The Live Music Forum

Hamish Birchall Bulletin

Monday 6th December 2010 - Is there any incidental music in Camden?

A small restaurant has just won permission from Camden council to provide an unamplified live guitarist or harpist until 10pm:

But wait a moment. Why should provision of such innocuous live music be made a criminal offence unless licensed? Isn't it just the sort of music that qualifies for the Licensing Act's 'incidental music' exemption?

Indeed it is, according to both local and central government guidance:

'The music is incidental if it is NOT the primary purpose for attending the premises i.e. the performer is there whilst the public are engaged in another (non-regulated entertainment) activity and that other activity would still take place even if there was no music playing. The public must be allowed to talk during the performance of incidental music i.e. there should be no expectation to listen or to watch (even if the public spontaneously sing along with the music).'
'Advice for licensing authorities about incidental music', LACORS, September 2009:
(click on the 'incidental music' link in the third paragraph)

The government's own statutory licensing guidance is broadly the same. The exemption should apply if the music is not the main attraction and the volume 'does not predominate over other activities':
('Licensing Guidance issued under Section 182 of the Licensing Act 2003', p31, para 3.22)

So why is Camden apparently ignoring official guidance? Did they explain the incidental music exemption to the licence applicants? There is no mention of the exemption in the press reports.

Perhaps the council is encouraged to over-regulate by Coalition havering over the small gigs exemption. And recent Ministers' replies to Parliamentary Questions on the subject have been somewhat ambiguous.

On 29th November, the evocatively named Baroness Garden of Frognal answered Tim Clement-Jones' question about the rationale for entertainment licensing:

'... what risks to public safety or public amenity arise from the performance of live music in workplaces that are not adequately covered by existing public safety and nuisance legislation, irrespective of licensing.' [HL4100]
The Baroness replied: 'The Government believe that, in the light of specific health and safety and fire and noise legislation to address public safety and public nuisance, it is not always necessary or proportionate to require the additional layer of regulation through the licensing regime. This is part of our current thinking about how best to deliver the coalition commitment to remove red tape from live music and other entertainment. However, before finalising any proposals, it is important to test these assumptions with relevant stakeholders, and that is what we are doing ahead of announcing our preferred solution.' See:

Congratulations to the wiley civil servant who penned that reply. It gives something to both sides. Those against new exemptions can use it to justify their position (e.g. the Act's existing exemptions are adequate); those for reform can take it as a hint that more exemptions are being seriously considered.

But on 30th November, an answer from licensing minister John Penrose suggested that the government is sliding back into jobsworth jargon:

Mike Weatherley (Hove, Conservative): 'To ask the Secretary of State for Culture, Olympics, Media and Sport what plans he has to reduce the (a) regulatory and (b) administrative burden on organisers of live music performances.

Penrose: 'We are currently considering how to deliver the coalition commitment to cut red tape and encourage the performance of more live music, while ensuring that there is appropriate protection for local communities. We will continue to have discussions with representatives from the music industry, the Local Government Association and others so that we can find the best possible solution.' [search on page for 'Weatherley']

That there is adequate public protection from small gigs, irrespective of entertainment licensing, should be obvious. How else could big screen sport be exempt in bars or indeed anywhere else. Consider the riot in Manchester city centre on 14 May 2008 during a big screen broadcast of the UEFA Cup final:

When asked whether they would review the broadcast entertainment exemption in light of the Manchester riot, the government said 'no'. See:


Hamish Birchall