VIRES: THE "TWO-YEAR
RULE"
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
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