The Live Music Forum
Hamish Birchall Bulletin
Wednesday 9th April 2008 - Confusion On Busking Laws Persists
If you busk regularly in the same place, and advertise the fact, is this a potential criminal offence unless the space is licensed for live music under the Licensing Act 2003?
Despite attempts by the Department for Culture, Media and Sport (DCMS) to clarify the law, the answer remains uncertain. Two and half years since the Act came into effect, local authorities, responsible for enforcement, remain divided over what it means.
In December 2006, DCMS said it wasn't their intention that busking should be caught by the Act and that they would 'make [this] clear in legislation' (see * below). In February 2007, the Local Authority Coordinator of Regulatory Services (LACORS), the organisation that monitors local authority implementation of the Licensing Act, said:
'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.'
In June 2007 DCMS published revised Licensing Guidance, secondary legislation that accompanies the Act. The 'incidental music' section was redrafted in a way that implied that buskers, carol singers and the like might qualify. Crucially, however, there was no explicit reference to busking.
A Parliamentary Committee concluded that the 'incidental music' section remained confusing: ' Some definitions have been clarified, for example what constitutes “a private event”, but we regret that some, such as the definition of “incidental music”, could not be made clearer and so may impose a burden on the courts until sufficient precedent is established.' [House of Lords Merits of Statutory Instruments Committee, 27th Report of Session 2006/7, p10, para 27, published 16 July 2007. PDF file:
Earlier this year, I put the busking question to some local authority licensing managers. Tony Payne, licensing manager for Oxford City Council, said:
' My personal view on what you describe... is that if it takes place in the presence of an audience and is provided at least partly to entertain that audience or for personal gain then it would come under the definition of Regulated Entertainment. This is a Licensable Activity and would at least require a Temporary Event Notice.'
This view was echoed by several others outside London, who also stressed that busking was allowed in areas they had already licensed under the Act. B ut Lionel Starling, licensing manager for Swindon, took a different line:
' When it was still going through Parliament I raised this point and wanted a distinction drawn between 'spectator' and 'audience'. Is someone who wanders past but stops for a while part of an 'audience'. I would say not - in which case no licence is needed. The bottom line is that if none of the official licensing objectives (safety, nuisance, protecting children, disorder) are triggered how can it possibly be any of our business anyway?'
In London itself, both Camden and Westminster almost, but not quite, concluded that the London Underground buskers were 'incidental music' and therefore exempt. A spokesperson for Camden cited the exemption, and added:
'... we have to consider whether busking constitutes a performance in the presence of an audience. Passers-by could constitute an audience if they stopped to watch the entertainment, but generally people using the tube stations do no more than pass through.'
And indeed it seems that a liberal interpretation prevails for the London Underground busking scheme. These regular performances are advertised by the current sponsors, Capital Radio:
According to Transport for London, the pitches are not licensed under the Act. When I asked them about this they took advice from DCMS before issuing a statement:
'Under the Licensing Act 2003 London Underground Limited (LUL) do not require a license for the buskers that perform on the London Underground. Busking on the network is incidental to London Underground's main activity (transport) and is accordingly not considered to be a licensable activity.'
While encouraging in some respects, this does raise questions about the validity of the Act in general. Why shouldn't a regular, publicly advertised jazz or folk session in a bar qualify for the exemption? I have yet to hear of a local authority that explicitly allows such performances as 'incidental music'.
Of course, in many areas busking is regulated not only by local authorities' adopting strict interpretations of the Licensing Act, but also by local byelaws. According to lawyers, however, the enforceability of such byelaws is doubtful in light of the DCMS's publicly stated view that its own national legislation regulating live music was not intended to apply to busking. Current byelaw guidance from the Department for Communities and Local Government states:
'If there is general legislation to cover the subject causing concern, byelaws are not generally considered suitable.'
In short, despite DCMS 'clarifications' and 'a licensing regime for the 21st century', the legal status of live music remains very confused. * On 11 December 2006 DCMS published this commitment:
'To make clear in [Licensing] 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.