Licensing Bill [Lords]

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Mr. Moss: I suppose we ought to be terribly grateful for the crumbs from the Minister's table. If the total of the Government's concessions as a result of the prolonged debate in the other place is simply to exempt the performance of live music and the playing of recorded music so long as it is incidental, that is to be welcomed. It would be churlish, to use a ministerial word, to oppose the concessions. On the other hand, we have a problem with the definition of ''incidental'', which the Minister made no attempt to interpret or convey to the Committee; nor did he assuage our fears that that could be a minefield that potential licensees would stray into at their peril.

Dr. Howells: I was simply repeating the term that was used in another place: ''incidental music''. I am sure that the hon. Gentleman would not have wanted me to attempt to change or distort that term.

Mr. Moss: I am grateful to the Minister, but as I understand it, the word ''incidental'' appeared in the Bill when it was first published. I am not suggesting that there is something wrong with the paragraph. On the face of it, that seems to be an attractive concession by the Government to the performers of live music that is incidental, but unless we know what ''incidental'' really means, it may not carry the weight the Minister thinks it does.

Dr. Howells: I will have a pop at a definition for the hon. Gentleman. Incidental live music is music that does not form part of the main attraction for visitors to a premises. Examples might include a piano played in the background in a restaurant, or carol singers in a shopping centre. However, if a band in a pub was advertised to draw in customers, or live music was played so loud that it could not possibly be regarded as

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incidental to another activity, it would be unlikely to benefit from the exemption. To clarify the matter further, we would expect the licensing authority to exercise this discretion as it currently does in regard to public entertainment licensing.

Mr. Moss: I am grateful to the Minister. Let us get this clear: if we are in a pub and the landlord has a small combo playing quietly in the background—nobody is particularly listening, most people are drinking and there is no dancing—there is no limit to the number of musicians he could have in there because their music is incidental to the drinking that is going on in the pub. Is that right?

Dr. Howells: I did not give way; I intervened on the hon. Gentleman.

Mr. Moss: Yes. The role reversal threw me; I beg the Minister's pardon.

Mr. Hoban: Did my hon. Friend pick up what the Minister said about music being so loud that it could not possibly be incidental? This morning I raised the issue of the funfair that is on the outskirts of my constituency, where the noise level is very loud. Based on the Minister's explanation, the music might not be incidental to the funfair, and should be a regulated activity under the Bill.

Mr. Moss: My hon. Friend makes a telling point. He has come back to it several times, so obviously he has not received a satisfactory answer so far. Perhaps the Minister will address that issue in his response. We are concerned that insufficient thought has been given to the definition of ''incidental''. The people out there are going to try to use this legislation; if we in the Committee are not clear, how can we expect them to find their way through this and know exactly where they stand when they are making their applications? Clarification on that point would be helpful.

Nick Harvey: Government amendments Nos. 2 and 3 reformulate in an acceptable way what those in the other place thought they were achieving with their amendments. My noble Friend Lord Redesdale tabled the relevant amendment in the other place. Amendments Nos. 2 and 3 do the job rather more straightforwardly than the formula that came from there.

The hon. Member for North-East Cambridgeshire has cut to the key point: the definition of ''incidental''. I was disappointed to hear the Minister say that in his view anything that was advertised would cease to be incidental. I can see that if there was a charge for the entertainment, it could no longer be said to be incidental, but it is part of the character of a pub to have live music. The pub that I go to at Sunday lunchtime frequently has a quiet jazz performance going on in the corner. Some people may know that this generally occurs on a Sunday, but others may simply wander in and find it there as a bonus.

If a pub establishes a tradition, or lets it be known that it has live music at a certain time, it will no longer be deemed to be offering something that is incidental to its primary activities of selling alcohol and food and so forth. This will not prove to be anything like the concession or breakthrough that their lordships in

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another place and members of the Musicians Union and others outside thought it would be.

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It may be the case that the Government are going as far as they can in offering a lay interpretation of ''incidental'', and that only case law will nail that down, if things come to that. However, I am disappointed by the suggestion that everything that is advertised ceases to be incidental, and I hope that that will not be what happens in practice.

Mr. Field: I also agree with my hon. Friend the Member for North-East Cambridgeshire; he has highlighted a grave concern. We should not go down the worrying path that the hon. Member for North Devon described. The courts should not decide the definition of ''incidental'' as a lot of case law would be an unsatisfactory way of determining that.

I am concerned by what the Minister said. What precisely does ''incidental'' mean? Is there a risk that if music is unamplified enough there would be nothing that is a purpose for licensing—or, indeed, incidental to that purpose—even if it is the primary purpose? Is this just a matter of very loud music? In the Bill, are we talking about several primary purposes? This is a mess. We need a stronger idea of the definition of ''incidental'' and how that would operate in practice. Several hon. Friends—not least my hon. Friend the Member for Fareham—have put forward some practical examples, and I would be interested if the Minister could determine through those examples how ''incidental'' will or will not work if he gets his way and the Government amendments are reinserted into the Bill.

Dr. Howells: If it will help the Committee, I am willing to be intervened on on this issue.

I am not sure that I share the unease of some Opposition Members. If the entertainment is advertised and the purpose of the music is to draw in customers and to make a profit for the business, that has a direct bearing on the business and it would be difficult to describe it as incidental. On the other hand, the hon. Member for North Devon gave us an illustration. He goes to a pub on a Sunday where a jazz quartet plays in the corner: as there are not merely two players, it will have to have a licence. [Interruption.] The hon. Gentleman shakes his head. We have another example of a pub that is not properly licensed. If it is a quartet, it will already have a licence. Perhaps the hon. Gentleman meant to say that it was just a duo? He nods his head. In that case, it is two in a bar, and they do not need a licence.

I have tried to describe a distinction to the Committee. There might be a clear attempt by the holder of a licence to draw people into his premises by advertising the music that will be played. On the other hand, I occasionally get invited to some posh restaurants—it is one of the perks of my job, and perhaps at some time in the middle of this century the hon. Member for North-East Cambridgeshire will be invited to them himself—and there is a restaurant nearby where a good pianist plays jazz standards

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through the course of the evening. That music is incidental; it is tucked away in the corner. However, the hon. Member for North Devon is right that this distinction is not clear.

I would have thought that the hon. Member for North-East Cambridgeshire would be pleased with us because we have given the licensing authority the opportunity to use its common sense when it comes to defining what sort of music that is. I have made some suggestions about how it is possible to differentiate between what is incidental and what is the main attraction, and I used advertising as one example. I would have thought that the hon. Gentleman would be pleased to realise that some of the music played in a licensed premises could be described as incidental.

Jim Knight: I would not have become interested in the subject if it were not for Roger Gall, a constituent of mine, who lives on Portland, where there is a folk jamming session on a Friday night in a pub called the Cone House Inn. It became known that the landlord was comfortable with people coming along on a Friday night and playing their music. These sessions were not advertised. Such an event, which is not advertised or actively encouraged, may be a passive part of the atmosphere of the pub, and it may begin to build up business and become a substantial attraction and profit maker for the publican. Would the Minister regard such an activity as one that should be regulated under the Bill?

Dr. Howells: It seems that that is largely a spontaneous activity, to which people turn up occasionally, and it seems also that the word has spread that people can hear some nice music. However, as the hon. Gentleman says, the licensee does not spend money on advertising. If it is clear that music is being played in the corner of the pub, that would be incidental in my book. I do not know whether that gives him any comfort.

Often, if it is intended that the everyday meaning of a term be used in legislation, it must be judged commensurate to the circumstances of each case. I know that that has drawn some guffaws from Opposition Members, but I hope that the combination of the term ''incidental'' and the explanation that I have tried to give, taken together with the guidance that the Department will issue, will be sufficient to ensure that licensing authorities give due consideration to whatever music is being performed.

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