Appendix 1
Letter from the Clerk of the Deregulation and
Regulatory Reform Committee to the Department of Culture, Media
and Sport (dated 19 July 2001)
Proposal for the Regulatory Reform (Special Occasions
Licencing) Order 2001
The Deregulation and Regulatory Reform Committee
considered the above proposal at its meeting last Tuesday. Following
discussion at that meeting, the Committee would be grateful for
further information on the proposal as follows:
1. The Committee has noted that the Order is
entitled "Special
Occasions Licensing",
but applies only to one New Year's
Eve. Our assumption is that this is because the Department intends
to put forward further proposals relating to licensing hours which
will affect the content of this Order, but it was nowhere explained
in the Explanatory Statement. Is the Committee's
assumption correct; and why was no reference made to this point
in the Explanatory Statement?
2. Linked with the above point, the Committee
is concerned about the possible effect of s.1(4) of the Regulatory
Reform Act on the making of any future RROs relating to licensing.
We have seen your response to the Lords Committee on this point,
but we do not believe it fully meets the Committee's
concerns.
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 Order amends 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 articles 4 to 9 (ie. the provisions which extend permitted
hours) apply only to the permitted hours on 31 December 2001.
Section 1(4) of the 2001 Act precludes the making
of an 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 current draft Order would amend section
83A (but effectively amend the law contained in Part III of the
1964 Act, which needs to be read as a whole).
Because the Order would apply only to the permitted
hours on 31 December 2001 it would become spent thereafter. It
is difficult to see how a spent provision can be said to impose
a burden. The position would simply revert to that obtaining prior
to the Order. So an Order in 2002 would again have to remove the
burden imposed by the provisions of the Licensing Act mentioned
above, and would thus fall foul of section 1(4)(b).
The Committee would be grateful for a response to
this argument.
3. The Deregulation Committee's
Report on the Millennium (at that stage "New
Year")
Licensing proposal suggested (at para 21) that the proposal was
of sufficient significance to have merited being sent to all Members
of the House of Commons during the consultation exercise. Did
the Department consider this point, and if so why did it decide
not to consult all MPs?
4. Your Explanatory Statement estimates that
"up
to"
134,000 premises will be affected. However, it seems likely not
only that not all on-licensed premises will necessarily wish to
remain open on New Year's
Eve, but that a substantial number of those which do will have
already submitted an application for a special order of exemption
by the time that this Order comes into force. How many premises
does the Department expect not to incur the burden of applying
for a special order of exemption? And what effect does your answer
to this question have on the estimates of the likely savings to
be gained from the introduction of this order?
5. The explanatory statement claims that the
proposal would provide for "consistent
permitted opening hours across England and Wales".
However, the Committee has noted that the possibility of successful
applications for restriction orders means that hours may in fact
be no more consistent than they are now; furthermore, given that
the Order cannot become law earlier than early December, inconsistency
could increase because the two regimes of normal hours extended
by special orders of exemption, on the one hand, and New Years
Eve hours restricted by restriction orders, on the other, will
have to run side by side. On what grounds, therefore, does the
Department believe that the Order will "remove
inconsistencies"
compared with the situation on a normal New Year's
Eve?
6. The Committee is very seriously concerned
about the late introduction of the Order. Our estimate is that
the very earliest at which it could come into force is early to
mid-December. What are the department's
views on whether the likely date for the introduction of the order
gives sufficient time for residents, local authorities or the
police to apply for restriction orders; for all licensing authorities
to consider such applications; and for licensees to appeal to
the crown court against any such orders?
Once again, we have seen your response to the Lords
Committee's
inquiry on this point (or at least on the point of appeals), but
we do not believe that it fully answers this Committee's
concerns. Your argument that an appeals procedure which you acknowledge
cannot work as intended should nevertheless be included in the
Order is questionable. Is the appeals procedure required to maintain
necessary protection for licensees? If not, why is it included?
Is it realistic, as you suggest in the explanatory statement and
in your reply to the Lords Committee, to expect that licensees
and the courts will expend time and money on pursuing points of
more or less academic interest?
The Committee is more concerned, however, about the
timescale for applications for restriction orders in the first
instance. It seems wholly unreasonable to expect the police, local
authorities and local residents to seek restriction orders within
such a compressed timescale; it is also regrettable that licencing
authorities will be required to hear applications for such orders
at such short notice, particularly at that time of year. It also
seems wholly unreasonable to expect licensees to wait until December
before making firm arrangements for New Year's
Eve.
On a more positive note, a proposal which has been
put forward as a possible solution to this problem is that an
objection (raised by the police, local authorities or local residents)
might be enabled automatically to negate the extended hours, thereby
ensuring that local residents would not lose necessary protection
as a result of their applications for restriction orders not being
able to be made and heard in time. Does the department believe
that this would be feasible, and if so, what safeguards would
be needed to ensure fairness to all parties? If not, does the
department have any other suggestions as to how the problems of
timing, which is the Committee's
main concern, might be overcome?
7. The Committee would like to know how the department
arrived at the figure of 700 clubs and pubs being subject to applications
for restriction orders (from paras 39 and 40 of the explanatory
statement). The explanation given there is somewhat imprecise.
8. The department appears to have made in respect
of this proposal precisely the same error in calculating the costs
to the trade of the current arrangements, of failing to take into
account the fact that bulk applications can be made, as it made
during the consultation on the Millennium (then New Year's
Eve) Licensing order in 1999 (see paras 20-21
of the explanatory statement accompanying that proposal). Furthermore,
the cost per application was on that occasion revised to just
£50,
rather than this time's
estimate of £70:
quite a considerable rise in just two years. The Committee would
like to know why the department failed again to take the fact
of bulk applications into account; and why the revised cost of
an average application is estimated at £20
more than it was two years ago.
9. The Committee draws the department's
attention to two points relating to the drafting of the proposed
Order. Firstly, on the title page of the draft order the words
"Laid
before Parliament....2001"
are superfluous. It is not the practice to use these words on
an Order subject to affirmative procedure in draft. If it is the
department's
intention to continue with the proposal, it may wish to remove
them before a draft Order is laid before the House. Secondly,
at article 4 (2) the words "...in
any year..."
are inappropriate given that article 3 states that the draft order
applies only to licensing hours on the 31st December 2001. Similarly,
if it is the department's
intention to continue with the proposal, it may wish to re-consider
article 4 (2).
10. As you will be aware, the Committee is very
disappointed that the proposal has been brought forward at such
a late stage, and that as a result it seems unlikely that the
Committee will be able to recommend its adoption. I have been
instructed to ask you how many officials have been involved in
the preparation of this proposal since it was first conceived
at the time of consultation on the 1999 proposal; and what has
been the cost to the taxpayer in terms of those officials'
time of bringing forward this proposal.
The Committee awaits the department's
response with interest. In the meantime, however, particularly
bearing in mind both the difficulty of ensuring that necessary
protection is maintained given the short timescale envisaged,
and the likelihood that the lateness of the introduction of the
order will mean that the majority of licensees will already have
applied for special orders of exemption in respect of New Year's
Eve, the Committee would welcome the department's
views on whether it remains appropriate to proceed with this proposal;
or whether it might be better to withdraw it and to proceed with
a proposal relating to New Year's
Eve 2002 (perhaps in conjunction with a similar proposal in respect
of the Queen's
Golden Jubilee).
Whether or not a decision is taken to withdraw this
proposal, the Committee does, as I suggested when we spoke earlier
today, wish to hear oral evidence from a Minister and officials
at an early date on the return of the House after the summer recess.
The Committee wishes to take the opportunity to take evidence
not only on this proposal, but also on the Government's
intentions for the future use of the regulatory reform procedure
in respect of measures concerning licensing and gaming reform.
This follows the comments and recommendations in the final report
of the Deregulation Committee in the last Parliament (see particularly
paras 6-8,
46-51,
and 74-77)
regarding the use of the deregulation procedure.
I am copying this letter to the Regulatory Impact
Unit, and to the Clerk to the Delegated Powers and Regulatory
Reform Committee in the Lords.
| 
