Visit a pub and there’s every chance you’ll hear background Muzak, or high-volume Sky Sports coverage of Premiership football. But what are the chances of hearing live music?

At least as good as they have ever been, says the Department of Culture, Media and Sport, which controls the licensing of pubs. Nonsense, say musicians, who blame the 2003 Licensing Act for drowning live music in red tape. The facts to settle this argument ought to be there, but aren’t.
 
Ever since the act came into force there has been a long-running argument between the department and its critics, who assert that dodgy statistics, misleading statements by ministers, and a failure to collect the right sort of data make its claims unbelievable.  Far from “flourishing”, as the Government claims, music in pubs is declining or dying, they say.
 
The department’s claims are based on rising numbers of premises applying for licences – 8,000 more in the latest statistical return, up to March 2009. But comparison with the period before the act is difficult, because then all licensed premises had the right to have live music played by one or two musicians, without applying for any further authority. All private functions raising money for good causes were exempt, as were all performances on public land. The 2003 legislation abolished all these categories.
 
The act was heavily criticised during its passage through Parliament, so in 2004 DCMS commissioned MORI to survey how it had affected live music in pubs/inns, hotels, restaurants/cafes, student unions, small clubs, members’ clubs and associations and church and community halls. The minister responsible at the time, Richard Caborn, celebrated the results as showing that there had been 1.7 million gigs “in bars, clubs and restaurants” in the past year.
 
In fact, this figure covered all the premises listed. In pubs/inns, clubs and small restaurants the number was only 850,000. Hamish Birchall, a jazz drummer, adviser to the Musicians’ Union during the passage of the bill, and tireless critic of the legislation ever since, challenged the minister’s claim and referred the case to the Market Standards Research Board, who agreed that the claim had been misleading. While this was going on, the DCMS retrospectively changed the press release on its website to make it look as if Caborn had never made the claim in the first place.
 
The MSRB ruled that the actual number was 1.3 million, but that covered pubs/inns, restaurants, and two categories of club – small clubs and members’ clubs and associations. When challenged, a DCMS minister in the Lords acknowledged that the press release had been changed to correct “a misleading statement”.
 
In 2007 the DCMS commissioned another survey, which concluded that 76 per cent of pubs and clubs had a licence to stage live music. The 2004 survey showed that, historically, only 44 per cent had done so – evidence that the number had increased, not diminished. (There are questions about the reliability of the 76 per cent figure, because many of those interviewed were not responsible for obtaining the licence, and in about a fifth of pubs licensing is handled centrally by a management company. It would have been better if DCMS had simply searched local authority public licensing registers.)
 
However, this survey combined with the evidence that music licences are growing at 5 per cent a year, have convinced the DCMS that the Act is a success. But when asked in the Lords last month what proportion of that increase is accounted for by schools and councils, and what proportion by premises that would not have needed a licence before the 2003 Act, Lord Davies of Oldham replied that no such data was collected.
 
In that case, Hamish Birchall argues, a meaningful comparison is impossible, in spite of ministerial claims that the Act “had improved things, not made things worse”. The DCMS claim on 22 October when the latest statistics were published that “more licencees are widening their customer appeal by putting on live music” is, he says, misleading or irrelevant because we do not know who these licencees actually are.
 
The campaigners for live music see a glimmer of light in the recent promise by Gerry Sutcliffe, whose portfolio as Minister of Sport evidently includes licensing, to consult on plans to allow venues with a capacity of 100 or fewer to put on live music without a licence. The plans were welcomed by John Whittingdale MP, Chairman of the Culture, Media and Sport Select Committee, whose report in May said that “absurd” licensing laws were damaging the live music scene. But hardened campaigners like Mr Birchall suspect the consultation is a delaying tactic.
 
Just how peculiar the legislation is was shown by new guidance on the act’s exemption of “incidental music” from requiring a licence. A pub can put on a performance by a stand-up comedian backed by a piano without needing a licence: but a pianist backed by a stand-up comedian needs one. You can have a pianist or other instrumentalist playing background music, but unless you have a licence you cannot allow patrons to join in in a sing-song. A group of carol singers outside a shop is exempt: but not a carol performance organised in a shopping mall.
 
Further, for incidental music “there should be no expectation to listen or to watch”. So music’s fine in pubs if you don't listen to it.