"Desirability"
and the adequacy of the proposal as a "trial
run"
33. The fact that many licensees would not wait until
December before making firm plans for New Year's
Eve in turn raised a further question. Where an order imposes
a burden, Section 3(2)(b) of the 2001 Act requires that the extent
to which the order removes or reduces one or more burdens, or
has other beneficial effects for persons affected by the burdens
imposed by the existing law, makes it desirable for the order
to be made. The Department argued in its explanatory statement
that the Order "would
remove the considerable administrative and legal burden involved
in applying for and processing special orders of exemption."[36]
To what extent, though, would the Order actually remove a burden,
if licensees were applying for special orders of exemption anyway;
and to what extent was it therefore desirable (in terms of the
Regulatory Reform Act) that the Order should be made?
34. Additionally, it was not clear to us that relaxation
of licencing hours at New Year this year could, in the circumstances,
serve as an adequate "trial
run"
in advance of future permanent relaxation for New Year's
Eves. It would be difficult, it seemed to us, to draw meaningful
conclusions about the arrangements which were to be put in place
if those arrangements were not to be given sufficient time to
work as intended.
35. We therefore wrote to the Department asking for
further information on both the issue of timing and a number of
other matters related to the proposal.[37]
We also wrote to representatives of the licensed trade; the police;
and representatives of licensing authorities.[38]
Government response to concerns
36. The Department's
response to our concern regarding the timescale was to express
its belief that the police, local authorities and local residents
would still have sufficient time to apply for restriction orders
in respect of licensed premises which might give rise to problems.
This belief was based on three main factors:
- the Government expect a total of no more than
700 applications for restriction orders to be made in respect
of New Year's
Eve this year, representing an average of less than two per licensing
district;
- furthermore, the majority of such applications
are expected to be made by the police, whose licensing officers
"are
generally well aware of which premises in their divisions pose
problems on busy nights";
- there is nothing to prevent applicants preparing
a case for a restriction order ahead of the Order coming into
force.[39]
37. Furthermore, the Department contended, even if
only a very short period is allowed in which to seek a restriction
order, the draft Order provides local residents in particular
with more influence than they have now in respect of such nights.
Under current arrangements, the vast majority of on-licensed premises
and registered members'
clubs are granted special orders of exemption for a normal New
Year's
Eve at the discretion of magistrates, allowing various extensions
of permitted hours up to 12 hours. Only 24 hours notice has to
be given of such an application. The application does not have
to be advertised, though the chief officer of police must be notified.
Only the chief officer of police has a formal right to object,
and there is no requirement on the justices to hold a public hearing.
The 1964 Act provides no entitlement to appeal, either by the
applicant or a third party, against the grant or refusal of a
special order of exemption. Parliament had not, therefore, the
Department argued, given either local authorities or local residents
any locus in the existing procedures; whereas the arrangements
in the proposed Order provide them with a significant opportunity
to restrict the opening hours of premises which may cause them
nuisance.[40]
38. The Department also argued that section 17 of
the Criminal Justice and Police Act 2001, which provides the police
with new powers instantly to close down disorderly or excessively
noisy licensed premises where that is necessary in the interests
of public safety or to prevent further disturbance to the public,
would give local residents additional protection against excessive
disturbance.[41]
39. These arguments were reiterated when the Minster
came before us to give evidence on the proposal. The Minister
also noted that the recall of Parliament during the summer recess
had brought forward the end of the statutory 60-day period for
Parliamentary consideration of the proposal, and therefore extended
the time available for the consideration of restriction order
applications by around a week.[42]
40. Also during oral evidence, one of the Departmental
officials responsible for the proposal responded to concerns regarding
the value of the relaxation as a "trial
run"
in advance of a more permanent relaxation of permitted hours on
all future New Year's
Eves. "In
terms of the way we planned to look at the impact of the Order,"
he said,
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 ... 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.[43]
The Government is confident, therefore, that the
timescale will not prejudice the information which will be gained
from the exercise in advance of consultation on future proposals.
Response from other interested
parties
41. We had a mixed response from representatives
of licensing authorities. The Association of Justices'
Chief Executives and the Justices'
Clerks'
Society shared our concerns both about the necessity of issuing
a clear statement about whether the proposal was likely to become
law or not; and about the ability to apply for a restriction order.[44]
They suggested that it would be better to delay implementation
of the proposal until next year. The Magistrates'
Association, on the other hand, indicated that licensing justices
"would
be willing and able to take on extra sittings if necessary to
deal with any increase in applications for restriction orders".[45]
42. A less equivocal response came back from representatives
of the licensed trade. There was unanimity amongst those to whom
we wrote that, notwithstanding the late introduction of the Order,
it would be beneficial for it to proceed -- not least because they were keen that the "trial
run"
in advance of possible future permanent relaxation of New Year's
licencing hours go ahead as soon as possible.[46]
The point was also made that the current system can lead to inequities,
as licensing authorities in different districts grant special
orders of exemption for differing periods of time; the proposed
Order would provide for uniform permitted hours across the country
(subject to any successful applications for restriction orders
in the case of rowdy or disorderly premises).[47]
Necessary protection and desirability:
conclusion
43. There is no doubt that the proposal will result
in a less than an ideal situation. Those police forces, local
authorities and local residents who wish to take advantage of
the provisions allowing them to apply for restriction orders (to
say nothing of the licensing authorities who will have to consider
those applications, and licensees themselves) will be unnecessarily
inconvenienced by the Department's
failure to bring this proposal forward in better time. Nevertheless,
we are persuaded that, notwithstanding the very tight timescale,
the situation which would prevail should this proposal become
law would not result in a lesser degree of protection against
excessive noise or nuisance than that which currently obtains.
44. We are also now satisfied that it is desirable
that the Order should be made. Responses from representatives
of the licensed trade (referred to by the Minister in oral evidence[48])
indicate that many licensees have indeed applied for special orders
of exemption in respect of New Year's
Eve this year; and that as far as they are concerned, the financial
savings at least have been lost. Nevertheless, some licensees
have not yet applied for such orders, and there will therefore
be some financial and administrative benefits for them (and for
licensing authorities in not having to consider applications).
Furthermore, there are other benefits which will accrue should
this Order become law:
- special orders of exemption will, for the most
part, not allow extensions of permitted hours for the whole of
the period specified in the proposed Order: passage of the Order
will, therefore, benefit even those licensees who have obtained
such orders;
- such an extension of hours will benefit not only
licensees themselves, but also their customers;
- the draft Order would remove inconsistencies
in licensing hours between licensing districts, and fixed closing
times in any area, which the Government argues contribute to crime
and disorder by encouraging binge drinking close to earlier closing
times and producing large numbers of people on the streets simultaneously;[49]
and
- we are satisfied that, as a pilot, it would provide
the evidence the police and magistrates have requested before
supporting any permanent relaxation for future New Years'
Eves, and help the Government in deciding whether to bring forward
such a proposal.
45. We have two important provisos to our clearance
of this proposal, however. Firstly, we recommend that the proposal
be amended by the deletion of the provisions relating to a right
of appeal for a licensee against the grant of a restriction order.
It may have been desirable for such a provision to have been included
had the proposed Order been able to come into force sooner, but
we are satisfied that, whilst desirable, it is not necessary.[50]
As the Department acknowledges, the late introduction of the Order
means that its inclusion would serve no useful purpose;[51]
and in view of that fact we consider that it would be inappropriate
to include it. We understand that licensees themselves have indicated
that they are content for the proposal to go ahead without an
appeal provision.[52]
46. Secondly, and perhaps more importantly given
the tight timescale within which applications for restriction
orders must be made and dealt with, it is vital that adequate
publicity be given to the ability of local residents, local authorities
and the police to apply for such orders.[53]
The Government must ensure that every local authority and police
force is circulated as soon as possible after the order comes
into force with details of the procedures for doing so. Similarly,
the press, particularly the local press, should be informed that
these provisions will come into effect, so that those who live
near premises which might give rise to difficulties are given
the best possible chance of hearing about the opportunity to apply
for restriction orders. We will be looking for assurances from
the Department that these arrangements will be put in place when
we examine any resulting draft Order at "second-stage"
scrutiny.
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