Joint Committee On Human Rights Fourth Report


1. Letter from Dr Kim Howells MP, Minister for Tourism, Film and Broadcasting, Department for Culture, Media and Sport, to the Chairman


Thank you for your letter of 5 December to Tessa Blackstone. I am replying as Minister responsible for licensing issues.

The Committee asked for comments on two points in relation to the compatibility of the Licensing Bill (hereafter "the Bill") with the European Convention on Human Rights in its letter of 5 December 2002. I am grateful to the Committee for allowing further time to consider the points raised.

The first point relates to the duty imposed on the licensing authority, under clause 18(2) of the Bill, to grant a licence where no relevant representations have been made under clause 18(3). The Committee is concerned that this duty may have the effect of forcing the licensing authority to act in a manner incompatible with the Convention, by precluding it from considering the effect of the licence on the right of local residents to respect for their private lives and homes, under Article 8 of the Convention. The Committee is here specifically concerned with the protection that Article 8 affords to such local residents against a degree of noise nuisance, which may emanate from licensed premises.

We are firmly of the view that, when the licensing system set out in the Bill is considered as a whole, the degree of protection afforded to local residents against nuisance is compatible with Article 8 of the Convention and that a licensing authority will not be required to act in a manner incompatible with the Convention under the system to be introduced by the Bill. This is for the following reasons.

First, the Committee will note that a licensing authority will only have a duty to consider an application for the grant of a premises licence if that application is in accordance with clause 17 and, in particular, if the authority is satisfied that the application has first been advertised in a manner likely to bring it to the attention of those living in the vicinity of the premises (clause 18(1)(b) read in conjunction with clause 17(5)(a)(ii) and clause 13(3)(a)). These local residents, having the status of "interested parties" under clause 13(3)(a), are afforded the right to make representations to the licensing authority about the likely effect of the grant of the licence applied for on the promotion of the licensing objectives (clause 18(3)). The Committee has commented that the licensing objectives do not include respect for or protection of Convention rights. However, the Committee will note that the prevention of public nuisance is a licensing objective (clause 4(2)(c)), meaning that the licensing authority is expressly empowered to take into account this aspect of the right of local residents under Article 8 of the Convention. The new system enhances the rights of local residents, in that it will introduce for the first time in relation to decisions on the licensing of licensable activities a statutory right to make those representations, thereby adding to the information a licensing authority must consider in fulfilling its statutory duty. If the licensing authority is of the opinion that it has not received an application which complies with clause 18(1) it will not determine that application.

Secondly, the Committee seems to be under the impression that, if no relevant representations are made, the licensing authority is precluded from considering the matter of noise nuisance and the effect that the licence would have on the right of local residents to enjoy a degree of protection from such nuisance. This is not the case.

The application to be determined will have to be accompanied by an operating schedule (clause 1 7(3)(a)) and one of the matters that an applicant must set out in this document is the steps which will be taken to promote the licensing objectives (clause 17(4)(g). As noted above, one of the licensing objectives is the prevention of public nuisance.

In the event that the operating schedule does not address any of the matters it should address e.g. it does not set out the steps which the applicant will take to promote the prevention of public nuisance, the duty imposed upon a licensing authority in clause 18(2) to grant the application would not apply. This is because the application itself would not have been made in accordance with clause 17 (clause 18(1)(a)) and the duty of the licensing authority to determine the application will not apply.

Where, on the other hand, an application does meet the requirements of clause 17(4)(g), the duty to grant the licence where no relevant representations have been made will apply. However, the licensing authority is then required to grant the licence subject to such conditions as are consistent with the operating schedule (clause 18(2)(a)). As a consequence a condition attaching to the licence will reflect the steps identified in the said schedule to promote the prevention of public nuisance; for example by controlling the level of noise which may emanate from the premises. Also, pursuant to clause 4(1), a licensing authority must carry out its licensing functions with a view to promoting the licensing objectives.

Further, in the event that a licence is granted and a local resident subsequently experiences interference with his Article 8 right to enjoy protection against noise nuisance, he is empowered to apply under clause 50 for a review of the premises licence. The fact that unreasonable noise nuisance is emanating from the premises will be "a relevant ground for review" in this context, as it is relevant to one of the licensing objectives (clause 50(4)(a)), namely the prevention of public nuisance. Also, if a local resident has made relevant representations with respect to an application and considers that the licence ought not to have been granted or that different conditions etc. should have been imposed that resident is given a right of appeal to a magistrates' court. A similar right of appeal applies in relation to reviews.

In addition to the right afforded to interested parties to make representations in respect to an application for a premises licence, the Committee will note that a class of person known as "responsible authorities" are also afforded such rights. Such authorities represent those experts within the local community who have responsibilities in respect of the licensing objectives; for example the police. In all the circumstances of the scheme in its component parts in fulfilling its duty a licensing authority cannot find itself in a position which would require it to act in a manner incompatible with Convention rights and it is considered that there are adequate safeguards in relation to rights in Article 8 of the Convention.

The second matter is a concern of the Committee that clause 134 removes the exemption from the licensing regime in respect of live performances by no more than two performers. Under clause 134 of the Bill, it would become an offence for such a live performance to be conducted otherwise than in accordance with an authorisation. The Committee has raised two questions on this matter. However, before turning to those points, we felt it may be helpful to the Committee if we set out two general matters by way of background, which are relevant to the Committee's concerns.

The first of these relates to the indication given by the Committee regarding the insufficiency of paragraph 230 of the Explanatory Notes, in justifying the interference that clause 134 presents to rights under Article 10 of the Convention and Article 1 of the First Protocol to the Convention. The Department had prepared, for the purposes of LP Committee, a separate and detailed memorandum relating to ECHR considerations. However, in accordance with the latest guidelines to departments, the Department incorporated brief observations on such considerations into the Explanatory Notes that accompanied the Bill on Introduction. Unfortunately, this resulted in some detail of the Department's consideration of Convention rights and its assessment not finding its way into the latter document. The Committee will note that paragraphs 228 and 229 of the Notes relate in their entirety to Part 7 of the Bill, including clause 134.

The second matter by way of background that the Committee may find useful is clarification of the current position in relation to two live performers and an indication of how this operates within the present licensing regime. Presently, where persons want to have musicians performing at premises, a public entertainment licence is required. A narrow disapplication from this requirement is provided in s. 182 of the Licensing Act 1964. In relation to live music, the disapplication from the need to have a separate public entertainment licence only applies where a justices' licence under the 1964 Act is in existence in relation to the premises and where the performance is by no more than two performers. However, this does not apply if there are more than two performers or if the performance of live music by up to two performers is combined in any way with recorded music. Thus, for example, the performance of a single musician accompanied by recorded music would require a public entertainment licence in addition to the justices' licence and the disapplication would not obtain.

It is clear from the above that, for the disapplication to apply, an authorisation currently needs to be in existence in any event, namely a justices' licence in relation to the premises. Under the system to be established in the Bill, only one licence need be obtained for premises by those wishing to use their premises for such performances, regardless of the number of performers, and the combination of music to be performed. Accordingly, the system to be introduced will not, in any practical way, involve more by way of regulation for musicians to perform and, it is hoped, this could benefit musicians by removing the need for two separate authorisations which would be the current position in the vast majority of cases, from different licensing authorities.

It should be noted that clause 134 represents the successor offence provision for section 160 of the 1964 Act and similar offence provision in relation to public entertainment (e.g. paragraph 12 of Schedule 1 to the Local Government (Miscellaneous Provisions) Act 1982.

It was from the outset conceded by the Department that the removal of this disapplication may interfere with Convention rights in, two ways. First, to the extent that their performance would fall within the disapplication, it interferes with the right of musicians to freedom of expression under Article 10 and secondly, it involves a control of use of property under Article 1 of the First Protocol, in respect of those wishing to allow on their premises performances by no more than two live performers.

The Committee raises two specific questions in relation to the existing position. The first question is how the interference which clause 134 poses to rights under Article 10 of the Convention can be justified under Article 10.2 of the Convention. In order for any interference to be justified under Article 10.2, there must be a pressing social need for the interference in pursuance of a legitimate aim. Of course, the offence provisions in Part 7, including clause 134, are included to ensure that the licensing regime is adhered to for the promotion of the licensing objectives (including the protections those objectives afford to both general and specific interests). The legitimate aims pursued by clause 134 are one or both of the following, namely the interests of public safety and protection of the rights of others (and the prevention of crime and disorder). In relation to performers, public safety issues arise because amplification equipment is now commonly used in relation to such live musical performances and it is important that the fire authorities are empowered to examine premises using such equipment, in order to ensure that adequate safety measures are in place at the premises. In the case of the protection of the rights of others, in this context this is specifically referring to protecting the rights of local residents not be subjected to excessive noise nuisance created by such performances. Because, as stated above, amplification equipment is commonly used, a performance even by a sole singer can create noise of a level sufficient to disturb local residents. The pressing social need for the interference arises owing to the importance of the protection of the rights of these local residents and the importance of public safety when balanced against the rights of musicians to perform on premises without the need for an authorisation (this balance is reflected in the current system as a justices' licence is required).

The second question posed by the Committee is how the interference which clause 134 poses to the right of peaceful enjoyment of possessions can be justified under Article 1 of the First Protocol. In order for this control of use of property to be justified, it must represent a fair balance between the rights of individuals and the public interest. We are of the view that the offence provisions in clause 134 represent such a fair balance, when the rights of owners to use their property for such live performances are balanced against the importance in the general interest of ensuring the public safety and the prevention of public nuisance for local residents.

The Department has received little by way of representation in connection with the Bill in relation to human rights issues. However, representations have been received from the Musicians' Union in relation to Article 10 rights and from one Resident's Association about Article 8.

10 January 2003

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