Legal advice: Live music events

YOU MAY recall a previous edition of this column in which we covered the December 2006 report by the Department of Culture, Media and Sport (DCMS) on the impact of the Licensing Act 2003 on smaller venues such as pubs applying for authorisation to stage live music events.

That report sought to put a positive gloss on things, focusing on the fact that the majority of venues which provided live music under the 'two-in-a-bar' exemption under the old legislation had gone through the variation process. This meant they remained authorised by their premises licence to provide live music.

But it seems the government may now have been forced to accept that the Act has indeed caused some difficulties for small establishments seeking to run live music events.

This change of tack comes in the form of the government's response, last month, to the publication of the Live Music Forum's (LMF) July 2007 report.

Room for improvement

The LMF was set up by the DCMS in 2004 with the remit of monitoring and evaluating the impact of the Act on live music. While its report was broadly positive and concluded that overall the Act has had a neutral effect, it nevertheless made 28 recommendations for improvement, 13 of which addressed provisions of the Act itself.

Many of the LMF's proposals aim at making it easier for pubs and other small venues to stage low-key, particularly acoustic, events. Larger venues, the report found, are already benefiting from the new legislation through the abolition of the public entertainment licence and its annual renewal fee.

The report concluded that most licensing authorities have acted in a professional and appropriate manner in dealing with licensing applications for live music.

However, in a small number of cases there have been "repeated patterns of heavy-handed, negative decision-making which are contrary to both the letter of the law and the spirit of the Section 182 guidance." How we would all dearly love to know which licensing authorities are being referred to - the report concludes they should be "robustly censured"!

In its response the government takes up some of the LMF's suggestions - though not that robust censuring of recalcitrant licensing authorities.

Pursuing a grievance

The response makes clear the government's view that the existing paths for pursuing a grievance against your licensing authority (appeal, judicial review, Ombudsman, your local councillor…) should provide redress enough. The DCMS also refers to its new Regulatory Enforcement and Sanctions Bill, on its way through Parliament at the moment, which aims to improve consistency between the decisions of local authorities, and between them and central government.

The LMF's recommendation that a clearer line be drawn between conditions under the Act and the scope of the Regulatory Reform Order in determining premises' capacities has already been implemented under the review of the guidance undertaken last summer. Licensing authorities therefore should not purport to impose capacity limits on fire safety grounds - although limits could be imposed to prevent disorder on the premises or to promote public safety if absolutely necessary.

Another LMF recommendation was that the government should stress that it is open to local residents to make representations in support of applications to stage live music events through the licensing process. This the government has also done (in relation to applications generally) through the review of the guidance.

It is questionable, however, whether many of your neighbours are likely to have read this document, so if you are applying to be able to put on acoustic nights you may wish to spread the word yourselves that your regulars can write letters in support.

Incidental music

The government has also accepted in principle the LMF's recommendation that a definition of 'incidental music' be introduced into the legislation. LMF favours a definition that included any event attracting fewer than 100 people, or an event not constituting the primary reason for attending a venue.

The Forum would also like to see any unamplified live music being classed as unlicensable. Perhaps unsurprisingly, the government has shied away from any such 'blanket exemption', as it calls it, but has promised to explore options for exempting 'low-risk' live music performances.

It will be interesting to see what results from this exercise. In this context the government refers to the fact that it intends to consult this year on an exemption for so-called de minimis (or negligible) activities. That will be one consultation paper to keep an eye on!

The LMF's other main bugbear with the Act was its call for a simplified, fast-track licensing process to cover applications for live music by smaller premises. The government has dealt with this proposal with relative ease. As we reported in a previous edition of The Publican, it is currently consulting on a fast-track procedure for minor variations. It has now stated its intention that it is "very much" its intention that the new procedure should be capable of covering applications to vary a licence to allow for live music.

The government has said there may be scope for the fast-track to be used to vary off the licence what it calls "unnecessary conditions, such as those that restrict the number of musicians who can perform". Of course, there are likely to be some who respond to the consultation on the new fast-track (residents' groups in particular) who will say that the more musicians there are, the more of a nuisance they are likely to be, and that therefore such applications should not be fast-tracked.

Overall, the LMF report sadly reached the conclusion that the Act has failed in its stated ambition of bringing about an increase in live music. It remains to be seen whether the government is really prepared to address this failure by making it easier for local pubs to do what they used to do best - providing small-scale, diverse musical entertainment by local talent. n