Commons Amendment

– in the House of Lords at 1:00 pm on 19th June 2003.

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62 Page 112, line 31, leave out paragraph 12

Photo of Lord McIntosh of Haringey Lord McIntosh of Haringey Parliamentary Under-Secretary, Department for Culture, Media & Sport, Parliamentary Under-Secretary (Department for Culture, Media and Sport) (Media and Heritage)

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 62.

The amendment made in another place reverses an extremely damaging amendment made by this House. That amendment, which was called—misleadingly, in my view—"Exemption for small premises", exposes the public, particularly children, to great safety and harm risks, leaves residents without a voice to protest against nuisance and strips away the powers of the police to control crime and disorder at vast swathes of venues across the country, many of which may be totally unsuitable for the provision of regulated entertainment.

I received a letter today from Councillor Simon Milton, the leader of Westminster City Council, who says that if our amendment were not made, 62 per cent of the licensed premises in Westminster would no longer be subject to licensing. He says, in particular, that since virtually all strip clubs are for fewer than 250 people—I am sure that that applies to all of them—there would be no licensing of such clubs. Imagine what that means.

I understand the sentiments behind the amendment and the deregulatory intention.

Photo of Lord McIntosh of Haringey Lord McIntosh of Haringey Parliamentary Under-Secretary, Department for Culture, Media & Sport, Parliamentary Under-Secretary (Department for Culture, Media and Sport) (Media and Heritage)

My Lords, I suggest to the noble Lord, Lord Monson, that it might be better if I made my speech before he has an opportunity to intervene, after which I can respond to him.

The intention was to exempt a kind of genteel, low-level and perhaps traditional music made in small premises from the perceived burdens of the new licensing regime. I stress the word "perceived" because the Licensing Bill strips away most of the burdens and costs associated with the existing licensing system. I agree with those sentiments, but the amendment is seriously misguided. It is unfortunate that the world does not consist solely of sophisticated jazz trios playing to well-behaved and civilised audiences. However, I used to go to a jazz club in Paris where the sensitivity of neighbours was so great that the audience was not allowed to applaud; instead they simply click-click-clicked their fingers to show appreciation. Perhaps that system could be introduced in this country also. The amendment would have destroyed all the protection, including the kind that I have been describing.

I hope that it does not come as too much of a shock when I say that the world is not like that. The most popular forms of live music in this country consist of loud and sometimes quite aggressive rock and pop music that provoke audience reaction. Many forms of entertainment give rise to serious issues of crime and disorder, public safety, public nuisance and the protection of children from harm. It should come as no surprise that both the Association of Chief Police Officers and the Local Government Association are vehemently opposed to an exemption of this nature.

The Bill sets out a simple, flexible and proportionate system designed to address those issues while sweeping away unnecessary barriers that stop performers entertaining the public.

The amendment made in this House would exempt any entertainment from the provisions of the Bill provided the audience does not exceed 250 at any one time and the entertainment finishes by 11.30 p.m. Entertainment, in the Bill, includes the playing of recorded music and performing live music, dancing, performing plays, exhibiting films, indoor sports entertainment and other entertainment of a similar description. All those types of entertainment would be covered by the exemption.

I reiterate that the description "exemption for small premises" is misleading. The exemption relates to the size of the audience, not the premises. The exemption would cover, for example, Fatboy Slim or Marilyn Manson playing music at full blast in the middle of a residential area so long as there were fewer than 250 people present at any one time. It would even exempt the Albert Hall if there were fewer than 250 people in the audience. Why should an audience of fewer than 250 be denied the expert consideration of their protection, and why should local residents be denied a voice?

I know that the musicians' lobby argues that existing health and safety and nuisance legislation should be enough to protect the public on those counts. However, I note that the Musicians' Union publishes a code of good practice relating to the health and safety of performers that goes beyond what health and safety law requires—good luck to it. However, the Government disagree fundamentally with that view for several reasons.

Fire safety law is often enforced through conditions attached to licences under the existing regimes. Exempting vast swathes of entertainment from licensing removes the opportunity to ensure public protection from fire risks through preventative measures.

Existing health and safety legislation is reactive. Licensing offers the opportunity to prevent problems before they have an opportunity to arise. Health and safety legislation relies on an individual operator knowing what they need to do to protect the public at an entertainment event and actually doing it. One of the key aims of licensing is to ensure that that happens. For example, if I were to put on a live band at my local community venue, I would not have the first idea about what I needed to do to ensure that the public and performers were protected from hazards arising from staging, lighting and electrical cabling. But the experts who would have the opportunity to comment on my licence application would certainty know what is needed.

If we left the small premises amendment in the Bill, it would take public protection out of the hands of the experts and give it, in many cases, to amateurs. That is not right, and I do not think it melodramatic to say that it would put lives at risk. However, if we put to one side our differences on the issue of public safety and public nuisance, the exemption made in this House has very serious consequences for the two other licensing objectives in the Bill—the prevention of crime and disorder and the protection of children from harm.

The potential effects of the exemption in those areas are wide-ranging. For example, in the case of a small cinema holding up to 250 people—there are quite a number of those—a child of any age would be free to enter and watch a film classified for 18 year-olds. That is because the recommendations of the British Board of Film Classification have no standing in law. They are currently enforced through conditions attached by the local authority to cinema licences under the Cinemas Act 1985. The Bill will eventually replace that Act in England and Wales. It is intended that similar conditions will be attached to premises licences held for cinemas or other premises exhibiting films. But, without those conditions, the BBFC classifications would be wholly undermined. There would be no way in which a licensing authority for a particular area could seek to have a say in the classification of films exhibited in its area.

The effect of the amendment is to give young children unrestricted access to sex and violent films in cinemas. There was outrage when I said that in the House earlier. I say it again because it is true. We have received representations in strong terms from the BBFC on the issue. I understand that other noble Lords have been on the receiving end of those representations.

The amendment also has a serious effect on the crime prevention objective. The effect is wide-ranging, but I shall illustrate it by way of example. The exemption would allow an individual involved in the sale of drugs to organise entertainment, perhaps a disco, for 250 teenagers with a view to selling his target audience drugs. As the event would not require the authority of a licence or even a temporary event notice, the police would not be informed and they would lose their right to intervene on crime prevention grounds and have the event stopped. They could intervene only after the event if some nuisance or tragedy had occurred.

Is that the type of licensing system that we want? We want a licensing system that aims to facilitate the provision of diversity of entertainment in a responsible way, subject only to those controls that are absolutely necessary. Are we prepared to put that at risk? I do not believe that that could possibly have been the intention of noble Lords opposite when they carried this amendment. They have an opportunity to put things right by supporting the amendment made in another place. I beg to move.

Moved, That the House do agree with the Commons in their Amendment No. 62.—(Lord McIntosh of Haringey.)

Photo of Baroness Buscombe Baroness Buscombe Conservative

rose to move, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 62, leave out the words from "that" to the end and insert "the House do disagree with the Commons in their amendment but do propose the following amendment in lieu thereof"— Page 112, line 30, at end insert—

"Small events: live music

(1) The provision of entertainment consisting of the performance of live music is not to be regarded as the provision of regulated entertainment for the purposes of this Act where—

(a) the number of listeners or spectators present does not exceed 200 at any one time, and

(b) the entertainment ceases no later than 11.30pm. (2) The provision of entertainment facilities solely for the purposes of entertainment described in sub-paragraph (1) is not to be regarded as the provision of regulated entertainment for the purposes of this Act.(2) Nothing in this paragraph shall be read as rendering invalid or otherwise affecting any provision of, or any regulation made under, any other legislation that applies to the entertainment, the entertainment facilities or the premises on which the entertainment is to take place."

Photo of Baroness Buscombe Baroness Buscombe Conservative

My Lords, I speak to Amendment No. 62A, and to respond to, and substantially disagree with, several issues raised by the Minister this morning. He knows that we are sticking to what we have said in repeated debates in your Lordships' House and on behalf of Her Majesty's Opposition in another place.

We understand that the Government's concern is particularly with regard to health and safety. I will seek, as briefly as I am able, to deflect some of the Government's arguments. We contend that there is more than adequate existing legislation to meet the objectives of the Bill, making superfluous the imposition of specific conditions on a licence. We support the view that a small premises exemption is a feasible option within the proposed regime. On health and safety, there is a duty under the Health and Safety at Work etc. Act 1974 for employers to ensure the safety of their employees and others who may be affected by what they do. Thus, publicans, event organisers and others already have a duty with which they must comply. They must ensure that their premises are safe for the use to which they are put, and that any equipment used on the premises is safe, not only for the user, but for all those in the vicinity.

When there is no employer, a similar duty is imposed on the person with control of the premises to ensure that the premises are safe for those using any plant or substances provided for them, which could include promoters or event organisers when premises are let to them to use. Breach of those sections is a criminal offence, with a maximum fine of £20,000 in a magistrates' court and an unlimited fine in a Crown Court. Publicans already have to comply with those provisions.

The enforcement agencies are also able to serve improvement and prohibition notices—the former requiring steps to be taken before an event can take place, and the latter preventing the event from occurring. Breach of those notices is an imprisonable offence.

The Government have suggested that existing health and safety legislation does not provide a sufficient safeguard because it is reliant on the duty holder complying with it, understanding it and taking steps to ensure the safety of patrons before the event. In other words, it is reactive legislation and imposes no site-specific requirements as licensed conditions would do. That is true, to a degree. However, such a statement fails to recognise two important issues: although conditions may be proactive in that they are placed on a licence prior to an event taking place, those imposing non-physical requirements—such as occupancy levels, the checking of fire doors and so forth—are still reliant on the licence holder complying with them.

There is already an existing obligation on every employer and self-employed person—which could include performers—to undertake an assessment of the risks to the health and safety of their employees, themselves and others who may be affected by their conduct under the Management of Health and Safety at Work Regulations 1999. Not only must a publican have already carried out a risk assessment of his premises, if he has a band, comedian or some other form of entertainment, he must undertake a new assessment considering the risks posed by the new activity. He may consider restricting the occupancy levels, ensuring that any staging is safe and so forth.

On fire safety, the risk assessment must also include consideration of any risk from fire. As from 2004, when the proposed Regulatory Reform (Fire Safety) Order becomes effective, a specific duty will be placed on an employer or the person responsible for the activity being undertaken to undertake an assessment of the risk posed by fire.

I could go on. Noise nuisance is a concern. Concerns have been expressed about the inability of existing legislation to deal proactively with the potential noise nuisance arising from unlicensed premises. It is accepted that local authorities, when exercising their powers under the Environmental Protection Act 1990 to serve noise abatement notices, tend to be reactive, and act following complaints. However, the officers have the power to serve such notices and must do when they are satisfied that a noise nuisance is likely to occur. Thus, when a premises is known to be a problem, a notice can be served requiring steps to be taken or works to be undertaken to prevent noise nuisance.

On anti-social behaviour, it would be wrong not to mention the Bill currently under scrutiny in Committee. The Bill provides councils with powers to deal with noise nuisance—among other issues—and creates a closure order that councils can serve upon premises holding a premises licence or a temporary event notice, closing them down immediately for 24 hours.

Although we accept that the safety of the public is a major consideration, there is a strong argument that the licensing regime for entertainment is overly restrictive and unnecessary due to existing controls, and potentially falls foul of the European Convention. If the requirement for a licensing regime is accepted based on the objectives stated in the Bill, we must decide whether a distinction can and should be made between events based on capacity and timing—namely, whether there should be a small premises or, preferably, a small event exemption. That is what we are putting before your Lordships today. By allowing events to take place and limiting the audience to 200 people, as in our amendment, and to a terminal hour of 11.30 p.m., the Government would surely be seen to be recognising a cultural need and desire, while ensuring that the local amenity is not unduly affected.

The health and safety implications of such an exemption would be no different from those affecting a public house showing live football to potentially many hundreds of patrons or a popular comedian entertaining an audience of hundreds in a like premises, both of which fall outside the definition of entertainment.

There is extraordinary inconsistency in the Bill. A limited amount of entertainment that is not broadcast will be unduly restricted, but a large plasma screen pouring out very loud music or the sounds of a football match to hundreds of people will be outside the remit of the Bill. Whatever the entertainment, each would have to be risk assessed for both general and fire risks, and each would be subject to noise control, not to mention the powers of the police. There is justification for such events to be treated differently.

I heard what the noble Lord, Lord McIntosh said, but we feel very strongly about the issue. Unless I hear some new and overwhelming argument, I intend to press the amendment. I beg to move.

Moved, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 62, leave out the words from "that" to the end and insert "the House do disagree with the Commons in their amendment but do propose an amendment in lieu thereof.—(Baroness Buscombe.)

Photo of Lord Redesdale Lord Redesdale Liberal Democrat 1:15 pm, 19th June 2003

My Lords, I strongly support the noble Baroness, Lady Buscombe. She has covered the health and safety grounds for our amendment, so it is not appropriate for me to cover them again today. We have returned to the amendment on several occasions.

The amendment has been changed to take account of some of the concerns expressed at earlier stages of the Bill. However, one fundamental principle that should not be overlooked is that, although the Minister used some scare stories—even embellishing some of them—about drug pushers organising discos, we should not overlook the fact that drug pushers could get a temporary events notice, but they would still be undertaking a criminal act.

Photo of Lord McIntosh of Haringey Lord McIntosh of Haringey Parliamentary Under-Secretary, Department for Culture, Media & Sport, Parliamentary Under-Secretary (Department for Culture, Media and Sport) (Media and Heritage)

My Lords, I am sorry, but the only criterion for a temporary events notice is that the police have the opportunity to object for the purposes of crime prevention. It is not true that such people could get a temporary events notice.

Photo of Lord Redesdale Lord Redesdale Liberal Democrat

My Lords, I am sure that anyone who was intending to undertake criminal activity would not put it in the temporary event notice. I also foresee a problem for the police in dealing with tens of thousands of temporary event notices, although I am sure that they will be notified and are extremely professional. We must examine whether all forms of criminality will be stamped out simply by achieving a temporary events notice. Perhaps that is a side issue, however. We have to remember what the purpose of this Bill is. We support this Bill. We support deregulation. The Government have attempted, rightly, to provide conditions which would expand the number of venues available for music. However, we also have to come back to the fact that, although this is a deregulation Bill, it would add a vast amount of regulation. This is one of the issues raised by the Joint Committee on Human Rights in their Twelfth Report of Session 2002–3. On Page 17 they said:

"The Bill leaves a patchwork of different licensing requirements without a coherent rationale, calling in question the existence of a pressing social need for the restriction on freedom of expression for a licensing regime for public entertainment, and so undermining the Government's claim that such a licensing regime is a justifiable interference with the right to freedom of expression under ECHR Article 10.2".

The Government have raised the issue of health and safety. We understand those issues and believe they have been addressed. They raised the issue of the police being informed and I know the police are concerned over this. However, we also have to be concerned about introducing legislation that will restrict and curtail the right to expression, available up until now. On that basis I shall support the amendment.

I gave the Minister notice earlier of a particular question about the provision of folk dance. I know that it falls outside this amendment. However, I have had a large number of representations from the folk dance world. Kim Howells, his right honourable friend in another place has definite views on folk dance. However, I would be very grateful if the Minister could give some indication over how temporary event notices will work in relation to Morris men so that they may be reassured in carrying on their activities.

Photo of Lord Monson Lord Monson Crossbench

My Lords, I rise solely on the narrow question of strip clubs. The Minister tried to chill our blood by claiming that nearly all such clubs would be totally unregulated if the amendment of the noble Baroness were accepted. I am not a great expert on such places but I would guess that virtually no strip club closes as early as 11:30 p.m. and that none nowadays employ live music as opposed to recorded or taped music.

Photo of Lord Brooke of Sutton Mandeville Lord Brooke of Sutton Mandeville Conservative

My Lords, I have been silent today as I was probably unnecessarily loquacious when the Bill was last in your Lordships' House. I shall be very brief now. I have had some passages of arms with the Minister on amendments to this and other Bills. I owe it to him, in his new capacity, to seek to repair my reputation for consistency. I wish to put on record that I have seen the letter from the leader of Westminster City Council to him and also the letter from the noble Lord, Lord Clarke of Hampstead along similar lines. The Minister knows what they said in relation to central London. Indeed, he has quoted from them this morning.

I did not speak when the original amendment was carried in your Lordships' House because we were anxious to make progress. I shall not rehearse the arguments in the letters now when we are again anxious to make progress. However, I support the present position of the Government, particularly given the implications for central London.

Photo of Lord Colwyn Lord Colwyn Conservative

My Lords, I found the Minister almost very persuasive on this argument. However this is not what the amendment is about. As far as I am concerned, this amendment is about trying to find premises to encourage young musicians. Throughout the passage of this Bill, the Musicians' Union, of which I have been a member for many years, Jazz Services and the English Folk Dance & Song Society have all agreed that further rejection of this amendment would be a disaster for the performing arts. The Government are going against their policy of trying to encourage young musicians, singers and actors. As my noble friend Lady Buscombe said, the Bill allows big-screen broadcasts and pre-recorded amplified music. It allows a play, musical performance, disco or dance at a garden fete or a church. But it insists on a licence when exactly the same event takes place at a school, pub or restaurant.

My noble friend has covered the noise and the public safety aspects. The Minister in another place, Dr Howells, has said that live music has been distorted for years by the two-in-a-bar rule and that jazz has suffered especially. The two-in-a-bar rule is currently the only form of limited exemption for live music. Both Ministers have said, in this and another place, that to take up a public entertainment licence it is just a matter of placing a tick in the appropriate box. It is not that simple. There is a worry that local authorities will become more involved. They will inspect premises and come up with alterations that must be made—a new fire door here, an exit there. The licensees are unlikely to want to take that risk. The two-in-a-bar rule becomes the none-in-a-bar rule.

I read carefully the debate on this amendment in another place. There, members of the Labour Party supported this amendment, yet when it came to the vote, they voted the opposite way. I have been co-chairman of the Parliamentary Jazz Club for many years. There are many members of your Lordships' House, unfortunately not in their places, who have lobbied for many years to get rid of this two-in-a-bar rule to encourage the provision of premises for young musicians. I hope they are outside and will vote for us. This amendment is about encouraging young musicians. Even if it is rejected, I hope the Minister will come up with some ideas as to how we might achieve this.

Photo of Lord Williamson of Horton Lord Williamson of Horton Crossbench

My Lords, I have just two points for the Minister. The first is that the Minister said in his first intervention that village halls were already exempted. If that is true, I should like to know where that is in the Bill. Secondly, I find it extremely difficult to believe that strip clubs and film shows would be covered by this exemption. I find it impossible to believe that a strip show or a film show would fall within the definition of entertainment consisting of the performance of live music. The points raised by the Minister are largely irrelevant.

Photo of Lord McIntosh of Haringey Lord McIntosh of Haringey Parliamentary Under-Secretary, Department for Culture, Media & Sport, Parliamentary Under-Secretary (Department for Culture, Media and Sport) (Media and Heritage)

My Lords, I am taken aback by the persistence of noble Lords. The Front Benches, in particular, have not even started to address or challenge the points I made in my opening speech. Our concerns are not just about individual parts of the licensing regime, but the whole of it. Amendment No. 62A would strip out huge chunks of all licensing legislation. The Government are concerned with public safety and the prevention of crime and disorder. We are concerned with the protection of public nuisance and with the protection of children from harm. When the noble Baroness, Lady Buscombe, talks about fire safety regulations, does she not realise that almost all fire safety regulations affecting cinemas are contained in regulations made under licensing law? The 1955 Cinematograph Regulations are part of licensing law, not of fire safety law. They would disappear if this amendment were carried.

When the noble Baroness says in her amendment that the entertainment should cease no later than 11:30 p.m., does she not realise that under her amendment it could start again at 11:31 p.m. and carry on for 23 hours 59 minutes? There is no protection against late night noise and nuisance or anything else in the Opposition amendment. Does she not realise that the difference between 200 and 250 is nugatory? This is not the issue at all. Is she more concerned with the safety of 8,000 people in the Albert Hall than with 199 or 201 young people in a basement club in Soho? Regulation under licensing law to protect these people in terms of public nuisance, fire and health and safety would be wiped out by this amendment.

The noble Baroness referred to noise nuisances. If the premises are outside the scope of the Bill because of an exemption, how are the local authority environmental health officers to know that a form of entertainment will take place that is likely to create a noise nuisance for the purposes of the 1990 Act? The noble Baroness, Lady Oppenheim-Barnes, was eloquent on this subject on an earlier amendment. She said that the local environmental health officers cannot do anything, because the noise is intermittent. Someone complains under the Environmental Protection Act—they cannot do it under licensing law—the environmental health officers come along, and, by that time—or perhaps because of a tip-off—the premise has been closed down, and it simply starts again after the visit.

That is not adequate. Health and safety conditions imposed on the licence will be based on experts' concerns specific to the premises in question. That is much better protection than that which is provided in more general health and safety law. That is not to say that health and safety law is wrong, but it is generalised. When one is talking about alcohol and entertainment, it is better to have an operating licence that ensures in advance that the protection is there. The operating licence will make it clear what a particular applicant for a licence must do to gain a licence. In health and safety legislation, duties are expressed in general terms only. The only power for authorities to intervene is if something goes wrong.

I can say something nice to the noble Lord, Lord Redesdale, about morris dancing. He will have heard, as I have, the moral law that only two things are absolutely forbidden—incest and morris dancing. I want to make it clear that when morris dancers arrive at a pub unannounced—for example, on the way back from another event—and have a pint in a pub garden, and start dancing, there is no need for an authorisation of this kind. They would not be providing entertainment that fell within the definition of the provision of regulated entertainment. No genuinely spontaneous activity—I say this to the noble Lord, Lord Colwyn, as well—whether it is singing, dancing, or playing a musical instrument, will be caught by the Bill.

I heard what the noble Lord said about the Joint Committee on Human Rights. Unfortunately, it looks as if the Joint Committee did not consider the department's reply of 10th April to its seventh report. Its officials have apologised for that. The context in which the quotation that he read out is made is the distinction made in the Bill, under pressure, after amendment, that there is a difference between churches and places of worship and other places. That is the context in which it makes that point.

Nothing that I said in my opening speech on this amendment has been adequately answered by this amendment. I put it to your Lordships that to allow this amendment through would be allowing huge risks of danger, physical danger, moral danger, and licence in the other sense—the lack of any reasonable and regular controls in this Bill.

They would take away protections that are essential, not only in central London—the noble Lord, Lord Brooke of Sutton Mandeville, is right about that—but all over the country. Those are essential protections for the people of this country. I urge the House not to approve Amendment No. 62A.

Photo of Baroness Buscombe Baroness Buscombe Conservative

My Lords, I thank the Minister for his response, although it was somewhat predictable. I am sorry that the Minister did not accept any of the arguments put forward, I felt quite cogently, regarding the many regulations that already exist. Employers complain daily that they must put up with those regulations—on risk assessments, health and safety and so on—to carry out their daily business.

I am grateful to all noble Lords who have taken part in the debate. The Government know that our interests are for those people who have been lobbying, including the 110,000 musicians and friends of music and entertainment who signed a petition that was delivered to Number 10 this week regarding the future of entertainment and live music in small premises. We care passionately about the future enjoyment of all those who go to pubs in this country. Unless this amendment is made, that future enjoyment for all of us, as well as the livelihoods of musicians and entertainers, will be put at great risk.

We are not satisfied. We know that the Government are listening to us on one level, but they have simply failed to even try to come up with a workable solution that is acceptable to us. Today, we are providing a workable solution. I wish to test the opinion of the House.

On Question, Whether the said amendment (No. 62A) shall be agreed to?

Their Lordships divided: Contents, 128; Not-Contents, 113.

Division number 2 Private Parking: Ports and Trading Estates — Commons Amendment

Aye: 126 Members of the House of Lords

No: 111 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Resolved in the affirmative, and amendment agreed to accordingly.

Photo of Baroness Crawley Baroness Crawley Government Whip, Baroness in Waiting (HM Household) (Whip) 1:46 pm, 19th June 2003

My Lords, I beg to move that further consideration of Commons amendments be adjourned.

Moved accordingly, and, on Question, Motion agreed to.

Photo of Baroness Crawley Baroness Crawley Government Whip, Baroness in Waiting (HM Household) (Whip)

My Lords, I beg to move that the House do now adjourn during pleasure.

Moved accordingly, and, on Question, Motion agreed to.

[The Sitting was suspended from 1.46 to 2 p.m. for Judicial Business and to 3 p.m. for Public Business.]