I have finally had a reply from DCMS - It is all now made perfectly clear.............Except what is the current position or what would the position be, should the proposal be accepted for where the premises are provided for the public to entertain themselves in music - when no instruments are provided. Would this be a licensable Entertainment Facility?

You asked for confirmation that the Licensing Act 2003 (the Act) says that "any premises (or land) provided to enable the public to entertain themselves in music and dance and on which this entertainment takes place, is a licensable Entertainment Facility."

It is not the case that the Act says that any premises or land provided in this way qualifies as an entertainment facility. In fact, the Act is clear that this is not always or necessarily the case. However, as you correctly observe, the Act does allow for the possibility that premises or land may be an entertainment facility.

Legislation often demands the use of common sense in its interpretation. In the kind of case with which the consultation is concerned, the provision of facilities for performances of exempt incidental music and the provision of instruments (such as a pub piano), it would be artificial to say that the pub (or the bar area where the piano is situated) is a separate facility (in addition to the piano itself) "for enabling persons to take part" in making music on the piano.

The customers' ability to use the piano would be exactly the same if it were placed anywhere else, so the room or bar area does not contribute anything. Nothing would be achieved in terms of the policy aims of the Act (the promotion of the licensing objectives) by counting the room or bar area as a distinct facility in a case such as this.

On the other hand, a room which has a dance floor as its main or sole feature could quite easily be seen as a separate facility in this sense. In that case, to distinguish the dance floor from the room might be artificial.

It should be noted that the draft clarification proposed in the consultation would prevent any suggestion that the premises or land might be separately licensable as an entertainment facility in relation to facilities for incidental music and the provision of instruments.

In the case of incidental music, the draft clarification applies to any "facilities". In the case of musical instruments, the clarification applies to "anything to be used to enable a musical instrument to be played". This would therefore apply to, for example, a bar area, if it were suggested that this enabled the playing of the musical instrument.

Thank you again for your helpful contribution to the consultation, which has now closed. All responses will be considered, and we expect that Ministers will be in a position to announce their response in the near future.