Hamish Birchall Bulletin
Friday 28th August 2008 - Notting Hill Carnival dancers not entertainment
Ordinarily local authorities treat public dancing as a licensable activity under the Licensing Act 2003. A bar owner who allows such dancing without the appropriate authorisation faces a potential criminal prosecution.
There is of course an exemption for morris dancing, or dancing of a similar nature. In 2006, the Royal Borough of Kensington and Chelsea (RBKC) announced that the dancers, known as masqueraders, who follow the Notting Hill Carnival vehicles, would qualify for the morris exemption.
A document recently released by RBKC sheds more light on this interesting decision. It appears that the masqueraders successfully argued that their dancing is about freedom of expression and not an entertainment for the purposes of the Act:
'The moving vehicles on the procession are specifically exempt from the provisions of the [Licensing] Act. The position of the masqueraders behind the vehicles is less straightforward. There is an explicit exemption in the Act for "morris dancing or any dancing of a similar nature", and there is a reasonable argument that the Carnival masquerade is "of a similar nature" in that it has a very long historical tradition, with a profound cultural significance for its participants.
In this sense it is also arguable whether the masquerade procession is "entertainment" for the purposes of the Act.
The Act provides in Schedule 1 Part 1 para 2 that entertainment includes "a performance of dance... where the entertainment takes place in the presence of an audience and is provided for the purpose, or for purposes which include the purpose, of entertaining that audience."
There is a strongly held view within the masquerade community that the Carnival procession is not at all for the purpose of entertaining an audience, but is the vehicle for fundamental self-expression and an assertion of personal freedom and rights.
As such there is a risk that treating the masquerade expression as licensable "regulated entertainment" would be insulting to many participants who have a quite different conception of the history and purpose of Carnival." [Royal Borough of Kensington & Chelsea, 'Key decision regarding the Notting Hill Carnival: Traffic Management Order 2006 and Implications for Carnival of the Licensing Act 2005 [sic]', KD02295, 31 May 2006, para 11.5]
The council report goes on to state that former culture minister James Purnell had indicated in Parliamentary debate that councils were entitled to take local decisions in relation to carnivals, and concludes that the Carnival should not therefore be licensable in this regard:
'... unless case law, government advice or a material change in the masquerade dictates otherwise, it is recommended that the Council should not in future years treat the masquerade procession as licensable.' [Ibid, para 11.7]
RBKC's deliberations raise questions about the status of other licensable activities, such as folk and jazz sessions, which the participants could reasonably argue represent a 'vehicle for for fundamental self-expression and an assertion of personal freedom and rights'.
--