The sound of silence - the threat to live music continues

Live music is increasingly under threat from legislation

by Richard Williams of thePublican.com's legal team of experts from solicitors Joelson Wilson.​

I'm a big fan of live music and it often amazes me to hear artists or bands in pubs playing infinitely better music than the formula pop played on TV or on the radio.

While good live music can be heard around the country, I believe that our existing laws have discouraged its frequency.

As the law currently stands, the relaxation contained in section 182 of the Licensing Act 1964 authorises the so-called "two-in-a-bar" rule. This allows pubs without entertainment licences to permit live bands of no more than two members to play without an entertainment licence. Judicial clarification has further restricted this exemption, so that playing along to a backing track (for example) or allowing more than two performers to play during the course of an evening would require a public entertainment licence (PEL) to be in force. In my experience, pubs that do not wish to go to the expense of obtaining a PEL, which often requires them to impose occupancy figures and upgrade fire and lighting systems, often cancel all live entertainment. It is unfortunate that this has been allowed to occur, supposedly with safety in mind, but often as a revenue generating exercise on the part of local authorities.

Despite the current restriction, there is at least an exemption within the current legislation. However, the lack of any exemption within the proposed Licensing Bill has been causing the Musicians' Union considerable concern. With the backing of Equity, the Arts Council and the musician Billy Bragg (among others), the Musicians' Union called upon the government when reviewing the law, to automatically permit small-scale live performances in pubs and restaurants.

This would mirror similar exemptions in Scotland, Ireland and elsewhere in Europe.

However, the Musicians' Union has indicated that the proposed bill will make all unlicensed live music illegal and it estimates that 110,000 on-licensed premises in England and Wales will lose their right to allow one or two musicians to perform as a result.

Schedule one of the proposed bill has created the concern because it is drafted so widely. Many more forms of entertainment will require premises to be licensed than under the existing legislation. As you may be aware, under the proposed legislation, a premises licence will be required for:

• the sale of alcohol
• the supply of alcohol by clubs
• the provision of regulated entertainment, ie entertainment provided solely or partly for members of the public, or exclusively to club members and their guests for which a charge is made where the entertainment takes place in the presence of an audience (subject to a limited number of exceptions).
• the provision of late-night refreshment (ie the supply of hot food or hot drink to the public, for consumption on or off the premises, between 11pm and 5am, subject to a limited number of exceptions).

As currently drafted, the wide definition of entertainment would include all live music played in a pub and a premises licence authorising the provision of entertainment would be required.

The provision of live music without this entertainment being specified as a permitted activity under the premises licence would be an offence. The situation during the transitional period will be different for premises that currently have a PEL and those that do not.

Premises with a PEL will be able to automatically apply for, and be granted, a premises licence permitting the activities that currently take place on their premises. In theory, these premises should not be adversely affected by the new arrangements. However, pubs that currently have no PEL will only be entitled to automatically obtain a premises licence permitting the sale of alcohol and not the provision of entertainment. It is these premises, which currently offer live entertainment under the two-in-a-bar rule, which would lose out. If they wished to continue offering live entertainment, they would have to apply to vary their permitted activities at the transitional stage. The Musicians' Union argues that due to the time and cost of doing so, many pubs will simply apply for permission to sell alcohol, effectively restricting any more performances by small-scale live bands.

Of course, premises could apply for variation of their activities to permit entertainment, but I certainly envisage that this will be a costly process and in many cases may be delayed by objections. If you consider how long it takes many local authorities to deal with an application for variation of a PEL, it will be interesting to see how long an application to include entertainment as a permitted activity will take to be processed under the overloaded new system.

The proposals do not comply with the stated intention of the government that premises should be no worse off under the new system than under the old one. For example, existing opening hours will be retained when a new premises licence is issued, so why shouldn't the exemption on two performers be carried over to a new premises licence? This would mean that existing premises without PELs would not have to apply for a variation of their permitted activities, at the same time as applying for a new premises licence.

The Musicians' Union has drawn a considerable amount of support from musical groups, performers and MPs and will also be making representations to the Joint Committee on Human Rights stating that the proposed bill is incompatible with the European convention on human rights.

You can read further about the issues involved and pledge your support at www.musiciansunion.org.uk.