The Live Music Forum

Hamish Birchall Bulletin

Friday 27th November 2009 - Incidental music - people must be allowed to talk

New guidance for licensees, musicians and local authorities on the Licensing Act's 'incidental music' exemption has been published by the Local Government Association:

Despite input from the Musicians Union and the Department for Culture, Media and Sport, the abiding impression is of someone holding a dangerous snake at arms length. The benefits of live music are rarely cited, and where they are, they read as though delivered through gritted teeth:

'We are aware of incidental music examples such as a keyboard player in a restaurant, a jazz guitarist in a cafe and a new group using the local pub as a nursery venue, that have enhanced the cultural activities of an area.'

Worse than this, however, the guidance fails at a fundamental level. Its aim was to clarify the legislation, but it achieves the opposite. Examples given of gigs that would or would not qualify as 'incidental music' reinforce the absurdity of the law, and will undoubtedly cause confusion. Consider the following:

Exempt: a pub promoting a stand-up comedian accompanied by a pianist.
Licensable: a pub promoting a performance by a pianist/singer supported by a stand-up comedian.

Exempt: pub with pianist or other single instrument playing background music.
Licensable: pub promotes a sing-along event with pianist.

Exempt: carol singers outside a shop.
Licensable: shopping centre organises performances of carols in a shopping mall.

What coherent regulatory rationale informs these differences? On what rational grounds should any of the licensable examples deserve criminalisation unless licensed? The potential for noise nuisance, offered as the main reason for regulation, would seem to be the same in both the licensable and exempt entertainments.

Elsewhere in the guidance it suggests that incidental music means 'there should be no expectation to listen or to watch', and that 'the public must be allowed to talk during the performance.'

This ludicrous nonsense was launched with a clutch of cringeworthy quotes, of which by far the saddest must be this from Danny Longstaff, chair of the Musicians Union executive committee:

'This is excellent news. At last we have some real clarity about this area of the licensing act which will be of great benefit to musicians and venues alike.'

Live music campaigner Roger Gall put it more clearly: 'This document may not be good news for the incidental music exemption but it is good ammunition for a new one'.


Hamish Birchall