Licensing Act 2003: Section 182 Guidance

My Lords, I confess to a slight note of disappointment. I was approaching this debate in my most conciliatory and constructive mood, with a view to going as far as I possibly could—certainly to meeting some of what I anticipated as the representations of the noble Lord, Lord Clement-Jones. I shall still do so, being well disposed towards him and some of his arguments. However, I am a little taken aback by the strength of his representation about what is ““just wrong”” with the Licensing Act 2003 and why we ought to dramatically change it. I hope that the wider world will notice that where the local authorities, who represent local opinion, are broadly satisfied with the Act and their powers, and where the Act was designed to give local councillors in their wards a proper opportunity to represent their people on the licensed premises issue, I find the Liberal Democrats root and branch opposed to what the local authorities are doing. They are defending live music, for which I understand the necessity, and I subscribe to the view that we ought to have the interests of live music at heart. I want to be constructive towards the noble Lord’s representations, but I am not sure that I am going to let this occasion pass without pointing out the savage onslaught on local democracy represented by his argument this evening, as if every judgment made by a local authority which in any way inhibits certain aspects of licenses which premises may take out is somehow against the interests of the locality. I do not accept that for one moment. I was hoping for a slightly better balanced perspective from the noble Lord, but will forgive him on this occasion. I shall certainly come some way to meet his more specific arguments, which I think have substance. As to the noble Lord, Lord Howard, on this occasion, his wish is father to the thought. He is right. I am not sure that he was among us when the 2003 Act was passed—more’s the pity because our councils would have been aided by his wisdom on such an occasion—or that we have subsequently been able to debate the issues. However, he will know that at that time in this House and in the wilder sections of the popular press there were suggestions that the Licensing Act was the first major stage towards the development of Sodom and Gomorrah in the United Kingdom, that licensing would lead to a massive expansion of binge drinking, that local circumstances and environments would be totally destroyed, and that the Act would bring perdition upon our people. That was what was said at that time, and we had not the slightest doubt that if any of that had transpired certain newspapers that were hostile to the Act would have delighted in emphasising how it had encouraged binge drinking and how our village streets, to say nothing of our townships and cities, were inundated by a massive increase in alcohol-saturated individuals. It just is not so. The statistics from the police authorities do not justify that. I am not saying that binge drinking has gone away; we all know the Anglo-Saxon proclivity towards binge drinking, which is subscribed to by others in northern Europe, but not by those in that moderate Mediterranean clime to which the noble Lord alluded. However, it is not the case that an enormous increase in lawless activity on the basis of binge drinking following the extension of licensing can be attributed to the Licensing Act—far from it. Police and local authorities have reflected that no such outrages have developed, as has been contained in the more muted responses of the popular press. It is not that we do not have a problem with the excessive consumption of alcohol, but it is not related to the liberalisation of the licence, nor is there any suggestion that the Licensing Act has brought about a massive increase in binge drinking. I recognise that the noble Lord, Lord Howard of Rising, is saying, ““Root and branch””, and, ““Go back to the original Act””. I will look at the original Act, but in the rather narrower context which the noble Lord, Lord Clement-Jones, enjoined me to look at and will concentrate overwhelmingly on the question of live music, about which anxieties have been expressed and where we need to make some constructive responses. The review of the guidance has taken nearly two years and the department has involved key stakeholders, including the Live Music Forum, in every stage of the process. A working group including representatives of local authorities, residents, the police, the arts and the licensed trade advised officials throughout the review and unanimously approved the final version before the House today. The response to the public consultation on the proposed changes in spring last year was also very positive, with a clear majority of respondents endorsing the revised text. That is no consolation to the two noble Lords opposite. They have a debate on the guidance but they do not want to debate the guidance—they want to debate the Act, and they are using the guidance as a vehicle. I understand that, and I shall address the issues that have arisen particularly with regard to live music. However, I bring to the attention of the House that the Motion before us this evening relates to the guidance, not the Act. The guidance contains advantages for everyone concerned. It gives better guidance to licensing authorities to consider the potential impact of a licensing activity on local residents when deciding whether they are in the vicinity of a premises and therefore able to make representations. For musicians’ groups, the guidance clarifies that residents can make representations supporting an application—for example, if they would like their local pub to put on live music—as long as it is linked to the licensing objectives. It expands the guidance on how to determine incidental music to encourage more authorities to use this exemption. The noble Lord, Lord Clement-Jones, referred to incidental music. He is right that it is difficult to define and that the Act does not do so. We have problems with the definition. That is part of the consultation process and of the work that we still have to do. On occasions, I have asked the Liberal Benches to produce definitions, not always with unalloyed success, but if he is able to assure me that he can produce a definition of incidental music that will stand up in a court of law, we will look at it as a potential fundamental change. However, he will recognise that it is not through want of trying that we have not addressed ourselves to these issues. He will know that many others have also tried and have shied away from the issue. For the trade, the guidance is clear on how to authorise the sale of alcohol when the premises supervisor is absent, so it improves things for it. For everyone, we have clearer and more concise guidance. I know noble Lords will say that it is a heavy wodge of paper, and it is, but it is 40 pages shorter than the original, so we are making some progress towards being succinct. The revised guidance has been widely welcomed by all those with an interest in licensing matters. For example, Birmingham licensing authority described it as a really good piece of work and the Association of Convenience Stores hailed it as a victory for common sense, so we have support for the work we have done on the guidance. I shall turn to the noble Lord’s specific concerns about incidental live music. The Live Music Forum was kept fully informed and consulted at every stage of the guidance review. Officials met the chair, Feargal Sharkey, on several occasions, and he spoke at the first meeting of the guidance working group. The forum suggested that the guidance should include a list of factors that licensing officers could consider in deciding whether music was incidental, so it has been constructive about that. I assure the House that we are listening and will continue to listen. However, I hope that noble Lords will recognise that when I say that, we will be listening on a rather narrower front than the broader onslaught of the noble Lord, Lord Clement-Jones, with regard to the legislation, and certainly the broader onslaught of the noble Lord, Lord Howard of Rising. On the whole, the revised guidance on incidental music has been warmly welcomed by musicians groups. The Musicians Union, in its official response to the guidance consultation, said: "““We welcome this amendment and believe that it could be of enormous assistance to smaller establishments where music is not the core business””." In an interview with the Stage in July, Hamish Birchall, a live music campaigner who has been something of a critic of the Act, said that it was, "““a very small but very significant change in favour of a more liberal reading of the law””." The real issue here is not with the guidance—as I have said, there are suitable testimonies to its effectiveness and its improvement—but with certain aspects of the Act. The final report from the Live Music Forum concludes that the Act has had a neutral impact on live music. I have to accept the criticism of the noble Lord, Lord Clement-Jones, that during the passage of the then Bill Ministers certainly had high hopes that it would increase the provision of live music events; we are disappointed in that respect. But the Act has not been a dead weight on live music; it has been broadly neutral in its impact. There are not many incidences where the Act has had an adverse effect, so I will not accept too stringent a set of criticisms about it from the noble Lord. The Government take very seriously the concerns outlined in the forum’s report. We are carefully considering its recommendations on incidental music, and we will respond later this year. I cannot pre-empt the Government’s response today. It will take us time to deal with this issue. I think that the noble Lord, Lord Clement-Jones, will acknowledge that there are difficulties about the definition of incidental music. I assure him that we are listening to the representations made and that we will come to a carefully considered position on this later in the year. We recognise the importance of live music, both culturally and economically, and are fully committed to ensuring that live music flourishes under the new licensing regime. The Live Music Forum has completed the work it was asked to do with the publication of its final report, and we intend to respond to that shortly. It seems clear that the new licensing regime has not had the devastating negative impact on live music that some predicted. As I said, the general verdict on it is that the Act has been somewhat neutral, which is somewhat of a disappointment to the Government. Indeed, the Live Music Forum’s report found that many of the criticisms of the Act were unfounded and that it had delivered its main aims of streamlining the process. However, the Government accept that the new regime has yet to deliver the significant benefits in terms of the number and variety of live music performances which we would have hoped. In the same way that many of the criticisms of the new legislation were exaggerated and unfounded, some of the positive claims were perhaps less realistic than they might have been. We have to be realistic about this issue. That is why we are engaging in this constructive dialogue at this stage. After all, a licensing regime cannot persuade premises owners that they should think about putting on live music in the first place. That is a decision which our previous research shows is down to business needs, customer demand and suitability of the venue. What the licensing regime should not do is introduce unnecessary burdens and restrictions that put off those who are willing to take that step. The Government believe that the licensing regime does not in general act as a barrier, and that in many ways it is a far more measured and flexible piece of legislation than was the old public entertainment licence regime. The noble Lord, Lord Clement-Jones, referred to a small café with two musicians over lunch. If the music is incidental to dining, there is no need for a formal licence variation and the music would be exempt under the existing Act, so there is not a restriction with the legislation there. I therefore hope he will recognise that it is not helpful to exaggerate the restrictions that exist. The noble Lord, Lord Howard, emphasised the problem with regard to sports clubs. We have no evidence of the need to treat sports clubs as a special case. From what we can see, sports clubs that were viable and thriving before the Act are still so today. Of course, they have to meet the licensing requirements, but they fit the pattern of seeing certain aspects of the Act as beneficial to them. No one is saying that the regime is perfect, and I do not rule out the possibility that there may be instances where there has been an unintended or disproportionate impact on certain types of venue or activity. We have always said that we would monitor how the new regime works in practice and make adjustments where necessary. We are already doing much to ensure that live music flourishes. The Government are already acting on the forum’s recommendation on rehearsal spaces and has commissioned Feargal Sharkey to take that work forward. This year, the department commissioned research to look at the extent and frequency of live music in licensed premises in England and Wales under the new Act, following the baseline research in 2004. Results should be available by the end of the year and will provide a good measure of the Act’s impact on live music performances and not the rather impressionistic evidence that we have at our disposal at the moment. The department is also taking forward other proposals that may benefit live music as part of the simplification plan to remove administrative burdens. These include a fast-track lower cost process for making minor changes to licences that may help pubs and clubs that want to host live music events. The Government are also consulting on a measure to make it easier for villages and community halls to get a licence and the department will consult on whether de minimis licensed activities, which could include certain live music performances, should be exempt from the scope of the Act, exercising flexibility in that area. The Government have a duty, however, to ensure appropriate public protection through the promotion of the four licensing objectives. Perhaps one of the most relevant of those in relation to live music is the prevention of public nuisance, and I am sure that the House will agree that the promotion of live music must not be at the expense of residents who have a right to enjoy peace and quiet, particularly from performances late at night. Many live music events have no impact on local people, but there will always be some that result in noise nuisance and severely affect residents’ quality of life, and that is what the Licensing Act set out to recognise and make provision for. In monitoring and reviewing the impact of the Act on live music, the Government will seek to strike a balance between nurturing live music—which is certainly one of our objectives with all the benefits that that brings to cultural life—and the interests of local people whose lives may be ruined by excessive noise nuisance. I think that we all agree about the benefits of live music and I am encouraged by the debate this evening. I hope that we can move on from arguments based on supposition and anecdote and broad assumptions about the legislation, and instead look at practical and constructive ways of helping to ensure that live music in this country continues to thrive. We will look carefully at the Live Music Forum findings and recommendations and take into account the points that have been made by noble Lords tonight. I want to assure the noble Lord, Lord Clement-Jones, that we are interested in exercising as much flexibility in the legislation as possible and I want to give him the obvious reassurance that the Government take the issue seriously. But I hope that he will also take the matter before the House seriously this evening and recognise that he has not made a case against the guidance; he has made a case about the impact of the Act. The Motion before the House relates to the guidance and I hope that the noble Lord will therefore not press that issue too far.