Members present:

Mr Peter Pike, in the Chair
Mr Russell Brown
Brian Cotter
Mrs Claire Curtis-Thomas
Mr Jeffrey M Donaldson
Mr Dai Havard
Mr Mark Lazarowicz
Mr Andrew Love
Chris Mole
Mr Doug Naysmith
Brian White


DR KIM HOWELLS, a Member of the House, Minister for Tourism, Film and Broadcasting, MR ANDREW CUNNINGHAM, Head of Alcohol and Entertainment Policy Branch, and MR LUCAN HERBERT, Legal Adviser, Department of Culture, Media and Sport.


  1. Good morning and welcome to the meeting. Can you introduce your team. I am sorry about the delay, which has been a problem to all of us. We did want the committee to be held today, as I am sure you did, because our next meeting will be after the prorogue of Parliament and the State Opening, which is not for a couple of weeks. Can you introduce your team.
  2. (Dr Howells) Yes, indeed. On my left I have Mr Lucan Herbert, who is from our legal department, who I hope will be able to deal with any legal technicalities you may wish to raise with him. On my right is Mr Andrew Cunningham, who has long experience of being an official dealing with this area, both at the Home Office and now at DCMS.

  3. Recalling that we have had a problem before on this issue, why was the proposal brought forward so late this year, even later than last year when we had a problem?
  4. (Dr Howells) Mr Pike, could I say first of all that we are extremely grateful that the Committee has allowed me to appear before you and for the reports provided by the House of Lords Select Committee on 16 October which raised no issues of substance in respect of the draft order. I am also extremely grateful that the Select Committee has indicated to us that you are unlikely to have issues of substance to raise about the order. But you are quite right to talk about the question of timing. We have recognised from the very beginning that this time scale was going to be an extremely tight one. It is almost impossible, we have found, to take an order through in 12 months. The problem with taking this one through is that it cannot possibly be 12 months since the last order came into effect. We have recognised from the outset that the timing of this order was going to be tight and that the need to review New Year's Eve 2001 placed us under an additional constraint before we could start using the statutory timetable. The first question you have put to us is whether the arrangements are feasible if an order cannot be brought into force until 20 December. I think that is at the heart of this. We think it is feasible - just - but it requires the widest publicity of the potential restriction order arrangements before 20 December. Of course, it would rely on both committees being willing and able to clear the second stage of parliamentary scrutiny as quickly as possible. But, if you would like me to, Mr Pike, I will go through the difficulties that we have had with putting together the order for you in time. Would you like me to do that?

  5. It would be helpful for the Committee to know why you have had this problem.
  6. (Dr Howells) Basically, Mr Pike, as you know, the RROs are made under the Regulatory Reform Act 2001, and this provides a requirement for consultation which normally has to comply with the Government's Code of Practice. It is a statutory timetable for the scrutiny of the draft order by the select committees, on two occasions, of course, and a requirement for approval by both Houses of the draft order after they receive the committees' reports. Most RROs - and of course previously de-regulation orders - take over a year to prepare and complete. A number of constraints affected the laying of this draft order and the legislation of course is wholly inflexible in that sense. The Government had given repeated undertakings to both of the select committees that New Years Eve 2001 would be treated as a trial, and that no decision would be taken on whether to proceed with a proposal to relax licencing hours permanently at all future New Year's Eves until 2001 had been thoroughly been reviewed. Obviously we could not begin the process of reviewing New Year 2001 until after the New Year, and that meant a further draft order would have to be prepared and completed within a year. To review New Year's Eve 2001, we wrote - in advance of the New Year, I may add - to over 800 local authorities, courts and police forces, as well as some local residents associations, and at their insistence we copied all responses to the parliamentary committees. When we completed the analysis of the returns and produced a full review, it was by the end of January. We were then able to draft the public consultation document, which is also a statutory requirement, which had to include, among other things, the analysis and review. We submitted this to ministers on 13 February, inviting them to seek urgent clearance. Our secretary of state wrote on 8 March seeking clearance for publication of the document. We then had to re-work the draft consultation document to meet the comments made by the secretary of state, and, if I may add, some of those comments by other secretaries of state took a long time coming in, and we did not receive clearance until 8 April. We then published the document and shortened the normal period of consultation from three months to two months. This kick-started the statutory timetable. The Golden Jubilee order, Mr Pike, you will recall, took 13 months to complete from that starting point. On completion of the consultation, we had to analyse the results and put together a 100-page memorandum, meeting Cabinet Office requirements and including details of every singe respondent and our policy position on any comment made. We have sent you those responses and our comments and of course the summaries of our policy position. Simultaneously, legal had to prepare the draft order itself. This is also done on the basis of Cabinet Office instructions. We understood that the statutory timetable is not within our control and that the time scales were incredibly tight and could be affected by the proroguing of Parliament in either November or early December in respect of the Queen's Speech. The committees, of course, have 60 days to scrutinise the order, which does not include any period during which Parliament is prorogued for more than four days. So no days are therefore recorded in the summer recess between July and October and after this the committees' comments must be considered. A further memorandum prepared and the order can then be laid a second time. The committees of course then have three weeks' further scrutiny but this can be shortened if the committees report early. At the end of all of that, each House must approve the draft order and a slot has to be found for a debate in the Lords. Only then the Minister may sign an order. We found that a very, very tight schedule to keep, and it depended of course on all our parliamentary colleagues giving us their cooperation - and I know that many of them were busy and that there were some major disruptions during the course of that timetable and I think that our application suffered as a consequence of that.

  7. You will realise, because of what you have indicated on the timetable, that the earliest you can lay the second stage is in fact the beginning of the week in which the House goes into Christmas recess (because the Christmas recess dates have now been announced). When did you realise that there would only effectively be two normal working days? And you will understand that this Committee has two aspects of this particular proposal to look at. One is obviously the interests of the licensed trade and those in that trade, but the other aspect that this committee cannot ignore is of course the effect on residents and the question of the restriction order. You have to understand that we have to balance and look at both those sides. When did you realise that, with the best cooperation of this Committee and the committee in the House of Lords, we were actually talking of about two days .
  8. (Dr Howells) To be perfectly candid with the Committee, Mr Pike, I realised it when you told me about it in the tea room.

  9. Then I told you to speak to your people there.
  10. (Dr Howells) Yes, indeed - which I did, a bit quick.

    Mr Naysmith: When was this conversation?


  11. It was the day that the Committee met. I told the Minister late in the evening that we should be contacting his department urgently, and that if it had not already been done, it would be done in the morning, and I suggested he spoke to me early because I said he had a problem and it was obviously a problem for him and his department to look at as quickly as possible. I wanted to make sure that an e-mail and a letter did not arrive on his desk and he was not aware of it . I wanted him immediately to make contact.
  12. (Dr Howells) I was enormously grateful.

    Mr Naysmith: I wanted to establish the date, that is all.

    Chairman: It was two weeks ago. I happened to be sitting on the next table to him in the evening and I thought that as a matter of courtesy it would be appropriate to ensure that he was aware of what we had said in the context that his department would be getting an urgent communication.

    Mr Brown

  13. Can I say I am absolutely delighted that the Minister finds his way to the tea room, where business can be conducted.
  14. (Dr Howells) It is a tribute to the informal arrangements of this place.

  15. Obviously I have listened to what you have said and I think there are difficulties in there. My point is this: why were further efforts not made to ensure that the proposal was completed in good time? Where do you think the whole issue could have been tightened up to move on far quicker?
  16. (Dr Howells) It is very difficult to say how we could have moved on. I think the officials worked very, very hard on it, but it very often depends - and I am sure you hear ministers bleating about this constantly - on the time of response from people within my own department as well as ministers from other departments and, with something as tight as this, a delay of one or two days can make the difference between the chance for a magistrates' court to sit and listen to objections from local residents or other businesses and not properly being informed that they have that time and that right to do so. We recognise it is a real problem but I fear that the inflexibility of the system within Parliament for handling RROs is a very, very serious impediment to this sort of order going through as quickly as it should. It also of course depends on the timetable of the House, so far as holidays, recesses, breaks and so on are concerned. But it is not some kind of excuse. I am not trying to say that we could not have done it better; I think probably we could have done it better, but it was very tight.

    Mr Lazarowicz

  17. Following on from that point about the parliamentary process, my understanding is that the time scale when the order can be laid means that effectively the order will have to complete all its parliamentary process status within three days. What steps are you taking to ensure that will happen?
  18. (Dr Howells) Andrew, would you like to deal with this?

    (Mr Cunningham) Sure. Essentially, we would have to be ready to lay all the required papers ourselves in advance of the day involved. Therefore it would be crucial that neither select committee had an issue of substance, so we could anticipate, if you like, a straightforward second stage. In addition, we would have to ensure that the business managers in the House were agreeable to make the slots available - particularly in the House of Lords, where there is traditionally a debate, even if a very short debate, usually a few statements, perhaps two or three or four statements made. That would be crucial, that the business managers agree that a slot could be made available. It is not usually as problematic in the Commons. That means ministers liaising with the Whips' offices to ensure that it could be done.

    (Dr Howells) I do not know if it would be helpful to the Committee, but in 1999 there were five restriction orders as a consequence of various people complaining about the likelihood of disruption as a consequence of the extension of licensing hours. In 2001 there were just two and during the Golden Jubilee there were none. That is not so say that suddenly there will not be many on this occasion, but we are pretty confident that there is sufficient time in the courts, if people feel strongly enough about, it to lodge those applications for restrictions orders.


  19. On that point, dealing with your comments to my first question, that you were going to do some preliminary work prior to -----
  20. (Dr Howells) Yes.

  21. Perhaps you could make sure the Department lets us have site of what your proposals are in that direction, because it is one aspect that we have to look at. When you got the letter, following the Committee's meeting a couple of weeks ago, did you consider the possibility - recognising we have got this very limited time - of making it applicable for 2003? Or was it your view that it was essentially this year, and, if so, why?
  22. (Dr Howells) I took the view almost immediately that it was essential we should press through this year, Mr Pike, despite the fact that there was the temptation to say, "It looks like we are going to lose this one this year, we will concentrate on 2003." But the hospitality industry had a dreadful year in 2001 as a consequence of foot and mouth, September 11 and so on and so forth, and I think they have carried a tremendous burden and proved very resilient in the way they have fought back over the period since 2001. I did not want an additional burden on the industry. I was fairly confident, in the light of the small number of restriction orders that were applied for. I do not know what the British population is now, 59 million or something, and there were hardly any restriction orders and none whatsoever in the Golden Jubilee, and I felt it was worth pressing on with for this year, because I was sure, from talking to all the agencies concerned, with our license holders, that it was very important to them that they all had the flexibility that this would bring them in 2002.

    Brian White

  23. When you came to see us before, you gave us assurances that everything would work fine and the lateness did not matter because there were not going to be very many restriction orders. But your own evidence shows that there have been places where people were unable to get restriction orders. I think there were three areas where that was the case. Given that there are going to be only three days' parliamentary time and then we have to publicise it and it is Christmas and people are doing other things and therefore the last thing they want to do is to spend the whole day in court trying to protest, how is it actually going to work, given that your own evidence suggests that the fewer restriction orders is because of the shortness of time?
  24. (Dr Howells) I am going to ask Andrew to come in on this, but I made some inquiries with the authorities in my own area and they were rather mystified as to why I was concerned about this one, since nobody had ever applied - that it was not something that normally the public does, so to speak. Applications, of course, are made. Sometimes they are made by other businesses - and you can talk to some pub chains who say that it is about revenge or it is about wanting to cancel out the opposition and one thing and another - but they are pretty rare, these applications. That is not to say that it is not important that people should know about them. That is why we are going to do all we can to ensure that there is sufficient publicity around the country to enable people, if they so wish, to apply to the courts for restriction orders. But I guess you are quite right, Mr White, to say that it is the most difficult week of the year in some ways - although, remember, it is not the week when you are out buying Christmas presents, it is the week when you are full of Christmas turkey, between then and the New Year.

    (Mr Cunningham) Certainly, on the experience of 1999/2000, the length of time you have does not seem to make a lot of difference. With the 1999 order there was something like July through to Christmas for people to make applications for restriction orders. There were only five and they were all made by the police. The police now seem to have moved to a position where they would prefer to rely on their new powers which they have to close down - which are more reactive but they can close down excessively noisy or disorderly premises. That also gives them a lever, because, without actually formally using their powers, they can warn people that they will close them down if there are problems. So our estimate in the Regulatory Impact Assessment that there would be less than 10 was an estimate which applied to all subsequent years. We have taken the view that we do not think the process of a restriction order is heavily used as a mechanism for controlling premises. As far as we can establish, no local resident has ever sought or been granted a restriction order on the three occasions that they have been available.

  25. Is that because they do not know about it?
  26. (Mr Cunningham) No. They have been widely publicised, the availability of those kind of orders.

    (Dr Howells) Mr Pike, may I ask Mr Herbert to say something.

    (Mr Herberg) I have something to add to your latest question, Mr White. You indicated that last year, despite the Minister's assurances, there were indications that people did have difficulty getting restriction orders in time. Could I just say that the situation this year has improved, in that the registration has been amended so that hearings can be held not only at licensing sessions but at any time. Therefore, even if only two days or so were available for the hearing of applications for restriction orders, those days could be used for that purpose.

    Brian White: I was tempted to respond to the Minster by saying "conceptual bollocks" but I shall resist that temptation.

    Mr Naysmith: Don't resist that temptation.

    Brian White

  27. What are you actually doing about the three areas where you have had the problems that you have identified?
  28. (Mr Cunningham) The restriction was related to those areas where they were not following the Good Practice Guide issues by the Magistrates' Association. As Mr Herberg has just explained, the order has been changed so that the restriction which links an application to a licensing session has gone now and the application is made to an ordinary magistrates' court, so that all the normal court sitting days are now available for the consideration of those orders. It would mean that on this occasion we have acknowledged it would be very tight, only two days. Because of the notice you give for an application, there would only two days on which they could be heard.

  29. Have you talked to the magistrates in those areas and have you talked to magistrates in areas like Kensington and Chelsea, which have a high preponderance of people who are going to be affected?
  30. (Mr Cunningham) We wrote after 2001 to every single court in the country and asked their views about how the operation had gone. In response to the three areas, we pointed out that they did not organise their sessions in that way. That was why we changed the order - it was in responding to them. We have asked the Magistrates' Association this year, following receipt of the letter, about the tightness of the timetable and how they view it, and they gave us the view that, yes, it was difficult but it was achievable.

  31. But you yourself have not talked to those areas.
  32. (Mr Cunningham) Well, I have written to those areas, yes, after 2001.

    (Dr Howells) I have not spoken to them myself.

    Chairman: May I also say that due to the fire alarm and everything, I did not take the opportunity of welcoming Mrs Claire Curtis-Thomas to this Committee. Welcome to the meeting and I hope you enjoy your time on this Committee.

    Mrs Curtis-Thomas

  33. You said earlier on that the inflexibility of the system to handle RROs is a serious impediment. Would you care to expand your concerns about the impediment and let me know what you have done about that?
  34. (Dr Howells) Yes. This is a very serious issue, I think, because this committee meets only a limited number of times a year. We are all of us wanting to use these regulatory reform orders as a means of introducing greater flexibility in the way in which we deal with issues that should not have to go through the parliamentary process, if you see what I mean, and take a very long period of time. It seems to me - and this is purely a subjective response on my part now - that there are a series of bottle-necks which we really ought to be addressing very seriously as a parliament when it comes to handling RROs. We could be using them far more often. I can understand the suspicion that surrounds them sometimes, that you are trying to change the law through the back door, but I think they are very useful instruments very often for getting changes or short-term modifications which we are inhibited from using because of the way the system works at the moment.


  35. Is it possibly a problem with the licensing regulation rather than with our procedure?
  36. (Dr Howells) Absolutely. As you know, Mr Pike, with a bit of luck we will have the Licensing Bill in the Queen's Speech. It is a big Bill and we consider it to be a very important one. Then of course we will not have to come back to you year on year with an RRO to extend licensing hours.

    Chairman: We shall miss you!

    Mr Naysmith

  37. I just wanted to comment on something you said, Minister, that this Committee meets only at certain intervals. Actually this Committee meets every week, if it is requested to. Sometimes, when civil servants and ministers get things wrong in bringing things before this Committee, then the tendency is to blame this Committee at the end of the day for not shoving everything through quickly. I cannot think of a single instance since I have been on this Committee - and I have been on it for a few years - where that has happened; it has always been some sort of block beforehand. You did say in a very nice and placatory way that there other ministers who had things on their desk, and maybe that contributed to the delay with this particular measure. I am sure that is true, but I just wonder, following on, at which stage the Minister felt things could be nudged forward a little bit and if there is any room for getting things that are on other ministers' desks, sometimes in other departments, moved off their desk and more quickly in a situation like this.
  38. (Mr Cunningham) I think this is the first time we have attempted to do an in-year RRO in respect of New Year's Eve. There has always been a gap of one year, because it is difficult to work within the year in terms of the preparation and the policy clearance. I would also say that we worked over the previous orders to get to a position where both select committees found a position that everyone found acceptable, and it seemed odd that we were involved in a process where you have to go through the full process when you know, basically on the substance of the order, that everybody is happy. On the issue of: Could we speed up the process in any way? not particularly, when we are working within the year and have to review the one that has just gone. So we have had to review 2001.

  39. But you said that you have all the reports on that by, I think, February.
  40. (Mr Cunningham) By the end of January we had got all the reports in and we started analysing them. We put them forward then for our ministers to clear the position, to decide that they wanted to proceed. We had written the consultation document, which includes that review, but my secretary of state then has to gain the approval of the Cabinet for the policy and the terms in which the public consultation document is written. That is a rule. We are not allowed to proceed without that clearance. And the other departments do have an interest: Home Office, Crime and Disorder, DTI on employment regulations. There are a number of departments who do have an interest and are very concerned about how policy is expressed. If they give that proper scrutiny, it is difficult for us to press, other than saying, "This is going to create -----

  41. Are you saying it takes nine or 10 months for this procedure to be gone through?
  42. (Mr Cunningham) To achieve an RRO?

  43. No, not to achieve an RRO. This is now November, and you had the end of your consultation, which then had to be shown around to various people, and that was 10 months/nine months -----
  44. (Mr Cunningham) Yes, I am saying this procedure does take ... I have never known an RRO achieved in less than that.


  45. Are there not some new issues this time: Sundays and public entertainment licenses?
  46. (Mr Cunningham) Yes. There was an issue in and around workers' entitlements in respect of Sunday and whether Christian workers should have some special privilege then - which actually, I would say, was of interest to most departments, although it is really a DTI issue to do with employment regulation. So the broad issue of diversity, that issue was significant. The public entertainment issue was of interest to the office of what was then DTLR in terms of local government and how that would work. So there were policy issues that they had to grip with. Given that the Code of Practice says that a consultation period should be three months, you have to put that three months in before you fire the trigger, if you like, of the statutory timetable.

  47. It sounds to me, if you saw at the beginning that it was going to take this time and you recognised it, that you should not have tried it for this New Year. Because it is so tight, on what you have just said, it was hardly worth trying. You knew it was going to end up with this confrontation.
  48. (Dr Howells) That is a judgement I had to make. Mr Cunningham did not have to make that one. It was me and the secretary of state who had to make that judgment. And, as I tried to make clear to Mr Pike, we did it because the industry has had a very hard year.

  49. I understand that and I think that is fine, I think we should help the industry. Which do you think is more important, the industry and helping it in difficult times or the ability of the people who are offended by some of the things that might happen as a result, being able to get restriction orders? Because I am not convinced that there is real publicity, that people really know they can get restriction orders despite what has been said. How do you balance the two?
  50. (Dr Howells) I think both as a minister and a member of Parliament, I have to come to terms with this one constantly - people who write to me about unruly behaviour outside clusters of pubs or licensed premises and so on - in the same way as everyone else in this room does, but I do not think the tension is as stark as that. In my experience - I have been and MP for almost 14 years now - I can think of a handful of occasions where people have come to me and said, "Such and such a licensed establishment is making my life hell." It is a fine judgment, sometimes a very fine judgment, we have to make. But we also have to take into consideration the hundreds of thousands of people who work in licensed establishments where the margins can be very, very thin. For a village pub, for example, this could be the biggest night of their year and if they are not allowed to have that flexibility .... Obviously, Mr Naysmith, you know as well as I do that sometimes it can be the difference between staying open and closing.

    Mr Havard

  51. I am sympathetic to the idea of getting this through. I think what the Minister will have to realise is that the work of this Committee and the efforts of the Chairman have been to alert you to the problems that are there, to try to get this through. So what I will not be accepting is any public pronouncements from you, Minister, or anybody else that we have been part of the blockage. There was a bit of something in what you said earlier on that I was not very happy with. You know, if I have problems in Merthyr, I will send them to Pontypridd!
  52. (Dr Howells) You usually do!

  53. Absolutely. Quite right. I think what we are seeing here is something very, very important because your comments about the process are more important than the detail of this particular order in many respects. We have had other people to hear about how the process works and we have had promises from other people that government departments - not just yours, all the other departments - will understand all of this better than they have understood it before. Because you are not the first one to come here and suggest, perhaps not directly but obliquely, that it is the Committee that causes part of the problem. Well it is not the Committee that causes part of the problem; it is the pre-planning and it is the work that is done before things come here. That is something that we will say publicly - or I will anyway - about this or any of the orders that come. But your observations are actually very, very important, I think, in terms of the generality of how the process works. If we take your experience as an illustration for the general argument, I think that would be very helpful, and it might be very useful if you could actually come forward with some further observations about exactly what your experience is and we can feed that into the Cabinet Office and elsewhere, because we are experiencing this issue time and time again, not just in your department. So this Committee is trying to be helpful to you and the other departments; it is not true that in some way or another it is the workings of this part of the process that is the problem. I want you to recognise that and I want that laid to rest very clearly now, because, whilst this will be only a particular skirmish this year, it is likely to be high profile, because it is the sort of thing that papers get on to, and I think that what we have to take from the Committee from your experience is exactly how the process is run and then we have to make stronger comments in the future to the departments that if they are going to come with these orders they have got to get their act together a lot better and a lot smarter before doing so. I do not know how may more you are going to come with, but, if you are going to come with some more, maybe you have learned from this experience. Are you going to come with some more and what have you learned from this experience?
  54. (Dr Howells) First of all, Mr Havard, thank you for offering to send me your problems down to Pontypridd. I thought you were doing that anyway! When I made that statement about the Committee only meets certain times of the year, I may be wrong but I understood that the Committee can only meet when the House is in session. That is the point I was trying to make.


  55. That is not strictly correct. Our timetable is frozen when the House is not sitting for a break of four days or more but in theory the Committee could if it chose. The Committee has a breadth and length because departments have not been putting proposals before us to consider. Your proposal was tabled just before we went into summer recess. It was the day before we went into summer recess. Is the important point that even if we h ad chosen to meet during the summer recess, it would not have accelerated the timetable one day at all. The timetable would have been exactly the same because those days would not have counted.
  56. (Dr Howells) Thank you, Mr Pike. Let me make it absolutely clear, none of the problems that I have been able to identify is to do with this Committee. What I am saying to you is this: we are all being encouraged, all ministers in all departments, to consider using RROs as a way forward, as a way of moving legislation forward more quickly. RROS are a useful vehicle, there is no question about it, and potentially they are much more useful than they have proved up until now. But I think we have a big job to do as a parliament in getting the process right, because time can be limited. Mr Naysmith made the point that substantially we had something in place by the early spring, and yet here we are in November desperately trying to get it, right up against the wire. Part of the problem for that, of course, is the explanation that Mr Pike has just given us, which is we have had a long recess and we have a prorogation which has meant there is an interruption. Of course, as Mr Havard says, we have got to get our act together in that respect. I have tried to explain to the Committee why we have had difficulty with this particular RRO. Indeed, you said that really we should have considered dropping it altogether. Also, Mr Pike, I want to say that on two occasions I have had no problem with coming before this Committee. You have been kind enough to invite me to it and to listen to what I have got to say, and I am very grateful for that.

    Mrs Curtis-Thomas

  57. I just want to take you back in terms of the processes to which you referred. You said that you want to take advantage of RRO, and you have expanded on that and said that ministers in different departments are being encouraged to do so. We have regulatory assessments, of course, which look at the impact of the order on the businesses affected - and I am pleased that there is that particular innovation with regard to the impact of our activities on them - but have you considered employing the facilities of the Better Regulation Taskforce in order to review this particular process in order to try to reduce the amount of time that it takes to execute. This would be of benefit not only to your particular world but, as my colleague rightly points out, to other departments as well.
  58. (Dr Howells) This is a very important point. We have involved ourselves very closely with the Better Regulation Taskforce: I have had some real grillings off them on occasion and we have also worked very constructively with them. I do not know if you have interviewed them or you have discussed the way forward, but I think it would be a very good thing to do, because they have got very definite ideas about how we can widen some of the blockages in the system at the moment. But I think we have to make maximum use of this very useful device. We are going to have to do that.

  59. Knowing what you know about constituent parts of this particular process, what is the minimum amount of time that you think it would take if you could remove the system blockages that you refer to?
  60. (Mr Cunningham) It is difficult because it is primary legislation that governs a great deal of the system, but one of the things I think would be a sensible change was if the committees could waive the full period of scrutiny. If on the substance of an issue ( if it was technical, for example) there was no dispute about the protections arising out of it - that they have had previous experience of similar orders and these were couched in the same terms - the legislation could be amended so that the Committee could waive the full 60-day period.


  61. But you will realise that there was a new act passed just before the general election.
  62. (Dr Howells) Absolutely.

  63. It was one of the last acts to gain legislative approval and therefore there was the opportunity, I would assume - we are in a linked-up government - to feed through at that time.
  64. (Dr Cunningham) I absolutely agree. We certainly did comment. It does not always follow that the Department takes account of what we say or gives particular weight to what we say.

  65. You would accept that it is unlikely that we are to get a reform of the act.
  66. (Mr Cunningham) Unless it was done by a regulatory reform order!

    Mr Love

  67. I wanted to go back to a previous question to which Mr Cunningham responded. As I understand it, we will be talking this morning about the difficult choice you had to make about whether to bring this forward and whether or not to have it. I think you have made a very strong case for why it was necessary for the industry to have this particular time. But, in making some improvements to previous orders, you have obviously laid yourself open to that wanting to be scrutinised very comprehensively by all the different governing departments. The question I ask is: Was there not a third option available to you? to say, "Let's slip through the bog standard that we had previously, say to all the departments in the Cabinet Office, 'This is exactly the same as you have looked at before, you can deal with this very quickly'." In other words, the tension is that you do not get the improved order but you ensure that the time scales and the difficulties that are going to arise do not then arise. You would have got your order, that would have helped the industry. Did you ever consider that? Was that an issue?
  68. (Dr Howells) We did not. Obviously, I will ask Andrew to come in and answer for himself in a moment, but, as we understood it, we were under an obligation to assess the impact on New Year 2001 of the RRO which this Committee helped us with last year. And I was very keen to do it myself. I have to say, Mr Pike, it has never affected me, because if I have a pint I am asleep by half-past 10 - absolutely hopeless. But we wanted to find out and were determined to find out whether or not the extension had eased the problems associated with late night drinking. That is why we wrote to all the police forces and the magistrates and everyone else who was interested. I think - and it is in the memorandum we have given you - that makes fascinating reading. I wanted to be sure myself, because of course this is something we are dealing with in the big licensing Bill, that what we are doing is the right thing to do. The results of that consultation have certainly confirmed in my own mind that it is the right thing. I would not have wanted to press ahead with it on the basis of making an assumption that the last RRO had resulted in a much better New Year's Eve than the ones that had gone previously.

    (Mr Cunningham) I think the position we put to ministers, the advice we gave, was that it would be wrong to ignore the local authorities who had raised the issue of public entertainment licensing. There was an uncertainty about whether all local authorities took that view but it seemed reasonable to include that issue in the public consultation document so that local authorities could engage with it, and when the views came in it seemed clear that the majority felt that that would lift the burden off them - which was an effect of our order - and therefore we saw it as an improvement, which was why we put it to ministers that we should include that. Yes, people do have to look at that and scrutinise it, but that is the way of the world. Sunday was an inevitable consequence of it being an order which looked to all future New Year's Eves. It had never before been particularly engaged with, but what we actually realised as we were looking at it was that pubs for the first time ever would be open during the hours of Christian Sunday worship and, therefore, we really ought to think about the workers who would be affected by that. That was really why we felt we had to deal with it.

    Mr Havard

  69. Given we are now where we are and you are proceeding with the order, I just want us to be clear and you to be clear with us exactly what your expectations now are of helping you to get the process through and the work of this Committee in relation to doing that. What are your expectations now of us to help you to make this change? I would suggest your problems, if they are problems - and they are no doubt challenges and opportunities - rest elsewhere. They do not rest here. I would like to know where you think we are in that process.
  70. (Mr Cunningham) Simply that we cannot do it without the cooperation of both committees in respect of second stage scrutiny. I think we would have to work very closely with your officials, so that whatever they want from us is available exactly when they want it. And we are happy to give that commitment, that we will produce the material needed which allows this committee, if it is willing, to work at maximum pace in respect of second stage. Similarly we would need the cooperation of the Select Committee in the House of Lords in exactly the same way. But, as I say, we will give a commitment to deliver the written material which the Committee needs to make that feasible. Similarly, we then need to work with the business managers of the House in terms of ensuring that the order can be voted on subsequently.


  71. I will pull the thing together now. First of all, in response to the point Mr Cunningham made, I know he was not being absolutely serious with regard to us amending our own legislation and our own procedures. We cannot do that and I am sure he accepts that is not a possibility. I have to say, of course, that this Committee or its predecessor, the De-Regulatory Committee, did express views on a number of issues. It is a balance. All these things are a balance. I noticed when the Minister was speaking that you indicated that originally you had been intending a three-month consultation, you reduced it to a two-month. If you had gone to a one month, we may well have been saying you had too tight a consultation. It is all checks and balances and one has to look at it. This Committee does work under the legislation. It is a point several members have made: we would not be happy if you were to blame this Committee for a delay. We have to work by the legislation. We cannot accelerate the timetable. I can tell you that I am sure we will look at the situation with regard to that final week before the Christmas recess and aim to do what we can to facilitate you. But that is not my decision at the end of the day. I am sure the Committee will be mindful to do so. On what you say, Minister, the two aspects are (1) you view it as crucial to the industry that it should go through this year.
  72. (Dr Howells) Yes.

  73. That is an essential thing. (2) you are taking steps to do on the restriction orders and you will give us something in writing to let us know how you intend to handle that. Let me finally say with regard to the RRO procedure, that it is not a fast track. It is a second track really. I believe it gives the Parliament a second opportunity. If it cannot get a Bill in the legislation, they can use this procedure and it is a second one. In some ways it gives perhaps more effective scrutiny, and that is not necessarily a bad thing, but it should not been seen as a system that is a fast track which can get things through the back door. Actually one of the fears of the Labour Party when it was in opposition was when the Conservative Government brought forward the original legislation. So on the two issues - (1) it is crucial to the industry and (2) that on restriction orders you will be looking at it - are there any final points you would like to make? As I say, I am sure my committee will try to respond in a positive way. We are certainly not of the view that we want to be obstructive and unhelpful.

(Mr Cunningham) Just to thank you and the Committee very much. I have been in this Place too long to blame any select committee for anything. No, no, no, I want to make it absolutely clear that our comments, as far as we are concerned, about the way in which we use RROs, are very serious ones. We think it is, as you say, a good device and one that means very high quality scrutiny for changes in legislation. We are very much in favour of that. We think this is a very, very important RRO. The industry certainly does. And, of course, given the numbers of people who enjoy going out for a drink on New Year's Eve, the general public does as well. I want to thank the committee for giving us this time and for the work it has done in considering all this that we have put before you.

Chairman: Thank you. I am glad we were able to facilitate you coming before us today.