The licensing objectives 1.4 The burdens imposed by the Act are justified by the need to prevent potential adverse impacts on the promotion of the four licensing objectives: the prevention of crime and disorder; public safety; the prevention of public nuisance; and the protection of children from harm. The Government believes that the requirements of the Act in relation to entertainment facilities can be clarified and amended, as described below, without any adverse impact on the licensing objectives.
The current situation 1.5 The definition of regulated entertainment contains two elements: the provision of 'entertainment' and the provision of 'entertainment facilities'. The separate 'entertainment facilities' element is intended to address situations where people take part in entertainment that may not be provided solely for the purpose of entertaining an audience, but which may nevertheless present risks to the promotion of the licensing objectives. Examples may include the use of a dance floor, or some karaoke performances. As part of this, the provision of musical instruments (such as 'pub pianos') can be licensable (separate from a performance of live music) if they are to be used by customers to entertain themselves.
Proposal to clarify the exemption for incidental music 1.6 The Act provides for an exemption for performances of live music to the extent that they are incidental to some other activity which is not itself "entertainment" or "the provision of entertainment facilities". However, a broad interpretation of "entertainment facilities" can capture the provision of facilities even if they are intended to be, and are used solely for the provision of exempt incidental music. Such an interpretation limits the usefulness of that exemption, especially for venues that do not have a premises licence, or do not have authorisation for regulated entertainment on their licence, if they are providing the facilities necessary for the performance (such as the provision of a piano in an unlicensed cafe). In such a case, it would mean that they have to make an application to vary the terms of their licence (to add authorisation for entertainment facilities) or make a new application for a premises licence in order to provide exempt incidental music. The Government considers that this was not the intention of Parliament when it introduced the exemption for incidental performances of live music.
1.7 Discussions with musicians' representatives, the licensed trade, and local authority officers have revealed that the broad interpretation described above is not uncommon. We therefore feels that the issue requires clarification and propose to amend the Licensing Act 2003 by statutory instrument made under paragraph 4 of Schedule 1 to state that entertainment facilities are not licensable if they are to be used solely for the provision of exempt incidental music.
Question 1: Do you agree that the Licensing Act 2003 should be amended to state that entertainment facilities are not licensable if they are to be used solely for the provision of exempt incidental music? Yes/ No Please provide reasons for your answer, giving as much detail as possible.
Proposal to exclude the provision of musical instruments from the definition of entertainment facilities
1.8 To further clarify the law with regard to the provision of pianos and other instruments, the Government proposes to change the 'descriptions of entertainment' (at Schedule 1, paragraph 3(2)) by statutory instrument to exclude the provision of musical instruments. Performances of live music and the provision of facilities other than musical instruments will remain licensable. This will remove any doubt about whether a licence is required when musical instruments are made available by themselves. For clarity, this exemption will extend to items provided to enable a musical instrument to be played without amplification. This is intended to clarify that ancillary items such as music stands are also excluded from the definition of music facilities. The provision of other facilities, such as amplification, will remain licensable, as their provision may present risks to the licensing objectives. (For example, of public nuisance due to noise, or public safety in the case of a stage).
Question 2: Do you agree that the Licensing Act 2003 should be amended so that the provision of musical instruments and ancillary items is excluded from the definition of entertainment facilities? Yes/ No Please provide reasons for your answer, giving as much detail as possible.
The benefits of the proposal 1.9 The proposed clarification will benefit, in particular premises such as pubs, cafes, restaurants and community venues that do not have authorisation for regulated entertainment, but who wish to provide incidental live music to their customers. It will, therefore, also benefit musicians who wish to perform and members of the public who wish to hear them. The exclusion of musical instruments from the definition of entertainment facilities may also benefit members of the public who wish to entertain themselves (for example, using a piano in a pub). There will be a small economic benefit in terms of reduced burdens, but we have not attempted to quantify this.
Implementation of the proposals 1.10 Subject to the outcome of this consultation, we propose to introduce the clarification by means of an affirmative statutory instrument as noted above. The draft instrument will be laid in Parliament and debated in both Houses. If Parliament approves the measure, the Minister can then bring the instrument into force.