Below are the responses to the campaign against Public Entertainment Licence changes from SNP MSPs Fiona Hyslop (Culture Secretary), Kenny MacAskill (Justice Secretary) and Alex Salmond (First Minister)
Fiona Hyslop, Cabinet Secretary for Culture and External Affairs (SNP)
LETTER TO NEIL COOPER, ARTS JOURNALIST AND DEPUTEE AT CEC REGULATORY COMMITTEE MEETING 9th March 2012
08 March 2012
Dear Mr Cooper,
Thank you for your e-mail of 6 March regarding changes to public entertainment licensing. I am very much aware of the current concern amongst the arts community over the changes brought in by the Criminal Law and Licensing (Scotland) Act 2010 and coming into force on 1 April. The Scottish Government is wholly supportive of the contribution made by the arts community and do not want to see any adverse affect on the staging of exhibitions/performances.
The system for licensing Public Entertainment has been in place since the passing of the Civic Government (Scotland) Act 1982. The licensing regime has been amended to give local licensing authorities the ability – if they so choose – to include free to enter events within the terms of licensable activities. This change in the law was in response to concerns that had been raised by a task group that had reviewed the legislation about the lack of control that local licensing authorities had over large scale free-to-enter events such as music festivals and large firework displays etc. where stewarding requirement for example may be needed for safety.
It is important to stress that the new law does not mean that local licensing authorities are required to insist on free-to-enter events having a Public Entertainment Licence. The discretion lies entirely with the local licensing authority to determine what types of events they licence. The public entertainment licence is a discretionary licence. It is for the local authority therefore to decide whether to licence public entertainment and if they do, what specific types of entertainment they wish to include.
There is nothing in the law to prevent an authority from exempting all or certain categories of free to enter events, or particular types of cultural events from the requirement to have a public entertainment licence.
The long lead in time between the passage of the bill and commencement of the change on 1 April 2012 has been to allow licensing authorities the time to ensure that they have adopted resolutions that ensure that they licence the activities that they want to, whilst avoiding a requirement for a licence where that is disproportionate. Councils are doing this and Edinburgh are doing so this week. It may be that others will need to do likewise.
The cost of the licence is also for the licensing authority to determine and therefore, even if the local authority decided to insist on some large scale free-to-enter events having a licence, it would be open to them to charge a lower fee than would be charged for commercial events.
The Scottish Government are clear though that we and the public will expect Councils to continue to support the fantastic individual, grassroots and community cultural activity which takes place particularly in this Year of Creative Scotland. It is our firm view that these decisions are taken locally so that that local needs and requirements are reflected rather than a one size fits all approach is taken.
I also attach for information a copy of;-
1) The letter issued by Mr MacAskill to licensing authorities clarifying the Scottish Government’s position on the matter.
2) The answer given today (Thursday 08 March) by the First Minister at First Minister’s Questions.
Kenny MacAskill, Cabinet Secretary for Justice (SNP)
LETTER TO LICENSING AUTHORITY CONVENORS
Dear Licensing Authority Convenors
The Scottish Government
DELIVERING A GAMES LEGACY FOR SCOTLAND
Many of you will be aware of the current interest in the changes to the law on licensing of public entertainment that will come into force on 1 April 2012. I am writing to you to set out the Scottish Government’s position on this matter.
The case for a change to the law was made by the task group that reviewed the operation of the licensing schemes operated under the Civic (Government) Scotland Act 1982. That task group concluded in its report, “A number of respondents requested that consideration be given to removing the exemption from the licensing requirement for events which are free to enter. At present, Section 41(2) of the Act states that a “place of public entertainment” means “any place where, on payment of money or money’s worth, members of the public may use any facilities for the purposes of entertainment or recreation.” Comments were made that some such events can attract large crowds with concomitant public safety and public order concerns, and as such licensing authorities should have a power to require the organisers to obtain a public entertainment licence. The Task Group agreed that it is unsatisfactory that licensing authorities are unable to control such large scale public entertainment events. We acknowledged that licensing authorities may not wish to license certain types of free event, such as gala days and school fetes, but considered that the decision on whether to license these events should rest with the individual authority. As such, we recommend that the exemption for events which are free to enter be removed.”
That recommendation was taken forward through the Criminal Justice and Licensing (Scotland) Act 2010 which under section 176(2) removed the words “on payment of money or money’s worth,” from section 41 the 1982 Act.
This amendment therefore allowed licensing authorities to licence free events where they wish to do so. It was never envisaged that all free events should be licensed. In fact, both the policy memorandum and explanatory notes accompanying the Act make clear that licensing authorities have discretion as to which events require a licence. The explanatory notes use the examples from the task group report of school fetes and gala days as types of event where the requirement for a licence may not be appropriate.
It has always been the case that without action on the part of licensing authorities to amend resolutions, free events could become licensed depending upon whatever existing resolution was already in place. The Scottish Government took the decision to delay commencement of the change until 1 April 2012 – some 20 months after Royal Assent – in order that licensing authorities had a reasonable period to amend their resolutions to ensure they were appropriate in light of the changes to the law.
I am aware that some authorities have already taken action or are planning to do so.
However it may be helpful if I set out the position about making changes to resolutions.
Section 9 of the Civic Government (Scotland) Act 1982 sets out the process which an authority must follow when making, amending or repealing a resolution. In particular, I would draw your attention to subsection 9, which provides detail on amending or repealing resolutions.
Section 9 does not require a nine month period for amending a resolution where the variation reduces the scope of the resolution. However a 28 day period of public consultation is required, which may mean that an amended resolution will not be in force until after 1 April.
However, where an amended resolution is not in place by this date, we would encourage you to adopt a pragmatic and common sense approach in dealing with any applications for public entertainment licences between this date and the coming into force of any amended resolution.
Given that 2012 is the Year of Creative Scotland we would encourage you to take account of the contribution of the artistic community in particular when progressing any changes that are being made. It would be unfortunate if performers felt unable to showcase their talents around the country due to this issue.
I hope that this letter clarifies the Scottish Government’s position on this matter.
St Andrew’s House, Regent Road, Edinburgh EHl 3DG
Alex Salmond, First Minister for Scotland (SNP)
RESPONSE AT FIRST MINISTER’S QUESTION TIME, 8th March 2012
29 mins 57 secs in – Malcolm Chisholm MSP puts question and Alex Salmond answers:-
“The Cabinet Secretary for Justice has written to licensing authorities this week. This will further assist them and sets out the powers they have to decide what they wish to licence and what not to licence.
This amendment was introduced to allow local authorities to control and ensure safety at large scale free to enter events such as raves and major firework displays. When they take licensing decisions we expect them to take account of the impact on cultural activity and small scale events in their areas, in order to continue to support the fantastic individual, grass-root and community based artistic talent we have in Scotland. That is the case at any time but is especially important during the Year of Creative Scotland and I am pleased that Edinburgh Council has indicated that no free cultural events for audiences of less than 200 people will be affected.”