The two-performer exemption, also known as the “two in a bar rule

Current legislation also allows venues such as Churches to hold concerts without having to pay for a license.

The revised PEL Bill introduces new regulations that affect public performance in the UK and Wales.

For example, from June 2003 the PEL Bill will require
• 110,000 on-licensed premises in England and Wales (pubs, bars, restaurants etc) to purchase licenses for all live performances in their premises
• 15,000 churches outside London to purchase licenses for public performances in their premises.
• 5,000 registered members clubs to purchase licenses for public performances in their premises.

The PEL Bill affects the provision of both amplified and unamplified public performances. This means that, for example, a monthly performance in a restaurant by a single unamplified guitarist, paid or unpaid, will now become a criminal offence unless the restaurant is licensed to provide live entertainment.

Private Performances

As Hamish Birchall concludes, this new licensing criterion clearly embraces both the provision of musical instruments, and any amplification where applicable. This would impact on the provision of services by, for example, rehearsal studios and broadcasting studios.

It seems that this new licensing criterion would also apply to private performance, including those staged to raise money for charity. Wedding receptions, corporate functions, parties, Bar Mitzvahs etc will all be affected: payment to bandleaders or DJs organising entertainment (which may be bands, dance floors, PAs etc) triggers the licence requirement.

The government disputes this interpretation, but expert licensing lawyers have confirmed that this is the effect of the wording of the Bill (Schedule 1, paras 1(4) and 1(5) in particular).

Premises without a licence will be restricted to the provision of 5 live performances per year with the further restriction that the maximum number of people attending the event, this calculation includes both performers and audience, must not exceed 499 people.

Temporary event permissions may last up to 72 hours. Temporary is defined as 'any place' in the Bill (Clause 188), which would include performances in a front room, garden or street, park or field,

Ignorance is no excuse

With the introduction of the PEL Bill, musicians will have to ensure that any venue they perform in has the required licenses.

The maximum penalty for both the musicians and the venue owners is a £20,000 fine and six months in prison.

The PEL Bill is wide ranging and includes Busking and Church bell ringing , except when part of a religious service. Even carol singing on front door steps or in the street will require a license.

Exemptions from the PEL Bill

This exemption is likely to have a serious impact on the provision of live music, as it gives the licensee a strong financial incentive to offer broadcast music as an acceptable and a cheap alternative to the provision of live music – with the added anomaly that there appears to be no control over the power of the amplification used in the provision of this broadcast entertainment!

The PEL Bill in action…

Rehearsals
It will be illegal to book rehearsals in a venue that does not hold the appropriate public performance license, even though the rehearsal is for a public performance, but not in itself a public performance!

Folk Clubs
Folk clubs are one of the most threatened providers of public entertainment by the PEL Bill as many are non-profit making and performances take place in small venues, which could not afford the license fee.

Teaching
The wording is not entirely clear but the bill also affects those providing "entertainment facilities" - this could even mean that you may need to have a license to give lessons in your own home although the PEL fee may be waived for educational purposes – see below.

School Concerts
The new Bill would affect even school concerts since as they are a public performance, schools would now require a license to hold them. 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.

What can we do?

http://www.musiciansunion.org.uk

Why have these changes been proposed?

Not according to Culture Minister Kim Howells. He says the swingeing increase in regulation is necessary because 'one musician with modern amplification can make more noise than three without'. Of course it is true that amplification can make one musician louder than another playing without amplification. But that was true when the two-performer exemption was introduced in 1961 and had been true for many years before that. The important questions are: does live music present a serious problem for local authorities? Does this problem justify the increase in licensing control? The answer, on both counts, is NO.

Noise from live music is not the problem
The Noise Abatement Society has confirmed that over 80% of noise complaints about pubs are caused by noisy people outside the premises. The remaining percentage is mostly down to noisy recorded music or noisy machinery. In fact, while noisy bands can be a problem, complaints about live music are r elatively rare.

In any case, local authorities have powerful legislation to tackle noise breakout from premises. All local authorities can seize noisy equipment, and they can serve anticipatory noise abatement notices. Camden used a noise abatement notice to close the West End musical Umoja earlier this year. One resident's complaints were enough. And the police can close noisy pubs immediately for up to 24 hours. The trouble is, many complainants perceive the legislation as inadequate because their local authority doesn't enforce it effectively.

It looks as if musicians are being made the scapegoat for a problem that is nothing to do with live music. Certainly abolition of the two-performer licensing exemption will do nothing to reduce noise from people outside premises.

Rather late in the day, the Department for the Environment, Food and Rural Affairs (DEFRA) has just commissioned a study into the noise nuisance potential of the licensing reforms - but the study won't be completed until the Spring of 2003 at the earliest. A classic case of shutting the stable door...

Standardised licence fees alone will not revitalise live music
The government says that standardising licensing fees, with no premium for entertainment, removes the disincentive to provide live music. This change is welcome. However, fees are only half the problem. The other half is the potential for unnecessary local authority licence conditions.

Earlier this year, Kim Howells warned the Musicians' Union that if it were to lobby for satellite TV to become a licensable entertainment, this would be 'resisted robustly' by the leisure industry. He did not say why, but the reasons are clear. The industry does not believe government assurances that local authorities will adhere to published guidance over future licence conditions. They fear the cost implications of conditions such as monitored safe capacities, and CCTV. (Two years ago the Home Office warned all local authorities not to impose disproportionate conditions. Few, if any, took notice). (See PEL exemptions above)

The Scottish comparison.

In Germany, Finland and Denmark the provision of some live music is assumed when the equivalent of an on-licence is granted. In rural Ireland no permission is need for live music in a pub, and customers would think it very odd to suggest that it be a criminal offence unless first licensed.

The Musicians' Union has argued for reform along Scottish lines for some time. But the government has rejected this option.

Public entertainment licensing - historical context

In 1961 this limited precedent was incorporated and expanded in the Licensing Act of that year. For the first time landlords could hire one or two professional musicians without a public entertainment licence (PEL). This exemption was retained in the Licensing Act 1964, (S.182) which is the current legislation. The two performer exemption is known to musicians as the 'two in a bar rule'.

Until 1983 magistrates administered the PEL regime. Fees were nominal and the licence relatively easy to obtain. The sharp decline in live music in pubs and bars began when local authorities were handed control of PELs in 1983. Fees rose steeply in many areas, and PEL conditions became onerous. The combined costs proved an effective deterrent to seeking PELs. Only 5% of 110,000 on-licensed premises currently hold annual PELs.

Since the Health and Safety at Work Etc Act 1974 (HSWA), the Environmental Protection Act 1990, the Noise Act 1996, and other legislation which imposes a statutory duty on employers to undertake risk assessments of all activities on their premises, and a statutory duty on local authorities to enforce health and safety legislation where entertainment is provided (irrespective of PELs) many, if not most, of the safety and noise controls available via PELs have become unnecessary for incidental live music in a typical pub or restaurant. This is borne out by the Scottish licensing regime where no PEL is required for incidental live music in licensed premises during permitted hours. Safety and noise legislation applies UK-wide.

Nigel Bunner

this article is copyright protected. Morgensterns is licensed to reproduce it. No further copying is permitted without Morgensterns or the author's permission