The future of regulated entertainment

Government proposals to change the law on regulated entertainment could have a dramatic impact, writes Ian de Prez.

The changes to licensing law proposed in the DCMS Consultation document Regulated Entertainment and summarised in Robert Botkai’s recent article are indeed far reaching. If implemented they would completely change the relationship between licensing authorities, the proprietors of entertainment venues, and residents living near to them by taking most of what is currently defined as ‘regulated entertainment‘ outside the licensing regime unless it involves adult entertainment, boxing or wrestling or an audience of more than 5,000.

This article discusses the likely consequences of these proposals with respect to the control of noise and similar problems from entertainment venues. Local government officers are normally cautious in criticising the policy initiatives of an elected government. However, council lawyers, licensing administrators and environmental health officers have a wealth of practical experience which will be drawn upon as consultation responses are prepared ahead of the 3 December deadline. The views set out here are widely shared and will, I hope, inform the public debate on the proposals.

Regulated Entertainment has emerged in the context of a statutory framework which is already undergoing significant change:

1. The Policing Reform and Social Responsibility Act 2011 has received royal assent, but awaits implementation. One of the changes made to Temporary Event Notices (TEN’s) will enable environmental health officers to object on noise or other health/public nuisance grounds and, if there is an existing premises licence or club premises certificate, attach any existing conditions to the TEN if it is appropriate for the promotion of the licensing objectives. It seems ironic that a change clearly intended to plug a gap in the existing law could be swept away with the rest of the licensing requirement.
2. The Live Music Bill, promoted by Lord Clement Jones, is making its way through Parliament without any significant opposition to its key principles. If it is enacted in its current form unamplified live music between 8am and 11pm in any location will be deregulated. Amplified live music between the same hours will not be a licensable activity if in the same place alcohol is being sold/supplied for consumption on the premises by virtue of a premises licence, or club premises certificate and the audience is no more than 200. Existing licence/certificate conditions relating to live music will cease to have effect, but in the case of amplified live music the review procedure (Section 51 of the Licensing Act 2003) can be invoked – by ‘responsible authorities’ such as the police or environmental health or ‘interested parties’ including local residents to seek the imposition of conditions. On a worse case scenario the right to have amplified live music can be ultimately be lost. Regulated Entertainment promises continued government support for this bill, but it will of course be otiose if all of the latest proposals become law.

Conditions

Existing licence conditions deriving from the current definition of regulated entertainment would remain in force, because the government wishes to avoid the administrative upheaval of a wholesale reissuing of licences. We must therefore expect a large number of applications for variation seeking the removal of conditions, which in most cases will be virtually certain to succeed.

The power to impose conditions is broad. The consultation gives the example of a pub showing an international football match on the big screen. Watching football on television is not a licensable activity, but the police could, if concerned by crime and disorder issues, call a review to limit the opening hours before screening and add conditions re plastic glasses or extra door staff. In this scenario the licence conditions are necessitated by the potentially problematic combination of a licensable activity – alcohol sales – with something else, and can all be related to the way in which the licensable activity is carried out. If discos or performances by a rock band at the same pub were a catalyst for disorder, similar conditions could be imposed; but conditions contingent upon the concept of music as a licensable activity such as closing doors and windows and using noise monitoring equipment would no longer have a sound legal basis.

Although it is possible that the final form of any legislation and associated guidance will not be so absolute, it is likely that any dilution of the principle that the adverse effects of entertainment are to be a matter for environmental protection rather than licensing law will severely disappoint the live music industry, some of whom are already expressing annoyance in the blogosphere about the retention of existing conditions. However, is this approach really in the interests of all of us?

What kind of regulation?

The licensing provisions in the 2011 Act derive from last year’s consultation Rebalancing the Licensing Act; the very title of which indicated the government’s perception that the licensing regime was weighted too far in favour of the trade. This latest consultation is based on the assumption that any problems arise largely out of alcohol fuelled anti-social behaviour. Entertainment, we are told, is not normally a source of public concern and so the licensing requirements relating to it are unnecessary red-tape. This is not the opinion of any local government professional or licensing member known to me. All of us can recall cases where public concern about new premises or a variation of hours for an existing establishment has increased greatly if regulated entertainment is included.

It is frankly naive to assume that entertainment is always socially acceptable; tensions inevitably arise between the proprietors and customers of entertainment venues and those living near to them. The disputes that follow will not go away; they will merely be transferred to another forum.

The Licensing Act 2003 has created a ‘’light touch’ regulatory system but it also requires licence holders to undertake risk assessment when preparing an operating schedule which addresses the four licensing objectives in relation to their plans for the premises. The role of responsible authorities such as the police, trading standards and environmental health as well as local residents and other businesses can lead to a process of negotiation and mediation whereby a licence complete with conditions will often  emerge without a contested licensing hearing. The time limits imposed by regulations usually ensure a speedy conclusion and procedures are relatively informal. The possibility of a review of the licence being called whether by residents or responsible authorities’ is there in the background as a restraining factor.

Regulated Entertainment lists the noise abatement duties and powers contained in the Environmental Protection Act 1990, Noise Act 1996, Anti-social Behaviour Act 2003 and the Criminal Justice and Police Act 1994. Local authorities would certainly not be without weapons in their armoury in a hypothetical future where they had to rely on these powers rather than the main provisions of the Licensing Act.

However, the most severe and immediate sanctions such as closure of premises under the Anti-Social Behaviour Act 2003 are only likely to occur in extreme cases. Most cases will require environmental health officers to find evidence of a statutory nuisance and then serve an abatement notice which might be the subject of an appeal to the Magistrates Court. The next step would be a prosecution for breaching the terms of the notice and in the most obdurate of cases an injunction is a possibility. When prosecutions take place there is a defence of ‘reasonable excuse’. Furthermore, since most premises will fall within the definition of “industrial trade or business premises” it will also be a defence to establish – on the balance of probabilities – that “the best practicable means” (BPM) were used to prevent or counteract the effect of the nuisance.” “Practicable “means reasonably practicable having regard amongst other things to local conditions and circumstances the current state of technical knowledge and the financial implications.

St. Albans DC v Patel [2009] Env. LR 22 and R. (South Kesteven DC) v Grantham Magistrates Court [2011] Env. L.R. 3 are interesting illustrations of a BPM defence being scrutinised in the context of a prosecutor’s appeal to the High Court in pub cases and indicate a robust but fair approach by the Court in its expectations of a proprietor when noise control is required. It is arguable that, since the provision of entertainment is not an absolutely essential part of every public house’s operation BPM will occasionally require the cessation of certain kinds of entertainment altogether.

If prosecutions and appeals against notices are to become a more frequent means of resolving disputes about the impact of entertainment venues, we can expect that principle to be tested and it would not apply to a night club. Another consequence for newly built or newly converted premises would be a greater likelihood of planning controls being used to achieve noise control.

Conclusion

Of course, licensing law in its current form cannot ensure that everyone will be happy with what is permitted, or that the noise abatement provisions in other legislation will never be used – but, having made the comparison between the two methods of regulation we should ask ourselves whether it is really wise to completely transfer the regulation of most entertainment in pubs, nightclubs and smaller festivals from a system which is proactive and preventative to another which is inherently adversarial, uncertain, more prone to delay and expensive for the private citizen.

Regulated Entertainment identifies anomalies in the current system which cannot be denied. There is certainly a case for extending the list of exemptions to the licensing requirements. Lord Clement Jones’ Bill would lead to a generous relaxation of the licensing requirement for live music whilst keeping that activity within the purview of the Licensing Act by means of the review procedure. Perhaps we should see how this works in practice before attempting a further change which is so radical.

Ian de Prez is a Solicitor Advocate at Suffolk Coastal District Council. He may be contacted on 01394 444692 or This email address is being protected from spambots. You need JavaScript enabled to view it.. The views expressed here are personal.