Memorandum submitted by Hamish Birchall


This submission concerns the impact of the Licensing Act 2003 on live music. I am 51 years old and have been a professional or semi-professional drummer since 1975. Live performance is now my main source of income, supplemented by part-time drum teaching in local schools.


The impact of the Licensing Act 2003 on live music must be considered in the historical context of entertainment licensing, and not just the recent past, but over a generation or more.


Representatives of the music industry and indeed culture ministers are fond of claiming that live music is thriving. This claim is based mainly on rising ticket sales at specialist entertainment venues over a period of about 8 years. The 'flourishing' live music claim for bars, clubs and restaurants, made by former licensing minister Richard Caborn in 2004 on the basis of a MORI survey, was subsequently ruled misleading by the Market Research Society. The MORI survey estimated a total of 1.7m live gigs a year in venues whose main business was not live music. That includes many very small performances. Even if we assume that 30 different people attend every one (and it is not likely to be that many), then each of us in the country would be attending fewer than one a year.


Any professional musician alive today who worked in venues in the 1960s and 70s providing live music as a secondary business, including pubs and bars, will tell you that the live gig scene in that sector was incomparably healthier then than it is now.


Of course changing cultural tastes played a part in this decline, such as the rise of disco and DJs, for example, which began in the 1970s. But a real watershed came when the Conservatives changed entertainment licensing legislation in the early 1980s, transferring responsibility for the regime from magistrates to local authorities, and allowing local authorities to set their own fees. Until then, fees had been nominal. After the change, fees for entertainment licences rose steeply and rapidly, particularly in London and the south east.


There is no question that this led to a drastic cut-back in small-scale gigs. The Musicians' Union, for whom I worked as an adviser on entertainment licensing reform in 2001-3, has correspondence between officials and licensing authorities dating from this period pleading for a lighter touch.


Local authority entertainment licence enforcement was also stepped up, driven by the income incentive. There are many accounts of licensees offering innocuous live performances being threatened with criminal prosecution - not because of noise complaints or any safety risk that could not be managed through separate legislation - but simply because they were hosting unlicensed live music. The cultural impact apparently counted for nothing. These problems persisted all the way through the 1980s, 1990s, and the early years of this century.


But now, despite the government promises that the new regime would be a lighter touch, and would make things much better for live music in this sector, we find ourselves with more control through licensing than ever before. A particular justification for this control, according to ministers, was the risk of noise nuisance at live events. But as far as I am aware, the government has never published any evidence that show live music anywhere near the top of the list of noise complaints. Noisy people outside licensed premises, and indeed noisy neighbours apparently present far greater problems.


According to the government's own research, barely 50% of pubs and bars are authorised to have any live music at all, and there has been a 5% fall in gigs in this sector since the new Licensing Act came into force ('A Survey of Live Music in England and Wales', DCMS 2007).


By way of an example of the extended reach of entertainment licensing, consider private concerts raising money for good causes. These were exempt until the new Act. The Act has also created a new potential criminal offence of providing unlicensed 'entertainment facilities'. This extends to the provision of musical instruments to the public even where no actual performance takes place, such as a pub piano, for example, or instruments for pupils performing in a school concert open to the public.


The much vaunted 'incidental music' exemption has been given widely different interpretations by different local authorities. One much quoted example was the liberal interpretation allowed a couple of years ago by the Corporation of London when considering live performances hosted on wards at Barts Hospital. By contrast, similar performances at the Chelsea & Westminster Hospital are deemed licensable by the Royal Borough of Kensington and Chelsea.


The rationale of entertainment licensing is, of itself, laudable: public safety, the prevention of public nuisance, crime and disorder, and the protection of children from harm. But the credibility of this rationale in the context of small scale live performance must be called into question when the Act has a built-in exemption for broadcast entertainment - an exemption that allows big screens and a PA for broadcast sport, or music, in bars or indeed anywhere. This activity quite obviously carries significant risks of public nuisance and disorder, amply demonstrated recently in Manchester city centre during a big screen broadcast of the EUFA Cup final.


Experts in safety and noise legislation say that there is no risk attendant upon a small gig in a bar that cannot be regulated through separate legislation. Therefore the only credible rationale for an entertainment licensing regime is to allow the local community a say where entertainment may present a significant risk to residential amenity, such as the opening of a new specialist entertainment venue.


But the regular provision of public performances of live music in bars and restaurants, or indeed in schools and other community venues, should be part of the ordinary cultural backdrop of the nation, not some exception to the norm, and certainly not a potential criminal offence of itself.


In short there is a compelling case for the creation of new exemptions within the Licensing Act 2003 for small-scale performances.


September 2008