The following from Hamish Burchall

Dear Baroness Hamwee

I have been forwarded a copy of an email message from you to folk musicians concerning the the Liberal Democrat role in securing live music amendments to the Licensing Act 2003, and the effect of those amendments.

As Musicians' Union adviser on entertainment licensing reform and the Licensing Bill, I worked closely with Lord Redesdale and Liberal Democrat MPs.

The Bill as published on 14 November 2002 was draconian: it abolished a range of very significant entertainment licensing exemptions, even though the government provided no evidence of a public interest reason for doing so. If enacted the Bill would have criminalised the provision of most public performance of live music in England and Wales unless first licensed.

It is quite true that Liberal Democrat Peers, in collaboration with the Conservatives, subsequently achieved important amendments, and I am particularly grateful for Lord Redesdale's and Nick Harvey's hard work to that end. I am also very grateful to Lord Lester for his speech in the Lords on July 3 (see excerpt below). David Heath was also extremely helpful in raising the profile of this issue last year in the Commons with speeches and his Early Day Motion 1182 (which gained 233 signatures).

However, I think you may be under a misapprehension about unamplified live music under the Act. It remains the case that a featured performance of unamplified live music in a secular venue will be illegal unless first licensed, whether this is a singer in a bar or a harpist in a library.

The government made a rather complex last minute concession which may limit potentially onerous licence conditions in smaller venues (up to 200 permitted capacity), but there is no outright exemption from licensing, unless the live music (amplified or unamplified) is 'incidental' to other activities that are not themselves licensable entertainments, or is purely unamplified live music 'integral' to a performance of Morris dancing, or dancing of a similar nature.

On the other hand no licence under the Act is required for broadcast entertainment, including music or sport, which is now commonly provided with big screens and powerful amplification. This is a consequence of the broadcast exemption in Schedule 1, para 8.

Thus a bar, or indeed any venue, could advertise to the public that a particular broadcast music concert will be shown as a featured entertainment on a plasma screen with a powerful sound system, and this would not require licensing under the Act. However, a similarly featured performance by one musician actually present and performing in the same premises, amplified or not, would be illegal unless licensed. That is not equal treatment, and it is difficult to see how the inequality can be justified on the grounds that live performance is likely to give rise to greater risks than the broadcast entertainment. Indeed, the opposite is more likely: the broadcast might be of a very popular DJ; the live performance by relatively unknown musician(s).

Leaving aside for the moment the Act's unequal treatment of secular venues and places of public religious worship (performance in the former is licensable; in the latter, exempt), the fact is that a very large number of bars and other potential venues that could provide some featured live music will have to clear a much greater legislative and administrative barrier than if they were to provide amplified music via broadcasts.

It is difficult to see how this does not amount to manifest discrimination against live music. This is now part of primary legislation and cannot be disapplied by guidance. The discrimination goes to the heart of the issue of musicians' right to freedom of expression and whether the Act is proportionate in its control of live performance.

Lord Lester put this succinctly in the Lords on 3 July:

'I find the distinction drawn between live music in pubs and dead music or dead entertainment on mass television in pubs arbitrary and somewhat discriminatory. Perhaps it reflects some kind of cultural bias. I believe that it shows a complete lack of proportion to insist on unnecessary regulation in licensing. I should be interested to know how the Minister [Lord McIntosh], for whom I have such high regard, would explain, if he had to do so in a court of law, how this kind of regulation is proportionate and how it satisfies the basic principle of proportionality. Are the means being used really necessary to achieve the Government's legitimate aims, or would some lesser sacrifice of free expression be proportionate?...'

Lord McIntosh did not answer these questions.

Yours sincerely
Hamish Birchall