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On 22 October, the Licensing Minister, Gerry Sutcliffe, said that the,
to introduce a new small gigs exemption. He also suggested that his 100-capacity exemption proposal was open to negotiation. That statement coincided with an Equity and Musicians' Union demonstration outside Parliament. During the later Westminster Hall debate, John Whittingdale and other MPs were damning in their criticism of the Act's live music provisions. Mr Sutcliffe struck a conciliatory note, saying:
"I do not support local government being aggressive by putting preventions in place to stop live music. We must strike the right balance".-[Official Report, Commons, 22/10/09; col. 343WH.]
"Significantly, today's statistics show that there has been an 11 per cent. increase in premises licences with live music authorisation between 2007 and 2009".-[Official Report, Commons, 22/10/09; col. 341WH.]
Sadly, those statistics are almost meaningless. They do not measure actual live music provision, and a paper permission for live music does not necessarily mean that having live music is legal. Unless local authority licence conditions are implemented by the licensee,
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On 31 December 2009, the public consultation on an entertainment licensing exemption for small gigs was announced by DCMS, more than two years after it was first promised. The key proposal is to exempt gigs with an audience of up to 100, provided that performances are within buildings and do not take place between 11 pm and 8 am. The exemption may be revoked if there are complaints. It is likely that the DCMS amendment to implement this proposal is flawed as it fails to address the licensing of "entertainment facilities". Under the 2003 Act, the provision of entertainment facilities is separately licensable, irrespective of any actual performance of live music. This covers, for example, the provision of musical instruments, amplification or even a stage. Any new exemption has to ensure that such provision is also exempt.
During the licensing debate in the other place, Gerry Sutcliffe said:
"For facilities to be separately licensable in such situations would be absurd and was not intended under the 2003 Act. As part of the clarification, the consultation will propose a change to the definition of 'entertainment facilities' so that the mere provision of musical instruments, such as a pub piano, is not licensable".-[Official Report, Commons, 22/10/09; col. 341WH.]
It is hard to believe that the omission of this vital clarification within the published consultation was an oversight by DCMS lawyers and the licensing team, particularly given the long time they have had to come up with a solution.
Equity, the Musicians' Union and UK Live Music support an exemption for audiences or venues up to a capacity of 200. The Minister has suggested that the Government would consider expanding the exemption if that was the response of an overwhelming majority. On this side of the House, we believe that these exemptions will restore the original objectives of the Act. The exemptions will simplify the licensing process and offer a valuable concession to pubs, charitable fundraising and creative industries. The Bill's amendments consider that an adequate risk assessment and the removal of these bureaucratic features will not threaten the achievement of the 2003 Act's objective to prevent public nuisance, crime and disorder. Removal of pre-emptive legislation still allows local people the right to object to noise and disorder via local councils. I welcome the Bill.
1.36 pm
Lord Redesdale: My Lords, I speak yet again on this issue. I welcome the Private Member's Bill of my noble friend Lord Clement-Jones. I first declare an interest. I am chairman of Best Bar None, which gives awards to pubs that meet the highest standards. I also own a pub: the Redesdale Arms on the A68-on the Jedburgh Road. It is a particularly fine pub that does food and wine and is well worth a visit; it has rooms as well, if anybody wants to stay there. I thought I had better ensure that everybody understood my interest.
My declared interest in Best Bar None is because I come across a very large number of publicans. The real issue for them is the enormous amount of red tape
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That is a real issue. It is an issue of human rights. It is easy to say that this is about music, but it is actually about a Government who have become extremely repressive in how they put forward their views. They might turn around and say, "That's rubbish", but let us look at the issue. During the passage of the Licensing Act 2003, we had four government defeats in an attempt to stop the Government limiting unamplified music, because it is a human right. The noble Lord, Lord Colwyn, said that I, leading that charge, "gave up". I do not think another Bill has had four government defeats. At that point I had used every possible method. I was rather surprised when, on the last day of the attempted push, the Musicians' Union wrote to me saying "We must start a great fight". They seemed rather slow on that.
Going further back, I say that the Government are incredibly repressive because, in the build-up to the 2003 Act, we were assured that it would cut back on bureaucracy and red tape and increase the number of musicians playing in pubs. Indeed, one aspect was to remove the "two in a bar" rule that everybody then saw as repressive. This Bill is about reintroducing that rule. We have moved so far back from the position that we were in before the Act that we are now actually trying to do something that we were trying to lobby against at the time.
I should take the noble Lord, Lord Colwyn, back to 2002, when he and I were in the Red Lion, where we had a large number of the press turning up. The purpose of that was to have two people playing music, and then for the noble Lord, Lord Colwyn, to blow his own trumpet and be thrown out because he would have been a third musician. Unfortunately, we did not get the press coverage that we thought we would receive, because the verdict on the noble Lord, Lord Archer of Weston-Super-Mare, happened, and the press seemed to be extremely interested in that event. However, the real issue is that there was interest in that. We have now come to a position where we are actually trying to reintroduce something that we were campaigning against.
I do not believe that the Government will do anything on this issue this side of the election. I am absolutely certain that the Minister will stand up and say that live music is in a wonderful position and that, anyway, it is the residents that we have to be concerned about. There is a large amount of legislation to deal with this and this was not an issue that we did not discuss in great detail during the passage of the Licensing Act. It was discussed at great length. We asked for evidence that could show that the legislation would increase the amount of live music performed, and that was categorically given. We suggested that that might not be the case and that the bureaucracy might hinder the playing of live music. That argument was rejected. We were assured that licensing was needed because there would be great danger if large numbers of people
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This has been a rather unfortunate situation for the Government. A lot of the issues that they said would never take place have done so. They include the example given by my noble friend of a young lady singing from her album, without amplification, in a branch of HMV because she was asked to. The shop was taken to court for that. We were expressly told that common sense would prevail, but there have been a hundred examples where common sense has not allowed such events to take place.
I very much hope that the Government take this seriously and that the Conservatives, if they win the next election, move quickly to change this position. While we quite understand the rights of local residents not to be disturbed-I agree that that is an important consideration-and that law and order is a prime consideration, enforcing this legislation without evidence, at the expense of some of the cultural lifeblood of our country, seems to be utterly ridiculous.
1.43 pm
Lord Howard of Rising: My Lords, during the debate in June last year on variations to premises' licences the noble Lord, Lord Clement-Jones, said that he would introduce a Bill to provide conditional exemption for live music in small venues. What a fine example we have of a politician keeping his promise. Before going further, I declare some interests. I am a borough councillor. I am also the owner of an ancient monument, president of my local cricket club and chairman of my local football club. They have to apply for licences under the 2003 Act.
This is a Bill which we on these Benches support. We give that support in the hope that this Bill may go some way towards achieving the original objective of the 2003 Act, which was, broadly speaking, to promote the development of live music, dancing, and theatre. That never happened-rather the reverse; there has been a decline. Her Majesty's Government recognised this and introduced the minor variations procedure in June 2009; but I am afraid that that has had no discernable beneficial effect.
The arguments in favour of today's Bill have been ably and eloquently expressed by my noble-and, if I may say so, over-modest-friend Lord Colwyn, the noble Lord, Lord Redesdale, and of course the noble Lord, Lord Clement-Jones. Rather than waste your Lordships' time by repeating the same very good arguments that have been put forward, I shall say only that I hope that Her Majesty's Government, knowing the problems with putting on small live music events, which are, after all, a significant platform for artists at the beginning of their careers, will be large-minded enough to recognise that their solution has not worked and that they will therefore support the Bill to make it simpler and easier to have small live music events.
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1.45 pm
Lord Faulkner of Worcester: My Lords, speaking on another Bill introduced from the Liberal Democrat Benches a moment ago, I reiterated the traditional approach of neutrality that the Government adopt towards Private Members' Bills. I am happy to do the same again in this case, although I think it will become clear that we have even more reservations about the Bill introduced by the noble Lord, Lord Clement-Jones, than we do about that of the noble Lord, Lord Teverson. I shall explain why.
I shall also respond to the noble Lord's comment that I supported his Private Member's Bill on tobacco advertising and sponsorship. Indeed I did. I was proud to do so, and I was even more proud when the Government took it over as a government measure in the other place and it passed into law. That was a very much better Bill than the one that the noble Lord, Lord Clement-Jones, has brought before us today, and I think that on reflection he will realise that it was a rather more ground-breaking piece of legislation than is being suggested. However, I am very grateful to him for giving us the opportunity to talk about live music.
It has also been a very good opportunity to hear again from the noble Lord, Lord Colwyn, who is such a talented performer both in the pub and in your Lordships' House, and a very doughty defender of live music. We also enjoyed the contribution from the noble Lord, Lord Redesdale, and the rather brief, but none the less important, effort from the Lord, Lord Howard of Rising.
The important point to make is that the Government already accept that the criticisms of Section 177 of the Licensing Act need to be addressed and they are proceeding to do precisely that. The Private Member's Bill that we are considering now is similar in its intent to the Government's current proposal to exempt small-scale live music events from the Licensing Act by legislative reform order. I shall argue that that the LRO does more for live music and, at the same time, takes more account of the needs of the live music sector and of the public and residents than the Bill that we are considering. As has been said, we are currently conducting a public consultation on the LRO, which is due to close on 26 March.
It is true that on a number of occasions in recent years we have had informal discussions with stakeholders about options for live music exemptions, but this is not the eighth or ninth consultation. This is the first public consultation on a possible exemption, and I urge all noble Lords to take it very seriously. It is an important opportunity for those who have an interest to set out their views and enter a public debate on the issues.
There are significant differences between the Government's proposal and this Bill, and I shall return to some of those in a moment, but first I want to lay out some of the facts about live music and the Licensing Act.
One intention behind the Licensing Act was to encourage a wider range of live music in pubs, bars and other venues by simplifying entertainment licensing requirements. Most importantly, the Act removed the need for a separate public entertainment licence, which
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Premises that did not apply for a live music authorisation when they applied for their licence can now use the minor variations process, introduced on 29 July last year, to add or extend authorisation for low-impact live music more easily and cheaply. We do not yet have any statistics on its use but we know of a number of cases when it has already been used to extend authorisation for live music. When we have that information I shall write to the noble Lord, Lord Colwyn, who claims that it has not been used at all up to now, to demonstrate the occasions when it has been brought into effect.
We accept that the partial exemption under Section 177 is extremely complex and it has been rarely used. That is one of the reasons for the introduction of the minor variations procedure and the legislative reform order on which the consultations are taking place. I want to correct one point made by the noble Lord, Lord Clement-Jones, about the ability of residents to make representations against minor variations. That was not originally a government proposal but was inserted into the Bill by our own Regulatory Reform Committee. That is not a major issue but it needs to be put on the record.
The noble Lord, Lord Colwyn, and others have referred to the representations made by the Local Government Association which is not keen on the Bill, but which supports the LRO. It says that the minor variations process has been strongly supported by councils as it makes it easier for venues to introduce live music but allows local people to have a say on what impact there might be for those living and working nearby. I do not want to go into a long debate with the noble Lord, Lord Redesdale, about human rights, but residents have human rights as well and it is only right that we take account of their needs as well as those of the music sector.
The Act also includes an exemption for incidental live music-that is, live music that is not the main reason for customers to be attracted to premises. We know that the Musicians' Union, local government and the licensed trade have recently worked together to produce leaflets promoting the new minor variations procedure and the existing incidental exemption among musicians, venues and local licensing officers. The Licensing Act also introduced a new light-touch system for the licensing of temporary events which has proved very popular.
As we know, the effect of the Licensing Act on some forms of live music provision has been a controversial subject-noble Lords have expressed that today. I shall not attempt to recite the history but some of the more negative predictions and assessments are simply not true. It is not the case that the Act has somehow killed off live music. Unfortunately the Government do not have trend data that directly describe the strength of the live music sector. I had hoped that we might be able to get more information on this. It should be emphasised that licensing is far from being the only factor influencing it. Tastes change and there is a huge number of commercial considerations.
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However, there are some things that we do know. First, we know that a number of premises licences with authorisation for live music increased by 11 per cent between 2007 and 2009. When club premises are included, the increase is 10 per cent. However, there is no direct link to the amount of music that occurs. It is obvious that licence-holders will not necessarily put on live music just because they have authorisation. Secondly, from the point of view of participation and attendance, the DCMS Taking Part survey tells us that more people are going to gigs. Between 2005-06 and 2008-09 there was a 3.1 per cent increase in the proportion of adults attending live rock, pop, country, folk, soul, R&B and world music events. Attendance at jazz concerts stayed around the same, while attendance at classical concerts fell. That is an indication of popular demand. Thirdly, the commercial live music industry appears to be thriving. PRS for Music, which is an independent organisation, estimated that the value of the sector increased by 13 per cent in 2008.
However, the Government recognise that the picture is not uniformly positive. Before the introduction of the Licensing Act, the Government set up the Live Music Forum, to which the noble Lord, Lord Clement-Jones, referred; chaired by Feargal Sharkey, it was an independent body to look into the issue. The forum reported in July 2007-I am grateful to the noble Lord, Lord Clement-Jones, for reminding us of this-that the effect on live music had been broadly neutral. But in common with other commentators, it suggested that the Licensing Act may have had a negative effect on the amount of live music at some smaller venues. The Taking Part survey indicates that smaller venues have lost market share to larger venues.
Research carried out for the DCMS in 2007 on the provision of live music found that there had been a decline of 5 per cent since 2004 in the number of secondary venues which had put on live music in the previous 12 months. The report also found that the Licensing Act did not appear to be a major factor in decisions relating to whether such secondary venues provided live music. So while the Government have brought forward an exemption to help small venues put on live music, there remain barriers, such as consumer demand, which are outside the Government's control.
I should like to turn to the important differences between the Government's proposals and those in the noble Lord's Private Member's Bill. The most important difference is one of process. Both these proposals would affect many stakeholders-pubs, clubs, village halls, charities, schools, musicians, residents and local government-and some of them are likely to have concerns about public protection issues such as crime and disorder, public safety and noise nuisance. The Government believe that all stakeholders should have the opportunity to give their views, which is why we are carrying out a public consultation on our proposal.
Consultation on the details as well the principles is essential. For example, both proposals would allow residents and others to apply for the revocation of the exemption of specific premises if there are any problems. The revocation process will be administered by local government. Surely local government representatives should be invited to give their views on how such a
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The biggest difference concerns the maximum capacity of 200-which is what the noble Lord's Bill provides for, whereas the Government are consulting on their proposal for an exemption for a maximum size of 100, which is in line with the proposal of the Live Music Forum. Although size and venue capacity are only rough indicators of the likely impact of a live music event, larger events, broadly speaking, are likely to have a more adverse impact on residents. For example, it is likely that the music will need to be louder if it is to be heard by a larger audience, and there will be more people leaving when the event ends.
In view of these concerns the Government have proposed a maximum size of 100. However, we recognise that there are arguments on both sides. For example, smaller gigs may be less economically viable and not benefit professional musicians to the same extent. Respondents to the consultation can therefore disagree and suggest an alternative. As the noble Lord, Lord Colwyn, very fairly pointed out, the Minister with responsibility for licensing, my honourable friend Gerry Sutcliffe, has said that the Government would consider increasing the limit if there were an overwhelming consensus in favour of it. Audience size would appear to be a fairer mechanism for setting a cut-off point than a venue's capacity as otherwise larger premises would be disadvantaged. Under the Government's proposals, they would be able to hold smaller events to take advantage of the exemption.
I should answer the allegation of the noble Lord, Lord Colwyn, that the Government's LRO will not effectively exempt music because it fails to take the issue of entertainment facilities into account. We are proposing that small-scale live music events be exempted from the requirements of the Licensing Act 2003 in respect of the provision of regulated entertainment. This includes the provision of both entertainment and entertainment facilities. The Bill before us would allow exempt live music to continue until midnight. The Government's view is that, although late finishing times are certainly appropriate for some venues, midnight is too late for a blanket exemption, particularly on weekdays, since it would mean that customers are likely to disperse together in the early hours of the morning. The Government's proposal would require performances to end at 11 pm.
The exemptions proposed in the Bill would apply to events held indoors and outdoors or in permanent or temporary structures. We take the view that events held outdoors-for example, in tents-are more likely to generate noise nuisance. The Government's proposed exemption is therefore restricted to events held inside a permanent building.
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The Bill would exempt live music events at premises licensed for alcohol and at schools, colleges and hospitals when no alcohol is sold. This may be said to discriminate against potential low-risk venues such as cafés and bookshops, which would be included in the Government's proposal. The Government agree that schools deserve special consideration. This is why schools and colleges are already exempt from paying application fees and annual fees when they have a premises licence that is for regulated entertainment only, including live music. However, our understanding is that this exemption is not commonly used. There is good reason for this. Here I should like to address some of the misunderstanding that exists about the licensing of music in schools. It is simply not the case that a typical school concert or school play is licensable. These are generally private events for pupils and parents. Private events are not licensable unless they are for consideration and with a view to profit. This is the rather basic reason why the fee exemption is not frequently used: it is not generally needed.
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