Examination of Witnesses (Questions 1-19)
TUESDAY 16 OCTOBER 2001
DR KIM
HOWELLS, MR
ANDREW CUNNINGHAM
AND MR
LUCAN HERBERG
Chairman
1. Good morning, Minister. May I welcome you
to our Committee. If, for the sake of the record, you could introduce
your team, and then I know you want to make a few brief opening
comments before we go to questions.
(Dr Howells) Thank you very much, Chairman. On my
left is Lucan Herberg from DCMS, and Andrew Cunningham, also from
DCMS, formerly a Home Office official until this responsibility
came over to DCMS after the General Election. I would like to
say, first of all, I am very grateful to the Committee for this
opportunity to explore with you ways of ensuring that the Special
Occasions Order can be put in place in time for this New Year's
Eve. As I hope very much my official's letter to your Clerk explained,
I am still very confident we can find a way to deliver the Order
in time. With your permission, Chairman, I would like to open
by making a few key points of particular importance to me and
to our Department. I very much want the Order to be made for New
Year's Eve, and I believe it can be made lawfully within the time
remaining. I am confident that most of our constituents (mine
and yours) want to be free to choose how and where they enjoy
New Year's Eve. I believe that the existing law denies them real
freedom of choice on such occasions, as well as stopping an important
industry from meeting its customers' demands. Relieving a burden
on the industry and increasing consumer choice does not have to
be achieved at the expense of local people living near pubs and
clubs—far from it. The draft Order contains specific safeguards
which achieve a very sensible balance. It offers local residents
and local authorities the possibility of influencing the licensing
hours of specific venues in a way that is not normally available
to them on normal New Years' Eves. In other words, this draft
Order is good for everyone; and that is why well over 80 per cent
of those responding to the consultation are in favour of it. When
reading our explanatory statement I hope very much the Committee
noted the positive support offered for our proposal from the vast
majority of police forces, magistrates, local authorities and
industry representatives—including those representing small
businesses—in response to the consultation. I know there
have been difficulties in interpreting the legal issues with regard
to the so-called two-year rule. I believe that a solution acceptable
to the committees of each House is available. Following discussions
between your and my legal advisers, we have been to Treasury Counsel
and his advice does seem to offer a way through the legal maze.
We have the advice with us today, and I hope very much we can
pass it on to your legal advisers so you may consider it as a
Committee. In addition (and this is a very serious addition) recent
events, first the blight of foot and mouth and then the terrible
events of 11 September, have had a very serious impact (if not
the most serious impact ever) on the well being of the hospitality,
leisure and tourism industries. I am very keen to offer them a
boost. They are enormously important industries, as the Committee
knows. £64 billion a year turnover in this country, and at
least 1.3 million people in employment in those industries. The
Order can still reduce the legal costs of the industry of applying
for special orders of exemption for New Year's Eve. We originally
estimated this saving at around £9 million. We have explained
in our memorandum how we arrived at that. I certainly do not disagree
with the Committee's view that the timing of the Order is central
to realising that tall saving, but large savings could still be
made. Obviously, if licensees start seeking special orders of
exemption anyway, because they are worried that an Order will
not be made in time, then some of those savings will be lost.
I am confident that an Order can be made in good time, and with
the effect we intended. I should say, Chairman, that the industry
is telling me they have interpreted the Committee's press notice
in July as saying that an Order cannot be made in time. As a result,
they may apply for individual special orders of exemption anyway.
I think that is probably a misunderstanding. My own reading of
the press notice is not like that, and I think there is still
plenty of time for us, together, to reassure the industry that
an Order can be made and, I would like to say, that it is very
likely to be made. I would be very interested to hear the
Committee's views on this. I think the sooner we can give that
reassurance, Chairman, the bigger the savings of wasted fees would
be for the industry. If we do not make the Order nobody wins.
The usual exaggerated differences between licensing hours in adjoining
licensing districts will arise. This causes real problems, where
people start moving significant distances to seek out licensing
districts with more generous hours. There will be more late night
drinking out on the streets as pubs close as a result. It is also
vital that we conduct the trial of extended licensing hours, which
is wanted by the police and magistrates. If the outcome of our
review is positive, we can press on with permanent change for
each subsequent New Year's Eve. Permanent change could be a very
long way off if we cannot find a way forward with you today. Finally,
I am sorry if the Department in the past has got off on the wrong
foot with a new Committee. You yourselves have commented on the
timing of this Order. Licensing Orders geared to special one-off
events inevitably bring with them tight deadlines. The Special
Occasions Order had to be laid before the Committee, before you
were ready, because of those time constraints. Our colleagues
in the Cabinet Office attempted to smooth the way in the special
circumstances, but clearly you were not terribly impressed by
that. I hope we can put that behind us and try and work together,
in the interests of the general public to make this Order in time,
and give everyone a chance to experience a thoroughly good New
Year's Eve. Thank you very much, Chairman.
2. Thank you. Can I just make it absolutely
clear, as far as the press notices are concerned, it was quite
deliberately worded that the Government had to persuade us that
the necessary protection can be maintained. You will recognise
that one of the duties of this Committee, as when we judge any
Order, is the question of necessary protection. Later on in this
morning's session there will be a number of questions on the issue
of necessary protection. To start with, I want to tie together
the three important items of timing before my other colleagues
on the Committee come in. Why was the proposal brought forward
so late? Could it not have been brought forward before? Does your
Department fully understand the timetable we have to work to,
as laid down by the Act? Even if we took a decision right at the
start, the timetable still has to go forward; we cannot accelerate
it or cut out procedures. Indeed, as you will appreciate, recognising
your wish, we have called this evidence session effectively on
the second day back—the first full working day of the parliamentary
session after the Summer Recess—and our timetable is a problem
to us. Recognising that there were difficulties last year and
that this Committee (and I personally as Chair of the Committee)
did point out to the Home Office and did ask one or two questions
over a year ago, because I did indicate there were problems on
timing, we did try to give warnings. It is not a question of this
Committee being difficult, but we can only work within the procedures
and the timetables laid down by the Act and the amended Act we
are now working under.
(Dr Howells) Chairman, we appreciate very much the
early Committee session. The DCMS understands very well the constraints
and the difficulties you face as result of that very tight timetable.
If I can offer some sort of explanation of the lateness or the
delay in the whole business. I think we have to go back to, I
guess, 26 October 2000, when it was then an issue for the Home
Office—when any possibility of relaxing hours for New Year
2000 ended and there was a necessity to consult with other Departments
regarding the year 2001, and the Golden Jubilee of course. The
timing of the General Election was also particularly crucial,
as was the decision to have a longer Summer Recess this year than
last. As most of the timing factors arose while we were not responsible
for the draft Order, clearly some of the questions you have just
asked me can only be answered by Home Office officials and former
Home Office ministers; but I will try to answer some of the ones
you have put forward.
Brian White
3. It is the same civil servants.
(Dr Howells) We will come to that. You can talk with
them in a moment! I want to say this: we think, however, that
if the Order is made by 11 December—which I think the Committee
agrees is feasible, or if the Committee agrees is feasible—we
consider that applicants will then have sufficient time to make
applications, and the courts will have more than enough time to
consider the small number of applications involved. We estimate
an absolute maximum (a worst case scenario) of 700 Orders nationally,
which is less than two per court area. Between 17-28 December
there are nearly 3,000 court days (that is 370 x 8) on which 700
applications could be considered. We certainly think there is
time to do it. The stage one scrutiny by committee ends on 14
November, and we can lay the stage two Order on 15 November. Stage
2 scrutiny of 15 sitting days ends on 5 December, and we could
save time if it happens more quickly than that. We can arrange
votes in the Lords and Commons to approve the Order on 6 December,
and the Order comes into force the day after its approval in both
Houses, which is 7 December. This will allow the courts 11 sitting
dates between 12-28 December to consider restriction order applications.
It is possible but, I absolutely agree with you, it is very, very
tight.
Chairman: We basically understand the timetable.
Brian Cotter
4. I am very glad to hear the Minister say how
important this is, considering the many problems the industry
has had with regard to foot and mouth. I do not know to whom I
should direct this comment but, in view of the importance for
the hospitality industry, one wonders if we, as a Committee, could
not perhaps have sat during this very long recess, which we all
have enjoyed. It is a very important matter as far as the hospitality
industry is concerned, so it is welcome that there is great concern
about this. I am sure as a Committee we would like to see this
go forward, but there is also concern that this trial does go
through satisfactorily. The very tight timetable that is left
there could leave it open to be suggested that the trial was not
very satisfactory and, therefore, not very helpful for future
occasions.
(Dr Howells) We have certainly not received any indication
from ACPO or any of the police representatives, nor indeed from
most of the local authorities, that they are particularly concerned
about that. They think if the Order does come through there is
time to monitor it properly and we certainly want to do that.
We want to accommodate ACPO and others in the way in which we
monitor the events of New Year's Eve properly and throughly, so
we can then go forward to making this a permanent arrangement.
Chairman: If I could say on the question of
timing—even if we had met during the Recess of course the
timetable on the sitting days would not have been affected, other
than the three special days when Parliament was called. Our timetable
would not materially have been affected. I know that Mr Cunningham's
reply to the enquiries is dated 27 September and is a very detailed
response, and I know we did raise a number of detailed points.
I think, Minister, you and I, and indeed the Committee, want to
go forward in a positive way. Regarding the main point I am making
on the timetable, I am sure your Department will be coming back
to us with other issues. All I want to be absolutely certain of
is that you do understand the timetable and what it means to the
way we work. I do not want to waste any more time because we are
tied down to an hour.
Mr Brown
5. To what extent do you believe that going
ahead with the proposal would provide an adequate test of the
arrangements, given the lateness at which this Order would come
into force? In particular, with regard to the figures you will
draw from the number of restriction orders that will be applied
for (which you believe to be essential information) do you believe
that those figures will be useful in drawing up future proposals?
Do you see that as being an honest and reflective perception of
what is really required out there?
(Dr Howells) I think it is a very important question
because last time this was attempted was for the Millennium New
Year. I know the police were looking very carefully at trying
to learn lessons from the Millennium experience. The Home Office,
which then had responsibility for this, assumed that there would
be very large numbers of applications to restrict extensions;
in fact there were very few applications—very few when one
thinks of the potential numbers that could have come forward.
We have made an assumption that there will be many, many applications
for restriction orders. However, instinct tells me that there
are probably going to be no more than there were for the Millennium
Eve. Maybe there will be some more—it is very difficult
to say. I guess that as MPs we are as sharp as anybody else in
trying to detect what our constituents and other people think
about the possibility of extensions being granted for New Year's
Eve; because, of course, we are the first people to get the complaints
when they happen. I can think in my own constituency of probably
two cases where there are sensitive areas which contain licensed
premises; but I have certainly not heard of anybody coming back
to me since my appointment, for example, (and this has had a good
deal of publicity), to say, "Now you make sure there are
no extensions on New Year's Eve for such and such premises".
As to the way in which the authorities will monitor it, we have
been working very closely with them to make sure we have good
data on all of this and that it is properly monitored. I think
the Home Office in the past have laid down pretty good and pretty
useful guidelines for monitoring this kind of activity, and I
have every confidence that the information which will come out
will be of great use to them. I quite agree with you that it is
very, very close in terms of the timetable. We are confident there
is time to arrange these things, and apparently the authorities
are too.
Dr Naysmith
6. One of the things that is rather puzzling
about this application is that the proposal contains provision
to make an appeal against the restriction by the magistrates to
the Crown Court. The timescale is so compressed that that is really
just an impossible hope. In the letter that went back and forth
between our Clerk and your Department, your Department admits
that the timescale is so short it is unrealistic. It raises the
question: why are you including this proposal in what we are considering
today? I know you have said you will withdraw it, but it suggests
that the timescale was not properly thought through to start with.
(Dr Howells) It certainly was a very tight timescale
and I am not going to pretend it was not. I would like to ask
Andrew Cunningham to deal with the technical side of that question.
(Mr Cunningham) Essentially we initially thought that
there was value in an appeal, even if it could not affect whether
a set of premises opened on New Year's Eve, because issues do
arise—restriction orders do exist other than for New Years'
Eves; they exist as part of the Act generally and, therefore,
issues of principle could come up that people might want to take
to the courts to appeal and deal with because it has a wider effect
than just New Year's Eve and the position taken by magistrates
on a particular issue. There have been cases in the past where
issues about policies on dealing with bulk applications have actually
had to be resolved in the higher courts. On looking at points
raised by the Committee, what we agreed was we accepted the argument
that was put to us: that there was not sufficient value in the
appeal to include it as part of the package and, therefore, we
came to the conclusion we should withdraw it. We always knew that
the appeal was going to be of very little value to individual
licensees, for example—or, indeed, anybody else we might
have offered that appeal to if we had broadened it out. It originally
was only for licensees. The timescale generally was always going
to be extremely difficult.
7. Are you suggesting this is only for this
coming New Year's Eve? It might have been broadened out but it
is not going to be?
(Mr Cunningham) Yes.
8. Are you suggesting there might still be value
in having it in to decide matters of principle? Is that why it
is in there?
(Mr Cunningham) We have discussed this again with
our legal advisers; we looked at points made by your Clerk backed
by your legal advisers; and we have come to the conclusion there
is not sufficient value in it to be worth including.
(Dr Howells) To reassure the Committee—when
we have talked to industry about this they have basically said,
"Give us this relaxation. We can live with the fact we don't
have an appeals procedure". Effectively, the magistrates'
ruling is final at the moment.
9. Going back to one of the earlier questions,
this is obviously going to be of importance if it is going to
be a test case for further changes. A sufficiently robust appeal
procedure would be necessary to test the whole procedure, would
it not?
(Mr Cunningham) Certainly in terms of the way we planned
to look at the impact of the Order, the key areas we considered
would be the position taken by the three groups (the local authorities,
the police and the magistrates); the key issue for us in reflecting
on the impact of the Order during a New Year's Eve would be what
actually happened in licensed premises, on the streets, in and
around the general event and, therefore, the impact on the community.
I do not think our review would turn precisely on issues of law
as to the precise nature of the decisions taken. In reflecting
on whether restriction orders have worked as an effective measure,
we will be looking at the view taken by the people who apply,
who are either going to be successful or not in applying for restrictions,
and whether they feel they got a reasonable hearing and they got
a reasonable chance to influence what actually happened. A key
part, finally, would be a subsequent consultation. We will do
a review with the main organisations and the main groups, but
when we do a further consultation on a permanent change on future
New Years' Eves, we would then be getting views back from the
public and a lot more local residents' organisations saying how
they feel it worked. We would then reflect on that before presenting
draft Orders.
Paul Goodman
10. In the letter of 27 September in paragraph
20 there appears the following sentence: "Although it may
not have been the Committee's intention [Minister, you referred
to this earlier], we understand that many in the trade and the
trade press took the letter to be a clear indication that a regulatory
reform order could not be made in time for New Year's Eve 2001".
We were just wondering whether the Government was attempting in
any way to blame the Committee for the loss of the £9 million
saving, which you estimated would accrue from the introduction
of the Order? I ask this particularly in light of the further
point in paragraph 20: "It appears likely that a high percentage
of premises will apply for special orders of exemption as soon
as possible as a precautionary measure", a point that the
Committee took note of in July.
(Dr Howells) God forbid that we would ever blame this
Committee for anything! I think I tried to explain in my opening
statement that there was some ambiguity there which was seized
upon (and I do not want to refer to them) by some of the people
in this room today, not necessarily members of the Committee,
who watch this stuff very, very carefully. I think they were very
worried about it; there is no question about that. An extension
of hours, such as we are proposing, means a good deal of investment,
for example, in making sure that the staff are in place for a
New Year's Eve. As I have indicated, it is a very big employer
as an industry and so on. When it seemed as if we were going to
have difficulties with this for whatever reason—whether
it was late timing, the way they had been handled previously or
the attitude of the Committee—whatever the reasons were,
were judged to be the most important ones and most significant
ones. I assume that a lot of licensees would have said, "Look,
let's not take any risks. Let's go for those extensions now",
and the applications went in. In a sense, what that does for us
is, it reduces that £9 million savings total that we wanted
the industry to have. That is a shame, but I suspect it has probably
already happened. It is very difficult to say how many of them
have done it. We are certainly trying to find out. I think Mr
Goodman is right—it will be a significant number and the
savings will not be as high as they were when we initially assessed
them.
11. You do not want to make any estimate of
what that number might be?
(Dr Howells) No, I do not know. I have no idea. I
have tried to do a straw poll in my own constituency—some
applications have been made and others have not.
12. Is it right in principle for the Government
to rely on assumptions about decisions which Parliament has yet
to make when advising the trade on arrangements for opening hours?
(Dr Howells) No, it is not right. That has been the
weakness of this decision, as the Chairman explained to us in
his introduction—there is no question about it. We would
like regulation to be much easier to understand and much more
predictable. It has been one of the problems; and, of course,
was one of the reasons this Committee was set up in the first
place, to try to cut through that ambiguity and uncertainly and
give industry a much better idea of what Government requires of
it. That is why I am very much in favour of deregulation and better
regulation.
Brian White
13. Most of the discussions about this have
not been about the principle, which most people would accept,
but about the practicalities, and the Minister has already talked
about some. Given it is about the practicalities on the ground,
how many of the people actually putting this policy together in
your office have had practical experience in a local authority
actually on the ground in dealing with this, or in a magistrates'
court or police force?
(Mr Cunningham) None. We work with the police; we
take advice from ACPO; I take advice from the Magistrates' Association
Licensing Committee. I work with the LGA on a very regular basis,
because we are working with them continually on licensing. I take
their advice and then that is included in the advice I provide
to the Minister.
14. The Minister said earlier on you were expecting
about 700 restriction orders as a maximum, of that sort of order?
(Mr Cunningham) Yes.
15. The assumption is that that will be spread
evenly throughout the country. God forbid that I should be a defender
of Kensington and Chelsea, but if you look at the Millennium year
there was actually a skewing to some authorities. Have you done
any analysis of that?
(Mr Cunningham) There is no question that there will
be larger numbers in city areas. London, in particular, will be
highly congested. There are licensing statistics available at
the Home Office which show the density of licensed premises across
the country. The highest density is actually in Wales, Cornwall,
the South-West, then followed by London. Obviously cities take
the greatest burden, but I would also say the licensing committees
and benches in cities are substantially larger. When we said it
would be about 4,000 sitting days for 700 applications, that is
not taking account of individual courts. I have no reason to suppose,
in talking to the Magistrates' Committee, that they did not feel
they could cope with what we are talking about now—dealing
with applications within the period concerned. I think, if anything,
the issue is more a question of preparation of the case, rather
than whether the courts could deal with it. In that respect, I
think the reports produced in November by the two committees become
particularly crucial; because if it looks more possible that an
Order will be made and approved by Parliament, then we could certainly
give greater publicity to the need for people to start thinking
about whether they want restriction orders so they would be ready
to make their applications. The police would do that anyway because
they go through a natural process in preparing for New Year's
Eve, but not necessarily authorities.
16. If this Order goes through on 4 December
and you have got less than three weeks until Christmas until 20th
to actually put these restriction orders in, in a number of courts
and in some places much more than others, is it not the situation
that you will be putting a lot of burden on people who are already
busy doing other things so, as the Justices' Clerk said, it would
be better to delay this legislation than include a power of restriction
which would in effect be meaningless?
(Mr Cunningham) I am sorry, I want to make sure I
understand that?
17. There have been suggestions that this should
be delayed by the Justices' Clerks' Society. My question to you
is: given the practicalities, you are talking effectively of three
weeks; have you considered that delaying it would actually allow
you to resolve some of the problems? As some are already going
through existing procedures for this year, we could get this right
for subsequent years.
(Mr Cunningham) We have considered whether we should
delay and whether we should not have any relaxation during New
Year 2001. I hope that the memorandum we have produced and points
the Minister made today explained why we wish to continue, despite
recognising some of the difficulties involved. We consider that
it is important we attempt to put this Order in place because
of the benefits not only to industry but actually to ordinary
people who want to take advantage of the environment which will
be created by putting that Order in place. There is no doubt that
if delayed and we went to next year then we would have our trial
next year, that we could attempt to time it so that we could allow
a much longer intro so that people could apply for restriction
orders at a more leisurely pace. We think the benefits of doing
it this year outweigh the gains we would make in doing it.
18. You are saying this is much better than
what we have got?
(Mr Cunningham) Yes.
Andy King
19. Minister, I am very concerned that we seemed
to be concentrating on just a small aspect of the relevant sectors.
We have talked a lot about the industry, we have talked about
the magistrates' court almost like, "Yes, this is a process.
We can do the bureaucratic bit on time". It does not sound
to me as if any real consideration has been given to the many
communities up and down the country who are going to be affected
by this. I think this Committee has got it right by saying that
people want some certainty; they do not want botched, rushed jobs;
they want to have confidence that what is being done is being
done absolutely properly, and that the protection will be there
for all parties—the publican and the staff. The staff are
not going to be happy if they have already made arrangements to
be away and then the next thing is they are being told by their
boss is, "By the way, we've decided we're going to take advantage
of this opportunity which is coming up in a couple of weeks' time".
I think there are a lot of different individuals and groups who
are going to be concerned about this. We want to see it done absolutely
right and want to give some certainty to the communities affected,
employees affected and landlords affected. We think it is good
that we actually get it right long-term, not piecemeal and not
a rushed job.
(Dr Howells) Mr King, if I may, I do not think this
is a rushed job. I think the timetable is tight but we have thought
long and hard about this, as the entire industry has and as all
of those involved in the consultation have for very many years.
This is not something which suddenly appeared with a new government
in June 2001, this is something on which we have consulted a great
deal and that certainly the industry has aspired to for a very
long time, and it does not stand alone. Remember, we have got
the Criminal Justice and Police Act which this Government has
also brought in in 2001 which gives the police very, very tough
powers to close down rowdy pubs, for example, in a way which they
were not able to do previously. I think the safeguards, as far
as public order is concerned, are much stronger now than they
have ever been and that they will be applied on New Year's Eve
2001 in the same way as they would be applied at any time of the
year. Secondly, I am very sensitive to the needs of the employees
in this industry. The best establishments treat their employees
very, very well, and there are good career structures for them.
This is an industry which has suffered in the past from a bad
image as far as employment is concerned, and one of the things
we have got to do, it seems to me, as a country is wake up to
the fact that being a member of bar staff is a very honourable
profession. This is the only country, really, in Europe which
does not regard serving behind a bar or being a waiter or the
manager of a restaurant as being a very honourable job; it is
some quirk in our culture. I am very sensitive to the fact that
people should not be treated in an off-hand way in terms of their
employment. I think that we have to take the example of the best
in this country and say "This is what we aspire to".
I know this is what all responsible representatives of the industry
itself and the trade want and this is what we have to work towards.
Of course, if I may say, we have to come back to an earlier statement
I made, which is that due to the catastrophic effects of foot-and-mouth
disease and, especially in Central London, the events of 11 September
we owe it to the industry, to all those employed in it and all
of the workers and businesses that contribute to that industry,
the breweries, those that supply food and services to these establishments,
to ensure that they are not bound by what I see, anyway, as needless
restrictions on opening hours for a very temporary moment—after
all, for twelve hours during one period of New Year's Eve—in
order that they might make the most of that period for their business.
I have not come across any employees who have complained to us
or anybody else (perhaps they would not) about the fact that they
had already arranged a holiday and this is a terrible noose hanging
over that holiday's head, but I have certainly been approached
by many people who say "Listen, our jobs are in danger if
we do not have a good New Year's Eve". This is always a balancing
act, and I am weighing up in favour of that very large majority
rather than a very small minority that it might be I have not
detected yet.
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