Moves to Deregulate Busking
In the recent debate in Grand Committee of the Deregulation Bill, Ben, Lord Stoneham in my absence abroad explained why we need to amend the London Local Authorities Act 2000 so that the licensing of busking under that act is no longer allowed and the conflict with the Live Music Act’s provisions on the playing of unamplified music in London is ended
“Busking is an essential element of street culture in London and many cities. It is often the start of a major career. Eddie Izzard, for example, famously started his career on the streets of Covent Garden. As a leading busking campaigner, Nick Broad, has said:
“Street performance is one of the most noble ways that artists can earn a living: performance first, pay later, and only if you enjoyed the show. Making tips as a busker is a great alternative to making tips as a waiter or bartender: you get to practise, reach an audience and learn what people like about your show while earning a living. No managers. No PR. No cult of celebrity. No Facebook popularity contest. No latest gig app. No entrance fees. No service charges. No security guards or fences. No clever lighting. No razzle-dazzle. No fancy brochures or billboards. No sponsorship deals. No product placements. No middlemen. Just an artist and their audience”.
Live music and street entertainment can enrich a community’s quality of life and generate a positive atmosphere that can be enjoyed by many people. The Mayor of London, too, has rightly been fulsome about the place of busking in London life. Following the work of the mayor’s busking task force, the mayor has approved the creation of Busk in London and provided start-up funding. Together with more enlightened London authorities and busking campaigners, we are well on the way to agreeing a new busking code as a way forward in London, building on the experience in Liverpool. The aim is to implement the busking code of conduct in agreement with the London boroughs and other cities across the UK, to create an interactive map of London’s busker-friendly locations, to pilot the website and to secure continuing funding and sponsorship over the coming six months.
Despite this, not everyone is supportive. There remain great threats from inappropriate use of existing legislation. Therefore, this amendment is explicitly designed to remove Part V of the London Local Authorities Act 2000, which provides for busking licensing schemes at individual London councils’ discretion, so that the licensing of busking under that Act by a growing number of London councils is no longer allowed, and the conflict with the Live Music Act’s provisions on the playing of unamplified music in London is ended.
Camden, under the London Local Authorities Act, has banned street music at any time, amplified or unamplified, except through a special busking licence. The breach carries a fine of up to £1,000. Camden’s approach runs counter to the arguments heard and accepted by government and Parliament during the Live Music Act debates.
We should also remove Section 54(14) of the Metropolitan Police Act of 1839, which was recently used against buskers in Leicester Square. The noble Lord, Lord Clement-Jones, has explained that the King’s Parade, the winners of the mayor’s busking competition, were interrupted by the police mid-song as they performed in Leicester Square and informed that they were in breach of Section 54 of the archaic 1839 Metropolitan Police Act. They were bundled into a van by eight officers and held at Paddington police station for more than six hours. This 174 year-old piece of legislation—which, incidentally, also prohibits kite flying, sleigh riding, doorbell ringing without excuse, causing mischief to cattle, rolling hoops on footways and distributing profane songs—was used to justify the arrest.
The problem is the scope of Section 54(14) of the Metropolitan Police Act 1839, which appears to allow the police to arrest buskers just for doing what buskers do, without any complaint about noise or nuisance, without any criminals or opportunistic thieves nearby or, indeed, without any large crowds. Under this provision, the mere act of playing a saxophone, giving away a free CD or accepting a donation is a potential criminal offence. It is indeed suitable new clause to be included in the Deregulation Bill.
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To his great credit, my honourable friend Norman Baker, while Minister for Crime Prevention, subsequently wrote to every chief constable warning against the heavy-handed use of their powers to silence buskers. The vast majority of complaints about busking relate to noise nuisance. There are more than adequate powers under separate legislation to deal with noise nuisance, anti-social behaviour, bullying, harassment, begging and street trading.
I will just give some examples of these. In the case of noise nuisance, there are two main statutes that can relate most readily to busking and which have been used for buskers. These are the Environmental Protection Act 1990 and the Control of Pollution Act 1974. The Environmental Protection Act gives local authorities a statutory duty to respond to complaints about noise and, if it is deemed that a statutory nuisance has been or is likely to be caused, gives them robust powers to deal with it. The breach of a Section 80 notice is an offence which can carry a fine of up to £5,000.
Liverpool’s lead environmental health officer points out that the majority of Section 80 notices are complied with and do not result in further prosecution. Also, a high-profile exercise of Environmental Protection Act powers is likely to be well publicised among the busking community and to show that certain thresholds of permissibility exist beyond which consequences are inevitable. The exercise of Environmental Protection Act powers should be reserved for anti-social buskers who do not respond to polite requests. Noise that some might find irritating but does not meet the threshold for statutory nuisance would not be covered by this Act but by definition would not be causing material interference with a place of residence or business and therefore is not causing any issue that warrants enforcement. In practice, different local authorities have a different view of their powers under the Environmental Protection Act.
There is other legislation to control buskers. The Control of Pollution Act 1974 makes it an offence to use a loudspeaker in the street after 9 pm. The Highways Act 1980 makes it an offence to cause an obstruction on a public highway; if a busker has set up on a public highway and is causing an obstruction, enforcement action can be taken against them using this Act. Any part of the code of conduct relating to pitch selection would emphasise the importance of not blocking doorways or fire exits and of allowing room for people to get past freely. There are also powers to make by-laws available to local authorities with respect to street nuisance.
Often it is a small minority of performers who cause specific issues to other buskers and users of shared spaces in particular locations. Enforcement action which targeted specific examples of bullying behaviour could be carried out under the Public Order Act. Although claims have been repeatedly made that there is a link between spontaneous street performance and criminal activity, these have never been backed up by any evidence. None the less, if the police and local authorities have concerns about specific buskers or specific behaviours, they have ample powers to address them under public order and anti-social behaviour legislation.
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To cap it all, antiquated laws such as the 1824 Vagrancy Act and its successor legislation make it an offence to beg for money. It is fair to say that, even in 2014, many people regard buskers as beggars with musical instruments. There are also sweeping powers introduced by the Anti-social, Behaviour Crime and Policing Act 2014.
These are very wide-ranging powers, and it is vital that it is made clear to local authorities that they should have proper grounds for invoking them. The scope of the orders is similar to that of by-laws; they can be obtained, but much more easily. By-laws must go through a democratic process and be sanctioned by the Secretary State, while police security protection orders are made in a summary manner by councils.
Ministers have given assurances that tests and safeguards set out in the new anti-social behaviour powers will ensure that they will be used only where reasonable, but we fear that just at the time when there is a major initiative by the Lord Mayor and others to encourage legitimate busking, there is the spectre of public space protection orders being used in a heavy-handed way.
I hope that I have explained to the satisfaction of the Minister and the Committee precisely why there are enough powers in existence to make buskers’ lives a misery without having to keep Part 4 of the London Local Authorities Act 2000 and Section 54(14) of the Metropolitan Police Act. It seems appropriate to remove them with this Bill.”