Joint Committee On Human Rights Fourth Report

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 nuisance.

The government argues that an application must specify the steps proposed to be taken to promote the licensing objectives—therefore (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 Expression

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 this because—

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 to them;

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); and

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) are justifiable.

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 unamplified music.

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; and

(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

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