The Live Music Forum

Hamish Birchall Bulletin


Saturday 21st June 2008 - Busking in Haltemprice and Howden

If Nigel Kennedy is to busk in support of former Home Secretary David Davis' opposition to 42 days detention without trial, how might this be received by East Riding council, responsible for licensing in Mr Davis's constituency of Haltemprice and Howden?

Under the Licensing Act 2003 most public performances are illegal unless licensed.  Many local authorities regard busking as licensable, if pre-planned and advertised.  The risk of a criminal prosecution merely for singing or playing a musical instrument in public fits well with Mr Davis' concern about the erosion of basic freedoms.

East Riding council confirmed that they had not licensed any public places for live music. Do they regard street performances as licensable?  A spokesperson said:

'In most cases "yes", but busking, in the sense the word is normally used, will not be licensable. This is because busking is usually ‘incidental' to other activities, such as shopping, or the premises where the music is played will not have been provided for busking to take place....'

So far so good, but...

'... There may however be instances that fall outside of this and if the busking is not incidental and is organised with seats, advertised in advance with an expectation of payment then it may be regarded as public entertainment and require a premises licence to perform.  Each case will be considered individually.'

That's reasonably unclear then. What about busking without 'expectation of payment' in part of a pub with no seats?

'In some circumstances music in pubs may be regarded as incidental to other activities for example background music or even a pianist in the corner of a restaurant whist the diners are enjoying the music (background).  But again this has to be considered on a case by case basis.  There would be a presumption in the scenario put forward that the live music would not be incidental.'

... which seems rather ungenerous when you consider most pubs were granted automatic permission to have recorded music, which also allows DJs, and of course big screen broadcast entertainment is exempt.

The council went on to quote at length from the current Licensing Guidance on what may or may not incidental - a section already criticised by an influential Parliamentary Committee for failing to clarify the law:  

'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.'

[Merits of Statutory Instruments Committee, 27th Report of Session 2006-7, p9, point 27] See:

Hamish Birchall