11. LETTER FROM THE CHAIRMAN TO RT HON
BARONESS BLACKSTONE, MINISTER OF STATE, DEPARTMENT FOR CULTURE,
MEDIA AND SPORT
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
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