Commons Insistence and Amendment in Lieu

– in the House of Lords at 4:05 pm on 3rd July 2003.

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The Commons insist on their Amendment No. 62 to which the Lords have disagreed, and disagree to the Lords Amendment (No. 62A) proposed in lieu of that Amendment, but propose the following Amendment to the Bill in lieu of Amendment No.62A—

62B Page 97, line 35, at end insert—

"Special provision for pubs etc.

Dancing and live music in pubs etc.

(1) This section applies where—

(a) a premises licence authorises—

(i) the supply of alcohol for consumption on the premises, and

(ii) music entertainment, and

(b) the premises—

(i) are used primarily for the supply of alcohol for consumption on the premises, and

(ii) have a permitted capacity of not more than 200 persons.

(2) At any time when the premises—

(a) are open for the purposes of being used for the supply of alcohol for consumption on the premises, and

(b) are being used for music entertainment, any condition of the premises licence which relates only to the music entertainment, and is imposed by virtue of section 19(3)(b), 35(3)(b), 52(3) or 166(5)(b), does not have effect unless it falls within subsection (3) or (4).

(3) A condition falls within this subsection if the premises licence specifies that the licensing authority which granted the licence considers the imposition of the condition necessary on one or both of the following grounds—

(a) the prevention of crime and disorder,

(b) public safety.

(4) A condition falls within this subsection if, on a review of the premises licence,—

(a) it is altered so as to include a statement that this section does not apply to it, or

(b) it is added to the licence and includes such a statement.

(5) This section applies in relation to a club premises certificate as it applies in relation to a premises licence and, in the application of this section to such a certificate, the reference in subsection (2) to section 19(3)(b), 35(3)(b), 52(3) or 166(5)(b) is to be read as a reference to section 72(3)(b), 83(3)(b) or 86(3).

(6) In this section—

"music entertainment" means—

(a) the provision of entertainment of a description falling within, or of a similar description to that falling within, paragraph 2(1)(e) or (g) of Schedule 1, or

(b) the provision of entertainment facilities falling within paragraph 3 of that Schedule, in circumstances where the conditions in paragraph 1(2) and (3) of that Schedule are satisfied;

"permitted capacity", in relation to any premises, means—

(a) where a fire certificate issued under the Fire Precautions Act 1971 (c. 40) is in force in respect of the premises and that certificate imposes a requirement under section 6(2)(d) of that Act, the limit on the number of persons who, in accordance with that requirement, may be on the premises at any one time, and

(b) in any other case, the limit on the number of persons who may be on the premises at any one time in accordance with a recommendation made by, or on behalf of, the fire authority for the area in which the premises are situated (or, if the premises are situated in the area of more than one fire authority, those authorities); and

"supply of alcohol" means—

(a) the sale by retail of alcohol, or

(b) the supply of alcohol by or on behalf of a club to, or to the order of, a member of the club."

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)

rose to move, That the House do not insist on its disagreement to Commons Amendment No. 62, do not insist on Lords Amendment No. 62A, and do agree with the Commons in their Amendment No. 62B, but do propose Amendments Nos. 62C to 62J to Commons Amendment No. 62B and do propose Amendment No. 62L in lieu of the words left out of the Bill by Amendment No. 62—

62CLine 4, leave out "This section" and substitute "Subsection (2)"

62DLine 7, after "(ii)" insert "the provision of"

62ELine 12, leave out from "when" to end of line 18 and insert—

'(a) the premises—

(i) are open for the purposes of being used for the supply of alcohol for consumption on the premises, and

(ii) are being used for the provision of music entertainment, and

(b) subsection (2B) does not apply, any licensing authority imposed condition of the premises licence which relates to the provision of music entertainment does not have effect, in relation to the provision of that entertainment, unless it falls within subsection (3) or (4).

(2A) Subsection (2B) applies where—

(a) a premises licence authorises the provision of music entertainment, and

(b) the premises have a permitted capacity of not more than 200 persons.

(B) At any time between the hours of 8 a.m. and midnight when the premises—

(a) are being used for the provision of music entertainment which consists of—

(i) the performance of unamplified, live music, or

(ii) facilities for enabling persons to take part in entertainment within sub-paragraph (i), but

(b) are not being used for the provision of any other description of regulated entertainment, any licensing authority imposed condition of the premises licence which relates to the provision of the music entertainment does not have effect, in relation to the provision of that entertainment, unless it falls within subsection (4)."

62FLine 30, leave out from "licence" to end of line 32 and insert "except that, in the application of this section in relation to such a certificate, the definition of "licensing authority imposed condition" in subsection (6) has effect as if for "section 19(3)(b)" to the end there were substituted "section 72(3)(b) (but is not referred to in section 72(2)) or which is imposed by virtue of section 83(3)(b) or 86(3)"."

62GLine 33, at end of line insert—

""licensing authority imposed condition" means a condition which is imposed by virtue of section 19(3)(b) (but is not referred to in section 19(2)(a)) or which is imposed by virtue of 35(3)(b), 52(3) or 166(5)(b) or in accordance with section 21;"

62HLine 35, leave out "the provision of"

62JLine 38, leave out from "(b)" to end of 41 and insert "facilities enabling persons to take part in entertainment within paragraph (a);"

62LSchedule 1, page 112, line 12, at end insert—

:TITLE3:"Morris dancing etc.

The provision of any entertainment or entertainment facilities is not to be regarded as the provision of regulated entertainment for the purposes of this Act to the extent that it consists of the provision of—

(a) a performance of morris dancing or any dancing of a similar nature or a performance of unamplified, live music as an integral part of such a performance, or

(b) facilities for enabling persons to take part in entertainment of a description falling within paragraph (a)."

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, this is a matter on which there has been what I could almost describe as incessant to-ing and fro-ing between various outside interests and this House and the House of Commons for a number of months. I hope that at what I hope is the final stage, we can have a sensible debate on the issues. There has been an awful lot of fundamental misunderstanding of the issues, particularly outside the Chamber. I think that that misunderstanding can be summed up in just a few words: generally speaking, nothing that does not need a licence now will need one under the Bill. Even the so-called two-in-a-bar exemption needs a justices' licence. What the Bill does is to make it much cheaper and easier to get a licence where one is needed. As the Joint Committee on Human Rights stated in its seventh report, it is legitimate to say that there is a pressing social need for regulation in this area. It is not legitimate to claim that, for example, the Bill will spell the end of folk clubs. If they need a licence now, they will need one under the new system, but at much reduced cost and bureaucracy.

For the first time the provision of entertainment in a school and sixth form college by the school or college will be free of charge from the licensing fee associated with that provision and we are maintaining the current exemption from the payment of fees for entertainment in every village hall, church hall and community building, which is the position outside Greater London now. It will cost nothing extra to get permission to put on live music in pubs. So this Bill is good news for live music. It sweeps away bureaucracy and slashes through cost.

However, we recognise that some people are very worried that licensing authorities will try to sting venues for thousands of pounds worth of unnecessary conditions, even though the Bill as drafted makes that illegal. The charge is that this will discourage venue operators—notably publicans—from applying for permission to put on live music.

It is interesting to note that the people who are really concerned about this are the performers, who will not actually have to get licences, rather than the publicans or organisers, who are largely content. However, we are alive to those concerns. That is why in another place we made a concession to the effect that where a pub with a capacity of up to 200 wanted to put on live music of any kind, any conditions imposed on the licence by the licensing authority would be suspended except where they related to public safety and crime and disorder.

We kept public safety because we are simply not prepared to put lives at risk. No responsible government could act otherwise. Noble Lords might already know that in 2001 there were over 1,500 fires in pubs and clubs in England and Wales. Licensing provides a means of ensuring that experts such as the Fire Safety Authority can check premises to see that the customers will be able to get out quickly and safely if problems occur. This is a more effective regime than the health and safety and public safety regimes to which the noble Baroness, Lady Buscombe, in particular, referred when we debated this matter before.

We kept crime and disorder because of public concern over drugs, guns and extreme right-wing bands who excite the audience to racist violence as part of their act. It does happen. Unfortunately, live music is not madrigals on a summer evening on the village green: I wish it were. It still provides a major advantage for operators and organisers of small venues, in terms of public nuisance. Those people can forget the rumours about being made to install thousands of pounds worth of sound-proofing or double glazing.

The Government have provided a failsafe position. The licence remains reviewable so that those who exploit the concession and behave inconsiderately towards their neighbours can be brought to book. Another place agreed to that concession. Predictably, however, the Opposition in another place were not happy. They gave the powerful arguments put forward by the Association of Chief Police Officers short shrift. They prompted the association to write to all noble Lords yesterday. I hope that they have had the letter from the Association of Chief Police Officers and one from the Local Government Association on this issue.

However, in the light of debate in another place, we have brought forward a further package of measures to lighten the load on pubs and clubs and organisers to provide the opportunity to open up the market to a wide range of performance. That package consists of four elements. First, we have tabled amendments to provide a significant concession on unamplified music. I shall explain that in more detail in a moment. Secondly, I can give today a firm undertaking that the Government will review the existing descriptions of entertainment in the Bill six to 12 months after the end of the transition period.

If it proves that the Bill has had an unintended, disproportionate, negative effect on the provision of live music, we will use the powers already in the Bill to modify the position through secondary legislation. I say now that the Government are convinced that the Bill will already provide a real shot in the arm for entertainment and allow it to thrive.

Thirdly, and in response to concerns put to the Government most effectively by the noble Lord, Lord Redesdale, we have tabled manuscript Amendment No. 62K which will exempt morris dancing and dancing of a similar nature from the entertainment requirements of the Bill. Furthermore, the review I have just mentioned will cover all aspects of regulated entertainment. It will place particular emphasis on other forms of traditional entertainment. If there is a case for further liberalisation we will respond to it.

I am sorry that I have had to table a manuscript amendment on this occasion, but the noble Lord, Lord Redesdale, will confirm that this is a topic on which we were negotiating late in the evening.

Fourthly, the Department for Culture, Media and Sport will convene a forum comprising representatives of performers, venue operators, local authorities and others, whose task it will be to maximise the take-up of the reforms.

I return to the main legislative element of the package. There have been calls in both Houses and elsewhere for the Government to introduce a de minimis measure to protect unamplified music in small pubs. Our starting point is that the Bill already provides such protection. Spontaneous performances will not be licensed, so if one arrives unannounced with one's dulcimer and begins to play medieval music with bagpipes—no, perhaps that is a bad example—but any instrument and plays Scottish airs, one runs no risk of offence, certainly in the legal sense of the word. In response to this House, we have exempted incidental live music already.

However, today's amendments go one step further. Their effect will be to suspend conditions attached to a licence which have been imposed by a licensing authority in respect of unamplified live music in any premises with a capacity of no more than 200, where it is performed between the hours of 8 a.m. and midnight. To protect local residents and control those few inevitably unscrupulous or irresponsible operators, the licence will remain reviewable.

I believe that this removes all concerns that have been raised about low-level unamplified music like folk guitarists, for example, in small premises. I know that some people have raised the issue of instruments which require amplification in order to be heard such as an electric base guitar or an electric piano. They cannot benefit from the concession.

There are important points to be made here. First, the Bill's baseline is that it makes it easier and cheaper to put on any form of regulated entertainment. We have exempted incidental live music, whether amplified or not. That is a very powerful concession. We intend to retain the concession made in another place last week which lightens the load on amplified music in small pubs and we will work with our partners to maximise the take-up of the reforms on offer.

Perhaps I may say something about Amendment No. 62A, although there is not much more to be added to the lengthy debate we have had. This amendment is dangerous and misguided. The police find it totally unacceptable, and every Member of this House has had a letter to that effect. The Local Government Association finds it unacceptable as do residents' associations. It compromises public safety. It hamstrings the ability of the police to clamp down on drugs, guns and acts which incite the audience to violence. No responsible government could accept such an amendment. The noble Baroness, Lady Buscombe, is amused. I do not believe that, if our positions were reversed and she was at this Dispatch Box, the noble Baroness would be saying anything different.

This Bill is a manifesto commitment. We are determined to see it through, but not at the expense of endangering public safety or encouraging crime and disorder.

Moved, That the House do not insist on its disagreement to Commons Amendment No. 62, do not insist on Lords Amendment No. 62A, and do agree with the Commons in their Amendment No. 62B, but do propose Amendments Nos. 62C to 62J thereto, and do propose Amendment No. 62L in lieu of the words left out of the Bill by Amendment No. 62.—(Lord McIntosh of Haringey.)

Photo of Baroness Buscombe Baroness Buscombe Shadow Minister (Home, Constitutional and Legal Affairs) , Shadow Minister (Digital, Culture, Media and Sport) 4:15 pm, 3rd July 2003

rose to move, as an amendment to the Motion in the name of the Lord McIntosh of Haringey, leave out from "62" to end and insert "but do insist on their Amendment No. 62A to which the Commons have disagreed and do disagree with the Commons in their Amendment No. 62B".

Photo of Baroness Buscombe Baroness Buscombe Shadow Minister (Home, Constitutional and Legal Affairs) , Shadow Minister (Digital, Culture, Media and Sport)

My Lords, I make it absolutely clear that I take this issue extremely seriously. I am sorry to say that I remain in fighting mood on this issue. We must disagree with the Minister that we have what we require for the future of musicians. Before we had the two-in-a-bar rule; now we have effectively none-in-a-bar if there is minimal amplification.

The Bill continues to penalise those who play live music by imposing extra bureaucracy and financial burdens on them. Why is live music the only form of entertainment that is being regulated in this way? We simply do not understand or accept this differentiation. Why are the same rules not being applied to the screening of football matches, stand-up comedians, sword-swallowers, etc? If the Government believe that these provisions are necessary then they should have had the courage to apply them to all these forms of entertainment. Indeed, ACPO, which featured heavily in the debate, has previously stated,

"Very often such events, usually football matches, are accompanied by drinks promotion, they attract large crowds and are quite frequently the source of disorder . . . Because of these issues we are of the opinion that the applicant for a premises licence should be required to specify the intention to host such events within the operating plan. This would allow the licensing authority, taking into account police representation, the opportunity to impose conditions on the premises licence pursuant to the licensing objectives".

There are also key safety issues; for example, during the World Cup a pub in Bristol had to be evacuated as football supporters jumping up and down on the first floor caused the ceiling plaster below to crack and fall on people in the ground floor bar—nothing to do with music. The Bill as drafted favours premises devoted solely to the consumption of alcohol and what is called "vertical drinking" over a more civilised social drinking environment that includes live music.

Ministers have raised bogus points about health and safety, noise and fire risks, which are already covered by existing regulations. That view is supported by an official at the Health and Safety Executive, who has said that the issue of electric cables should be covered by existing safety provisions, irrespective of the licensing regime.

The police already have extensive powers to intervene where there is a risk of public disorder. The idea of a notification system has been put forward to the Government to ensure that they would have had such powers in all premises even if there were an exemption.

Ministers clearly regard the playing of live music in local communities as a potential danger rather than a cultural and social benefit. As well as the community and social inclusion role of live music performance, the opportunity to perform live is regarded by all in the music industry as a crucial component of building future talent.

The Government are just plain wrong to assert that, in the words of Richard Caborn,

"nothing that does not need a licence or other authorisation now will need one under the Bill".—[Official Report, Commons, 24/6/03; col. 1004.]

The Government seek to regulate all live music on the grounds that a few heavy metal bands in the North East espouse extremist views. The Department for Culture, Media and Sport—the very ministry designed to support and nurture our musical talent, and indeed a highly successful creative industry—has managed as never before to alienate artists, musicians, songwriters and composers, and the audiences that support them, throughout the country.

Today we are fighting again for freedom of thought in live music, which is seriously under threat. The Government are about to do so much damage to the music industry for no good reason. As I have said, the Government are happy to allow big-screen broadcast entertainment to be exempt, no matter how noisy and large the audience is. Yet one guy with an acoustic guitar or double bass, with minimum amplification equipment, must be licensed. Where is the logic in that?

I turn to the government amendments. Our interpretation is that as they apply only where a premises licence, entertainment permission and a safety capacity limit are in place, they are of little use and there are no details on how, where and when the safety capacity limit can be imposed and where it cannot. If all premises had a safe limit imposed, any legal activity could take place as long as the limit was not exceeded, without any need for additional entertainment permission or conditions.

This proposal in practice will make no difference at all, except still to require all entertainment permissions to require a safe capacity limit to be imposed just to see if that pointless exemption to the condition applies and for no other reason. How is overcrowding to be prevented in premises not providing entertainment? The fact will still remain that if premises do not apply for the optional entertainment licence, any live music will be criminal without it—and the Bill being able to increase the take-up figure from the current 5 per cent is still a gamble.

Almost 90 per cent of musicians use some form of amplification. While we are grateful that the Minister has made some considerable movement on the issue, we do not believe that the Government have gone far enough. I make it absolutely clear to the House that I am grateful to the Minister and the Secretary of State for providing me with the opportunity to debate some of those issues during what we know as "ping pong" between the two Houses. But we do not feel that the concession goes far enough.

I finish by quoting a musician from Gloucester who emailed me today:

"Do not be bullied into giving up the fight. It cannot be right in principle that live music, even unamplified, should require licensing when the provision of big screen broadcast entertainment or jukeboxes can be exempt no matter how powerfully amplified".

A musician from the Portland folk club said:

"The provision of one or two musicians performing in 110,000 liquor licensed premises has been exempt since 1961 not 1964 as the Government often claims. But the Licensing Bill now does away with this deminimus and now will ensnare these performances, with no evidence provided for this. For as this exemption applies only where a licence is held—it simply reflects the control already in place in the 95% of licensed premises currently without additional Public Entertainment Licenses".

The Bill was supposed to make so much difference and to free us all from unnecessary regulation. It has failed comprehensively to do so. I beg to move.

Moved, as an amendment to the Motion in the name of the Lord McIntosh of Haringey, leave out from "62" to end and insert "but do insist on their Amendment No. 62A to which the Commons have disagreed and do disagree with the Commons in their Amendment No. 62B".—(Baroness Buscombe.)

Photo of Lord Redesdale Lord Redesdale Liberal Democrat

My Lords, there is a danger in listening to debates in this House, especially debates initiated by the noble Baroness, Lady Buscombe. The noble Baroness made a powerful case—one that might have changed my mind if it could have been changed at this late stage.

The Minister could have changed my mind the other way. It is a worry when he speaks because he puts a powerful but slightly dangerous case in that he paints the bleakest of pictures of our intentions in the amendments we have tabled.

Photo of Lord Redesdale Lord Redesdale Liberal Democrat

My Lords, I thank the Minister. I start with an interesting matter, which has not been part of the long and arduous debates on the Bill: Amendment No. 62L. Although it causes a massive degree of hilarity, the issue of morris men, folk dance and traditional dance is one in which we on these Benches believe passionately.

It should be remembered that there are 14,000 morris men in the country. Some people have expressed the view that that is quite a scary thought. However, all those people take part in something that has gone on for many years and is part of the traditions of this country. They take part in 11,000 events that could have been licensable. The concession made on that basis means that a possible 11,000 licensable events will be taken out of the licensing regime, which will save them a great deal of money and will save all local authorities time, effort and money.

We are in the third stage of ping pong. I still hold dearly to many of the arguments that led us to reject the Government's arguments. We cannot dismiss the issue that the Bill could infringe on Article 10.2 of the European Convention on Human Rights. It is a question of proportionality over introducing regulation. At what point do we say that rights and freedoms have to be limited by consideration for other issues?

Some of the examples given for why we should introduce legislation have gone from the rare to the bizarre, especially the skinhead punk bands in the Midlands, who I do not believe ever use unamplified music. However, putting that aside, there is a history to why we have pushed so hard on the issue and why the noble Baroness, Lady Buscombe, has worked so hard: the history of problems with allowing live music in pubs. It is an issue that only 5 per cent of licensed venues put on live music. If we went to Dublin, it would be unthinkable that only 5 per cent of pubs would have music on.

The Government have said that the purpose of the legislation is to deregulate and to make it easier. The reason we have put forward such a staunch argument and gained so many concessions from the Government is that so many councils in the past have abused the privilege of the public entertainment licence and made it difficult for live music to be heard. Frankly, I find it unacceptable that one is unable to listen to live music in many pubs unless one really hunts down such places.

I also want to raise the "two in a bar" issue. I wondered whether we should press the amendment further and go for grandfather rights in relation to the "two in a bar" rule. I have campaigned over a number of years against that rule. I have supported the Musicians' Union and those who have worked so hard for the union in attempts to remove it. I do not consider it acceptable to return to having the rule. It would introduce a limit on numbers which would become fossilised in the way we regard music. I believe that far more people should be allowed to play music in a pub. At an earlier stage of the Bill, the Minister said that a whole orchestra could be fitted into a pub to play music. Rather than seeing it as dangerous, I rather like that idea.

There is incompatibility in this legislation. On the one hand, large-screen televisions are exempt and, on the other, three people, say, with guitars are seen as a danger to the public. A large-screen television, especially when a cup match is broadcast, draws into a pub vast numbers of people whose primary aim is to watch football. They become excited and drink a great deal of beer. That could have some implications for public disorder. However, it is my understanding that, on many occasions, three musicians playing in a pub tend to empty the place rather than fill it.

That being so, I find it rather strange that if those three musicians went in front of a video camera, videoed their performance and then put it on the large screen, just as many people could watch them doing exactly the same thing, if not in person. Therefore, an issue does arise in that respect.

Having said that, it is not my intention to reject this measure. Many musicians will believe that I am betraying them by not throwing this matter back to the Commons. I, together, I believe, with other Members of the House, do not consider that the amendment would pass as it stands. We pressed for amendments from the Government and they have come forward with a number of concessions.

The most recent concession concerns unamplified music. I have a problem with the concept of the unamplified music exemption because, in order to obtain the concession, a licensed premises must first obtain the licence for the provisions of the licence to be made exempt. I take on board the Minister's view that that gives the police a backstop to remove the licence, but it seems a rather strange way of going about the matter.

I am supporting the Government because I believe that they have put forward these amendments in good faith. They have made two more concessions. One is the review which will take place after a period of between six and 12 months to ascertain the effect of the measure. If there is an outcry and vast numbers of music venues start to close, I very much hope that the Minister will move as soon as possible to reverse any difficulties caused by the Bill. Although I know that it will be difficult to do so, I hope that the Minister will be able to give an undertaking now that a debate will be held in this House about the outcome of such a review. The concept of putting forward a forum to promote live music is also to be welcomed.

I believe that the measures could still lead to a flourishing of live music. We very much hope that the provisions of the Bill will not be affected by over-zealous interpretation of the law.

I have one question for the Minister. It is on the issue of incidental spontaneous music, especially if it is amplified. Earlier, the Minister implied that, so long as spontaneous music, even if amplified, did not break health and safety requirements, it would not fall within the ambit of the Bill. I should like clarification because I believe that it would help to ease the minds of many musicians worried by this measure.

I still hold true to the belief that the provision could have a detrimental effect, although I take on board what the Minister said, and I very much hope that the amendment clarifies the situation.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Liberal Democrat 4:30 pm, 3rd July 2003

My Lords, my noble friend has fought such a long and determined battle for live music to be performed in pubs without unnecessary regulation that it would be churlish not to support him in accepting what he regards as a fair compromise. I shall therefore do so, but I hope that he will not mind my saying that, having thought about the matter and listened carefully to the enormously powerful speech made by the noble Baroness, Lady Buscombe, I very much regret that we must accept this compromise. I want to say in a few words why I have that regret.

For me, the starting point is John Stuart Mill's injunction that one does not regulate unnecessarily unless a particular activity causes serious harm to other people. It seems to me that the amendment that we should like to be able to maintain is proportionate. It keeps in place fully the general law—the criminal law and the law relating to public nuisances and so on—and it does so expressly. It limits the time and number of persons and, as my noble friend said, it simply does for live music what is done for large screen television in pubs and what has been done for places of worship and religious occasions.

I find the distinction drawn between live music in pubs and dead music or dead entertainment on mass television in pubs arbitrary and somewhat discriminatory. Perhaps it reflects some kind of cultural bias. I believe that it shows a complete lack of proportion to insist on unnecessary regulation in licensing. I should be interested to know how the Minister, for whom I have such high regard, would explain, if he had to do so in a court of law, how this kind of regulation is proportionate and how it satisfies the basic principle of proportionality. Are the means being used really necessary to achieve the Government's legitimate aims, or would some lesser sacrifice of free expression be proportionate?

My own view—to some extent, this was considered by the Joint Committee on Human Rights when we examined the issue in another manifestation—is that, if necessary, the courts will have to use the principle of proportionality in Article 10 of the European Convention on Human Rights if unnecessary and heavy-handed use of regulation takes place in this area. Therefore, although it is always excellent when there is a fair compromise, I simply wish to express my general support for what the noble Baroness, Lady Buscombe, said in her speech.

Photo of Lord Clarke of Hampstead Lord Clarke of Hampstead Labour

My Lords, I hope that the House will not have to divide on the amendment moved by the noble Baroness, Lady Buscombe. It was nice to hear her declare herself once again in fighting mood. I submit that, over the weeks that it has been discussed by the House, the Bill that we now have has been much improved by those fighting qualities.

Noble Lords who have taken an active interest in the Bill and who have participated in the many debates will surely agree that, as the noble Lord, Lord Redesdale, said, many accommodations have been arrived at. We certainly have a far better proposition in front of us today than we had when we started down this road. If the amendments were agreed by the House, that would cause further delay and further disagreements with the other place. Members there would inevitably insist on the "ping" becoming a "pong" and the "pong" becoming a "ping" again.

However, my main reason in rising to oppose the amendment is to draw attention to the Local Government Association's clearly stated support for what has come out of these deliberations. After all, it is local government that will have the major part of enforcing this Bill in their localities. I recognise the wonderful contributions made through the passage of the Bill by the noble Baroness but the time has come when we should bring these proceedings to an end. I admire those who have fought the good fight on this issue but we should now reject the amendment and carry on with the business.

Photo of Lord Phillips of Sudbury Lord Phillips of Sudbury Liberal Democrat

My Lords, my particular interest in this Bill has been public amenity. It was notable that in the speeches of the noble Baroness, Lady Buscombe, and my noble friend Lord Redesdale, not one word was spoken about public local amenity. The position that we have reached in this Bill is a most bizarre one. For my money, we are dealing with the lesser of evils. Amendment No. 62 which the amendment from another place seeks to overturn requires no licence at all for amplified live music in pubs where there are up to 200 people present at the knees-up. I have to tell those who think I pursue an esoteric case, that the number of people potentially affected by the huge noise such music often gives rise to will far outstrip the 200 which is the limit of the amendment to be overturned. However, we have the Government proposing an alternative that, frankly, is even more bizarre. Their amendment requires a licence for live amplified music where numbers are up to 200 but then allows the playing of that music to go on 24 hours a day. There is no time restriction at all on a licence granted for the playing of live amplified music under the government amendment. At least the amendment that this House put into the Bill has a requirement that the entertainment ceases no later than 11.30 p.m.

Even more extraordinary is that Amendment No. 62B says that of the four licensing objectives around which this Bill is supposed to revolve the one that deals with amenity—very inadequately—is not even allowed to hold sway with regard to music licences granted under this amendment. One has the extraordinary situation that local residents may protest against the noise consequences of the licence being applied for. Their local authority say they will impose a restriction on live amplified music beyond midnight and yet subsection (3) of the amendment strikes down that condition as being unallowable and unlawful. I find that bizarre. In either case, with either amendment, the only remedy that residents have in the case of Amendment No. 62 is to pursue a private nuisance action or a public nuisance action. That is also the case under Amendment No. 62B. This House knows what a massive enterprise it is to pursue a private or public nuisance action. It is long-winded, complex, expensive and uncertain. The alternative would be for them to call for a review of the licence. That, I would concede, is marginally better as a remedy than being forced into the courts.

I am sorry to sound a discordant note. At least I can support my noble friend Lord Redesdale and congratulate him on the morris dancers. I am sure that is an achievement that he will cherish to the end of his parliamentary days. But for the rest, I believe this House and the other place have ill served the people of this country. Amenity in this age, noise pollution in particular, is of huge concern to millions of our fellow citizens. We have heard a debate today where that did not seem to be an issue in our lives.

Photo of Lord Monson Lord Monson Crossbench

My Lords, before the noble Lord, Lord Phillips of Sudbury, sits down, is it not the case that the government Amendment No. 62E does specify a time limit between 8 a.m. and midnight? So it is not the case that music could go on for 24 hours as he claimed.

Photo of Lord Phillips of Sudbury Lord Phillips of Sudbury Liberal Democrat

My Lords, to which amendment is the noble Lord referring?

Photo of Lord Phillips of Sudbury Lord Phillips of Sudbury Liberal Democrat

My Lords, I was referring to Amendment No.62B—sorry, 62E.

Photo of Lord Colwyn Lord Colwyn Conservative

My Lords, I was going to start by saying I felt sure that the Minister would have an answer to the points made by the noble Lord, Lord Phillips of Sudbury. It looks like it has been answered already. I support my noble friend Lady Buscombe. It still makes no sense that small groups of musicians should be penalised and yet large widescreen TVs and sound systems are exempt. The Government have made concessions and I am grateful for those. But I am still concerned about the interpretation of the word "unamplified". I thought for one moment that the Minister was going to address it but he did not go into detail on it. I have a note here from Ken Dibble, a well-known expert in court cases involving noise nuisance and a member of the Institute of Acoustics. He says:

"The ambient noise level in a bar, just from general talking, is about 75 to 80 decibels".

A jukebox is not much louder. He goes on to say:

"Musical instruments cover a huge range of natural loudness. An unamplified singer is typically 70 to 75 decibels. An unamplified guitar about 70 to 80 decibels. A trumpet—"

I play one myself—

"105 to 110 decibels. A flute 85 decibels. A drum kit 105 to 110 decibels.

It follows, that unless the voice, the guitar or a flute are amplified, they will not be heard against other instruments or against crowd noise. To sing in a bar without amplification, will result in a sore throat after about 10 minutes simply because of the effort involved. Also the performance is marred because everything must be sung forte in order to be heard.

Modern music making in any event increasingly relies on electronic instruments—electric piano, electric keyboard instruments, rhythm machines, electric guitars and basses, none of which could be used if such an absurd provision were introduced.

In essence, the proposed exception would still preclude live music. A better provision would be to permit live music subject to the music not being audible at any residential or noise sensitive premises and subject to time limits".

That would cover the points made by the noble Lord, Lord Phillips. Ken Dibble goes on to say:

"I accept that there will need to be a limit on crowd numbers otherwise one would find full-scale concerts and rave events held in pubs without the necessary controls. There should be a requirement that any pub or restaurant intending to put on live music should be fitted with a volume restriction device which could be set up to the satisfaction of the local environmental health officer before any amplified music is played. There are some sophisticated devices available".

I have been shut down myself on many occasions by these machines. We are getting closer but we still do not have it right.

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 that at such a late stage there are still things being said which do not reflect the provisions of the Bill. I fully accept that that must be my fault. The contrast was made by the noble Baroness, Lady Buscombe, between provisions in the amendments. She used the example of widescreen television and football matches. She, like me, has had a letter from the Association of Chief Police Officers. It takes the view that widescreen television, pool competitions, quiz nights, theme food evenings and so on tend to be in various venues with similar events which dilute their impact. ACPO says it can handle that. It says, on the other hand, that live amplified music can generate a leisure magnet even in smaller venues. It goes on to state:

"Live music always acts as a magnet in whatever community it is being played. It brings people from outside that community and having no connection locally behave in a way that is inappropriate,"— it says, "criminal". I think that is a bit strong—

"and disorderly. The public expect the police to be able to deal with these incidents and the powers as outlined"— that is, the concessions the Government have made—

"would seem to be a sensible way to do just that".

The noble Lord, Lord Redesdale, said : "Well, only 5 per cent of pubs put on live music". That is exactly the case. That is why we are making it so much easier for pubs to put on live music. That is why we have made the concession to the effect that should a pub with a capacity of up to 200—even the noble Lord, Lord Colwyn, agreed that there should be a capacity limit—want to put on live music of any kind, any conditions imposed on the licence by the licensing authority would be suspended except those which relate to public safety or crime and disorder. Can anyone seriously disagree with that?

The noble Lord said that if these live musicians were to put the music on a video they would evade the requirement for a licence. That is not the case. The showing of a video, as he described it, would be a licensable activity. Only simultaneous live broadcasts are excepted.

Coming back to the noble Lord's 5 per cent point, yes, of course, the existing system is expensive and bureaucratic. We are making it cheaper and easier. We are knocking down the hurdles. I would be astonished if there were not a significant increase in the proportion of pubs putting on live music as a result of this Bill.

The noble Baroness, Lady Buscombe, talked about juke boxes. I think she has been answered by the noble Lord, Lord Colwyn, who gave the decibel limits for juke boxes. But they are not exempt. They are like live music; they are exempt if incidental. Recorded music is licensable.

The noble Lord, Lord Redesdale, talked about spontaneous music. Spontaneous music, whether or not it is amplified, is not licensable. He asked, in the case of the review we have undertaken, whether it would be debated in this House. I cannot give that assurance. That is a matter for the usual channels, of which I am glad to say I am no longer a member.

The issue of human rights was raised, notably by the noble Lord, Lord Lester. There is no greater authority than he on that matter. The Joint Committee on Human Rights, on which we must rely, agreed that there has to be a balance between the right of freedom of expression and the legitimate aim of public safety and the right of peaceful enjoyment of property. In its seventh report, it said:

"The licensing regime serves legitimate aims, namely the protection of public safety, the protection of the rights of others and the prevention of crime and disorder. It is legitimate to say that there is a pressing social need for regulation".

Of course there will be cases at the interface. Wherever we draw the line, there will be the possibility of litigation. I do not think that there will be what the noble Lord, Lord Phillips, always describes as a "bonanza" for his profession because there will always be some place where there will be dispute about whatever rules apply or do not apply. We are indeed, I believe, properly respectful of human rights and properly respectful of the view of the Joint Committee on Human Rights.

The noble Lord, Lord Phillips, raised a completely new red herring about 24-hour live music. The noble Lord, Lord Monson, pointed out the provisions in Amendment No. 62E. In any case the licence remains reviewable. One can have the position of "one strike and you are out". That is the protection for residents, other interested parties and responsible authorities.

When we come down to it, I have two things to say: first, I have huge respect for musicians from Gloucester or Portland, particularly if, as I hope, they are good musicians, but I have to put that against the views of those who are responsible for public safety and the interests of residents—"public amenity" if one wants to use the words of the noble Lord, Lord Phillips. The Association of Chief Police Officers, on behalf of the interests of public safety and crime and disorder, and the Local Government Association, which will be responsible for these licensing activities and has as its interest the protection of residents, are firmly against the amendment tabled by the noble Baroness, Lady Buscombe. I have to put that against the views of individual musicians, much as I wish to respect and accommodate them.

I also have to say that, as the noble Lord, Lord Redesdale, said, we are at the third stage of disagreement between this House and another place. Yes, of course, it is legitimate for this House to continue to insist on matters of high import—for example, Lloyd George's People's Budget of 1909 and matters of profound conscience such as the War Crimes Bill—but ambient unamplified bass guitar? I suggest that the Government have gone as far as they can in meeting the legitimate concerns of those who have been expressing those concerns. Without abandoning our profound duty to preserve public safety and to prevent crime and disorder and public nuisance we can go no further.

Photo of Baroness Buscombe Baroness Buscombe Shadow Minister (Home, Constitutional and Legal Affairs) , Shadow Minister (Digital, Culture, Media and Sport)

My Lords, I thank the Minister for his very full response. I think that he has sensed that I am not willing to step down at this stage. I want first to thank all noble Lords who have contributed to the debate. First, and most notably, I thank the noble Lord, Lord Redesdale. It is right: we have both worked hard on this to improve the legislation. I believe that we have made some considerable progress. However, other noble Lords have encouraged me to believe that it is right to press on.

There is no question: I am extremely grateful to my noble friend Lord Colwyn who put the question of noise in its real context. He has introduced a sense of reality as to what we are talking about with acoustics and what that means in terms of realistic parameters for live music.

The noble Lord, Lord Phillips of Sudbury, suggested that in proposing the amendment I and the noble Lord, Lord Redesdale, had not mentioned the word "amenity". I fought with the noble Lord, Lord Phillips of Sudbury, on the question of amenity during earlier stages of the Bill. We care very much about local residents. We believe it is important to strike a balance, but we do not believe that this Bill as currently drafted does.

I hear what the noble Lord, Lord Clarke of Hampstead, said—that he respects what I have done thus far and believes that enough has been done. I have to disagree. I do not care to disagree with him, but not enough has been achieved today.

The noble Lord, Lord Lester of Herne Hill, succinctly put the argument on behalf of our amendment. He quoted John Stuart Mill that one does not regulate unnecessarily. Our amendment does not conflict with general law, as the noble Lord said. There are time limits and limits on the number of persons. The regulation proposed is not proportionate and it is not, in our view, consistent. While we are grateful for the concessions for incidental music and for unamplified music, there continues to be this enormous problem for most musicians who need some form of amplification.

We have come a long way, but I remain convinced that I must test the opinion of the House.

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

Their Lordships divided: Contents, 75; Not-Contents, 145.

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

Aye: 73 Members of the House of Lords

No: 143 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Resolved in the negative, and amendment disagreed to accordingly.

On Question, Motion agreed to.