The Live Music Forum


Hamish Birchall Bulletin


Tuesday 7th April 2009 - Form 696 - Minor Variations

Feargal Sharkey, chief executive of UK Music, is to meet the Metropolitan Police this morning, Tuesday 7th April 2009, to discuss Form 696. Detective Chief Superintendent Richard Martin, commander of the Clubs & Vice Unit, will put the police case for the controversial gig risk-assessment form.

But while Form 696 raises genuine concerns about intrusive and potentially oppressive policing of musicians and venues, it is part of a deeper problem: the Licensing Act 2003. This point has already been made by Sharkey. In a BBC report about the Form last December, he called the Act 'deeply flawed', and asked why the government had not yet intervened to fix it:

Well, now the government is intervening, if not specifically in relation to Form 696. But their solution, for live music at least, looks like a fix in more ways than one.

'Minor variations' is a recently revised, government sponsored amendment to the Licensing Act currently being considered by Parliament under what is known as the super-affirmative procedure:

As originally worded, the amendment was unlikely to benefit live music. In evidence to the Regulatory Reform Committee last year, the Department for Culture, Media and Sport (DCMS) itself warned that:

'In many cases the extension of music and dancing beyond 11pm, or the addition of the playing of music to a licence, will not fall within the definition of a minor variation.'
Regulatory Reform Committee 2nd Report, published 29 January 2009, DCMS response to Question 5 'Additional Exclusions'

This problem had already been raised by Musicians Union general secretary John Smith in his evidence to the Culture Committee inquiry into the Licensing Act last November:

'We should have a small venues exemption placed before Parliament soon and we do hope it goes through. The other thing that I do not think we will get and what we would dearly like is a fast-track variation of the licence to recognise that live music is not a threat to law and order in every circumstance and in most circumstances to let it through. I think we have been told that is a major variation of the licence and will not be included in minor variations.'

But the revised minor variations amendment appears to allow for the possibility of adding live music to an existing licence, and this raises questions about the government's commitment to further exemptions for live music, at least in pub and bars. Unsurprisingly, the amendment has the strong backing of the Local Government Association (LGA), which represents councils in England and Wales.

The idea is that pubs and bars should be able to change the terms of their licence cheaply and quickly. Under the current rules, a bar wanting authorisation for live music would have to make a full-on licence application costing hundreds of pounds, excluding the cost of public advertisement for 28 days in the local press, and possible legal representation if local objections require a public hearing.

Minor variations cuts the cost to a one-off £89 application fee, and the only notice required is a white A4 page posted outside the venue for 10 days. Local authorities would not be able to impose conditions: all they can do is approve or reject the application within 15 days. Unsuccessful applicants are refunded their £89.

Of course, this not an exemption for performances of live music, small-scale or otherwise. Provision of even one unamplified performer could still result in a criminal prosecution for licensees of premises that are not licensed for live gigs. If the local authority considers that a live music application under this new process could potentially lead to noise complaints they will refuse it. And these are the reasons that councils back the amendment.

The LGA has confirmed that it opposes further exemptions for live music, and it has clout within government and Parliament because it is seen as the voice of local democracy. According to reliable sources, the LGA is apparently considering 'a promotional implementation pack' for councils, to be launched once the minor variations process comes into force, selling the 'economic and cultural benefits of live music'. If true, this proposal is reminiscent of the discredited PR used by DCMS to promote the so-called 'benefits' of the Act for live music back in 2004, before the Act came into force in November 2005.

Three months ago, the LGA promised to provide me with evidence for their opposition to exemptions in the form of examples of gigs where licensing was the best or only way to regulate. Despite several reminders they have failed to appear.

The real reason that local authorities oppose exemptions even for small gigs is that they fear the cost implications if they have to enforce noise nuisance legislation. Pre-emptive licensing control is preferable, in their view, despite there being absolutely no evidence that live music is a serious or widespread noise problem. Apparently they do not consider the possible cultural damage of this sacrifice of free expression for administrative convenience, nor do they appreciate how much in the public mind they begin to look like a coalition of gauleiters.

If you think that is an exaggeration, consider the recent postponement of an unlicensed school concert scheduled for Wednesday 18th March, enforced by Daventry District Council. This was preceded by a visit from the council licensing officer and the police.

Danetre School headteacher David Howell said: 'The first I knew of the problem is when a licensing officer and a policeman, without making an appointment, turned up on Monday at the school and spoke to one of the members of staff and said we could not do the show.' Quote from online Daventry Today:

Worryingly, draft DCMS guidance that accompanies the new minor variations amendment includes a very weak statement in support of live music applications:

'... the addition of live or recorded music to a licence may impact on the public nuisance objective, but this will depend on many factors. Licensing authorities will need to consider factors such as proximity to residential areas and any noise reduction conditions volunteered by the applicant. It is very much the government's intention that applications to vary a licence for live music should benefit from the minor variations process unless there is likely to be an adverse impact on the licensing objectives.'
DCMS Draft Statutory Guidance, Minor variations process, para 8.48

Could it be that, despite government promises of a public consultation this Spring on further exemptions for live music, faced with LGA opposition, ministers have little enthusiasm for such exemptions in pubs and bars?

Licensing minister Gerry Sutcliffe is to meet the LGA at the end of this month. The Musicians Union is also on the LGA invitation list.

Following those meetings we may learn whether or not the government can rise above the petty bureaucracy of council officials, and whether the Musicians Union can rise to the challenge as the champion of live music.


Hamish Birchall