Live Music Bill [HL]

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 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 could be prohibitively expensive, and replaced it with a single licence for both sales of alcohol and regulated entertainment. 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 and 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. 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 process will work in practice and the likely costs. The Bill also contains proposals to exempt schools and colleges from its provisions in respect of regulated entertainment if no alcohol is sold. I have no doubt that such an exemption would be welcomed by some schools, but I also think that the education sector should be given an opportunity to comment on it. I will return in a moment to the issue of schools. This is a subject on which there is some agreement but also some confusion. 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. 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. On the other hand, it sometimes seems to be implied that schools used to be wholly exempt from licensing law and that school concerts were generally made licensable by the Licensing Act. Neither is the case. If a school hall is used for a rock concert, this remains licensable, and I think that reasonable people would consider that it should be. Some schools, such as music schools, sometimes put on commercial-type events. However, some events at schools, such as fund-raising events held by parent-teacher associations, or events held by external bodies, may be licensable. In many cases, alcohol is sold—for example, a glass of wine at the interval—so that these events would not benefit directly from either of the proposed exemptions or the existing fee exemption. Nevertheless, I hope your Lordships will agree that the sale of alcohol at schools requires regulation. In the same way, such performances of live music at hospitals are very unlikely to be licensable. Fund-raising events may well involve sales of alcohol and therefore require a licence. But the Government remain prepared to look again at the needs of schools and hospitals. This would not be limited to regulated entertainment. The exemption of hospitals from the provisions of the Licensing Act in respect of late night refreshment, for example, deserves consideration. The Bill seeks to reintroduce a variant of the old exemption for one or two musicians performing in a premises licensed for alcohol—the "two in a bar" exemption. The old exemption was not universally popular with musicians and was not widely used. A limit on the number of performers discriminates against musicians who perform in larger bands. It does not discriminate against the noble Lord, Lord Colwyn, if he is on his own with his trumpet, but representations have been made by larger groups of musicians. The new condition that the music must be non-amplified or "minimally amplified" means that many of these events are likely to be already exempt under the incidental live music exemption. If we then consider that an event that is "minimally amplified" and has two or fewer musicians is unlikely to be performed before a substantial audience, it is hard to see that many additional events would benefit from this exemption. I think your Lordships will understand from what I have said that while we have no intention of deviating from our normal stance of neutrality towards Private Members’ Bills, we have strong reservations about this Bill. We believe that a more appropriate measure is the legislative reform order, on which the Government are consulting. On the legislative timetable, the LRO, unlike a Private Member’s Bill, can be carried over from one Parliament to another, so the coming of the general election would not mean that the issue would die and have to be taken up again from scratch by any new Administration in a new Parliament. I hope that I have managed to answer the main points made in the debate. I am most grateful to all noble Lords who have taken part in it and I am sure that we shall continue our discussion in due course.