Here is a post from last year which demonstrated Lib Dem fears about the new powers under the Government’s new antisocial behaviour.

 

I and a number of other music loving peers are concerned about the potential impact of the new Public Space Protection Order being Introduced under cl 55 of the new Anti Social Behaviour and Policing Bill on busking which is such a valuable and important part of life in our cities.

This permits a local authority to make an order where “activities carried on or likely to be carried on in a public space will have or have had a detrimental effect effect on the quality of life of those in the locality”. The order can prohibit certain activities in an area or require people carrying out a particular activity to do certain things. Failure to comply is a criminal offence.

This as Liberty have pointed out grants very wide powers on the basis of very vaguely defined behaviours.. There is no requirement for pre-judicial authorisation. which means there is great potential for abuse.

My colleagues in the Lords Baroness Hamwee and Lord Greaves succeeded in extracting a number of amendments from the Home office minister Lord Taylor of Holbeach during the passage of the Bill through the Lords in terms of the considerations and consultation required by local authorities see here:

http://www.publications.parliament.uk/pa/ld201314/ldhansrd/text/140108-0003.htm#1401093000258

Baroness Hamwee raised my concerns explicitly:

My Lords, may I say a word following on from Amendment 54? It is on a matter that I raised in Committee, which is how parts of this Bill fit in with the existing nuisance legislation.

My noble friend Lord Clement-Jones and those with whom he worked on what is now the Live Music Act 2012 remain concerned about the possibility of local authorities using public space protection order powers when there is existing nuisance legislation that could be used against a particular nuisance—though I think that they do not regard much music as “nuisance”. There have been some awkward examples of some local authorities banning busking and other live music-making during “reasonable hours”; and when I say that, I would probably agree that they are reasonable, but I do not particularly want to bring that into the equation here. During hours when there have been a small number of complaints, the local authorities would argue that such action is reasonable and there is a concern that the powers might be used far more extensively than the Government would have in mind. They have spoken to me about balancing competing rights between freedom of expression and the right to peaceful enjoyment of one’s possessions—in this case the items that are being used for busking.

I am making the point now in the hope that the Government may be able to say something about guidance on the fit between the statutory powers under this Bill and statutory nuisance. I raised the issue at the previous stage following discussions with the Chartered Institute of Environmental Health. I know that officials are working on this area of the guidance but I also know that those who have been in touch with me will be grateful if they can have further discussions on and further input into what will now be statutory guidance. Clearly those who are working on these issues day-to-day still feel uncomfortable that their concerns about what I called “workability” have not quite been taken on board.

Lord Taylor of Holbeach: I thank my noble friends Lord Greaves and Lady Hamwee for their hard work on this section of the Bill. They have proposed a number of amendments, many of which have informed government thinking. Indeed, these government amendments are based on ideas that came from the debates we had in Committee with them. We have yet to dispose of my noble friend’s Amendment 55, but I hope he will at a suitable moment see fit not to move it

The role that my noble friend Lady Hamwee has emphasised depends on the statutory guidance, which is very important in this area. This is a matter for consultation. We want to get the statutory guidance right and ensure that it allows councils maximum flexibility. We do not want to miss the chance, particularly as the guidance will now be statutory, of making sure that we give background information on the exercise of all the elements of these parts of the Bill for the efficient use of anti-social behaviour powers.

I hope I have reassured my noble friend Lady Hamwee on the importance we attach to the guidance and my noble friend Lord Greaves about our recognition of the need to publicise what is going on in connection with the consultations that will take place.

BUT a great deal depends on the Guidance to be issued on how the PSPO will function. I sought further assurance in my Oral Question on busking policy on the 21st January to make sure that local authorities will not resort to the PSPO before they have first exercised their noise abatement powers.

See the short debate here where Lord Taylor of Holbeach gave a positive reply to me and a number of other concerned peers including Lord Colwyn who described himself as an occasional busker!

http://www.publications.parliament.uk/pa/ld201314/ldhansrd/text/140121-0001.htm#14012175000753

 

Question

2.46 pm

Asked by Lord Clement-Jones

To ask Her Majesty’s Government what assessment they have made of the consistency of proposed legislation on public order with existing policy on busking and live music.The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach) (Con): My Lords, the new anti-social behaviour powers are designed to protect the activities of the law-abiding majority. The Government are certainly not seeking to restrict reasonable behaviour and activity, and we do not believe that these powers do. Live music and street entertainment play an important role in community life and can generate a positive atmosphere that is enjoyed by all. As a result, these reforms are completely consistent with our policies on busking and live music.

Lord Clement-Jones (LD): My Lords, I welcome that statement from my noble friend but there appears to be a considerable difference between the approach of the DCMS and that of the Home Office to busking. The DCMS has been enthusiastic about deregulating live music. The Home Office, by contrast, is enthusiastic about its new public spaces protection order, which creates new dispersal powers and which could be used disproportionately and pre-emptively by local authorities, if the existing behaviour of some London borough councils such as Camden is typical, by contrast to that of the mayor and the GLA. Can my noble friend confirm that the statutory guidance to be issued to local authorities will ensure that these powers are exercised with proper consideration of the balance between freedom of expression and respect for private and family life, and will also point out the considerable existing body of nuisance and noise-abatement powers which local authorities already have to hand? Should we not be encouraging rather than discouraging busking, which is such an important part of our urban culture?

Lord Taylor of Holbeach: I can certainly give my noble friend the assurance that the guidance will achieve what he and the Government wish to see from it. I do not think that there is a difference across government on this issue. We believe that the tests and safeguards set out in the new anti-social behaviour powers will ensure that they will be used only where reasonable. Where behaviour is having a positive effect on a community, and I see busking as having that effect, it would not meet the tests for the new powers. Instead, the powers are directed against the anti-social minority who give street performers a bad name; I might illustrate them as being aggressive beggars and drunken louts.

The Earl of Clancarty (CB): My Lords, does not the Minister think that Part V of the London Local Authorities Act 2000, which specifically targets busking as being effectively a potential criminal activity and which has allowed Camden Council to impose its draconian policy, should be repealed?

Lord Taylor of Holbeach: I do not intend to comment on the Camden case because it is subject to judicial review, as the noble Earl will understand. However, perhaps I can convey to the House the sentiments of the Mayor of London, who clearly believes that busking is an important part of street life in London. He is keen to encourage street entertainment and live music, not least because of the positive aspect it brings to the life of the city. As I have made clear, the Government believe that live music and street entertainment can play an important part in community life. The Government support the mayor’s position.

Baroness Smith of Basildon (Lab): My Lords, I welcome the Minister’s responses and I think that the intention of the legislation is clear, but the noble Lord, Lord Clement-Jones, is on to something about the guidance. We all know that overzealous implementation of legislation can cause problems. Will the Minister respond to the noble Lord’s specific point about making things clear in guidance? When looking at the public spaces protection order, will he also consider guidance for community protection notices and dispersal powers because, with this whole new architecture of arrangements for dealing with anti-social behaviour in the Bill, guidance will be important to ensure that we do not have overzealous implementation?

Lord Taylor of Holbeach: I hope I gave my noble friend a positive response to his request. The Government do not start from the position that busking requires regulation and control. Busking can brighten our lives; local action is necessary only to curb any excesses. I think that noble Lords will understand that that can occur. It is not about top-down government; it is about local authorities using the powers available to them. The guidance will certainly make clear the Government’s position on busking and street entertainment.

Lord Colwyn (Con): My Lords, local authorities and private landowners take different approaches to busking, which can mean that licences are required in some places but not in others. Will my noble friend work closely with local government to clarify the current laws that apply to busking in different areas? I declare an interest as an occasional busker.

Lord Taylor of Holbeach:We have a diversity of talent in this House, and occasionally we have to draw on it. My noble friend makes a very important point: the Government have a role in helping local government to use and interpret its powers properly. The noble Baroness referred in her question to the same issue: making it clear what is considered to be sensible use of powers is a responsibility that the Government can usefully carry out.

Lord Storey (LD): My Lords, the Minister may have heard of an historic music venue in Manchester called Night & Day which, as a result of one complaint, is in danger of being closed down, which would mean that that opportunity for music would be lost. Is not the Minister right when he says that in these cases a proportionate approach should be considered?

Lord Taylor of Holbeach: Yes. My noble friend who asked the original Question introduced the Live Music Act. I pay tribute to him for securing that Private Member’s Bill through this House. It is designed to ease the licensing burden on popular venues. However, we have to allow local democracy to work and people should be entitled, if they find activity to be disruptive, to make that point and have it established whether or

not it is disruptive. I cannot comment at all on the detail of the Night & Day case. I have never been to the place myself; I have obviously missed out in my sheltered life. None the less, I will listen with interest to the outcome.

Without good guidance the increasing tendency of councils wanting to licence busking in public solaces does not bode well for their behaviour when they have access to the new PSPO.