Department's response
114. The Department explained the long delay by reference to the need to consult following the implementation of last year's Special Occasions Order. The Department pointed out that it was obliged to undertake a review of the arrangements on New Year's Eve last year before issuing a further consultation in respect of arrangements for future New Year's Eves. The Department also noted that it had been necessary to consult other colleagues in government on the changes from arrangements at previous New Year's Eves before publishing the consultation document.[48]
115. The Department's written response had little to say regarding the feasibility of the Parliamentary timetable, beyond commenting that "this would rely on the co-operation of the Committees in respect of the second stage scrutiny of the draft Order."[49] In oral evidence, [the Minister] was more forthcoming, saying,
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.[50]
116. As far as restriction orders were concerned, the Department acknowledged that the timing would be tight. It suggested that two key questions arose:
The first is whether sufficient publicity could be given to restriction order matters prior to the coming into force of the Order, so that applicants would be ready to take the necessary action on 20 December. The second is whether two days is long enough to process any applications so made. We believe that it would be possible to publicise the necessity to apply on 20 December using the strategy adopted last year. With regard to the courts' capacity, we estimated in the Regulatory Impact Assessment accompanying the draft Order that no more than ten applications for restriction orders would be sought. This was based on the experience of Millennium Eve, New Year's Eve 2001 and the Golden Jubilee period. We consider that even if the applications all fell in just two of the court areas out of more than three hundred, it would be possible to process them.[51]
The Department added that it recognised that the provisions relating to appeals against restriction orders would be ineffective this year, but that, in view of the benefits to consumers and the industry generally, it considered that it was worthwhile pressing on.
Maintenance of necessary protection in respect of New Year's Eve 2002
117. We deal with the question of the Parliamentary process below. Firstly, however, we consider the more important question arising from the late tabling of the proposal, namely, whether there will be time for necessary protection to be maintained through the effective operation of the system of restriction orders.
118. We are wary of accepting the Department's, or even the Minister's, word concerning the ability of the system to work effectively. Last year, the Minister assured us that the system of restriction orders could work despite the late tabling of the proposal. It later emerged that in some licencing areas that was not the case.[52] Nevertheless, even on that occasion, there was no suggestion that anyone who wished to apply for a restriction order was in practice prevented from doing so; and the provisions of the order which gave rise to the particular problem on that occasion have since been amended so that the same problem will not occur again.[53] We also note that the take-up of restriction orders on all previous special occasions appears to have been remarkably low.[54]
119. The Department subsequently wrote to us once again, confirming that it intended to employ, as last year, a publicity strategy aimed at ensuring that all those who might wish to apply for restriction orders are aware of the ability to do so.[55] That publicity strategy will be as follows:
a press notice to be issued at the beginning of December alerting people to the possibility of an Order being made by 20 December
the press notice to be "regionalised"[56] by the Central Office of Information press offices ensuring that it is picked up by local area news media
the press notice to appear on the DCMS website and UK online
the notice to be repeated (with any updates) immediately after the two Committees report at the beginning of the second stage scrutiny and again regionalised and placed on the websites.
copies of the draft Order to be circulated to the chief executives of magistrates' courts by 7 December so that they would be aware of its probable contents before the Order is made so that they would be able to advise any individuals enquiring about the process.
The Department adds that it will also be giving the Whips' Offices in the Houses advance notice of the time constraints affecting the draft Order and of its importance, so that they can give early consideration to the need to find appropriate slots for the approval by each House.[57]
120. Assuming that the publicity strategy is effectively employed, we conclude that the proposal would not remove from residents any necessary protection against excessive noise or disturbance on New Year's Eves. However, we shall not hesitate to pursue the matter with the Department if it emerges that the late tabling of the proposal has, contrary to Ministerial assurances, resulted in any failures in the system designed to ensure that protection.
Handling of the proposal
121. As may be seen from our remarks above, we have found the Department's and the Minister's answers satisfactory to the extent that we are content for the proposal to proceed with a view to implementation in time for New Year's Eve this year. However, we remain deeply dissatisfied with the Government's handling of the process.
122. We were astonished to find ourselves in the position of having to address precisely the same issues as we were required to address in respect of last year's Special Occasions Order—with the only difference being that the situation was, if anything, worse than it was last year. It is scarcely credible that the Department should have failed to comprehend the consequences of its failure to lay the proposal before Parliament in good time. Yet there was barely any indication, when the proposal was eventually laid before Parliament, that the Department recognised either that there would be serious difficulty in ensuring that the proposed order could pass through the necessary Parliamentary stages in time for implementation this year, or that special measures might again be necessary to ensure that the system of restriction orders could work effectively this year.
123. We were even more astonished to discover that the first time the Minister himself was aware of the difficulties surrounding this proposal was when our Chairman approached him in the Commons Members' Tearoom.[58] In our view, this is a matter of which the Minister should have been aware from the very start of the process. In that way pressure might have been brought to bear not only on the Departmental officials concerned, to ensure that work on this proposal was being given appropriate priority, but also on some of his Ministerial colleagues, to ensure that the consultation document was issued more timeously.[59]
124. Ministerial knowledge of the difficulties may also have avoided the discourtesy to this Committee, and to our Lords colleagues, of the assumption that our co-operation would necessarily be forthcoming in forcing the draft order through the Parliamentary stages in only three days. Proper Parliamentary scrutiny of such items normally demands a decent interval for suitable consideration: the Standing Orders allow us fifteen sitting days for scrutiny of draft regulatory reform orders.[60] We are happy to give our co-operation, where appropriate, where a department finds itself with difficulties with a regulatory reform proposal. Departmental officials, however, should not assume that the co-operation of Parliament, or of any Parliamentary Committee, is to be taken for granted.
125. Furthermore, we are disturbed by the Minister's contention that it was not the handing within government of the proposal which was to blame for the problems which have been encountered, but the regulatory reform procedure itself.[61] This is a matter on which we have already commented. The question of the appropriateness of the current scrutiny arrangements was raised in the Cabinet Office memorandum submitted to us earlier this year in response to our First Special Report of last Session,[62] and was dealt with in our response to that memorandum, our Third Special Report.[63] As we note in that Report, the issue of the appropriate length of time which should be allowed for Parliamentary scrutiny of proposals was also discussed in some detail in 1999 during consultation on the future of the deregulation procedure. The conclusion was reached that the same arrangements should apply as applied in the case of deregulation proposals brought forward under the Deregulation and Contracting Out Act 1994.[64]
126. Whilst we have no objection to departments taking the opportunity presented by the regulatory reform procedure to make useful changes such as that made by this proposal, we do not consider that the procedure was designed for repeated changes of the sort the Department, and the Home Office before it, have been making to the licencing legislation. The procedure was designed to enable reform of burdensome primary legislation; primary legislative change must always be accorded proper Parliamentary scrutiny. Great care must therefore be exercised in suggesting any contraction of the procedure for effecting such change.
127. In any case, it seems clear to us from the answers we received during our session with the Minister that the most serious and avoidable delays occurred not in the Parliamentary process, but before the consultation document was even issued.[65] If Ministers across Government could have been prevailed upon to respond in a timely manner to requests for clearance, the whole process might have been speeded up to the extent that the serious difficulties which have been encountered in respect of arrangements this year could have been avoided. It is regrettable that the regulatory reform process has been blamed for a situation which has in fact been caused by failures within government.
128. In conclusion, we wish to state clearly that the Committee is not at fault in the handling of the proposal. Nor is the regulatory reform procedure at fault. The fault lies solely with a failure within government to appreciate the nature of the regulatory reform process and the requirements for its proper use. We repeat the conclusion of our Third Special Report, that the regulatory reform procedure should pose few difficulties to those government departments ready to prepare and plan properly for the changes they wish to implement.
Conclusion
129. We conclude that a draft order in the same terms as the proposal should be laid before the House. We shall, however, be looking for evidence when a draft order is laid before the House that the Department has put in place its "publicity strategy" for ensuring that local residents, local authorities and the police are aware of their ability to apply for restriction orders and of the procedures necessary to do so, as discussed in paragraphs 119 and 120 above.
48 Appendix B; Qq 3, 8, 19, 20, 23. Back
49 Appendix B. Back
50 Q35. Back
51 Appendix B. Back
52 Deregulation and Regulatory Reform Committee, Fifth Report of , Proposal for the Regulatory Reform (Golden Jubilee Licensing) Order 2002, HC 599, para 26. Back
53 See explanatory statement, paras 25 and 46, and Deregulation and Regulatory Reform Committee, Seventh Report of , The draft Regulatory Reform (Golden Jubilee Licensing) Order 2002, HC677, para 4. Back
54 Explanatory statement, para 13. Back
55 Appendix C. Back
56 "Regionalising" a press notice means two things. Firstly, the Central Office of Information regional press office network ensures it goes to the regional and local media. Secondly, any press notice is given a new "nose" so that it makes it more newsworthy for the area: on New Year's Eve licensing issues, for example, the first sentence might start, "Pubs in Northamptonshire will be able to open for..." etc. Back
57 Appendix C. Back
58 Q4. Back
59 See Q3. Back
60 Ref S.O. No 141(15). Back
61 Q17ff. Back
62 HC(2001-02)1029. Back
63 HC(2001-02)1272. Back
64 Third Special Report, para 28, referencing Deregulation Committee, First Special Report of Session 1998-99, The Future of the Deregulation Procedure, HC 324, paras 50-52, and Deregulation Committee, First Special Report of Session 1999-2000, Government Response to the Deregulation Committee's First Special Report, Session 1998-1999, on The Future of the Deregulation Procedure, HC 177, paras 49-51. Back
65 Q3. See also Q19. Back
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