Select Committee on Delegated Powers and Deregulation Eighth Report


26th November 1997

  By the Select Committee appointed to report whether the provisions of any bill inappropriately delegate legislative power, or whether they subject the exercise of legislative power to an inappropriate degree of parliamentary scrutiny; to report on documents laid before Parliament under section 3(3) of the Deregulation and Contracting Out Act 1994 and on draft orders laid under section 1(4) of that Act; and to perform, in respect of such documents and orders, the functions performed in respect of other instruments by the Joint Committee on Statutory Instruments.



  1.    The Deregulation and Contracting Out Act 1994 provides a two-stage process for the parliamentary scrutiny of deregulation orders. A document containing the proposal is laid under section 3(3) of the Act in the form of a draft of the order, together with explanatory material; and we and the Commons equivalent committee have 60 days in which to consider and report on it. The Government then lay under section 1(4) of the Act a draft order, either in its original form or amended to take account of the two committees' views, for approval by resolution of each House. In the Lords a motion to approve a draft order can only be moved after we have made a second report on it.[1]

  2.    The proposal for the draft Deregulation (Licence Transfers) Order was laid under section 3(3) of the 1994 Act on 3rd February 1997. The proposal was intended to amend the Licensing Act 1964 to provide an alternative way of ensuring that the business is not harmed by the absence of the original licence holder. First there will be the right to apply to the licensing justices in respect of any licence for one or more persons to be approved as "prospective licensee" of the premises. Then when an emergency arises and a "new" licensee is required, any one of the prospective licensees can give notice to the clerk to the licensing justices and the police electing that the licence shall have effect as if the licence were transferred to him and that election shall have effect from the giving of the notice.

  3.    Second, the proposal would introduce a new and expedited procedure for continuing business when a new licensee is needed and only one person was named on the licence. This procedure would involve the issue of an interim authority which would last for 28 days and could be granted by a single justice outside licensing sessions. There would then be an expedited procedure for the holder of the interim authority to obtain the transfer of the licence.

  4.    Third, the proposal would allow the administrative grant of some licence transfers. Under the present regime, licences are transferred from one person to another under section 8 of the Licensing Act 1964. The legislation does not explicitly provide for exemption from personal appearances by applicants, and the Government understands that many courts require a personal appearance, even in routine cases. Under the proposal, where an applicant for transfer of a licence either holds a current licence or has held one within the preceding three years, the transfer would be granted administratively by the justices' clerk, provided that there were no objections to the application nor exceptional circumstances which required the application to be dealt with by the justices. If these criteria were not met, the justices would deal with the application at the next available licensing sessions.

Amendments in accordance with the Committee's earlier recommendations

  5.    We reported on the proposal in our 21st report of last session, dated 19th March 1997.[2] In that report, the Committee recommended that the draft Order should be amended to provide (i) that the interim authority shall cease to have effect on the issue of written notice of an objection by the police, and (ii) that the applicant for an interim authority should be notified in writing as promptly as possible of a police objection to his application.

  6.    The Committee also considered it essential to the maintenance of necessary protection that the licensing justices are satisfied that the applicant would be able to exercise effective control of the licensed premises in question if called upon to do so before they approve him as a prospective licensee. It recommended the amendment of the draft Order to incorporate this requirement.

  7.    Provided that the draft Order was amended along the lines the Committee recommended, the Committee was satisfied that necessary protection could be maintained, and, in some cases, could be improved.

  8.    On a point of detail, Paisner & Co solicitors commented in evidence to the Committee that section 9A(6)(b) of the proposal was completely unintelligible. It referred to a power to transfer a justices' licence conferred by subsection (2) of that section, which in fact does no such thing. The Home Office admitted that this was a mistake, and that the relevant wording of section 9A(6)(b) would need to be amended to "subsection (1) of this section". The Committee recommended that the draft Order should be amended as the Home Office proposed.

  9.    The Committee concluded that the proposal for the Draft Deregulation (Licence Transfers) Order 1997 met the requirements of the Deregulation and Contracting Out Act 1994 and was appropriate to be made under it, subject to the amendments which the Committee had proposed.

  10.    The Commons Committee also recommended that amendments should be made to ensure that prospective licensees were able to exercise effective control; to require police objections to be made in writing; and for the correction of the internal mis-reference.

  11.    The Commons Committee also asked for further consideration to be given to the terms "interim authorities" and "deemed interim authorities" with a view to making the terminology clearer. The Home Office's explanatory memorandum states that it had considered this suggestion, but had been unable to find a satisfactory alternative.[3]

  12.    The explanatory memorandum states that "the draft Order has been amended to incorporate all recommendations made in the Parliamentary reports. No other amendments have been made."[4]


  13.    In our earlier report, we made the following comments on the Home Office's consultation exercise:

  "It is unusual for this Committee to receive complaints about the scope of Government consultation exercises on deregulation proposals. In this case the Committee received a submission from Nottinghamshire Magistrates' Courts Service complaining that they had only received a copy of the consultation document through a third party, and understood that the Home Office had not intended to consult Licensing Committees on the proposed changes. As the letter states, "the Licensing Committees are the bodies who deal with these issues on a day to day basis and therefore have vast knowledge and experience in these areas. Additionally the Committees have no axe to grind or vested interest unlike certain commercial bodies concerned in the proposals."

  The fact that 11 Licensing Committees responded to the consultation exercise, even though they had not specifically been invited to do so, suggests to the Committee that the Home Office should have included these Committees with those to whom they issued the consultation paper. It is fortunate that such a large number of the Licensing Committees took the initiative to respond to the consultation, and indeed two of the Licensing Committees submitted evidence to this Committee. Had the Home Office not received the views of individual Licensing Committees it might have been necessary for this Committee to conclude that consultation was inadequate. As it is, the Committee considers that the scope of the Home Office's consultation exercise was adequate, but only barely so."

  14.    Following the publication of the Committee's report, but within the 60 day period for parliamentary consideration of the proposal,[5] the Committee received further evidence on the proposals, from South and South East Hampshire Magistrates' Courts Service and from Newark and Southwell Licensing Committee. This evidence is printed in the Annex to this report.[6] The Committee has considered the evidence with care, but its earlier conclusions remain unchanged.


  15.    The Committee reports that the draft order is now in a form satisfactory to be submitted to the House for affirmative resolution.

  16.    We are required by our terms of reference to perform, in respect of documents and orders laid under section 1(4) of the 1994 Act, the functions performed in respect of other instruments by the Joint Committee on Statutory Instruments. The Committee has concluded that there is nothing in the draft order which the Joint Committee would have needed to draw to the attention of each House.[7]


1   Standing Order 70(1)(b). Back

2   HL Paper 70, session 1996-97. Back

3   Explanatory memorandum, paragraphs 9 and 10. Back

4   Explanatory memorandum, paragraph 25. Back

5   Under section 4(3) of the Deregulation and Contracting Out Act 1994, the 60 day period for parliamentary consideration of this proposal was suspended during the period of prorogation and dissolution, and resumed on Wednesday 7 May 1997. Back

6   Evidence which the Committee received prior to the prorogation of Parliament is printed with the Committee's 21st report of last session (HL Paper 70, session 1996-97). Back

7   This report is also published on the Internet at the House of Lords Select Committees Home Page (, where further information about the work of the Committee is also available. Back

previous page contents next page

House of Lords home page Parliament home page House of Commons home page search page enquiries

© Parliamentary copyright 1997
Prepared 27 November 1997