The Live Music Forum

Hamish Birchall Bulletin


Friday 11th May 2007 - Licensing Act - 18 months on


The licensing article by me below,  published in latest 'Classical Music' magazine, summarises my take on the impact of the Licensing Act on live music.

Some of the material may be familiar, but it also includes quotes from the shadow secretaries of state for culture, a leading licensing lawyer, the Director of Communications at the Royal College of Music, the Chief Executive of the National Operatic and Dramatic Association, and a professional statistician on the Musicians Union research into the impact of the legislation.

My apologies to all those who generously provided quotes that I did not use - this was due to constraints of space.

Unfortunately Classical Music is not published online, but there is information about the publication here:

~ ~ ~

Eighteen months after the controversial new Licensing Act came into force, is it a story of success or a shambles? Hamish Birchall takes some soundings

'Get your act together' Copyright Hamish Birchall 2007

The Licensing Act has been in force for about 18 months - a reasonable time, one would think, in which to evaluate its initial impact on live music. What is the verdict?

‘Encouraging', according to the Department for Culture, Media and Sport (DCMS). Last December it announced the findings of MORI research into the impact of the act on ‘smaller venues' (Licensing Act 2003: The experience of smaller establishments in applying for live music authorisation can be read in full at by following the links through reference library, research, research by dcms, live music in england and wales).

In the report, 60% of 2,101 venues surveyed claimed to have a live music authorisation. In fact most of these venues would have been lawfully entitled to put on some live music under the old regime, whether using the two-musician exemption, or because the venue didn't need an entertainment licence. The downside, not mentioned in the DCMS press release, was that 40% had lost any automatic entitlement to live music. If they wanted it in future, they would have to apply for a Temporary Event Notice (TEN), costing £21, up to a maximum of 12 per year per venue.

In March this year, the Musicians' Union published the findings of its 2006 State of the Nation survey, which included a section about the impact of licensing. It reported that 643 respondents, about 30% of their sample of 2,085, felt that the Licensing Act had been bad for live music, and about half of these claimed it had had negative effect on their work.

Although headlined ‘Survey Success', the research methodology and interpretation have attracted strong criticism. Problems include the self-selecting sample; the low sample size, less than 7% of the 31,000 membership; the apparent lack of adjustment for the over-representation of classical performers (30% in the survey sample, but about 12% of the membership); and the very small sample sizes available for the follow-up work necessary to establish a link, if any, between a rise or fall in gig venues and the new licensing regime.

Alison Macfarlane, a professional statistician based at City University, London, also a folk musician, commented: ‘Given its low response, lack of investigation of response bias and poor question design, this survey is totally unreliable as a source of information on the state of music in general or on the impact of the Licensing Act in particular. If this has been funded out of members subscriptions, we should be asking for a refund.'

Despite these serious concerns, licensing minister Shaun Woodward has already used the research to buttress the government's licensing policy. In response to a question about the impact of the legislation on live music in the House of Commons on 5 March, he said: ‘Current evidence is anecdotal, but it none the less suggests a broadly neutral impact.'

Only the MU survey provided ‘anecdotal evidence'. The MORI survey of 2006 did not measure the health of live music, focusing instead on live music authorisations and applicants' experience of licensing.

The minister also said of the new regime: ‘The additional bonus is that local residents, who were seriously affected in the past by live music, now have a say, which is important.' But the Chartered Institute of Environmental Health, the source for most government noise complaint data, has since confirmed that it is not aware of any statistics or research that distinguish between complaints about recorded and live music.

While some already established music venues save money as a result of the new centrally-set licence fees, during 2006 a small number of verifiable reports emerged of bars and restaurants cancelling or postponing live jazz that had been provided under the old two-performer exemption.

In April 2006 the Better Regulation Commission published a report into the act's implementation. It strongly criticised the hidden costs and bureaucracy. This often included preparation of scale plans and advertisement in the local press – both usually necessary where a venue made an application for live music. It also criticised uncertainty over the 'incidental music' exemption, which had already led to wide disparities of interpretation by local authorities.

The City of London Corporation, for example, early in 2006 allowed Barts Hospital to host publicly advertised performances on wards by well-known performers under the exemption. By contrast, the Royal Borough of Kensington and Chelsea treated similar performances at the Chelsea and Westminster Hospital as licensable. Indeed, the hospital for the first time had to pay a £635 licence application fee, plus annual fees of £350, plus the costs of advertising the application in the local press.

The new regime has also caused problems for amateur theatre and opera. Mark Pemberton, chief executive of the National Operatic and Dramatic Association,says: ‘The Licensing Act has proved disastrous for those amateur theatre groups who perform in village, school or community halls and rely on Temporary Event Notices. Because TENs are restricted to 96 hours, these groups have had to reduce their performance run from five or six evenings to just four evenings, reducing both their box office income and employment opportunities for professional musicians.

‘Other groups have found that while the hall will have an entertainment licence, it will have chosen not to have an alcohol licence to save on costs. This has led to the absurd situation that the amateur theatre group can perform on five or six evenings, but only sell interval drinks on four of them.'

Buskers have been caught up in licensing, despite previous DCMS assurances that busking would not be licensable. Manchester City Council, Test Valley Borough Council, and West Dorset District Council have all recently made clear their view that busking is licensable under the new act and that they will not change their position unless and until the government changes the law.

Unsurprisingly, the legislation is widely seen as confusing and harmful. Sue Sturrock, director of communications at the Royal College of Music says: ‘The confusion caused by this licensing act is further evidence of the government's inability to think and act coherently across the patch. For example, it recognises the benefits of participation in music for young children, while doing little to encourage it in a systematic, sustained way.

‘Naturally, those of us involved in training musicians are concerned about this licensing act, as we are about any proposal that reduces opportunities for live performance. This is about far more than protecting musicians' livelihoods. The benefits of live music, both for participants and listeners, are well documented: it's generally a catalyst for good. Live performance can changes lives. The government should acknowledge this, and bring forward legislation that celebrates and builds on that truth, rather than undermining it.'

Leading licensing lawyers agree that the law needs to be changed. Simon Mehigan, a licensing QC and co-editor of Patersons Licensing Acts, says: ‘Many event organisers probably still do not appreciate the full extent of entertainment licensing requirements under the new regime. Many performances which used to be exempt under the old regime are now caught, such as private concerts raising money for charity or good causes. The distinction between licensable public performances and exempt private performances is often unclear.

‘The “incidental music” exemption is open to wide interpretation by local authorities. For many small scale performances entertainment licensing, in a civilised society, should be completely unnecessary, particularly when set against the blanket exemption for big screen entertainment such as satellite broadcasts of football matches in pubs'.

DCMS has proposed draft changes to the statutory licensing guidance that accompanies the act which, if approved, would become law sometime this summer. This does not satisfy Simon Mehigan, however:

‘DCMS has responded with a proposed clarification of what constitutes “incidental music” within the statutory licensing guidance. As currently worded this might help buskers and carol singers to some extent. But as a licensing lawyer I would prefer to see clarification within the act itself to ensure proportionality and consistency in its enforcement by local authorities.

' The government is clearly under pressure. Shadow culture minister Anne Milton MP summarised the Conservative position: ‘The government's new regulations surrounding entertainment are a shambles. They need to admit they've made a mistake and sort the mess out. If we are elected to government one of our priorities will be to re-look at the legislation and try to make sure that live music doesn't suffer from ill-thought-out regulations'

In 2004 the DCMS set up the Live Music Forum, chaired by Feargal Sharkey, ‘to take forward the ministerial commitment to maximise the take-up of reforms in the Licensing Act 2003 relating to the performance of live music, to monitor the impact of the act on live music, and to promote live music performance. It comprises representatives from across the industry and non-commercial sectors, as well as local government and the hospitality industry'.

The Live Music Forum report into the impact of the Licensing Act on live music is expected this June. Commenting ahead of publication, the Liberal Democrat shadow culture, media and sport secretary Don Foster MP said: ‘The music industry's fears about the licensing laws appear to have been justified. Now the government must show they appreciate that music matters by taking the recommendations of the upcoming Live Music Forum report very seriously'.

There is a petition on the Number 10 website calling on the prime minister to recognise that the new regulations have damaged music and dance and to take steps to remedy the situation,

At the time of writing, almost 72,000 have already signed, and it remains open for signature until 11 June. The government would do well to listen. The unequal treatment of live music and big-screen entertainment has now entered popular folklore. Last month a song called Roots by the successful folk duo Show of Hands stormed the download charts, reaching no 1 on HMV's folk download site. The lyrics paint a bleak picture of a future without singing in bars but with the continued exemption for big-screen broadcast entertainment: ‘... pubs where no one ever sings at all / and everyone stares at a great big screen / overpaid soccer stars, prancing teens / Australian soap, American rap / Estuary English, baseball cap...'


Hamish Birchall