The Live Music Forum


Hamish Birchall Bulletin


Friday 24th April 2009 - Lords to debate Minor Variations

Liberal Democrat peer Tim Clement-Jones has tabled a motion forcing a Lords debate on the government's 'Minor Variations' amendment to the Licensing Act 2003.

Crucially, the motion makes clear that Minor Variations is no substitute for a new small gigs exemption within the Act:

'Lord Clement-Jones to move to resolve that this House regrets the Government?s decision to proceed with the draft Legislative Reform (Minor Variations to Premises Licences and Club Premises Certificates) Order 2009 before section 177 of the Licensing Act 2003 has been amended to provide for an effective exemption of some performances of live music in certain small premises.'

If not for this motion, the Minor Variations amendment might have come into force without a debate by either the Commons or Lords.

The debate should take place by early June, and will bring the case for a new exemption to wide public notice. It will expose again the Act's absurd over-regulation of the most innocuous live music against the light touch for canned entertainment, such as big screen sport in bars.

As reported yesterday, Minor Variations has already been criticised by licensing experts as 'useless' and of little benefit. Ironically, even the Department for Culture, Media and Sport (DCMS) has itself has warned that many applications for live music would not qualify as a minor variation.

Section 177 of the Licensing Act, cited in Lord Clement-Jones' motion, was a last-minute compromise at a late stage during the then Licensing Bill's passage through Parliament in July 2003. The Bill had twice 'ping-ponged' between the Lords and the Commons on the issue of an exemption for small gigs. The government was becoming desperate. The small gigs exemption amendment at that time was sponsored by the Conservatives and backed by Liberal Democrats in the Lords. Unfortunately, the Lib Dems withdrew their support when DCMS offered s177 and an exemption for morris and similar dancing.

But if the Lib Dems came to regret that decision, Section 177 is notoriously difficult to understand. It is not any kind of exemption, merely a 'suspension' of certain live music licence conditions in venues already licensed for live music up to 200 capacity.

Indeed, the provision is so difficult to interpret that in September 2007 the body representing local authority enforcement officers published a clarification by Andrew Cunningham, the civil servant responsible for the legislation at DCMS:

'LACORS has noted the following statement from Andrew Cunningham (Head of Licensing at the DCMS) which may help to illuminate the infamously complicated section 177 of the Licensing Act. Thanks to Barrie Davis of Torbay for posting this on the LACORS Discussion Board.

'Section 177 was an amendment made to the Act which was demanded by the House of Lords before they would approve the Bill. Its intention was to protect certain forms of live music in small premises. But it was born of compromise and, as such, is complex. Section 177 does two things:-

Firstly, it provides that, for premises with a capacity of less than 200 operating under the authority of a premises licence which permits alcohol to be sold for consumption on the premises and the provision of live music, and which are being used primarily for the supply of alcohol for consumption on the premises (ie. it is a pub rather than a restaurant), any licence condition relating to public nuisance and the protection of children from harm is effectively suspended during any period when live music is being provided. Only the conditions relating to crime and disorder and public safety will be enforceable. This exemption applies to both amplified and unamplified live music but is pretty much restricted to pubs. The exemption ceases to operate if following a review of the licence it is amended to say that this exemption does not apply. So one strike and you are out. The same provision applied to club premises certificates in the same way.

Secondly, it provides that premises with a permitted capacity of less that 200 operating under the authority of a premises licence which permits alcohol to be sold for consumption on the premises and the provision of live music (so no restriction as to whether a pub or a restaurant, etc) and is being used for the provision of unamplified live music between the hours of 8am and midnight, no conditions imposed by the licensing authority relating to all four licensing objectives have any effect and are not enforceable. The exemption ceases to operate if, following a review of the licence, it is amended to say that this exemption does not apply. Again, one strike and you are out. The same provision applied to club premises certificates.

We expect only a small number of premises to want to take advantage of these exemptions which would be on limited value to most commercial operations. There is no exemption from actually holding the required licence. The Government considered that such exemptions were not necessary to protect live music, but was obliged to compromise in the House of Lords to secure the passage of the Act.?'
Even this clarification is convoluted, however, and the underlying rationale confusing. Why, for example, are noise conditions suspended for amplified live music potentially long after midnight, but enforced for unamplified music between midnight and 8am?

Amending s177 to create an outright exemption for certain small gigs would go a long way to meet the demands of the Musicians' Union, the former Live Music Forum, and the tens of thousands of musicians and music-lovers participating in this debate over many years. With a little imagination, such an amendment could extend the exemption to other premises, venues such as hospitals or schools that are not usually licensed for live music.

If the public need protecting at all from small gigs, as so often insinuated by the government, there is a panoply 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?


Hamish Birchall