The Live Music Forum

Hamish Birchall Bulletin

Friday 24th December 2010 - Turner Prize exhibit needs licence says Westminster council

Westminster City Council has told Tate Britain to get an entertainment licence for Susan Philipsz' Turner Prize winning sound installation.
The objectives of the licensing regime (Licensing Act 2003) are public safety, the prevention of crime, disorder and public nuisance, and the protection of children from harm.  The maximum penalty for providing a licensable entertainment without a licence is a 20,000 fine and six months in prison.  Some parts of Tate Britain are licensed under the Act for regulated entertainment, but not the main galleries.
Ms Philipsz's prize winning exhibit features a recording of her singing 'Lowlands Away', a traditional folk song, played through two loudspeakers.  See Daily Telegraph report of 6th December:
Westminster's head of licensing, Andrew Ralph, initially rejected the idea that the exhibition was licensable.  On 9th December he told the Live Music Forum: 'The Tate Britain does not need a licence for the exhibition as the primary reason people visit the gallery is to view art and the music is ancillary to that.'
But, following discussions with the LMF, Westminster's legal department overturned that position and advised that the exhibition did need a licence.  It would seem they agreed that the Act's 'incidental music' exemption could not apply in this case.
On 20th December, a council spokesperson said: 'The legal situation surrounding licensing can be very complex, and whilst initially a decision was taken that no separate licence was needed, subsequent legal advice has suggested otherwise. We do our utmost to keep any paperwork for these types of events to an absolute minimum, but we do have to abide by national legislation.'
The spokesperson added: 'The Tate will not have to stop the exhibition in the meantime as such sort of enforcement is not deemed proportionate.'
This light touch contrasts markedly with enforcement action Westminster has taken in the past. In November 2002 Westminster successfully prosecuted Wolverhampton and Dudley Breweries (W&DB), owner of the high street chain Pitcher & Piano, after licensing officers reported customers 'swaying rhythmically' to music in two of its sites, Trafalgar Square and Soho. W&DB was fined 5,000 and ordered to pay 1,600 costs in addition to its own legal fees. Public dancing remains illegal under the Licensing Act 2003, unless the venue is appropriately licensed, or the dancing is morris dancing or dancing of a similar nature.
Indeed, the morris dancing exemption offers Tate Britain an intriguing way around Westminster's licensing requirement. It allows unamplified live music if it is an 'integral part' of a performance of morris dancing or dancing of a 'similar nature'.  If Susan Philipsz herself, or another vocalist, were to sing 'Lowlands Away' unamplified in the gallery, to some morris dancing, or dancing of a similar nature, this should be exempt (LA2003, Sch. 1, Part 2, para 11).
But if that would compromise the integrity of Ms Philipsz' artwork, then a licence seems unavoidable. The cost of Tate Britain's licence application could be as low as 89 for a 'minor variation' (see DCMS guidance: )
If a full variation application is required, however, the cost would be the same as a full licence.  For a property like Tate Britain this would be in the region of 635 plus the cost of 28 days advertisement in the local press.  Annual charges of about 350 would also apply.  The public advertisement might provoke local objections, as it often does, and this may in turn lead to a public hearing.
Lawyers Robin Bynoe (solicitor, senior counsel at Charles Russell) and Richard Bridge (solicitor, partner at King Prior MacDonald Bridge) commented:
'The main point here is that legislation ostensibly designed to prevent antisocial levels of noise in pubs was so clumsily and illiberally worded that it has the effect of criminalising the showing of a prize-winning piece of art by one of the world's leading art institutions. The calculation of the fee that has to be paid to redeem the criminality, which should never have arisen in the first place, is rather beside the point.
'The embarrassment at the Tate underlines that this legislation criminalised a range of musical and other performances, and the provision of "facilities" for them, that could not conceivably produce antisocial levels of noise - in pubs or elsewhere – and did so despite the presence of existing and perfectly adequate noise controls.

'Previous experience of the way that councils have dealt with these anomalies suggests a tendency to nod through the pastimes of the rich at the expense of the pastimes of the poor. It's an unfortunate consequence of this kind of lazy legislation, which is worded very generally in the hope that the authorities can be relied on to enforce it without making waves. Undoubtedly, however, Westminster Council will act in an even-handed manner.'


Hamish Birchall