I just loved this post from live music activist Hamish Birchall.
It quotes in full a legal opinion from two performer-lawyers, Richard Bridge and John Morgan – with a wacko lawyerly discussion about music genres.
Keep a firm hold of your Article 11, and READ ON:
“Camden’s ban on rock or pop music at the Sir Richard Steele pub in Haverstock Hill is ‘abritrary and capricious’ and a potential breach of human rights, say lawyers Richard Bridge and John Morgan (see their statement below).
Condition 13 of the pub’s premises licence states: ‘Live music shall be permitted, however music of the rock and pop variety is specifically excluded.’
According to the Camden New Journal of March 2006, the condition was imposed after actress Helena Bonham-Carter and others complained about noise:
Statement by Richard Bridge and John Morgan:
‘We have considered condition 13 imposed by Camden council as part of the premises licence of the Sir Richard Steele public house. The condition appears to suffer from three serious defects. One is a matter of general law and the other two relate to the Human Rights Act 1998, giving effect to the European Convention on Human Rights. Section 6 of the Act makes it unlawful for a public authority (which plainly includes any local authority such as Camden) to act in a way which is incompatible with a Convention Right.
‘First, the condition is so uncertain that it may be of no legal effect. There is no legal meaning to the expression “rock or pop”. The distinction of those types of music from others appears to be entirely subjective, and inconstant over time. Katchaturian’s “Sabre Dance” has for decades been considered part of the classical genre, yet a version played on the electric guitar by the band “Love Sculpture” was a popular music hit. Local authorities faced similar problems when seeking improved legal weapons with which to combat illegal “raves”, and tried to compose definitions referring to repeated rhythmic structures – until it was pointed out that this would have caught Ravel’s “Bolero”. It is one of the characteristics of the rule of law that people must be able to be aware in advance of what types of behaviour are prohibited, but any barrier between folk and ethnic music, on the one hand, and “hit” or “pop” music has frequently proved a permeable one. Well known examples of the same song existing in both genres would include “Tom Dooley”, “Strawberry Fair” and “Whisky in a Jar”. Jazz hits would include “Stranger on the Shore” and “Take 5”. There is much that contemporary jazz embraces that leans heavily on, say , drum’n’bass and/or electronica. In short, it is impossible to be sure what “rock or pop” is.
‘Second, the condition is clearly a restriction on the freedom of expression potentially protected by article 10 ECHR (schedule 1 of the Human Rights Act 1998). That right is a qualified right, and so may be restricted where necessary and proportionate in a democratic society. Rights under this article require to be balanced with other rights, for example those under article 8 – the right to respect for private and family life, home and correspondence. So freedom of expression may require to be balanced against respect for homes. But the stylistic condition is not only vague but also unnecessary. What is really objected to (and impacts homes, for example) is the level of sound. The landlord would, if putting on opera, or hosting Japanese drummers or organising a competition for Highland pipers probably create just as much disturbance, but remain within the condition. Further, the levels of sound do not need to be controlled by use of the Licensing Act. There is a substantial body of law relating to noise abatement which could do the job as effectively as any licensing condition, and more effectively than the one imposed. The condition also is not proportionate, for pop or rock music (if one can discover what it is) would be outwith the licence condition even if remarkably quiet.
Third, the condition is also a restriction on freedom of association. Article 11 ECHR confers the right to peaceful assembly and freedom of association – including (but not only) for trade union purposes. Thus the article confers the right to associate for the purposes of enjoying music. Under the condition, people may associate at the Sir Richard Steele to enjoy music, and the landlord may permit them to associate there for that purpose – but if the music is “rock or pop” he may not so permit them and the organisers of the event may be acting unlawfully. Thus this condition is potentially in breach of article 11 ECHR. It is true that the article 11 right is also a qualified right, but for the same reasons the condition as set out may not benefit from the qualification. Under the condition all other groups of people with a musical interest could associate on these premises, no matter what their standards of behaviour or the sound levels, but not those caught by this exception (again, regardless of thier standards of behaviour or the sound levels). Thus the condition is vague, arbitrary and capricious, rather than necessary in a democratic society for the protection of the rights and freedoms of others.
Richard McD. Bridge B.A. B.Sc., solicitor, amateur musician, founder of the
John Morgan, barrister, playwright, former music teacher, amateur musician