Feargal Sharkey, chief executive of UK Music, is to meet
the Metropolitan Police this morning, Tuesday 7th April 2009, to discuss
Form 696. Detective Chief Superintendent Richard Martin, commander of
the Clubs & Vice Unit, will put the police case for the controversial
gig risk-assessment form.
But while Form 696 raises genuine concerns about intrusive and potentially
oppressive policing of musicians and venues, it is part of a deeper problem:
the Licensing Act 2003. This point has already been made by Sharkey. In
a BBC report about the Form last December, he called the Act 'deeply flawed',
and asked why the government had not yet intervened to fix it:
http://www.bbc.co.uk:80/6music/news/20081203_form696.shtml
Well, now the government is intervening, if not specifically in relation
to Form 696. But their solution, for live music at least, looks like a
fix in more ways than one.
'Minor variations' is a recently revised, government sponsored amendment
to the Licensing Act currently being considered by Parliament under what
is known as the super-affirmative procedure:
http://www.opsi.gov.uk/si/si2009/draft/ukdsi_9780111477496_en_1
As originally worded, the amendment was unlikely to benefit live music.
In evidence to the Regulatory Reform Committee last year, the Department
for Culture, Media and Sport (DCMS) itself warned that:
'In many cases the extension of music and dancing beyond 11pm, or the
addition of the playing of music to a licence, will not fall within the
definition of a minor variation.'
Regulatory Reform Committee 2nd Report, published 29 January 2009, DCMS
response to Question 5 'Additional Exclusions'
http://www.publications.parliament.uk/pa/cm200809/cmselect/cmdereg/209/20912.htm
This problem had already been raised by Musicians Union general secretary
John Smith in his evidence to the Culture Committee inquiry into the Licensing
Act last November:
'We should have a small venues exemption placed before Parliament soon
and we do hope it goes through. The other thing that I do not think we
will get and what we would dearly like is a fast-track variation of the
licence to recognise that live music is not a threat to law and order
in every circumstance and in most circumstances to let it through. I think
we have been told that is a major variation of the licence and will not
be included in minor variations.'
http://www.publications.parliament.uk/pa/cm200708/cmselect/cmcumeds/uc1093-iii/uc109302.htm
But the revised minor variations amendment appears to allow for the possibility
of adding live music to an existing licence, and this raises questions
about the government's commitment to further exemptions for live music,
at least in pub and bars. Unsurprisingly, the amendment has the strong
backing of the Local Government Association (LGA), which represents councils
in England and Wales.
The idea is that pubs and bars should be able to change the terms of their
licence cheaply and quickly. Under the current rules, a bar wanting authorisation
for live music would have to make a full-on licence application costing
hundreds of pounds, excluding the cost of public advertisement for 28
days in the local press, and possible legal representation if local objections
require a public hearing.
Minor variations cuts the cost to a one-off £89 application fee,
and the only notice required is a white A4 page posted outside the venue
for 10 days. Local authorities would not be able to impose conditions:
all they can do is approve or reject the application within 15 days. Unsuccessful
applicants are refunded their £89.
Of course, this not an exemption for performances of live music, small-scale
or otherwise. Provision of even one unamplified performer could still
result in a criminal prosecution for licensees of premises that are not
licensed for live gigs. If the local authority considers that a live music
application under this new process could potentially lead to noise complaints
they will refuse it. And these are the reasons that councils back the
amendment.
The LGA has confirmed that it opposes further exemptions for live music,
and it has clout within government and Parliament because it is seen as
the voice of local democracy. According to reliable sources, the LGA is
apparently considering 'a promotional implementation pack' for councils,
to be launched once the minor variations process comes into force, selling
the 'economic and cultural benefits of live music'. If true, this proposal
is reminiscent of the discredited PR used by DCMS to promote the so-called
'benefits' of the Act for live music back in 2004, before the Act came
into force in November 2005.
Three months ago, the LGA promised to provide me with evidence for their
opposition to exemptions in the form of examples of gigs where licensing
was the best or only way to regulate. Despite several reminders they have
failed to appear.
The real reason that local authorities oppose exemptions even for small
gigs is that they fear the cost implications if they have to enforce noise
nuisance legislation. Pre-emptive licensing control is preferable, in
their view, despite there being absolutely no evidence that live music
is a serious or widespread noise problem. Apparently they do not consider
the possible cultural damage of this sacrifice of free expression for
administrative convenience, nor do they appreciate how much in the public
mind they begin to look like a coalition of gauleiters.
If you think that is an exaggeration, consider the recent postponement
of an unlicensed school concert scheduled for Wednesday 18th March, enforced
by Daventry District Council. This was preceded by a visit from the council
licensing officer and the police.
Danetre School headteacher David Howell said: 'The first I knew of the
problem is when a licensing officer and a policeman, without making an
appointment, turned up on Monday at the school and spoke to one of the
members of staff and said we could not do the show.' Quote from online
Daventry Today:
http://www.daventrytoday.co.uk:80/news/They-won39t-rock-you.5094804.jp
Worryingly, draft DCMS guidance that accompanies the new minor variations
amendment includes a very weak statement in support of live music applications:
'... the addition of live or recorded music to a licence may impact on
the public nuisance objective, but this will depend on many factors. Licensing
authorities will need to consider factors such as proximity to residential
areas and any noise reduction conditions volunteered by the applicant.
It is very much the government's intention that applications to vary a
licence for live music should benefit from the minor variations process
unless there is likely to be an adverse impact on the licensing objectives.'
DCMS Draft Statutory Guidance, Minor variations process, para 8.48
http://www.opsi.gov.uk/si/si2009/draft/em/ukdsiem_9780111477496_en.pdf
Could it be that, despite government promises of a public consultation
this Spring on further exemptions for live music, faced with LGA opposition,
ministers have little enthusiasm for such exemptions in pubs and bars?
Licensing minister Gerry Sutcliffe is to meet the LGA at the end of this
month. The Musicians Union is also on the LGA invitation list.
Following those meetings we may learn whether or not the government can
rise above the petty bureaucracy of council officials, and whether the
Musicians Union can rise to the challenge as the champion of live music.
ENDS
Hamish Birchall
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