Live Music Bill [HL]

My Lords, I believe passionately in live music. I went to the Brits recently in what I hope will be its permanent new home, the O2. It was a stunning experience which confirmed my totally unbiased view that British musical talent is the best in the world and that we must do everything we can to encourage its development. Clearly, this view is shared by the coalition Government, who pledged in the coalition agreement to cut the red tape involved in live music performance. However, I am afraid to say that the Licensing Act 2003, introduced by the previous Government, created a bureaucratic minefield which has stifled creativity and prohibited innocent and innocuous live music events taking place. Even the provision of musical instruments without a licence became a criminal offence. However, despite some encouraging discussions with the Minister, my honourable friend John Penrose, we are still awaiting the outcome of interdepartmental discussions on how to achieve the objectives of the coalition agreement. I welcome the fact that John Whittingdale MP, chairman of the Culture, Media and Sport Select Committee, who is as impatient as I am for reform, has now tabled an EDM in the other place asking for an exemption for small venues to be introduced without delay. I move the Second Reading of what I believe is a new and improved Live Music Bill, designed to reduce the red tape surrounding the performance of live music, particularly in small venues, in the hope and expectation that it will receive an explicitly positive response from my Government. In 2002, the previous Government introduced the Licensing Bill and promised that it would make it much easier to host live music. At the time of its passage, Ministers were confident about the likely impact of the Act. Lord McIntosh of Haringey, then DCMS spokesperson in the House of Lords, who we remember so well, 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 significantly increased entertainment licensing control over live music. Among other things, it abolished a ““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 need a licence. 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. I am very glad to see my noble friend Lord Redesdale in the House today taking part in the debate. We 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, which appeared to be 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. Back in July 2007 the Live Music Forum, which had been set up in 2005 by the then Minister, the noble Baroness, Lady Morris of Yardley, published its findings and recommendations on the impact of the Licensing Act 2003 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’ interpretation 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 new Act came into force. In particular, the Live Music Forum called for the reform of Section 177. The LMF argued that the wording contained in the Act is convoluted and in many respects totally impenetrable. The forum was unable to find a single example where Section 177 was actually used by licensing officers or venue owners, so it recommended new exemptions for small gigs as a matter of some urgency. The LMF’s report was followed in December 2007 by a BRMB survey commissioned by the DCMS on the impact of the Licensing Act on live music, which 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. However, the figures for restaurants and cafes and church halls and community centres showed a drop of 12 and 24 per cent respectively. As a result, the then Secretary of State, James Purnell, pledged to explore exemptions for some venues. But despite assurances by the Government, this was 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, it concluded in its report that the Act hampered live music performances, especially by young musicians. The committee recommended an exemption for venues up to a capacity of 200 and the reintroduction of the ““two in a bar”” exemption, which existed prior to the 2003 Act. As the chairman, my honourable friend John Whittingdale, rightly said: "““Young musicians often get their first break through performing live at small venues””." However, the then Government continued to put their faith in the minor variations procedure. But as I made clear in the debate on 15 June 2009, on a 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. Indeed, the DCMS itself in its evidence to the Delegated Powers and Regulatory Reform Committee, included in the committee’s second report, warned that many live music applications would not qualify as a minor variation. My noble friend Lord Howard of Rising rightly pointed out at the time the burden on social and sports clubs and the fact that the words ““adverse effect”” could be used by local authorities unreasonably to reject applications. The minor variations process is extraordinarily bureaucratic. In the event, the minor variations order has failed to benefit the thousands of events in venues that are not already licensed under the Act. The absurdities and inconsistencies of the Licensing Act generally in respect of live music are manifest. The interpretation varies widely from local authority to local authority with some taking a lenient view of incidental music and others a much more restrictive approach. There are many examples of licensing authorities imposing, or allowing to be imposed, absurd restrictions on live music; for instance, the number of musicians allowed to perform, the genre of music or the type of musical instrument they may play, restrictions on those under 18 listening to live music, the days of the week they may perform and the frequency with which they may perform. Some premises are required to leaflet the surrounding area, warning residents of impending live music events, and some local authorities have issued no premises licences for public spaces, effectively banning live music in public. Many of us recall the fact that the provision of 30 pianos in London streets under the Play Me I’m Yours scheme was caught by the Licensing Act as the provision of an entertainment facility. Without a licence from the local authority, the organisers could have committed a criminal offence. More recently, we had the ridiculous situation where Westminster City Council told Tate Britain to get an entertainment licence for Susan Philipsz’s Turner Prize-winning sound installation. Ms Philipsz’s prize-winning exhibit features a recording of her singing ““Lowlands Away””, a traditional folk song, played through two loudspeakers. Westminster’s legal department ruled that the Act’s incidental music exemption could not apply in this case. Even more absurdly, the morris dancing exemption under the Act could have offered Tate Britain an intriguing way round Westminster’s licensing requirement. It allows unamplified live music if it is an integral part of a performance of morris dancing or dancing of a similar nature. If Susan Philipsz, or another vocalist, were to sing ““Lowlands Away”” unamplified in the gallery to some morris dancing or dancing of a similar nature, this should be exempt. Of course, that is entirely her choice. As we can see, the Act has had the effect of criminalising the showing of a prize-winning piece of art by one of the world’s leading art institutions, a range of musical and other performances, and the provision of facilities for them that could not conceivably produce anti-social levels of noise. I could come up with myriad examples of the idiocies of the Act. Contrast that position with the freedom to show large-screen broadcasts of football matches in pubs without a licence under this legislation, because that form of entertainment is explicitly exempt. In addition, think how many premises have permission for a DJ but not for live music. At the end of 2009, a very effective demonstration in aid of live music was held in Parliament Square by the MU and Equity. The demonstration coincided with a full debate in Westminster Hall on the Select Committee’s report. At that point, the previous Government suddenly seemed to wake up and make proposals for an exemption for a capacity of 100. They launched yet another consultation on this issue, close to the general election, when they had absolutely no hope of implementing any proposals. Mr Feargal Sharkey, the CEO of UK Music, the umbrella organisation that represents a large proportion of the music industry and strongly backs deregulation for live music, calculated that there had by then been nine consultations, two government research projects, two national review processes and a parliamentary Select Committee report—yet still no action. The desire to nurture creativity, cut back bureaucracy, save costs for small venue owners and eliminate the inconsistencies and absurdities of the Licensing Act explains why I am once again bringing forward a Private Member’s Bill on live music. This is somewhat different from the previous version, but I hope that this Bill is even more effective than the previous Bill I introduced this time last year. My Live Music Bill amends the Licensing Act 2003 in five main respects, including an exemption for live music in small venues for audiences of up to 200 that are licensed under that Act. This exemption is conditional on a new Section 177, which could be triggered to review a licence and make live music in that venue licensable if complaints by local residents are made. The Bill reinforces the rights of residents by allowing conditions to be placed on the premises’ licences, following complaints upheld under the Environmental Protection Act 1990. Unamplified live music is exempted anywhere between 8 am and midnight on the same day, but this can be disapplied in alcohol-licensed premises if complaints are upheld. Conditions could then be applied. A broad exemption is introduced for any premises not already licensed under the Licensing Act that qualify as a workplace for the purpose of health and safety legislation. This covers not only hospitals, schools et cetera, but factories, offices and any place covered by the workplace definition. This is an important new addition to the Bill. Then there is the removal altogether of the entertainment facilities provisions. There would no longer be a separate requirement to authorise the provision of musical instruments such as the piano for a school concert open to the public. There is a new exemption under the Bill to allow live and recorded music to accompany morris dancing, which I am sure my noble friend Lord Redesdale will approve of. The rationale for this approach is as follows. The Licensing Act 2003 creates and regulates the three licensable activities: the supply and sale of alcohol, regulated entertainment and provision of late-night refreshment, subject to the operating schedule that forms part of every premises licence issued. Live music is classified as regulated entertainment under the Act 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 provide live music, which can be disproportionately prohibitive. The 2003 Act created the review process as a safeguard to residents and other parties who are subject to noise and other disturbance. 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 small venues exemption are found to undermine the licensing objective of prevention of public nuisance. A further exemption for unamplified music at venues of any size, regardless of whether they possess a licence or not is again a proportionate solution, because it allows, for example, cafés to put on such entertainment without the cost of applying for a full licence. 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, subject to a reasonable limit on the number of people attending. My proposals are not set in stone. The Bill can be amended as it moves through its stages in this House; but let us remember that the Select Committee recommended that the appropriate figure was 200. This figure is backed by the MU, Equity, UK Music and the Incorporated Society of Musicians. I look forward to the debate on the Bill, which I very much hope the Government will support, and that we hear some encouraging words from the Minister at the end of today’s debate. The pub trade is particularly concerned about the health of live music. There are 39 pubs closing every week. This form of live music exemption could give a great boost to the economy of the pubs and I commend my honourable friend Mike Weatherley’s Rock the House campaign, which will set up live music competitions in constituencies right across the country. Perhaps we should add to them a competition to see who can find names of pop songs with ““dog”” in them as many times as possible. I hope that the Government will respond positively today. I am delighted that we have so many speakers in today’s debate. In particular, I look forward to the maiden speech of my noble friends Lord Grade and Lady Randerson. I am delighted that they are taking part. I beg to move.