Select Committee on Deregulation and Regulatory Reform First Report


47. We now turn to the question of whether the making of this Order might prejudice the Government's ability to make further Orders in respect of future special occasions.

48. The burden which this Order seeks to reduce is primarily that imposed by section 59 of the Licensing Act 1964, which prohibits sale or supply outside permitted hours, combined with sections 60 to 83, which specify what permitted hours are. The proposed draft Order as laid before the House would amend the 1964 Act by substituting a new section 83A, which extends the permitted hours, where the Order applies, in accordance with the Order. Article 3 states that the Order would apply only to the permitted hours on 31 December 2001.

49. Section 1(4) of the Regulatory Reform Act 2001 precludes the making of a regulatory reform order reforming the law contained in a provision of an Act if that provision has been amended within the two years preceding the date of the Order. The preclusion does not, however, apply to reform of the law contained in a regulatory reform order. The Government's intention (as explained in a supplementary memorandum from the Department) was to make further regulatory reform orders amending article 3 of the current Order such that the extensions of permitted hours provided for in this Order would apply on further dates specified in those Orders.[54] In particular, such orders would be proposed in respect of, firstly, Her Majesty's Golden Jubilee, in June next year, and secondly, future New Year's Eves.[55]

50. Under section 1(1) of the Regulatory Reform Act, however, a regulatory reform order has to be made "for the purpose of reforming legislation which has the effect of imposing burdens". It was not clear to us B nor, indeed, to the Lords Committee[56] B that the proposed Special Occasions Licensing Order, as drafted, would impose a burden. As it applied only to New Year's Eve 2001, after that date it would be spent. The burden to be lifted by any future Orders would remain in the provisions of the Licensing Act 1964 which would be amended by the proposed Order; and section 1(4) of the Regulatory Reform Act would therefore prevent the making of any further such Orders within a period of two years. As a result, no Order could be made in respect of the Golden Jubilee next year; and any further relaxation of licencing hours on New Year's Eves by means of regulatory reform order would have to wait until 2003 at the very earliest.

51. The Department sought the advice of Treasury Counsel about the effect of section 1(4) of the Regulatory Reform Act and the proposed approach to the drafting of this Order.[57] Counsel agreed with the Committees' view that the Order as currently drafted could not itself be amended by means of a future regulatory reform order; and would if made preclude for two years the making of any future regulatory reform orders reforming the same provisions as were reformed by this Order. He suggested, however, that there was a way of redrafting the Order to achieve the desired result which was consistent with the requirements of the Regulatory Reform Act.

52. Counsel advised that the burdens currently applying to the sale of alcohol on all New Year's Eves and the day of the Golden Jubilee should be transferred from Part III of the Licensing Act 1964 into the Regulatory Reform Order itself; and Part III disapplied as respects those particular days. The restrictions currently in the primary legislation would thereby be re-enacted in the Order as respects those particular days; with the exception of New Year's Eve this year, when the permitted hours would be extended for 12 hours. The Order would thus impose a burden, and could be amended by means of future Regulatory Reform Orders.

53. It appears at this stage that an Order redrafted in this way would be likely to meet our concerns regarding the effect of this Order on the Government's future plans, without offending against the provisions of the 2001 Act. Not yet having seen a draft of the Order as it would be made, however, we are not in a position to come to a definitive view. We expect to consider the point further if and when a draft order is laid for "second-stage" Parliamentary scrutiny.

54. Treasury Counsel's advice does, however, raise one issue on which we have come to a firm view. At para 12 of his Note, Counsel states

It was noted that this approach was not a blatant device to avoid the two year rule. Instead, the transfer of provisions on the permitted hours from the 1964 Act to the Regulatory Reform Order could be justified because it was the genuine intention of DCMS to relax the licensing hours in respect of all future New Years' Eves in due course, but after making an assessment that that was desirable in the light of practical experience and experimentation. This Order was expressly being made for the purpose of facilitating future experimentation with a view to introducing a permanent change in the law.[58]

55. Section 1(4) was introduced into the legislation as a result of concerns expressed by the House of Lords Delegated Powers and Deregulation Committee during the course of the pre-legislative scrutiny to which the Regulatory Reform Act was subject. Under the Deregulation and Contracting Out Act 1994, deregulation orders could only amend legislation passed before the 1993--94 Parliamentary session. Commenting on the Government's proposal to remove this restriction in respect of regulatory reform orders, the Lords Committee said

We consider that, as currently drafted, this aspect of the proposal would increase the tendency for ill­considered legislation, as legislation could be introduced one session and deregulated the next. We also consider that there would be some risk of legislative instability in the event of a change of Government.[59]

Later, the point was reiterated by the Minister during debate in the Lords on the Regulatory Reform Bill:

[the two-year rolling cut-off] means that there can be no question of a 'knee-jerk' reaction to amend legislation newly placed on the statute book ... We think that two years is the right period to avoid what might be called laxness in drafting.[60]

56. Whatever one may think of the Department's conduct in bringing forward this proposal so lamentably late, it could not be said that the proposed legislation is "ill-considered". As we note above,[61] the proposal to relax licensing hours on New Year's Eve has been under consideration for more than two years, and during that time has been the subject of extensive consultation by the Government and scrutiny by the Parliamentary Committees. The Government has decided that it is necessary to proceed with the relaxation of licensing hours on New Year's Eve by means of incremental reform; and it has made that decision known to both Houses and to both Committees, as well as to consultees on this proposed Order.[62]

57. We are satisfied, therefore, that on this occasion, it is appropriate to proceed as Treasury Counsel has suggested. Although clearly designed to circumvent the restriction in s1(4), in our view this means of drafting does not, in these circumstances, offend against the spirit of the Regulatory Reform Act. We give notice, however, that if, on a future occasion, a regulatory reform proposal was drafted in such a manner without the reasons being clear and the policy aims spelt out, both to Parliament and to consultees, we would regard it as an abuse of the power contained in the 2001 Act.

54  Appendix 2, paras 2, 3. Back

55  ibid; see also Liquor Licencing Deregulation: Consultation on Licencing Hours for New Year's Eve 2001 and during Her Majesty's Golden Jubilee in June 2002, Home Office, March 2001. Back

56  See Fourth Report from the House of Lords Delegated Powers and Regulatory Reform Committee, Session 2001/02, Proposal for the Draft Regulatory Reform (Special Occasions Licensing) Order 2001 (HL 29), para 22. Back

57  See Appendix 3. Back

58  Appendix 3. Back

59  Fourteenth Report from the House of Lords Delegated Powers and Deregulation Committee, Session 1998/99, Proposed Extension of the Deregulation and Contracting Out Act 1994, para 40. Back

60  HL Deb (23 Jan 2001) col 200. Back

61  See paras 7B12. Back

62  See Liquor Licencing Deregulation: Consultation on Licencing Hours for New Year's Eve 2001 and during Her Majesty's Golden Jubilee in June 2002, Home Office, March 2001. Back

previous page contents next page

House of Commons home page Parliament home page House of Lords home page search page enquiries index

© Parliamentary copyright 2001
Prepared 8 November 2001