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8.27 pm

Amendment 30

Moved by Lord Campbell-Savours

30: Clause 8, page 7, line 37, at end insert—

“(3A) A declaration under this section must also state that the person P is resident in the United Kingdom for the purposes of Part 14 of the Income Tax Act 2007 and is not a non-domiciled United Kingdom resident.”

Amendment 30 agreed.

Consideration on Report adjourned until not before 9.28 pm.

15 Jun 2009 : Column 923

Legislative Reform (Minor Variations to Premises Licences and Club Premises Certificates) Order 2009

Copy of the Order
7th Report from the Regulatory Reform Committee

Motion to Approve

8.28 pm

Moved By Lord Carter of Barnes

The Minister for Communications, Technology and Broadcasting (Lord Carter of Barnes): My Lords, the measure before you is part of the Government’s programme to remove unnecessary burdens on business. The minor variations process will provide an easier, cheaper and quicker way for premises to make small changes to their licences. This is particularly relevant at a time when pubs and clubs are struggling to survive. It will save the licensed trade valuable time and money and benefit thousands of voluntary bodies, such as sports clubs, political clubs and village halls, which wish to make small changes to their licences.

A licence holder who wants to change any aspect of their licence must complete a 16-page application form, copy the application to around eight responsible authorities, advertise the variation in the local newspaper at an average cost of £200, post a notice outside the premises and pay the local authority a fee, which can range between £100 and £2,000. If local residents and businesses have concerns about the proposed change, the local authority must hold a hearing to consider the evidence and decide whether the variation should indeed go ahead. This process can last up to two months and costs on average about £600 per application.

In the Government’s view, it is absolutely right that these safeguards should be in place for variations that might affect the licensing objectives. However, the full variation process is disproportionate and burdensome for a small, low-risk, low-impact change to a licence. This might be, for example, relocating a bar, removing an out-of-date condition or holding an event once a week. Since the Act first came into force, a wide range of stakeholders including local authorities, licence holders, and live music organisations, have been asking for a cheaper, fast-track process for these minor variations. The proposal before you today is the Government’s response.

How exactly will the minor variations process work? Licence holders will make an application to the licensing authority in the normal way but, unlike the full variation process applicants, they will not be required to copy the application to responsible authorities or advertise it in a local newspaper. The form will be shorter and easier to complete. Applications will be decided in 15 days with no hearings or appeals and applicants will pay a flat rate fee.

While we believe that this process is a significant change, it does contain important safeguards and protections. First, applications will be refused if they could have any adverse impact on the licensing objectives,

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which include the prevention of crime and disorder, public safety, the prevention of public nuisance and the protection of children from harm. Licensing officers will decide if applications meet this basic test, consulting responsible authorities like the police as necessary.

Secondly, the minor variation process cannot be used to add the sale of alcohol to a licence, to extend the hours during which alcohol is sold and allow the sale of alcohol between 11 pm and 7am. This is very resonant with the findings of the first public consultation document on this exercise.

Thirdly, the applicant must post brief details of the proposed variation on the premises so that residents know about the application and can tell the council if they have concerns. The local authority must take residents’ views into account in reaching a decision but it is not required to hold a hearing. These safeguards should ensure that only genuinely minor variations are allowed through this simplified process. If, exceptionally, there are any subsequent problems at a premise, local residents can ask for an immediate review of the licence.

In summary, the order before you today will cut red tape, reduce bureaucracy and save licence holders significant sums of money. It will help a wide range of businesses and voluntary organisations in these difficult economic times. However, it will have appropriate safeguards on the impact of risk to residents and the public. I beg to move that this House approves the order.

Amendment to the Motion

Moved by Lord Clement-Jones

Lord Clement-Jones: My Lords, I am sure that the Minister will be only too well aware of the interest taken on these benches in the future of live music. Consistently, my noble friend Lord Redesdale, who I am delighted to see here today, during the passage of the Licensing Act 2003, and subsequently myself, have argued that ensuring the ability of musicians to play music live in small venues, untrammelled by too much red tape at best and the full weight of the criminal law at worst, is vital.

At the time of its passage, Ministers were confident of the likely impact of the Act. The noble Lord, Lord McIntosh of Haringey, the then DCMS spokesperson in the House of Lords, told this House on 26 November 2002:

“My view is that there will be an explosion of live music as a result of removing the discriminatory two-in-a-bar provision”.—[Official Report, 26/11/02; col. 736.]

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

“I would be astonished if there were not a significant increase in the proportion of pubs putting on live music as a result of this Bill”.—[Official Report, 03/06/03; col. 1061.]

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However, the Licensing Act has not delivered an increase in live music, despite these promises. Back in 2007, the Live Music Forum, which had been set up in 2004 by the then Minister, now the noble Baroness, Lady Morris of Yardley, to advise on the impact of the Licensing Act on live music, published a report that confirmed that neither an explosion nor even a significant increase had taken place, and that there were numerous occasions on which local authorities had adopted widely varying interpretations of the key elements of the Act. It turned out that the complexity of the process involved and the impenetrability of the wording of Section 177 of the Act—which was held up during the passage of the then Licensing Bill as a great concession for live music in small pub and restaurant venues—had led to the forum being unable to find a single example where Section 177 was used by licensing officers or venue owners. So the forum recommended new exemptions for small gigs as a matter of some urgency.

The Live Music Forum’s report was followed by a BRMB survey commissioned by the DCMS. This confirmed that live music in smaller venues had shrunk by 5 per cent overall. In restaurants and cafes, the figure was a drop of 12 per cent; and in church halls and community centres it was 24 per cent. As a result, the then Secretary of State, James Purnell, pledged to explore exemptions for some venues.

I was struck by what the noble Lord, Lord Colwyn, said in a recent debate in the House, which backs that up:

“This restrictive legislation has had serious implications for jazz. It has removed hundreds of venues where young musicians can perform and learn to play to an audience”.—[Official Report, 4/6/09; col. 316.]

In 2007, 2008 and 2009, the noble Lord, Lord Davies of Oldham, on several occasions—notably in the debate on the guidance under the Act in October 2007 and in reply to subsequent Written Questions—has given categorical assurances that amendments to the Act, designed to exempt low-impact or de minimis licensable activities, including live music, were being considered. Discussions with interested parties were happening and formal consultations would take place. Last May, the noble Lord, Lord Davies, said that consultations would take place “by the summer”. Last July, he said that they would take place, “by the autumn”. Disappointingly, despite the passage of time, nothing at all has emerged. Indeed, the DCMS appears to be back-tracking. In the latest reply to a Written Question, the DCMS,

“We shall consult,” they say, but there is no longer any timing promised at all.

Most recently, however, and encouragingly, the House of Commons Culture, Media and Sport Select Committee report into the Licensing Act has accepted the case that something needs to be done to encourage more live music in smaller venues. It describes the licensing laws as absurd in this respect. It recommends, first, the exemption of small venues with a capacity of 200 people

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or fewer and, secondly, the reintroduction of the two-in-a-bar rule for non-amplified music. As the chairman, Sir John Whittingdale, rightly said,

“Young musicians often get their first break through performing live at small venues”.

The purpose of today’s amendment to the Motion is, yet again, to attempt to flush out the Minister’s and the DCMS’s intentions. Is there any settled view within the DCMS as to what amendments are desirable and possible? With whom has it had discussions beyond the MU, UK Music and the LGA? Will the consultation paper be forthcoming and the consultation be started? If so, when?

There is no doubt that today’s minor variations order is inadequate and will not deliver what we on these Benches, the Select Committee and UK Music want to see. Minor variations to an existing licence are no substitute for a new small-venues exemption under the Act. The Department for Culture, Media and Sport itself, in its evidence to the Regulatory Reform Committee included in the committee’s second report, has warned that many live music applications would not qualify as a minor variation. Licensing experts have already criticised the amendment as being of limited value. The DCMS said:

“In many cases the extension of music and dancing beyond 11pm, or the addition of the playing of music to a licence, will not fall within the definition of a minor variation”.

In fact, the minor variations procedure has become considerably more complicated as a result of the Regulatory Reform Committee’s own views on the previous draft order, published last December. As a result, the DCMS laid a revised order. Key changes have been made: first, to require applicants to advertise proposed minor variations on a white notice outside the premises for 10 working days; secondly, to give local residents and businesses the right to make representations in writing to the local authority; and, thirdly, to require the local authority to consider any such representations received within the 10-day period in arriving at its decision. The Licensing Advisory Group has expressed disappointment as reported in the Explanatory Memorandum to the order in the following terms:

“All members were disappointed that the original proposal had been diluted and felt that this would render the process less attractive to applicants with a consequent reduction in take up by licensees and therefore in cost savings”.

The order has been criticised more heavily by expert commentators. This from a leading licensing lawyer:

“It is likely that the current ‘minor variations procedure’ adopted by many licensing authorities, simply because the Government hadn’t proposed one, will now become a thing of the past. It is therefore arguable that the new procedure will make the licensing process even more cumbersome than it was before”.

Another expert writing in the Morning Advertiser in April this year said:

“What started off as a helpful gesture by the Department for Culture Media & Sport (DCMS) to overcome the elaborate procedure for varying a licence has turned into a pedantic nightmare ... We had a simple form of minor variations procedure under the old law, with the licensing justices giving instant decisions, and it worked pretty well. Residents were not prejudiced, but it gave operators the opportunity to alter their premises, usually for the better”.

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In any event, the order will not benefit the thousands of events in venues that are not already licensed under the Act.

The Government have brought forward this mouse of a regulation when they should by now have been consulting energetically on a new exemption for live music in small venues as they promised. The absurdities of the Act generally in respect of live music are manifest. The interpretation of the Licensing Act varies widely from local authority to local authority, with some taking a lenient view of incidental music and others a much more restrictive approach. The guidance, as I foresaw in 2007, definitely needs changing to ensure consistency.

We even have the ridiculous situation where the former Secretary of State Andy Burnham—I have talked about a lot of former Secretaries of State—recently went to the Knotty Ash Youth & Community Centre to hear performances of live music on the centre’s launch as a rehearsal and performance venue. All well and good but it had no licence: the performances were illegal. I have no doubt that there are some very competent Liverpool City Council officers and DCMS officials, but if they cannot get it right who can?

I have even more recent examples of the anomalies of the Licensing Act in its treatment of live music. From 23 June under the Play Me, I’m Yours scheme, 30 pianos will be delivered to the streets of London as part of Sing London and the City of London Festival 2009. Located on streets, in public squares and parks, train stations, and street markets, the pianos are there for any member of the public to play. The pianos will be in place until 13 July, after which time they will be donated to local schools and community groups.

The initiative, backed by Mayor Boris Johnson, has been widely praised in the national press. However, it turns out that the provision of pianos in this way is caught by the Licensing Act as provision of an “entertainment facility”. Without a licence obtained from the local authority, the organisers would be committing a potential criminal offence. It has been a bureaucratic minefield, with every venue and street space that is not already licensed having to be covered either by a new premises licence or a temporary event notice. I could come up with myriad more exemptions.

Ministers call the new licensing legislation a licensing regime for the 21st century. However, where live music is concerned they actually turned the licensing clock back more than 100 years. A case in 1899 established that a pub landlord could let customers use a piano on his premises without an entertainment licence. Today, such a landlord could face criminal prosecution where the maximum penalty is a £20,000 fine and six months in prison. Contrast that with the freedom to show large screen broadcasts of football matches without a licence under this legislation, because the Government granted that form of entertainment an explicit exemption. What kind of cultural bias does that show?

Finally, the CMS Committee was rightly very exercised, as many of us are, by the introduction of what is called form 696 by the police. This forces all promoters to provide personal details of artists: names and dates of birth, the music they are playing and their target audience 14 days before an event. Failure to do so has

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led to the cancellation of performances. This is totally unreasonable, and at variance with the intentions of the Act. When asked, the Government were wholly unable to produce evidence that live music generally is linked to disorder.

I urge the Government to use this opportunity to state clearly what their intentions are regarding the licensing of live music and to give concrete assurances about their intentions towards amendment of the Act. I beg to move.

8.45 pm

Lord Colwyn: My Lords, I am very grateful to the noble Lord, Lord Clement-Jones, for his amendment and his explanation of it. The House has heard that Section 177 of the Licensing Act was a last-minute compromise at a very late stage of the passage of the then Bill in July 2003. The Bill had twice ping-ponged between this House and the other place on the issue of an exemption for small gigs. This exemption had been supported by my party and by the Liberal Democrats, who at the last minute withdrew their support when the DCMS offered Section 177 and an exemption for morris and similar dancing.

The Section 177 amendment demanded by this House before the Bill could be approved was intended to protect certain forms of live music in small premises. The whole process exposed the Act’s absurd overregulation of the most innocuous live music against the light touch for canned entertainment, such as big-screen sport in bars. The Act effectively removed the old “two in a bar” rule that since 1961 had been available in premises as an exemption from the general requirement to hold a public entertainment licence for live music. As I said in the debate on 4 June, the restrictive legislation had serious implications for jazz.

I am sure that the Liberal Democrats have regretted their decision. Section 177 is notoriously difficult to understand; it is not any kind of exemption, merely a suspension of certain live music licence conditions in venues already licensed for live music up to a capacity of 200 people.

The noble Lord has explained Section 177 very clearly. It is a complex, probably unworkable provision, introduced in the late stages of debate in the Licensing Bill in June 2003. As far as I am aware, no venue and no local authority has ever used it. It is likely that only a small number of premises will want to take advantage of these exemptions, which would be of limited value to most commercial operations. There is no exemption from actually holding the required licence. The Government considered that such exemptions were not necessary to protect live music, but were forced to compromise in this House to secure the passage of the Bill.

Amending Section 177 to create an outright exemption for certain small gigs would go a long way to meeting the demands of the Musicians’ Union, the former Live Music Forum and the tens of thousands of musicians and music lovers involved with this debate over many years. With a little imagination, such an amendment could extend exemption to other premises, venues such as hospitals or schools that are not usually licensed for live music.

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If the public need protection from small gigs, as is so often insinuated by the Government, there is a plethora of legislation already in place to address the risk of noise, nuisance, crime, disorder and public safety. How else could big-screen sport in bars escape entertainment licensing?

The amendment of the noble Lord, Lord Clement-Jones, draws attention to the Government’s failure, despite many promises and the recent recommendations of the Culture, Media and Sport Committee, to implement any exemption for small-scale performances. Bearing in mind the high level of interest in matters relating to licensing and the concerns expressed by some local authorities, the Government’s recommendation is surprising. I support the noble Lord’s amendment.

Lord Redesdale: My Lords, I should perhaps give some history. The noble Lord, Lord Colwyn, has alluded to the great battles that we had over the Licensing Act 2003. I declare an interest as chairman of Best Bar None, which looks at improving the safety of pubs and nightclubs in the night-time economy. I have a great understanding of this issue and have talked to many publicans about it. Therefore, although the Minister’s words sounded very positive, I meet them with a slightly hollow laugh because we have been arguing over this for a long time.

The noble Lord, Lord Colwyn, who has moved from his place quite dramatically in the last couple of seconds, said that the Liberal Democrats retreated from their position. He knows that we have fought this for a very long time. Before the Licensing Act we both took part in a stunt to prove how important live music was. We played in the Red Lion pub. When the noble Lord wanted to blow his own trumpet, as a member of the jazz group, we had to throw him out because he would have been the third person to take part in a performance, which would have been illegal. Of course, we did not get much publicity because it happened to be the same night that the noble Lord, Lord Archer, received his four-year holiday from the House and the press seemed to be rather more interested in that. I could never understand that.

It was an issue that we then took into the debate on the Licensing Act because we thought that the “two in a bar” rule was unfair. It stifled a great deal of creativity. We thought that the Licensing Act would give us great freedom and the rules would be opened up. Indeed, the noble Lord, Lord McIntosh of Haringey, said:

“What the Bill does is to make it much cheaper and easier to get a licence where one is needed”.—[Official Report, 3/7/03; col. 1050.]

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