Public Entertainment Licensing and the Arts Community Backlash

The furore surrounding the amendments to public entertainment licensing provisions under the Criminal Justice and Licensing (Scotland) Act 2010 culimated on 1 April 2012, when the amended law came into force, and was marked by a series of peaceful protests across Scotland under the banner “April Foolery”.

I have been involved as a sort of pro bono adviser to various people affected by this since early February 2012 when the news first “broke”, following a press release by Glasgow City Council. I have tweeted widely on this issue through @LicensingLaws and contributed various articles and quotes.

Public entertainment licensing (PEL) requires certain forms of entertainment to be regulated by the local council by issuing a licence. Lets lay a few myths to rest on this. First of all, the governing legislation here is the Civic Government (Scotland) Act 1982, which introduced the PEL in its modern form. It provides for a number of exceptions to the requirement, for example if the entertainment takes place on a premises licensed to sell alcohol. Another exemption is that there was no licence requirement if the event was free to attend.

It is that particular exemption which was removed as a result of the Criminal Justice and Licensing (Scotland) Act 2010 and the change came into force on 1 April 2012, meaning as of that date, all free-to-attend entertainment events would require a licence.

This blind-sided a lot of people in the art community who cried foul and a number of campaigns were setup, principally the #ScrapArtsTax movement thorugh Twitter and Facebook, which resulted in a number of public meetings all over Scotland. I attended and spoke at the first of such meetings, which was held in Glasgow School of Art.

Who is to blame for all this? The legislation is set by Holyrood, but it is up to individual councils to decide whether to “license” PEL, and then to prescribe what forms of activity are considered “entertainment” and therefore licensable. These cover all sorts of things from exhibitions and shows, to bungee jumping and go-karting.

A number of people were outraged and called it an attack on the arts, civil liberties and offensive to free speech. The rule change itself was intially proposed to allow greater control of large-scale free to attend events. Glasgow City Council, so castigated when they announced the change, in fact had told the Government of their fears that low-level events could be hit by all this. This view which was also emphasised to the Government by the Law Society of Scotland’s licensing committee, of which I am a member.

The irony is that a number of events or organisations who felt aggrieved by all this may have been required to hold a licence under the old system anyway, and simply did not know about it; another factor is that much of the vitriol related to the performance of what we might term theatrical performances; which is covered not by PEL but the entirely separate Theatres Act 1968.

What this all adds up to is the law of unintended consequences; and poor communication from the Government as to who this could affect and how.

And reports of “successful” lobbying by some art organisations where local councils have elected to offer a discounted fee, or waive the fee, are short-sighted – the licence itself is still required and that means red-tape, delay and uncertainty. Even if the council do not charge a fee there is still expense to the applicant in preparing and pursuing the licence which in some cases may not be issued till the morning of the event. In some cases applicants will need to utilise the services of a specialist solicitor like me which adds a cost; there could even be a hearing; and of course the application could be refused. Running a licensable event without a licence is a criminal offence.

To be frank, it’s a bloody mess. Numerous grass roots organisations and activities are threatened by, at the very least, the uncertainty and lack of information. Clarity at a national level is what is required here.

In fact, it is high time that the Government looked at this whole are of law. We have a fragmented and arguably broken licensing system when it comes to public entertainment, theatres, cinemas and so on. Each is governed by its own Act of Parliament, with differing processes and procedures. In my view this should be homologated. The irony is that the Theatres Act and the Cinemas Act, which were Acts of Westminster, no longer apply in England and Wales because they were brought into the English Licensing Act 2003 which also regulates the sale of alcohol. So we are left with English legislation which only applies in Scotland!

If you feel you are affected by any of these issues and need advice, please contact me.



About Stephen McGowan

Leading Scottish licensing solicitor at TLT LLP.
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2 Responses to Public Entertainment Licensing and the Arts Community Backlash

  1. Thanks for all your help! The #ScrapArtsTax thing did take everyone by surprise.

  2. Harry Campbell says:

    Good to have some informed comment on this. Would welcome further enlightenment as the saga develops.

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