House of COMMONS









Tuesday 11 November 2008




Evidence heard in Public Questions 177 - 249




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Oral Evidence

Taken before the Culture, Media and Sport Committee

on Tuesday 11 November 2008

Members present

Mr John Whittingdale, in the chair

Janet Anderson

Philip Davies

Paul Farrelly

Mr Mike Hall

Rosemary McKenna

Adam Price

Mr Adrian Sanders

Helen Southworth


Memoranda submitted by British Beer & Pub Association and Association of Licensed Multiple Retailers


Examination of Witnesses


Witnesses: Mr Rob Hayward, Chief Executive, Dr Martin Rawlings, Director of Pub and Leisure, British Beer & Pub Association, Mr John McNamara, Chief Executive, British Institute of Innkeeping and Mr Nick Bish, Chief Executive, Association of Licensed Multiple Retailers, gave evidence.

Q177 Chairman: Good morning everybody. This is a further session of the Committee's inquiry into the implementation of the Licensing Act and I am pleased to welcome for our first part Rob Hayward, Chief Executive of the British Beer & Pub Association and Dr Martin Rawlings, Director of Pub and Leisure, alongside John McNamara, the Chief Executive of British Institute of Innkeeping and Nick Bish, Chief Executive, Association of Licensed Multiple Retailers. Just before we start I should inform witnesses and the Committee that at 11 o'clock we will be pausing in order to observe the two minute silence, for which I think we should stand. Perhaps I could begin. The government in bringing forward the Licensing Act said that it intended to bring about a streamlined procedure, clearer objectives and greater democracy in decisions; do you think that they have succeeded in that aim?

Dr Rawlings: Yes, very broadly, it has achieved all those things, I think. We would certainly say that the Licensing Act, applied properly, is a good piece of legislation.

Mr Bish: We would go further to say that it should be the only piece of legislation to deal with licensing. It had the virtue of bringing together multifarious acts that have been built over the years to deal with the specific circumstances and all those were assembled in one piece of legislation, and we would strongly urge that that is where licensing stays and that future amendments, future rules that relate to the new circumstances as they arise should not be hijacked or certainly diverted into health or police type legislation because we understand licensing - most of the stakeholders come to adopt it and they work with it and we believe that it works on that basis. It is evolving; it is not perfect but it is good - fit for purpose I think is the expression.

Mr McNamara: I think I would agree with those comments. The other element is the fact that there was a considerable debate about whether licensing should move from magistrates to the local authorities; I think the fact that it has moved to local authorities has brought licensees, local authorities and the police closer together and that is demonstrated in a number of areas in terms of joint ventures and corporate ventures to improve night time economies.

Chairman: As they say on the X-Factor that sounds like three yeses to me! Adrian Sanders.

Q178 Mr Sanders: The government also wanted to encourage more diversity in the type of licensed premises on the high street. Do you believe that the regulatory changes contained within the Act have actually facilitated a shift to more venues that can be enjoyed by all the family, mixing both casual eating as well as the sale of alcohol?

Mr Hayward: If I take that first. I am not sure that it is specifically the Licensing Act or the regulatory changes associated with it that have seen that. What you have tended to see over the last decade or so is a progression whereby you blur the difference between pubs, nightclubs, restaurants so that you have loads of restaurants in pubs, etcetera. It is not because of the Licensing Act, I think it has come as a result of general changes within the whole hospitality economy. One thing I think we all regret that we have not seen yet is that we were hoping - and I think that is true of local government and also the police - that we would see a demographic shift, particularly in the city centres, the high energy areas of the cities and the towns, wherever they may happen to be. So that, for example, people would leave the theatres in the West End and stay on and therefore you would have older people mixing in with the younger people in the different venues. We have not seen that shift and I think that is one that we would still like to see. That cannot only be achieved by ourselves, of course, it has to be achieved with - particularly in London, for example, and also in places like Manchester and Leeds - a change in terms of transport facilities because there is no encouragement for people coming out of theatres to stay if they are then not going to be able to get on a tube to get home. Therefore, there need to be other shifts within the economy as well that will actually achieve that; but it is not because of the Licensing Act, it is because of the general changes.

Q179 Mr Sanders: What you are really saying is that it is more about market forces than the Act that is behind that changed market within licensed establishments. But surely there are decent public transport facilities quite late into the evening here in London, and yet it is not happening where you do have that transport. Is transport the only reason that it is not happening?

Mr Hayward: No, it is not the only one, but it is a factor. People feel that they are not certain what time the last tube is going to go - you ask the vast majority of people, tourists in particular and people who come in from the outer parts of London. But it is also true in other cities as well. People are not sure what time they can catch reasonably a bus from the centre of Manchester going out or wherever they happen to be, having been to a major concert venue or whatever it may happen to be in the town centre. It is a social and market force change, but it is not by any stretch of the imagination the sole reason.

Q180 Mr Sanders: Can I put it to your guys that actually it is probably more the atmosphere in a town centre later on at night that deters older folk from remaining in those town centres later at night, rather than anything to do with the Act. The question is: what efforts is your sector making to tackle that night time disorder, whether it is actual disorder or fear of disorder?

Mr Bish: The statistics we have are Home Office statistics, indeed that the fear of crime and disorder is declining, and indeed in the statistics on crime associated with alcohol the only area that they have increased is in the late part of the night. So we think there is actually greater movement than perhaps the media would acknowledge certainly towards this virtuous outcome. We certainly obviously are taking huge steps for control of drinking in unlicensed premises and I think all four of us representation the on trade here largely; and investment in security and controls and the understanding of our corporate social responsibility have never been higher than they are now, and all the statistics say that the situation is getting better. I accept entirely that there is a perception that the night time is young people's time and it is the flip side of the coin to what Rob has just said, that if we can encourage older, more mature people to leaven the mix in the middle of the night that is to be encouraged. Some of it is marketing and some of it is the facilities that are available. It is not just the tube, of course, south of the river it is certainly to do with last trains into the outer lying suburbs and the Home Counties' towns. We feel that we are very much on the case but recognising that there is a lot to do. There is a social change of young people coming out later, which is a different matter and is much more to do with the availability of cheap alcohol through supermarkets we have found that changes the aspirations of young people going out to clubs and pubs and bars late at night.

Q181 Mr Sanders: There has been a lot of news about that this week. I know that the Superintendent of Police in my area, which was highlighted in the national news yesterday, has tried very hard to get an agreement with the licensed trade - not the supermarkets but your establishments - to actually end happy hours, and it was your industry that said no. So do you not feel that there is a responsibility that you play in fuelling that disorder early in the evening? And do not use the excuse, "Oh, well, the supermarkets do it," the fact is that your industry does do very cheap deals on alcohol; you try to get volume sales, which is not a responsible way of selling the alcohol, in my opinion, and what more can you do to actually stop that practice and help to reduce the disorder?

Mr Hayward: If I can pick up on that? The Beer & Pub Association three years ago introduced promotions policy which encouraged all its members - which is about 55% 60% of the total pubs' market in the UK - to debar certain forms of promotion, particularly either speed drinking, i.e. cheap drinks until England score or something like that! I speak here as a rugby man rather than a football man! Or alternatively quantity - 5 and all you can drink, or inviting women in free to encourage consumption. We did that three years ago and it was welcomed by ministers at the time. We have looked at that very carefully and we have looked at the advice in the government's alcohol strategy and it is quite clear from the advice that has been given that we cannot come together to do that. When I was at the Prime Minister's summit in November last year I specifically said that we could not maintain that promotions policy without assistance from government because it was being deemed to be in breach of competition law. The industry in general, the broad body of the church, would like those policies to be maintained, but we have been clearly advised by our lawyers that we cannot continue to do that because it would be deemed to be anti-competitive. If this Committee or any other Committee can actually help us with maintaining that policy for the vast majority of the pubs and clubs but make sure it also applies to the off trade then we would say thank you very much because it is something we want to maintain; we do believe there are elements of irresponsible promotions around and we would like to see them disappear.

Mr McNamara: Can I give a specific example on where the industry is trying to improve night time areas and give better experiences for customers and that is in the Best Pub Scheme which is now in 88 towns and cities across the UK. That is an award scheme where licensed premises enter that award every year and if they reach that benchmark standard, which is way above the legal requirement around caring for customers, looking at neighbourhood relationships, not serving under age people, responsible retailing of alcohol, proper dispersal policies, all of those, that is a very, very successful scheme. It started in Manchester four or five years ago and is proven in the areas where it goes in to have a remarkable impact, a positive impact, and that is an example where the industry, police and local authorities come together and make that work year on year. There is some pump prime funding from the Home Office which is being used now but the industries come together and grab hold of that with police and local authorities. This is a positive example of where it can work at a local level and where it is working and that is something that is worth reflecting on. I think that partly the Act has helped to create that environment where those groups can come together.

Q182 Helen Southworth: Can I just take you back to the issue of promotions? It is an absolute responsibility on a licensee who is selling the alcohol not to sell alcohol to a degree that would cause somebody to become drunk; is that right? Am I right in believing that you have a responsibility not to sell alcohol to somebody if that alcohol would make them drunk?

Dr Rawlings: No, it is not.

Q183 Helen Southworth: It is only if they are currently too drunk in your opinion?

Dr Rawlings: The offence is to serve a drunk.

Q184 Helen Southworth: To serve a drunk. So it is not an offence to serve somebody you believe to be nearly a drunk, just somebody you believe to be a drunk?

Mr Bish: The law has difficulty in defining what a drunk is, so nearly a drunk is going to be very complicated!

Q185 Helen Southworth: That sounds really funny but it does not sound at all funny when you are out in the evening and incidents happen, as they do in many of our town centres, when people are trying to go out and have an evening out and enjoy themselves and get home safely, and have had a good time and when I always think that the industry actually wants people to do that, it wants them to go out and have a good time and come back again.

Mr Bish: Of course.

Q186 Helen Southworth: So it actually is not funny that there is an issue ---

Mr Bish: I did not make a joke.

Q187 Helen Southworth: ... about people who are consuming too much alcohol, in some cases because they choose to and in other cases because they are not aware of what the impact is going to be on them if they did so. So do you not think that it is absolutely crucial that we get the issue of responsible drinking across and those licensees and landlords are a part of that process?

Mr Bish: Yes.

Q188 Helen Southworth: That it is not just good enough to say, "We have brought in a promotions policy but our advice is that it will not stick."

Mr Bish: But that is the law.

Q189 Helen Southworth: You have a key role to play, so you have to make it work.

Mr Bish: That is the law. Rob can help us with his legal advice but I think universally across the industry we have been part of, contribute to and operate on a day to day basis with a mantra of corporate social responsibility. That is the benefit of the Act.

Q190 Helen Southworth: You said earlier on that the Licensing Act was working; you are now saying that there is a major flaw and it is not working.

Mr Bish: No.

Dr Rawlings: If I could answer that? There are two things. One is preventative and at the other end of the scale if there are people emerging from pubs, bars or whatever that are drunk then there is a review process within the Act to take care of that. The police have powers to shut down a place immediately if they wish to. So there are actions and actions are taken against those venues. So it is not quite true to say that they can carry on serving drunk people willy-nilly.

Q191 Helen Southworth: I would have thought then that there was an absolute responsibility for your industry to be able to give advice to the people within your industry how to do that?

Mr Bish: Yes

Mr Hayward: Yes.

Mr McNamara: As a members' organisation we have 40,000 members and many of those are frontline licensees and we have lived for 27 years on the basis of social responsibility, making sure that our members are equipped to deal with the sorts of situation about which you are talking. If we had a group of licensees in this room they would say that they know in their pub - they hear first where the trouble is and know exactly where that trouble is being caused and take the appropriate steps. That is what we live and breathe by and that ongoing activity of frontline licensees, the vast majority of licensed premises in this country are very, very well run and are well regulated by the individuals who run them. The vast majority are. Unfortunately we have a number of instances, a number of examples where they are not well run and I agree that the Act is in place to focus on those individual premises, and we would totally support full enforcement of the Act and full use of every single power within it to close those premises if need be.

Mr Hayward: In relation to pubs and bars about 80% of all assaults are associated with refusals - either refusals to serve under age or refusals to serve drunks. We are in the on trade generally refusing - because most major pubs now have a refusals register on the tills - a million serves a month for under age, for drunk and for other reasons. So there is a very strong amount of action being taken. As John said there is still more to be done and nobody is complacent because, as we say, the level of assaults on staff for refusals is very high. We need to ensure that we train our staff correctly and we need to ensure that we operate. But, as John said, there are some that need action taken against them and, as Martin said, those avenues are open and in many cases we are involved with them in one form or another with the police and with local government when they come for reviews.

Q192 Adam Price: You said a few moments ago that while the figures seem to suggest that alcohol-created violent disorder is falling generally there might be some evidence of an increase later in the night. Can you tell us a bit more about that?

Mr Bish: These of course are police figures through the Home Office published statistics. Our interpretation of them would be that, by and large, to the extent that the Licensing Act itself is part of this - and of course it is only part of that process - the possibility is that because we are talking about flexible closing times, instead of the old 11 o'clock chuck-out and the concentration of police time around then it is likely that the police have spread their resources - some would say these are too thin for them, but that is there argument and a separate one from this meeting, I suggest. But I believe there are more police around later in the night and therefore people who are offending get spotted and arrested, which is quite right and proper, and that is possibly the reason - possibly the reason - but we do not know because there are not that many pubs and clubs and bars extending their opening way into the night against perhaps what the media might have suggested. I think 80% of pubs are closed by midnight and those who used to open later under the old entertainment legislation are still closing at about two or three - they have not much moved. So offences at that time of night perhaps need a little more understanding as to whether they are alcohol-related or other issues.

Dr Rawlings: I would just say that those figures were taken just after the Act was introduced in 2005, so they are the first six months of the Act. What none of us know is what reaction to the police, to the trade has been as to whether those figures are still actually valid in that sense.

Q193 Adam Price: Something to keep under review then?

Dr Rawlings: Absolutely.

Q194 Philip Davies: Could I first of all apologise for being late. Can I provide a slightly different perspective and see what you make of this one. My contention would be that the vast majority of people who have drinks in happy hour and the vast majority of people who buy drinks from the supermarket do so responsibly; they drink responsibly, they do not cause any aggro, they do not cause any violence at the end of the night or anything like that. I remember when I worked in Leeds there was a pub just round the corner from where I worked that had a happy hour and basically people went from work and it basically meant that a round cost half the price it would have otherwise cost or it lasted twice as long as it otherwise would have done; it was not that we were actually all going out fighting at the end of the evening - it was essentially to the customers' benefit. So why should decent, responsible, law abiding people have to pay considerably more for their alcohol just because the police are not adequately dealing with a bunch of hooligans who cannot take their drink at the end of the night?

Mr McNamara: I think there is a lot I would agree with in that statement, bearing in mind that happy hours and promotions have been running for years - many, many years. Going back to the code of practice, that code of practice talks about happy hours being run in a responsible way, i.e. limited periods; there is not massive discounting; there is no incentive to consume alcohol in that period. That is a legitimate sale that we would all support and certainly my members would operate that in the way we have implied.

Chairman: I am going to interrupt the proceedings for the two minute silence.

There followed two minutes' silence

Q195 Chairman: Mr McNamara, you were saying?

Mr McNamara: The issue I guess my members would have is when is a happy hour an irresponsible promotion? Partly - and I have been on the platform many times - the problem I had with some promotions is, "Come in and drink what you can for 10" or 5 and that in my view is not acceptable and can create the atmosphere of a need to get your money's worth before you leave. For my membership that is a problem.

Dr Rawlings: Further to that, it was a debate as the Licensing Act went through Parliament whether happy hours were a problem or not. There was no evidence then and there is no evidence now that happy hours in themselves caused a problem. John is quite right; there are other promotions that do. Happy hours generally take place at six in the evening and problems, we know, are much later in the night. The recent report showed no connection between happy hours and problems; they come from a different source and they come from different sorts of people.

Q196 Paul Farrelly: You say that other promotions do; can you be more specific?

Dr Rawlings: We are certainly not keen on those that say, "Pay 5 and drink all you like all night" for instance, and those specifically in the code would prohibit racing games - a pint when a goal is scored and those sorts of things.

Q197 Philip Davies: Can I press you on that particular point just to play devil's advocate? I know lots of political functions that have as their theme that you have to pay for a ticket and that includes the drink for the night and you drink as much as you can. It does not mean to say that everybody gets blind drunk at the end of the night and cannot go home and that they cause problems. Most people, even under those promotions, still drink sensibly and know when to stop. This idea that if you do a promotion of this nature everybody is just going to carry on until they start fighting at the end of the night is ludicrous. It is always going to be a tiny majority so why should the majority of my constituents who drink responsibly suffer because of a handful of idiots?

Mr Hayward: I think that is one of the important points about the legislation, the Licensing Act. The principle of the Licensing Act is that you treat, in association between the industry, the police and the local authority, each venue as a venue and decide whether it is well run or not and therefore whether it can run certain forms of promotions, general events or whatever, and it is therefore down to the local authorities to decide whether action reviews will be taken. It is always dangerous to operate a blanket system. In fact I was a guest at the Labour Party conference fundraiser in Manchester where all the drink was provided on the basis of the ticket. That would, if you had a blanket ban, actually be illegal. I know that the Tory Party does exactly the same thing. So one has to be very careful about what you attempt to ban or not and therefore you should judge event by event and venue by venue, and that is the principle of the Licensing Act itself.

Q198 Philip Davies: Surely the point is that it is not promotions that cause problems; it is people that cause violence. There is nothing to suggest that even if they had not been drinking during a happy hour or during a promotion that these same people would have got blind drunk by the end of the night and been violent.

Mr Hayward: I think the judgment one takes - and Ms Southworth was pursuing this, I think quite reasonably - is that while it is down to the individual to be responsible it is also down to the landlord and the venue to be responsible and ask will a promotion of a certain sort encourage a certain sort of behaviour? If that judgment is taken by the police, by the local authority, by the landlord that it will encourage a certain sort of behaviour then that promotion should not be run. We had a case last week in Ealing where Ealing borough have approved "pay a certain sum and you can drink all you want" and they have taken the judgment that that venue can run that promotion effectively, so it is a judgment taken by the authorities in discussion with each other.

Q199 Philip Davies: But the logic of this argument is that somebody who goes to the pub, a proportion of those people will get drunk and be violent so let us stop anybody going to the pub and drinking any alcohol. That is the logic if you start going down that line; that is the logic of the position, that you end up banning pubs and banning alcohol.

Mr Bish: Really rephrasing what Rob has just said, which is that the industry has its commercial interest to supply an environment which includes alcohol for individual and responsible people. We operate within the context of the Act, which is to keep everybody on, as it were, the straight and narrow. But how straight and how narrow is a matter of flexibility and under the Act we have this opportunity to flex it according to the behaviour of people and the responsibility of the premises. It seems to work, largely.

Q200 Helen Southworth: I have a great deal of sympathy with what Philip is saying and in fact very many of my constituents are saying exactly the same thing, that they want to see a balance between something that, as I said before, enables them to go out and have a good time and get home safely, but that is also safe for people generally beyond that. Can we look more at what you believe is an acceptable or not acceptable promotion? I would specifically like to ask you how would you view the kinds of things that say that you can have four shots of vodka or whatever in a glass for 5? Are those sorts of things acceptable promotions, bearing in mind what the health guidelines are for consumption of alcohol at a time?

Mr Hayward: I must admit that I cannot think of where that has happened and we have not had it drawn to our attention where that sort of promotion has been operated and if we had we would have looked at it, because we have had certain sorts of promotions drawn to our attention by everybody from Alcohol Concern to local licensing officers.

Q201 Helen Southworth: How would you see four shots in four glasses for 5?

Mr Hayward: I do not even know how much a shot costs.

Mr Bish: It depends on how much you are paying for it and over what period of time it is meant to be consumed.

Q202 Helen Southworth: The reason I am asking this is because I am trying to find out whether you see a difference between somebody being able to consume, to buy things which are open already, served open to them in volume, when they cannot take them anywhere else and they cannot save them for later, or not. In my town, for example, we have a barrier in place that says you cannot walk around with open alcohol containers. So if you do buy two glasses of wine and get the rest of the bottle free you actually have to drink it or leave it behind you.

Mr Bish: Yes, which happens.

Q203 Helen Southworth: Do you think there is a difference between a promotion ---

Mr Bish: I am burning to say, in answer to your earlier question, it occurs to me - and it is perhaps a personal view but I think I am qualified to say it - I think that the difference in promotions is whether the purpose is to consume alcohol and get drunk or whether the alcohol is a vehicle that is part of the enjoyment package. So, the happy hour - lots of your mates at an appropriate time, after work before you catch your train home, sort of thing. That is the occasion. If the promotion has the intention of consuming alcohol with the purpose of getting drunk, then I think that that is irresponsible. That is Nick Bish speaking but I think it makes some sort of sense.

Q204 Rosemary McKenna: My father had a pub in Glasgow many years ago when the licensing laws changed and I remember this debate taking place then, in exactly the same terms and in exactly the same atmosphere, and the licensee was the one who was always blamed for all the problems. I think the difference today is that number of young people who arrive at a venue have been drinking at home on cheap booze and over-indulging, and then arrive at a venue - arriving in a city centre or a town centre or a village or wherever. I think the problem stems more from that than from what is actually happening in licensed premises. I think what is happening is that you are being asked then to either deny them entry or deny them more alcohol when they come in. How do we get around that problem because I see that as the biggest issue rather than what the landlords are selling - more that they are arriving with too much to drink.

Mr Hayward: I think I would probably concur with your initial assessment about the social changes that we have watched. I used to go to Glasgow regularly in the seventies before the licensing laws changed and I found it an uncivilised experience to say the least. I think there is nobody suggesting that we go back to the period before that. Picking up on your observations, I made the comment earlier on about the refusals. Both because of requirements and also because of changes in practices there are more security staff at more pubs that operate the larger venues and ones that operate later at night - it is standard - and I made the comments about refusals, and it is a judgment as you go through the process, either at the door or the bar, as to whether people should be allowed access, either to the venue or alternatively to the bar itself. But, as I say, there is this problem in terms of the difficulty that arises both for the staff and also for the police because if they are refused access then groups of people move from one venue to another trying to get in and the police are left to pick up the pieces. One of the difficulties that then arises - and it is associated with the issue I know that Simon O'Brien and others touched on when they were giving evidence to this Committee - as to the police, if you arrest somebody you are then taking that policeman off the city centre for a very long period of time as they have to go through an inordinate amount of paperwork. I have had discussions both with government ministers and also with Opposition spokesmen as to how you can reduce that workload on the police, so that if they do arrest those people - and we believe that they should be - then the police are back on the street as quickly as possible rather than taken out of the system and filling up paperwork for several hours.

Dr Rawlings: Can I just add that if you are looking for solutions - and it is quite a difficult one - I recall that back in Sweden when I worked there many years ago, if they did that when it happened on a Friday that Saturday nights were somewhat chaotic because of it. What we need to look is local solutions and probably the best route for that are the business improvement districts, and there are now over 60 around the country. Birmingham, I think, is probably the prime example here, in Broad Street, who have just put into their report that their offences are down from 3,300 in 2005 to little more than 1000 this last year. That is real partnership working. We have a project going in Nottingham now under a bid process, which is actually the first late night economy bid in the country, which is exclusively supported by licensed premises. The purpose there is to make people feel safer and enjoy things so that you do not attract the wrong behaviour and, if you do, you actually have some mechanism to deal with it; and it is as much about street lighting and putting up flowers as it is about policing, and that to me is the hard work that we are trying to put in to actually solve some of these problems.

Q205 Paul Farrelly: We are going to move on to light music but before we do, can I ask one final question? Mr Hayward, before the devil's advocate took further aim at the Taliban you looked as if you were keen to jump in and add to Mr Rawlings' short list of promotions that cause more concern.

Mr Hayward: I was going to refer back because I am not sure that Mr Davies heard my comments earlier on, which were essentially those that were either speed or quantity driven, which I think matches with what Nick Bish made the comment about.

Q206 Janet Anderson: Can I just say that I wholeheartedly agree with Rosemary with the problem about people pre-loading and I think there is a big problem with these small retail outlets that are selling very cheap drink because I see that all the time in my constituency. I just wanted to press you a bit more and briefly, if I could, on the effects of the flexibility in closing times because we all remember the lurid headlines in the Daily Mail saying that this was going to create a hell on earth and actually that has not happened, has it? Is it true that most places are closed by midnight?

Mr Hayward: 80%.

Q207 Janet Anderson: I think there are only 450 24-hour licenses and only two of them are used. I would be interested to know why both of them seem to be in Blandford Forum in Dorset - I do not know why that is!

Mr McNamara: It is the Railway Hotel; it is a lovely pub!

Q208 Janet Anderson: Pressing you again on the antisocial disorder - and Nick, you were saying that it happens later at night and some of our evidence says that it tends to happen between 3 a.m. and 6 a.m. in the morning - most places are closed by midnight so there is a three-hour gap there; so what are they doing in between?

Mr Bish: That is not to say that they are all closed by then and of course the other 20% is where we need to look to see to what extent they are open; but it is perhaps a question for the police as well to establish what the offences are and to what they attribute them at that time. It is presumably partly alcohol, but we know that alcohol comes from a number of different places and you can get alcohol 24 hours a day if you want to, and I do not mean on licensed premises - you could have it with you and it can still be purchased at that time of night - and there is this mood about younger people to live a night time economy and to continue it through and that is perhaps where the crime is coming. The statistic is 22%, I think, increase in that time zone. So that is a percentage increase on a relatively small number of crimes. Obviously a crime is a crime and to the victim it is a 100% issue. But I think that is the area for examination and we do not know the answer. As Martin said, the figures are actually fairly elderly now.

Mr Hayward: It is a classic example under the Licensing Act of work still in progress. It does not appear to have come from the Licensing Act itself because those venues that were open until 2 o'clock generally are the ones that did not actually extend their hours; the ones that were forced to close at 11 were the ones that generally extended somewhat on Thursday, Friday and Saturday. It is not just the police figures that have been cited, as Nick says, from a very small base, but it is something that comes up from the ambulance service as well. As Nick says, it is to do with alcohol and may have to do with other things as well - probably drugs as well, I think - but we need to find out what that is so that we can actually tackle it with the police and with the local authorities.

Q209 Janet Anderson: But would you say overall, contrary to all the scaremongering that we saw at the time, that the picture is that people are actually drinking less and that disorder has gone down. Is that an accurate description?

Mr Hayward: The irony is that the alcohol consumption figures on a per capita basis across the whole of the country actually declined for the first time at the point when the Licensing Act was introduced. I am not putting it to the Licensing Act, it is just a statistical anomaly which fascinates me; but, as Nick said earlier on, crime figures have certainly declined in the last ten years.

Q210 Paul Farrelly: Should live music in pubs need to be licensed or, put a different way, should we not have a more permissive regime so that if people want to have live music in pubs they do not need to have to go through the bureaucracy of altering their licence; that there should be an assumption that it is allowable with a warning that if it is not done responsibly then the authorities may vary the licence themselves?

Mr Bish: ALMR has certainly recommended re-examination of what used to be called the two in the bar rule that disappeared at the time of the Act and we regretted that at the time because our own ALMR benchmarking research has shown that the music expenditure has gone down by 19% as a proportion of sales, which is an awful lot, and we believe that it is the informality of local entry level music, if you like, in pubs that adds to the type and style of the pub - it calms people down in the context of alcohol; it enlivens them in the context of music, you could say. We miss that and we would strongly urge the Committee to ask that that be revisited in any future amendments.

Dr Rawlings: I declare an interest that I was on the Music Forum and I am sure that Feargal Sharkey will tell you more about that in a moment. Certainly from the pub perspective Nick is actually right because it was one of the strange things when the Act went through that it was the only activity that you were not enabled to grandfather, the two in the bar rule. So if you had permission already to run great big concerts or loud music events you could carry on; but if you only had two in a bar you could not unless you expressly applied for it. Unfortunately a lot of pubs were quite worried by the whole process, as you might imagine, and in effect played safe and just grandfathered their licence without picking up the music element of it. So you now have a lot of pubs who could quite easily put on very small, nice cosy events, if you like, that would have to get permission. The problem now is that they would have to reapply under the variation process to do that and that is expensive. We are hoping that minor variations would actually take some of that heat away and address that. As I say, just to have the odd guitarist and the folk singer is good and it is actually good for business and good for people and we would like to see a lot more of it.

Mr McNamara: From a frontline licensee's point of view I would endorse that. It seemed a shame to us that you lost a chance of having impromptu music with two in a relatively small pub on a spontaneous basis, very often, with those musicians getting paid for that. It is a shame that was lost and I think that is something we would certainly support.

Q211 Paul Farrelly: Mr Rawlings, you are on the Steering Committee for the Pub is the Hub.

Dr Rawlings: I am.

Q212 Paul Farrelly: My local pub in my village, the Gresley Arms, has just closed again. I will not pretend that it is just the bureaucracy of applying for Temporary Event Notices or the difficulties in getting music that caused the problem - it was probably the management of Punch Taverns - but the landlord and landlady did complain that it was so bureaucratic for them as a very small business to actually stage these events; and bands quite often do not come cheap these days, if it is a decent band, and so it just adds to the general decline of both music and the difficulties of running country pubs in particular.

Dr Rawlings: That is true. In the fees they have to pay live music fees and that is another cost to small venues, but the Licensing Act unfortunately does not deal with that. I still think we could make the whole process easier. The Live Forum actually came to the conclusion as to why should music be licensed at all and I do not disagree with that actually; in essence, live music cannot possibly be said to be something that is bad and evil. We have accepted that we need to sell alcohol under licence - it has some bad effects, does it not? The only reason for regulating live music at all is in terms of the crowd control that you might have to have; but if you already have a licence that will cover that - and most pubs do one way and the other - then why do you need specific permission to run a couple of guys playing a guitar?

Mr Bish: This all comes back to the framework that we were talking about before. The law should help people operate safely, properly and commercially successfully, providing services for customers within the framework of the law. If you bounce against the edge of the law then the review process is available to consider it, either stamp on it or modify it or in some way bring it into line. The law should be on the outside of this, not all-pervasive within it.

Q213 Paul Farrelly: So would it be fair to say that this would be an important caveat to your all-embracing welcome of the new licensing laws that almost had us moving on to the next witnesses right at the beginning?

Mr Bish: Yes.

Dr Rawlings: Yes it is, but let us regulate those things that you need to regulate. You have the crime and disorder, you have public nuisance, all those objectives under the licence. Let people do things and if they offend against those objectives then you take the appropriate action. Inherently live music, I certainly believe, is a good thing.

Q214 Paul Farrelly: A final question to end on that theme. Of course live music can be noisy but people can be on notice that they risk using their licence if they do not run a non-rowdy establishment. In all your experience is live music actually a major public order or disorder issue?

Dr Rawlings: No, certainly not.

Mr Bish: You have to be talking in terms of Glastonbury and when with the police it is a major strategic issue and a cost issue and so on; but in pubs, no, not at all.

Q215 Chairman: Before we return to consider music a bit further with our next witnesses, can I just turn to the question of costs and fees? The government said in passing the Act that it would lead to a substantial reduction in the cost to those applying for licences. But we have had evidence in our last session that certainly for some groups the costs have escalated considerably, not just in terms of the costs for having to pay for the application and all the associated costs with advertising and legal advice, etcetera. What is your general impression of the effect of the Act in this area?

Dr Rawlings: I will kick off with that one, if I may? We did go through the exercise with the Department on simplification about 18 months ago. There are two things wrong with their figures, if you like. The first is that when they wrote the original paper for the Licensing Act they put in figures there that were never revised, promising savings of something like 4 billion over ten yeas. In the process of the Bill, as things happened the fees go up, the requirements go up and an awful lot of that potential saving was wiped out in that process. I think we all envisaged an application probably costing a couple of hundred pounds, and in our figures which were published to the Elton Report our average cost was 1,860 for an application, and that is much the same price as it is now to vary that licence. It is things like the advertising requirement that came in to the left side right at the last minute to put an advert in the paper. In fact the local authorities were the ones that wanted to get rid of paper advertising and put up an A3 notice on the building, but that was swapped for an A4 notice and advertising in the paper. So there was a whole series of things there that added to costs and fees going up. So I would say that overall it has actually cost the industry more money than it has saved, without a doubt.

Mr Hayward: I would add to that. The Elton Report, we put in figures if there were costs looking forward - and this is one of the things the Committee wants to do - and we are looking at things that might reduce costs and burdens not only on ourselves but other people. There is the requirement of the Triennial Review, which all local authorities have to undertake, which you can review the licensing policy as a local authority at any point, but it has always seemed very odd that you should then have an obligation to do it every three years as well. In fact about two-thirds of all the councils have actually opted just to restate what they already had, and I think that is an unnecessary element. One of the other big benefits for both councils and ourselves would be that in the legislation it requires that you put in a set number of copies to a set number of different consultees and they all have to be hard copies, including plans. In the case of Wandsworth, when they were giving evidence to the Elton Report they said they shredded seven of the eight. If it were possibly to put those in online - the technology is there - and the Licensing Committee would decide who the relevant consultees were then they could just fire them through by email and that would be an enormous saving to all parties and I would certainly ask for that as an operation.

Dr Rawlings: Just to add to that. In the Elton Report we offered them a three-page application form as opposed to 28 pages and the Elton Committee said that that was a jolly good idea but it has not been pursued yet. It is terribly long. Just to add to what Rob was saying about the Triennial Review, we replied to over 300 of those and it is an enormous exercise in itself. The amount of work that councils themselves have to put into it is a huge cost; but the real flaw in the process, as Rob says, is that most of them only just reproduce policy and say, "What do you think?" So you do not get a chance to come back if somebody says, "I think this" or "I think that", they just change the policy. So as a consultation process itself it is pretty well flawed. I think it would be much better for councils and others to say, "We think something is going wrong", or whatever, "We want to change the policy; we consult and we do it properly" and then everybody is happy. The process at the moment really does not work at all and it is expensive.

Mr Bish: In our submission we suggested to put a number on it, doing the three things of a common licence fee payment date, rather than just on the anniversary of original grant; the common single portal and electronic submissions; and getting rid of this compulsory newspaper advertising would save something in the order of 20 million to 25 million across the industry. Of course there are lots and lots and lots of hidden costs. We were talking earlier about music and so on but the moment you have hired the lawyers to fight your way through the ramifications of this, that and the other application, suddenly the fees go up, or it does not get done, and it is such a pity.

Mr McNamara: The thing that I would add in terms of our members, many of whom are operating in small community pubs in towns and villages across the country, that that increase of 30 for a three-year licence - and granted they do not have the complexity of going back to court every three years now, that has gone, so there are some time savings and work savings - their costs have increased considerably. So small community assets are paying far more just to maintain a licence and do what they have done in many cases for hundreds of years quite safely and sensibly and that is something that certainly my membership would ask to be reflected on. Is there an opportunity here to reflect on those smaller premises with that increased burden?

Q216 Helen Southworth: Can I explore your views on density of licensed premises? This is specifically an issue for town centres and city centres, but what are your views on using capacity within an area or density within an area as a guideline in terms of licence applications?

Mr Hayward: I think it is worthwhile looking at where the concentrations came from and some of the evidence you heard from the police. Originally venues were scattered all around a town or city such as your own, and then it was decided that in fact it would be a good idea in policing terms to have them altogether, and therefore there was active encouragement through the 1980s and the 1990s that they should all be in one place. What we have tended to see as a result of the Licensing Act is that the number of nightclubs is diminishing - they have been hit quite hard - and certainly when Simon O'Brien and his police colleagues were giving evidence they were talking about now having to police on a dispersed basis because people were not necessarily coming into town centres as often as they were previously. If you can stay in a pub until midnight rather than until 11 are you then going to get a cab in, pay an entrance fee, have possibly two pints and then pay a cab home? As I say, all the information shows that there has generally been a decline. I have commented about the history behind it and the changes that we are seeing as a result of the Licensing Act; I think one has to judge what is the best for each particular town and city in terms of the way they want to operate it. You have Manchester, for example, and Leeds where they actually encourage their big city centre operations. I have heard you on other occasions express concern about the concentration you have in Warrington, and I am not an expert on Warrington but I think it needs to be a judgment between the industry, the police and the local authority.

Dr Rawlings: The mechanism that is currently advocated through the guidance is through cumulative effect, which has been used by a number of places, which is not an absolute measure of saying that there are so many pubs per head, or so forth; but says that this has reached a point where it is difficult to manage and therefore we need to look carefully at new premises. That has been adopted by quite a lot of places around the country and as far as we are aware it does work, but it is quite difficult to actually control the demand side of the equation.

Q217 Helen Southworth: One of the messages I get from part of the industry is that you can reach a stage where the density is such that it is very, very difficult indeed to make a profit and there are issues there around whether or not you can actually sustain the industry.

Mr Bish: I would think that market forces will find their own level and people who start to operate or are operating in a particular way will find that they can either succeed by doing a better job or they will fail. I think the earlier remarks about the local authority and the police are more what we would be expecting to answer in the context of the Licensing Act, the rest is a commercial decision. If you choose to open another place then on your own head be it. We would hope it is not the place of the Act to second-guess the commercial decisions of people who want to invest in a business in a particular area.

Q218 Helen Southworth: I was not expecting the Act to; I was just expecting you to comment on your opinion of how it works.

Mr Bish: That is our comment. We represent businessmen who we hope know their job.

Q219 Adam Price: Is the process of applying for a licence less cumbersome? Is there less red tape involved than previously?

Mr Rawlings: No. It is much more cumbersome, but the advantage is you only have to do it once. Under the old system you had to go back and get a new licence essentially every three years, you went to a court and you had to stand up in front of a magistrate and so forth. Providing you get your application done right then in that sense it is less onerous but, as we were saying earlier, you have to make eight copies and you really have to do that Recorded Delivery because we have heard numerous people say "I didn't get that" and if one authority did not get it then the whole thing falls. Certainly a one-shop delivery would be a great improvement and an electronic one even better.

Mr Bish: The point Martin is making is that this is about a premises licence. It is worth reminding ourselves all the time that the personal licence, the equivalent of the driving licence that now exists, is issued to responsible people whose livelihoods can be taken away if they offend against the law and their licence. I would say to anyone anywhere that licensed premises are the best places to drink.

Q220 Adam Price: Are there any further changes you would like to introduce to the process? You mentioned something in your submission about the Interim Authority Notice.

Mr Rawlings: When the premises licence holder dies the business is actually not able to operate without that licence and so you need to change that over. The Act only allows seven days and, to be fair, most people are hardly buried within seven days. I have spoken long and hard with the minister about whether this should be made 14 or 21 on compassionate grounds, but the argument was that they had given enough away already so we are staying with seven days. We have had cases of real distress and they are small businesses, Welsh-based particularly, where the licensee died and the business had to shut. The last thing you need when you are burying your beloved is to have your income taken away. It is a simple measure and it only takes the stroke of a pen to change it. I would settle for 14 but 21 would be nice and compassionate.

Q221 Adam Price: The Government is bringing forward some Legislative Reform Orders to introduce some minor changes in the process. Have you had sight of those?

Mr Rawlings: Yes, I have and it is not there and I keep asking for it.

Chairman: We have no more questions. May I thank you all very much.

Memoranda submitted by Musicians' Union and Equity

Examination of Witnesses

Witnesses: Mr Feargal Sharkey, Chairman, Live Music Forum, Mr John Smith, General Secretary, Musicians' Union, and Mr Stephen Spence, Assistant General Secretary (Live Performance), Equity, gave evidence.

Chairman: We are now going to focus on the specific issue of live performances. May I welcome the Chief Executive of UK Music, the legendary Feargal Sharkey, the General Secretary of the Musicians' Union, the nearly legendary John Smith, and the Assistant General Secretary of Equity, Stephen Spence.

Q222 Mr Sanders: I think John Smith is more legendary as a brewer! Firstly, Feargal, congratulations on your new appointment.

Mr Sharkey: Thank you so much.

Q223 Mr Sanders: In general would you say that live music is in good health? Has the Licensing Act had either a positive or a negative impact?

Mr Sharkey: I think we would all share the goal and the aspiration that what we need to achieve is a very vibrant, very diverse and very lively live music scene. It is, as the Live Music Forum indicated at the time, older than the written word and for the millennium has been the very means that we have used as humanity to translate and pass on views, aspirations and indeed, on occasion, political comment from one generation to the next. The broader issue of the live music industry is clearly a component of the music industry. It is one of the more successful creative industries in the UK. It currently contributes in the region of 6 billion a year to this country. We are, in terms of exporters, the second largest exporter of music in the world; it is 1.3 billion a year, second only to North America. We punch considerably above our weight on the international stage. We employ about 130,000 people. The remarkable thing is that that fantastically successful British industry is ultimately built upon very small, very fragile and very humble foundations and that is little rooms in the backs of pubs, clubs, hotels, bars and restaurants. They are incredibly important for a number of reasons. They provide a major outlet for very specialised, non-mainstream forms of live music, for example, things like folk, jazz, rhythm and blues. It also provides a fundamental regular source of income for an awful lot, and perhaps the majority of John's members play in village pubs. Certainly from my own personal experience, it is the first and only opportunity that young musicians, performers and singers have to begin to appear in public and develop their talent, their craft and their ability and without those little rooms there would be no 6 billion a year industry. Clearly it was an objective stated by government that one of the ambitions of the Act was to see an increase in live music. It has grown considerably over the last few years. I believe Mintel has recently indicated that the volume of ticket sales in the UK in the last 12 months has now reached 1.7 billion, which is quite extraordinary. It is true that the upper and middle end of the market has grown but, as you have already heard from the licensed trade themselves, we have some issues surrounding smaller venues where we do not think that level of growth is continuing and that is confirmed by some research commissioned jointly by the Forum and DCMS which indicated that at that time, a year and a half ago, there had been a decrease of 5% in live music taking place on those smaller premises. We would have the concern at this moment that that descent is accelerating and the impact of that is increasing. What I think in terms of UK Music - and I would hope that Stephen and John would agree - is that we are very focused on the idea of good regulation and we are very content and happy with intervention when it is reasonable, necessary and appropriate. There are specific issues we have relating particularly to smaller premises where we do not feel this legislation is fit for purpose. We will, I hope with your agreement, want to discuss TENs, incidental music and some concerns involving travelling entertainers. We do have some comments to make and some suggestions which we think you might find helpful as to how we might be able to work with government and solve some of the concerns we have. There is one particular issue that we have been uncovering in recent weeks that is new to all of us, that is bound up in this legislation and that I have to say is causing a great deal of considerable concern within the industry, but I will return to that a little later. Overall, I would like to emphasise - I think we all are in agreement - that we are very happy, keen and eager to work with government to overcome some of the issues we have, but we are becomingly increasingly persuaded by a viewpoint expressed by the Musicians' Union, which is that there are some fundamental principles and some philosophical ideals surrounding this legislation. Quite clearly the focus of attention is alcohol, crime and disorder and that is not an unreasonable thing, it is obviously something that needs to be addressed on a national scale. We think it is ultimately long term an inappropriate mechanism and place for which to be making any form of judgement or comparison regarding live music, and again we would like to discuss the issue of crime and disorder at length with you in a few moments. Long term we feel that ultimately the only real solution will be to repeal live music from the Licensing Act and to have a standalone bit of legislation more suitable, more sympathetic, more reasonable and more proportionate to the impact that we believe live music has on local communities.

Q224 Mr Sanders: From what you have said it is possible to have growth in live music from the middle and upper end and actually a decrease in venues for the first-time performers. Would you say that live music is in good health?

Mr Sharkey: Live music is in very good health, but whether or not the Government's aspiration was that that was as a direct result of the Licensing Act, I am not sure we would necessarily share that viewpoint. Particularly at the top end of the scale, as I am sure some of you are aware, there has been extraordinary growth in large outdoor, large-scale festivals particularly over the last four or five years. That is predominantly making up the advances that were shown by Mintel in their research indicating the volume of ticket sales now. We are quite clearly of the opinion that it has become increasingly burdensome and increasingly difficult for small-scale premises, particularly those whose main activity is not providing live music, ie bars, restaurants, that kind of thing. As you have heard, at this point in time, for example, were you to choose to add live music as an addition to your licence, it is a requirement of the Act that you have to repeat the full application process, even to have two musicians standing in your restaurant on a Friday night. The cost that I have been given by the British Pub and Beer Association is that that in itself would cost in the order of 1,500 to 1,600. Obviously for a small business whose main interest is not the provision of live music it becomes a question of simple economics as to whether or not it is a viable proposition. We currently believe there are many places that are simply not providing music because of the bureaucracy and the investment that they have to make to do that.

Mr Smith: I agree with that. We were quite pleased when the DCMS research correlated with our figures that the small venues had fallen off by 5%. We are not advocating a return to public entertainment licences at all when we talk about different regulation, but we did not have any figures on how many venues benefited from that two performer exception, the 2-in-a-bar rule, we had to do a survey of our members to try and find out who worked under that and where they were working now or just after the Act had been introduced and it showed straightaway that the Act had a neutral effect across what we call traditional music venues. It did create a lot more bureaucracy but, as Martin Rawlings said in the previous session, it is a one-off form filling exercise and that benefited those larger venues. We did talk at the Live Music Forum - before the Green Paper stage - about how the Act discouraged the smaller venues from adding on live music as they had to say what genre of music it would be, they had to talk about the number of performers they wanted and this was restricted if you are running a wine bar or a restaurant. A lot of them said "I can't be bothered" and then they came to us because we said that we would help them and they said, "We have made a mistake here. We missed it. The public that come in for their pizza or whatever want to have the two guitars, the piano and singer. What do we do?" Again as Martin Rawlings said, they have to go through the whole process again and this is completely self-defeating. This is something that we did talk to government about and we did try to get amended. I think we need to get a fast-track variation of the licence to encourage the use of live music particularly in those smaller venues.

Q225 Chairman: Poor Stephen Spence has been sitting there. Do you have anything to add going slightly beyond the musical performance into other kinds of live performances?

Mr Spence: Obviously when you are performing with legends you are playing the role of the supporter! The role of Equity obviously is broader than just musicians but, also, the Act is broader than live music. Whilst sharing the comments that were made about small venues, I would also say that some of the areas of travelling entertainment in particular have had difficulties with the Act, as you probably heard from circus proprietors, but Punch and Judy professors have fed back to us their concerns about having to deal with their regime on many occasions, particularly in relation to the Temporary Event Notices for travelling entertainers, which seems to be inconsistent across the country. The Temporary Event Notices in the live music area may well have been successful, John will indicate some views on that a little later, but in regard to circuses there is a problem and the problem is illustrated by the story that came up in September, which you may have come across, where Zippo's Circus in Birmingham, having been approved to perform, ended up having their clowns unable to play trumpets because there was a last minute change of mind and they went through their routine in silence. They were not even able to have their backing track. That is an article which was in the Times on 23 September and the Telegraph on 22 September. In that case the Licensing Act stopped live music performing and that is a difficulty because in some places where the circuses will go the local authorities will say either we will issue you with a notice or we will not issue you with a notice because we do not think you need one, only then to change their mind and make it very difficult for circuses to proceed. Punch and Judy professors and other small variety acts having to get these constant Temporary Event Notices because they perform at so many different facilities find that very difficult. It is reassuring to us to see in the DCMS submission that they are proposing to consult on the idea of a single transferable licence for travelling forms of licensable activity and we would very strongly support that. If a circus was able to apply for its licence, get its licence and have that licence in the same way as a premises has the licence on an ongoing basis, we think that would be enormously helpful.

Q226 Paul Farrelly: It may be a technical term, but I am tickled by the thought of the professors of Punch and Judy at universities up and down the land! The phenomenon that you have just described about the effect on small venues in retrospect seems totally foreseeable. Are we all collectively guilty of not having seen it? There is no blame to be attached anywhere.

Mr Smith: When we were lobbying during the course of the passage of the Bill we knew that the two performer exemptions would go and we were looking at what could replace it. We lobbied quite hard on an exemption for small venues and we said with a capacity of up to 200 and it almost got there. It was lost in favour of the Morris Dancing exemption that came in, but that is history!

Q227 Paul Farrelly: Who can we pin the blame on then?

Mr Smith: Lord McIntosh made a statement in the House of Lords and quoted from the Association of Chief Police Officers and that is something that really stung us. He said, "Live music always acts as a magnet in whatever community it is being played. It brings people from outside that community and having no connection locally behave in a way that is inappropriate, criminal and disorderly." I thought, "Hang on a minute. That's not the music scene that I know." We tried to monitor that through our members because they are the ones who work in these venues. Just last year we got our regional officers to write to all of the chief constables and, if I may, I will quote from some of the letters that we have received. This one is from Dorset Police, the Assistant Chief Constable, "Officers from Bournemouth and the east of the county report that live music does not of itself cause a problem. In the majority of cases the customers frequenting a particular venue attend to specifically listen to the music and not to cause trouble." Let us move on to Essex. This letter is from the Staff Officer to the Chief Constable and says, "From experience, the playing of live music seems less likely to increase core crime and disorder issues, than its comparator with the recorded music arena. Venues with a capacity of less than 250 are likely to attract less well known performers, whereas in larger venues the potential for disorder begins to arise. The actual effect of live music itself on the licensing objectives in the circumstances described is probably minimal. In summary, the playing of live music in smaller premises presents Essex Police with little or no problems that affect the four objectives described."

Q228 Paul Farrelly: So we can conveniently pin the blame on a senior policeman, a Mr Fox?

Mr Smith: I think you are using a brush stoke to talk about everything. We know there might be disorder problems at Glastonbury, although the evidence seems to be that there is less ---

Mr Sharkey: In my guise as then Chairman of the Live Music Forum I did discuss that particular letter and that particular issue at length with ACPO and, as was indicated in the Live Forum's report, they did eventually retract it in that they eventually acknowledged that they had no evidence on which to substantiate the allegation that people who attend live music concerts behave in a way that is "criminal".

Q229 Paul Farrelly: But the damage had been done by then.

Mr Sharkey: It had already been done. Ironically, in the midst of our work we did uncover some minutes just prior to the Licensing Act coming in for Glastonbury Festival's licensing application, which is obviously a public meeting, and the then Chief Inspector for Avon and Somerset Constabulary explained to the Licensing Committee that he personally had done a comparative study between the Bath and North-East Somerset Council District, which apparently during the festival shares a similar population figure and that, as it transpired, shows that in sleepy, sedate, dignified Bath there was almost 20% more crime during the same period than there was at Glastonbury Festival. It is clearly an issue that is constantly an accusation and parallel that is going to be drawn but, as has clearly been indicated, no one seems to be able to provide anything by way of substantive evidence to support any connection in any way between crime and disorder and live music. Let me pick up what you said about the smaller venues. Yes, there are some similar comments that have been made regarding Temporary Event Notices. I would ask the Committee perhaps to keep with them. I believe in the DCMS written submission they did indicate that last year there were over 100,000 Temporary Event Notices issued by local authorities thought England and Wales and indeed there was a comparable number issued during the last year of the Forum's work, which was 2006. I think on average we are looking at somewhere in the region of 100,000 events taking place per year under the auspice of a Temporary Event Notice. Again, I am not aware nor have I ever seen any evidence to insinuate that the majority of them in any way contribute to crime and disorder or anything else. Some of the issues raised by Stephen with the clients, whilst they are entertaining, could quite clearly be covered by incidental music as the Act does exempt incidental music. However, the Act, rather unhelpfully, does not provide any definition for incidental music and it has been a topic of some conversation and leads again to some of the inconsistency in what we believe is a misapplication. Let me give you one fantastically positive example. A couple of years ago the Corporation of London was approached by a resident charity with the ambition to hold a number of live music events in all of the public areas and all of the wards in St Bartholomew's Hospital; I think it was 26 in total per week throughout the summer months. The Corporation of London decided that as the main activity of the hospital was obviously clinical care and this had been explained to them, the music was quite obviously incidental and therefore would not be licensable and everyone could carry on and have a good time. The Forum felt that that was a particularly pragmatic and insightful approach to be taken. At the other extreme, we are aware of a choir - and I hope they do not mind me saying this - of men seasonally approaching the end of the autumn of their lives down in the south-west who during the summer months go to the local fishing harbour and stand and sing a few songs and raise some money for the local charities. They were told by the local authority that they were not in a position to do that any longer as they would require a licence. I did speak to the chairman of that choir at great length and the rules that they had found to circumnavigate the interpretation of the local authority is that this summer on a Sunday afternoon they would take the local vicar with them to the harbour side and the local vicar would then bless the harbour, instantly transforming it into a place of religious worship, which, of course, is exempt from the legislation, and they could then sing a few songs and collect some money. The point we are making is that such is the challenge being felt by an awful lot of small venues, small premises and small voluntary groups. I would not for one second suggest that a choir made up of retired elderly gentlemen could in any way be considered a threat to public nuisance or crime and disorder, but that is exactly what has happened. I assume that that was not the ambition or intention of this legislation.

Q230 Rosemary McKenna: Feargal, can I just put on record the appreciation of the All Party Music Group for the sustained support that you give to us because we now have all sorts of live music in the House of Commons, which the authorities here resisted for a long time, which we very much appreciate.

Mr Sharkey: It was long overdue!

Q231 Rosemary McKenna: It sounds to me as if what we really need now is the Government to do some serious post-legislative scrutiny, which we have been talking about for some time. Pre-legislative scrutiny now takes place on a regular basis, but I do think that this a very good example of where our Committee will be recommending a very strong look at the legislation because there are all sorts of things that come in that we did not expect, that we did not see, even those of us that were very much involved in the discussion at the time. Can you tell us a bit more about what has been the experience of promoting live music and entertainment within the licensing framework that primarily related to the prevention of public nuisance?

Mr Sharkey: We did look in the last piece of research that we did at what was driving representations from local residents in regard to live music, trying to gauge and sense in terms of nuisance and noise what the impact might be. As it transpired, 77% of all objections about live music came from local residents; 68% of those were raising concerns about noise and potential exposure to noise and the creation of a public nuisance. We began to formulate the opinion rather quickly that there was something of a perception problem; it was simply because it was live music and therefore there was going to be a noise issue. That set us off on a quest which proved to be quite an intriguing journey because, as it happened, in 2006, that was at the same time the Department for the Environment had commissioned their own study, the Taylor Report, looking at noise complaints and statutory noise abatement notices issued by local authorities under the Environmental Protection Act. It says in the Taylor Report, "It is typical for a local authority to have about 90% of complaints about music to be arising from a domestic source", not live entertainment. The Forum's report did actually include part of a presentation given by environmental health officers to their local licensing committee where it explained that live music complaints or entertainment - because they did not separate recorded music from live music - amounted to 7% of all complaints received in that local authority in the previous 12 months. That, of course, was in comparison to the 10% of complaints which were about barking dogs and the 12% of complaints which were about burglar alarms going off much too early or, in fact, that 13 times more complaints were received about the next door neighbour having the stereo on too loudly at four o'clock on a Sunday morning. We also went back and became aware of a study commissioned by the Westminster Residents Association looking specifically at local residents' viewpoints of areas of the West End like Soho and their concerns and live music came bottom of the list in terms of noise issues that they as residents of a very compacted area like Soho felt impacted upon their lives. We are having some trouble, as have several government departments, substantiating this widely held belief that live music is a source of public nuisance and impact.

Q232 Chairman: I quite accept that you strongly feel there is no linkage and John has quoted the chief constables. Going back into my distant youth, I used to attend concerts by bands like Sham 69 and the Angelic Upstarts which certainly were focuses for public disorder. At the last Sham 69 concert I went to it was stopped half-way through since a rather substantial fight broke out in the middle of the Roundhouse.

Mr Sharkey: Which I hope you were not involved in, Chairman!

Q233 Chairman: I was disapproving from above! You would accept that there are certain bands that do attract that kind of audience, would you?

Mr Sharkey: I think it is very important to remember with as much as humility and respect as I can possibly muster, without possibly passing any indication as to your age and mine at this point, that that was 30 years ago and yes, it is true that Mods and Rockers did chase each other up and down Brighton seafront, but that too was 40 years ago. I cannot think of a single event that has happened in the last five or ten years where there would have been that cause for concern.

Q234 Chairman: One or two of your concerts got quite lively, did they not?

Mr Sharkey: Yes, but that was just the exuberance of hot and sweaty young people displaying testosterone, adolescent enthusiasm!

Q235 Rosemary McKenna: That is the perfect example of a Punk to a member of the establishment!

Mr Sharkey: I think it is perhaps important to remember that in the very first piece of work the Live Music Forum did we uncovered that during that research period there had been approximately 1.7 million live music events throughout England and Wales in pubs, bars, hotels, restaurants, village halls, student unions, et cetera, et cetera. It obviously begs the question, which we have asked several police forces, of exactly how many of those 1.7 million events may have given any cause for concern. We are still awaiting a reply two years later.

Mr Smith: Can I just go back to the original point that we are looking at now with less than two weeks to the Act changes and the incidental music compared to the small venues exemption that we were looking for is a perfect example because when we looked at the incidental music guidance - because it is not in the Act, it is in the guidance - we thought this could solve the problem if it is interpreted properly, but because it is in the guidance it is full of maybes and could bes and not "This is live incidental music. Incidentals could be construed to be this ..." because licensees will say we are not taking the risk. Guidance like that has not been uniformly applied and we have had different authorities applying this guidance in different ways. I think this is back to what we had under the PEL system where it was different authorities and different licence fees, different structures totally. That is one of the reasons why we think that possibly could have been a good thing, but unless it is on the face of the Act it does not work. DCMS is looking at this exemption for venues with a capacity of less than 200. I believe there might be some objections from LACORS and from the police about it, but we have enough ammunition to deal with it. One of the problems that the Act has done is it has encouraged people to object and object to all sorts of things. They might have a problem in a local pub with people shouting and slamming doors and they use the live music as an excuse to get at the licensee and write a letter of objection. A perfect example is what happened at Kenwood with the open air concerts when Camden Council pulled them because a number of residents objected. This is exactly what the Act was supposed to overcome, this balance between society and where society has its culture and then people's privacy and right to a peaceful life. These are concerts that finish at ten in the evening and then there are a few fireworks afterwards. It entertains tens of thousands of people. The objections were from a handful of quite vocal residents. I am pleased to say those concerts have been reinstated, but it just shows what can happen. What the Act did not do was encourage people to say, "This is great. I really like having a live music venue in my village or town." Whenever you do that the licensing authorities take notice of what is said. There was a very strict interpretation of it and that is one of the things that we hope we can remedy. 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.

Mr Sharkey: I am aware that a couple of weeks back in another evidence session the subject of Kenwood came up and the Committee was advised that people could make a representation in favour of an application and indeed philosophically, in terms of the broad wording of the Act, that is correct. However, what I think may perhaps have been left out of that conversation was that local authorities can only take on board representations made from interested parties living within the vicinity of those premises. There is no definition of vicinity, but I think we can assume, out of those tens of thousands of people that might attend a concert in Kenwood on a summer's evening and I would include myself in that number, many of them would not be in a position simply because they do not, with any reasonable interpretation, live within the vicinity. For example, I personally live one mile away from Kenwood and I do not think I can anticipate that Camden could accept my representation because the law dictates that they must reject it as I do not live within the vicinity. There is a second thing that was raised regarding representations and it is indeed the whole issue of how you know you can make a representation in favour of an application. I know that the idea was put forward by the Chairman of LACORS and I would like to give you an example of an issue we have raised a number of times at the Live Music Forum. The particular councillor involved is a representative of Brighton and Hove. Brighton is exemplary when it comes to their sensitivity, their knowledge, their support, their understanding of live music and the cultural industries and the nighttime economy. I personally accompanied during the transition period, as Chairman of the Forum, the licensing officer working with some of the smaller live music venues who was advising them on how to fill in the applications, making sure they went through the application process successfully. They could not have done more and yet on Friday afternoon when I downloaded the advice sheet from Brighton and Hove's website to local residents on how to deal with a representation it reads, "Who can make representations (objections)? On what grounds may an objection be made? How can I object most effectively?" At no point in time in the guidance available from the local authority's website does it make any indication that you can make a representation in favour or in support of an application. That is further accentuated by the role of the Borough of Kensington and Chelsea whose website I checked this morning. The link on their page actually says, "How to make an objection". So what is the philosophy behind the Act? Making representations is a perfectly sound and valid one. It seems to get lost in translation and certainly does not seem to hit ground level.

Q236 Janet Anderson: We all know about Kenwood. Do you know of any other examples like that of a very popular event where a few local residents have been able ---

Mr Sharkey: The Live Music Forum's report went back and spent an awful lot of time on it and we processed quite literally thousands of representations from local residents, from the venues themselves and from interested parties and there is a whole host of reasons and rationale. For example, one instance we dealt with was "well dressing" in Derbyshire. I had no idea that such a thing existed.

Q237 Janet Anderson: What?

Mr Sharkey: Well dressing. It dates back to some slightly paganistic ritual where in the spring of every year children from the village put together floral displays and they walk around the heads of the local wells and decorate them with these floral displays. As part of that the organisers had arranged for a Temporary Event Notice and the local constabulary objected, not on the principle they had any difficulty with people doing something they had been doing for 400 or 500 years, but he felt compelled to point out that there was a limit of 499 people on a Tempoary Event Notice and there probably were more than 499 people going to be following this procession around the village putting these bouquets of flowers on the wells around the local area.

Q238 Chairman: So they had to object?

Mr Sharkey: The police objected and that objection was withheld. That year the organisers, who were a couple of elderly retired gentlemen, cancelled the event because they felt they could not put up with the bureaucracy and dealing with it and going on. It is some sort of ancient Druid-ish fertility ritual. We have had examples of mummers. A mummer was a new word in my vocabulary. I gather it entails groups of elderly gentlemen dressing up as St George and the Dragon and travelling around local pubs performing little plays, performing music and again raising money for charity. The mummery had been done for 400 or 500 years in local pubs and they were told they must cut that number down from 26 because they needed to apply for a Temporary Event Notice for each one of those premises. They managed to get eight in place and, as the chief mummer explained to me, that cost them more money than they raised that night. By the way, they were trying to raise some money for the local air ambulance. There are just endless examples of where this kind of thing has been misapplied or misinterpreted in a perhaps potentially quite overzealous way.

Mr Smith: I do not think we have had a lot of larger scale events like Kenwood because usually they have got the wherewithal to get their act together and get some legal advice and to talk to people like us to get some evidence in. It is very much the smaller things that happen, that is, little things like poetry readings in a cafe in Scarborough that were regular lunchtime events and they had a bit of music and they stopped the music mainly because of the hassle of filling in the form to do this. It is a plethora of small examples. This is why we are really honing in on the small venues as where the problem is at the moment.

Mr Spence: That lack of commonsense interpretation and also the inconsistency in interpretation, which is particularly difficult for the small venues, is why Equity would also support the small venue exemption. Our members who work in variety, particularly in the north of England, have reported back to us quite regularly the difficulties that small venues have. They feel very strongly that if there was an exemption particularly on the area where the entertainment was being performed - because that is the important bit, a pub might be a bigger complex, have restaurants and so forth, but the particular area where the entertainment is being performed is what we would seek an exemption for - then it makes it much easier for the small venues to put on entertainment, which may be a marginal thing for them to do. We get the feedback on a regular basis at our variety advisory committee that that would be helpful.

Mr Sharkey: We were promised a discussion about exemptions last November by the then Secretary of State James Purnell and I have written to the current Secretary of State enquiring as to when he might expect to see that. It is 12 months since that was first raised. I would like to touch on one other subject, in many ways referring back to the possibility of an exemption for smaller premises and indeed the earlier discussion we were having regarding crime and disorder. We first became aware of this issue towards the end of last year when we learnt that the Metropolitan Police in conjunction with the representative body for the 33 London boroughs had jointly written to each of the licensing officers in the 33 London boroughs as part of the triennial review process of local policy statements asking them to include some very specific wording in their new licensing policy statements, which obviously were published at the beginning of this year. I want to quote to you very carefully from one local authority. Somewhere in the region of 12 to 13 of the London boroughs have now adopted this policy to one degree or another. It says, "A liaison protocol has been agreed between the Licensing Authority and the Metropolitan Police Service with regard to their involvement and responsibilities in respect of crime and disorder in licensed premises. In the interests of public order and the prevention of terrorism, the Licensing Authority would expect that for significant events, a comprehensive risk assessment is undertaken by the premises licence holders ..." It provides a definition later on of what a "significant event" is which reads as follows: "An event will be deemed to be: any occasion in any location licensed under the provisions of the Licensing Act 2003, where there will be a live performer/s - meaning musicians, DJs, MCs or other artiste; that is promoted in some form by either the venue or an outside promoter; where entry is either free, by invitation, pay on the door or by ticket." We then went and obtained a copy of this so-called risk assessment as developed by the Metropolitan Police. There are two areas in it I would like to draw to the Committee's attention. Firstly, there is a question on the front page which asks for the "musical style to be played/performed (eg Bashment, R'n'B, Garage)." I have no idea quite why the Metropolitan Police think they need this information, but it may be nothing more than a happy passing coincidence that those three kinds of music are all three genres of music that would be appealing to a large audience of young Black or Asian people. We then move on to page three where it requests that the "full name and aliases, address, date of birth, contact numbers" for any and all artists/performers to be performing at that event that evening must be provided to the Metropolitan Police at least 14 days in advance of that event taking place. Rather helpfully, at the time bottom of the page it says, "Please note, Police and/or the Local Authority Officers may visit the event. If it is found that there are acts performing or appearing of whom previous notification has not been given ... and on whom, therefore, it has not been possible to conduct a proper risk assessment, this may jeopardise any future events either by the promoter or at the venue." The quite clear correlation here is that someone is deciding that not only is live music and the artist a threat to crime and disorder, but now potentially the prevention of terrorism. I can give you a simple illustration where this has already had an impact. Two months ago a local councillor in a north London borough endeavoured to organise a local event to help support young people. What he was suggesting was to hold a little gig under the auspices of a Temporary Event Notice in a local park, in a marquee between one o'clock on a Saturday afternoon and eight o'clock on a Saturday evening. There was no alcohol sold. You could only purchase three tickets maximum via a secure website. He had offered to supply eight SIA security registered doormen and the event was to raise money for the local teenage cancer trust. This was a local councillor doing something to help support young local people and a local cancer charity. The Metropolitan Police objected to that event taking place on the basis that the councillor refused to fill in that form and provide them with the names, addresses, dates of birth and contact numbers of the young musicians that were due to be performing that evening.

Q239 Chairman: This is not the consequence of the Licensing Act; this is the consequence of the Metropolitan Police's use of it. They are exceeding what is required under the law.

Mr Sharkey: Absolutely, and they have been co-operated with by at least 12 local authorities who have incorporated wording clearly steered in that direction into their licensing policies which were all published and approved. This one was approved at a full council meeting in November 2007 as indeed were all of the other 12 approved at full council meetings.

Q240 Rosemary McKenna: There are bigger problems than simply the Act. It is the interpretation of the Act by some police authorities which is going to reduce the opportunities for young people to learn their craft or just enjoy themselves.

Mr Smith: I think part of it is because the guidance is bigger than the Act, it is a bigger book than the Act, it invites this interpretation. When we were originally lobbying on the Bill in its early stages it did have a clause in that that the performers would be criminally liable if they were performing in unlicensed venues with the threat of jail. We had that removed early on. That is kind of where it came from and this is harking back to that, but the guidance allows that to happen.

Mr Sharkey: One of the wonderful ironies in all of this is that, as some of you may recall, myself and the Secretary of State for the Department for Culture, Media and Sport actually did perform live in this town not three months ago and yet under the interpretation ---

Q241 Rosemary McKenna: You went down on the form.

Mr Sharkey: Ironically, the local authority covering that performance has included this kind of wording in their new policy statement. Therefore, indeed should the Secretary of State and I choose to repeat that performance I suppose we will be providing our name, address, date of birth and contact numbers to the Metropolitan Police at least 14 days in advance of that event taking place to ensure that we are not in any way a threat to the prevention of terrorism.

Q242 Rosemary McKenna: And the other four performing were MPs.

Mr Sharkey: Yes.

Q243 Chairman: Were we covered by a Temporary Event Notice for that?

Mr Sharkey: I have absolutely no idea, Chairman, but I will endeavour to find out.

Chairman: I doubt they have got a premises licence on the boat.

Rosemary McKenna: I think they have a premises licence.

Q244 Paul Farrelly: Clearly the Metropolitan Police is flush with resources as are big unitary authorities, but in areas like mine which are covered by second tier authorities the legal officers are thin on the ground and, quite frankly, they struggle to master the basics of freedom of information. I would be amazed if they would be able to stand up to the police and understand and have the time to interpret a big book such as you are describing.

Mr Sharkey: The reason this came to our attention was that a Turkish restaurant in Mill Hill in north London had applied for a Temporary Event Notice for a three-hour period on a Bank Holiday Friday evening to cover some belly dancing. The Metropolitan Police objected to that Temporary Event Notice on the grounds that they had not completed this risk assessment form and, therefore, they were not in a position to make a proper risk assessment of exactly what impact belly dancing might have on crime and disorder.

Q245 Chairman: Do we take it from this that your real concern is less the Act but actually the actions particularly of the Metropolitan Police?

Mr Sharkey: It is a both. Certainly with regards to smaller premises, we do not feel at this point that there is any rationale for those smaller premises being covered by this legislation.

Q246 Rosemary McKenna: But there is hope for the smaller premises, is there not? The Government is about to lay an Order which would help the smaller premises and that would be really important.

Mr Sharkey: It would be fantastically helpful. On behalf of UK Music can I say that I would like to make it a matter of record that we reject the very notion in the strongest possible terms that any 15-year old musician standing on the stage in a local park on a Saturday afternoon could in any way be interpreted as a threat either to crime and disorder or the prevention of terrorism, and I would call on the people involved in this to withdraw those comments and revise those documents as quickly as possible.

Q247 Paul Farrelly: We have seen today how the representatives of the licensed premises, which include small pubs as well as big chains, have said they are broadly happy with the Licensing Act, but where it applies to smaller venues and live music there are serious problems. We have also heard in the course of this inquiry evidence from working men's clubs and other such establishments where they are saying the burden on us is disproportionately greater from the Act and the costs than on big pubs that have a large turnover. Is it fair to say, therefore, that the burden of the Licensing Act as far as live music is concerned tends to fall more on those places which are more likely to want to have music rather than just have as many people coming through the door coiffing as much drink as possible and that that is something that needs to be addressed in any reform to encourage more live music?

Mr Smith: It is absolutely right. I think that is where the drafters of the Act missed out, they said the intention was good, but when it came to practice, for exactly the reasons you describe, it has not worked. As Feargal said at the beginning, we want our members to work in safe premises and comfortable environments and I am sure Equity feels the same, but to sweep in entertainment and, particularly from my point of view, live music with all of those other issues and those law and order issues has completely skewed it against live music. We are fine with regulation, we are fine with protection for the performers, but we think it has been swallowed up by something much bigger and we have given some examples as to how that has worked.

Mr Sharkey: One of the most extreme cases we came across was a local authority somewhere in the Home Counties where every single application for live music that they had the environmental health department objected to as a matter of principle, even on occasions when there were no objections from anyone else. As part of reviewing and revising for this discussion today I did go back and check that local authority's progress since the situation of the Live Music Forum and at the very first meeting that they held in January this year they attached a condition to a pub's licence that specifically excluded incidental music from taking place on the outside patio area. As we have discussed, incidental music is exempt from the legislation, but here they are, through misinterpretation, over-zealousness, not understanding what the process was, trying to drag something that was quite specifically exempt from the legislation back into it by attaching it as a condition to this publican's licence. As you will be aware, we did uncover one local authority that for all intents and purposes had been in the process of - unknowingly perhaps - banning live music during the months of June, July and August unless you installed air-conditioning and the premise was that as the ambient temperature increased it would necessitate keeping the windows open and the live music would drift out and cause potential nuisance to the neighbours. That happened until we went along and I had occasion to speak to the licensing committee. I did not indicate who they were, but I gave certain examples of some of the areas that we had been covering. I have to admit, we were not as the Forum trying to take issue over a single decision a local authority had made, but we were looking for repeated and consistent patterns of decision making. Ironically after my presentation one of the main licensing committee turned round and said, "Feargal, please tell me that one of those examples was not us," to which I felt compelled to reply, "Well, actually it's funny you should mention that ..."

Q248 Chairman: Stephen, do you have anything to add going beyond music?

Mr Spence If the small venue exemption was put in place, if the single transferable licence for travelling forms of licensable activity was put in place, then we think, along with some clearer guidance perhaps in order to have the Temporary Event Notices issued in line with some common set of principles rather than making it up as you go along, which frankly seems to be the process at the moment, that would considerably assist with the operation of the Act, if live music and entertainment more generally is kept within it. I do not think I would have anything more significant to add other than to underline that there are ways of amending the Act that we think are fairly painless that would help enormously and we would urge that those measures are taken. I know, for example, there is an argument that there is an existing way of getting an exemption under the Act, but our understanding from individuals is that the Section 177 method is so complex and so misunderstood nobody goes near it. Equity would be very satisfied if those three points specifically were addressed.

Q249 Chairman: I think we have covered everything. Thank you very much.

Mr Sharkey: Thank you to all of you for having this hearing and highlighting some of the ongoing issues of concern. We greatly admire and appreciate the support. It is really important for young artists, musicians, songwriters, performers and lovers of music everywhere that we struggle and continue to get this right because we must get it right. Thank you once again for all of your time.