The Live Music Forum

Hamish Birchall Bulletin


Wednesday 17th January - Draft revised 'incidental music' guidance published


DCMS yesterday (Tue 16.01.07) published draft revised Licensing Guidance for public consultation:

The closing date for representations is 11 April 2007. This can be done by post (see link above) or by email to:

The key draft revision for musicians concerns the meaning of 'incidental music' (para 3.21, p30).  The new wording does seem to fulfill the DCMS pledge, announced on 11.12.06 in their Simplification Plan, that the policy intention is to exclude carol singers and buskers.  To that extent the draft revision should be welcomed.

However, in other respects the changes are a nonsense. Quibbling about whether a gig is advertised, whether it is the main reason for attendance, and whether volume 'predominates over other activities', is petty when set against the exemption for big screen broadcast entertainment and the light touch for jukeboxes.

In the transition to the new licensing regime, all bars with recorded sound systems were automatically given an authorisation for the playing of recorded music. Local authorities could not, and cannot impose conditions on the use of those sound systems - unless there are complaints that trigger a review of the licence.

Recorded music is often played at a level that predominates over other activities. If DCMS want to treat live and recorded music equally, as they have suggested in the past, they should make clear that the volume of live music is only relevant if there are complaints. Local authorities have adequate powers under separate legislation to deal with it, and both local authorities and the police can close noisy licensed premises immediately for up to 24 hours.

The rights of residents to a quiet night's sleep and the right of musicians to perform have equal legal status (Articles 8 & 10 respectively of the European Convention: right to respect for private and family life; right to freedom of expression). Elsewhere, the Guidance concedes that 'artistic freedom of expression is a fundamental right' (para 13.64, p103). The important implications for the interpretation of 'incidental' are plainly ignored in the revised 'incidental music' section.

There is no change to the convoluted and misleading section about private gigs (para 3.17, p29). DCMS misleadingly implies that licensing may be triggered only if guests are themselves charged with a view to profit. In fact, the Licensing Act specifically states that a charge may be paid 'by or on behalf ' of such guests. A professional band's fee is a charge, and it is made with a view to profit. Payment on behalf of guests is a common scenario at private functions where the bandleader may also be 'concerned in the organisation or management' of the entertainment. See Licensing Act 2003, Schedule 1, para 1(4)(b):

Note also the Guidance makes clear that the provision of entertainment facilities includes 'musical instruments made available for use by the public to entertain others at licensed premises.' (Para 3.10, p28) In fact this provision can apply almost anywhere, and is not restricted to licensed premises. It is in any case absurd in the light of the big screen broadcast exemption, and the light-touch for jukeboxes. How often does the provision of a musical instrument represent a greater risk to those present or to society generally?

Lastly, although local authorities must 'have regard to' the Guidance, 'The Guidance does not in any way replace the statutory provisions of the 2003 Act or add to its scope and licensing authorities should note that interpretation of the Act is a matter for the courts.' (Para 1.8, p12).  So what the Act itself says is what really counts. There is no sign yet that DCMS will amend it.

Hamish Birchall