3. Memorandum from The Performer-Lawyer
Group, c/o MacDonald Bridge Solicitors,|
to the Chairman
I understand that you wish to see any further input
on Human Rights aspects of the Licensing Bill by the weekend.
In this respect it is rather disappointing that, although the
Government knows of the existence of this group and our concerns
as to the Human Rights aspects of this Bill, it did not see fit
to provide, much less timely provide, us with a copy of its letter
to you dated the 10 January, which I saw for the first time yesterday.
Consequently, this is my letter rather than the letter
of the group, and other members of the group may write to you
separately to associate themselves with some or all of this letter.
So too may others, since I am circulating this letter. This letter
is not to restrict any additional points that may be made by other
members of this group or circulees of this letter.
Article 8: Respect for
private homes and lives
The government argues that applications must be advertised
so that local residents may object. Thus, it says, their rights
for respect for homes and lives are recognised. This is illusory
and not good compliance, in my view, with the convention
- Present advertising practice in relation to PEL
applications is for local authorities to make regulations specifying
the extent of publicity required. Medway, at least, according
to a letter of theirs in my possession, requires only one advertisement
on one occasion in one local paper circulating in the vicinity,
and exhibition on the premises (apparently in any part of the
premises even if not a part open to the public, although perhaps
that is a lack of specificity in the letter) setting out the intention
to apply for a PEL. Plainly many local residents will not become
actually aware of advertisements so published.
- The government was defeated in the Lords on one
point of relevance here. An amendment was passed to enable some
local councillors to object as "interested parties".
It is rumoured that the government intends to reverse this defeat
in the Commons. It has also resisted pressure to permit those
from the general area to be interested parties, despite the fact
that for example in London the concentration of PEL licences in
limited areas causes considerable disturbance to those throughout
a much larger area than the immediate vicinity.
These two points augur badly for the general ability
for those adversely affected in relation to their homes or lives
to be able to protect them.
The right to object is limited to the licensing objectives.
Thus those who suffer from public nuisance may object, but not
necessarily those suffering from private nuisance or any disturbance
with their homes or private lives that does not amount to public
The government argues that an application must specify
the steps proposed to be taken to promote the licensing objectivestherefore
(it says) including the steps to be taken to prevent public nuisance.
First the same point as above prevails. Second, even if the government's
argument were otherwise perfect, an application could simply specify
that no steps were to be taken to control public nuisance, or
it could specify well intended but futile steps. If so (which
I intend linguistically to contrast to the government's choice
of wording "In the event that") the application would
still prima facie comply with clauses 17 and 18(l)(a) so the duty
to issue the licence would bite.
But that is not the only objection. According to
the convention, there is a right to respect as stated. It is not
a right intended enjoyed only by those who are prepared to exercise
diligence and possibly face risk (if their objections to applications
by, say, some night club owners become known).
The placement of the onus as the government does
is no respect at all for the rights of those who may not know
of the application, or may be of limited capability to prepare
representations, or may be fearful of consequences of making objections.
These classes, and perhaps others, overlap with those who may
legitimately need to be protected by local councillors or others,
but the government may intend to block even this avenue for these
less advantaged sectors, since it appears to intend to continue
to restrict the classes of "responsible authorities"
to exclude councillors etc generally.
If, then, an application specifying an absence of
protective measures is made, the government admits is must issue,
and the government further admits that it must issue with only
the specified protective measures (in casu, none) attached.
Plainly therefore the required matters are not adequately
safeguarded. Provisions limiting the acceptable sound level outside
premises licensed for this purpose, using one of the more sophisticated
modern measures, might very well assist in this respect, but other
disorder aspects are likely to require to be addressed, and to
be seen to be required to be addressed, in many cases.
Article 10: Freedom of
The first and most important point is that the bill
will not merely remove the "2inabar"
exemption. The government's letter is quite misleading in this
respect. The bill will remove ALL exemptions and exceptions
except as reenacted. This is plainly a much wider set of
restrictions, and a much wider interference with freedom of expression,
than is necessary in a democratic society.
The second and perhaps almost equally important point
is that the government's safety and noise arguments set out in
its closing paragraphs are entirely based upon the assumption
that all musical performance involves the use of electrical amplification.
This assumption is false. The government has been widely addressed
about the use of unamplified instruments and the unamplified human
voice. It has so far refused even to consider exempting them,
but it cannot honestly say or imply that it is unaware of them.
As a corollary, it may be relevant to observe that the government
has consistently said (and it has put it this way round) that
that it does not accept that there is any type of music that is
never noisy. It is, frankly, so unrealistic for the government
to imply that unamplified music, in the real world, requires just
as much restriction as amplified music in order to prevent noise
nuisance that one wonders how such an absurdity can be attempted
to be justified.
Thirdly, it is inherent in the government's argument
under Article 8 that the bill will increase restrictions on possible
interference with private lives and homes, and it is inherent
in the government's arguments under Article 10 that the licensing
regime will place restrictions (albeit the government wishes to
argue they are necessary an proportional restrictions) on freedom
of expression. Yet this is wholly incompatible with the government's
recent publicity materials that seek to present the bill as "deregulatory"
(if that is intended to have any precise meaning, rather than
merely to present a favourable impression). This may give rise
to some suspicion about the extent that any government explanation
can be relied upon.
This leads directly to the second entire paragraph
on the third page of the government's letter to you. The government
argues that the new regime will not "in any practical way,
involve more by way of regulation". This calls nothing to
mind so much as the words of Lewis Carroll "When I use a
word, it means exactly what I intend it to mean. It is merely
a matter of which of us is to be the master". In practical
terms, local authorities will be able to require things to be
done as a condition of granting licences. Experience teaches that
they will be cautious, spurred on by their insurers. We know that
there is a risk that they will be overcautious. We know
1. It is common sense, and we have seen it happen
under the existing law;
2. The government accepts that it is so, because
it has accepted the need for the minister to be able to seek to
influence local authorities by supplying guidelines (not, or not
meaningfully scrutinised by Parliament);
3. The government accepts that it is so, for
it has written that it would expect those in the business of supplying
bigscreen TVs to pubs robustly to resist the extension of
the bill's regulation to them;
4. The government accepts that it is so, for
it has written that it would expect those in the business of supplying
juke boxes and DJs and equipment to pubs for "incidental
music" robustly to resist the extension of the bill's regulation
5. The government accepts that it is so, for
it has finally promised to exempt church music from the burdens
that would arise from the extension of the bill's regulation to
that type of music (ironic, since the government does not accept
that there is any sort of music that is never a noise nuisance);
6. The government accepts that it is so for the
bill includes the (limited, expensive, risky and therefore an
illusory protection) right of legal challenge to council requirements.
Therefore the bill will in a practical way, subject
all the musicians who currently play in
reliance (or purported reliance, for until recently
there has been much tacit permission) on the "2inabar
rule" in approximately 100,000 venues, or any other current
exemption (apart from the recorded and church exemptions preserved),
to additional regulation.
The government has at no time produced any evidence
of any kind of unamplified music leading to noise disturbance
or disorder or crime. Therefore the continuation and indeed extension
of regulation with respect to unamplified music cannot be justified
as necessary in a democratic society.
The government argues that the regulation under this
bill is necessary for noise and safety reasons.
If that were so, then bigscreen TV and jukeboxes
and DJ's with equipment to provide "incidental music"
would need regulation under this bill. Since the government provides
exemptions for these things, it surely cannot argue that noise
and safety reasons prevent exemptions for other incidental music,
unless there were evidence of such a need. There may or may not
be such evidence, but it has not been provided.
Moreover, there may be an argument that existing
health and safety law, and law on public disturbance, adequately
controls electric music at least in premises already licensed
(and therefore subject to inspection) for the sale of alcohol.
There may or may not be countervailing arguments but they have
not been assessed or addressed, and in this sense there is no
basis to say that the proposed restrictions are necessary in a
democratic society. The existence of such other safety and protective
laws must surely lead one to question whether the proposed extension
of regulation, and draconian penalties (the same potential prison
term as summary convictions for arson, violent disorder or affray)
It is accordingly at least arguable that the proposed
measures are disproportionate in the case of electric music, and
beyond doubt they are plainly disproportionate in the case of
It is accordingly respectfully submitted that it
is impossible for the bill to meet article 10 unless at the least
(a) unamplified music in premises licensed to
sell alcohol for consumption on the premises is wholly exempted;
(b) there is automatic granting of a licence
for incidental amplified live music with penalties for noise outside
the premises exceeding certain levels, albeit such licences should
be capable of being withdrawn in the usual way.
This note does not deal with the problems of folk
(including Morris) dance. These carry no history of disorder or
noise nuisance, and indeed in some European countries they and/or
their equivalents are constitutionally protected. If they are
not protected in some way here, that would be a serious abuse
of human rights.
Finally, I would add that the minister appears to
have overlooked that he was sent an open letter from this group,
signed by a number of other lawyers more eminent than myself,
specifically referring to the human rights issues, and it is at
least odd of him to write as if this were not so.
29 January 2003