The following from Hamish Birchall.

On 17 March a cross-party committee of MPs strongly criticised DCMS for 'inconsistent and unclear advice' during their implementation of the new licensing regime (see BBC report:
Now the Better Regulation Commission has weighed in with another report on licensing reform, equally critical of both DCMS and the government. 'Implementation of the Licensing Act 2003' was published by the BRC earlier this month (PDF file): http://www.brc.gov.uk/publications/licensingact2003.asp

The new report explicitly highlights uncertainty over the 'incidental music' exemption, and puts the blame firmly on the government:
'We find it alarming that the government is unable to clarify its intentions and explain to those affected by its own legislation what they are required to do.' [para 31, p16, full text below]

They add, under 'Observations':
'The uncertainty over incidental music. Should changes need to be made to legislation to resolve this, then they should be initiated immediately.'

In paragraph 4 (and many others), highlights the hidden costs and bureaucracy:

'Although the 2003 Licensing Act is a significant deregulatory and simplification measure that originally enjoyed widespread support, the way it was implemented during 2004 and 2005 led to complaints about increased costs and unnecessary bureaucracy.

The actual experience of applicants and licensees going through the new process was often far from the streamlined, simplified, efficient and less costly process that the Act led them to expect and which we believe Parliament voted for. The Better Regulation Commission is concerned that the policy and administrative decisions taken during implementation were not subject to sufficient consultation and a rigorous analysis of options, costs and benefits.'

In para 74, the BRC adds: 'We are surprised that, after nearly ten years of better regulation under the current government, a major government department should still make the kinds of regulatory mistakes that we have outlined in this review.'

~ ~ ~

Full text of paragraph 31, BRC 'Implementation of the Licensing Act 2003':

'31. Two other things that caused major uncertainty were (a) whether a DPS [Designated Premises Superviser] always needs to be on the premises when alcohol is sold and (b) what constitutes incidental music. Neither is satisfactorily explained in the guidance and subsequent correspondence between licensees and the DCMS has not resolved these issues.

Most licensees respect and want to comply with the law and do not like operating under this kind of uncertainty. Departments should do everything possible to resolve issues of regulatory uncertainty or confusion as soon as they become apparent. We understand that the government has said that case law is needed to clarify the first issue. We find it alarming that the government is unable to clarify its intentions and explain to those affected by its own legislation what they are required to do.
ENDS