London buskers / Licensing Act

Subject: London buskers / Licensing Act
From: The Shambles
Date: 23 Jun 06 - 06:33 AM

The following from Hamish Birchall.

There have been rumours lately of a licensing clampdown on South Bank buskers. Sure enough, Southwark Council's licensing department confirmed today that they require buskers to apply for a Temporary Event Notice under the new licensing laws. This despite the difficulty of providing a precise address for the busking location, and despite the fact that only 12 such permits are allowed per year per premises (total annual cost to the busker: £252).

South Bank buskers could therefore face criminal prosecution if they do not obtain a Temporary Event Notice in advance. Max penalty: £20,000 fine and six months in prison.

One busker, who asked not to be named, said that this is the first time they have run into serious difficulty. Until the new licensing laws came into force, entertainment licensing did not apply to public land, and busking was specifically regulated through local by-laws or not at all. The police would intervene sometimes on the grounds of obstruction; noise complaints were dealt with under the Environmental Protection Act. Under the new law 'premises' is defined as 'any place', which includes public or private land, as well as streets and pavements.

By contrast with the new licensing restrictions for South Bank buskers, on Saturday 17 June over 400 musician members of the armed forces performed live music for the Trooping the Colour ceremony in The Mall and Horse Guards Parade. No licence was issued under the Licensing Act 2003.

A spokesman for Westminster City Council explained that this particular performance was exempt because s.173 the Act exempts the military, and - wait for it - because it was incidental music. The incidental exemption may not be persuasive in this case, but the s.173 claim is arguable:

'An activity is not a licensable activity if it is carried on - (f) at premises which, at the time when the activity is carried on, are permanently or temporarily occupied for the purposes of the armed forces of the Crown'. [Licensing Act 2003, Part 9, s.173(1)(f)]

Subject: RE: London buskers / Licensing Act
From: The Shambles
Date: 23 Jun 06 - 06:37 AM

You now need a licence and permission to busk but not seemingly to stage a military coup.........

Subject: RE: London buskers / Licensing Act
From: Willie-O
Date: 23 Jun 06 - 10:21 AM

yeah, where's Monty Python when you need him.
The classic "I would like to apply for a licence to stage a coup" sketch...right up there with the cheese shop.

Subject: RE: London buskers / Licensing Act
From: The Shambles
Date: 23 Jun 06 - 05:00 PM

The following from Hamish Birchall

Further to my report yesterday that Southwark council is requiring buskers to obtain Temporary Event Notices, it would seem this contradicts advice issued by the Department for Culture. According to this DCMS press release issued on 18 February 2003, 'Busking will NOT be licensable' under the new licensing laws:

http://tinyurl.com/felkb

Scroll down for the reference under 'Notes to Editors'.
ENDS
-----------------------------------------------------
Where you will also see the following (assurances/lies) made by our \government:

Individual performers will not be disadvantaged by the Bill
Performers will NOT need to be individually licensed.
Performers will NOT now be liable to a fine or to imprisonment just for playing or singing.

Subject: RE: London buskers / Licensing Act
From: Leadfingers
Date: 23 Jun 06 - 07:53 PM

And the PEL is designed to make music more readily available to all !

Subject: RE: London buskers / Licensing Act
From: jeffp
Date: 23 Jun 06 - 09:03 PM

Sounds like the Southwark Council is overstepping its bounds. Is there an appeal process in the UK for these sort of disputes? In the US, a local action could be escalated by appeal to the state or federal level, which would result in an opinion which would be binding on future acts or merely instructive, depending on the particular court which sets forth the final ruling.

The whole PEL thing seems really weird to me. I am totally against anything which restricts buskers for stupid reasons and this is clearly one of those situations.

Jeff

Subject: RE: London buskers / Licensing Act
From: GUEST,$%#
Date: 23 Jun 06 - 10:44 PM

I am a foreigner

I pickup a "traffic cone" and busk sitting on the curb of Coventry Gardens.

What sort of fine can I expect?

Is there a bond? Will they accept 200 of the 300 UKP tourists tipped me? Can I get WEEKDAY city-sponsored-lodgings....and still have the weekends free?

It appears real...that Europe can still be done on 5.00 US dollars a day.

Off to pan-handle Europe - much easier than the US Southern sectors at this moment in history.

Sincerely,

Subject: RE: London buskers / Licensing Act
From: The Shambles
Date: 24 Jun 06 - 02:23 AM

See also

Affected by the Licensing Act 2003

Subject: RE: London buskers / Licensing Act
From: Tootler
Date: 24 Jun 06 - 02:34 PM

The guidance that Shambles provided a link to also states quite explicitly

Busking will not be licensable

So it looks as if Southwark Council are exceeding their authority

Subject: RE: London buskers / Licensing Act
From: DMcG
Date: 24 Jun 06 - 06:25 PM

That doesn't necessarily follow, Tootler. What the guidance states is that busking is not licensable under the Act. I would guess that does not prevent Southwark Council requiring it to be licenced as a general part of the council regulations. Whether they can legally use the same mechanisms as those under the Act, though, may be more doubtful. As like as not, this is a good opportunity to make two teams of lawyers very happy.

Subject: RE: London buskers / Licensing Act
From: The Shambles
Date: 24 Jun 06 - 06:26 PM

The guidance that Shambles provided a link to also states quite explicitly

Busking will not be licensable

I had hoped my post had already made this DCMS advice clear. But it may be a little confusing to refer to the advice contained in this DCMS press release ( issued on 18 February 2003) as guidance. For this advice is not the Act's Statutory Guidance which has recently been revised. On Thursday 22 June 2006, the government published revised statutory Guidance for the new Licensing Act. See this DCMS press release:
http://www.culture.gov.uk/global/press_notices/archive_2006/dcms090_06.htm

It would be fair to say that The Act's Statutory Guidance is not very helpful to these matters.
----------------------------------------------------------------------

The Act's Guidance suggest that Local Authorities should obtain premise licence entertainment permission for public places. This to enable things like Punch and Judy shows to take place without the performers needing to obtain TENs for each performance. A move that my council has started work on.

This may or may not be a factor in Southwark - but it does mean that if and where this is done - the LA will hold the licence for these places and they will then have even more control over what form of entertainment can or cannot take place.

Subject: RE: London buskers / Licensing Act
From:
Date: 24 Jun 06 - 09:24 PM

So....as posted above.

A non-native-UK.....might expect 300 in contributions, a 200 in fines, and a warm cot with two hots....for the night.

Not a bad deal.

I am soon oft to explore the isles. I will give a report of the various comforts afforded in various locals.

I have been led to believe that many the London locals sherrif's constabulris afford better accomodations and meals than some of London's "three-star-rated" hostilaries.

Subject: RE: London buskers / Licensing Act
From: Tootler
Date: 25 Jun 06 - 06:35 AM

OK point taken in both Shambles and DMcG's posts. It does seem, however that Southwark Council are taking a somewhat heavy handed approach.

The statutory guidance states

To ensure that cultural diversity thrives, local authorities should consider establishing a policy of seeking premises licences from the licensing authority for public spaces within the community in their own name. [...] Performers and entertainers would then have no need to obtain a licence or give a temporary event notice themselves to enable them to give a performance in these places.

This seems to me to be a perfectly reasonable approach. The guidance goes on to say that performers still need to seek permission from the local authority.

In spite of what Shambles says, - and you do seem always to see things in terms of the glass being half empty rather than half full - this does not seem to be too much different from the previous situation. After all, if local authorities didn't like buskers under the old regime, they asked the police to move them on or even established bye-laws prohibiting busking.

Subject: RE: London buskers / Licensing Act
From: The Shambles
Date: 25 Jun 06 - 07:26 AM

To ensure that cultural diversity thrives, local authorities should consider establishing a policy of seeking premises licences from the licensing authority for public spaces within the community in their own name. [...] Performers and entertainers would then have no need to obtain a licence or give a temporary event notice themselves to enable them to give a performance in these places.

This seems to me to be a perfectly reasonable approach. The guidance goes on to say that performers still need to seek permission from the local authority.

Forgive me but I see very reason in advising a course of action to local authorities in order to ensure that: Performers and entertainers would then have no need to obtain a licence or give a temporary event notice if the same guidance goes on to say that performers still need to seek permission from the local authority.

The fact was that prior to this Act buskers did not generally need prior permission from the local authority - according to Southwark Council's interpretation of the Act - they now do.

Whatever Southwark's view maybe on obtaining blanket Premises Licence permission for their public places - it is a strange concept and one that gives even more control to the local authority in practice. Which is partly why my local authority has taken notice of this part of the Statatory Guidance but still ignores much of the rest and the Guidance's stated reasons for them. Such as the following from the (revised) Guidance.

3.47 Move to a new paragraph (3.47A) the following existing text

"Care will be needed to ensure that only necessary, proportionate and reasonable licensing conditions impose any restrictions on such events. Where there is any indication that such events are being deterred by licensing requirements, statements of licensing policy should be re-visited with a view to investigating how the situation might be reversed. Broader cultural activities and entertainment may also be affected. In developing their statements of licensing policy,
licensing authorities should also consider any views of the local authority's arts committee where one exists."

And

3.47 After 1st sentence
"In connection with cultural strategies, licensing policy statements should include clearly worded statements indicating that they will monitor the impact of licensing on the provision of regulated
entertainment, and particularly live music and dancing"

add

"for example, by considering whether premises that provide live music or culture are represented on licensing stakeholder forums, and ensuring that local cultural officers are regularly consulted
about the impact on local culture. Where appropriate, town centre managers have an important role in coordinating live music events in town centres and can be an important source of information."

The Guidance goes through the motions at least of stating its concerns for live music and dancing - whilst most local authorities continue to do their best to ignore these concerns and their statutory responsibilities underthis Act.

Subject: RE: London buskers / Licensing Act
From: Folkiedave
Date: 25 Jun 06 - 09:51 AM

Buskers. Local authority giving you trouble? Fight back under the Freedom of Information Act.

Choose an event that takes place on the streets. (Anything with Lord Mayor or Mayor is usually good for this). Ask when these streets received pernmission to have regulated entertainment. Failing "Mayor" and "Streets" try "Parks".

This approach has worked for Sheffield where the whole of the City Centre and all major parks are now licensed. They may move buskers on - but they can´t do it with the Licensing Act 2003.

See my post June 25th for my response to Southwark.

Subject: RE: London buskers / Licensing Act
From: pavane
Date: 26 Jun 06 - 04:26 AM

In the meantime, perhaps all buskers need to perform Morris dances?

Subject: RE: London buskers / Licensing Act
From: Folkiedave
Date: 26 Jun 06 - 01:06 PM

Yes.

Subject: RE: London buskers / Licensing Act
From: jojofolkagogo
Date: 27 Jun 06 - 07:30 AM

I know the guy with the traffic Cone (well, I've seen him around London) - he's VERY GOOD !!!

What we really ought to be doing is going down to the obelisk which serves us for 11 Nov and stand on THAT and perform (as its millitary ground) or failing that, stand in one of the soldier's boxes outside Buck House and do it there ...

THEN YOU CANT BE DONE !!!

(well, you can try ...)

Jo-Jo

Subject: RE: London buskers / Licensing Act
From: The Fooles Troupe
Date: 27 Jun 06 - 08:54 AM

"THEN YOU CANT BE DONE !!! "

only, as I understand it, IF you are in the military... :-)

Subject: RE: London buskers / Licensing Act
From: Folkiedave
Date: 28 Jun 06 - 02:21 AM

I´d agree with Foolestroupe there.

Mind you, same applies to the morris dancing exemption, you can only get it if you are "morris dancing or any dancing of a similar nature" to quote the Act.

In Sheffield this includes, belly dancer, ballroom dancer, line dancer, ceroc dancer, hip hop, garage, etc...etc.....)

Subject: RE: London buskers / Licensing Act
From: The Fooles Troupe
Date: 28 Jun 06 - 09:37 AM

... so if you 'dance' while playing...

hmmm, does 'march' count as 'dance' - then scottish bagpipers who walk around dodging rotten fruit...

Subject: RE: London buskers / Licensing Act
From: Folkiedave
Date: 30 Jun 06 - 05:37 AM

On 18 May 2006 DCMS published a Pilot Register of Licensed Public Spaces in England and Wales. This shows local authorities and potential register users the format of the register and the type of information it will contain, and gives details about spaces that have already been licensed by local authorities.

It's here. (Needs Acrobat Reader)

Clearly useful to buskers and others who may have this TEN business thrown at them. (Southwark are not included - yet.)

Perhaps those with an abiding interest in these matters (or obsessed with it like me) might encourage their local authority to follow government guidelines. It has certainly worked (eventually) in Sheffield.

Subject: RE: London buskers / Licensing Act
From: The Shambles
Date: 30 Jun 06 - 05:42 AM

The link gives the following but it says that that the page cannot be found.

http://www.culture.gov.uk/NR/rdonlyres/F138C88E-CA48-4586-8152-6EA40824C27B/0/RegisterofLicensedPublicSpacesinEnglandandWalesPIL

Subject: RE: London buskers / Licensing Act
From: IanC
Date: 30 Jun 06 - 06:03 AM

HERE

Subject: RE: London buskers / Licensing Act
From: The Shambles
Date: 30 Jun 06 - 06:34 AM

Many Thanks

Subject: RE: London buskers / Licensing Act
From: IanC
Date: 30 Jun 06 - 07:16 AM

I also just send this to my local council (with a copy to our (Con) MP).

Hi

I've been looking at the Government's pilot list of public spaces which have been registered by local authorities for entertainment on the basis of the governments (mandatory) guidance for the Licensing Act of 2003.

The government stated that no facilities for entertainment would be lost due to the fact that public spaces (not licensable before the act) would become licensable from November 2005. Their reason for saying this was that in their guidance information they would "strongly encourage" local authorities to themselves license any open spaces within their area. The guidance was subsequently made mandatory.

I'm surprised to find that, at least in the pilot document, NHDC has not apparently registered a single one of our (many) open spaces as licensable for entertainment. Such diverse places as Kennedy Gardens in Letchworth, Royston Town Centre, Ashwell Recreation Ground etc. etc. etc. - which are common venues for a variety of harmless entertainment - have not yet been registered by NHDC.

Could you provide me with a list of locations you intend to register and some idea of when this will be done.

Thank you
Ian Chandler

PS I will be contacting our local MP on this matter.

:-)
Ian

Subject: RE: London buskers / Licensing Act
From: Folkiedave
Date: 30 Jun 06 - 09:31 AM

Would you be kind enough to post this here too?

thread.cfm?threadid=86679&messages=276

People really ought to send this to their local authorities.

Well done.

Subject: RE: London buskers / Licensing Act
From: IanC
Date: 30 Jun 06 - 09:55 AM

Dave

Thanks. I have. Oliver Heald, who's my local MP has already written back promising to follow this up.

:-)

Subject: RE: London buskers / Licensing Act
From: The Shambles
Date: 30 Jun 06 - 10:03 AM

The following from Hamish Birchall

Last week I reported that Southwark's licensing department were advising buskers to obtain a Temporary Event Notice under the new Licensing Act. This contradicted DCMS advice that busking would not be licensable.

However, when further enquiries were made by a national newspaper, Southwark's press office denied that the council had a 'policy' to licence buskers. But a council policy may not be the same as advice provided to individual musicians by officials. So, for clarification I asked Southwark's press office to respond to a couple of questions:
If a musician entertained spectators regularly with performances of live music at the same spot on the South Bank (i.e. at least once a week) within Southwark's boundaries, would the council regard this as the provision of regulated entertainment under the Licensing Act 2003?
If not, on what legal basis would it be exempt?
The reply came yesterday (29 June):

'The Licencing Act does not exempt buskers from needing a license but advice from the Local Authority Coordinators of Regulatory Services (LACORS) suggests that this is 'neither pragmatic nor realistic' and buskers should be treated on a case by case basis. We therefore don't have one rule for all buskers, but instead would look at whether or not individuals cause genuine noise nuisance before we took any action.'

In other words, yes, busking is covered by the Licensing Act, but we will only take action under that Act if there are noise complaints. Encouraging, except... if noise is a problem why use licensing to deal with it? What about noise regulation under the Environmental Protection Act?

A council spokesperson said:

'I have spoken to Environmental Protection, who say there is little scope for action from this point of view. This is because primarily, the term 'statutory nuisance' deals with noise from premises. Theoretically, there is scope if a busker is deemed to be busking from a vehicle, or using equipment or machinery, but this is unlikely. Also, the Control of Pollution 1974 could be used if the busker was using a loudspeaker in the street, but again this is unlikely.'

Is this correct? According to experts in noise legislation, the answer is 'no':

1. Noise abatement notices issued under s.80 of the Environmental Protection Act 1990 (as amended by the 1993 Noise and Statutory Nuisance Act) are not confined to noise from premises. Section 79(1)(ga) explicitly states that 'statutory nuisances' can include noise from 'equipment in a street'.
2. Section 79(7) provides that '"equipment" includes a musical instrument'.
3. Recent case law showed that noise abatement notices can be used to prosecute noisy buskers: Westminster City Council v Prian Bruno McDonald, 28 October 2002, Neutral Citation Number: [2003] EWHC 2698 (Admin).

Why should councils or indeed government ministers play down the power to control noise using the EPA? The answer seems to be a fear of increased public demand for noise enforcement and the potential drain on resources.

By coincidence, this week the Department for Environment, Food and Rural Affairs (DEFRA) issued a press release entitled 'New powers to curb noise in late-night pubs and clubs': http://www.defra.gov.uk/news/2006/060628d.htm

The new powers will only apply to licensed premises betweeen 11pm and 7am. They are due to come into force in October, and have been created specifically to address the potential for late night noise nuisance resulting from longer pub and club opening hours. One important implication of the announcement is that between 7am and 11pm existing noise legislation has been deemed adequate to address noise nuisance, irrespective of licensing.

This reinforces the case for the deregulation of the licensing of live music under the Licensing Act 2003.