Musical chairs in the Lords

Music in pubs once again finds itself between the Devil and the deep blue sea.

While I appreciate that many people may have felt that the proposed new minor variations procedure might be helpful to allow small-scale musical entertainment, I do not think it will work out like that. Because any change to music provision would be a variation of the licence, it will have to be advertised on the premises. If just one person objects, it is very unlikely that the licensing officer will be prepared to grant the variation without further investigation and a hearing. That is just the way of things.

As I commented recently, the 'two-in-a-bar' rule cannot realistically be brought back in its old form, because entertainment is now bundled with the alcohol licence. The only advantage of having an exemption is avoiding the obligation to have an entertainment licence, which is what used to happen. This meant that no conditions that might be costly and make the venture uneconomic, could be imposed by the local council.

But now, the authority has power to impose all kinds of conditions on the premises licence. It is true that section 177 of the Licensing Act does provide certain exemptions from conditions for small scale and unamplified music, but it is an impenetrable section, and the Department for Culture Media & Sport has made it clear that it does not want to make wholesale amendments to the Act.

Much as I applaud Lord Clement-Jones' efforts, following the recommendations of the recent Select Committee Report into the Act, I recognise how difficult it is to reach a compromise position. Residents will fight tooth and nail not to have automatic concession for music, for fear of disturbance going unchecked. This is in spite of the fact that environmental health officers have wide-ranging powers outside the Licensing Act to take action against noisy pubs that disturb neighbours.

Even if Lord Clement-Jones' Bill was to make some progress, there is previous evidence that the House of Lords itself will seek to protect residents' rights — as they have done so damagingly, some would say, with the minor variations procedure itself. "Giving the people a voice" can now be translated as "giving the people a veto", it would seem. In spite of the ruling in the Thwaites case, fear of the unknown is still the major factor in local democracy.

Q&A​

Removal of DPS

Q. We have three pubs, which are managed for us, and at one we have a dispute with the current Designated Premises Supervisor (DPS) and have threatened dismissal. But he refuses to step down and says that without his consent we cannot legally remove him. He is trying to remain in the private accommodation and to continue with his role as DPS. If we dismiss him, can we install a new DPS?

A, Leaving aside the employment issues, it is clearly possible to remove a DPS if you are the holders of the premises licence.

Authority to apply to the licensing authority for a change of DPS is given specifically to the premises licence holder and does not require the prior consent, written or otherwise,

of the existing DPS. It does, however, require a consent form from the person you wish

to install (who must, of course, be the holder of a personal licence) and you must send notice of the application both to the police and to the existing DPS.

Under section 38 of the Licensing Act 2003 you can apply for the change to have immediate effect, and you can deliver the application to the offices of the licensing authority, at which point the change is made and the person with whom you are in dispute no longer holds the position of DPS.

Remember that the authority to sell alcohol rests principally with the holder of the premises licence. Unlike the previous situation, where the licence was tied to named licensees, the DPS is not the licensee and can be changed at any time.

As far as the employment dispute is concerned, you will doubtless be contacting your own solicitors to ensure that the termination of employment is carried out properly and the accommodation is released for use by the new manager.

Two places at once​

Q. I have been asked to cater for two different events away from my pub on the same day next month. I have staff to run them, but my question is: will I be allowed by the council to hold two separate TENs at the same time?

A. The answer is yes, subject only to the limitations on your own total of temporary event notices. As this is 50 per calendar year, because you hold a personal licence, it is unlikely that you have reached this level yet.

According to the Licensing Act, nothing prevents two or even more 'authorisations' having effect at the same time "in respect of the same person". Certainly, in the section of the Act on permitted temporary activities, a counter notice can only be issued if you or a business associate have given at least 50 notices, or if the limit of 12 for one or other of the venues will be exceeded this year by allowing the event to go ahead.

The only other potential element is an objection notice by the police to one of the notices, on the grounds that the crime (and disorder) objective would be undermined by you looking after two events at once. However, if you have a good track record on external catering and bar management, and have well trained staff to whom you can delegate, this should not in itself be a problem.

Timeshift videos​

Q. If you record a TV film on videodisc and show it later, is this regulated entertainment?

A. This is an in-between situation. What you propose it is not exempt as such. The exemption from the entertainment provisions in the Licensing Act only applies to 'live' TV and radio (the simultaneous reception and playing). The playing of a video recording, therefore, would be classified as an "exhibition of a film" and, therefore, would need to be included in your operating schedule in order to legalise it. There are also copyright issues, of course, if you have recorded items for playing to an audience.