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Live Music Bill [HL]

Volume 716: debated on Friday 15 January 2010

Second Reading

Moved By

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 of 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.

My Lords, I thank the noble Lord, Lord Clement-Jones, for his introduction of the Bill. He has comprehensively covered all the aspects of this issue, which is important for tens of thousands of musicians, many of them young, who under current legislation find it increasingly difficult to find venues in which to practise and perform their art. It is also important for owners and managers of restaurants, club, cafes, pubs—anywhere that puts on live music.

I declare one or two interests. I am co-chairman of the All-Party Parliamentary Jazz Appreciation Group; I am a member of the Performance Alliance, a parliamentary group; I am a semi-professional trumpet player of limited ability who occasionally comes out of retirement to perform; I am a founder-director of Jazz FM; I am a patron of a new appeal by the National Youth Jazz Orchestra; I am a member of the Musicians’ Union; and I have played in pubs on many occasions.

The House has heard that Section 177 of the Licensing Act was a last-minute compromise at a very late stage of the passage of the Bill in July 2003. The Bill had ping-ponged between the two Houses on the issue of an exemption for small gigs, which failed when the Liberal Democrats withdrew support when DCMS offered Section 177 and an exemption for Morris dancing.

The Section 177 amendment was intended to protect certain forms of live music in small premises, thereby encouraging musicians and providing venues to play and practise in. The whole process exposed the Act’s absurd overregulation of the most innocuous live music against the light touch for canned entertainment such as big screen sport and recorded music in bars. The noble Lord, Lord Clement-Jones, has explained the exemption known as the “two in a bar” rule, which had been available since 1961 as an exemption from the general requirement to hold a public entertainment licence for live music.

This restrictive legislation had serious implications for musicians who were prevented from performing and learning to play to a live audience. Present regulation prevents musicians from entry-point opportunities into the music industry. Four out of 10 of 2009’s biggest-selling artists were British, and they all started out by playing gigs in pubs.

Section 177 has proved to be a complex, unworkable provision introduced in the late stages of the debate. There was no exemption from holding the required licence, and the Government considered that such exemptions were not necessary to protect live music, but were forced to compromise in this House to secure passage of the Bill. On this side of the House my noble friend Lady Buscombe and I tried to convince the noble Lord, Lord McIntosh, that the Government had got this wrong, and I think we have been shown to be correct. This new Bill, which creates an outright exemption for certain small gigs and extends the exemption to other premises such as hospitals, schools and colleges, goes a long way to meeting the demands of the Musicians’ Union, the former Live Music Forum and the tens of thousands of musicians and music lovers involved with this debate over many years.

On Wednesday, I received a briefing from Greg Taylor of the Local Government Association, informing me that the LGA does not support this Bill. It believes that it would restrict the rights of local people and their directly elected councils, and deny them a voice in the licensing process. There is a concern from licensing officers that small venues hosting music would lead to a surge in noise complaints, but there is no solid evidence to support this. If the public need protection from small gigs, there is a plethora of legislation already in place to address the risks of noise, nuisance, crime, disorder and public safety. How else could big screen sport in bars escape entertainment licensing?

In May 2009, the Culture, Media and Sport Committee considered the Act’s impact on live music and concluded that,

“while the upper and middle end of the live music scene is still flourishing, live music in smaller venues is in fact decreasing”.

It recommended that,

“the Government should exempt venues with a capacity of 200 persons or fewer from the need to obtain a licence for the performance of live music. We further recommend the reintroduction of the “two-in-a-bar” exemption enabling venues of any size to put on a performance of non-amplified music by one or two musicians without the need for a licence. We believe that these two exemptions would encourage the performance of live music without impacting negatively on any of the four licensing objectives under the Act”.

The Government rejected both recommendations, arguing that there is no direct correlation between audience size or performer numbers and the potential for noise nuisance or disorder.

The present rules are draconian. Pubs need to apply for a live music authorisation in addition to their premises licence, at a cost of £89. Alternatively, a one-off temporary event notice costs £21, but councils enforce an annual limit of 12 notices a year. The maximum penalty for an unlicensed provision is a £20,000 fine and six months in prison. The introduction of a minor variations procedure in June 2009 was useless. It allowed small changes to licences to be fast- tracked for the £89 fee, on the condition that they advertise proposed changes to local residents. This proved time-consuming and difficult, and has not yet been used. This Bill’s exemptions are more workable; they simplify the law by getting rid of excess rather than adding to it.

On 22 October, the Licensing Minister, Gerry Sutcliffe, said that the,

“Government wants to act very quickly”,

to introduce a new small gigs exemption. He also suggested that his 100-capacity exemption proposal was open to negotiation. That statement coincided with an Equity and Musicians’ Union demonstration outside Parliament. During the later Westminster Hall debate, John Whittingdale and other MPs were damning in their criticism of the Act’s live music provisions. Mr Sutcliffe struck a conciliatory note, saying:

“I do not support local government being aggressive by putting preventions in place to stop live music. We must strike the right balance”.—[Official Report, Commons, 22/10/09; col. 343WH.]

He had also said:

“Significantly, today’s statistics show that there has been an 11 per cent. increase in premises licences with live music authorisation between 2007 and 2009”.—[Official Report, Commons, 22/10/09; col. 341WH.]

Sadly, those statistics are almost meaningless. They do not measure actual live music provision, and a paper permission for live music does not necessarily mean that having live music is legal. Unless local authority licence conditions are implemented by the licensee, such as fitting a noise limiter or providing door supervisors, putting on a live gig would remain a potential criminal offence.

On 31 December 2009, the public consultation on an entertainment licensing exemption for small gigs was announced by DCMS, more than two years after it was first promised. The key proposal is to exempt gigs with an audience of up to 100, provided that performances are within buildings and do not take place between 11 pm and 8 am. The exemption may be revoked if there are complaints. It is likely that the DCMS amendment to implement this proposal is flawed as it fails to address the licensing of “entertainment facilities”. Under the 2003 Act, the provision of entertainment facilities is separately licensable, irrespective of any actual performance of live music. This covers, for example, the provision of musical instruments, amplification or even a stage. Any new exemption has to ensure that such provision is also exempt.

During the licensing debate in the other place, Gerry Sutcliffe said:

“For facilities to be separately licensable in such situations would be absurd and was not intended under the 2003 Act. As part of the clarification, the consultation will propose a change to the definition of ‘entertainment facilities’ so that the mere provision of musical instruments, such as a pub piano, is not licensable”.—[Official Report, Commons, 22/10/09; col. 341WH.]

It is hard to believe that the omission of this vital clarification within the published consultation was an oversight by DCMS lawyers and the licensing team, particularly given the long time they have had to come up with a solution.

Equity, the Musicians’ Union and UK Live Music support an exemption for audiences or venues up to a capacity of 200. The Minister has suggested that the Government would consider expanding the exemption if that was the response of an overwhelming majority. On this side of the House, we believe that these exemptions will restore the original objectives of the Act. The exemptions will simplify the licensing process and offer a valuable concession to pubs, charitable fundraising and creative industries. The Bill's amendments consider that an adequate risk assessment and the removal of these bureaucratic features will not threaten the achievement of the 2003 Act's objective to prevent public nuisance, crime and disorder. Removal of pre-emptive legislation still allows local people the right to object to noise and disorder via local councils. I welcome the Bill.

My Lords, I speak yet again on this issue. I welcome the Private Member’s Bill of my noble friend Lord Clement-Jones. I first declare an interest. I am chairman of Best Bar None, which gives awards to pubs that meet the highest standards. I also own a pub: the Redesdale Arms on the A68—on the Jedburgh Road. It is a particularly fine pub that does food and wine and is well worth a visit; it has rooms as well, if anybody wants to stay there. I thought I had better ensure that everybody understood my interest.

My declared interest in Best Bar None is because I come across a very large number of publicans. The real issue for them is the enormous amount of red tape that they face. Of course, the Licensing Act has increased that regulation. I have talked to a number of people who have put on live music in the past but do not believe that it is worth the regulation and the hassle that you have to put up with from the council to meet them.

That is a real issue. It is an issue of human rights. It is easy to say that this is about music, but it is actually about a Government who have become extremely repressive in how they put forward their views. They might turn around and say, “That’s rubbish”, but let us look at the issue. During the passage of the Licensing Act 2003, we had four government defeats in an attempt to stop the Government limiting unamplified music, because it is a human right. The noble Lord, Lord Colwyn, said that I, leading that charge, “gave up”. I do not think another Bill has had four government defeats. At that point I had used every possible method. I was rather surprised when, on the last day of the attempted push, the Musicians’ Union wrote to me saying “We must start a great fight”. They seemed rather slow on that.

Going further back, I say that the Government are incredibly repressive because, in the build-up to the 2003 Act, we were assured that it would cut back on bureaucracy and red tape and increase the number of musicians playing in pubs. Indeed, one aspect was to remove the “two in a bar” rule that everybody then saw as repressive. This Bill is about reintroducing that rule. We have moved so far back from the position that we were in before the Act that we are now actually trying to do something that we were trying to lobby against at the time.

I should take the noble Lord, Lord Colwyn, back to 2002, when he and I were in the Red Lion, where we had a large number of the press turning up. The purpose of that was to have two people playing music, and then for the noble Lord, Lord Colwyn, to blow his own trumpet and be thrown out because he would have been a third musician. Unfortunately, we did not get the press coverage that we thought we would receive, because the verdict on the noble Lord, Lord Archer of Weston-Super-Mare, happened, and the press seemed to be extremely interested in that event. However, the real issue is that there was interest in that. We have now come to a position where we are actually trying to reintroduce something that we were campaigning against.

I do not believe that the Government will do anything on this issue this side of the election. I am absolutely certain that the Minister will stand up and say that live music is in a wonderful position and that, anyway, it is the residents that we have to be concerned about. There is a large amount of legislation to deal with this and this was not an issue that we did not discuss in great detail during the passage of the Licensing Act. It was discussed at great length. We asked for evidence that could show that the legislation would increase the amount of live music performed, and that was categorically given. We suggested that that might not be the case and that the bureaucracy might hinder the playing of live music. That argument was rejected. We were assured that licensing was needed because there would be great danger if large numbers of people turned up out of the blue to listen to music—even though that was not the case before the Licensing Act and probably would be afterwards. Our voice was not as strong as those who wanted to put large-screen televisions showing sport in pubs, which has—I should like to know the figures—caused problems there; live music has not.

This has been a rather unfortunate situation for the Government. A lot of the issues that they said would never take place have done so. They include the example given by my noble friend of a young lady singing from her album, without amplification, in a branch of HMV because she was asked to. The shop was taken to court for that. We were expressly told that common sense would prevail, but there have been a hundred examples where common sense has not allowed such events to take place.

I very much hope that the Government take this seriously and that the Conservatives, if they win the next election, move quickly to change this position. While we quite understand the rights of local residents not to be disturbed—I agree that that is an important consideration—and that law and order is a prime consideration, enforcing this legislation without evidence, at the expense of some of the cultural lifeblood of our country, seems to be utterly ridiculous.

My Lords, during the debate in June last year on variations to premises’ licences the noble Lord, Lord Clement-Jones, said that he would introduce a Bill to provide conditional exemption for live music in small venues. What a fine example we have of a politician keeping his promise. Before going further, I declare some interests. I am a borough councillor. I am also the owner of an ancient monument, president of my local cricket club and chairman of my local football club. They have to apply for licences under the 2003 Act.

This is a Bill which we on these Benches support. We give that support in the hope that this Bill may go some way towards achieving the original objective of the 2003 Act, which was, broadly speaking, to promote the development of live music, dancing, and theatre. That never happened—rather the reverse; there has been a decline. Her Majesty's Government recognised this and introduced the minor variations procedure in June 2009; but I am afraid that that has had no discernable beneficial effect.

The arguments in favour of today’s Bill have been ably and eloquently expressed by my noble—and, if I may say so, over-modest—friend Lord Colwyn, the noble Lord, Lord Redesdale, and of course the noble Lord, Lord Clement-Jones. Rather than waste your Lordships’ time by repeating the same very good arguments that have been put forward, I shall say only that I hope that Her Majesty’s Government, knowing the problems with putting on small live music events, which are, after all, a significant platform for artists at the beginning of their careers, will be large-minded enough to recognise that their solution has not worked and that they will therefore support the Bill to make it simpler and easier to have small live music events.

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 the 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, 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.

My Lords, I thank all noble Lords who have taken part in today's debate. Although the noble Lord, Lord Colwyn, did not blow his trumpet today, he was extremely eloquent and his support is, as ever, extremely welcome. He explained the importance of live music and its impact on the health of our creative industries extremely well. We recognise his consistent support over the years for live music. I thought that he comprehensively demolished the LGA's briefing along the way. He cited something else that should have given us heart but which, in the light of the Minister’s reply, perhaps did not. I cited a Written Answer to me from the noble Lord, Lord Davies; he cited Mr Sutcliffe as being prepared to compromise. I must admit that if that is compromise, I am probably a Dutchman, from what I heard the Minister say.

The noble Lord, Lord Redesdale, who himself has been an extraordinarily able supporter of live music, was very eloquent—particularly about its impact on the pub trade and about the history, how we were assured about the Act, especially Section 177, which, it turns out, is not a partial exemption at all but only a potential way to save costs under a very complex set of conditions that have never been invoked. We were sold a pup at the time.

The noble Lord, Lord Redesdale, made it absolutely clear that the proponents and supporters of the Bill do not disregard the human rights of residents; in fact we are extremely mindful of them. Indeed, local residents would keep all their rights of review of licences. If premises are seeking to shelter under an exemption, if there is noise or nuisance, local residents are entitled under my Bill to call for a review. I am sorry that the Minister and the LGA may well be in collusion to try to paint it as a way of steamrollering local residents, but that is absolutely not the case.

I have no doubt that we will debate at length the details of the LRO consultation and whether it deals adequately with entertainment facilities. As I read it, the issue of putting a piano in a public place, which occurred last summer, is not cured by the Government's proposals. We shall see.

I particularly value the contribution of the noble Lord, Lord Howard of Rising. Brief though it may have been, it was extremely welcome. I welcome the support of the Opposition Front Bench; we appreciate it.

If the Minister was being neutral, I would hate to see him in hostile form. I thought that he made an extremely poor fist of neutrality, especially when he has an LRO out that accepts the case that we make in principle. He may not accept the details, but it was a pretty grudging way to accept that the purposes of the Bill are entirely laudable and grounded in the facts. If one burrows into Hansard, one will find that, although it is very grudging, he agrees entirely with what I said about the figures in the surveys and so on.

The question is: does the Minister’s LRO do more for live music than our Bill? He tried to extol the virtues of the temporary event notice. He tried to claim that schools and hospitals were in absolutely fine shape. I am very grateful to my friends in the Box, but the fact is that there is no case law. Events that are open to friends count as public if they are open to anyone. If I go to a school performance and I bring along my next-door neighbour, it becomes a public event. That is a complete anomaly. The Government are not correct in what they said about that.

We can argue the toss about 100 or 200; I am perfectly flexible. There is no direct correlation between numbers of musicians and noise. We believe that 200 is a proportionate capacity that would serve a need. We do not believe that local residents would be put at risk. We believe that there is an element in local authorities that wants to control everything under its aegis. We do not think that that is healthy for the growth and flourishing of live music.

The Government have already agreed that the minor variations process is not adequate; they would not be bringing forward this LRO if they thought that it was. Yet the Minister devoted several minutes to extolling the virtues of the minor variations process. I recognise that the Delegated Powers Committee inserted that extra wording, but the Government could have resisted. It is not plausible for them to claim that the minor variations procedure is not very good because the Delegated Powers Committee made it so. The fact is that the minor variations procedure is bureaucratic for precisely that reason, whatever the Delegated Powers Committee situation. For all the issuing of leaflets—I am sure that it is highly laudable for there to be lots of leaflets about temporary event notices, incidental music and minor variations—they will not cure a poor process.

I hope that the Government recognise that we are all working towards a better process for the exemption of small live music events. Nobody is saying that the Licensing Act has killed live music—that statement would be disproportionate—but we are saying that live music in small venues has been affected. There is no question of that. I believe that, despite the Minister’s comments, the Government now recognise that and that they are at least trying to do something about it.

The sale of alcohol in schools is deliberately not covered by the Bill. We recognise that that would be a step too far. It could turn schools and hospitals into venues if we suddenly started allowing the sale of alcohol.

There are flaws in the statistical evidence. I believe that there is currently an inquiry within the DCMS about the statistical basis on which it has been working. The Government have already admitted that they do not know how many premises among those in the 11 per cent increase between 2007 and 2009 that the Minister mentioned would not have required a licence under the old regime, including schools, hospitals, private charity functions and so on. The Government may quote some of these statistics, but the statistics are not very robust.

As his final commendation for the LRO, the Minister mentioned that he could carry it over whereas I could not carry over my Private Member’s Bill. I am very happy to make another Second Reading speech after the general election, and I hope that whoever is in power will be more sympathetic to my Bill than the current government Front Bench. As time goes on, it will become clearer and clearer in certain areas that this is an issue, particularly because of the interest of publicans, and politicians, who often ply their trade in pubs during general elections, will realise that this is an electoral issue. This is something that local people want and, ultimately, they will not be denied.

I have not properly acknowledged UK Music in this debate. Mr Feargal Sharkey has been a tower of strength. There are others, such as the National Campaign for the Arts, which has now given us its support; trade unions; the original Live Music Forum, which is run by Phil Little; and growing numbers of organisations, such as Listen Up and thePublican. This is a growing movement. I believe that it is irresistible and that the Government are not going far enough. The Bill represents that mood much better and more closely than the Government’s legislation. I want it to proceed in the next few months before the general election, and I very much hope that the Government will have second thoughts and adopt it.

Bill read a second time and committed to a Committee of the Whole House.

House adjourned at 2.15 pm.