The following from Hamish Birchall.

Please circulate:

On 10 January the government submitted its response to the Joint Committee on Human Rights concerning the Licensing Bill. The Committee had criticised clause 134 of the Bill arguing that there was a potential violation of performers' rights under Article 10 (freedom of expression). The Committee also cited inadequate protection of residents' rights to a quiet night's sleep (right to private and family life: Article 8).

In respect of Article 10, the Committee complained that no 'pressing social need' had been provided, as the law now requires, to justify the potential interference with the right to freedom of expression caused by the abolition of the two performer exemption and the criminalisation of musicians who perform without first checking that premises are licensed. The Committee said of the meagre explanation provided in para 230 of the Explanatory Notes: 'It is not a justification; indeed, it seems to be an attempt to pull the Bill up by its own bootstraps'.

See below for a text copy of the government's response, signed off by Kim Howells.

The MU did not gain sight of this until 28 January, leaving us just two days in which to provide comment for the Committee. In spite of the tight deadline we were able to provide a 3-page commentary faxed over to the Committee office at close of business on Friday 31 Jan. The Committee yesterday considered the government's response, and comment by the MU and the Performer-Lawyer group among others. The Committee will publish its conclusions in due course.

The Minister's arguments are not persuasive. While there are genuine reasons for limited restrictions on the right to freedom of expression, crucially the Minister provides no evidence at all that subsisting legislation is insufficient to provide such restrictions. A 'pressing social need' in this context might be, for example, evidence of an increased public safety risk arising from live music, or evidence that live music has become a major source of noise complaint or indeed a greater source of complaint than recorded music. No such evidence is provided. Nor is there any mention of any weakness in subsisting safety, noise or crime and disorder legislation, which might justify an increase in licensing control.

Knowledge of the government's lacklustre justification may prove useful in future correspondence with MPs. When reading it, please keep in mind that:

It is not just the two performer exemption that is at issue - the Bill criminalises virtually all public performance, amplified or acoustic, in 'any place' unless licensed (except churches, as of yesterday).

Amplification equipment has been in use in pubs and bars for over 50 years.

Safety legislation already requires employers to make risk assessments of all activities on their premises. If a new activity, such as a performance of live music is to take place, a new risk assessment must be made. If amplification is to be used, the risk assessment must deal with any added burden placed on any electrical systems.   

Health and safety legislation already lists activities including 'entertainment', 'practice or presentation of the arts' as among the activities local authorities are empowered to regulate in workplaces (like pubs or churches).

The Bill exempts big screen entertainment and jukebox music, no matter how powerfully amplified.

The DCMS did not receive many representations about Article 10 - but the JCHR office did.

Excerpt from letter dated 10 January 2003 from Kim Howells to Jean Corston MP, Chair, Joint Committee on Human Rights:

"... The second matter is a concern of the Committee that clause 134 removes the exemption from the licensing regime in respect of live performance by no more than two performers. Under clause 134 of the Bill, it would become an offence for such a live performance to be conducted otherwise than in accordance with an authorisation. The Committee has raised two questions on this matter. However, before turning to those points, we felt it may be helpful to the Committee if we set out two general matters by way of background, which are relevant to the Committee's concerns.

"The first of these relates to the indication given by the Committee regarding the insufficiency of paragraph 230 of the Explanatory Notes, in justifying the interference that clause 134 presents to rights under Article 10 of the Convention and Article 1 of the First Protocol to the Convention. The Department had prepared, for the purposes of LP Committee, a separate and detailed memorandum relating to ECHR considerations. However, in accordance with the latest guidelines to departments, the Department incorporated brief observations on such considerations into the Explanatory Notes that accompanied the Bill on Introduction. Unfortunately, this resulted in some detail of the Department's consideration of Convention rights and its assessment not finding its way into the latter document. The Committee will note that paragraphs 228 and 229 of the Notes relate in their entirety to Part 7 of the Bill, including clause 134.

"The second matter by way of background that the Committee may find useful is clarification of the current position in relation to two live performers and an indication of how this operates within the present licensing regime. Presently, where persons want to have musicians performing at premises, a public entertainment licence is required. A narrow disapplication from this requirement is provided in s. 182 of the Licensing Act 1964. In relation to live music, the disapplication from the need to have a separate public entertainment licence only applies where a justices' licence under the 1964 Act is in existence in relation to the premises and where the performance is by no more than two performers. However, this does not apply if there are more than two performers or if the performance of live music by up to two performers is combined in any way with recorded music. Thus, for example, the performance of a single musician accompanied by recorded music would require a public entertainment licence in addition to the justices' licence and the disapplication would not obtain.

"It is clear from the above that, for the disapplication to apply, an authorisation currently needs to be in existence in any event, namely a justices' licence in relation to the premises. Under the system to be established in the Bill, only one licence need be obtained for premises by those wishing to use their premises for such performances, regardless of the number of performers, and the combination of music to be performed. Accordingly, the system to be introduced will not, in any practical way, involve more by way of regulation for musicians to perform and, it is hoped, this could benefit musicians by removing the need for two separate authorisations which would be the current position in the vast majority of cases, from difference licensing bodies.

"It should be noted that clause 134 represents the successor offence provision for section 160 of the 1964 Act and similar offence provision in relation to public entertainment (e.g. paragraph 12 of Schedule 1 to the Local Government (Miscellaneous Provisions) Act 1982.

"It was from the outset conceded by the Department that the removal of this disapplication may interfere with Convention rights in two ways. First, to the extent that their performance would fall within the disapplication, it interferes with the right of musicians to freedom of expression under Article 10 and secondly, it involves a control of use of property under Article 1 of the First Protocol, in respect of those wishing to allow on their premises performances by no more than two live performers.

"The Committee raises two specific questions in relation to the existing position. The first question is how the interference which clause 134 poses to rights under Article 10 of the Convention can be justified under Article 10.2 of the Convention. In order for any interference to be justified under Article 10.2, there must be a pressing social need for the interference in pursuance of a legitimate aim. Of course, the offence provisions in Part 7, including clause 134, are included to ensure that the licensing regime is adhered to for the promotion of the licensing objectives (including the protections those objectives afford to both general and specific interests).

The legitimate aims pursued by clause 134 are one or both of the following, namely the interests of public safety and protection of the rights of others (and the prevention of crime and disorder). In relation to performers, public safety issues arise because amplification equipment is now commonly used in relation to such live musical performances and it is important that the fire authorities are empowered to examine premises using such equipment, in order to ensure that adequate safety measures are in place at the premises. In the case of the protection of the rights of others, in this context this is specifically referring to protecting the rights of local residents not be subjected to excessive noise nuisance created by such performances. Because, as stated above, amplification equipment is commonly used, a performance even by a sole singer can create noise of a level sufficient to disturb local residents.

The pressing social need for the interference arises owing to the importance of the protection of the rights of these local residents and the importance of public safety when balanced against the rights of musicians to perform on premises without the need for an authorisation (this balance is reflected in the current system as a justices' licence is required).

"The second question posed by the Committee is how the interference which clause 134 poses to the right of peaceful enjoyment of possessions can be justified under Article 1 of the First Protocol. In order for this control of use of property to be justified, it must represent a fair balance between the rights of individuals and the public interest. We are of the view that the offence provisions in clause 134 represent such a fair balance, when the rights of owners to use their property for such live performances are balanced against the importance of the general interest of ensuring the public safety and the prevention of public nuisance for local residents.

"The Department has received little by way of representation in connection with the Bill in relation to human rights issues. However, representations have been received from the Musicians' Union in relation to Article 10 rights and from one Resident's Association about Article 8.

Dr Kim Howells MP"