the public cannot attend (rather than family and friends), and a charge is not made with a view to profit, then no permission would be required.
MJ: Will music shops need a licence to demonstrate musical instruments?
DT: No. If a customer or sales assistant wishes to demonstrate or try out an instrument in a shop, then no licence would be required. If, however, a shop holds an event at which musicians play instruments, for the purpose of entertaining customers, then a licence will be required.
MJ: Will rehearsals need a licence?
DT: No, unless the rehearsal is provided for the entertainment of the public, or for consideration and with a view to profit.
MJ: Will a charity event providing entertainment require a licence?
DT: If regulated entertainment is being provided at a charitable event to which the public is invited, a premises licence or temporary event notice would be required. Private events, where the invited guests are charged, either to make private profit or to raise funds for charity, are licensable. This is because such a charge could, for example, lead to greater risks being taken with regard to safety issues, eg, the number of people invited, seating arrangements and access to exits in an emergency. However, entertainment provided at a private charitable event where the public is not invited and where no charge is made (other than solely to cover costs), or the guests are not required to give any money to charity, would not be licensable.
MJ: I am holding an outdoor event providing regulated entertainment. Would I require a licence, and how would I apply for one?
DT: The Act does not distinguish between entertainment held indoors or outdoors, so permission might be required. Local authorities will be encouraged to obtain premises licences to cover public spaces, such as village greens or indeed a number of streets, on which many performances take place. No additional licence would then need to be obtained by anyone else carrying out licensable activities covered by such a licence. However, the consent of the local authority holding the licence would be required and permission given to use the land.
MJ: Will a licence be required for entertainment in private homes and gardens?
DT: Any performances of live music that take place in private homes and gardens for private parties and weddings will not be licensable, unless the host takes the unusual step of charging his guests to attend with a view to making a profit.
The Act does nothing to affect what people are entitled to do in their own homes, unless the public is admitted or guests charged with a view to profit rather than to simply cover costs.
MJ: What about an event held by an ISM Centre?
DT: Again, so long as the public is not admitted and a charge is not made with a view to profit, rather than just to over costs, then no permission will be required.
MJ: What if a band or orchestra is booked for a wedding?
DT: A licence would only be required for a private wedding party if the host took the unusual step of charging his guests to attend and with a view to making a profit.
The current Whitehall policy adviser on the Licensing Act, Ronnie Bridgett, can be contacted at the Department for Culture, Media and Sport, 2-4 Cockspur Street, London SW1Y 5DH, tel: 020 7211 6351, email: ronnie.bridgett@culture.gsi.gov.uk. Information is also available on the DCMS website: www.culture.gov.uk.
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