Joint Committee On Human Rights Fourth Report



2. The Licensing Bill is the product of a long period of consideration and consultation about the modernisation of licensing law. The Bill covers entertainment licensing as well as liquor licensing. Explanatory Notes have now been published.[1] The Committee has already expressed views about certain aspects of licensing law when it reported on the Criminal Justice and Police Bill in the 2000-01 session.[2] In particular, the Committee considered provisions which now form Chapter 2 of Part 1 (sections 12 to 32) of the Criminal Justice and Police Act 2001, and sections 169I, 172A and 179A-179K of the Licensing Act 1964, and advocated improvements to the language in which certain criminal offences were expressed (notably permitting 'any violent, quarrelsome or riotous conduct' on licensed premises).[3]

3. The Bill would repeal the 1964 Act in its entirety, and make certain amendments to other legislation, including Chapter 2 of Part 1 of the Criminal Justice and Police Act 2001. The provisions governing licensing and various offences (including those considered by the Committee in the 2000-01 session) would be comprehensively revised.

4. As we have already reported,[4] our Chair wrote on 5 December 2002 asking for the Government's response to a number of questions relating to the Bill's human rights implications. The Government responded in a letter of 10 January from Dr. Kim Howells MP, the Minister for Tourism, Film and Broadcasting.[5] We have given further consideration to the Bill in the light of that response. We now report our current view.

The Human Rights Implications of the Bill

5. Any regime for regulating the supply of alcohol, and for licensing premises for the sale of alcohol,[6] interferes with the freedom of owners of premises to use them for the sale of liquor, and with the freedom of owners of intoxicating liquor to sell it. As the freedom to dispose of property or to use property for one's own chosen purposes is an aspect of the right to peaceful enjoyment of possessions under Article 1 of Protocol No. 1 to the ECHR (hereafter 'ECHR P1/1'), the whole of the Bill interferes with that right. ECHR P1/1 provides—

Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of the State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.

The condition that it is in the public interest and subject to the conditions provided for by law and by the general principles of international law requires that there be "a reasonable relationship of proportionality between the means sought to be employed and the aim sought to be achieved".[7] This entails striking a fair balance between the public interest and the rights of the property owner.

6. In a similar way, a regime for regulating the use of premises for providing entertainment interferes with the use to which the owner or occupier of premises can put them, and the freedom of that person and of any performers to freedom of expression under ECHR Article 10. Article 10 provides—

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

7. As the rights of those in possession of property, and perhaps those entertainers whose freedom of expression would be limited, are civil rights within the meaning of ECHR Article 6.1, the licensing procedures would have to be compatible with the right to a fair hearing by an independent and impartial tribunal under that Article.

8. The Explanatory Notes outline the Government's reasoning leading to the conclusion that the provisions are compatible with rights under P1/1 and ECHR Article 6.1.[8] Essentially, it is argued that the restrictions pursue a legitimate aim under and are proportionate to that aim for the purposes of P1/1, and provide for a fair procedure complying with Article 6. In view of the potentially damaging effects of alcohol on individual health and safety and on public order, there is a clear public interest in regulating the sale and public consumption of alcohol, we accept the Government's view on this, and do not propose to comment further here on this aspect of the Bill.

9. However, we raised two other matters with the Government. First, would the provisions for consultation and the granting of licences would adequately protect the rights of people in the vicinity of licensed premises to respect for their private lives and homes, especially in relation to problems of noise, under ECHR Article 8, having regard to the fact that clause 18(3) of the Bill would impose a duty on licensing authorities to grant licences where no relevant representation have been made under clause 18(3)? Secondly, would the criminalisation of all unlicensed public entertainment by clause 134 be justified in terms of the rights to freedom of expression and to peaceful enjoyment of possessions under ECHR Article 10 and P1/1 respectively?

The protection of the peace of the neighbourhood

10. The Minister, in his reply to our Chair, pointed out that—

  • the application would have been advertised in a manner likely to bring it to the attention of people living in the vicinity (clause 18(1)(b) read in conjunction with clause 17(5)(a)(ii) and clause 13(3)(a)), although we note that this would depend on regulations being made under clause 17(5) which may, but need not, require an applicant to advertise the application for a licence in an appropriate way;

  • local residents would be interested parties (clause 13(3)(a)) and so would be entitled to make representations which would have to be considered by the licensing authority;

  • responsible authorities, including the police, would also be entitled to make representations;

  • the licensing authority would have to consider the prevention of public nuisance, which would be a licensing objective (clause 4(2)(c)) and calculated to permit consideration of the right of local residents under ECHR Article 8;

  • even if there are no relevant representations, the licensing authority would have to consider the operating schedule submitted by the applicant, which must include an account of the steps that would be taken to promote the licensing objectives (clause 17(4)(g)), including the prevention of public nuisance. If the application does not set out those steps, it would not be in accordance with clause 17, and the authority would not be required to determine it. If the application is in order, the authority would still be entitled to attach conditions to the licence, and these would include conditions designed to prevent public nuisance;

  • a local resident who suffers interference with Article 8 rights subsequently would be able to apply for a review of the licence for the premises under clause 50.

11. We agree that the Bill would provide these safeguards, as long as regulations are made under clause 17 to require applicants to advertise their applications in a manner adequate to allow all interested parties to know of the application, to understand it, and to make timely representations. We consider that the Government should give an undertaking to each House that the regulations to be made under clause 17 will contain such provisions. If this is done, and taking all matters into account, we have reached the conclusion that the Government is entitled to take the view that licensing authorities could not be required to act incompatibly with rights under Article 8.1, and that the safeguards are adequate to ensure that, where such rights are engaged by an application for a licence (as will often be the case), there would be a reliable way of ensuring that any interference was justified under Article 8.2. We therefore take the view that, if appropriate regulations are made under clause 17 of the Bill, it would not give rise to a significant risk of leading to the grant of licences incompatibly with rights under ECHR Article 8. However, we note that the use of amplified recordings through electronic sound amplification systems would not in itself be a licensable activity under the Bill, and we have doubts about the capacity of licensing regime to protect people in the neighbourhood against interference with their rights under ECHR Article 8 from such sources.

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—

  • 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.

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

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