The Live Music Forum
Thursday 29th December 2005 - Sheffield Pub Carols Exempt ? Civil Liberties Implications
Carol singing has exposed not just confusing ambiguity at the heart of the Licensing Act, but also potential discrimination issues under human rights legislation. While acknowledging DCMS advice that prearranged carol singing may be licensable, legal officers for Sheffield City Council appear to have decided that the annual tradition of carol singing in local pubs should benefit from the licensing exemption for music that is incidental to a religious meeting or service (Licensing Act 2003, para 9, Schedule 1) unless they receive evidence suggesting that such events are not religious meetings.
In a letter to me dated 23 December 2005, the council's Assistant Chief Executive Liz Bashforth drew my attention to the religious meetings exemption, adding: 'Carols, are hymns of the Christian faith, usually sung in celebration of the Christian festival, that is, Christmas. I take the view that there must be a presumption that a prearranged carol service close to the Christian festival of Christmas is the provision of entertainment for the purposes of a religious meeting or service unless there is evidence to the contrary.'
This response came in reply to my request for clarification about carol singing at the Travellers Rest pub in Oughtibridge, near Sheffield, which does not have a live music permission on its premises licence. Sheffield's welcome light touch contrasts sharply with other councils.
On 23 December, the online Church Times reported the cancellation of carol singing outside a shopping centre near Norwich because of doubts about its legality without a licence: http://www.churchtimes.co.uk/80256FA1003E05C1/httpPublicPages/819AA21916708E2C802570DE0044C1E8?opendocument
A DCMS spokesperson is quoted suggesting that such carol singing could benefit from the exemption for incidental music. But this welcome advice came rather late in the day. In any case it contradicts the long-standing advice on the DCMS website: '... if a business in a shopping mall, for example, arranges for a group of singers to sing carols this will be the same as their arranging any performance of live music and a premises licence or a temporary event notice would be required.' http://www.culture.gov.uk/alcohol_and_entertainment/licensing_act_2003/regulated_entertainment.htm#26
The only carol-singing exemption considered on the DCMS website is where the event is 'spontaneous' - a word that is not used or even implied in connection with regulated entertainment under the Act. The exemption for music that is for the purposes of, or purposes incidental to, a religious meeting or service would seem to discriminate against secular music in secular venues or at events that could not be described as 'religious meetings'. Why should carol singing in bars be treated differently to secular singing in bars? The Joint Committee on Human Rights, the Parliamentary committee which scrutinises all new legislation, considered the religious venue exemption back in 2003, commenting: 'The Government announced on 3 February 2003 that there would be exemptions from the need to obtain a licence for places of religious worship where secular entertainment takes place.
This apparently random exemption for places of religious worship might tend to undermine the argument for the rationality of the blanket licensing scheme as a whole, and could engage other human rights issues by appearing to discriminate against occupiers and users of non-religious premises.' ['Scrutiny of Bills: Further Progress Report', Fourth Report of Session 2002-03, HL Paper 50, HC 397, 10 February 2003, para 18, p10]
Of course, the Act's exemption for entertainment at places of religious worship covers not only entertainment at places of religious worship, but entertainment at any other place if it is for the purposes of, or purposes incidental to, a religious meeting or service. In other words, the scope for potential discrimination is far wider than first considered by the JCHR. It may therefore be possible for secular singers in non-religious venues reasonably to argue that this exemption amounts to arbitrary and wholly unjustified discrimination against their right to manifest '...religion or belief, in worship, teaching, practice and observance' under Article 9 of the European Convention. This in addition to the by now well rehearsed arguments that the Act unjustifiably restricts the right to freedom of expression (Article 10) and freedom of assembly (Article 11).
by Hamish Birchall