Joint Committee On Human Rights Fourth Report

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.

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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.

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24 January 2003

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