Appendix 3
Supplementary Memorandum prepared by the Department
for Culture, Media and Sport
(dated 15 October 2001)
The Regulatory Reform (Special
Occasions Licensing) Order 2001
1. This Supplementary Memorandum
is submitted further to the Memorandum submitted on 27 September
in reply to the points raised by the Clerk to the House of Commons
Select Committee on Deregulation and Regulatory Reform in his
letter of 19 July concerning the Regulatory Reform (Special Occasions
Licensing) Order 2001.
The "two
year rule"
B
(Section 1(4) of the Regulatory Reform Act 2001)
2. At the suggestion of the
House of Lords Delegated Powers and Regulatory Reform Select Committee,
the Government has obtained advice from Treasury Counsel about
the effect of section 1(4) of the Regulatory Reform Act 2001 and
the approach taken to draft the Regulatory Reform (Special Occasions
Licensing) Order. A copy of the Note of the Advice is attached
as an Appendix to this memorandum.
3. Counsel has advised that
the draft Order laid on 28 June to relax licensing hours on New
Year's
Eve 2001 did not overcome the difficulties posed by the "two
year rule"
in section 1(4). In his opinion, the draft Order would prevent
the Government from making a subsequent order in respect of the
relaxation of licensing hours during the Golden Jubilee in June
2002 (which we aim to put forward shortly).
4. Counsel had come to this
view for two reasons. Firstly, since the Order applied only to
New Year's
Eve 2001, it would be spent after that date and so would no longer
impose a burden which a subsequent order could remove. Secondly,
the substantive burden which a subsequent Golden Jubilee Order
would have to remove, namely the prohibition on the sale of alcohol
outside normal opening hours, would still be contained in provisions
of the Licensing Act 1964, which under section 1(4) could not
be amended for two years after the first Order was made.
5. However, Counsel has proposed an alternative
approach of drafting the Order which would overcome those difficulties.
The "two
year"
rule applies to the amendment of Acts but not to the amendment
of previous regulatory reform orders. Therefore, it is possible
to re-draft the Order so that the burdens currently applying to
the sale of alcohol on all New Years'
Eves (and the Golden Jubilee) are transferred out of the Licensing
Act 1964 into the Regulatory Reform Order itself. In respect of
all future New Years'
Eves and the day of the Golden Jubilee, it would therefore be
the Order, rather than the 1964 Act, which would contain the offence
of selling alcohol outside normal opening hours. The Order would
also stipulate that for New Year's
Eve 2001 only, opening hours would be extended by 12 hours.
6. Counsel advised that a subsequent Order could
be made which amended the original Order, so that the extension
to opening hours applied additionally to the Golden Jubilee (with
necessary adjustments to the times) and/or to future New Years'
Eves. This subsequent Order would be removing a burden (and so
would satisfy the requirements of section 1(1)), and would not
be caught by the "two
year"
rule (because it would not be amending an Act).
7. The Government therefore proposes to submit
a new draft of the Special Occasions Order, which follows the
advice provided by Treasury Counsel in respect of New Year's
Eve 2001, for consideration by the Committees of each House when
the draft is laid for the second stage of Parliamentary scrutiny.
8. A copy of this Supplementary Memorandum is
being forwarded to the Clerk to the House of Lords Delegated Powers
and Regulatory Reform Select Committee for their consideration.
Appendix to Supplementary Memorandum
Note of advice given in conference by Treasury
Counsel (dated 9 October 2001)
1. Two questions arose. First, whether it was
in general permissible under the Regulatory Reform Act to re-enact
a provision of primary legislation in a free-standing Regulatory
Reform Order and subsequently to amend that Order within the following
two years. Secondly, whether the text of the Regulatory Reform
(Special Occasions) Order could be so amended.
Amendment of a free-standing Regulatory Reform
Order
2. From the structure of section I of the Regulatory
Reform Act it was clear that a Regulatory Reform Order could impose
a burden, under either subsection (I)(b) or (c). This was plain,
too, from subsection (2)(b) which defined "legislation"
as including a Deregulation or Regulatory Reform Order in the
context of the expression "legislation
which has the effect of imposing a burden".
The two year rule in section I(4) was expressly limited to the
reform of "any
provision of an Act"
(rather than "legislation",
the term which appeared in subsection (I)). Thus, in Counsel's
view, it emerged from the terms of section I that, in principle,
it is possible by Regulatory Reform Order to delete a provision
from primary legislation and re-enact it in the Order itself,
and then to amend that provision by another Regulatory Reform
Order within two years, since the limitation in section I(4) does
not apply to amendment of burdens contained in orders made under
section I(I).
Amendment of the Special Occasions Order
3. However, there are two difficulties with the
Order as currently drafted.
4. Counsel agreed with the views expressed by
the Committees of both Houses that any burden imposed by the Order
would be spent after New Year's
Eve 2001; and therefore that there would be no power under section
I(I) and (4) to make an amending order with respect to the present
proposed Order. If any burden were contained in the Order and
imposed by it (as to which see para. 5 below), it would in Counsel's
view be spent after New Year's
Eve 2001 because the effect of the Order was confined to that
date. Despite the purported amendment of section 83A for all time,
and despite the fact that the Government might intend to apply
the special occasions licensing relaxations to future dates by
making further regulatory reform orders in the future, the Order
currently applied only to this New Year's
Eve and had the substance and effect of amending the primary legislation
only with respect to this New Year's
Eve. If the Order had instead applied to all future New Years,
then there would be no doubt as to its continuing effectiveness.
5. Second, and more fundamentally, it was difficult
to say that if this Order were to be made then the relevant burden
would be transferred from the primary legislation and re-enacted
in the Regulatory Reform Order. Rather, the burden which a future
New Year or Golden Jubilee Order would have to remove (namely
the prohibition on the sale of alcohol outside the permitted hours)
would remain in the primary legislation. That burden imposed by
the primary legislation would have been amended by subordinate
legislation (namely, the present Order under consideration), with
the result that the limitation in section I(4) would apply with
respect to future regulatory reform orders to be made to amend
the same provisions of the primary legislation in the future ie
section I(4) would prevent for a period of two years any further
amendment by Regulatory Reform Order of the operative provisions
of primary legislation which imposed that burden.
Alternative drafting approaches
6. It was discussed whether the problem identified
in paragraph 4 above would be met if Article 3 of the draft Order
were redrafted to read "Articles
4 to 9 apply to the permitted hours on 31st December
2001 and on such other dates as may be stipulated by the Secretary
of State [under a Regulatory Reform Order]".
Counsel first considered the effect of that redraft with the words
in square brackets omitted. Counsel's
view was that it was not possible to use a regulatory reform order
to create a power in the Secretary of State to make other binding
subordinate legislation (which designation of further special
days would, in Counsel's
view, amount to —
since it would have the effect of changing the general law for
everyone). Counsel considered that it would be inconsistent with
the elaborate procedural protections created under the Regulatory
Reform Act to construe section I(I) as conferring a power to create
in a Regulatory Reform Order a power to promulgate subordinate
legislation that was not subject to the same procedures as a Regulatory
Reform Order itself. Moreover, Philip Bovey pointed out that although
it was considered that the Deregulation and Contracting Out Act
1994 did provide the power to sub-delegate to some extent, section
4 of the Regulatory Reform Act appeared to rule out the sub-delegation
route.
7. If Article 3 were redrafted as above but including
the words in square brackets, then Counsel felt that the amendment
offered little more assistance than if it had said "...
as may be stipulated by the Secretary of State or under a future
Act of Parliament".
In either case, the present state of the law would be that the
Order itself ceased to have any practical legal effect after this
New Year's
Eve. It was difficult to say that the drafting of the Order in
these terms would confer continuing life and effect upon its terms,
when any adjustment to the applicable legal rules for the future
was not as a result of any (present) effect of the Order but would
be as a result of the effect of future legislation (if it was
ever passed), either under primary legislation or another regulatory
reform order.
8. Counsel did not approve the view that Article
3 could contain a power for the Secretary of State to appoint
other days by administrative order, rather than by delegated legislation.
He considered that, in substance, that would still be a power
in the Secretary of State to amend the law by an (unusual) form
of delegated legislation, which changed the general law of the
land on the say-so of the executive (see para. 6 above).
9. Counsel saw no merit in the two alternative
drafting approaches set out in paragraphs 15 and 16 of the Instructions.
The device of inserting additional provisions so as to avoid successive
textual amendments being made to particular provisions would not
alter the fact that it was the same substantive burden being amended
twice within a two year period. Nor was it possible to characterise
an amendment which applied only to New Year's
Eve 2001 as "incidental"
in the context of an amendment applying to the Golden Jubilee.
A possible solution
10. In the course of discussion at the conference,
Counsel suggested that the only apparent alternative to having
to choose between the New Year's
Order and the Golden Jubilee Order (and then suffer the limitations
in section I(4)) was to transfer the burdens currently applying
to the sale of alcohol on all New Year's
Eves from Part III of the Licensing Act 1964 into the Regulatory
Reform Order itself. Part III would be disapplied as respects
the day of the Golden Jubilee and all future New Years'
Eves. Instead, the restrictions currently in the primary legislation
would be re-enacted in the Order as respects those particular
days. The Order would also stipulate that for New Year's
Eve 2001 only, the permitted hours would be extended by 12 hours.
Counsel confirmed that a subsequent regulatory reform order, which
amended the Order so that the extension to permitted hours applied
to the Golden Jubilee (with necessary adjustments to the times)
and/or to future New Years, would satisfy the requirements of
Section I(I) of the Act, and would not be subject to the two year
rule.
11. Counsel did not advise on whether the existing
public consultation would cover such an order, nor whether the
60 day period for Parliamentary consideration currently running
would count in respect of such an order.
12. 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.
Approved 11 October 2001
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