This from the UK Musician's Union.

In view of the government's proposal to criminalise the provision of almost all live music without a licence, the Musicians' Union will be making representations to the UK Parliament's Joint Committee on Human Rights (JCHR).

Please let me know by return if you support the MU approach to the JCHR, whether as an individual, or on behalf of any organisation, club etc. If you do represent an organisation please give details. When writing to the JCHR next week the MU will cite those in support.

Hamish Birchall
E-mail Address(es):
hab.drum@virgin.net


The MU position:
The MU believes the government's approach is disproportionate and incompatible with Article 10 of the European Convention on Human Rights, now incorporated into UK law.

There are alternative solutions (i.e. Scotland, Ireland, Germany, Denmark, Finland, New York City) which would allow the government to achieve legitimate aims, such as public safety and noise control, without criminalising the provision of unlicensed performance in almost every case.

Earlier this year the MU obtained an opinion from a leading human rights QC, Robin Allen, who concluded that the government's approach, if legislated, would be 'very clearly in conflict with Article 10'. The HRA requires all new legislation to be compatible with Convention rights, and the JCHR considers new legislation where there are potential incompatibilities.

If wish to make direct representations to the JCHR, write to: Paul Evans, Clerk, JCHR, House of Commons, London SW1A 0AA
Or email:
jchr@parliament.uk



If you are unsure how Article 10 is supposed to operate, please see below. For information about the JCHR please use these links:

http://www.parliament.uk/commons/selcom/hrhome.htm

and

http://www.parliament.uk/commons/selcom/hrfaq.htm#q4



Article 10 of the European Convention on Human Rights - live music
Music-making, to the extent that it involves receiving and imparting 'information and ideas' is covered by Article 10(1) of the European Convention ('freedom of expression'), now incorporated into UK law with the Human Rights Act. The actual wording is:

'Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.'

However, this does not mean a free for all. Far from it. Article 10(2) allows governments, or public authorities such as the police or local authorities, to restrict the exercise of this right for various reasons, including public safety, the prevention of crime and disorder, and to protect the rights of others (such as the right 'to a quiet night's sleep', which is provided by Article 8: respect for private and family life).

But these restrictions are not regarded by the European Court as competing principles of equal weight.

Proportionality is a key concept. In order to justify interference by increased licensing controls, the government must show that these restrictions are necessary - not expedient - to serve a pressing social need in a democratic society, and that they are a reasonably proportionate response to that need. In other words, to justify increased licensing control, and criminal law sanctions, the government must show that live music is causing significant social problems.

To the best of my knowledge, Culture Minister Kim Howells has never said abolishing the two in a bar rule was necessary for public safety reasons. He has always said abolition is necessary 'because one musician with modern amplification can make more noise than three without'. In other words, to protect local residents' right to a quiet night's sleep.

It seems very strange, therefore, that the Minister is proposing to criminalise the provision of even one unamplified performer without a licence.

And, as we now know, noise complaints caused by live music in bars are a very small proportion of overall noise complaints. It would be hard for the government to show that removing the exemption for live musicians served a pressing social need.

Indeed, the government's retention of the exemption for broadcast entertainments and any incidental amplified recorded music further undermines the noise-reducing justification for increased licensing of live musicians.

The Scottish licensing regime reinforces the argument that there is no justification to treat live music more harshly in England and Wales. Incidental live music in bars or restaurants in Scotland does not require any prior permission or licence if it takes place during permitted hours. Safety and noise in those circumstances is regulated by subsisting UK-wide legislation.

Of course, the government's proposals go far wider than abolition of the two performer exemption. There has been much coverage in the press this week about the abolition of the exemption for live music in churches outside London (other than music incidental to a religious service).

Carol singing or any organised singing, out and about, would be a criminal offence without a licence. And it really does look as though the Bill means that payment to musicians triggers the licensing requirement, thereby necessitating the licensing of hitherto exempt paid private function gigs.

These are strong grounds for the JCHR to consider the Licensing Bill in terms of its potential incompatibility with Article 10. And don't forget the New York City precedent: in 1988, a three-in-a-bar rule was struck down because it was found to be in violation of jazz musicians' First Amendment rights.

Small bars and clubs (up to 199 listeners) in New York City are now exempt from licensing for live music (although 'social dancing' requires a 'Cabaret licence'). Noise is regulated by 'noise patrols' - which would be a far better use of council resources than the present practice of putting bars under covert surveillance just see whether more than two people sing.