5. Memorandum from Messrs Russell Jones
& Walker, Solicitors
As you know from previous correspondence we act for
the Musician's Union. Our clients were passed on 28 January 2003
a copy of the letter from the Minister for Tourism. Film and Broadcasting
of DCMS dated 10 January 2003 concerning the above matter is enclosed.
Our clients did request an extension of time in order to provide
a response to that letter but understand that a reply is required
In the time available our client wishes us to make
the following comments in respect of the two points made in the
letter of 10 January 2003.
Duty to grant licence where there are no relevant
representations made under Clause 18 (3)
The Committee have expressed concerns about the duty
opposed on the licensing authority being incompatible with Article
8 of ECHR, by precluding it from considering the effect of the
licence on the right of local residents to respect for their private
lives and homes.
Clause 18 concerns the determination of applications
from premise's licences. Under Clause 17 any application must
be accompanied by, amongst other things, "an operating schedule"
which will include a statement of the "relevant licensable
Whereas a "relevant licensable activity",
as defined in the bill, will include nonamplified live music,
it will not include the amplification of recordings (through
a jukebox or other sound systems) if incidental to activities
that are nonlicensable entertainments (i.e. drinking and
eating or television broadcasts (of sporting events or otherwise).
The Union consider that there is already adequate
legislative protection for local residents in respect of the potential
for noise nuisance from licensed or other premises. See previous
correspondence from Hamish Birchall to Jean Corston.
The intrusive regulatory framework which the Bill
seeks to introduce is, in any event, inconsistent. As our clients
have pointed out on numerous occasions, the likelihood of "noise
nuisance" is selfevidently more likely in the event
of amplified (in contrast to non amplified) music and, more
importantly, more likely in the event of amplified sound recordings
and TV broadcast. As identified above, neither amplified sound
recordings or TV broadcast falls within the ambit of the Bill,
but a single folk guitar player in licensed premises will or indeed
in "any place" be a licensable activity. No explanation
has been provided for the disparity of treatment.
Removing the exemption from the licensing regime
in respect of live performances by no more than two performers
For the reasons which have been explained in the
earlier opinion of Robin Allen QC previously forwarded to you,
the Union consider this existing disapplication (the "Two
in a Bar rule") not to be wide enough to be compliant with
both Article 10 and Article 11 of the First Protocol of the Convention.
Without prejudice to that contention, our client's comment on
the justification given by the Minister for the interference which
Clause 134 poses to rights under Article 10 of the Convention.
As the Minister accepts:
"There must be a pressing social need
for the interference in pursuance of a legitimate aim" (our
Our clients do not understand that the current system
operated in Scotland gives rise to material concerns. There has
been little if any consideration given to this but we consider
that the comparison with the Scottish system in determining whether
there is a pressing social need for this increased degree of regulation
relevant. As you will know the Scottish system only requires extra
licensing for music incidental to the main purpose of the venue,
where activities are expected to continue late into the night.
Otherwise the regime is considerably more relaxed and does not
require licensing for musical events in most licensed premises.
It is important to note that public safety and noise in this context
is regulated by UKwide legislation.
It was understood that the intention of the Bill
was to implement the provisions in the White Paper "Time
for Reform". The stated intention was to minimise over regulation.
It seems clear however this has now been disregarded. The total
exemption for broadcast entertainment, against criminalisation
of even unamplified live music, amounts to a discrimination against
the development of live music.
In order to justify such over legislation the interference
must be, as stated, for a "pressing social need". Both
the Convention and the Human Rights Act also require proportionality.
We consider that, again, the Government have failed
to demonstrate pressing social need for this over regulation.
No details whatever have been provided to demonstrate that subsisting
safety, noise and crime and disorder legislation cannot address
the risk arising from small scale live performance. Further we
remain of the view that the effect of the Bill is disproportionate
to the aims pursued.
Justification for the approach adopted is by reference
to the potential sound of music through amplification which, it
is asserted, gives rise to two issues (a) public safety issues
arising from the amplification equipment; (b) potential for the
right of local residents not to be subjected to excessive noise
nuisance created by amplified performances.
So far as noise our comments are as follows
- Our understanding is that the overwhelming cause
of noise complaints has nothing to do with live music but is due
to noisy customers In the vicinity of licensed premises.
- The existing legislation is adequate to deal
with these issues. For example: the Town and Country Planning
Acts allow for the imposition of preemptive noise controls;
licensing justices in granting licenses may impose noise limiting
conditions and there is power for Local Authorities under the
Environmental Protection Act 1990 to serve anticipatory noise
abatement notices if they are satisfied a noise nuisance is likely
to occur or recur.
Further, and importantly, it is implicit within the
Bill that the Government consider this existing legislative framework
sufficient to cope with the main source of noise nuisance; namely
if I had recorded music and television broadcast (and the noise
associated with it). Our clients understood, in discussions yesterday
with the Chair of the working group producing Institute of Acoustics
guidance on noise from pubs and clubs, that noise nuisance may
also arise from televised sporting events. This is to be cited
in the forthcoming guidance.
In so far as the safety aspects are concerned, our
clients consider that the existing Health and Safety legislation
and guidance, which is evolving in response to developments in
best practice, is a much more effective means of achieving safety
goals in the proposed licensing system. All entertainment events
are classified as work activities for the purpose of the Health
and Safety at Work Act 1974 and various regulations and codes
of practice. Entertainment events are also subject to a range
of fire, safety, electrical and other safety legislation, including:
both the Fire Precautions Act 1971 and the Fire Precautions (Work
Place) Regulations 1997.
Specific reference is made by the Minister to the
potential safety implications of amplification equipment. No reference
however is made to the potential safety implications of broadcasting
equipment that may be used to broadcast sports and other events
nor of other amplification equipment that may be used to broadcast
recorded sound. We understand that, particularly because of the
risk of dust accumulation, risks associated with television equipment
may be more significant as a fire and other risk than most amplification
equipment. Yet the former is not a licensable activity, the latter
(if associated with live music) will be.
The Government have neither demonstrated a pressing
social need for the additional regulation which they are now proposing
in this area nor have they provided tangible evidence of there
being excessive noise and nuisance created by amplified live performances
(in contrast to amplified recorded music and sports television
broadcastand noise associated with it), neither of which
are the subject of the licensing regime.
These comments apply equally to the response to the
Minister in respect of Article 1 of the First Protocol.
31 January 2003