Joint Committee On Human Rights First Report



The Committee is considering whether to report to each House on the above Bill. It has carried out an initial examination of this Bill, and has formed the provisional opinion that the Bill is compatible with relevant human rights obligations. Our starting­point is of course the statement made under s.19(1)(a) of the Human Rights Act 1998; but I should make it clear that the Committee's remit extends to human rights in a broad sense, not just the Convention rights under the Act.

The Committee would, therefore, be grateful for your comments on the following points—

1. Mandatory requirement to grant licence in absence of 'relevant representations'.

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 as defined are representations about the likely effect of granting the licence on the promotion of the licensing objectives. Licensing objectives do not include respect for or protection of Convention rights: see 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).

The duty to grant a licence under clause 18(2) in the absence of relevant representations appears to prevent a licensing authority from even considering the effect of the licence on residents' rights to respect for their private lives and their homes under ECHR Article 8, let alone refusing a licence on account of it, unless someone has made a relevant representation. The right includes a certain level of protection against environmental nuisances: see, for example, Hatton v. United Kingdom. It would not be possible to read an exception into the express duty to grant a licence under the terms of clause 18(2). The provisions therefore seem to be capable of forcing the licensing authority to act in a manner incompatible with Convention rights in certain circumstances.

In the light of these considerations, the Committee seeks an explanation of why the Government considers that these provisions adequately safeguard the right to respect for private life and the home under ECHR Article 8.

2. The offence of carrying out licensable activities without a licence.

Clause 134 would remove the exemption from the regulation regime for live performances by no more than two performers. The exemption has been a feature of the licensing regime for some time. The Committee has received evidence suggesting that the exemption helps to foster live performances in a variety of venues. As the Government accepts (Explanatory Notes to the Bill at paragraph 230), the Bill interferes with the rights of performers, and those who make facilities or premises available, under ECHR Article 10.1. The interference requires justification under ECHR Article 10.2. The reasons given in paragraph 230 of the Explanatory Notes for removing the exemption are 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.

This amounts to no more than an assertion that requiring the activities to be authorised would serve a legitimate aim and would be necessary for and proportionate to the aim because the activities are required to be authorised. It is not a justification; indeed, it seems to be an attempt to pull the Bill up by its own bootstraps.

The clause would also interfere with the right of owners and occupiers of premises to peaceful enjoyment of their possessions under ECHR Protocol No.1, Article 1, requiring justification under that Article.

In the light of these considerations, the Committee seeks an explanation of why the Government considers that clause 134, so far as it interferes with rights under ECHR Article 10.1 and Article 1 of Protocol No. 1, would—

(i) be a proportionate response to a pressing social need to take action in pursuit of a legitimate aim so as to be justifiable under Article 10.2; and

(ii) represent a fair balance between the rights of individuals and the public interest in pursuit of a legitimate aim so as to be justifiable under Article 1 of Protocol No. 1 to the ECHR.

Finally, the Committee would be grateful for a description of any other representations you have received in connection with this Bill in relation to human rights issues, and of the specific points to which those representations were directed.

The Committee would be grateful for a reply by the time we break for the Christmas Adjournment, that is no later than the morning of Thursday 19 December.

5 December 2002

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