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There is also a lack of clarity about this provision. Surely the guidance needs to cover not the form to be taken by involvement but, rather, which forms of involvement are applicable to which sorts of circumstances. That is what matters here. In some cases, the requirement will be satisfied by the strategic health authority simply providing a LINk with certain information; in others, the LINk will need to be consulted by the strategic health authority on the set of proposals; and, in others, it will need to be fully involved from the outset as the proposals are put together. Those are only three examples but involvement could take other forms as well. My Amendment No. 219ZAA may not consist of the most elegant drafting but it seeks to encapsulate a requirement to flesh out what involvement means, or should mean, in different situations.

Why, in new Section 242B(3)(b), do the Government require the power to direct primary care trusts on involvement and even to suspend involvement that has already been started? I ask that because we are constantly being told about devolution of power to the front line. Here, we have a power that allows Ministers to interfere directly in the relationship between a PCT and a local community, and I am nervous about that.

Amendment No. 219ZAB concerns consultation on the regulations proposed in the government amendment. I believe in consultation as a rule anyway but, here, there is a special justification for it because of the vagueness of the phrase “prescribed matters”. There is a strong case for consultation, too, in relation to new Section 242B. I have not tabled an amendment on that, although I should have done. In these provisions we have the possibility of strategic health authorities, which are effectively branches of the Department of Health, taking over or bringing to an end involvement undertaken by PCTs when it has already started and excluding the involvement of certain people whom another body will involve. Therefore, it is essential that there is public consultation on whatever regulations, guidance or directions are produced; otherwise, we are likely to face the prospect of further ambiguity.

I listened to what the Minister had to say. I understand that she has not warmed to this amendment but I wonder whether she would consider the idea of an informal process of consultation with key stakeholders so that there is at least an inclusive approach as the regulations and guidance are put together. It would be somewhat ironic, as well as regrettable, if the Government

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provided for regulations and guidance on involving people without involving them in what the regulations and guidance will say. Therefore, in that loose sense, I hope that the Minister will look favourably on the notion of prior consultation and that she will also consider the other points of difficulty that I have tried to highlight.

Baroness Neuberger: My Lords, I shall be brief because the noble Earl, Lord Howe, has said virtually everything on this great long string of amendments. I want to make two points. First, I very much support the noble Earl on Amendment No. 219ZAA, to which I put my name, because we have received a large number of representations on making very clear the full context of LINks and consultation. We need further clarity. The involvement network, which the Minister will know well, is very clear that it would be better if the LINks legislation could, at appropriate points, make specific reference to the duty owed by health and social care commissioners and providers to inform, involve and consult the people affected by their decisions. This is a part of that, and it is very clear that we want further information and guidance in the Bill on how this fits together. It is not only us who are saying this; it has been put forward strongly by the involvement network.

My other point is very different and concerns government Amendments Nos. 218 and 219 concerning the duty to consult under proposed new subsection (1H) in Clause 236(2). Here, the Government propose to leave out “consultation” and insert “involvement”. We are all delighted to see the word “involvement” brought back, but we are not clear why “consultation” has to be removed. I know that we are likely to be told that involvement includes consultation but we would feel happier if both “consultation” and “involvement” were included, as no one would then be in any doubt.

Baroness Morgan of Drefelin: My Lords, I thank noble Lords for giving me the opportunity to come back on these points. Perhaps I may start in reverse order and pick up the noble Earl’s point concerning an informal process of consultation around the development of regulations and guidance. I may not have been clear enough about the intention. We intend to develop regulations and guidance with stakeholders, and therefore they will be involved in the development of the regulations. At this stage, we envisage that these stakeholders will include the NHS Confederation, the NHS Alliance, strategic health authorities, PPI leads and organisations such Health Link, the Patients Forum, the Long-term Medical Conditions Alliance and even the National Voices initiative, on which everyone here knows I am very keen. So we are planning that the process suggested by the noble Earl should go ahead.

Perhaps I may comment on why strategic health authorities should be empowered to suspend PCT PPI activities. This is all about avoiding duplication, and it is important to put that on the record. For example, if a PCT and a strategic health authority are planning to consult on the same matter, the strategic health authority would be empowered to say to the

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PCT, “No, you’re not doing that. We’re doing that but it mustn’t be seen that you are not fulfilling your duty in not doing it”. That is the proposal for that power.

I turn to the noble Earl’s Amendment No. 219ZAA and the question of the word “form”. We are very happy to consider the wording and come back to the House. However, because the noble Earl’s amendment is an amendment to our amendment, a little help on how to move these amendments would be very welcome. Therefore, we are definitely prepared to consider his concerns in that regard.

We envisage strategic health authorities’ prescribed matters being those set out in the original Clause 242. However, we did not want that list to be exclusive, because the role of strategic health authorities is much wider than that of PCTs, so there may well be a desire on the part of stakeholders to include additional matters underneath that heading. That was our intention: rather than being very prescriptive, we were trying to be less so in order to give ourselves the facility to come back following our informal consultation.

I hope that I can clarify why we are removing the word “consultation”. I am advised that the terminology means “consultation and involvement”. Therefore, we are not removing “consultation” but saying “and involvement”.

I hope that with those clarifications noble Lords will not press their amendments, although I am aware that we may need to do further work on this before Third Reading.

On Question, amendment agreed to.

Baroness Morgan of Drefelin moved Amendments Nos. 211 to 217:

On Question, amendments agreed to.

Baroness Andrews: My Lords, I beg to move that further consideration on Report be now adjourned. In so moving, I suggest that Report stage begin again not before 8.40 pm.

Moved accordingly, and, on Question, Motion agreed to.

Licensing Act 2003: Section 182 Guidance

7.40 pm

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



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

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

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

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

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

In the same month, he said:

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

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

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

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

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

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

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

music which should benefit from an exemption from licensing—

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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