I wrote the Bishop of Oxford's question, put to the Home Office in the House of Lords on Monday 11 December 2000. I am a jazz musician who has been researching and writing about the live music licensing issue for just over two years. The Church of England lends its name in support of my campaign because they feel that these laws are oppressive and unfair, and that more local access to live music can strengthen the community.

I now advise the Arts Council on the subject They now accept (better late than never) that the legal restrictions on live music, particularly folk and jazz, have become an anachronism and are working with the Department of Culture and the Home Office to ensure that licensing reform benefits local access to 'cultural life'.

What you may not know is that, in 1988, very similar laws were 'struck down' in New York City following a successful 'freedom of expression' lawsuit brought by jazz musicians. The laws (a 3-musician limit in zoned areas)had operated for more than 50 years.

Since the Human Rights Act came into force last October, 'freedom of expression' (Article 10 of the European Convention on Human Rights) has become available as a defence in UK courts.

I hope you don't mind if I take you through my analysis of why the violation of Article 10 for musicians should now be taken very seriously by local authorities.

Why should performances be stopped where there are no safety concerns? Article 10 is a 'qualified right', in the sense that there are limiting conditions. 'Public safety' is the only one that applies here. However, the provision of Section 182.1 of the Licensing Act 1964, which gives rise to all the formal cautions and prosecutions against local live music in pubs and bars, cannot be public safety because it operates irrespective of the number of persons present. For example, there may be only three people in a pub, but if they sing they are breaking the law - unless an entertainment licence is purchased. There can be no overcrowding issue here, and it is usually overcrowding that local authorities mean when they talk about public safety risks. In any event, public houses, like all 'workplaces', are covered by a slew of health and safety Acts and Regulations that cover all activities taking place on the premises. Providing employers have fulfilled their statutory duty to make comprehensive risk assessments, and the Environmental Health department has fulfilled its statutory duty to audit complaince with the appropriate statute - there should be no problem at all. Indeed, under Schedule 1 of the Health and Safety (Enforcing Authority) Regulations 1998, safety inspections may include 'practice or presentation of the arts... entertainment or other cultural activities' within their remit. That phrase has, I understand, been in the statute since 1989. In other words, if the pub was seriously unsafe, then either the local authority, the fire service, or both, must have failed to fulfil their statutory duty to ensure all workplaces are safe. Making live music an excuse to discover this is absurd, irrational and unfair. Satellite tv, for example, which is exempt from the public entertainment licence requirement, often attracts large and noisy crowds - but do you see Environmental Health inspectors wading in to turn off the TV? Not likely. But they can, and should, if there is any significant public safety risk. But local authorities prevent live music on the basis of a breach of Section 182 where no prior assessment of any public safety risk has been undertaken, and where no noise complaints have been received. It is this action that places them at risk of acting unlawfully under the Human Rights Act (HRA). Under the HRA, local authorities have a statutory duty to interpret all legislation compatibly with European Convention rights. Where there two possible interpretations of the law, one of which is compatible and the other not, the compatible interpretation must be taken. The fact that a court may have interpreted a law in a certain way before does not mean that after the coming into force of the HRA, it will interpret the provision in that same way. Nor can that earlier interpretation be relied upon by a public authority (i.e. local authority). Under the HRA all local authority prosecutions must also now pass a stringent test of 'proportionality'. I have adapted some of the above from the Home Office's own 'Core Guidance to Public Authorities'. Here's what they have to say about proportionality: This is a crucial concept. Any interference with a Convention right must be proportionate to the intended objective. This means that even if a particular policy or action which interferes with a Convention right is aimed at pursuing a legitimate aim (for example the prevention of crime) this will not justify the interference if the means used to achieve the aim are excessive in the circumstances. Any interference with a Convention right should be carefully designed to meet the objective in question and must not be arbitrary or unfair. You must not use a sledgehammer to crack a nut. Even taking all these considerations into account, in a particular case an interference may still not be justified because the impact on the individual or group is too severe. Many Section 182 prosecutions would fail these tests. And, since the musicians are quite definitely directly affected by these prosecutions, they could bring proceedings against the prosecuting authority. Compensation could be sought. Folk music is an important cultural tradition which cannot exist without public peformance. It relies on performance for the transmission of this musical heritage to the next generation. Article 10 of the European Convention refers to the '... freedom to... receive and impart information and ideas without interference by public authority...'. It may not be immediately obvious that music would be counted as 'information and ideas', but I have a letter from Philip Alston, Professor of Law at the European University Institute in which he refers to live music as 'this very important form of information'. Professor Alston is the author of many well known law textbooks, particularly in the human rights field. He was chairperson of the UN Committee on Economic, Social and Cultural Rights from 1991 to 1999. The new legal environment created by the HRA also opens UK courts to the world of comparative jurisprudence. And this brings me back to New York City, where jazz musicians brought that successful freedom of expression lawsuit against very similar anti-live music laws in 1988. This ended an oppressive regulatory framework that had stood for more than 50 years. I am not saying that the fundamental rights approach would necessarily have such a dramatic impact here (a 'declaration of incompatibility' may be the best outcome), but since common sense arguments appear to have failed to persuade local authorities to act rationally and fairly in respect of live music, then perhaps it is time to flex some legal muscle.

I am not a lawyer, and would definitely not recommend simply jumping in at the deep end on this. But it something to think about, and if raised in the right context (meetings with your local authority licensing chief, head of the Arts Dept), and with some legal advice, it may persuade local authorities that a fundamental rethink of enforcement policy is called for.

Please let me know if you have first-hand experience of what you regard as heavy-handed local authority enforcement and I will bring it to the attention of both the Arts Council and the Home Office.

With best wishes. Hamish Birchall