From Hamish Birchall

The Joint Committee on Human Rights yesterday (Mon 15 July) published its 15th Scrutiny of Bills report, including final comment on the Licensing Act 2003 and live music. Downloadable copies, HTML or PDF, are available at:
http://www.publications.parliament.uk/pa/jt/jtrights.htm

Responding to criticism from the JCHR that the entertainment licensing exemption for churches could lead to discrimination against secular venues, the Government for the first time cites churches' special role in the development of classical music:

'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.'
[Letter to JCHR from Richard Caborn, Minister for Sport, 30 June 2003, annex to 15th JCHR Scrutiny of Bills Report , HL Paper 149, HC 1005.]

This is an interesting development, particularly in the context of the Government's earlier vehement protestations that licensing is essential for public safety at concert venues. The Government's own draft Guidance states that each of the four licensing objectives, which include public safety, are of equal importance. Mr Caborn's arguments clearly did not satisfy the JCHR, which, while recognising churches' special role, commented:

'... 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.'

The JCHR Report goes on to correct the misapprehension that the Act should have had a declaration of ECHR compatibility - this only occurs on the face of Bills, not Acts. But, disappointingly, the Committee then makes a fundamental error in accepting the DCMS argument that the Act treats performances of live and recorded music equally, amplified or unamplified.

Paragraph 5.6 on p20 of the Report concludes that, having received advice from DCMS: '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.'

This is simply not true. Consider the exemption for broadcast entertainment (Sch. 1, para 8). This exempts, for example, a live or recorded concert broadcast publicly in any place, whereas even one featured live musician actually present and performing, amplified or unamplified, would be illegal unless licensed.

A bar, or indeed any secular venue, could advertise to the public that a particular broadcast concert will be shown as a featured entertainment on a plasma screen with a powerful sound system, and this would not require licensing under the Act. However, a similarly featured performance by one musician actually present and performing in the same premises, amplified or not, would be illegal unless licensed.

That is not equal treatment, and it is difficult to see how the inequality can be justified on the grounds that the live performance is generally likely to give rise to greater risks than the broadcast entertainment. Indeed, the opposite is more likely: the broadcast might be of a popular DJ; the live performance by a relatively unknown musician.

Consider also the exemptions for the exhibition of film for the purposes of advertisement, information, education etc and at museums and art galleries (Sch. 1. paras 5 and 6). Any music that is recorded on the soundtrack of such films will be reproduced through amplification. However, if a live musician (or musicians) were to perform live music as an accompaniment to the film, amplified or not, this would be illegal unless licensed under the Act.

The 'incidental' exemption cannot apply to the performance of live music in this case because it would be combined with another licensable entertainment - a combination that is explicitly prohibited in Sch. 1, para 7(a).

It is also common for the music retail sector to employ well-known musicians for public demonstrations of musical instruments. This is by way of entertainment as well as advertisement with a view to commercial sales. Such performances fall within the licensing regime, whereas the showing of a video or DVD of the same musician (inevitably amplified) to the public for the same purpose would be exempt. Again this is not equal treatment, and difficult to justify on the grounds of a greater risk arising from the performance of live musicians.

The Morris dancing exemption similarly highlights the fact that the Act does not cover performances of amplified and unamplified live music in the same way. Live unamplified music with Morris dancers in a bar would be exempt; but the same live unamplified performance without the dancers would be illegal unless licensed.

The last minute concessions relating to licence conditions in smaller venues (s. 177 of the Act) treat licensable performances of amplified and unamplified live music very differently and, arguably, irrationally, in terms of the conditions which may be imposed.

Leaving aside for the moment the Act's unequal treatment of secular venues and places of public religious worship, the fact is that a very large number of bars and other potential secular venues that could provide some featured live music will have to clear a much greater legislative and administrative barrier than if they provide amplified music via broadcasts.

Taken together with the other examples above it is difficult to see how this does not amount to manifest discrimination against live music. This is now part of primary legislation and cannot be disapplied by guidance. The discrimination goes to the heart of the issue of musicians' right to freedom of expression and whether the Act is proportionate in its control of live performance.