Live Music Forum report - the government's reponse

Back in July the Live Music Forum (LMF) reported on how the licensing system should be improved to allow music to live, strive and survive in England and Wales. Five months later the government have responded. You were expecting maybe the cut and thrust of lively debate? Please, that's not the DCMS way.

So what have they said?

Well, they're going to "explore options for allowing certain low risk live music performances to be exempt from licensing requirements" with a consultation in the new year. The LMF's suggestion for defining 'incidental music' was ignored (or 'accepted in spirit') but that's fair enough because it wasn't that great.

The minor variations consultation is invoked a few times in the name of simplifying the application process and they say specifically that "it is very much our intention that applications to vary a licence for live music should be able to benefit from the new proposals".

There's a laugh out loud moment when they address the problem of over zealous or inconsistent Licensing Authority decisions. Get this - "There are several avenues through which applicants can take up grievances, whether it be through the formal appeals process, Judicial Review, Local authority ombudsman or simply through raising issues with their local councillor". Bearing in mind the problems highlighted were tiny groups of people not being able to sing folk songs above a pub due to the increased expense, whichever clown wrote that needs to take a deep breath and screw their head on the right way. Formal appeals process? Judicial review?! Do you know how much time and expense is involved in these? Good grief.

The marquee pledge is a £500,000 scheme to set up some community rehearsal spaces in the areas that need them most. Presumably that wouldn't include London where they could just lay off pirate radio stations for a while and achieve a similar thing at zero cost. Hmm, many a true word spoken in jest.

The rest of the response - working with the Mayor of London to maintain medium-sized venues in London and re-establishing the NUS live music network are applaudable but have nothing to do with licensing, which is what I'm interested in.

In fact, from a licensing point of view this reponse promises nothing new. Either steps have already been taken in the last re-write of the s.182 Guidance and for the rest there's a consultation on the way that will solve all problems. I'm less than convinced that everything is, or will soon be, in a satisfactory state on the licensing side of things. Stay tuned for a big, fat 'I told you so' in 2008.

Oh, and if you want to read the response in full here are some links. First to the press release and also to the PDF download page. Happy reading.

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Committee debates s.182 Guidance

And so it came to pass in a committee room in the Palace of Westminster that a group of men declared the s.182 Guidance to be a bit rubbish in places but good enough for the time being. Isn't politics at the cutting edge exciting?

Ok, so a little more was said. There was praise for clearing up the concept of 'vicinity' and for stating that councillors are allowed to discuss licensing matters. Also, spelling out that there's no presumption in favour of trading hours being extended was seen as a good thing.

There was some confusion as a result of the minor variations consultation announced yesterday. To be fair I can see how it arose but I don't think it's of sufficient importance to go into here. Suffice to say that there's a query over whether, if you're making changes to your premises' layout of a sort that wouldn't be shown on the plans under the Act's plan requirements, whether a variation application is needed. There is then a further query as to whether this may in fact constitute a 'minor variation' scheme already in operation.

There were three substantial criticisms of the Guidance.

1. Live music. Incidental music is still defined too vaguely to be of any practical use and this is leading Licensing Authorities to err on the side of caution. There were calls for the 2-in-a-bar rule to be reinstated and/or to have an exemption for small venues or unamplified music.

Also, the gov.t's lack of response to the Live Music Forum's report was noted. As was the apparent disapprearance of the British Market Research Bureau's look into live music. Finally, elaboration on Lord Davies' statement in the House of Lords on 15 Oct 2007 that "other proposals that may benefit live music" are being looked into by the DCMS was reguested.

2. The Personal Licence Holders Register. Essentially the question was "where is it?" as the Guidance states that the gov.t aims to set one up according to the Guidance.

3. Drinks promotions. The Guidance seems a little confused in this area and the reason seems to be to do with competition law. The current situation is that LA's can't promote a ban on cut price drinks/happy hours developed at local level, although they can encourage participation with industry-wide voluntary codes, even if neighbouring LA's are not. This was described as a 'farce' which is fair enough.

Gerry Sutcliffe got to stick up for the Guidance and the Act in general a bit, although he spent far too long bandying statistics around. Surely no-one listens to, let alone believes statistics these days, or is it just me? Anyway, his comments can be boiled down thusly:

• A response to the Live Music Forum's report is coming soon. That's soon in "gov.t terms" so don't hold your breath.
• He conceded (just) that "there may be instances in which there is an unintended or disproportionate impact on certain types of venue or activity" which was big of him.
• Research examining the extent and frequency of live music in licensed premises should be available at the end of the year and this will be comparable against baseline figures from 2004.
• They are currently consulting on minor variations
• They are currently consulting on a measure for village and community halls to obtain a licence to cover all activities rather than having to apply for TENs all the time. Correct me if I'm wrong but I thought the only change here is that those places won't have to have a DPS. It's not exactly revolutionary.
• No-one seems to want a Personal Licence Holders Register so for the time being they're not going to bother with one.
  
• A consultation in early 2008 will ask whether de minimis licensing activities (which could include live music in some circumstances) should be exempt from licensing.
  

The last of these is the most interesting of the lot and will make for very interesting reading indeed.

There was a little more said but, unless you relish the site of politicians flinging statistics at each other then I think I've covered the main things here. The full text is available here for the masochists out there.

Finally, on a lighter note (newsreader cliché ahoy) there was a joke which just about merits repeating. Mr Vaizey (Wantage) (Con) picked up on a typo in para 8.11 of the Guidance:

councillors who are not themselves interested parties or representing interesting parties may wish to be kept informed

and went on "I should like to know why there has been a change from “interested” to “interesting” parties. The Minister has left the law wide open to subjective interpretation, as councillors may from now on ignore representations from boring white, middle-aged men in suits and ties, whereas those made by people wearing cargo pants and T-shirts may be taken more seriously."

I bet they were rolling in the aisles.

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LA03 - minor variations consultation cont.

Right, these are my knee-jerk, as-they-occur thoughts on the minor variations consultation, or “Legislative Reform Order, Proposal to Introduce a Simplified Process for Minor Variations to Premises Licences and Club Premises Certificates” as they call it.

Q1. Do you agree that the requirement for licence holders to apply for a variation to make small, low risk changes to their licences represents a burden as defined in section 1 of the Legislative and Regulatory Reform Act 2006?

Yes, without a doubt.

Q2. Do you agree with this broad definition of a ‘minor variation? If not, please explain why and give an alternative.

The definition given is “any change to a premises licence or club premises certificate which will not impact adversely on the promotion of the licensing objectives.”

This is the tricky one. There are 3 options here but option 3 is rubbish and dealt with separately by Q4.

Option 1 - Leave it to licensing authorities to decide whether a variation is ‘minor’ within the broad parameters described above and having regard to general criteria and case studies provided in the Guidance.

Option 2 - Amend the Act to introduce a new minor variations process as above, but constrain licensing authority discretion by specifying on the face of the Act which variations should be included in and/or excluded from a minor variations process.

The first option would give flexibility and allow Licensing Authorities to exercise some common sense, which I’m sure they’d welcome, although differing approaches nationwide are undesirable. However, at worst all this will do is validate the position of the ‘pragmatists’ and lessen the chance of any come-back on the councils who are trying to be helpful. I can see the more cautious councils deciding time after time that variation applications should be submitted to the full process

I have to say I’m very wary of the second option. Bearing in mind the way the Act and the related forms were drafted (hint – look up cock-up in the dictionary) I just don’t trust them to come up with a decent, workable list of specific minor variations.

I can’t think of anything better at the moment so for now this question gets a ‘yes’ from me.

Q3. Do you agree that the risk to the promotion of the four licensing objectives from minor variations to licences does not justify the current level of control afforded by sections 34-36 and 84-86 of the Licensing Act 2003?

Yes, without a doubt.

Q4. Do you agree that Option 3 – No Change – should be rejected? If not, please give your reasons.

Yes. Doing nothing would be ridiculous. I’m certain even the person who drafted the Licensing Act would admit change is needed

So I think on balance I’m fine with what they’re suggesting – it’s an improvement on the current system at least. To be honest I’m more interested in the practicalities. How much will the fees be? What sort of minor variations would the Guidance mention? Have they employed someone smart enough to test out the form they draft?

I'm going to have a think about Q2 though. Would it be better to name a couple of specific minor variations and then have a flexible catch-all? What would you name specifically? I've tried to think of a few things but have got myself into a small tangle so maybe a broad definition would be better with clarification in the Guidance.

Hmm. Something to chew on there. Oh, and I promise the next post will have at least one photo with it.

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Licensing Act 2003 - minor variations consultation

The DCMS have just released a consultation document looking at allowing minor variations to Premises Licences and Club Premises Certificates. Finally.

A huge problem with the Licensing Act 2003 is that in order to make an alteration to a licence it is necessary to follow a process that, in terms of time and cost, is similar to applying for the licence all over again.

The issue of minor variations arises most often when someone is looking to change the layout of their premises. It may simply be a case of extending a counter, removing a partition or carrying out DDA works – why should they pay through the nose to for an application when the work is of such trifling significance?

For some time now there’s been a marked difference between how Licensing Authorities have dealt with the issue of minor variations with two camps:

1. The pragmatists, who would rather there was some flexibility in the law to allow inconsequential amendments, especially to plans, to pass without comment. They only wish to be told of the amendment made, preferably with copies of updated plans to be sent to the responsible authorities.

2. The fundamentalists, who follow the letter of the law to the word and demand a variation to account for every little change made to plans attached to licences. Their entirely reasonable view is that they’re charged with administering the Licensing Act 2003 and nothing authorises them to step outside that legislation, however much they would like to.

The problem is that, when deciding whether to let a minor variation pass a Licensing Authority is leaving itself open to criticism/complications/judicial review if someone turns round at a later date and says that they believe a variation interferes with the licensing objectives in some way and they would have objected given the chance. A formalised procedure for minor variations might provide some protection from judicial review but I can imagine caution being the watchword, especially by the historically ‘fundamentalist’ authorities.

Ok, so I’ve explained what the position is, I’m now going to have a proper read through of the consultation document and see how (or if) they’ve dealt with everything.

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Happy 2nd Birthday LA03!

Yay! Happy birthday and, as my parents used to say to me, well done for making it this far.

But how much further will our beloved Act make it? Are changes afoot? Well, we might get an inkling in the coming week. As previously reported the s182 Guidance is up for consideration by the Delegated Legislation Committee. That's happening on 29 November at 8.55am in Room 9 (pop in if you're about).

We'll see what comes of that and go from there I suppose. I've still not picked up on the reasoning behind the Guidance being sent there in the first place. If anyone knows then please let me know in the comments.

Photo by Pink Sherbert Photography via Flickr.

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Will the s182 Guidance be up for reconsideration?

Ah, now this is interesting, although it does show me up slightly. Having just said that the govt's standard procedure on anything alcohol-related is to refer to their pending review (which Gordon Brown did have the kindness to do in the Commons this morning) they've now gone a step further.

Check this out from today's House of Commons order of business:

Ms Harriet Harman - That the Guidance issued under section 182 of the Licensing Act 2003, which was laid before this House on 28th June, in the last Session of Parliament, be referred to a Delegated Legislation Committee.

Which means what then? Well, according to the Financial Times "A Downing Street spokesman said ministers were “actively considering” a tightening of legislation to defuse growing criticism from opposition MPs, health experts and police.""

So how does sending the Guidance off to a committee achieve that? From what I know of Delegated Legislation Committees they will be charged with quickly debating the Guidance and then have to report back to the Commons that they have done so. I think the Commons can reject the Guidance if they want but what would this achieve?

The Guidance is simply that - guidance for the Licensing Authorities and the Police to follow in the discharge of their duties. It can't override or modify the Licensing Act itself or the Regulations. Licensing Authorities must have regard to it but must deviate from it where necessary (eg when it was riddled with mistakes not so long ago).

Interestingly, there's nothing in the Licensing Act that refers to the hours premises can carry out licensable activities, there's just no barrier to applying for 24 hours a day. Could a revised Guidance put a barrier there? What about the premises that already have extended hours? Surely amending their licences would require some more serious legislative moves.

I'll be watching with interest.

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Public Health: ethical issues

A report was published by the Nuffield Council on Bioethics today. It's job was to "consider the responsibilities of governments, individuals and others in promoting the health of the population."

Their conclusion was that, left to their own devices, people do not lead healthy lives and that there needs to be some state intervention to help people make healthy choices. The Council looked at four case studies obesity, infectious diseases, fluoridation of water and (the reason I'm typing this) alcohol consumption and smoking.

It's an interesting report actually. It's been put together by a bunch luminaries including doctors, health economists, lawyers, philosophers and other experts. There's a lot of professors listed which is always reassuring. They've come up with the 'Stewardship model"

They recognise that some public measures are intrusive in their nature and considers the ethical issues involved in deciding in what circumstances those measures should be used.

As far as the govt's alcohol strategy is concerned this bit is quite damning:

the Government’s alcohol strategy has focused on public information campaigns and voluntary labelling schemes – measures that have been shown not to be effective.

and as an (effective) alternative the report recommends "increasing taxes on alcoholic beverages and restricting hours of sale". Of course, the govts current stock response is to refer to the pending review and change the subject.

The Sun have jumped on this in their amusingly shrill fashion and the Guardian have reported on this too. If you want to have a read of the reports for yourself (and they are pretty interesting - maybe just read the 'short guide' if you're busy) then you can download them here.

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