Joint Committee On Human Rights Fourth Report

5. Memorandum from Messrs Russell Jones & Walker, Solicitors


As you know from previous correspondence we act for the Musician's Union. Our clients were passed on 28 January 2003 a copy of the letter from the Minister for Tourism. Film and Broadcasting of DCMS dated 10 January 2003 concerning the above matter is enclosed. Our clients did request an extension of time in order to provide a response to that letter but understand that a reply is required today.

In the time available our client wishes us to make the following comments in respect of the two points made in the letter of 10 January 2003.

Duty to grant licence where there are no relevant representations made under Clause 18 (3)

The Committee have expressed concerns about the duty opposed on the licensing authority being incompatible with Article 8 of ECHR, by precluding it from considering the effect of the licence on the right of local residents to respect for their private lives and homes.

Clause 18 concerns the determination of applications from premise's licences. Under Clause 17 any application must be accompanied by, amongst other things, "an operating schedule" which will include a statement of the "relevant licensable activities".

Whereas a "relevant licensable activity", as defined in the bill, will include non­amplified live music, it will not include the amplification of recordings (through a jukebox or other sound systems) if incidental to activities that are non­licensable entertainments (i.e. drinking and eating or television broadcasts (of sporting events or otherwise).

The Union consider that there is already adequate legislative protection for local residents in respect of the potential for noise nuisance from licensed or other premises. See previous correspondence from Hamish Birchall to Jean Corston.

The intrusive regulatory framework which the Bill seeks to introduce is, in any event, inconsistent. As our clients have pointed out on numerous occasions, the likelihood of "noise nuisance" is self­evidently more likely in the event of amplified (in contrast to non­ amplified) music and, more importantly, more likely in the event of amplified sound recordings and TV broadcast. As identified above, neither amplified sound recordings or TV broadcast falls within the ambit of the Bill, but a single folk guitar player in licensed premises will or indeed in "any place" be a licensable activity. No explanation has been provided for the disparity of treatment.

Removing the exemption from the licensing regime in respect of live performances by no more than two performers

For the reasons which have been explained in the earlier opinion of Robin Allen QC previously forwarded to you, the Union consider this existing disapplication (the "Two in a Bar rule") not to be wide enough to be compliant with both Article 10 and Article 11 of the First Protocol of the Convention. Without prejudice to that contention, our client's comment on the justification given by the Minister for the interference which Clause 134 poses to rights under Article 10 of the Convention.

As the Minister accepts:

"There must be a pressing social need for the interference in pursuance of a legitimate aim" (our emphasis).

Our clients do not understand that the current system operated in Scotland gives rise to material concerns. There has been little if any consideration given to this but we consider that the comparison with the Scottish system in determining whether there is a pressing social need for this increased degree of regulation relevant. As you will know the Scottish system only requires extra licensing for music incidental to the main purpose of the venue, where activities are expected to continue late into the night. Otherwise the regime is considerably more relaxed and does not require licensing for musical events in most licensed premises. It is important to note that public safety and noise in this context is regulated by UK­wide legislation.

It was understood that the intention of the Bill was to implement the provisions in the White Paper "Time for Reform". The stated intention was to minimise over regulation. It seems clear however this has now been disregarded. The total exemption for broadcast entertainment, against criminalisation of even unamplified live music, amounts to a discrimination against the development of live music.

In order to justify such over legislation the interference must be, as stated, for a "pressing social need". Both the Convention and the Human Rights Act also require proportionality.

We consider that, again, the Government have failed to demonstrate pressing social need for this over regulation. No details whatever have been provided to demonstrate that subsisting safety, noise and crime and disorder legislation cannot address the risk arising from small scale live performance. Further we remain of the view that the effect of the Bill is disproportionate to the aims pursued.

Justification for the approach adopted is by reference to the potential sound of music through amplification which, it is asserted, gives rise to two issues (a) public safety issues arising from the amplification equipment; (b) potential for the right of local residents not to be subjected to excessive noise nuisance created by amplified performances.

So far as noise our comments are as follows—

  • Our understanding is that the overwhelming cause of noise complaints has nothing to do with live music but is due to noisy customers In the vicinity of licensed premises.

  • The existing legislation is adequate to deal with these issues. For example:­ the Town and Country Planning Acts allow for the imposition of pre­emptive noise controls; licensing justices in granting licenses may impose noise limiting conditions and there is power for Local Authorities under the Environmental Protection Act 1990 to serve anticipatory noise abatement notices if they are satisfied a noise nuisance is likely to occur or recur.

Further, and importantly, it is implicit within the Bill that the Government consider this existing legislative framework sufficient to cope with the main source of noise nuisance; namely if I had recorded music and television broadcast (and the noise associated with it). Our clients understood, in discussions yesterday with the Chair of the working group producing Institute of Acoustics guidance on noise from pubs and clubs, that noise nuisance may also arise from televised sporting events. This is to be cited in the forthcoming guidance.

In so far as the safety aspects are concerned, our clients consider that the existing Health and Safety legislation and guidance, which is evolving in response to developments in best practice, is a much more effective means of achieving safety goals in the proposed licensing system. All entertainment events are classified as work activities for the purpose of the Health and Safety at Work Act 1974 and various regulations and codes of practice. Entertainment events are also subject to a range of fire, safety, electrical and other safety legislation, including: both the Fire Precautions Act 1971 and the Fire Precautions (Work Place) Regulations 1997.

Specific reference is made by the Minister to the potential safety implications of amplification equipment. No reference however is made to the potential safety implications of broadcasting equipment that may be used to broadcast sports and other events nor of other amplification equipment that may be used to broadcast recorded sound. We understand that, particularly because of the risk of dust accumulation, risks associated with television equipment may be more significant as a fire and other risk than most amplification equipment. Yet the former is not a licensable activity, the latter (if associated with live music) will be.

The Government have neither demonstrated a pressing social need for the additional regulation which they are now proposing in this area nor have they provided tangible evidence of there being excessive noise and nuisance created by amplified live performances (in contrast to amplified recorded music and sports television broadcast—and noise associated with it), neither of which are the subject of the licensing regime.

These comments apply equally to the response to the Minister in respect of Article 1 of the First Protocol.

31 January 2003

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