The JCHR 21 July 2003

http://www.publications.parliament.uk/pa/jt200203/jtselect/jtrights/149/14908.htm#a7


5.1 The Licensing Act 2003 received the royal assent on 10 July.

We reported on the Licensing Bill on several occasions during its progress through each House.[36] In our Twelfth Report, we drew the attention of each House to our view that the proposals for exempting places used for public worship from the requirements of the licensing regime, and allowing certain other places associated with places of public worship to obtain licenses without paying the usual fee, might be regarded as discriminating against the occupiers and users of purely secular premises.

We were concerned that these exemptions might give rise to a significant risk of violating the right to be free of discrimination under ECHR Article 14, taken together with ECHR Articles 9 (right to freedom of religion, conscience and belief) and 10 (freedom of expression). We were also concerned that there was a risk that the exemptions might—

… leave a patchwork of different licensing requirements without a coherent rationale, calling in question the existence of a pressing social need for the restriction on freedom of expression through a licensing regime for public entertainment, and so undermining the Government's claim that such a licensing regime is a justifiable interference with the right to freedom of expression under ECHR Article 10.2.[37]

5.2 The Department for Culture, Media and Sport subsequently expressed concern about our apparent failure to take account of a letter from the Minister to the Committee, sent in April 2003, explaining that the exemptions for premises used for public worship would simply extend to London the system which, under existing licensing law, applies in the rest of England and Wales, and stating that the Government takes the view that such a move would have a rational and objective justification for the purposes of ECHR Article 14.

5.3 That letter (which is published as an annex to this Report)[38] did not explain why the Government considered that there was an objective and rational explanation for distinguishing, for the purpose of entertainment licensing law, between places used for public worship and other places. The distinction was introduced to the law before the Human Rights Act 1998, and with it ECHR Article 14, took effect in the domestic law of the United Kingdom.

It is now necessary to test the special treatment of such premises by reference to the standards of the ECHR. A proposal to extend the differential treatment to new parts of the United Kingdom merely makes the need for that assessment more pressing. The Minister of State for Sport provided further clarification in a letter received on 2 July 2003. (This letter, too, is published as an Annex to this Report.)[39]

So far as is relevant to this issue, the Department pointed out that the exemption for places of public religious worship from the requirements of entertainment licensing law would benefit people who were using the premises for the enjoyment of secular entertainment there. Those people might be of any religious affiliation or of none. In addition, the exemption for religious venues is a recognition of the—
… distinct pastoral role in the community played by many of the faiths and the wider responsibility that, for example, the church has in bringing the community together.

5.4 The Minister also drew attention to the central role of the churches to the development of music in this country, particularly because churches provide venues large enough for the performance of many pieces of music requiring large forces. For these reasons, the Government argued that Articles 9, 10 and 14 are not engaged, but that, if they were engaged, there is a rational and objective justification for the exemption which does not call into question the pressing social need to regulate public entertainment in general.

5.5 Places of public religious worship play an important part in the development and performance of secular as well as religious music and other artistic activities of considerable cultural value. However, it is arguable whether these considerations mark those places out sufficiently from other artistic and musical venues to justify, in an objective and rational way, the different treatment afforded to them in relation to entertainment licensing.

A large number of correspondents wrote to us just prior to the Commons' consideration of Lords Amendments to the Licensing Bill on 8 July, arguing the case for further intervention before the Bill became law.[40] A number of these were under the misapprehension that the Government would be required to make a "section 19 statement" on the face of the Act, guaranteeing compliance with Convention rights.

In fact, of course, the Human Rights Act expressly preserves the right of Parliament to legislate as it thinks fit, having due regard to Convention rights, and to the opinion of the Minister on these matters, which is stated only when a Bill is first introduced into either House. In the case of the Licensing Act, Parliament has now legislated.

5.6 Before leaving this measure, we wish to take an opportunity to correct a misleading comment made in our earlier discussions of the Licensing Bill. In our Fourth Report, we suggested that the regime for public entertainment licensing in the Bill would not cover the use of amplification equipment for recorded music, but only electronic amplification of live music.[41]

The Department has pointed out that this suggestion was based on a misconception. We accept that the Act covers performances of live and recorded, amplified and unamplified music in the same way, as the description of entertainment to which the Bill applies, contained in Schedule 1 to the Act, makes clear.


http://www.publications.parliament.uk/pa/jt200203/jtselect/jtrights/149/14911.htm

Letter from Dr Kim Howells MP, Minister for Tourism, Film and Broadcasting, Department for Culture, Media and Sport, to the Chairman
Joint Committee on Human Rights: Seventh Report
I am writing in response to the points that you raised in your Seventh Report, regarding the compatibility of the Licensing Bill with the European Convention on Human Rights ("the Convention").

In relation to the point previously raised in your Fourth Report, regarding the compatibility of clause 134 of the Bill with Article 10 of the Convention, I am pleased to note that the amendments we made to that clause on Report in the House of Lords overcome your concerns.

I note, however, that you have drawn to the attention of each House the matter raised in paragraph 35 of your Seventh Report ("the Report"), namely that exempting from the requirements of the licensing regime the provision of regulated entertainment in places of public religious worship may give rise to issues of discrimination under Article 14 of the Convention. I hope the Committee will find it helpful if I set out in a little more detail our reasoning behind this policy.

As you note in paragraph 34 of the Report, the licensing regime serves legitimate aims, namely the protection of public safety, the protection of the rights of others and the prevention of crime and disorder. Indeed, these aims are enshrined as key licensing objectives in the Licensing Bill as the prevention of crime and disorder, public safety, the prevention of public nuisance (it is the Government's intention to restore this as the third licensing objective) and the protection of children from harm.

As you also note, there is a pressing social need for regulation owing to the importance of these public interest issues. The question of the extent of that regulations for the purposes of compatibility with the Convention, therefore becomes a question of proportionality.

In practice, addressing the concerns that you raise in paragraph 35 of the Report presents us with very little choice beyond maintaining the provisions in the Bill as they currently stand. It appears to us that we could either provide a wholesale deregulation of the provision of regulated entertainment, or impose a blanket requirement for all premises to be licensed before the provision of any public entertainment may take place.

We believe that neither approach would represent a proportionate response. The former approach, of course, would remove the essential protections contained in the licensing regime that are necessary in the interests of public safety, for the protection of the rights of others and for the prevention of crime and disorder.

The latter approach would engage other Convention rights, particularly the right to freedom of expression set out in Article 10 of the Convention. Walking the correct line between these competing Convention rights, as noted above, is achieved by ensuring the proportionality of the regime.

We believe that the approach to the regulation of entertainment set out in the Licensing Bill represents a proportionate response, a fair balance and has an objective and reasonable justification. In all places outside Greater London, the current licensing regime treats the provision of music at places of public religious worship differently from that provided at secular venues—the former is exempt from the requirement for a public entertainment licence (Local Government (Miscellaneous Provisions) Act 1982, Sch 1, para 1(3)(a)(i)) whereas secular venues currently are the subject of control.

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.

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 Convention and would appear to be contrary to the public interest. Further, you will note that there is a power in paragraph 4 of Schedule 1 to the Bill to add to, vary or remove any description of entertainment. Accordingly, if in the future, evidence was received suggesting the need, in the public interest, to remove or modify the exemption in relation to places of public religious worship, we would be empowered to do so.

On the issue of proportionality, I should also mention that Guidance issued in conjunction with the Bill will play a vital role in ensuring that a proportionate approach is taken to those venues which do form the subject of the licensing regime. We acknowledge that certain venues which are currently licensed, and which will fall within the scope of regulation under the Bill, have a recognised role to play in the community.

We will be making it clear in Guidance that in relation to such venues, eg village and community halls, licences should only be subject to conditions that are necessary and proportionate. Further we have announced that such venues having a community role eg village, parish or community halls or other similar buildings should be exempt from the fees associated with the provision of regulated entertainment or entertainment facilities, thereby alleviating the financial burden associated with the provision of regulated entertainment. We believe that these factors will combine to ensure a proportionate approach to the regulation of entertainment and a fair balance.
I am copying this letter to Members of Commons Standing Committee D.
10 April 2003

Letter from Rt Hon Richard Caborn MP, Minister for Sport, Department for Culture, Media and Sport, to the Chairman
Joint Committee on Human Rights: Twelfth Report

I am writing in response to the points that you raised in your Twelfth Report, regarding the compatibility with the ECHR of the exemption in the Licensing Bill for places of public religious worship providing secular entertainment, and the fee exemption for church and chapel halls, parish and community halls and other similar buildings.

Your concerns echo those set out in paragraph 35 of your Seventh Report. Dr Kim Howells previously responded in considerable detail to those concerns, in his letter of 10 April 2003, but I have since learned that this letter was regrettably not put before the Committee in advance of the issuing of your Twelfth Report. For ease of reference, I attach a copy of that letter and would ask the Committee, when considering its contents, to also kindly take into account the following more general additional points.

First, in paragraph 3.1 of your Twelfth Report you refer to the large number of communications that you have received from individuals who are concerned about the impact that the Bill may have on the ability to mount performances of various descriptions.

Although I realise that, as you said in paragraph 18 of your Fourth Report, very strong feelings are held on the subject of the provision of regulated entertainment, in itself, the number of letters received from lobbying groups in relation to certain provisions in a Bill does not indicate the compatibility or otherwise of those provisions with the European Convention on Human Rights, nor indeed whether the genuine concerns of those lobbying are based upon an accurate understanding of the system that the Bill will introduce as a whole.

In paragraph 3.1 of your Twelfth Report you indicate that a large volume of letters that you have received are from those who are concerned about the impact that the Bill may have on the ability to mount performances by folk singers, Morris dancers and other kinds of performers, as well as concerts in a variety of venues. As the correspondence that we have received on this subject has revealed a considerable amount of misunderstanding regarding the changes that the Bill will introduce, I wanted to take this opportunity to clarify that, far from being more restrictive than the current system of regulation, the Bill will generally lead to a greater promotion of Article 10 rights.

When compared with the current system of regulation, the new system is streamlined, coherent, cheap and simple and, if industry makes full use of the reforms, should encourage a significant opening up of the opportunities for performing a huge variety of regulated entertainment.

This is not an area of law where we are moving from non-regulation to regulation and, generally speaking, what the Bill requires to be licensed in any event already requires a licence under current law.

In terms of its general impact, the Bill will therefore not present increased regulation but wilt instead involve a significant move towards greater simplicity, transparency and a reduction in costs. For example, under existing legislation all public performances of music in a building (except for a place of public religious worship or where performed as an incident to a religious service or meeting) require a public entertainment licence.

The only disapplication of this requirement is very narrow and applies where a justices' licence under the Licensing Act 1964 exists in relation to the premises and where the performance is by no more than two performers in any single night. Anything beyond that—including the performers combining live music with recorded music—requires an additional public entertainment licence.

The perverse effect of this rule in practice has been that many types of music and other forms of entertainment are discouraged by reliance on the existence of the rule. Under the new licensing regime, any premises will continue to need a licence to sell alcohol but will be free to apply simultaneously for permission, to be set out in the premises licence, to put on music or dancing or other entertainment whenever they wish.

The bureaucracy of the current system of separate licences, which acts as a deterrent in many cases, will accordingly be significantly reduced, leading to a greater freedom to exercise Article 10 rights. The financial burden imposed by the current system will also be reduced, as the fee for a premises licence will remain the same whether or not it contains a permission to provide entertainment and the licence will not have to be re-applied for regularly, which is the current position.

In addition, by moving from a system where fees are set by local authorities to one where they are set centrally by the Secretary of State, the Bill will have a harmonising effect by removing the huge regional variations in fee levels that currently exist in practice.

Turning now specifically to the exemption for places of public religious worship, in addition to the points that I made in my letter of 10 April 2003 on this matter, I would like to add the following. From paragraph 3.4 of your Report, your concern that the exemption might be incompatible with Articles 9 and 14 is based on two related reasons.

The first of these is that the exemption is afforded to premises used principally for religious purposes, or occupied by people or organisations on account of their religious beliefs or practices. On this point I would like to emphasise that, while the exemption indeed attaches to places of public religious worship, attendance at entertainment held at such premises is in no way confined to, nor in any way distinguishes between, those of any religious belief.

Further, the exemption places no restriction on the type of entertainment that may be enjoyed at such venues and there is no requirement for the entertainment to have any religious content The second reason for your concern is that the exemption is denied to premises used principally for secular purposes, or occupied by people or organisations without a religious affiliation. Whilst it is indeed true that the exemption is not afforded to secular venues, the creation of this exemption was prompted by a recognition, after discussion with representatives from various faiths, of the distinct pastoral role in the community played by many of the faiths and the wider responsibility that, for example, the church has in bringing the community together.

By way of contrast, secular venues are run solely for commercial purposes and have no equivalent pastoral role in our society. Further, churches have a central role to the development of music in this country, particularly because the premises are large enough to stage performances, particularly classical pieces. For these reasons, it would not appear to me as though either Article 9 or 14 are engaged.

However, if I am wrong about this, it is my view that there is an objective and reasonable justification for this exemption and that its existence in no way calls into question the pressing social need for the general regulation of public entertainment.

As a final point, I would like to draw the Committee's attention to the fact that we have responded to and addressed any points in relation to the Bill that have been raised in either House during its passage through Parliament, and the decision to exempt places of public religious worship was one reached by both Houses—indeed, no Member of either House spoke against the Amendment that created this exemption.
30 June 2003