The Live Music Forum
Hamish Birchall Bulletin
Tuesday 27th February 2007 - Unlicensed busking - a postcode criminal offence?
DCMS recently made clear their intention that busking should not be caught by the Licensing Act (Simplification Plan, 11/12/2006, see below), and promised to clarify the legislation. Draft revised Licensing Guidance for public consultation was published by DCMS on 16/01/2007. It includes revised advice concerning the 'incidental music' exemption that could apply to busking:
But some councils have warned that buskers will require a licence - until the law is changed. Where councils take this view, buskers performing in unlicensed spaces could face a criminal prosecution. Max penalty: a £20,000 fine and six months in prison.
Manchester City Council includes this advice for buskers on its website: '... under the Licensing Act 2003, which came into force on 24 November 2005, busking is classed as regulated entertainment. To undertake regulated entertainment, the premises concerned (which can include a street or other open space) must be licensed. This applies to all areas so includes both the city centre and Chorlton.'
And: 'If you wanted to busk in areas not currently covered by a premises licence then currently you would have to apply for a premises licence yourself. You must be aged 18 or over. You would have to complete an application form and an operating schedule which you would send to the Licensing Unit at Manchester City Council.' ( Councillor Neil Swannick, Executive Member for Planning and Environment, Manchester City Council):
http://www.manchester.gov.uk/localdemocracy/questions/planning/august.htm (scroll down)
Test Valley Borough Council's website states: 'Busking in a public place, e.g. Andover High Street, requires either a Premises Licence or a Temporary Events Notice under the Licensing Act 2003.'
Last month I asked both councils whether their licensing policy for buskers was a necessary and proportionate restriction of freedom of expression, and whether they would change their advice in light of the recent DCMS clarification. They replied:
'Our current policy on busking and the Licensing Act 2003 is based upon current guidance and interpretation of the law. Although the statement from DCMS makes clear their view they have not yet issued definitive guidance or sought to change the legislation. We are taking legal advice on the Act and the position with respect to Human Rights and we don't feel that it would be appropriate to comment further at this point.' (Test Valley Borough Council statement, 15/01/2007)
'The authority is satisfied that its interpretation of the Licensing Act 2003 is compliant with the Human Rights Act 1998. Whilst the authority is not obliged to release details of the legal advice that it has received, I can advise that in interpreting the Act in this manner (which I again reiterate is consistent with the DCMS interpretation) the authority took into account an individual's right to freedom of expression, balancing that against the need to protect public safety to ensure that busking does not take place in inappropriate places, and to ensure that public nuisance is not caused to businesses, shoppers and residents.' (Manchester City Council spokesperson, 21/02/2007)
Whether unlicensed busking is the grave threat to society that MCC appears to believe is clearly open to question.
A spokesperson for the Local Authority Coordinator of Regulatory Services (LACORS), the organisation that monitors local authority implementation of the Licensing Act, said (23/02/2007): 'LACORS welcomes the intention of DCMS to clarify the policy intention of the Act in relation to the incidental music, especially as it does not appear to be clear in situations such as busking. Local Authorities are aware of the DCMS intention, but some may feel for legitimate legal reasons that that they cannot change their position until DCMS has implemented the clarification. Clearly until we know what is contained in the revised guidance it would be inappropriate to provide any further comment.'
The DCMS busking clarification of 11 December 2006 - one objective in DCMS Simplification Plan (i.e. proposals to cut red tape):
''To make clear in legislation that the policy intention is to exclude e.g. carol singers, buskers, puppet shows for children and poetry readings from requiring a licence. This measure would most likely be delivered via regulation / and or Guidance.'
'Lifting the burden - Improving and realising community capacity', DCMS December 2006, 'Areas to be explored to achieve further reductions in administrative burdens', p23, para H.