IndyRikki: High Court gives green light to Camden anti-busking law

Published by IndyRikki on 11th March 2014.

See the IndyRikki article here.

If you sing in the street or a park in the London Borough of Taliban, and a passer-by appreciates your voice, the authorities can surgically remove your vocal tract and sell it on the black market. Ok, that may be a marginally excessive interpretation of the law, but it’s not far off!

Camden’s new powers define busking as ‘provision of entertainment in the street’, so if you haven’t applied and paid for a busking licence and you ARE singing, you’re OK as long as it’s awful and no-one is entertained, but the moment a passer-by enjoys it you have actually stepped over the legal threshold and will be committing a criminal offence. If you have an instrument, they CAN seize and sell it if you don’t pay up to £1000 fine. The barrister representing the joyless Labour council agreed in court that this interpretation of the law was accurate. After a legal challenge, this morning’s decision by Judge Mrs. Justice Patterson, means the laws will now be in force throughout the Borough.

Rolled-Up Hearing

The hearing took place at the High Court on the 27th and 28th Feb, and was a ‘rolled-up hearing’ which means the judge decides whether there are grounds for a Judicial Review, and then if so, decides the outcome of that JR at the same time.

The case was brought against Camden Council by professional busker and founder of the Keep Streets Live campaign, Jonny Walker, who, through crowd-funding,  managed to raise much of the money needed to ensure he’d be able to pay agreed ‘protected costs’ in the worst possible outcome of a failed challenge and costs awarded against him.

Leigh Day solicitors hired the services of barrister David Wolfe QC, and Camden turned up in court with their legal team and two barristers, led by Clive Sheldon QC.

I sat in court both days, and heard the legal arguments, which I’ll try to distill down here. At the end of the first day, I was not very optimistic, because the judge, Mrs. Justice Patterson, seemed to be quite combative with David Wolfe, very accommodating with Mr. Sheldon, and was concerned to know how long they’d each need on the second day because she was “mindful that Camden wanted to get on and implement the legislation” and she was hoping to be able to give them a verdict before the weekend!

As it turned out, David Wolfe took his time on the Friday, and also gave her rather a lot to think about, so the hand-down was postponed a further week.

Legal Arguments

Camden’s proposed licensing scheme is based on powers given them under the London Local Authorities Act 2012. This Act allows London authorities to issue penalty notices, create licensing schemes, and gives them other powers to combat identified public nuisance.

Camden Council claim that they have identified busking as causing serious public nuisance in the Borough, and that they have brought in a “light touch” licensing regime which will “encourage” busking in the area while controlling situations that have been identified as causing problems.

Their scheme is Borough-wide, and forces buskers to apply for a license. If the musician intends to use any amplification, they have to jump through all sorts of hoops, pay a higher fee, and wait for weeks. Otherwise, they pay a £19 fee several days in advance, and are still subject to all manner of conditions. Breach of conditions, or busking without a licence, is a criminal offence, with up to £1000 fine, and Camden also have the power to seize musical instruments and/or amplification equipment, and sell it if any fine is unpaid.

The challenge had two main aspects. First, David Wolfe questioned whether Camden had provided enough evidence to trigger the legislation in the first place. Second, he questioned whether the legislation was compatible with human rights convention requirements over freedom of expression.

Camden mainly relied on a log of over a hundred telephone complaints received by the Council, but Mr. Wolfe went through these in detail, questioning whether they showed evidence that busking had been, is being, or is likely to cause ‘undue nuisance’. Camden’s scheme exempts certain groups and activities, including, for instance, morris dancers and Hare Krishna drummers. He pointed out that most entries on the log provided unsatisfactory information to be able to reach any conclusion about ‘undue nuisance’, and that one of the complaints was about morris dancers, and so won’t be resolved, and others spoke of ‘drummers’ which may well have been the exempt Krishnas given the absence of any other info.

He spoke at length about possible absurd scenarios raised by the rules. ‘Busking’ is defined as ‘provision of entertainment in the street’ (not necessarily for gain), so he gave example of someone singing a song on a sunny day on the way to work. If singing to himself, he is free to carry on, but if a fellow pedestrian starts enjoying the song and is entertained by it, then the singer starts to commit a criminal offence, and would have to either stop singing, or ask the other person to go away. A similar scene might be a young lad singing and playing the guitar in Lincoln’s Inn Fields. No problem there, and no licence required. As he’s particularly talented though, he draws a small crowd. He’s now become a criminal! Mr. Wolfe pointed out that under the human rights convention it was imperative for any criminal transgression to be “sufficiently foreseeable” which clearly it was not.

Although, Camden of course said they wouldn’t enforce the law in that situation, and a judge wouldn’t convict even if they did, the obvious response from the challengers is, why make it law then?

In terms of human rights, the argument is whether the restrictions are proportionate, respond to a pressing need, and that no less restrictive means are available to control the problem.

Camden claimed that it’s not over-restrictive because people can still busk in the rest of the country!

Mr. Wolfe referred to case law to show that supervision should be strict over ANY restriction, and that just because SOME singers MAY have caused genuine NUISANCE in a certain AREA at a PARTICULAR TIME, this couldn’t give rise to a restriction on ALL singers throughout the whole Borough at all times.

Camden stuck by their complaints log to show a ‘pressing need’, and they claimed other laws were not adequate to combat problems.

Mr. Wolfe pointed out that “less restrictive means” didn’t necessarily mean other already available law, and that Camden had framed bad legislation which could be rewritten to be far less restrictive. He asked also why the complaint log hadn’t contained an “action taken” column. This might have provided further evidence, but its absence suggested Camden may have actually breached an existing Section 79 requirement to respond to complaints, instead writing new legislation that may have been entirely unnecessary.

The hearing finished at around 3.30 on the Friday, and Mrs. Justice Patterson said she had plenty to ponder, was away the following week, and so would not be able to hand-down her verdict until this week.

This morning, the High court delivered its verdict backing the Council’s new policy. Jonny’s solicitors will lodge an appeal.

Statement by the Keep Streets Live Campaign:

“The generous support of many hundreds of people enabled to bring an historic High court challenge against Camden’s decision to introduce compulsory licenses for any person wishing to sing or play music in a public space within the borough.

We believe that the scheme is too wide in its definition of busking, that it has been introduced in response to inadequate evidence, to apply across the entire geographical area of the borough, and that it is disproportionate for the purposes of the Human Rights Act by interfering with the right to Freedom of Expression in a way which is neither necessary nor proportionate.

In the light of these points, which were convincingly argued in the High Court, we are disappointed that Mrs. Justice Patterson has seemingly taken at face value Camden’s argument that people making music on the streets have a low level of protection under Article 10 of the Human Rights Act, and has ruled that Camden’s sceme is necessary, proportionate and lawful.

We profoundly disagree with her judgement and will now seek to have this case heard by the Court of Appeal and to ask Camden not to enforce their policy unitl the case is heard by a higher court.

Informal and spontaneous performances of music are a vital part of Camden’s rich and diverse cultural heritage and need to be protected. Under Camden’s policy, even singing a protest song without a licence could be a criminal offence. From our perspective this makes the excessive interference with Article 10 rights clear and unambiguous. In a democratic society, singing in the streets should never be a potential criminal offence.

On behalf of the Keep Streets Live campaign I would like to re-iterate our desire to work alongside Camden Council and residents to address their genuine concerns and to develop a collaborative ‘best practice’ guide for busking, if they will withdraw their contentious policy.

In Liverpool, which like Camden, is a city famous for music and grassroots culture, we are working alongside the local council to develop practical guidance for street entertainment that works for all parties.

We invite Camden to learn from this approach and work with us, and not against us.”


Manifesto Club: Camden Council’s War On Buskers

Manifesto Club: Camden Council’s War On Buskers

Published by Freedom Hotline’s Blog on Manifesto Club.

See the Manifesto Club’s article here.

The Campaign group Keep Streets Live is challenging Camden Council’s draconian new busking law in the High Court.

The new law is extraordinarily severe, anathema to this vibrant and chilled part of London with a lively street music scene.

Not only will buskers have to apply in advance and pay for a licence, there are also strict rules and conditions for busking which will make the activity all but impossible.

The very notion of a licence undermines the nature of busking which is – in the words of Keep Streets Live director Jonny Walker – ‘an informal and impromptu form of entertainment’. Buskers move from place to place, playing in up to 40 different cities in a year, and pitches ‘are often fluid and change with the dynamic of the street and the time of day’.

Camden Council has also set precise rules the kinds of licensed busking which will be permitted. There are rules on where buskers may stand (50m away from each other, and leaving 1.8m clearance on the pavement). The council has pretty much banned amplification, even though this is necessary to make many instruments and singing voices audible over background noise. The council has also limited the use of drums and wind or brass instruments, including flutes and recorders, which are too noisy, apparently; entire sections of the musical repertoire are barred at a stroke.

Council wardens will be granted with draconian powers to crack down on unlicensed strummers and singers. Unlicensed buskers could be fined £1000, and council wardens have powers to confiscate instruments in lieu of this fine. Even licensed buskers can be issued with directions to move on or stop playing by council officers.

The council appears to view busking solely as a nuisance and troublesome activity. Indeed, it claims that busking can cause ‘a risk to safety of people using the street, and that increased opportunities have been created for crime to occur, such as pickpocketing’. So banjos are the cause of pickpocketing.

What this law represents is not a real problem in Camden: there are very few public complaints about buskers in the area. Instead, the busking law represents the growing view in councils that all unregulated social life is problematic, messy and latently criminal. Anything informal and spontaneous – whether busking, leafleting, or impromptu games in the park – is increasingly being subject to formal licences and procedures. Public space starts to become official space: you need a licence before you can act.

Keep Streets Live suggests the use of informal codes of busking etiquette, to deal with the disputes that can sometimes arise between the different users of public space. No busker wants to annoy people – after all, it’s bad for business.

Busking can be good or bad, depending on the busker and your taste, but it is inextricably part of public urban life, part of the vibe of the place. Somebody pitching up with their instrument, picking a tune – it’s one of the few ways now that the experience of public space can be unscripted and unexpected, made by a citizen rather than designed by councils or corporates.

In short, busking is one of the few things people still do in public space; it’s one of the few ways that public space is still public. What happens in Camden is therefore important for the rest of the country.

Keep Streets Live managed to turn around attempts to control busking in York and Liverpool. The organisation is running a funding drive to fund the costs of their High Court challenge to the Camden law. Do throw a penny in their hat.

UPDATE: The High Court has rejected the case, ruling that Camden council’s law is ‘necessary and proportionate’. The campaign is now planning to take to the Court of Appeal.

The Economic Voice: London Greens Select Busking Campaigner To Stand at May 2014 Elections

The Economic Voice: London Greens Select Busking Campaigner To Stand at May 2014 Elections

Published by on 21st February 2014.

See The Economic Voice’s article here.

Comedian Ben Van der Velde, a campaigner against Camden Council’s draconian busking policy, has been selected to stand for the Green Party in Camden Town with Primrose Hill ward in May’s local election.

Van der Velde will be challenging three ward councillors (two Labour, one Lib Dem) who all voted to introduce one of the harshest busking policies in modern UK history against Green opposition in November. Under Camden Council’s new scheme unlicensed buskers across the entire borough of Camden face a criminal record, fines of up to £1,000, the seizure of instruments in the streets and the forced sale of musical instruments to pay fines after 28 days.

Camden Council have elected to criminalise busking and turn otherwise law-abiding musicians into pariahs”, said Van der Velde. “It is a sad day when local government manages to legislate against the right to play music in public freely. Let buskers continue to help the public walk down the high street with a little swing in their step and a bop in their legs.”

Explaining his decision to stand as a Green candidate, Van der Velde, said:

The Green Party understands the diverse nature of modern life and the powerful force that diversity can be when correctly channeled. It’s emphasis on a society focused on improved equality and the cultivations of positive health, education and transport services for all, regardless of background, makes it the only true progressive party.”

Green Councillor Maya de Souza welcomed Van der Velde’s decision to stand:

Van der Velde and the Keep Streets Live Campaign to protect street performance is in step with the Green way of thinking which is very strongly supportive of creative and artistic activity and of allowing people as much freedom as possible to develop these aspects of themselves, and indeed to make a livelihood in this way.

Van der Velde’s selection comes ahead of a High Court hearing on February 27 and 28 of a legal challenge brought by the Keep Streets Live Campaign, which is asking a judge to quash the contentious policy.