On the subject of sessions (with their multiple instruments) being able to benefit from the incidental exemption..................
The following is the official LACORS response to the consultation on Entertainment facilities. It includes the following: The issue of numbers of instruments should also be covered by the revised Guidance, in order to make it clear that music involving multiple instruments is very unlikely to fall within the incidental music exemption.
Question 4: Does this draft Guidance provide sufficient advice to assist licensing authorities in their administration of the Licensing Act? Yes/ No
Answer: No; further clarification and examples are required in order to provide licensing authorities, operators and performers with clear guidance about the proposed changes and the meaning of incidental music.
LACORS is concerned that the definition of entertainment facilities is very broad, and that in order to avoid confusion (especially about the definition of incidental music), the revised Guidance should be particularly detailed in its explanation of the points below.
It should be made clear to operators that unamplified instruments capable of producing loud music are very unlikely to be capable of making music that falls within the definition of incidental music. Guidance to operators and musicians should make it very clear that, for example, if musical instruments are used in a way that goes beyond incidental music and into a form of music that would in fact require a permission for regulated entertainment, those instruments will not fall within the entertainment facilities exemption.
We also note that the draft statutory instrument refers to "…anything to be used to enable a musical instrument to be played without amplification" and again, the Guidance should explicitly refer to unamplified musical instruments, in order to provide clarity for licensing authorities, operators and performers. The issue of numbers of instruments should also be covered by the revised Guidance, in order to make it clear that music involving multiple instruments is very unlikely to fall within the incidental music exemption.
The revised Guidance should continue to refer to existing DCMS Guidance on incidental music, but it is also very important that the revised Guidance reproduces the broader advice and positive examples of incidental music issued by the live music working party formed by the Musicians' Union, the British Beer & Pub Association, DCMS, LACORS and the LGA.
Finally, the Guidance should set out "negative" examples of instruments that are unlikely to be capable of producing incidental music, e.g. bagpipes, drums, brass instruments and so on that would then not be exempt, in order to provide clarity for operators and performers as well as local authority officers (and others with an enforcement role under the Licensing Act 2003)
It would seem that at any point where there is some hope of common semse being applied - the local government lobby will find some way of advising some form of unhelpful regulation that would be impossible in practice. This is not the 'promotion of quality regulation' that is supposed to be purpose of LACORS - it is regulation for its own sake.