31. We have previously considered two main issues
in relation to this Bill: first, the ability of local residents
to have a say before licences are granted for premises in the
area; secondly, the effect of the proposed licensing requirements
on performers, particularly in pubs and places of worship. In
our Fourth Report, we drew the attention of each House to the
second of these issues, taking the view that it (but not the first
issue) raised a substantial question of compatibility with human
rights. In particular,
we drew attention to the risk that clause 134 of the Bill, making
it a criminal offence for performers, among others, to carry out
a licensable activity (including many public performances) without
due authorisation, would be disproportionate to the legitimate
aims of the licensing scheme and hence would be incompatible with
the right to freedom of expression under ECHR Article 10.
32. The Government agreed to propose an amendment
to clause 134 to exclude from criminal liability a person whose
only involvement in an entertainment is as a performer or participant.
The new provision now forms clause 134(2) and (3) of the Bill
as amended on Report in the House of Lords.
33. The effect of the Bill, as amended, would be
to place the responsibility for ensuring that a venue is properly
licensed firmly on the occupier of the premises where the entertainment
is to take place and the organizer of the entertainment. The organizer
will have to check that the premises are licensed for an event
of that kind. If they are not licensed, either the organizer or
the occupier will have to obtain a licence for the particular
34. While the licensing scheme under the Bill as
amended would still interfere with rights under ECHR Article 10.1,
we consider that the Government is entitled to take the view that
that the interference would be justifiable under Article 10.2.
The licensing regime serves legitimate aims, namely the protection
of public safety, the protection of the rights of others, and
the prevention of crime and disorder. It is legitimate to say
that there is a pressing social need for regulation. The issue
is one of proportionality. By avoiding the criminalisation of
performers, the amendment to clause 134 seems to us to re-balance
the rights and interests affected so as to prevent any interference
with the performers' right to freedom of expression being disproportionate.
We therefore welcome the amendment to clause 134.
35. As we noted in our Fourth Report, the Government
intends that certain venues would be exempt from the licensing
requirements, and some others would be exempt from the fees normally
chargeable for entertainment licences.
While the proposals would make the licensing regime more responsive
to the requirements of ECHR Article 10, exempting (for example)
places of worship but not secular venues from the licensing regime
might give rise to discrimination and threaten a violation of
the right to be free from discrimination under ECHR Article 14
taken together with Article 9 (the right to freedom of thought,
conscience and religion) and Article 10 (freedom of expression).
We draw this risk to the attention of each House, and we might
wish to report further on it when we have had an opportunity to
consider carefully the terms of the Government's proposed amendments
to the Bill.
23 Joint Committee on Human Rights, Fourth Report
of 2002-03, HL Paper 50/ HC 397, p 8, para 11 and pp 10-11, paras
ibid., p 11, para 19 Back
See the letter dated 21 February 2003 from the Legal Adviser
to the Department of Culture, Media and Sport, reproduced in an
appendix to this Report, Ev 9-10 Back
Fourth Report, pp 10-11, para 18 Back