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Baroness Buscombe: My Lords, we wholly support Amendments Nos. 8 and 12, to which I have added my name and that of my noble friend Lord Luke.

The noble Lord, Lord Redesdale, has fully explained the principle behind the amendments. The Government say that the Bill is deregulatory; they say it seeks to promote the performance of live music; they talk of scaremongering in the music world and the myths perpetuated about the negative constraints that the Bill imposes on musicians. But the regulation of music in the Bill is in line only with the licensing objectives in terms of public safety, nuisance and so on. Yet there is no doubt that the provisions will in practice increase the regulation of music even though there already exist adequate legal controls to respond to issues of health and safety, noise, crime and disorder, and so on. For example, there already has to be compliance with the Health and Safety at Work etc. Act 1974, the Management of Health and Safety at Work Regulations 1999 and the Environmental Protection Act 1990. Local authorities can, moreover, take action for an injunction where there has been, or it is believed there will be, a nuisance affecting a class of person within their area.

We have had information from lawyers suggesting that the proposed regulation in the Bill may infringe Articles 10 and 11 of the European Convention on

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Human Rights on the grounds that the Secretary of State can or should impose controls only where the proportionality test provides that they are necessary. We are not convinced that the necessity has been proved in this case.

Paragraph 7 of Schedule 1 exempts the playing of recorded music when incidental. Why must music be recorded? The noble Lord, Lord McIntosh said in Committee:


    "The difference between amplified and unamplified music is more important than the difference between live and recorded music".—[Official Report, 12/12/02; col. 398.]

Paragraph 7 is therefore over-specific. Live music can be equally incidental. Many of the concerns voiced by musicians have been about the inherent problems in spontaneous musical activity, such as a guitar being played in the corner of a pub. Our amendment would exempt unamplified music that is incidental. The Government will undoubtedly respond by saying that it is hard to draw a line between amplified and unamplified, but I do not believe that the line is so tricky to draw. Moreover, the principle is straightforward.

This concession would go a long way towards convincing musicians nationwide that the Government are genuine when they say that the Bill is intended to promote the performance of music, not strangle it.

The Minister said in Committee with regard to broadcast entertainment that,


    "if a licensee permits disorder and noise nuisance on his premises he will face a review of his licence, and it will therefore be in his interests to maintain an orderly public house".—[Official Report, 12/12/02; col. 404.]

What is the difference? Surely the same would apply in relation to unamplified music. Surely that is the right way to deal with unamplified music. We have already spoken about the report of the Joint Committee on Human Rights, which is deeply concerned about this issue, and the question of proportionality.

The noble Lord, Lord Redesdale, referred to the petition that has received over 70,000 signatures. It was based on words put down in an Early-Day Motion introduced by Her Majesty's Opposition in another place. These amendments respond to an overwhelming lobby from beyond your Lordships' House. The lobby has listened to and watched the Government. It has seen the Government, and it is determined not to be difficult. But there is no question that the Joint Committee on Human Rights should be listened to and the interests of the musicians heard.

Lord Skelmersdale: My Lords, my noble friend on the Front Bench and the noble Lord, Lord Redesdale, are absolutely correct. The Minister might like to consider paragraph 12.45 on page 85 of the draft guidance, which states:


    "The Act anticipates that any noise coming from the premises should be disturbing members of the public, for example, in the street or residing locally—otherwise it could not constitute a nuisance".

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What, then, is the difference between a nuisance coming from recorded music as opposed to live music?

The Earl of Onslow: My Lords, I totally support my noble friend Lord Skelmersdale. If Verdi's "Requiem" is banged out very loudly on a mega-something thing which our children all buy to record music on, that would make much more noise than four people on a zither in a pub. Surely the issue is the upset to outsiders, and it will vary from place to place. We must therefore try and look at this as grown-ups rather than as the Government are doing. They are regulating; they are saying that we can do this with zithers but not that with machines which make a lot of noise. At the upper end, only dogs can hear them, anyway. That is where it is going wrong.

We should be addressing our minds to the noise and disturbance made by people outside pubs or places of entertainment, rather than to whether music is recorded, live, amplified live or non-amplified live. The amount of nuisance will vary from place to place. If a concert takes place in the middle of Salisbury Plain, it will make less environmental impact than in Chester Row in Westminster. I suggest that the Government are not addressing those judgments.

Lord Avebury: My Lords, if we had the survey commissioned by DEFRA on the implications for the control of noise by local authorities and the licensed trade that may arise from the new legislation, we would not be speaking in the dark about the nature of the nuisance that is arising or has arisen in relation to licensed premises in the past. The examples that have been given such as Verdi's "Requiem" and the full orchestra suggested by the Minister are both bizarre and improbable.

We are talking about whether people have perceived any nuisance arising from live music in licensed premises in the past or whether they may do so in future as a result of the Bill. I believe that if the DEFRA survey had been made available to your Lordships, we would have seen clearly that live music is not a source of nuisance and that it should not be discriminated against as it is in the Bill.

I deprecate the fact that we are trying to reach important conclusions about the Bill without having information that the Government ought to have made available to us. We were talking about the guidance at an earlier stage, and now we have that. I am now concerned about the DEFRA survey. I asked a question about it the other day and did not receive a satisfactory answer. I would like to know from the Minister why it is not possible to give your Lordships details of the replies to the survey so that we know the facts before we reach a decision.

4 p.m.

Lord Colwyn: My Lords, at some stage we shall need a definition of what is amplified and what is unamplified. I looked it up in the dictionary earlier. Amplify means enlarge, increase, augment, enhance, elaborate on or exaggerate. Many modern instruments make no sound unless an amplifier is used. An

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electronic piano has an amplifier in it to make it sound like a normal, unamplified piano. The issue will have to be clarified at some stage. It may come up later, but this may be an appropriate time for the Minister to consider it.

Lord McIntosh of Haringey: My Lords, we have discussed the issues of live music at considerable length. These amendments give us the opportunity to consider the matter further. I welcome that.

Amendment No. 8 would broaden the exemption for music that is incidental to other activities, from simply recorded music to all forms of music, live or recorded. I remind the House that on the previous amendment I said that however strong our aesthetic objections to incidental recorded music, none of us thought that it should be brought within the scope of the Bill, unless it is so loud as to cause a public nuisance and therefore go against the licensing objectives. I entirely understand the purpose behind the amendment, but it is born of the misconception that in some way the Bill will threaten guitar-playing in the corner of the pub, as the noble Baroness, Lady Buscombe, put it, or four people on a zither—I hope the noble Earl, Lord Onslow, means four people on four zithers.

The Earl of Onslow: My Lords, that point had been drawn to my attention before the noble Lord pointed it out. The thought of four people on one zither gives me an immense amount of pleasure.

Lord McIntosh of Haringey: My Lords, I was just imagining the huddle. The thought gave me a lot of pleasure, but then, everything that the noble Earl, Lord Onslow, says gives me pleasure—up to a point.

The Earl of Onslow: My Lords, flattery will get the noble Lord absolutely everywhere. I lap it up.

Lord McIntosh of Haringey: My Lords, it is not getting me anywhere, so I shall stop it.

The amendment would address that perceived threat by drawing a hard and fast line across the face of a flexible Bill. The exemption for recorded music is designed to cover background music in lifts, supermarkets or restaurants or provisions such as juke boxes in pubs. It is clear that a lot of us would like to do something about it. However, primary legislation would certainly be the wrong way of achieving that noble end, as our society is tolerant about views and tastes. All we can do is seek to persuade people of the error of their ways.

Some people argue that recorded background music can give rise to similar issues of nuisance and safety as live music, but we do not accept that that is the case. I have heard scare stories that the exemption will lead to neighbourhoods blighted by juke boxes blasting music through the doors and windows of pubs. That seems unlikely. People go to pubs to talk to each other and drink. Very loud music of a kind that would cause a nuisance outside the premises would defeat that object. Any licensee who knows what is good for his

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business would not turn the volume up so high that it was impossible to talk. On the rare occasions on which that happens, measures can be taken to stop it. It would be difficult to argue that the music was incidental to another activity, so the foundation of the exemption could be challenged. That would put the licensee at risk of committing the offence at Clause 134 of carrying on a licensable activity without an authorisation, with all the implications for penalties and ultimately the potential for forfeiture of the personal licence.

The Bill provides strong powers for the police to close premises that are giving rise to noise nuisance. Those powers have been in place since December 2001 for premises with a justice's licence to sell alcohol. It is true that they have been used in only a handful of cases, but the police tell us that that is because the powers have been shown to be a useful deterrent. The Bill will extend the powers to cover all licensed premises.

Finally, where supposedly incidental recorded music is giving rise to nuisance, it is open to the responsible authorities, including the police and interested parties, including anyone living nearby, to request a review of the premises licence.

It has been said that all those issues can apply to live incidental music as well as recorded music. They can, but live music is different from recorded music. For example, it often requires cabling and finding a place to put the performers, which can affect access to fire exits or extinguishers. The sound produced by live music can often be far more penetrating than the average set of pub speakers. I am not saying that it always is, but it can be. It is often more difficult to restrict the volume to a level that is commensurate with the idea of incidental music. We are talking about incidental music, not music that is a performance for an audience.

I totally accept that piano playing in the background of a restaurant is unlikely to give rise to issues of disorder or safety, but the range of music goes wider than that. That is why it is dangerous to draw hard and fast dividing lines. The approach we have set out in the Bill, complemented by the range of measures we announced on 18th February, some of which are contained in amendments that we have tabled on Report, provides the flexibility to ensure that the kind of activities that give rise to no significant issues of safety or nuisance are allowed to proceed unhindered, while at the same time avoiding throwing the baby out with the bathwater.

For example, in Amendment No. 218 we ensure that only those concerned with the organisation and management of regulated entertainment rather than individual performers will be liable to the offence of carrying out regulated entertainment without a suitable permission. That puts the onus on the organiser to ensure that the necessary authorisation is in place. To ensure that licensees are not put off seeking these authorisations by the fear of disproportionate, inappropriate and expensive conditions being imposed by the local authority, we are working with a group drawn from

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representatives of performers, the music industry, the licensed trade and local government to inform us in drawing up the relevant sections of the guidance, which will provide clear distinctions about what might and might not constitute appropriate conditions to apply to licences that authorise live music. We have already said that a licence for the provision of entertainment, including live music, can be applied for at the same time as an alcohol licence and that there is no additional charge for it. I am sorry to say that the petition and a lot of the claims made by the Musicians' Union are based on that misconception.

Amendment No. 12 also falls victim to the wide range of activities that come within the definition of regulated entertainment. It would exempt unamplified live incidental music from regulation under the Bill. The same arguments apply here. The amendment appears admirable, but it ignores the simple fact that many unamplified instruments can be loud and penetrating. Drums are an obvious example. In addition, with the package of measures that we have put in place, there is no need for the amendment.

When the working group that we have convened has finished its work, the relevant sections of the guidance will draw clear distinctions about what might and might not be appropriate conditions for unamplified music. It will be flexible enough to cope with special situations such as the use of drum kits or other loud and penetrating unamplified instruments in a way that the Bill never could without increasing its length and complexity. While I am on that subject, it is not our intention to turn the guidance into regulations. We are proposing that the first issue of the guidance should be subject to the affirmative resolution procedure, but it will still be guidance. Authorities will have to have regard to it rather than being obliged to follow its every dot and comma. In maintaining the flexibility of guidance, we can tailor the system in the light of experience, subject to the safeguard that I have just referred to, which is a response to the recommendation of the Select Committee on Delegated Powers and Regulatory Reform.

Finally, by avoiding the drawing of hard and fast lines, we can avoid the kind of perverse disincentive that was in the existing "two in a bar" rule. I am glad to hear the noble Lord, Lord Redesdale, confirm that he opposes that rule. In pubs, at least, it discouraged many forms of entertainment outside the narrow definition of entertainment covered by the exemption.

The noble Baroness, Lady Buscombe, raised the issue of human rights. We have tabled amendments that will satisfy the Joint Committee on Human Rights. They deal with matters of proportionality, for purposes of compatibility with the European convention. The combination of a flexible Bill and flexible guidance gives licensing authorities the tools to tailor their approach to the appropriate level in individual cases.

I have little to say about the Institute of Acoustics. The matter is referred to in the guidance, although I am not conscious of having referred to it in debate. The guidance simply used what was published. I

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understand that there may be a desire to revise the guidance for local authorities. That is fine, and can be taken into account.


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