WEDNESDAY 6 NOVEMBER 2002
Mr Peter Pike, in the Chair
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.
(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.
(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?
(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.
(Dr Howells) To be perfectly candid with the Committee, Mr Pike, I realised it when you told me about it in the tea room.
(Dr Howells) Yes, indeed - which I did, a bit quick.
Mr Naysmith: When was this conversation?
(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.
(Dr Howells) It is a tribute to the informal arrangements of this place.
(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.
(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.
(Dr Howells) Yes.
(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.
(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.
(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.
(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.
(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.
(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.
(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.
(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 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.
(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 -----
(Mr Cunningham) To achieve an RRO?
(Mr Cunningham) Yes, I am saying this procedure does take ... I have never known an RRO achieved in less than that.
(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.
(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.
(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.
(Dr Howells) You usually do!
(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.
(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.
(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.
(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.
(Dr Howells) Absolutely.
(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.
(Mr Cunningham) Unless it was done by a regulatory reform order!
(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 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.
(Dr Howells) Yes.
(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.