ON THE MATTER OF THE DE-REGULATION OF LIVE MUSIC, A REMINDER OF DIFFERING REGIMES IN SCOTLAND AND ENGLAND & WALES, AND A POSSIBLE SOLUTION FOR THE MUSIC INDUSTRY
News today that the deregulation of live music in small venues came into force has been greeted with acclaim by many, especially in the music industry. In such a celebratory zeitgeist, it is easy to forget the jurisdictional limitations of the exact regulations being discussed.
The Live Music Act 2012 is a Westminster Act which is effectively an amendment to the Licensing Act 2003. This applies in England & Wales only. One needs to understand the separate licensing regime in England to appreciate this. Unlike our Licensing (Scotland) Act 2005, the English 2003 Act licenses not just alcohol premises, but other forms of entertainment. This includes live music, but also for example theatre and cinema premises.
[Bizarrely, the 2003 Act repealed the Cinemas Act 1985 and the Theatres Act 1968 as far as they apply to England & Wales, meaning both Acts remain on the Statute books but only apply to us north of the border. There is a case that these two regimes should be binned altogether and transplanted into Scottish civic licensing. That is a matter for another day.]
It has been said that the red tape created under the 2003 Act stifled artistic endeavour and there was simply no need to create regulation for small scale music events. Readers of this blog may have some memory of an old English phrase known as the “two in a bar” rule – no licence or permission needed for two musicians in a bar.
The Live Music Act 2012 removes the need for any English licence for live music where the venue has a capacity under 200 between 8am and 11pm.
The position in Scotland is starkly different. We do not have a single licensing regime like the 2003 Act (the “one singer, one song” approach?).
Instead, we have two principal Acts which govern this area and these are the Licensing (Scotland) Act 2005 and the Civic Government (Scotland) Act 1982.
The starting point here is that if you are playing live music in a premises which holds an alcohol licence, then no separate licence is required – but the alcohol licence must itself allow for the provision of music. Every alcohol licence has an Operating Plan which, amongst other things, controls what “activities” may take place. One of the boxes which can be ticked on this is that of “Live Performances”, which would encapsulate live music. If the Operating Plan does not cater for this, then providing live music is a breach of s.1 of the 2005 Act: one of the worst offences under the Act and which can lead to a fine of £20,000 and/or 6 months in jail upon prosecution. In order to “add” live performances to a licence, the licence holder must apply for a major variation of the licence. This is no streamlined task – it would require a full hearing and would be open to public objections and reports from officials such as the police or environmental health.
What about having live music in a place not covered by an alcohol licence? This is where the Civic Government (Scotland) Act 1982 kicks in. It requires persons who offer “public entertainment” to hold a public entertainment licence (PEL). This applies whether the event is free or not. It is up to each individual council to decide what forms of “entertainment” need the licence but the reality is that they would all cover a live music gig. Some councils will waive the licence fee if the gig is for charity, but the organiser would still have to go through the process of securing a PEL.
The PEL requirement may also kick in for a premises with an alcohol licence if it takes place outside of the alcohol licensed hours.
Organisations such as the Incorporated Society of Musicians (ISM) are continuing to press Scottish councils on the matter but there is a considerable knowledge gap about this due to the differing regime north of the Border. Deborah Annets of ISM said:
“Too many local authorities in Scotland are punishing venues for putting on live music and even worse, charging a license fee if they want to pay the musician or charge for entry. This is unacceptable.”
But the 1982 Act, which governs PELs, was amended via the Criminal Justice and Licensing (Scotland) Act 2010 (CJL(S)A 2010) so that even free to attend events require a licence. That came into force on 1 April 2012. So local authorities have no option but to require a licence for these events, unless they exempt “live music” from their “local list” (their resolution under s.9 of the 1982 Act) of what is to be treated as “entertainment”, which I feel is unlikely.
Local authorities do have the power to amend their s.9 resolution so that although they require licences for live music, certain premises may be exempt; so they could in theory follow the example from the Live Music Act 2012 and exempt premises with a capacity under 200. However, all 30 odd local authorities in Scotland have just updated their resolutions as a result of the CJL(S)A 2010 changes.
CAN SCOTLAND FOLLOW SUIT?
If the music industry wishes Scotland to follow the English example, it will have to lobby each local council separately to alter their s.9 resolution. The problem is that some may be happy to make the change, and others not. This could be real can of worms and result in a licence being required in Glasgow, Stonehaven and Selkirk, but not in Edinburgh, Peebles and Inverness – and so on.
Perhaps a national approach may be better. That would mean lobbying Holyrood to create a new exemption to sit on the face of the 1982 Act under s.41(2) which provides a list of premises which are completely exempt from the PEL requirement.
As it happens, the far-sighted ministers have already endowed themselves with such a power. Section 176 of the CJL(S)A 2010 amended s.41 of the 1982 introducing a new sub-paragraph 2(h) which states that a place requiring a licence does not include:
“such other premises as the Scottish Ministers may by order made by statutory instrument specify.”
It is now over to the music industry to lobby Holyrood to use this power to create a new class of premises – such as “any premises offering live music where the capacity is less than 200” or equivalent.
Venue operators of all kinds should remember to familiarise themselves with the copyright implications of having live music playing which may be covered by the Copyright etc Act 1988. Make sure you have the relevant PPL and PRS licences in place!