URGENT

The following from Hamish Birchall.

When the Licensing Act 2003 is finally published, Secretary of State Tessa Jowell has to make a statement on the front of the Act that it is, in her view, compatible with the European Convention on Human Rights.

Personally, I cannot see how the Act is compatible with musicians' right to freedom of expression. How can it be proportionate that even unamplified solo performance remains illegal unless licensed, but you can pack 'em in with big screens and a powerful PA?

The Joint Committee on Human Rights is to consider the Licensing Bill a final time. It may still make a difference to write to the JCHR at: jchr@parliament.uk

If it is of any help, here is a copy of the submission I have put in today:

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FAO    Paul Evans, Clerk to the JCHR
          Prof. David Feldman
          Lord Lester of Herne Hill
          JCHR Members
          John F Smith, Musicians' Union General Secretary
          Horace Trubridge, Central London Branch Secretary, MU
          Keith Ames, MU Communications Officer
From    Hamish Birchall, Musicians' Union adviser - PEL reform

Dear Mr Evans

I would be grateful if you would make this email available to the Committee as soon as possible.

Once ratified by the House of Commons, the Licensing Bill should go on to receive Royal Assent. Secretary of State Tessa Jowell will make a declaration on the face of the Licensing Act 2003 that it is in her view compatible with the ECHR.

However, I do not see how the Bill can be declared compatible with rights under Article 10.1 of the ECHR. There may also be incompatibility with rights under Article 8. The following will explain my reasoning:

Last Thursday (03 July) during debate in the House of Lords, the Government made a concession in the form of an amendment exempting 'a performance of morris dancing or any dancing of a similar nature or a performance of unamplified, live music as an integral part of such a performance...' (Amendment 62L).

While grateful for further concessions, this exemption leads to more anomalies and further undermines the government's argument that entertainment licensing is a justifiable interference with performers' right to freedom of expression under Article 10.2. For example, under the Bill as now amended it would be a criminal offence to organise, say, a public piano recital in a library or even your own home, unless first licensed. However, if the pianist were to accompany folk dancers, the event would be exempt.

Customers in a bar swaying rhythmically to a performance by one musician, could, on the other hand, lead to a licensee facing heavy fines and a jail sentence - unless the venue were licensed for the provision of these regulated entertainments.

Also last Thursday, the Government made concessions for unamplified live music in places used for the supply and consumption of alcohol (see Amendments 62B through to 62J). The provision of both unamplified and amplified live music in such places remaind illegal unless licensed; however, the licence conditions are restricted.

It is rather difficult to interpret these amendments of amendments, but having now checked with the DCMS, it seems Lord Phillips of Sudbury was correct in pointing out during the debate that the concession for amplified and unamplified live music in pubs is totally contradictory.

The amendments appear to mean that a bar licensed for amplified live music will not, initially, be subject to noise conditions and, if granted 24-hour opening, the music could go on all night.

This is quite obviously incompatible with residents' rights to a quiet night's sleep under Article 8 of the ECHR. However, a pub licensed only for unamplified live music has a performance time constraint: performance is prohibited between midnight and 8am.

I would add some comments about three of the four licensing objectives:

Public safety
The Government justifies its position with repeated claims about the inadequacy of public safety and fire safety legislation where entertainment is provided, even at the smallest scale.

Yet the Government has never produced any evidence from a qualified authority setting out how this legislation is deficient such that entertainment licensing is the only means to ensure public safety. Indeed, in their statements Government Ministers appear to have relied on uncorroborated assertions made by unqualified civil servants within the DCMS.

By contrast, the Musicians' Union, together with the Arts Council, has provided at least two detailed reports by a lawyer with health and safety expertise, and one statement from a former Home Office entertainment safety expert, to the effect that existing legislation is indeed adequate to allow an exemption for small-scale performance.

Furthermore, senior officials at the Local Authority Unit of the Health and Safety Executive confirmed last week that risks arising from trailing cables, for example, should be covered in workplaces irrespective of licensing. (I attach the email response from the official concerned.) Officials at the Office of the Deputy Prime Minister, the Department responsible for the new fire safety laws due to come into force in 2004, have also said that under the new fire safety laws licence conditions should not be necessary (contact Andy Jack, ODPM: 020 7944 6632).

Noise
The Committee will be aware by now that there is no evidence of a significant noise problem caused by live music. The overwhelming majority of noise complaints associated with pubs and clubs are caused by noisy people outside.

There are in addition very strong powers available to local authorities and the police to deal with noise emanating from within bars and pubs etc, although it is probably true that there are inadequate resources with which to implement these powers.

Throughout this debate the Government notably avoided mention of the noise data and comment provided by the MU (from the Noise Abatement Society, UK Noise Association, Residents' Associations in Soho and Covent Garden, Institute of Alcohol Studies and so on).

Earlier in the year the DCMS instead selectively and inaccurately quoted from an unpublished document by the Institute of Acoustics, not even identifying the title, in a manner which suggested that live music was top of the list of sources of complaint.

The President of the IoA subsequently wrote to Tessa Jowell objecting to the way in which their publication had been used without their permission. The IoA document, the 'Good Practice Guide on the Control of Noise from Pubs and Clubs', was finally published in March 2003. It does list noise from amplified and unamplified music as a source of complaint, but it also states:

'Noise disturbance can also arise from televised sporting events, which are often relayed at high volume and can be accompanied by patrons cheering, shouting and singing.' [p5, para 3.4]

That sentence was present in the draft IoA document quoted by the DCMS, and yet it did not appear in the DCMS publications and letters sent to MPs and the public concerning the purpose of and justification for the entertainment licensing provisions in the Licensing Bill.

Crime and disorder
Again, during last week's debate, Government Minister Lord McIntosh put forward the following justification for licensing live music:
'... because of public concern over drugs, guns and extreme right-wing bands who excite the audience to racist violence as part of their act.'

It is perhaps significant that this rather dramatic announcement should be made at the 11th hour of the licensing debate. The issues raised are of course matters of serious concern, but it is hard to understand how such problems relate to chamber musicians performing in libraries and other public places, or folk musicians in bars, who are also caught by the licensing regime.

In fact, ACPO's representative on the Licensing Advisory Group has confirmed that most of the problems described by Lord McIntosh occur in premises that are already licensed for entertainment. The Government has provided no evidence of any crime and disorder associated with the two performer exemption in licensed premises, or from private events raising money for charity or any of the other currently exempt events.

On the other hand, the police made written representations to the DCMS last November stating that televised sporting events are 'quite frequently a source of disorder' and should therefore be declared on the operating schedules that must accompany licence applications. Only licensable entertainments are required to be declared on these schedules.

Conclusion

On 26 June 2003, Richard Caborn, the new Culture Minister with responsibility for licensing, wrote a letter to Dennis Skinner MP explaining, among other things, why the Government exempted public places of religious worship:

'The approach set out in the Licensing Bill reflects the current exemption for places of public religious worship in relation to the provision of music outside Greater London, and at the same time brings Greater London within this exemption, thereby removing the artificial geographical distinction currently drawn in this aspect of the licensing regime.

This approach has been approved by both Houses of Parliament. To remove this exemption without any evidence of a public interest reason to do so would, in our view, raise issues concerning the compatibility of the provisions with the right to freedom of expression under Article 10 of the European Convention on Human Rights and would appear to be contary to the public interest.' [Richard Caborn to Dennis Skinner, 26 June 2003, ref: CO3/04325/02468/mk. My emphasis]

Mr Caborn's argument could equally be applied to other current PEL exemptions. The Government has provided no evidence of 'a public interest reason' to abolish the 'two in a bar' exemption, or any other existing entertainment licensing exemption. In the absence of such evidence, or indeed any credible argument that small-scale performance which finishes at a reasonable hour requires entertainment licensing, the increased licensing control proposed in the Licensing Bill has surely no legitimate basis.

The reference to an 'artificial geographical distinction' is also significant. Account must therefore be taken of the situation in Scotland, where exactly the same safety and noise laws apply as in England and Wales. In bars and other places licensed for the sale and consumption of alcohol in Scotland no entertainment licence for live music is required provided the music is secondary to the main business, and finishes within 'permitted hours'.

The DCMS has claimed that Scotland is different because licensing boards have powers to impose conditions. But licensing justices in England and Wales have similar powers (under s.4 of the Licensing Act 1964). According to Jack Cummins, editor of 'Scottish Licensing - Law and Practice', no prior conditions have ever been applied to the provision of live music in this context in Scotland.

I would be grateful if the Committee would consider whether, in view of the above, it is appropriate for the Bill to be declared compatible with rights under Article 10.1 of the ECHR.

Yours sincerely

Hamish Birchall