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Hamish Birchall on the Live Music Act 2012

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Jazz drummer and tireless music campaigner Hamish Birchall was a driving force behind the recent passage of the Live Music Act which frees up smaller venues to provide live music. In our latest guest post, he answers some questions about the campaign and the Act itself, for which many musicians and venues will have cause to be thankful:

Caveat: this is not legal advice.  If you are uncertain about how the Live Music Act may affect you or your venue, you should contact a licensing lawyer.

1. What will be the effect of the Live Music Act for venues once it is implemented on 1st October?
There will be no entertainment licensing requirement for live gigs between 8am and 11pm in pubs, bars, clubs or indeed anywhere that qualifies as a ‘workplace’ for the purposes of health & safety legislation. If the music is amplified, there is an audience limit of 200.  If it is not amplified, there is no audience limit.  The requirement to licence the provision of entertainment facilities will be removed.  Amplified recorded music will be permitted to accompany Morris and similar dancing (at present only a performance of live music is permitted to accompany such dancing).

You can read the Live Music Act 2012 on the government legislation website here:

There are is also a feature on the same page to show Explanatory Notes prepared by the Department for Culture, Media and Sport (DCMS).

2. Can you tell us a bit about the background, both of the campaign and the Act?
There were in fact various campaigns to relax entertainment licensing started by musicians in the early 1990s. For example, Trevor Kay’s ‘Campaign for Live Music’ or CaLM. Clarinettist Dick Laurie took this over when Trevor died in 1993. Then there is Phil Little’s Live Music Forum, started in 1993.

To the best of my knowledge, although the Musicians Union had made representations to the Home Office during the 1980s and early 1990s, it did not mount a campaign as such until they recruited me in 2001 as their Parliamentary adviser and lobbyist on this issue. My own campaigning had begun independently in 1998 when I wrote to Dennis Scard, then General Secretary of the MU.  He seemed sceptical that anyone was very much interested.  However, working with the MU and Equity in 2001-3, and with the backing of the music industry, we did secure some significant amendments to the then Licensing Bill.

Nevertheless, we lost the big one, an exemption for small gigs, even though this was backed by a Conservative/Lib Dem coalition in the Lords.  The Licensing Bill went back and forth between the Lords and Commons (‘ping pong’) four times on this exemption alone.  After the Licensing Bill became an Act, I left the MU’s employ as a lobbyist.  I subsequently became disillusioned with their policy of ‘working with’ the government to implement the Act, and resigned my membership in 2004.  I continued to campaign as as individual, writing articles and exposing examples of the absurd effects of the new regime. In 2006 I was approached by Lord Clement-Jones for a briefing in his then capacity as Shadow Lib Dem culture spokesperson in the Lords.  Thenceforward I was his (unpaid) adviser, drafting most of his Parliamentary Questions and briefings on the subject.

3. When and why did Lord Clement-Jones decide to sponsor the Live Music Bill?
In 2007 the DCMS Live Music Forum, headed by Feargal Sharkey, published its report into the implementation and effect of the Licensing Act on live music.  The impact generally was described as ‘broadly neutral’, but it found that small venues had been badly affected. The Live Music Forum recommended an exemption ‘as a matter of some urgency’ for gigs with audiences of up to 100.  I understand it was at that point that the idea of a private member’s bill was first born in the mind of Tom Kiehl, Parliamentary researcher to Lord Clement-Jones.  DCMS live music statistics, used by the government to claim that live music was thriving, also began to unravel.  Doubt was cast on the methodology of both the MORI survey of 2004 and the British Market Research Board survey of 2007. And in early 2009 the case for reform was reinforced by the Culture Committee’s public inquiry into the Licensing Act.

After taking evidence from stakeholders including the Local Government Association, the police, and performers’ unions, the Committee concluded that the Act had harmed small gigs, and recommended a small venues exemption (Recommendation 18 – up to 200 audience).  But the official government response was to kick this into the long grass, pending an evaluation of an amendment to the Licensing Act known as ‘minor variations’.  This process cost £89 and, theoretically, allowed venues to apply to vary their existing licence to add live music.  But the outcome was uncertain: the application could be vetoed by a licensing officer if he or she believed this might result in noise complaints.  It soon became apparent that few licensees were taking advantage of this new process.

In June 2009, Lord Clement-Jones publicly announced his intention to introduce a private members bill to exempt small gigs entirely, broadly in line with the Culture Committee recommendations. Among other things I recruited leading licensing lawyer Andy Grimsey, generously provided pro bono by his firm Poppleston Allen, to help Lord Clement-Jones, me and Tom Kiehl with drafting the initial Bill. Andy Grimsey and I continued to advise Lord Clement-Jones during the Bill’s passage through Parliament, and help answer questions or objections that were raised as a result.

By the end of 2009 the first version of the Live Music Bill was working its way towards the Commons. Following a demonstration organised in October 2009 by Equity and supported by the MU, the Labour government appeared to drop its previous opposition to an outright exemption for small gigs, and accepted the Bill in principle although they quibbled over the detail. But when the General Election was announced in early 2010, the Bill fell, along with all other private members bills.  Following the General Election Lord Clement-Jones relaunched a new version of the Live Music Bill, taking on board some of the criticisms that had been made, extending it to apply to restaurants for example, not just pubs and bars, and allowing venues larger than 200 capacity to benefit, provided the gig audience was no more than 200.

By March 2011 the coalition government gave the Bill conditional support, subject to the cut-off time being brought back from midnight to 11pm and a few other minor changes.  I well remember the DCMS licensing team introducing themselves to us after the Bill’s  second reading in the Lords, promising to back deregulation one way or another, whether through the Bill, or, if that failed, by some other deregulatory route.  The tide had turned.

4. Is it unusual for a private members bill to become law?
Yes, very unusual.  My understanding is that the Live Music Act is unique.  Of about 170 private members bills launched in the Lords in the past 10 years, only 7 or 8 have become law. Most of those were government bills or given strong government backing from the start.

5. Why do you think the government decided to back the Live Music Bill?
Cutting red tape was a Lib Dem manifesto commitment.  Conservatives Jeremy Hunt and Ed Vaisey had taken a close and supportive interest in the campaign for some time before the 2010 general election.  In any case, it was a Lib-Dem/Conservative alliance that had already worked together for a small gigs exemption during the then Licensing Bill’s passage through Parliament in 2002-3.  The momentum for reform had steadily increased since the Licensing Act first came into force on 25th November 2005, what with the DCMS Live Music Forum report of 2007 and the Culture Committee finding of 2009.

In 2011 the government announced a public consultation for a far more ambitious deregulatory agenda, exempting entertainment events from licensing for audiences of up to 5000. This immediately attracted intense opposition from the Local Government Association, the police and many local councils.  Set against those radical proposals, the Live Music Bill’s measures looked modest. Indeed, by early this year, even the LGA had decided to back it, albeit with some reservations.  The Live Music Bill probably looked to the government like the best means of introducing genuine if relatively modest deregulation.

6. To what extent was the music industry a factor in its success?
Once Feargal Sharkey joined UK Music as its CEO in late 2007, the umbrella lobbying agency for the music industry became consistently outspoken against the Licensing Act’s treatment of live music, and backed a small gigs exemption.  This was a strong influence on the government.  And in terms of influencing Parliamentary procedure, by late 2011 when it became clear that the Live Music Bill actually looked like it was in with a chance, UK Music worked strenously behind the scenes in Parliament to help secure the necessary numbers of sympathetic MPs.

7. What about the Musicians’ Union, Equity and the Incorporated Society of Musicians? What was their input?
Of the three, the Incorporated Society of Musicians seems to me to have been the most consistent public and active voice in support of reform in recent years.  However, it was Equity that instigated the influential demo outside Parliament on 22nd October 2009.  The MU joined in, but its participation was not publicised until at least a week after Equity’s announcement.  On 8th July 2010 an online petition with over 17,000 signatures calling on the government to implement the Culture Committee’s recommended reforms for live music was presented to Number 10.  It was backed by Equity, but not the MU.   Like UK Music, however, I believe that in the closing Parliamentary stages of the Live Music Bill the MU did work hard behind the scenes to help secure MPs for the Commons Committee stage and for the crucial Report/3rd Reading stage on 20th January this year.

8. Who opposed the Bill, and why?
Initially both the police and the Local Government Association strongly opposed an entertainment licence exemption for live music.  Gradually, however, the police changed their view, and accepted that there was little if any evidence that live music was any significant public disorder threat.  The LGA continuted vigorously opposed the Bill when it was first introduced, and had for a long time resisted the notion of an outright exemption for small gigs.  The reasons are quite complex, but essentially they believe, or I should say believed, that it was necessary and proportionate to criminalise the provision of almost all live music subject to a process of local consultation − which is essentially what licensing provides.   This was also the position of some residents  associations.   There may also have been an element of misunderstanding of the extent to which other legislation can satisfactorily address the potential risks of live music.

9. Why did the Local Government Association finally decide to back this reform?
Obviously I cannot speak for them, but I suspect that faced with the more radical deregulatory proposals put out for public consultation by DCMS last year, the LGA may have pragmatically concluded that the Live Music Bill was the lesser of two evils.

10. Do you think there will be ‘an explosion in live music’ as a result of the Live Music Act?
Not at first.  The decline of live music in pubs and bars has been a long, slow process.  Other factors are at play besides licensing.  The public generally no longer expects to hear live music in bars and restaurants: they have to seek it out. The immediate beneficiaries of the Act, in my opinion, will be small charitable gigs.  We are in a serious recession and it is unlikely that live music in pubs and bars will be seen as a potential money-maker, and certainly not for irregular or infrequent live music provision.  Many licensees will also be wary of their local authority reaction if they host live gigs, based on past experience. This is why it is so important for the DCMS to work together with the LGA, the police and live music stakeholders in revising the statutory guidance that accompanies the Licensing Act. By the time of the 1st October implementation date everyone with an interest should be clear about what they can and cannot do under the Live Music Act.

11. What advice would you give to musicians about taking advantage of new gig opportunities once the Act is implemented?
Get out there and hustle a gig − but at the same time be sensitive to local concerns about noise.  When the new Licensing Guidance is published by the Home Office later this year, read the relevant sections. It is written in plain English. Remember the entertainment licensing exemption only runs to 11pm.  If gigs do cause real problems for residents near pubs or bars, the licensing exemption can be overturned at a licence review and conditions imposed.  I believe the MU is planning a leaflet for members on how best to take advantage of the reforms.

All the best,
Hamish Birchall

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