Examination of witnesses (Questions 1-19)
DR KIM HOWELLS MP, MR ANDREW CUNNINGHAM AND MR LUCAN HERBERG
WEDNESDAY 6 NOVEMBER 2002
Chairman
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.
(Dr Howells) Yes, indeed. On my left I have Mr Lucan Herberg, 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.
2. 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?
(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?
3. It would be helpful for the Committee to know why you have had this problem.
(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 deregulation 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 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. It was submitted 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, our Legal Team 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.
4. 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 about two days .
(Dr Howells) To be perfectly candid with the Committee, Mr Pike, I realised it when you told me about it in the tea room.
5. Then I told you to speak to your people there.
(Dr Howells) Yes, indeed—which I did, a bit quick.
Dr Naysmith: When was this conversation?
Chairman
6. 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.
(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
7. Can I say I am absolutely delighted that the Minister finds his way to the tea room, where business can be conducted.
(Dr Howells) It is a tribute to the informal arrangements of this place.
8. 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?
(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
9. 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 stages within three days. What steps are you taking to ensure that will happen?
(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.
Chairman
10. On that point, dealing with your comments to my first question, that you were going to do some preliminary work prior to the Committee process being completed.
(Dr Howells) Yes.
11. Perhaps you could make sure the Department lets us have sight 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 essential this year, and, if so, why?
(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
12. 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?
(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.
13. Is that because they do not know about it?
(Mr Cunningham) No. They have been widely publicised, the availability of those kind of orders.
(Dr Howells) Mr Pike, may I ask Mr Herberg 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 legislation 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.
Dr Naysmith: Don't resist that temptation.
Brian White
14. What are you actually doing about the three areas where you have had the problems that you have identified?
(Mr Cunningham) The restriction was related to those areas where they were not following the Good Practice Guide issued 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.
15. 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?
(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.
16. But you yourself have not talked to those areas.
(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
17. 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?
(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.
Chairman
18. Is it possibly a problem with the licensing regulation rather than with our procedure?
(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!
Dr Naysmith
19. 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 were other ministers involved 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 desks more quickly in a situation like this.
(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 seems odd that we are 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.
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