Examination of witnesses (Questions 20-37)
DR KIM HOWELLS MP, MR ANDREW CUNNINGHAM AND MR LUCAN HERBERG
WEDNESDAY 6 NOVEMBER 2002
20. But you said that you had all the reports on that by, I think, February.
(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—
21. Are you saying it takes nine or 10 months for this procedure to be gone through?
(Mr Cunningham) To achieve an RRO?
22. 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—
(Mr Cunningham) Yes, I am saying this procedure does take . . . I have never known an RRO achieved in less than that.
Chairman
23. Are there not some new issues this time: Sundays and public entertainment licenses?
(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 grapple 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 Naysmith
24. 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.
(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.
25. 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 unable 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?
(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 an 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
26. 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!
(Dr Howells) You usually do!
27. 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 many 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?
(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.
Chairman
28. 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 meet if it chose. Your proposal was tabled just before we went into summer recess. It was the day before we went into summer recess. The important point is that even if we had 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.
(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. Dr 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
29. 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.
(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.
30. 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?
(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 would be 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.
Chairman
31. But you will realise that there was a new act passed just before the general election.
(Dr Howells) Absolutely.
32. 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.
(Mr 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.
33. You would accept that it is unlikely that we are to get a reform of the act.
(Mr Cunningham) Unless it was done by a regulatory reform order!
Mr Love
34. 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?
(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
35. 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.
(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.
Chairman
36. 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 Deregulation 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.
(Dr Howells) Yes.
37. 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 be 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.
(Dr Howells) 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.
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