How PSPOs are a threat to busking

(A guest post by Chester Bingley, head of Keep Streets Live Campaign.)

The rather Orwellian-sounding Public Spaces Protection Order forms part of the 2014 Antisocial Behaviour, Crime and Policing Act. Introduced by Theresa May during her time as Home Secretary, the aim of the Act was to streamline and speed up the process of dealing with antisocial behaviour and, in the words of the White Paper that proposed it “to challenge dangerous and yobbish behaviour of those who make victims’ lives a misery“.

One of the frightening things about the PSPO is that Local Authorities are effectively handed a book of blank cheques to criminalise ANY activity which they consider ‘detrimental’ to the local environment. This can take place either in the form of a complete ban, or by attaching conditions to that activity. Not surprisingly, the range of behaviours that have been deemed as ‘detrimental’ by Councils across the UK is a large one. Certainly begging, rough sleeping and drinking in public are amongst the most ‘popular’ targets, suggesting that many Councils are using this as a way to fast-track their most vulnerable citizens into the criminal justice system, but PSPO’s have also been used to prevent such serious breakdowns of law and order as carrying skateboards, being in possession of less than two poo bags whilst walking a dog, youths standing in a group of more than three, or allowing your sheep graze on Common Land!

It is worth having a look at a map on the Manifesto Club website to get an idea of the extent of the use of these powers across England & Wales, and in addition to consider that there is no definitive list available so this is only based on what has been reported to them. The true situation is considerably worse. As I will elaborate on later, alarmingly the Home Office does not hold information on which Local Authorities operate PSPO’s and what activities have been banned. For that reason we cannot be sure of exactly how many PSPO’s exist with the purpose of regulating busking or other forms of street performance. We suspect there are currently between 20 and 30, and that perhaps another 20 have made proposals or held consultations to discuss the possibility.

So why is this so dangerous for buskers? Effectively the PSPO allows Local Authorities to draft, create, execute and enforce their own criminal law against us. Since the mid 1980’s there has been a general legislative movement in favour of busking, beginning with the Gray vs. Chief Constable of Greater Manchester ruling which established that buskers could not be prosecuted for begging under the 1824 Vagrancy Act. The 2003 Licensing Act then defined busking as an ‘unregulated activity’ thus rendering the idea of a busking permit/license/badge redundant and unlawful, and this was further reiterated by the 2012 Live Music Act orchestrated by Liberal Democrat peer Lord Clement-Jones who has been a great supporter of our work. Clearly the PSPO allows Councils to unilaterally reverse this trend and impose any arbitrary controls they choose.

The result of this is that criminal law is extended into the realm of performance itself, regardless of whether any harm or loss is being caused. Art and creativity are deemed as ‘detrimental’, ‘antisocial’, and in need of control and sanitisation. Spontaneity is frowned upon. Busking becomes something to be tolerated in our streets rather than an integral and organic part of it. The terms and conditions laid out in PSPO’s are often so arbitrary and ill thought-out that a busker could be breaking the law by merely moving a couple of steps which placed them on one street rather than another. In Peterborough quietly playing a classical guitar through small amp is illegal, but a pair of bagpipers accompanied by a drummer would be absolutely fine. Nottingham have banned busking in the streets around the Town Hall on the basis that it causes noise disturbance to the Coroners’ Court, and yet were not willing to make silent acts such as living statues exempt from the ban, nor limit it to Mon-Fri office hours. Oxford’s original proposal even obliged performers to look like they were enjoying themselves and smile!

A number of PSPO’s make it a legal requirement for a busker to move on if asked to do so by ‘any authorised officer’ without need for that officer to provide reasonable justification for their request. And as the busker would be suspected of committing a crime there would be no recourse to withholding details- normally a common and effective line of defence.

Although Home Office guidance to the legislation states that it “should not be used to prevent busking or other forms of street performance unless there is serious and genuine antisocial behaviour”, in practice it seems that the level of scrutiny is non-existent. David Fisher, a busker from the Midlands recently made a Freedom Of Information request on behalf of Keep Streets Live regarding the number of Local Authorities operating PSPO’s affecting busking to receive the worrying reply: “The Home Office does not hold the information which you have requested“. I asked David what he thought about this response and he went on to explain;

“If you want to appeal against a PSPO, you have 6 weeks from when it is introduced. This means a council can introduce one without a proper consultation and against Home Office guidelines and if this goes unnoticed for six weeks, it stays. This is not how the law should work. The admittance by the Home Office that they have no idea of what is being done by councils under their own law is not one that should be taken lightly, and makes a complete mockery of their own guidelines.“.

On the ground this legislation fundamentally changes the relationship of any interaction between the busker and enforcement officer, PCSO or Police Officer from that of a Civil Dispute to a criminal trial, with no lawyer or jury present. The defendant is assumed guilty until proven innocent, and it becomes their responsibility to appeal against the conviction. In practice the cost and stress of pursuing legal action, risking increased penalties if that action fails, and cuts to Legal Aid which mean it is highly unlikely to be available for any challenges to PSPO’s, will force most buskers to accept their convictions. And because each PSPO is to all intents and purposes a separate law, even if any legal challenge to the nature of an Order is successful it would set no national precedent.

This brings us on to the second major legal concern about this entire piece of legislation. Not only do we see Local Authorities able to create their own criminal law, with apparently very little scrutiny, but we see the extension of enforcement powers beyond the Police to ‘any authorised officer’.

As many buskers will concur, it is often not the Police but Police Community Support Officers or Council-employed Town Rangers and such like that take it upon themselves to try and move us on. Increasingly stretched under policies of austerity, the Police generally don’t have the time/resources to deal with such mundane matters as busking when faced with problems of genuine and serious crime. Our towns and cities are patrolled increasingly by a host of different enforcement teams. Not surprisingly their training, knowledge of the law and ability to uphold it is often lacking. Inevitably giving powers of summary justice to such people is a recipe for disaster.

The most frightening thing of all is the proliferation of private security firms which are being utilised by Local Authorities to fulfil this role, often with ‘performance-based’ wage incentives. Performance being judged, conveniently, by the number of Fixed Penalty Notices given out and revenue raised rather than any holistic measure of how the local environment is being improved. Most notorious of these private companies, and well-known to buskers in a number of towns such as Chichester and Uxbridge, is the ominously-named Kingdom Services Group. In 2017-18 the company saw it’s turnover increase to a whopping £103 million, four times as much as it amassed in 2012-13. In fact, Kingdom have made such a bad name for themselves with their underhand and aggressive methods that a number of areas, including Liverpool and North Wales have dispensed with their services after intense public outcry.

Keep Streets Live was involved in campaigning against the the PSPO from the very start. In fact, along with our allies at Buskers Unregulated, we were mobilising some time before the Act was introduced in anticipation of a major attack on the busking community. Our first recorded brush with the new Antisocial Behaviour Legislation was in Chesham in the run-up to Christmas 2014. We developed a statement featured in this video and delivered with aplomb by Tom Allan for use by buskers threatened with the new laws:

“Due to the longstanding tradition of busking in the UK, it would be a misuse of the new Antisocial Behaviour, Crime and Policing Act to prevent busking where there is no obstruction, no statutory noise nuisance, and no harassment, alarm or distress is being caused.”

This statement indirectly went on to form the basis of the Home Office guidance to the legislation regarding street performance, as it was presented to Lord Clement-Jones at the House of Lords by busking campaigners headed by KSL founder-director Jonny Walker. At that same meeting we also put forward a number of questions to be asked in the House regarding the potential for abuse of the new law, and for some assurances that frontline personnel would receive proper training and instruction on its implication.

It has become increasingly apparent that early intervention when PSPO’s are proposed is essential, due to the difficulties in mounting any kind of legal challenge once they are in place. There should be proper consultation involving both the public and members of any communities/groups “directly affected” by the Order, including professional bodies or representatives. In practice public consultations are often rather dubious affairs with questions designed to lead towards a specific desired outcome, and low rates of participation meaning they can easily be dominated by a vociferous minority. For example, a recent questionnaire in Kensington & Chelsea showed “overwhelming” (70%) support for an anti-busking PSPO, but in reality only 0.2% of the borough’s actual population were in favour! “Professional bodies” like ourselves, Equity and the Musicians’ Union have very seldom actually been approached to voice our views on potential Orders. Instead the onus has been on us to chase up and force Councils to the table, relying on occasional tip-offs from local performers and activists, and a lot of online research. Hence, more than half of the existing PSPO’s regarding busking went unchallenged at the time they were implemented.

In fact, as I am writing this, I have just received news of a new PSPO in Bolton being used against buskers. Courtesy of Karl Dilkington;

“tried playing in Bolton today, told I cant play with an amp, PSPO been put in place since april 1st that bans all amps, I went into the council office got told to ring a number… then when someone answers they don’t even know what a PSPO is, I don’t think anyone in that building was familar with PSPO’s… here is a link to the council’s site…/public-spaces-protection-orders…“

A little follow-up work suggests that Bolton have also been taking action against non-amplified buskers, presumably under the guise of ‘begging’ or ‘soliciting money’, although quite possibly no justification whatsoever has been given. It is not unusual for the very existence of a PSPO area to be enough for over-zealous officials to feel entitled to harass absolutely anybody they choose regardless of what the actual restrictions are. And in a show of rank hypocrisy Bolton have installed a system of loudspeakers throughout the town to pipe music onto the streets and act as a deterrent to buskers! Our first step here will be to contact the Council and ask a few searching questions about whether they are aware of Home Office guidance and exactly what their consultation process has been. We have already been in contact with the busker involved, who may be interested in lodging a complaint. Keep Streets Live will also be looking at getting some well-briefed performers onto the streets of Bolton to see what happens when enforcement officers are challenged on the legitimacy of their actions.

In fact challenging officers on the street has proved remarkably productive on a number of occasions. The first ever Keep Streets Live code was established in Accrington in exactly this manner, when Buskers Unregulated stood their ground against an unlawful permit scheme. You can watch the ‘civil dispute’ here. As a result Tom Allan and myself met with the Town Centre Manager and Borough Solicitor a few weeks later and rubber-stamped a policy which was largely based on an early draft of the KSL Liverpool guidance. Much more recently buskers The Moot were confronted in Carlisle in a similar fashion, and their complaint acted as the catalyst to a series of meetings to establish our latest guidance document, which was officially launched in front of ITV cameras as the first major event of Keep Streets Live’s ‘Street Music Month’ on May 9th.

So that these interactions can be successful it is essential that buskers are well-briefed and well-behaved. There is much handy information in the resources section of our website, including the fantastic pocket-sized Buskers Unregulated guide to UK busking and the law. Keep Streets Live has also recently produced a postcard quoting the Home Office guidance regarding busking and antisocial behaviour, which is currently being distributed to performers all over the country for both their own use and also to be passed on to those who intend to misuse the ASB powers.

When we have been lucky enough to become aware of potential PSPO’s at consultation stage, more often than not we have had a degree of success. Some like Newcastle, Bournemouth and Havering (Romford) have been forced to completely shelve their plans, and others like Nottingham to water them down. Birmingham and Chester both engaged with us to the level that not only were PSPO’s ditched but they got on board with the Keep Streets Live approach of managing busking through self-regulation, mutual respect and dialogue rather than illogical rules and coercion. It is this approach which is crucial to the fight against PSPO’s. Clearly we need to have an alternative if we are to be taken seriously.

There does have to be some kind of process to deal with the tiny minority of buskers who do cause a problem, nobody is denying this but PSPO’s are the kind of lazy legislation which flourishes in times of austerity. Too many times I’ve heard the words “It’s easy” to describe a regime that criminalises performers, labels them as detrimental, and affects their ability to make a living. But the truth is that a more positive and flexible environment for buskers takes pressure off Local Authorities and enforcement teams who then are only needed to intervene as a last resort, rather than being dragged away from genuine incidents of antisocial behaviour to deal with those who are simply providing entertainment and ambience to our streets. What may appear to Councils on paper as a cheap and speedy solution to their ‘problem’ often has much more complex implications. As the three year review period for PSPO’s comes around some (such as in Oxford) are already being branded a ‘failure’.

“Introducing the PSPO in the first place was a sledgehammer to crack a nut. My general view is that it does seem [the PSPO has] not been effective. It seems they are difficult and costly to police and there might be better ways of managing anti-social behaviour in the city centre.”-Craig Simmons.

PSPO’s, in the same way as licensing, create blanket restrictions which disproportionately affect those performers who do NOT cause problems, and are effectively a form of collective punishment. There is a huge raft of powers available to control busking if necessary. There was already legislation to deal with antisocial behaviour (causing harassment, alarm and distress). It is a crime to cause a ‘public nuisance’ or the nebulous ‘breach of the peace’. The 1990 Environmental Protection Act allows for the issuing of Noise Abatement Notices, the 1980 Highways Act deals with ‘obstruction of the Public Highway’. The 1974 Control of Pollution Act prevents the use of amplification after 9pm. There are even additional powers under the 2014 Act that could be used against buskers whose behaviour WAS genuinely antisocial; the Community Protection Notice and the Dispersal Order.

It does seem strange that Local Authorities with access to so many tools to deal with a tiny minority of inconsiderate, unreasonable or even antisocial performers feel that they are not in control of a situation, should turn to imposing a PSPO which then inevitably increases their enforcement workload. Instead of dealing with a handful of complaints and responding accordingly to the situation as they find it, Officers are forced to confront every single busker using an amp, performing in a particular area, after a specified time, for a particular duration or whatever arbitrary and pointless restriction is in place.

To a certain degree we hope that we can capitalise on the failure of PSPO’s to deal with the problems they were supposed to, and that we can engage with Councils as they come up for review who may become open to a more positive and logical approach. Canterbury, for example, has been one borough which operates a PSPO but actually has a very good rapport with it’s buskers and ourselves, and by setting up a system of busking reps and demonstrating the strengths of self-regulation Keep Streets Live in Canterbury are making a strong case for the Order to be overturned as unnecessary.

Although my main purpose is to examine the PSPO and our responses to it, we cannot ignore or underestimate the impact and scale of potential misuse of Community Protection Notices and Dispersal Orders. Although subject to the same guidance as the PSPO, they can be used against any activity which an ‘authorised officer’ considers antisocial, and it is clear in practice that buskers may fall foul of this. Unlike the PSPO there needs to be no bylaw defining which behaviours may be considered detrimental so this decision rests solely on the whim of a single officer. Indeed I can cite the example of a prominent busker and KSL founder, Jonathan Walker; threatened with a Dispersal Order in Romford despite the fact that he had not even played a note. When Mr Walker protested that he had not committed a crime, the officer added: “You haven’t got to commit a crime.” The mere presence of a busker who MIGHT act in an antisocial matter was considered enough for the Order to be enacted, which is not only a fundamental abuse of powers but also begs the question of why every single individual on the street wasn’t also forced to leave the area as presumably absolutely anybody in the vicinity had equal potential to indulge in antisocial behaviour. It is also not unknown for the threat of Dispersal Orders or Community Protection warnings to be misused in order to obtain details of buskers who are not otherwise breaking the law, or a declining to co-operate with instructions that have no lawful standing.

For example a Dispersal Order was issued to a bagpiper in Cornwall, recently for refusing to adhere to a ‘code of conduct’ drawn up by a notoriously anti-busking town council and he WAS arrested for refusing to comply. The St. Ives code, drafted by one individual who just happens to have a shop on one of the busiest pedestrian streets of the town, ridiculously requires that buskers move on after 20 minutes and is in direct contradiction to the actual Cornwall busking guidance which is published online by the Local Authority itself. Regarding the misuse of the Dispersal Order the performer’s solicitor writes in his notes:

“…the direction given for you to leave was clearly misused. It is correct that there is a campaign against buskers in St. Ives… There was no evidence at all of anybody being harassed, alarmed or distressed by your busking, a lawful activity that you have carried out for over 30 years. Had you been aggressive surely you would have been arrested for a Public Order offence, and if your behaviour was deemed to be unacceptable, why were you asked by a Police Officer to go to Truro or Penzance instead to perform?”

The piper was released, as it was decided it was ‘not in the public interest to pursue the case’, and he has lodged an official complaint about his treatment. We await the result but it is likely that some kind of compensation will be offered.

From anecdotal evidence it seems that Dispersal Orders and Community Protection warnings are statistically the favoured method of moving buskers on, but these are also the easiest to defend against as it is relatively easy to prove that one’s behaviour was not actually antisocial.

Sooner or later we will be mounting a serious legal challenge to an anti-busking PSPO somewhere in the country, either by accident or by design. The Home Office guidance is the chink in the armour of the PSPO, as according to Rosie Brighouse, lawyer with human rights group Liberty “The Act specifically allows for a defence based on the illegality of the original PSPO“. What is needed is an act of civil disobedience where a busker receives a Fixed penalty Notice and refuses to pay it, opting instead to take the matter to Court on the basis that they consider the PSPO itself to be unlawful. As I mentioned earlier it is highly unlikely that Legal Aid would be forthcoming for such a case, but Crowdfunding has proved a highly effective way of raising money for organisations such as ours in the social media age.

What is certain is that Keep Streets Live sees itself as being in the vanguard of the campaign against PSPO’s, not just prohibiting street performance but also those that attack the most vulnerable in society, freedom of expression and assembly or simply the right to access and enjoy public space. So far we’ve rubbed shoulders and worked closely with a number of diverse groups. In the sphere of arts and entertainment both Equity and the Musicians’ Union have publicly stated their opposition to these laws, and several of their regional organisers have been actively involved in helping to stop the potential criminalisation of their members.

In the wider context PSPO’s are quite simply a mechanism to attack rather than protect our public spaces, and thus are the antithesis of what they purport to be. They actually protect private and corporate interests FROM the public and prevent democratic access to our high streets and town centres. They exclude and demonise the vulnerable and outlaw spontaneity. They divide and isolate communities to produce some kind of sanitised and processed dystopia where individuals are seen only as assets if they conform and consume.

There is no doubt that music, art and performance are profoundly social activities rather than antisocial ones, as indeed are skateboarding, dog walking, playing golf, standing in groups of two or more, or the myriad of other prohibited pursuits, but these are labelled as ‘detrimental’ solely because they threaten this controlled and docile environment which can be so easily plundered for profit. The rise of the Business Improvement District and similar models has created a new level of entitlement in our town centres where money talks and that money expects their own interests to be catered for rather than the interests of the public as a whole. It is interesting to note the almost complete lack of PSPO’s aimed at protecting vulnerable members of society, or targeting ‘detrimental’ behaviour by retail giants in our public spaces. Ironically this relentless pursuit of profit on our high streets is being intensified precisely because traditional business is struggling to come to terms with austerity and reduced spending power on the high street. In fact, by nurturing social and cultural exchanges our town centres are for more likely to be able to compete with the sanitised retail parks that have sucked away so much trade. It is not the fault of the busker, the beggar, the skateboarder or the cyclist that profits on the high street have taken a nose-dive and shops have shut down, but we provide an easy scapegoat. As David Skelton of the Policy Exchange points out, the alternative offer is the way forward:

“… high streets must also become vibrant and welcoming places for people to visit. A modern high street should provide ample facilities for childcare and good social facilities such as restaurants and coffee shops and it must have a sense of a community where people live and interact with each other as well as shop.”

So that is why we need to protect our public spaces from Public Spaces Protection Orders. It is not simply a question of freedom and liberty for the sake of it, or indeed to protect our noble but often misunderstood and occasionally maligned busking tradition, but also the fact that the freedoms we have allow us to contribute something positive and essential to the very fabric of our environment.

“Buskers act as civic lighthouses. We give directions. We break up fights. We call the police when we spot trouble. We talk to the lonely. We create moments of enjoyment between strangers, and contribute to the social and cultural enrichment of shared urban spaces. We are an integral part of the ecology of the street. We care deeply about the wellbeing of the places where we perform.”-Jonny Walker (Founder KSL)

Those who seek to curtail harmless activity and marginalise the vulnerable are in fact inflicting slow and long-term damage on society in general. As buskers we are perfectly-placed, and indeed it is our civic responsibility, to do what we can to prevent that damage from taking place.

This piece by Chester Bingley is republished from the Keep Streets Live Campaign website. See the original post.