2. Memorandum from Hamish Birchall, Musicians
Union, to the Chairman
This supersedes my email of yesterday in which I
commented on the latest DCMS justification of the Licensing Bill.
Please forward to all Labour MPs with an interest.
I am glad to say that Bob Marshall Andrews QC has
now read Robin Allen's opinion and he agrees with it. Expert licensing
lawyers also agree with our reading of the Bill: as worded, a
licence is required at private functions where a musician charges
a fee; rehearsal facilities and church bells are also caught.
What the licensing Minister says and what the Bill
says are, in many respects, two different things. There is no
dispute, however, that the Bill criminalises all musicians who
do not 'take all reasonable precautions' before performing to
ensure premises hold 'an appropriate authorisation'. It also criminalises
the mildest of unamplified performance but ignores potentially
extremely noisy broadcast and jukebox music.
These undisputed facts alone account for the understandable
indignation of performers, and for the growing incredulity of
the press and general public.
* * * * *
Many individuals and organisation have expressed
serious concerns about the effect that the Licensing Bill will
have on live music, and other forms of entertainment. Many of
the fears that exist are unfortunately based on misinterpretations
of its provisions. The Bill has been drafted, as all Bills are,
by Parliamentary Counsel following instructions from the Government.
We have considered the alternative interpretations that have been
put to us but have concluded that they are incorrect.
HB: The fears are not
simply based on differences of legal opinion about the interpretation
of the Bill. They are based on 20 years experience of petty local
authority enforcement of the letter of existing public entertainment
licensing law. Scores of councils have, for example, sent undercover
licensing officers to pubs merely to count the number of performers
even though there was no noise complaint or public safety risk.
The interpretation of the Bill on which the MU position
is based is that of respected QC, Robin Allen. The PerformerLawyer
group endorses our concerns: the group is made up professional
lawyers who are also amateur performers. Expert licensing lawyers
also agree, for example, that carol singing on front door steps
is caught by the Bill, as is playing a tune on a guitar in a music
shop. DCMS claims that such views are incorrect must be backed
up with reasoned argument referencing the relevant clauses/paragraphs
in the Bill.
On 5 December 2002, Labour MP Jean Corston, in her
capacity as Chair of the JCHR, wrote to Baroness Blackstone asking
for an explanation why the government considers that abolishing
the two performer licensing exemption is a proportionate response
to a pressing social need. This arose because the Committee concluded
that the Bill could violate performers' right to freedom of expression
(Article 10 of the European Convention on Human Rights). Commenting
on the government's justification published in the Explanatory
Notes that accompany the Bill, Ms Corston wrote:
'This amounts to no more than an assertion that requiring
the activities to be authorised would serve a legitimate aim and
would be necessary for and proportionate to the aim because the
activities are required to be authorised. It is not a justification;
indeed, it seems to be an attempt to pull the Bill up by its own
bootstraps'. [Appendix 11, Scrutiny of Bills: Progress Report,
HL Paper 24, HC 191, published 20 December 2002]
The DCMS has now responded to the JCHR, and the Committee
will publish its comments on the Department's response next week.
* * * * *
24 January 2003