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A licence to busk

music iStock 000006928800XSmall 146x219Camden Council has successfully fended off a High Court challenge to its proposed licensing scheme for busking in the borough. Clive Sheldon QC explains the ruling.

The London Local Authorities Act 2000 (“the 2000 Act”) empowers London local authorities to licence street entertainment (“busking”) in their area. The London Borough of Camden recently approved a scheme that would require many street entertainers to apply for a licence if they wished to perform in the area of the Borough of Camden. Entertaining in the street without a licence when one was required would constitute a criminal offence.

This scheme was challenged by an advocacy organisation, Keep Streets Live Campaign. This week, Mrs Justice Patterson has handed down judgment in Keep Streets Live Campaign Ltd v London Borough of Camden [2014] EWHC 607, upholding Camden’s scheme.

The claimant had contended that Camden’s scheme was insufficiently certain; that street entertainers would not know whether a licence was required. Mrs. Justice Patterson disagreed. She held that the common law and Convention requirement was not one of ‘absolute certainty’, and there was sufficient clarity in the scheme’s wording for a concerned person, with advice if necessary, to know whether a licence was required.

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The judge also observed that although the council’s scheme requires a street entertainer who sings to obtain a licence, this did not apply to someone who happened to sing to a friend as they were wandering down a Camden street.

The claimant argued that the statutory preconditions for making a scheme had not been made out. This was rejected by the Court. Mrs Justice Patterson expressed support for the local authority’s contention that the statutory framework permitted a London borough to introduce a scheme for its entire administrative area without the requirement to satisfy any statutory preconditions: its process and scheme only needed to be public law compliant and satisfy Article 10 of the European Convention on Human Rights (freedom of expression).

Even if the claimant was correct, however, and the 2000 Act required the council to have reason to believe that there has been, is being or is likely to be caused throughout the borough, as a result of busking (a) undue interference with or inconvenience to or risk to safety of persons using a street . . ; or (b) nuisance to the occupiers of property’, this was made out. There was before the council evidence of nuisance / inconvenience or the likelihood of nuisance / inconvenience throughout the borough. The council was entitled to reach this conclusion on the basis of the many complaints that had been made to it about nuisance, from the concerns expressed by local police officers about the problems associated with busking, as well as from the responses to a consultation on the proposed scheme. One vivid description was the following consultation response:

The noise is intolerable and [it is] impossible to carry on normal conversation in our flat now. Do not allow any more source of noise.”

The claimant also contended that the licensing scheme amounted to a breach of Article 10 of Convention. This was rejected by the Court. Mrs Justice Patterson held that busking "is not the most important right of free expression in a democratic society. It is not akin to political speech." Although Article 10 was engaged, "it operates at a low level". The scheme did not stop people busking in Camden, and limiting busking to prevent obstructions of the highway or the creation of nuisance was "an acceptable interference with Article 10 rights". In applying the proportionality analysis, the Court held that there was a “pressing social need” to regulate busking (nuisance/obstruction), and existing powers available to the Council (e.g. enforcement under the Environmental Protection Act 1990) were not equivalent to the powers under the 2000 Act for dealing with buskers in a comprehensive way.

Mrs Justice Patterson concluded that the London Borough of Camden: 

has adopted a policy which, in my judgement, is both necessary and a proportionate response to the issue of busking. It has striven to introduce a policy which holds the ring between promoting economic growth through fostering dynamic busking activity across the Borough but balancing that with the requirements of its residents and other economic activity which contributes to the well being of Camden.”

The council now intends to bring the licensing scheme into force.

Clive Sheldon QC is a barrister at 11KBW. He represented the London Borough of Camden (instructed by Sandra Ballentine, LB Camden Legal Services).

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