LICENSING BILL


69. The Licensing Bill is the product of a long period of consideration and consultation about the modernisation of licensing law. The Bill covers entertainment licensing as well as liquor licensing. Explanatory Notes have been published.[71] Our predecessors expressed views about certain aspects of licensing law when it reported on the Criminal Justice and Police Bill in the 2000-01 session.[72] In particular, they considered provisions which now form Chapter 2 of Part 1 (sections 12 to 32) of the Criminal Justice and Police Act 2001, and sections 169I, 172A and 179A-179K of the Licensing Act 1964, and advocated improvements to the language in which certain criminal offences were expressed.[73]

70. The present Bill would repeal the 1964 Act in its entirety, and make certain amendments to other legislation, including Chapter 2 of Part 1 of the Criminal Justice and Police Act 2001. The provisions governing licensing and various offences (including those considered by the Committee in the 2000-01 session) would be comprehensively revised.

71. In considering the offence of allowing 'any violent, quarrelsome or riotous conduct' on licensed premises,[74] our predecessors recommended that the definition of offences committed by people who permit certain types of behaviour on licensed premises should be amended 'to ensure that adequate legal certainty and proportionality can be achieved in the definition of criminal offences.'[75] The equivalent provision proposed in the present Bill is to be found in clause 138(1): 'A person to whom subsection (2) applies commits an offence if he knowingly allows disorderly conduct on relevant premises.' It seems to us that this wording meets the previous Committee's concerns. We are pleased that the Government has been able to draft a satisfactory replacement for the previous provisions.

72. Any regime for regulating the supply of alcohol, and for licensing premises for the sale of alcohol,[76] interferes with the freedom of owners of premises to use them for the sale of liquor, and with the freedom of owners of intoxicating liquor to sell it. As the freedom to dispose of property or to use property for one's own chosen purposes is an aspect of the right to peaceful enjoyment of possessions under Article 1 of Protocol No. 1 to the ECHR (hereafter 'ECHR P1/1'), the whole of the Bill interferes with that right.

73. The Explanatory Notes outline the Government's reasoning leading to the conclusion that the provisions are compatible with rights under P1/1 and ECHR Article 6.1.[77] Essentially, it is argued that the restrictions pursue a legitimate aim under and are proportionate to that aim for the purposes of P1/1, and provide for a fair procedure complying with Article 6. In view of the potentially damaging effects of alcohol on individual health and safety and on public order, there is a clear public interest in regulating the sale and public consumption of alcohol. We accept the Government's view, and do not propose to comment further here on this aspect of the Bill.

74. The Explanatory Notes address the applicability of the right to freedom of expression to the provisions of the Bill in relation to the offence of carrying out licensable activities without due authorisation under clause 134 of the Bill.[78] Several submissions to us[79] have argued that criminalising all 'regulated entertainment' unless it is licensed would violate the rights of performers under ECHR Article 10. Under Schedule 1 to the Bill, regulated entertainment includes the following—

(a) The performance of a play; exhibition of a film; an indoor sporting event; a boxing or wrestling entertainment; a performance of live music; any playing of recorded music; a performance of dance; certain entertainments similar to live or recorded music or dance; if in each case it is provided in the presence of an audience for the purpose of entertaining the audience.[80]

(b) Providing facilities to enable people to make music, to dance, or take part in entertainment of a similar description.[81]

Entertainment or facilities under (a) and (b) are regulated entertainments only if they are provided for members of the public or a section of the public, or members of a qualifying club with or without guests, or for consideration and with a view to profit.[82]

(c) Any entertainment at all, if it takes place on premises made available for the purpose, or partly for the purpose, of enabling the entertainment in question to take place.[83]

75. The effect of this would be to remove the current exemption from the regulation regime for live performances by no more than two performers. As such, the Bill would interfere with the rights of performers, and those who make facilities or premises available, under ECHR Article 10.1. The question is whether the Government is right to say that the interference is justifiable under Article 10.2.

76. The Government's view is as follows.

The offence in clause 134 of carrying out licensable activities without due authorisation may amount to an interference with rights under Article 10 (freedom of expression) since it could indirectly have the effect of imposing restrictions on performances by artists and musicians. However any such interference would be justified under Article 10(2) as being necessary in a democratic society on grounds of public safety, the prevention of crime and disorder and the protection of the rights of others, since it is central to the regime for the regulation of licensable activities that the activities may be carried out only under authorisation.[84]

77. This does not explain why the measure is thought to be a proportionate response to a pressing social need so as to fall within the justification under Article 10.2. The inflexibility of the provision makes it difficult to be confident that it could be applied in a proportionate way and only in response to a pressing social need. We consider that there is a significant risk that the provision would amount to an unjustifiable interference with, and hence a violation of, rights under Article 10. Nor does it appear to us that the Government has so far provided an adequate justification for the provision so far as it interferes with the right of owners and occupiers of premises to peaceful enjoyment of their possessions under ECHR P1/1. We have therefore written to the Minister seeking a fuller justification for the provisions of clause 134 of the Licensing Bill in relation to the criteria set out in ECHR Article 10.2.[85]

78. Clause 18(2) of the Bill provides that the licensing authority 'must grant' a licence (subject to any conditions authorised by that sub-clause) in the absence of relevant representation made under clause 18(3). Relevant representations are representations about the likely effect of granting the licence on the promotion of the licensing objectives, which do not include respect for or protection of Convention rights: clause 4(2). The representations must be made by an interested party or responsible authority (fairly narrowly defined by clause 13(3), (4)) must not be vexatious or frivolous, and must satisfy certain other criteria: clause 18(6)-(9).

79. It has been submitted to us that the duty to grant a licence under clause 18(2) would prevent a licensing authority taking account of the effect of the licence on residents' rights to respect for their private lives and their homes, unless someone had made a relevant representation. The right includes a certain level of protection against noise pollution at night: ECHR Article 8, as interpreted by the European Court of Human Rights in Hatton v. United Kingdom (the case relating to noise at night around Heathrow Airport). In our view the express terms of clause 18(2) would be impossible to interpret away using section 3 of the Human Rights Act 1998. It seems to be capable of forcing the licensing authority to act in a manner incompatible with Convention rights in certain circumstances. We have therefore written to the Minister asking why the Government considers that these provisions adequately safeguard Convention rights.[86]

80. Clause 167 would exempt the police from liability for damages in proceedings for judicial review, the tort of negligence or misfeasance in public office arising out of any act of omissions in the performance or purported performance of his functions in relation to a closure order on licensed premises. This exemption would not prevent liability arising where an act or omission were done in bad faith or where the unlawfulness arose from incompatibility with a Convention right. It has been suggested that the provision might lead to a violation of Article 6 or Article 13 of the Convention. The former is, but the latter is not, one of the Convention rights for the purposes of the Human Rights Act 1998. However, it seems to us that the limitation of the exemption, by clause 167(3)(b), so that it does not apply where damages would be available for unlawfulness arising under section 6 of the Human Rights Act 1998, would be effective to protect against violation of Convention rights, particularly as remedies other than damages would still be available.

81. Clause 180 could prevent a licensing authority or responsible authority from passing on information about alcohol-related disorder and similar matters to people other than a licensing authority or responsible authority. It has been said that it would make possible a violation of the right to information about environmental threats under ECHR Article 8 as interpreted by the Strasbourg court in, e.g., Guerra v. Italy. In view of the type of information involved, we do not consider that this is a sufficiently serious threat to amount to a violation of Article 8.