The Live Music Forum

Hamish Birchall Bulletin


16th October 2007 - Government admits Licensing Act disappointing for live music

The government has finally conceded that the Licensing Act's 'neutral' effect on live music has been disappointing - but remains vague about the remedy.

Ministers had repeatedly claimed that the Licensing Act would lead to 'an explosion of live music' and would be 'good news for live music'.

But in yesterday's House of Lords debate on the Licensing Guidance (Monday 15 October 2007), government minister Lord Davies of Oldham said: 'I have to accept the criticism of the noble Lord, Lord Clement-Jones, that during the passage of the then Bill Ministers certainly had high hopes that it would increase the provision of live music events; we are disappointed in that respect.'  ( See the full Hansard text at the end of this email.)

Lord Clement-Jones, the Liberal Democrat Peer who forced the debate on the government by opposing the revised Licensing Guidance published in June, eloquently supported the call from both the Musicians' Union and Live Music Forum that the Licensing Act itself should be changed.  He cited several examples of problems and strongly criticised the DCMS for appearing to rely on the courts to clarify the meaning of its own legislation, particularly the 'incidental music' exemption. 'It is simply not reasonable to expect organisers of small-scale events to be able to have recourse to the courts to clarify the legality of their actions. Nor is it reasonable for licensing officers to be expected to second-guess government intentions,' he said.

In response, Lord Davies claimed that the revised guidance on the 'incidental music' exemption had been 'warmly welcomed' by both the MU and indeed by me. But in my case at least, I was misleadingly misquoted.

Lord Davies said: 'In an interview with the Stage in July, Hamish Birchall, a live music campaigner who has been something of a critic of the Act, said that it was, “a very small but very significant change in favour of a more liberal reading of the law”.'

But here is the my full quote from The Stage's report of 04 July: 'Live music campaigner Hamish Birchall reiterated Sharkey's stance. He commented: “I have to say that it [the guidelines] isn't really the solution, and it won't stop a lot of the uncertainty. It is a very small but very significant change in favour of more liberal reading of the law, but it is nowhere near the proposals made by the LMF and MU.”'

['Sharkey calls for changes to "ambiguous" Licensing Act':  ]

In justifying the need for licensing, Lord Davies claimed that problems with noise and live music was 'what the Licensing Act set out to recognise and make provision for.' This despite the fact that, as Lord Clement-Jones had already pointed out, intruder alarms are a far greater source of complaint.  In any case, separate legislation already deals with noise from premises, including new legislation allowing on the spot fines for licensees of noisy bars late at night (Clean Neighbourhoods & Environment Act 2005).

The government has yet to publish any noise complaint statistics that show the scale of the problem with live music. When the Licensing Act was being debated in 2003, noise abatement agencies consistently reported noisy people outside as their main problem with licensed premises, and that recorded music is a far greater source of complaint than live music.

As for what the government intends to do about the disappointing effect on live music, Lord Davies was non-committal. On the problematic 'incidental music' exemption, he said:

'I can assure him [Lord Clement-Jones] that we are listening to the representations made and that we will come to a carefully considered position on this later in the year. We recognise the importance of live music, both culturally and economically, and are fully committed to ensuring that live music flourishes under the new licensing regime'.

Hamish Birchall

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House of Lords Licensing Act 2003: Section 182 Guidance

7.40 pm - Monday 15 October 2007

Lord Clement-Jones rose to move to resolve, That this House disapproves the guidance laid before the House on 28 June.

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The noble Lord said: My Lords, having formerly been a health spokesman, I have a massive sense of déjà vu, but I shall try to shake it off as best I can.

The publication in June of the guidance issued under Section 182 of the Licensing Act 2003, which is the product of the second stage of the review of the original guidance issued in July 2004, has given us an opportunity to debate not only the guidance but the Licensing Act itself. The Act has clearly not achieved the benefits for live music claimed by Ministers when it passed through this House. Criticism of the Act and the revised guidance has come from a number of quarters, notably the Live Music Forum, chaired by Feargal Sharkey, which was established in 2004 by the Government as an independent advisory body, inter alia, to monitor the impact of the Act on live music and to make recommendations to Ministers. The recommendations were published on 4 July 2007.

I hope that the Government will take note of the recommendations when they respond this autumn as promised. The Minister responsible for creative industries, Margaret Hodge, in a speech in July, said that she was “looking forward to considering” its findings. It hardly bodes well, however, when the Live Music Forum was promptly disbanded as soon as it had published its report, before it had completely fulfilled its remit.

In its report the forum observed that the Licensing Act has not delivered an increase in live music despite the promises of numerous government Ministers, including the noble Lord, Lord McIntosh of Haringey, the then DCMS spokesperson in the House of Lords, who told this House on 26 November 2002:

On 3 July 2003, in this House, the noble Lord said:

In the same month, he said:

In January 2004, the then arts Minister, Estelle Morris, now Baroness Morris, acknowledged that,

She wanted to ensure that the Licensing Act “expands those opportunities”. She should be congratulated on those sentiments and for having set up the Live Music Forum. However, the fact is that the forum found that the Act has had only a broadly neutral effect on the provision of live music. The outcome certainly seems to justify the scepticism about the Act at the time which was displayed by my noble friend Lord Redesdale and by the noble Baroness, Lady Buscombe.

The report is graphic with examples of the anomalies that have resulted from the Act—particularly Schedule 1, which deals with regulated entertainment—and from the weaknesses of the guidance which is meant to deal with the interpretation of the Act. The following are cited by the Live Music Forum. An Oxfam bookshop advertised in a local newspaper an evening of poetry reading with musical accompaniment with a capacity

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for 25 people. No alcohol was to be sold at the event. They were told by the licensing officer that they would have to apply for a temporary event notice. A small cafe in a north-east of England coastal town, which does not serve alcohol, would previously once a week provide live music as an accompaniment to lunch by no more than two musicians. Previously exempt, the cafe owner no longer puts on such music as he is unable to justify the time and expense needed for the full licence application. In the Home Counties, the environmental health department of one local authority has become proactively engaged in the licensing process, objecting to a total of 54 applications for live music and frequently raising objections to applications for live music in the absence of objections from other parties, including local residents.

There are many other examples not contained in the report where local authorities have had to resort to very creative interpretation of the Act, such as classifying Swindon's Mela as a garden fete for example under Schedule 1 of the Act. Notting Hill carnival dancers in 2006 were said to fall within the Morris dancer exemption.

In general the forum criticises the Act and the guidance under it, not the local authorities; indeed it praises some, such as the City Corporation, for their approach. However, there is no doubt that some local authorities have been applying the legislation incorrectly and over-zealously. Yet—and this is my favourite point from the forum report—intruder alarms are responsible for twice as many complaints as live music.

One of the greatest areas of concern is the definition of “incidental music” under paragraph 7 of Schedule 1. The forum says that,

music which should benefit from an exemption from licensing—

The forum cites examples of where this lack of clarity and over-caution led to a cancelled village festival; a local folk club comprised of mainly older men who were prevented from holding their annual day of song; a brass band informed that it can only play songs of a “religious nature”; and mummers having to reduce the number of pubs they perform in at Christmas from 25 to seven.

It is these sorts of incomprehensible outcomes in relation to what are valuable local events that the Government should have addressed in their most recent guidance. However, they have failed to do so. The Merits Committee, in its report published on 16 July, says:

Indeed, the DCMS's position appears to be that it is for the courts to determine, when there is doubt, what is or is not incidental music. That entirely ducks its responsibility to provide clarity. I agree with the forum that it is simply not reasonable to expect organisers of small-scale events to be able to have recourse to the

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courts to clarify the legality of their actions. Nor is it reasonable for licensing officers to be expected to second-guess government intentions.

Producing fresh guidance, although an improvement on the current situation, would simply be tinkering around the edges. It is the Act itself that needs changing. A good example of this is Section 177, which was held up during the passage of the Licensing Bill as a great concession for live music in smaller pub and restaurant venues. But it turns out that the complexity of the process involved and the impenetrability of the wording of that section has led to the forum being unable to find a single example where Section 177 of the Act was in fact used either by licensing officers or venue owners. Anyone with an existing premises licence who wishes to provide live music on a permanent basis, no matter how small or infrequent, has formally to apply to vary their original licence. That can cost over £1,500 and constitutes a considerable outlay for smaller venues. So much for the apparently greater flexibility provided for smaller venues.

We need new primary legislation to regulate live music. Yet, although the Local Government Association acknowledges some of the criticisms of the Act, particularly over the need for a de minimis exemption for so-called micro venues, we do not yet have a consensus on what changes are needed. We therefore need an official government review to consider what amendments would provide the greatest clarity and strike the right balance . There needs to be wide consultation.

There are numerous questions for such a review to consider. First, what about the definition of “incidental music”? The Live Music Forum has conclusively demonstrated the need for clarity, but a number of questions need to be answered before a definition can be reached. Let us take the case of a shopping centre as an example. If live music is being played in a shopping centre, I hope we can agree that such music would be incidental. Are the health and safety regulations currently in place a sufficient instrument of control for local authorities? Or should there be a maximum limit placed on the permitted capacity of a venue in the case of incidental music? Is there a qualitative difference between a live, amplified band playing in a shopping centre and recorded music—which notoriously is unlicensed, blaring from the Tannoy system? Or should we be talking about unamplified music in those circumstances?

We then have the question of smaller, so-called micro venues. The review should further consider whether there should in principle be an exemption for micro venues and/or for unamplified music. This needs to be considered in the light of the 2004 MORI research—and, no doubt, the BRMB research which is to come in November. The research showed that a number of such venues had been affected by the removal of the two-in-a-bar rule. The question of what the maximum capacity of such venues should be requires careful consideration so that the right balance can be struck.

The fact remains that Section 177 clearly does not fit the bill. The Live Music Forum rightly points out the bureaucratic burden placed on such applicants. The forum would like to see all unamplified live music

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exempt from licensing. Are we essentially talking, however, about a single exemption for unamplified music in smaller venues? What is the appropriate size of venue? Exactly what do we mean by “unamplified music”?

Local authorities might rightly be concerned to see too open-ended an exemption put in place. A review should therefore consider where the balance lies and whether, all in all, a combination of the Environmental Protection Act 1990, the Noise Act 1996 and the Clean Neighbourhoods and Environment Act 2005—in addition to the Regulatory Reform (Fire Safety) Order 2005—offer sufficient protection in terms of noise and health and safety control to allow a significant de minimis protection for live music.

The Live Music Forum report goes on to say that the new system of temporary event notices has proved popular and successful. A review, however, should also look at the question of an increase in duration for TENs and the number of TENs a year. The Act has got it wrong on both fronts. I am not going to go into huge detail at this point, but the National Operatic and Dramatic Association—NODA—has provided some telling examples where the current system is not flexible enough. These criticisms also need to be addressed by amendments to the Act.

It is clear that both local authorities and members of the public are confused due to the lack of clarity in the Act and in the guidance as it relates to live music. Controls over live music events should of course be proportionate to the scale and nature of the event. I do not argue with the bulk of licensing of live music at commercial venues; indeed a recent Mintel survey shows it to be thriving. It is the amateur and smaller venues that concern me. Some of the statements in and additions to the guidance—for instance, in paragraph 26, where it is made clear that positive representations can be made—are welcome, but they are not sufficient to address the problems identified by the Live Music Forum. To remedy the problems created by the Act would require amendment of the primary legislation. I urge the Minister and the DCMS to take the necessary steps to set up a review of the Act so that they can properly fulfil their promises to ensure a flourishing live music landscape. I beg to move.

Moved to resolve, That this House disapproves the guidance laid before the House on 28 June.—( Lord Clement-Jones. )

Lord Howard of Rising: My Lords, my thanks to the noble Lord, Lord Clement-Jones, for introducing this debate. I must declare some interests. I am a district councillor, the owner of an ancient monument that has been forced to apply for a licence under the Act, and chairman of the National Playing Fields Association.

I find it difficult to object too strongly to the new guidance; it is roughly on a par with the old guidance. It is the underlying Act and how it has been put into practice which should be criticised. Nobody could criticise the aim of the 2003 Act: to bring together the six existing licensing schemes. It is the implementation which has been so disastrous. A massive increase in

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expense has been introduced. Local authorities alone have incurred costs of nearly £l00 million. A report from a Select Committee in the other place condemned the high level of costs as,

Hamish Birchall