On 17 April 2012, the English folk-rock trio Show of Hands were invited to perform at the Houses of Parliament in London. The highlight of their set was the song ‘Roots’. Composed by the band's leader, Steve Knightley, it celebrates the history of popular music with a specifically English flavour. The verse which was most anticipated by many in the audience of musicians, music industry figures and politicians was this:

The lyrics refer to an event which occurred in 2001. During a debate in the British Parliament, a government minister, Kim Howells, told the assembled legislators that ‘for a simple urban boy like me, the idea of listening to three Somerset folk singers sounds like hell’. Howells was responding to arguments opposing his government's plans to make all performances of music on premises where alcohol was sold subject to licensing by agencies of the State, primarily local councils, arguments which predicted a fall in the number of gigs and an increase in the number of ‘pubs where no one ever sings at all’.

Despite the opposition, the plans advocated by Howells came to fruition in the form of the Licensing Act 2003. However, criticism of the Act's treatment of live music persisted to the degree that governments made concessions and amendments to the Act, culminating in a new Live Music Act of 2012. The concert of 17 April 2012 was organised to celebrate the success of the campaign for this new law.

The 2003 Act was presented by its proponents as a modernising piece of legislation, but it can be placed in a long history of attempts by the English and later the British State to impose order on the unruly or Dionysian side of music making, alcohol consumption, and the conjunction of the two. This history of both music and alcohol has been marked by regulation in the name of public order and moral improvement.

Popular music and alcohol have been associated in England in various ways for hundreds of years. In the Middle Ages, taverns were reported to provide musical entertainments well as drink for their habitués (Sanjek Reference Sanjek1988). In the 18th and 19th centuries, itinerant musicians were sometimes recompensed in kind by their audiences, ‘kind’ often taking the form of food and alcoholic drinks (Harker Reference Harker, Middleton and Horn1981).

Over five centuries, a series of laws attempted to monitor, supervise and regulate the public environments in which drinking and music making took place. It began with a 1552 law which licensed alehouses, premises where beer was bought and sold and consumed. Two centuries later, the Disorderly Houses Act of 1751 sought to control the public performance of music and dance. The pace of regulation increased in the 19th century, in step with the massive growth in the provision of commercialised popular entertainment. The 1843 Theatres Act created a two-tier system for public performance venues. While plays were allowed to be given in a small number of halls, the more numerous taverns and public houses were permitted to sell alcohol and tobacco during musical or other shows.

Until the 1880s, venues that possessed a licence to sell intoxicating drinks did not need a separate licence for providing entertainment. This changed with the coming of the music hall as the principal site of popular entertainment in Britain. Especially in London, music venues were enmeshed in a web of laws and regulations from the 1880s until well into the 20th century.

By the late 20th century, the motive for yet more legislation on alcohol and music was to replace what Hunt and Manchester (Reference Hunt and Manchester2007) called this ‘mishmash’ of laws. Within the mishmash, the only live music performances that could be given in venues selling alcohol without applying for permission from law enforcement agencies were those by a solo performer or a duo; a combo of three or more players and singers needed a licence. This state of affairs became known in the music profession as the ‘two-in-a-bar’ rule.

The process of law making began in 2000 with the publication of a white paper or government discussion document, Time For Reform. The stated aim of a new law was to introduce ‘an integrated system of control of alcohol, entertainment and late night refreshment’.

The ‘control’, however, was to be decentralised, for example to enable flexible opening hours for venues with alcohol. The justification for what was universally understood to be longer hours for selling alcohol were three-fold. First, ‘staggered closing times’ for pubs, bars and clubs would avoid ‘disorder’ involving queues for taxis, problems at fast food outlets, etc. Secondly, it would enhance local ‘night-time’ economies. Thirdly, it would encourage tourism (Hunt and Manchester Reference Hunt and Manchester2007, p. 9). Almost as an afterthought, the government's Guidance document referred to other key aims and purposes. One of these was ‘further development within communities of our rich culture of live music, dancing and theatre’ (Hunt and Manchester Reference Hunt and Manchester2007, p. 13).

But these various intentions to expand the night-time economy and its ‘rich culture’ were limited by another piece of Guidance, which advised that local authorities should, if necessary, defer to local experts or ‘stakeholders’ in making decisions. These included police, fire authorities, environmental health experts, planning authorities and local residents and businesses. The list did not include musicians or music promoters.

A very different interpretation was taken by many in the live music business. It was melodramatically summarised by one journalist writing in late 2002:

The early drafts of the Act were strongly criticised by the Musicians Union (MU) and others, who argued that music performances should not be subject to specialised licensing. Although the MU's general secretary John Smith was later to say that ‘ten significant amendments’ were made in the progress to the final version of the Act, the union's basic ‘philosophical point that music should not be licensed in this way’ was not conceded. Smith was still opposed in principle to a situation where pubs needed a licence to provide live music, but not for ‘big screen sports’ (Allison Reference Allison2004, p. 7).

The 2003 Act passed by parliament had four ‘licensing objectives’. These were the prevention of ‘crimes of disorder’, the prevention of ‘public nuisance’, ‘public safety’ and the protection of children. These areas, broadly those of social control, were traditionally the province of the Home Office (interior ministry), with its responsibilities for policing, etc. But between the publication of the Home Office white paper and the introduction of the new law, its sponsoring department became the Department of Culture, Media and Sport. This had been set up by the New Labour administration in 1997 to replace the former National Heritage ministry and swiftly became the champion of the newly fashionable cultural and creative industries (Cloonan Reference Cloonan2007).

So great had been the organised opposition to the legislation, both during its passage through parliament and its coming into force, that the government agreed to monitor the impact of the Act in the early years of its implementation. The Act did not come fully into operation until November 2005, in order to allow time for potential venues to apply for, and receive, licences.

The monitoring was undertaken in conjunction with a new advisory body, the Live Music Forum (LMF). It was chaired by Feargal Sharkey, former singer with the Undertones and now a music industry campaigner and official. Its first task was to undertake research to ‘create a benchmark of live music activity against which the impact of the new licensing act can be measured’. This surveyed live music staged in England and Wales in 2003/2004 (the Act did not apply to either Scotland or Northern Ireland) and was published in mid-2005. This report showed the quantity of music performed prior to the introduction of the Act. In mid-2006 a new survey of 2000 small and medium-sized venues was launched. The aim was to provide comparative data so that the impact of the new law could be measured.

A principal aim of the legislation had been to standardise the approach of local authorities towards licensing, and to eliminate wide variations in the costs and conditions imposed on those applying for licences. But after a few years there was much evidence that this had not occurred. Hunt and Manchester reported that the some councils had failed to comply with the spirit of the Act, by insisting that licensees conduct their businesses according to the preferences of the licensing authority, contravening the intention of the government. Another piece of research concerned with crowd management and safety at events concluded that ‘the introduction of the Licensing Act 2003 might have contributed to a lack of standardisation …’ (White Reference White2009, p. 16).

In its final report in mid-2007 the LMF called on the government to ‘robustly’ censure those councils guilty of ‘overzealous or incorrect interpretation of the legislation’. The report also argued that all forms of unamplified live music should be exempt from licensing, giving examples of poetry readings accompanied by didgeridoo players ‘being ruined’. The 91-page report concluded that in the first year of its operation, the Act had a ‘broadly neutral effect on the provision of live music. However, it is also true to say that the Licensing Act has not led to the promised increase in live music.’

During the 2001 debates on the proposed law, a government spokesperson sought to strengthen the case for the control of live music by quoting a statement from Chris Fox of the Association of Chief Police Officers. Fox had said: ‘Live music always acts as a magnet in whatever community it is being played. It brings people from outside that community and others who come and having no connection locally behave in a way that is inappropriate, criminal and disorderly.’

In 2008, this statement was brought to the attention of the Parliamentary Select Committee on Culture, Media and Sport, composed of elected members who were tasked with monitoring the actions of the government department, by John Smith, the General Secretary of the MU. He added that on hearing of the Fox statement, the regional officials of the MU had contacted local police chiefs to ask for their views.

Smith quoted two responses to this union survey. Dorset police said that ‘in the majority of cases, customers frequenting a particular venue attend to specifically listen to the music and not to cause trouble’. The Essex police expressed the view that ‘the effect of live music itself on the licensing objectives is probably minimal … the playing of live music in smaller premises presents the Essex Police with little or no problems that affect the four objectives described’. Feargal Sharkey added that, as chair of the LMF, he had taken the issue up with ACPO itself, which eventually admitted that they could not substantiate the allegation that people who attend live music concerts behave in a way that is ‘criminal’.

Despite this, the largest police force in Britain introduced a policy that linked live music audiences with criminal activities. In 2007 the Metropolitan Police, responsible for policing London, adopted a new strategy, linked to the Licensing Act. Its ‘clubs and vice unit’ published a form which it advised local authorities in London should be completed by event promoters as a condition of the licence issued to venues. Known as Form 696, it requested full details of all participants in specific live music performances. Because the examples of music genre mentioned by the police were ‘Bashment, R'n'B, Garage’, it was soon seen as having a racist agenda and a subtext which defined such genres as inherently liable to provoke crime and disorder. Like Kim Howells’ comment on folk singing, the Met Police action provoked a protest song, though a less eloquent one. ‘SIX-NINE-SIX’ by Welsh songwriter Rob Woodley included the refrain: ‘No more crap from the boys in blue / free to play and get our kicks / bollocks to you and your six-nine-six.’

While statistics, policing and prejudice were flashpoints for the critics of the Act, the most sustained attempts to mitigate the law's impact on the live music ecosystem focused on exemptions to the requirement for all live music to be licensed. The original text of the Act had listed two types of exempted performance. One, curiously, was Morris dancing, a traditional English folk dance. The other was a poorly defined category of ‘incidental’ music. It was on this, and on a campaign to exempt small-scale shows, that would-be reformers of the Act set their sights.

The government's Guidance for the Act gave as examples of ‘incidental’ music the use of jukeboxes in pubs and comedians using music as part of their shows. But musicians’ organisations argued that live music could qualify as incidental if it was not advertised as a key part of a venue's activities, or even when there was free entry to a venue without a special charge to hear music. By the end of 2009, the MU, supported by the beer and pub association, local authorities and the government itself, was launching a campaign to make venues aware of the incidental music exemption and encourage them to take advantage of it.

The MU, the LMF and the select committee also argued for all venues with an audience capacity of 200 or less to be exempt from holding a music licence. The government grudgingly accepted the principle but instead proposed that the maximum audience size should be 100. It launched a consultation on this proposal but, before any action could be taken, a general election was called in May 2010.

The Labour government was replaced by a more right-wing coalition between the Conservatives and Liberal Democrats. The new government's first contribution to modifying the 2003 Act was a consultation document called Rebalancing the Licensing Act which, ominously for the live music industry, proposed to give greater influence to ‘local communities’ in licensing decisions, specifically to ‘residents’ worried about noise or disorder associated with music venues.

The election had also brought about the demise of a proposal for legislation to exempt 200-capacity venues, the initiative of Tim Clement-Jones, a member of the House of Lords, the upper house of the British parliament. Clement-Jones reintroduced his Live Music Bill in 2011 and, with conditional support from the coalition government, this bill became the Live Music Act in 2012. In addition to the exemption of smaller events, it amended the 2003 Act to make all unamplified performances licence free. Three years later, this exemption was extended to include venues with a maximum audience of 500.

So, 12 years from the start of the tortuous process of law making, some live music in England and Wales was once again free of specific regulation, but only by amending, not abolishing, this 21st-century equivalent of the Disorderly Houses Act. Instead of basing the unlicensed gigs on the two musicians-in-a-bar rule, there was now a ruling that such gigs should be performed to no more than 500 listeners.