Joint Committee On Human Rights Fourth Report

6. Memorandum from Meard and Dean Street Residents' Association


I have been sent a copy of Dr Howells letter to you responding to questions raised by the Joint Committee on Human Rights in connection with Article 8 and Article 10 and the Licensing Bill. I have taken the liberty of commenting on this letter, which I hope you will not mind.

Before I comment on the substance of Dr Howells' letter, I would like to emphasise that while our Association is purely a residents' group concerned principally with the issues of nuisance, crime, disorder, and safety, I am also the Chairman of the Licensing Committee of the Soho Society, a body which is interested in the rights of all patties in Soho: licensees, musicians, property owners as well as residents. As a charity, the Soho Society is unable to participate in this debate because it is political in character, but I have raised a number of issues at the end of this letter (in the section called "Other Issues") that concern the possible issues in relation to the rights of Soho licensees and Soho property owners under article 1 of protocol 1. That section reflects the substance of the discussion at the most recent meeting of the Soho Society's Licensing Committee. The Society has asked this Association to raise these issues on its behalf. We are pleased to do this because we are interested in balance. The problem with the Bill is that it is lacks balance and the effort to make it fit the requirements of the law has exposed the real weaknesses of the Bill.


Dr Howells' says in his letter (if I have understood him correctly) that although clause 18(2) of the Bill requires a licensing authority to grant a licence when there are no "relevant representations", a licensing authority can never be compelled to grant a licence that involves a violation of its obligations under Article 8 of the Convention because it has a power under clause 18(1) "not to determine" a licence, even when there are no relevant representations, on the grounds that the licence has not been prepared "in accordance with clause 17".

I am pleased that the DCMS agrees that Article 8 is relevant to licensing (although it has failed to mention this important obligation on licensing authorities in the sections of the Explanatory Notes dealing with Convention issues). I am also pleased that the DCMS recognises that licensing authorities cannot be forced to grant licences irrespective of the circumstances. But I am not sure if Dr Howells' letter deals fully with the issue that the Committee asked which is:

"why the Government considers that these provisions [i.e. the clauses 4, 13 and 18 of the Bill] adequately safeguard the rights to respect for private life and the home under Article 8"

I interpret the rights under Article 8 to include (1) protection from noise emanating from licensed premises as well as (2) noise that arises from the operations associated with the premises, over which the premises themselves may have no control, but which the licensing authority has power to control (by not granting licenses in some cases and imposing conditions as to hours, a capacities etc in other cases). Dr Howells appears to have dealt only with the first of these issues. I say this because he has interpreted the Committee's question in the second paragraph of his letter narrowly, stating:

"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" [my emphasis]

The distinction between (I) and (2) is important because my letter (and the concern of our Association) is specifically with issue (2) i.e. about noise from customers after they have left the licensed premises, and noise from service vehicles, and taxis and the like ­ which do not emanate from the licensed premises but which are an (inevitable) consequence of their operations and the consequence of the decision of the licensing authority.

To the extent that licensing authorities are not bound by the narrowness of Dr Howells' response (because section 6(1) of the Human Rights Act 1998 may require the local authority to interpret the question in the broad way that we understand our rights under Article 8), then I have no issues with respect to Dr Howells' answer in this respect.

But I do have issues with Dr Howells' interpretation in other respects.

(a)  Positive obligations under Article 8

Article 8, as we said in our letter of 2 December 2002, requires the State not merely to:

"to abstain from ... interference [with these rights]; in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private and family life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves ... [49]." [my emphasis]

In our view, the starting point for carrying out these positive obligations is to ensure that legislation designed to protect these rights and freedoms is framed, wherever practicable[50], in a clear and transparent way, so that ordinary citizens and their residents' associations as well as the public authorities who have obligations to protect these rights, can know their legal rights and obligations simply by reading the text of the law—in the light of the ordinary meaning of its words—without recourse to the kind of legal advice that the DCMS has had access to. That is required if for no other reasons than to ensure that the public has confidence that politicians say what they mean and mean what they say. People are suspicious of spin.

To interpret clause 18(1) in the way suggested by Dr Howells requires the public to interpret the words in clause 17(4)(g) which state:

"the steps which it is proposed to take [i.e. by the applicant] to promote the licensing objectives"

as meaning "the steps which it is proposed to take to ensure that the licensing authority can satisfy its obligations under the Convention".

This interpretation of clause I 7(4)(g) may well be "possible" for the purposes of section 6(1) of the Human Rights Act 1998 but it is such an extraordinary interpretation of the words that no one else has arrived at a similar conclusion before. None of the peers involved in the Committee stage appears to have seen it that way nor have any of those outside Parliament who have looked at the Bill in detail. Ministers' answers to questions about clauses 17 and 18, as reported in Hansard, give no indication of the great weight placed on clause 17(4)(g) and the powers in clause 18(1) as a means of protecting the rights of residents under article 8 and there is certainly no reference in the Explanatory Notes to the importance of these clauses as a means of protecting these rights. That is an issue given the interpretative force that ministerial statements made in Hansard can have in certain circumstances in the Courts.[51]

If Dr Howells means what he says, then the Bill must surely be redrafted in such a way that meets not only the letter but also the spirit of the Convention, setting out the duties and powers of the licensing authority with respect to its Convention obligations clearly and transparently. Anything else is likely to mislead ordinary people, whether licensees, residents or local councillors (who will have to sit on licensing committees), and so create obstacles to the effective protection of individuals' rights.

(b) Procedural issues with Dr Howells' interpretation

The second problem that we have with Dr Howells' interpretation is how it is expected to work in practice. Dr Howells says that if the application to be considered has not been made "in accordance with clause 17" then

"duty of the licensing authority to determine the application will not apply"

I do not see how that can be the case. When the licensing authority receives an application it must first consider it under clause 18(1) to assess whether it has been made in accordance with clause 17. If, as Dr Howells' suggests, this consideration involves a decision about whether the application allows the licensing authority to satisfy its obligation under section 6(1) of the Human rights Act 1998, IT MUST BE A DETERMINATION. And such a determination, given its nature, is likely to engage a whole series of civil and Convention rights—of the applicant as well as others.

For example, in addition to determining the rights of the applicant with respect to his licence (which clearly engages Article 1 of Protocol 1), the licensing authority's decision engages the Article 8 rights of a large number of individuals as well as non­governmental organisations.[52] It may also engage the rights of local property owners under Article 1 of Protocol 1 and the rights of a large number of individuals concerned about their safety in the street as well as within licensed premises, claims which may engage the state in positive obligations by virtue of Article 2.[53] All these rights are both Convention rights as well as civil rights,[54] and therefore they must be determined pursuant to judicial procedures either before the licensing authority or before an independent tribunal on appeal.[55]

The judicial procedures in question include the right to a hearing as well as the right to equality of arms in such a hearing:

"each party must be afforded a reasonable opportunity to present his case—including his evidence—under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent".[56]

In addition, by virtue of the need for equality of arms and by virtue of Article 14, all parties must have the right to the same procedures in the regulatory regime, including rights of appeal, in the absence of convincing reasons why that should not be so.

Need for a hearing to decide the clause 18(1) issue

Given all this, I cannot see how the licensing authority can make the decision that Dr Howells suggests it should make under clause 18(1) without a hearing[57] and at this hearing all those who have arguable civil and Convention rights will have to be heard, whether or not they are "interested parties" or "responsible persons". A local authority would violate its obligations under the Convention if it made a determination that an application was in accordance with clause 17 (and therefore did not involve the authority in any breaches of the Convention) without hearing those who have arguable civil and Convention rights at issue, particularly if they are parties who would not qualify as "interested parties". (If they were interested parties, of course, they would have rights to make "relevant representations" as part of the clause 18(3) decision.)

Parties who do not qualify "interested parties" who could have Article 8 (and other Convention) interests at stake include residents who do not live in the vicinity; and charities, churches, schools, trades­unions and other non­profit­making, non­governmental organisations.[58]

If these parties (who would not qualify as "interested parties") had to be heard by the licensing authority as part of the clause 18(1) decision, I do not see how the licensing authority could refuse to hear the "interested parties" who might also have something that should be considered.

It is also likely that those authorities who do not qualify as "responsible parties" such as Council officers who have duties of care arising in common law would have to be allowed to appear to make representations as well as others who have positive obligations under the Convention to bring article 8 issues to the attention of the Licensing Committee such as local authority housing officers, local councillors and other agencies with specific responsibilities of a public nature such as officers of housing associations. For example, in central London virtually all public housing is provided by housing associations of which the Soho Housing Association is the most important.

If this interpretation holds water, there is likely to be great confusion about the purpose of the determination that has to be made under clause 18(3), which in all substantive respects will be a re­run of the determination in clause 18(1). Both decisions have to be made, according to Dr Howells, in the light of Convention obligations with a "view to promoting the licensing objectives."

Licensees would surely be justified in protesting against the bureaucracy of a process which requires the same issue to be considered twice by the licensing authority.

Appeals against the decision in clause 18(1) and 18(3)

A further difficulty with Dr Howells' interpretation and with the Bill in any case as it stands is the inequality in the rights of applicants and objectors with respect to appeals. The requirement of the Convention as I noted above is for there to be equality of arms and non­discrimination in the treatment of people in an analogous situation.

The applicant for a licence may by virtue of Schedule 5 of the Bill appeal to the Magistrates' Court against ALL decisions of the licensing authority made under clause 18, including the decision to be taken by virtue of clause 18(1) and by virtue of clause 18(3). Residents and others objectors cannot appeal to the Magistrates' Court against any decision of a licensing authority under clause 18(1).

As far as the licensing authority's decision made pursuant to clause 18(3) is concerned, those residents who qualify as "interested parties" would have a right of appeal to the magistrates Court. But if a licensing authority made a decision not to recognise the standing of a party as an "interested person" or decided that representations made by an "interested party" were not "relevant" (see below for situations when representations may be in connection with Convention rights but do not fall within the meaning of "relevant representations") or that they were frivolous or vexatious, it appears that there would be no right of appeal to the Magistrates' Court against such a decision, only a right to petition the Administrative Court for judicial review. This, as this organisation can confirm is very expensive, time consuming and extremely burdensome.

I believe that these appeal provision do not meet the requirement of the Convention because they tilt the playing field against the objector.

(c)  Proportionality

The third issue that I see with Dr Howells' interpretation is the issue of whether the licensing authority can make a decision that is proportionate under clause 18(1).

Consider what would happen if (1) the only representations made were from parties who would not qualify and "interested parties" or "responsible persons" and (2) the licensing authority felt that the objectors had interests which engaged Convention rights, which could be addressed through the imposition of a condition (say imposing a terminal hour of 1.00am) on the licence. In this case, because none of the objectors were capable of making "relevant representations", the licensing authority would either have to reject the application or allow it. The Explanatory Notes to the Bill make it perfectly clear that the licensing authority has no discretion to pursue any other course of action.[59]

In either case the licensing authority would violate its Convention obligation to make a decision that is proportionate. Furthermore, if the licensing authority were to reject the application, the applicant would have a right of appeal to the Magistrates' Court but if the licensing authority were to grant the application under clause 18(1) and clause 18(2), the objectors would have no right of appeal.


The Committee has raised an issue that the licensing objectives do not include the protection of Convention rights within the context of Article 8. Dr Howells has responded to that concern with an answer with which I agree. But having reflected on this question I think that the Committee is right to raise the issue because there are Convention rights other than those listed in the licensing objectives which involve residents and licensees and possibly other parties.

Licensee's rights under Article 1 of protocol 1

Licensees have Convention rights under Article 1 of Protocol 1. Article 1 of Protocol 1 states:

"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except I 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."

It is sometimes argued that licences are property rights that are protected by the first paragraph of Article 1 of Protocol 1: that is not so. Licences are the means by which the state controls the use of property in accordance with the general interest and therefore licences fall to be considered within the second paragraph of Article 1 of Protocol 1.[60] The state is said to have a wide margin of appreciation with respect to the second paragraph of this article but even that does not mean an unfettered discretion.

The licensing authority, where issues arise under either the first or the second paragraph of this Article, is required to determine them in accordance with fair procedures and to arrive at a decision that is proportionate, having regard to all the circumstances. The Explanatory Notes recognises this need for a hearing but it is not clear how the licensing authority can give effect to this obligation to arrive at a proportionate decision.

Consider what happens when a licensing authority is faced with a decision to be made under clause 18(1)—assuming Dr Howells is right about the meaning of that clause—or 18(3). It MUST make that decision by virtue of clause 4(1) "with a view to promoting the licensing objectives". Since these licensing objectives do not include the objective of balancing the interests of the licensee with other rights, a licensing authority will be in some difficulty. On what basis could a licensing authority have regard to the property interests of the licensee which are protected by the Convention? The Bill as drafted gives protection to licensee only when a decision is made by virtue of clause 18(2)—the offensive clause—because that clause involves no discretion. Similarly the licensee has no protection when a license is subject to review.

Other property owners' rights under article 1 of protocol 1

Issues that arise under article 1 of protocol are not only of concern to licensees: all those with property that might be affected by the grant of a licence have rights under the Convention rights including residents and non­governmental organisations.

These property owners are at a material disadvantage compared with licensees in this Bill for the following reasons—

(a)  first, they have no rights in clause 13(3) to make representations pursuant to the decision to be made under clause 18(3) (unless they qualify as residents living in the vicinity or persons involved in a business in the area). If my reading of Dr Howells' interpretation of clause 18(1) is correct they would be able to appear and make non­relevant representations but as discussed above they would have no rights to appeal;

(b)  secondly, even if they were residents living in the vicinity or persons involved in a business in the area, they could not make "relevant" representations because these are representations about the likely effect of the grant of the licence of the licensing objectives—which do not include representations about the effect of the grant of the licence on their property interests; and

(c)  thirdly, like licensees, even if none of these parties make any representation, the licensing authority is prohibited by virtue of clause 4(1) from considering their interests. Therefore the issue that I have raised in my letter of 26 November 2002 and in this letter about the awkward position that the licensing authority would find itself in with respect to residents' rights under Article 8, would also apply to property owners in this case.

However, wide the margin of appreciation that the state might be, such restrictions cannot be considered to be acceptable within the meaning of Article I of Protocol 1, which includes as with all Convention articles, basic procedural guarantees.

While we have dealt with it here it is obvious that the licensing objectives may also prevent the licensing authority from having regard to the interests of individuals under Article 10.


The basic problem with the Bill is that it lacks balance. It places the greatest burdens on those who are least likely to be able to bear them (i.e. residents) through restrictions on their rights of access to the tribunal, restrictions on what can be said in these tribunals, restrictions on their rights of appeal and through the fact that in the absence of representations there is a strong presumption in favour of the grant of the licence (if you accept Dr Howells' interpretation of clause 18(1)). This presumption against residents' interests is not only apparent in the fine text of the Bill but it also runs through the Framework for Guidance issued by the DCMS. The problem is that Article 8(1) requires a presumption in favour of residents' interests—which we readily concede is capable of being overcome in the circumstances set out in article 8(2). Parliament in our view is unlikely to produce legislation that is compatible with the Convention quite, apart from article 8, if that legislation creates an imbalance between residents and licensees.[61] We would welcome an opportunity to discuss our letters with you. I am copying this letter to the Secretary of State.

28 January 2003

49   X and Y V Netherlands (1986) EHRR 235 paragraph 22 of the judgement Back

50   We accept that the requirement in section 6(1) of the Human Rights Act 1998 to interpret all primary legislation in a way that gives effect to Convention rights "so far as it is possible to do so" is a practical and convenient way to ensure that the whole body of historically enacted legislation can be interpreted in the light of the need to protect the Convention rights but we fail to see why as a matter of practice Government departments should expect the public to rely on this construction with respect to NEW legislation.


51   See Pepper v Hart (1993) AC 593 Back

52   By virtue of section 7 of the Human Rights Act 1998, claims for breaches of Convention rights may be brought by all those who have rights to petition the Strasbourg authorities under Article 34. Article 34 specifically includes non­governmental organisations. The Licensing Bill, however, excludes them (see clause 13(3)) to the extent that they are not businesses. The Bill therefore excludes schools, churches, amenity societies, trades­unions and other non profit making organisations. Back

53   See Guerra v Italy (1998) 26 EHRR 357 Back

54   There are arguably civil rights in these cases arising in the common law of nuisance and negligence which engage local authorities and magistrates under the ordinary principles of law as well as under the Convention. Back

55   Albert and Le Compte v Belgium (1983) 5 EHRR 533 see para 29 Back

56   Dombo Beheer BV v Netherlands (1994) 18 EHRR 213 see para 33 Back

57   The need for a hearing in respect of the decision to be made under clause 18(1) is acknowledged in paragraphs 54 and 55 of the Explanatory Notes to the Bill but only with respect to licensees rights under Article I of Protocol 1  Back

58   For an example of article 8 rights concerning individuals involved in non­governmental organisations see

Nietmetz v Germany (1992) 16 EHRR 97. Non­governmental organisations may also have other rights under the Convention.


59   See paragraph 66 of the Explanatory Notes Back

60   Trackorer, The Aktiebolag v Sweden (1991) 13 EHRR 309 Back

61   See G v France (1988) 57 DR 100 Back

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