Joint Committee On Human Rights Fifteenth Report


5. Licensing Act 2003
Date introduced to the House of Lords

Date introduced to the House of Commons

Date given Royal Assent

Previous Reports

14 November 2003

12 March 2003

10 July 2003

1st, 4th, 7th and 12th

5.1 The Licensing Act 2003 received the royal assent on 10 July. We reported on the Licensing Bill on several occasions during its progress through each House.[36] In our Twelfth Report, we drew the attention of each House to our view that the proposals for exempting places used for public worship from the requirements of the licensing regime, and allowing certain other places associated with places of public worship to obtain licenses without paying the usual fee, might be regarded as discriminating against the occupiers and users of purely secular premises. We were concerned that these exemptions might give rise to a significant risk of violating the right to be free of discrimination under ECHR Article 14, taken together with ECHR Articles 9 (right to freedom of religion, conscience and belief) and 10 (freedom of expression). We were also concerned that there was a risk that the exemptions might—

… leave a patchwork of different licensing requirements without a coherent rationale, calling in question the existence of a pressing social need for the restriction on freedom of expression through a licensing regime for public entertainment, and so undermining the Government's claim that such a licensing regime is a justifiable interference with the right to freedom of expression under ECHR Article 10.2.[37]

5.2 The Department for Culture, Media and Sport subsequently expressed concern about our apparent failure to take account of a letter from the Minister to the Committee, sent in April 2003, explaining that the exemptions for premises used for public worship would simply extend to London the system which, under existing licensing law, applies in the rest of England and Wales, and stating that the Government takes the view that such a move would have a rational and objective justification for the purposes of ECHR Article 14.

5.3 That letter (which is published as an annex to this Report)[38] did not explain why the Government considered that there was an objective and rational explanation for distinguishing, for the purpose of entertainment licensing law, between places used for public worship and other places. The distinction was introduced to the law before the Human Rights Act 1998, and with it ECHR Article 14, took effect in the domestic law of the United Kingdom. It is now necessary to test the special treatment of such premises by reference to the standards of the ECHR. A proposal to extend the differential treatment to new parts of the United Kingdom merely makes the need for that assessment more pressing. The Minister of State for Sport provided further clarification in a letter received on 2 July 2003. (This letter, too, is published as an Annex to this Report.)[39] So far as is relevant to this issue, the Department pointed out that the exemption for places of public religious worship from the requirements of entertainment licensing law would benefit people who were using the premises for the enjoyment of secular entertainment there. Those people might be of any religious affiliation or of none. In addition, the exemption for religious venues is a recognition of the—

… distinct pastoral role in the community played by many of the faiths and the wider responsibility that, for example, the church has in bringing the community together.

5.4 The Minister also drew attention to the central role of the churches to the development of music in this country, particularly because churches provide venues large enough for the performance of many pieces of music requiring large forces. For these reasons, the Government argued that Articles 9, 10 and 14 are not engaged, but that, if they were engaged, there is a rational and objective justification for the exemption which does not call into question the pressing social need to regulate public entertainment in general.

5.5 Places of public religious worship play an important part in the development and performance of secular as well as religious music and other artistic activities of considerable cultural value. However, it is arguable whether these considerations mark those places out sufficiently from other artistic and musical venues to justify, in an objective and rational way, the different treatment afforded to them in relation to entertainment licensing. A large number of correspondents wrote to us just prior to the Commons' consideration of Lords Amendments to the Licensing Bill on 8 July, arguing the case for further intervention before the Bill became law.[40] A number of these were under the misapprehension that the Government would be required to make a "section 19 statement" on the face of the Act, guaranteeing compliance with Convention rights. In fact, of course, the Human Rights Act expressly preserves the right of Parliament to legislate as it thinks fit, having due regard to Convention rights, and to the opinion of the Minister on these matters, which is stated only when a Bill is first introduced into either House. In the case of the Licensing Act, Parliament has now legislated.

5.6 Before leaving this measure, we wish to take an opportunity to correct a misleading comment made in our earlier discussions of the Licensing Bill. In our Fourth Report, we suggested that the regime for public entertainment licensing in the Bill would not cover the use of amplification equipment for recorded music, but only electronic amplification of live music.[41] The Department has pointed out that this suggestion was based on a misconception. We accept that the Act covers performances of live and recorded, amplified and unamplified music in the same way, as the description of entertainment to which the Bill applies, contained in Schedule 1 to the Act, makes clear.

36   See our First, Fourth, Seventh and Twelfth Reports of 2002-03. Back

37   Twelfth Report of 2002-02, Scrutiny of Bills: Further Progress Report, HL Paper 119, HC 765, para. 3.4. Back

38   See p 23. Back

39   See p 24. Back

40   At a late stage, certain amendments were made to the Bill, including an exemption for Morris dancers which, some correspondents feared, was discriminatory and did not accord with the principles underlying the Bill as a whole. Back

41   Fourth Report of 2002-03, Scrutiny of Bills: Further Progress Report, HL Paper 50/HC 397, para. 18. Back

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