These organizations also lobbied on behalf of folk play performers, with statistics on performing groups provided by the Traditional Drama Research Group. Indeed, one of the cases they cited, which achieved national prominence in the media, was when the local licensing officer intervened, following complaints, to prevent the Wessex Morris Men from performing their Christmas mummers’ play in Cerne Abbas, Dorset in 2002.
The outcome was that an amendment was tabled in the House of Lords by Lord Redesdale to exempt morris dancing from the Act. This was supported in the Commons by the Conservative MP David Cameron (now the party’s leader), whose constituency includes a number of villages and towns with strong morris dancing traditions. The morris organisations had been led to believe that folk drama would also be exempt, but unfortunately this was omitted during some hasty last-minute re-drafting. Thus it came to pass that "morris dancing, or dancing of a similar nature" is exempt but folk drama is not (with the possible exception of sword dance plays). Another exemption of possible interest to some folk play groups is "entertainment at a garden fete".
When the Act came into force, most publicans ticked all the right boxes, although some did not, either deliberately or through oversight. To their shame, some landlords and pub chains (e.g. Sam Smiths and Wetherspoons) decided not to tick the live music and entertainment boxes. For these licensees, the Act provides a convenient reason for declining unwanted performers.
Where do things stand now, several years down the line? There seems to be a consensus that the Act is poorly drafted as regards entertainment in pubs and other venues, particularly for traditional activities such as folk plays. The objectors still include morris dancers, because despite their own exemption the situation regarding their ancillary activities such as music sessions and mumming performances is not clear cut.
Opinions vary as to what to do about it. At one extreme there are people who are actively campaigning with the best of intentions to get the Act reformed (e.g. the Potterne Mummers campaign). At the other extreme, there are people who ignore the Act, either because they incorrectly think that folk drama is exempt along with morris dancing, or that the Act merely replaces one area of dubious legal territory with another. People of this persuasion would probably prefer the activists to shut up and not draw attention nor give busybodies ideas. On the other hand, there are indications that the campaigners may be achieving some success, at least in getting the fees reduced for certain minor variations to licenses, although these are unlikely to include the adding of another licensable activity.
Another response is that some groups who used to put up posters to advertise their tours no longer do so. Instead, they engage in "guerrilla mumming" – i.e. arriving at venues without forewarning and asking the licensee for permission to perform on spec. Mind you, some groups used to do this anyway.
The EFDSS and the morris organisations are monitoring the situation and gathering details of cases where folk performers have fallen foul of the Act, but despite a few shock horror stories, the situation does not appear to be as bad as was feared. Most groups (and pubs) are carrying on as normal, although for some pubs, the Act is a handy excuse for refusing performers that they just do not want. For that reason, it is anecdotally reported that some landlords have been disappointed when they learn that morris dancing is exempt.
Most local Licensing Officers are also continuing as before, in that they are not proactively looking for transgressors of the Act, and normally only follow up specific complaints from the public. It was a complaint from local resident that led to the incident at Cerne Abbas. Potterne Mummers notwithstanding, we are not aware of any similar situations having occurred since the Act came into force, but of course, this could change in the future.
For a reality check, the following contribution was made to the Morris Dancing Discussion List by a serving Licensing Officer, morris dancer and folk play performer (who must remain anonymous for professional reasons):
"... The Licensing Act 2003 removed anomalies in the former piecemeal legislation, and, for the first time, clearly exempts the morris and similar dance forms from controls.
Paragraph 11 of schedule 1 says:
'Morris dancing etc.
11 The provision of any entertainment or entertainment facilities is not to be regarded as the provision of regulated entertainment for the purposes of this Act to the extent that it consists of the provision of -
(a) a performance of morris dancing or any dancing of a similar nature or a performance of unamplified, live music as an integral part of such a performance , or
(b) facilities for enabling persons to take part in entertainment of a description falling within paragraph (a).'
This means that if the accompanying music is unamplified and the dancing is morris, looks like it or is of a similar nature (molly, rapper, long sword, clog, step etc) it is exempt. This is a matter of law, not opinion or negotiation.
The law in relation to mumming remains unchanged from that in the previous Theatres Act 1968 (and before that the Theatres Act 1843...). It is a licensable activity because it is a theatrical performance involving persons actually present and performing, playing a role or roles. This aspect needs changing, but the DCMS [Department for Culture Media and Sport] and their various 'advisors' don't think it is very important. The practicalities, however, also remain unchanged - in the absence of any complaint, the likelihood of enforcement is negligible; local authority licensing officers and the police have more urgent things to do with their time, especially given Government's propensity to come up with yet more 'initiatives' for them to work on without additional resources...."
Both senior officials in the DCMS and Feargal Sharkey, who chaired the DCMS’s Live Music Forum, have quietly been asked if the issues relating to traditional drama could be addressed, on the basis that it was an oversight and the effect of the Act is disproportionate. The answer in both camps has been "no chance" unless and until there is a full review of the legislation, which is unlikely before 2010, even if Parliamentary time can be found.
We are grateful to John Frearson of the Morris Ring for obtaining permission for us to reproduce the above quotation.
Please note that this FAQ does not constitute legal advice.