Birmingham City Council have introduced a PSPO in parts of the city centre which will prevent street entertainers and street preachers from using amplification equipment and musical instruments.[1] I thought it would be helpful to give some of the legal background.
PSPOs were introduced through the Anti Social Behaviour Act 2014, section 59[2] The Act gives local authorities power to impose them where “ satisfied on reasonable grounds that two conditions are met.”[3] That’s where there are “activities carried on in a public place within the authority’s area have had a detrimental effect on the quality of life of those in the locality,” or “it is likely that activities will be carried on in a public place within that area and that they will have such an effect.” [4] Activities have to be “of a persistent or continuing nature”[5]
Because this gives administrative powers to the Local Authority, this means the LA must comply with certain requirements otherwise they can be considered to have acted “ultra vires” or outside their powers. These requirements include that due process has been followed including appropriate consultation, that measures are reasonable and proportionate and that they comply with Human Rights and equality legislation so that there has been an assessment of their impact on whether people are being treated equally, especially in regards to protected characteristics such as religion.
In terms of consultation, the LA carried out a consultation process in line with the legislation although how effective this was may be up for dispute.
In terms of equality, the LA need to demonstrate that the order does not impact on specific religions. Although the order applies to all religions and to those of non as it applies to buskers too, one consideration is as to whether there is evidence that they are not being equally applied but also an order may apply across different groups of people but carry an additional burden if it conflicts with specific beliefs. For example, if it particularly limits the ability of Christians to fulfil the Great Commission.
The Council are likely to argue that it does not infringe on equality. However, one concern I would have is that the wording of the PSPO does create potential loopholes leading to uneven enforcement and potential dispute. Specifically, the order states that “a person is prohibited at all times” from the relevant activities. This might suggest that all amplification and use of instruments is forbidden. However, the order states:
“These activities include but not limited to… noise associated with busking, street entertaining, street preaching and public speaking.”
This opens up the question as to whether all amplification and use of instruments is covered beyond named exceptions. Some religious groups for example operate book tables with amplified recordings played from their stalls. They may potentially argue that they do not engage in street preaching or public speaking. A person might also simply sit on a bench and begin to play worship songs on a guitar, again they might argue that they are neither busking nor preaching. The matter hinges on the meaning of “include but not limited to”. This introduces an element of discretion into enforcement which is an unwise move when dealing with strict liability issues.
In terms of proportionality, the question is as to whether or not the measures are necessary and whether the impact of them on the wider community has been balanced against the impact of the nuisance caused. I believe that it is here that street preachers and buskers in Birmingham have a strong case.
The Council has other powers to deal with noise nuisance and then the police have further powers where that noise nuisance amounts to a breach of the peace. What this means is that it is possible for the council to target those who are persistently, deliberately, recklessly or negligently creating a nuisance. They do not need to impose blanket measures against all those who have been lawfully going about their business and exercising their rights in the City.
Consider it this way. If you have a neighbour who keeps you awake at night with loud music, you might expect the local authority and if necessary, the police to act to prevent them from continuing to do so. What you would not expect is for an order to be imposed on your whole street preventing the playing of music at any time.
It is therefore my belief that there is a strong case for opposing this specific Public Space Protection Order.
[1] You can download the relevant PSPO here City Centre – Noise | Birmingham City Council
[2] Anti-social Behaviour, Crime and Policing Act 2014
[3] S59(1)
[4] S59(2I).
[5] S59)3).
Faithroots 