The Live Music Forum

Hamish Birchall Bulletin

Wednesday 6th January 2010 - Flaws in DCMS small gigs exemption proposal

On 31st December 2009, the public consultation on an entertainment licensing exemption for small gigs was announced by DCMS - more than two years since it was first promised by ministers:

The key proposal is to exempt gigs with an audience of up to 100, provided performances are within buildings and do not take place between 11pm and 8am. The exemption may be revoked, however, if there are complaints.

But the DCMS amendment intended to implement this proposal is flawed. The draft reform order, set out on p26 of the 33-page DCMS consultation document (see link below) could not work because it fails to address the licensing of 'entertainment facilities'.

Under the Licensing Act 2003 the provision of entertainment facilities is separately licensable irrespective of any actual performance of live music. This covers, for example, the provision of musical instruments, amplification, or even a stage. Any new exemption has to ensure that such provision is also exempt.

The failure to deal with this will be particularly embarrassing to licensing minister Gerry Sutcliffe. On 22nd October 2009, during Parliamentary licensing debate, he said:

'For facilities to be separately licensable in such situations would be absurd and was not intended under the 2003 Act. As part of the clarification, the consultation will propose a change to the definition of "entertainment facilities" so that the mere provision of musical instruments, such as a pub piano, is not licensable.'

It seems hardly credible that the omission of this vital clarification within the published consultation was merely an oversight by DCMS lawyers and the licensing team, particularly given the long time they have had to come up with a solution.

This is of course not the only problem with the consultation. Its timing is almost guaranteed to ensure that reform cannot happen before the general election which must take place by May.

While press coverage of the consultation missed the entertainment facilities problem, scepticism about the government's handling of this issue was unusually pronounced in Guardian coverage on 4th January:

'... while the new proposal may sound generous, a parliamentary select committee recommended in May 2009 that an exemption be created for any venue with 200 people or less. They also called for a resurrection of the older "two-in-a-bar" law, which allowed any size of venue to host unamplified music by one or two people. Perhaps these ideas will be included in the inevitable tenth, eleventh or thirteenth consultations.'
['Government proposes exemption of small venues from live music licence', Sean Michaels]

Equity, the Musicians Union, and UK Music support an exemption for audiences or venues up to 200 capacity, but have yet to make any public comment about this DCMS consultation. Sutcliffe has suggested that the government would consider expanding the exemption if this was the response of an 'overwhelming majority'.

Links to other press reports:
The Publican:
Music Week:

Link to the DCMS consultation webpage and consultation document downloads:

The closing date for responses is 26 March 2010.


Hamish Birchall