Select Committee on Delegated Powers and Deregulation Thirty-Seventh Report



120. 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.

121. The deregulation process thus provides for an important two-stage consultation procedure. Section 3 of the 1994 Act requires the Minister, before making a deregulation order, to "consult such organisations as appear to him to be representative of interests substantially affected by his proposals". Further consultation takes place when the Committees of each House invite the submission of oral or written evidence. Effective consultation is essential to maintain confidence in the deregulation system and to ensure that proposals have been tested by the opinion of those who would be affected by them.

122. One of our tasks is to decide whether consultation has been adequate. We have used two criteria here: first, the extent of the consultation; secondly, the time allowed for responses. We have criticised certain proposals which have come close to failing one or other of these tests, and one - the Draft Deregulation (Sunday Dancing) Order 1995 - has actually failed.

123. Unlike the House of Commons, this House has not made a Standing Order setting out our scrutiny task in detail and regulating our work. Our scrutiny of deregulation proposals is governed therefore by our terms of reference and by the 1994 Act. The first deregulation proposal was deposited on 5th April 1995. Since then, this Committee has only rejected two proposals.

124. As we said in our last two special reports, the main thing to be said about the Deregulation procedure during the present session is that it has been little used. This session we reported on only one stage 1 Deregulation order and the subsequent Stage 2 Deregulation order - a sharp drop from the exceptionally busy 1996-97 session, when we reported on 16 Stage 1 proposals, and 15 Stage 2 draft orders.

125. Before this session, the Government had always agreed to make the amendments which we have proposed to deregulation proposals. As a result, second-stage scrutiny, when a draft order is laid for approval by both Houses, had invariably been straightforward.


126. Under the Sunday Observance Act 1780 the commercial organisation of public dancing on Sundays is prohibited. The provision about Sundays in the Licensing Act 1964 limits the licensing hours on that day so that licensed premises and registered clubs cannot serve alcohol late at night.

127. The proposal laid before Parliament on 17 January 2000 would allow charging for admission to public dances which start on Sundays. It would also amend the Licensing Act 1964 so that in future special hours certificates may permit extensions of the hours during which alcohol may be sold on Sunday evenings. According to the summary of the proposals on the first page of the Home Office's consultation document, this extension would be "only until 12:30 am". However, as paragraph 22 of this same document explains, under the heading of "protections for residents", "this will not apply where a Sunday is the eve of a bank holiday other than Easter; instead the normal weekday hours (2 am, or 3 am in central London) will apply."

128. Our only concern about the proposal was that necessary protection for residents should be preserved. Necessary protection is one of the matters which we are obliged to consider under the terms on the 1994 Act. Having received a great deal of written evidence on the subject, having heard oral evidence from the Home Office and representatives of the Royal Borough of Kensington and Chelsea, and having considered all the submissions made to the Home Office in its consultation exercise, we concluded that unless the proposal were amended then necessary protection for residents would not be maintained.

129. Our recommendations on the proposals were as follows:

130. There is not normally a long gap between stage 1 and stage 2 scrutiny. In this case, however, there was, as the Government resisted our recommendations. We reported on 15 March 2000 and the Government responded in a letter of 6 June[99] in which the Home Office Minister expressed the view that the Committee's suggestion for the amendment of this proposal could be ultra vires. Whilst the Committee did not agree with this view, we accepted that it was not an easy point of law. We were therefore sympathetic to the Minister's new and alternative suggestion, which he expressed in a letter of 29 August, for preserving necessary protection in this matter. The Minister had not produced a formal proposal, however, and we indicated in our response that we thought it would be essential that any such proposal should include the following:

  • magistrates and the crown court must be required to take account of the views of the local authority concerned regarding the necessary protection of those living in residential areas and, if they override these views, to give reasons for their decisions;
  • the simultaneous publication, in draft, of revised guidance by the Secretary of State on the special nature of Sunday (the previous guidance having been unsatisfactory and potentially misleading to magistrates).

131. The Government failed to publish a detailed proposal to this effect before the end of the session. To our surprise, however, on 28 November 2000 the Government published a draft second stage deregulation order dealing only with Sunday Dancing, and not with the licensing matters which we had always considered integral to the proposals - and indeed had received no indication that the Government itself thought otherwise. Although we anticipate that the immediate effect of the draft Deregulation (Sunday Dancing) Order 2000 will be limited, as we are unaware of any great public demand to participate in fee-paying dances at which alcoholic refreshment will not be available after the normal end of licensing hours on a Sunday, the draft Order clearly raised no issues in connection with the maintenance of necessary protection and the Committee was able to report favourably on it within 24 hours of its being laid before Parliament.[100]


132. We were asked to consider the Sunday Dancing and Licensing deregulation proposal when it was known that Home Office ministers were shortly to publish their long-awaited white paper on licensing reform. When we reported this had already been extensively leaked to The Times. We found this position unsatisfactory, and included the following comments in our report:

    "We welcome the fact that Home Office Ministers expect to publish their long-awaited White Paper on Licensing Reform within the month (QQ 77-78).[101] This White Paper is expected to tackle some of the concerns raised by the Better Regulation Task Force in its July 1998 report on licensing legislation, which included the issues of noise and pollution.[102] In the meantime the Home Office has been consulting not only on the present proposal but also on a separate proposal to deregulate the licensing hours for restaurants (QQ 79-80). This Committee has already received written representations on the second proposal. We accept that White Papers often go through a long gestation period before a bill - or draft bill - undergoes parliamentary scrutiny. But it is inherently unsatisfactory that Ministers should seek to extend, by the deregulation process, a licensing system which already fails to maintain the necessary protection of residents six nights a week. We have been disturbed by this fact when considering the present draft order. On balance we concluded that it need not lead us to report adversely on the draft order, subject to the qualifications and the amendment which we propose. Nevertheless, we would be highly unlikely to support any further licensing deregulation until there has been general reform of licensing laws."[103]

133. We did not intend these remarks to mean that we would not consider a New Year's Eve Licensing deregulation proposal or a licensing hours in restaurants proposal, since the issues raised by these had already been considered by the Committee. We discuss the issue of New Year's Eve licensing further below. For the avoidance of doubt on the restaurants issue, on 4 July we wrote to the Home Office Minister clarifying that the Committee was willing to consider on its merits a deregulation proposal which would enable restaurants to open late at night without providing music or other entertainment. We noted that this proposal was keenly supported by the Restaurant Association. The Minister failed to respond to us on this point, which we attempted to pursue in further correspondence, to no avail.

134. Although we received no response from the Minister to our three letters of June and July 2000 until 29 August, on 24 July he criticised the Committee's report on the Sunday Dancing and Licensing proposal on the floor of the House of Commons. Although we had sought to put forward a prospective amendment to the Sunday Dancing and Licensing Order the Minister somewhat surprisingly described us as "obstructionist" simply because we did not agree with the Government's original proposal. In a letter to the Minister of 28 September we indicated, however, that we were willing to accept the Government's new constructive compromise proposal, but, apart from the draft order relating solely to Sunday Dancing which we have referred to in paragraph 131 above, no order embodying this suggestion has been laid. The consequences of this omission are not of our making.


135. The proposal for the Draft Deregulation (New Year Licensing) Order 1999 was laid before Parliament under section 3(3) of the 1994 Act on 13 April, and would have allowed registered clubs and licensed premises to serve drinks throughout the night of each New Year's Eve. We reported on the proposal session in our 18th report of last session, dated 16 June 1999.

136. Our conclusions on the stage 1 proposal were as follows:

137. In 1999 the Government amended (and renamed) the draft Order so that it applied to the Millennium Eve only. In addition, the Home Secretary and the Secretary of State for Health provided the assurances which we had requested that in their view the emergency services will be able to cope with the likely effects of the relaxation of the licensing laws during this 36-hour period. We were satisfied with this approach.

138. In the event, the Millennium New Year's Eve appears to have passed off relatively peacefully, and, subject to receiving the formal report from the Home Office to this effect, we would be satisfied that necessary protection had been preserved and we would see no obstacle to an order extending the relaxation to all future New Years. On several occasions this year we have written to the Home Office to remind Ministers of our willingness to consider a further deregulation proposal, this time applying to all New Year's Eves. We wrote, for example, to Mr O'Brien on 4 July reminding him of this recommendation, and emphasised that "time is running out for consultation to be conducted on a New Year's Eve deregulation order to be operative for this year, and for the subsequent parliamentary scrutiny, particularly given the late return of the House of Commons after the summer recess." Lord Haskins, the Chairman of the Better Regulation Task Force, supported us in this endeavour, and suggested that the New Year's Eve licensing proposal should be subject only to "second stage" parliamentary scrutiny, lasting only 15 days. Whilst the Committee had doubts about the vires of this proposal, we agreed that the Chairman should write to Mr O'Brien proposing that it should be submitted to the Law Officers for their opinion. Provided that the Law Officers, and the House of Commons Committee, were content that Lord Haskins' proposal was intra vires we said that the Committee would approve it, and would go on to consider the report on necessary protection in the usual way.

139. Lord Haskins' proposal was not proceeded with further, and on 26 October the Government published written answers in both Houses of Parliament stating that the deregulation would not proceed this year, laying the blame at the Committee's door. The answers, and a subsequent letter from Mr O'Brien, suggested that our report of 15 March 2000 commenting that we would be highly unlikely to look at fresh deregulation proposals without a general reform of the licensing laws discouraged the Government from consultation on a follow-up New Year's Eve proposal. We found this surprising. The Committee's comments referred to any proposals to deal with new areas of the licensing law and not to work in hand. In the light of our reports in June and October 1999 we would have expected at very least an enquiry from the Government at official level seeking clarification as to whether the Home Office's understanding was correct.

140. The Committee has enjoyed excellent relations with all Government departments, and indeed at official level the Committee is in very regular contact with the Home Office. The Committee regard this isolated, and indeed unique, incident of disagreement with a Government Department as an unfortunate one.

141. We are obviously disappointed that the Government left it too late in the year to lay a further deregulation proposal before Parliament in time for it to have effect for the coming New Year's Eve, and that it failed to respond to our various communications urging it to take action on this issue. The absence of a deregulation order will have adversely affected hundreds of licensed premises up and down the country, in addition to the magistrates who will have to consider their licensing applications. We hope that we will be able to consider and approve a deregulation order covering all future New Year's Eves at the earliest possible opportunity at the start of the next parliamentary session.

9th report 1999-2000, HL Paper 46. Back

99   This letter related solely to the Sunday Dancing and Licensing Order, as did our response of 19 June. Back

100   36th report 1999-2000, HL Paper 129. Back

101   This White Paper appears to have been "leaked" in The Times of 13 March 2000, and the Committee noted, inter alia, that the front page article suggested that powers to grant licences would be transferred from magistrates to local councils. Back

102   See especially paragraph 3.1: "Noise pollution is a growing social concern and one which needs to be integrated into social controls in the wider interests of the community." The July 1998 report by the Better Regulation Task Force is still available on the Cabinet Office's website. Back

103   9th report 1999-2000, HL Paper 46. Back

previous page contents next page

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

© Parliamentary copyright 2000