Unlicensed entertainment
12. The Explanatory Notes address the applicability
of the right to freedom of expression to the provisions of the
Bill in relation to the offence of carrying out licensable activities,
including "regulated entertainment", without due authorisation
under clause 134 of the Bill.[9]
We have received a considerable number of submissions from individuals
and organisations arguing that criminalizing all "regulated
entertainment" unless it is licensed would violate the rights
of performers under ECHR Article 10.[10]
As defined in Schedule 1 to the Bill, 'regulated entertainment'
would include the following—
- the performance of a play; exhibition of a film;
an indoor sporting event; a boxing or wrestling entertainment;
a performance of live music; any playing of recorded music; a
performance of dance; certain entertainments similar to live or
recorded music or dance; if in each case it is provided in the
presence of an audience for the purpose of entertaining the audience;[11]
- providing facilities to enable people to make
music, to dance, or take part in entertainment of a similar description;[12]
- any entertainment at all, if it takes place on
premises made available for the purpose, or partly for the purpose,
of enabling the entertainment in question to take place.[13]
13. The effect of this would be to remove the exemption
from the regulation regime for live performances by no more than
two performers.[14] This
has been a feature of the licensing regime since 1961, and has
done much to foster live performance of different kinds (such
as music and poetry readings) in a variety of venues, including
(but not limited to) bars and pubs. As such, the Bill clearly
interferes with the rights of performers, and those who make facilities
or premises available, under ECHR Article 10.1. The question is
whether the interference is justifiable under Article 10.2.
14. The Government's initial view, as set out in
the Explanatory Notes to the Bill, was as follows.
The offence in clause 134 of carrying out licensable
activities without due authorisation may amount to an interference
with rights under Article 10 (freedom of expression) since it
could indirectly have the effect of imposing restrictions on performances
by artists and musicians. However any such interference would
be justified under Article 10(2) as being necessary in a democratic
society on grounds of public safety, the prevention of crime and
disorder and the protection of the rights of others, since it
is central to the regime for the regulation of licensable activities
that the activities may be carried out only under authorisation.[15]
15. We took the view that this was a circular argument.
It did not satisfy us that the requirements of ECHR Article 10.2
were met in this case. For the same reason, we were not satisfied
that there were sufficient grounds for believing that the provision,
so far as it would interfere with the right of owners and occupiers
of premises to peaceful enjoyment of their possessions, would
be justifiable under ECHR P1/1. We therefore asked why the Government
considered that clause 134, so far as it interferes with rights
under ECHR Article 10.1 and Article 1 of Protocol No. 1, would
—
- be a proportionate response to a pressing social
need to take action in pursuit of a legitimate aim so as to be
justifiable under Article 10.2; and
- represent a fair balance between the rights of
individuals and the public interest in pursuit of a legitimate
aim so as to be justifiable under Article 1 of Protocol No. 1
to the ECHR.
16. The Minister's reply pointed to the narrowness
of the present exception from the need for a public entertainment
licence for up to two performers. It applies only if the performance
takes place on premises which already have a justices' licence
under the Licensing Act 1964, and does not apply if the entertainment
combines live performance with recorded music. Under the Bill,
there would still only be a need for one licence to be obtained
for the premises in which the entertainment would take place,
and it would relieve people wanting to put on entertainments with
three or more performers, or combining live performance with recorded
music, of the need to obtain a second licence for that purpose.
17. The Minister argued that, while the Bill would
interfere with the right of performers to freedom of expression
under ECHR Article 10.1 and the right of occupiers of property
to the peaceful enjoyment of possessions under ECHR P1/1, the
interference would be justifiable within the terms of those articles.
He pointed to the interests of public safety, the protection of
the rights of others, and the prevention of crime and disorder,
as the legitimate aims of the provisions for the purposes of Article
10.2. Safety was involved because of the fire risk where amplification
equipment is used. The rights of others were engaged by the risk
of noise and disturbance to local residents. The pressing social
need for regulation arises from the importance of these interests,
and the need to have a way of balancing the various rights and
interests. The Minister therefore argued that the interference
with rights under Article 10.1 would meet the requirements of
Article 10.2. For similar reasons, the Government took the view
that the provisions would strike a fair balance between the rights
of individuals and the public interest so as to be justifiable
under P1/1.
18. We have considered these arguments in the light
of the very strong feelings that the provisions have generated
among performers (particularly musicians), and the representations
they have made to us. We recognise that this is a matter of real
concern to the performers affected. We understand the Government's
view that moving to a system of licensing premises in which performances
take place, rather than individual performances, would in many
cases impose a lesser bureaucratic burden on performers than they
face at present. However, we consider that the proposed blanket
requirement for all premises to be licensed before any live performance
takes place in them, regardless of whether there is a real risk
of noise or nuisance, the nature of the performance, the nature
of the premises, or the number of performers and spectators, is
somewhat heavy-handed. We also note that the licensing regime
under the Bill would not cover the use of amplification equipment
for recorded music, which would seem to present health and safety
risks similar to those caused by electronic amplification of live
performers. Because the licensing regime would apply generally
to live performances, without regard to the circumstances in particular
cases, we are not satisfied that the proposed system of entertainment
licensing as a whole is a proportionate response to a pressing
social need to regulate public performances, as ECHR Article 10.2
requires. The Government announced on 3 February 2003 that there
would be exemptions from the need to obtain a licence for places
of religious worship where secular entertainment takes place.
This apparently random exemption for places of religious worship
might tend to undermine the argument for the rationality of the
blanket licensing scheme as a whole, and could engage other human
rights issues by appearing to discriminate against occupiers and
users of non-religious premises. The Government also announced
that a significant number of other places of entertainment, such
as church and chapel halls, parish or community halls and similar
sites, would be exempt from the fees normally chargeable for entertainment
licences. This would make the licensing regime more responsive
to the requirements of ECHR Article 10, although, until the details
have been worked out, together with the terms of the guidance
which, the Government says, will be issued to ensure that conditions
attached to licences are proportionate to the risks involved,
we are not able to express a concluded view.[16]
19. We therefore conclude that clause 134 of the
Licensing Bill would give rise to a significant risk of disproportionality,
and hence incompatibility with rights under ECHR Article 10. We
draw this matter to the attention of each House.
Violent, quarrelsome or riotous
conduct
20. Considering the offence of allowing 'any violent,
quarrelsome or riotous conduct' on licensed premises,[17]
our predecessors in the 2000-01 session recommended that the definition
of offences committed by people who permit certain types of behaviour
on licensed premises should be amended 'to ensure that adequate
legal certainty and proportionality can be achieved in the definition
of criminal offences.'[18]
The equivalent provision proposed in the Bill is to be found in
clause 138(1): 'A person to whom subsection (2) applies commits
an offence if he knowingly allows disorderly conduct on relevant
premises.' It seems to us that this meets our predecessors' concerns.
We are pleased that the Government has been able to draft a
satisfactory replacement for the current provisions.
Conclusion on the Licensing Bill
21. In the light of the above, we consider that—
- the provisions for allowing people to make
representations about licensing applications in order to protect
their rights under ECHR Article 8 would be likely to offer adequate
protection as long as appropriate regulations are made under clause
17(5) of the Bill; but
- there is a significant risk that the blanket
licensing regime proposed in the Bill would give rise to an incompatibility
with people's right to freedom of expression under ECHR Article
10, even in the light of the Government's announcement on 3 February
mentioned in paragraph 18, above. We draw this to the attention
of each House.
1 HL Bill 1-EN (London: TSO, 2002) Back
2
Joint Committee on Human Rights, First Report of Session 2000-01,
Criminal Justice and Police Bill, HL Paper 69, HC 427 Back
3
ibid., paras. 31-32 Back
4
Joint Committee on Human Rights, First Report of Session 2002-03,
Scrutiny of Bills: Progress Report, HL Paper 24, HC 191,
pp. 22-24, paras. 69-81. Back
5
The letter is reproduced as an appendix to this Report, Ev 1-Ev
3 Back
6
The Bill defines alcohol as spirits, wine, beer, cider or any
other fermented, distilled or spirituous liquor in a strength
exceeding 0.5%, other than perfume, certain flavouring essences,
alcohol in medicinal products, denatured alcohol, methyl alcohol,
naphtha, or alcohol in liqueur confectionery: clause 186 Back
7
See, e.g., Allan Jacobsson v. Sweden (No. 1), Judgment
of 25 October 1989, Series A, No. 163, at para. 55 Back
8
Explanatory Notes, paras. 53-57, 124, 172, 195-197, 228-229,
258-259, 273 Back
9
Explanatory Notes, para. 230 Back
10
See, e.g., letter from Mr. Hamish Birchall, an adviser to the
Musicians' Union, reproduced as an Appendix to this Report., Ev
4-Ev 5 Back
11
Sch. 1, para. 2 Back
12
Sch. 1, para. 3. Entertainment or facilities under (a) and (b)
would be regulated entertainments only if they are provided for
members of the public or a section of the public, or members of
a qualifying club with or without guests, or for consideration
and with a view to profit: Sch. 1, para. 1(1)(a), (2). Back
13
Sch. 1, para. 1(1)(b), (3). See also clause 1(1) and (4) Back
14
Licensing Act 1964, s. 182 Back
15
Explanatory Notes, para. 230 Back
16
See the Written Statement by the Secretary of State for Culture,
Media and Sport, Licensing Bill: Exemption for Secular Music
in Places of Worship, DCMS, Monday 3 February 2003, HC Deb.,
3 February 2003, c7WS Back
17
Licensing Act 1964, ss. 172, 172A Back
18
First Report of 2000-01, para. 32 Back
