Live Music Bill [HL]

My Lords, Members on these Benches believe passionately in live music. This involves nurturing creativity and allowing individuals to develop their talents to the full. My honourable friend Lembit Öpik, himself no mean harmonica player, put it well: ""This is what performance art is all about. It is not about paperwork, it is not about red tape, it is about giving people the opportunity to express themselves in artistic form. In that sense, to be restricted by bureaucracy is the absolute antithesis of what such artists seek to do".—[Official Report, Commons, 22/10/09; col. 326WH.]" The Government’s policy towards live music as underlined by the Licensing Act 2003 has consistently opposed these core values by instead creating a bureaucratic minefield which has stifled creativity and prohibited innocent and innocuous live music events taking place and artists being able to perform. It is with this in mind that today I am moving the Second Reading of the Live Music Bill, which is designed to address the shortcomings of the Government’s approach to live music. In 2002, the Government introduced the Licensing Bill and promised that they would make it much easier to host live music. At the time of its passage, Ministers were confident of the likely impact of the legislation. The noble Lord, Lord McIntosh of Haringey, at the time the DCMS spokesman in the House of Lords, in good faith told this House: ""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.]" In fact, the Bill has significantly increased entertainment licensing control over live music. Among other things, the Bill abolished the two-in-a-bar rule, a long-standing exemption in pubs and bars for two performers. In effect, this became a none-in-a-bar rule. Under the Bill, most public performances and many private performances of music need a licence. The Liberal Democrats opposed these changes on the grounds that separate legislation was already more than adequate to regulate most small-scale performances and that criminalising such performances unless licensed was unnecessary and disproportionate. My noble friend Lord Redesdale, together with the noble Lord, Lord Colwyn, and the Conservative Benches, forced defeats on the Government in the House of Lords, creating exemptions for incidental music and certain small-scale performances. Naively, perhaps, in the subsequent ping-pong we accepted a new clause to the Bill, Section 177, which the Government put forward as an exemption for live music in certain small venues. In 2003 the Bill received Royal Assent and became an Act of Parliament. As feared, the Licensing Act has not delivered an increase in live music, despite these promises. In July 2007, the Live Music Forum, which had been set up in 2005 by the then Minister, now the noble Baroness, Lady Morris of Yardley, published its findings and recommendations on the impact of the Licensing Act on live music. The LMF concluded that, while the new law had a broadly neutral effect, the Act harmed certain small local venues and recommended an outright exemption for these. The LMF also reported a huge disparity in local authorities’ interpretations of the law when issuing licences, and that the promised increase in live music had not occurred. In fact, it found that 29 per cent of smaller establishments that had previously operated without a public entertainment licence but used the two-in-a-bar exemption to put on live music did not apply for live music provision when the Act came into force. In particular, the Live Music Forum called for the reform of Section 177. It argued that the current wording of the Act was convoluted and, in many respects, impenetrable. The forum was unable to find a single example where Section 177 was used by licensing officers or venue owners. The forum therefore recommended new exemptions for small gigs as a matter of some urgency. The Live Music Forum report was followed in December 2007 by a BRMB survey commissioned by the DCMS on the impact of the Licensing Act on live music. It concluded that there had been a 5 per cent decrease in the provision of live music in secondary live music venues since the benchmark MORI survey of 2004. In restaurants and cafes the figures showed a drop of 12 per cent, and in church halls and community centres a drop of 24 per cent. As a result, the then Secretary of State, James Purnell, pledged to explore exemptions for some venues. I shall deal with this later but, as we shall see, despite assurances by the Government, until last December this had been put on the back burner. In July 2008, the House of Commons DCMS Select Committee launched an inquiry into the Licensing Act. In May 2009, its report concluded that the Act hampered live music performances, especially by young musicians. The committee recommended an exemption for venues of up to 200 capacity and the reintroduction of the two-in-a-bar exemption which, as I have described, existed prior to the 2003 Act. As the chairman, Mr John Whittingdale, rightly said, young musicians often get their first break through performing live at small venues. At first, the Government went along with the LGA, which seemed to be terrified of any changes to the Licensing Act and had put its faith in the minor variations procedure. As I made clear in the debate on 15 June last year on our Motion to regret the Government’s decision to proceed with the draft legislative reform order, minor variations to an existing licence are no substitute for a new small-venues exemption under the Act. In its evidence to the Regulatory Reform Committee, which was included in the committee’s second report, the DCMS warned that many live music applications would not qualify as a minor variation. The noble Lord, Lord Howard of Rising, was particularly effective in demolishing the Licensing Act and the vaunted merits of the order, particularly in the context of the burden on social and sports clubs and the fact that the words "adverse effect" could be used by local authorities to unreasonably reject applications. The process is extraordinarily bureaucratic. Applicants are required, first, 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 in the 10-day period in arriving at its decision. All this gives everybody the opportunity to prevent live music taking place, without any evidence of nuisance. The order has been criticised, both by the Licensing Advisory Group and expert commentators. One commentator wrote in the Morning Advertiser in April last year: ""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"." In any event, the order will not benefit the thousands of events in venues that are not already licensed under the Act. As I illustrated last June, the absurdities and inconsistencies 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. We had the ridiculous situation where the former Secretary of State, Andy Burnham, last year went to the Knotty Ash youth and community centre to hear performances of live music on the centre’s launch as a rehearsal and performance venue. That was very laudable, but it had no licence: the performances were illegal. The provision of 30 pianos in London streets last June and July under the Play Me, I’m Yours scheme, backed by the mayor, Boris Johnson, was caught by the Licensing Act as provision of an "entertainment facility"; so even if no music is played they can still get you. Without a licence obtained from the local authority, the organisers would have been committing a potential criminal offence. It was a bureaucratic minefield, with every venue and street space that was not already licensed having to be covered either by a new premises licence or a temporary event notice. A classic example occurred recently in Kettering, where the local council prosecuted HMV for allowing a singer, Faryl Smith, to sing one song from a record for the launch of her record in the store. I could come up with myriad more examples of the idiocies of the Act. Ministers called the new licensing legislation a licensing regime for the 21st century. However, where live music is concerned, they actually turned back the licensing clock 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. Let us contrast that with the freedom to show large-screen broadcasts of football matches without a licence under the legislation, because the Government granted that form of entertainment an explicit exemption. Why on earth should those broadcasts have an exemption and not live music? Is live music a greater threat to public order? It is certainly not. A very effective demonstration in aid of live music was held by the Musicians Union and Equity last October in Parliament Square. The demonstration coincided with a full debate on the Select Committee’s report held in Westminster Hall. At that point, the Government suddenly seemed to awake from their slumber and make proposals for an exemption for events attended by up to 100 people. They have now, several months after the announcement, launched yet another consultation on the issue. Why have they suddenly decided to do so, so close to a general election, when they have no hope of implementing any proposal before then? It must be a matter of speculation. Are they frightened of the LGA, but equally worried about the campaign mounted by the Musicians Union and Equity? We do not know. That now makes more than six years of legislation, eight consultations—this is the ninth—two government research projects, two national review processes and a parliamentary Select Committee report. Mr Feargal Sharkey of UK Music—your Lordships may have heard him in the media—waxes particularly lyrical on this subject. The Department for Culture, Media and Sport wants responses by 23 March. As it is, the proposals are inadequate. Under the plans, gigs for 100 people or fewer would no longer need a licence. Exempted venues would have to fulfil other requirements, including ensuring that the audience is contained within the building while the performance is taking place, to prevent noise escaping, and that exempt performances take place between 8 am and 11 pm. This will entail an LRO under the Legislative and Regulatory Reform Act 2006. There is therefore no possibility of seeing such proposals into law by the general election. The one really useful statement in the consultation paper is the estimated cost savings as a result of a small-venue exemption. More than £1 million of savings could be gained for small venues. All the above motives—the desire to nurture creativity, to cut back bureaucracy, to save costs for small venue owners, and to eliminate the inconsistencies and absurdities of the Licensing Act—explain why I am bringing forward this Live Music Bill. The Bill amends the Licensing Act 2003 in four main respects. There is an exemption for live music in small venues that are licensed under the Licensing Act 2003. This exemption is conditional on a new Section 177, which can be triggered to review a licence and make live music in that venue licensable if complaints by local residents are made. Secondly, there is a reintroduction of the "two-in-a-bar" rule, so that any performance of unamplified and minimally amplified live music of up to two people is exempt from the need for a licence. The amended Section 177 does not affect this, making it a total exemption. Thirdly, there is an amended Section 177 to the Licensing Act 2003 that will act as an effective licence review mechanism for complaints about live music in licensed premises. Fourthly, there is a total exemption for hospitals, schools and colleges from the requirement to obtain a licence for live music when providing entertainment where alcohol is not sold, and the entertainment involves no more than 200 persons. The rationale for this approach is as follows. The Licensing Act 2003 creates and regulates the three licensable activities—supply and sale of alcohol, regulated entertainment and provision of late night refreshment—subject to the operating schedule which forms part of every premises licence issued. Live music is classified as regulated entertainment under the Act, subject to very narrow exceptions, and therefore without an exemption small premises are bound by the same legislative burden and costs as larger premises in relation to being able to have or provide live music, which can be disproportionately prohibitive. The Licensing Act 2003 created, as a safeguard to residents and other parties who are subject to noise and other disturbance, the review process. The Live Music Bill preserves this right for residents and businesses in the vicinity of licensed premises and explicitly allows for the exemption to be removed in circumstances where premises operating under the exemption are found to undermine the licensing objective of prevention of public nuisance. The LGA is completely wrong in its briefing about this, as it has been throughout the live music debate. An exemption for small premises, while still safeguarding residents in the vicinity of premises operating under the proposed exemption, is a measured and reasonable solution, which balances the human rights of all parties in so far as the legislative burden is reduced to a more appropriate level for smaller venues without loss of the safeguards introduced by the Licensing Act for residents and businesses in the vicinity. The further exemption for unamplified and minimal amplified music involving no more than two performers partially reinstates the legal position prior to the Licensing Act 2003, and would permit a lone pianist or, for example, a singer and guitarist, to perform unamplified music at venues of any size, regardless whether they possessed a licence or not. This again is a proportionate solution, as it allows, for example, cafes to put on such entertainment without the cost of applying for a full licence. The disapplication of any music-related conditions for licensed premises is necessary to reflect the position prior to the 2003 Act, where venues that allowed two in a bar would not have been subject to a public entertainment licence or other music-related conditions. The definition for minimal amplification is based on the Government's own definition under paragraph 3.22 of the guidance that they issue under the Act. The final exemption for hospitals, schools and colleges would permit such institutions to host live music entertainment, without the additional cost and administrative burden of a licence, but subject to a reasonable limit to the number of people attending. I urge the Government to support these proposals and take some heart to a response to a Written Question of mine last November about a proposed government consultation from the noble Lord, Lord Davies of Oldham. He said that, ""if the consultation overwhelmingly shows that stakeholders would prefer this to be extended to venues with a capacity of up to 200 people, then the Government would consider this"—" I take that as the Government at least having a partially open mind. I also welcome the recognition in the same response by the noble Lord, Lord Davies, that, ""other legislation exists to tackle noise nuisance and anti-social behaviour".—[Official Report, 11/11/09; col. WA171.]" My own proposals are not set in stone. If the Government show willing, we can compromise on a capacity figure. But let us remember that the Select Committee recommended that the appropriate figure was 200, a figure that is backed by the Musicians’ Union, Equity and UK Music. The Government have adopted one of my Bills in the Commons before now, the Tobacco Advertising and Sponsorship Bill, which the Minister strongly supported. Why not again? I hope that the Minister will take that as a favourable precedent. This is the only way to ensure that this vital reform of the Licensing Act is in force before the general election. Clearly, we are not talking about large venues for established artists, which are doing better than ever, but the lower rungs of the ladder—that is, smaller venues—are being kicked away. I look forward to debate on this Bill, which I hope that Members of this House and the Government will support. Phil Little’s No. 10 petition on live music is one of the best supported on that site, and I know that this Bill would have great support, not only down the other end of this building through the Culture Media and Sport Select Committee but from all those who have an interest in the spread of live music in small venues. The pub trade is particularly concerned about the health of live music, and I commend Listen Up!, which now has 700 members from the pub trade, for its campaign to promote live music. It firmly believes that it could reverse the current trend towards the closure of pubs, which are closing at the rate of some 52 per week. I hope that the Government will respond to all these voices today. I beg to move.