Exchange of letters between the Acting Clerk of
the Deregulation Committee and the Home Office.
Letter from the Acting Clerk of the Deregulation
Committee to the Home Office (dated 9 April 2001)
Proposal for the Deregulation (Restaurant Licensing
Hours) Order 2001-04-06
The Deregulation Committee of the House of Commons
began its consideration of the above proposal shortly after the
proposal was laid. Following more detailed scrutiny of the papers
submitted, including the responses to your consultation exercise,
I am now instructed to raise a small number of issues with you.
1. Result of the Consultation exercise:
As you will know, the Committee is specifically required by its
Standing Order to consider in the case of each proposed Order
whether the proposals "have been the subject of, and take
appropriate account of, adequate consultation". The Committee
regards this as one of its most important functions.
The Committee has noted the account of the consultation
exercise set out in paragraphs 18-27 of the Explanatory Document.
In particular, the Committee note that although almost two-thirds
of respondents expressed opposition to the proposals this is said
by the Home Office (in paragraph 19) to be "due in part to
how the consultation document was targeted". It goes on to
say that the response "does not necessarily reflect the strong
support for the proposals from the restaurant trade". You
will appreciate that neither of these statements can inspire much
confidence in the Committee either that the consultation has been
adequate or that appropriate account has been taken of its results.
1. If the Home Office is itself concerned
about the targeting of the consultation exercise in respect of
this draft Order, which organisations or individuals does it think
should have been included in the consultation exercise?
2. Have any of those organisations missed
from the original consultation now been consulted? If so, what
were the results of the consultation? If not, why not?
3. Do the comments in paragraph 19 of the
Explanatory Document suggest that the Home Office regards the
views of the restaurant trade as of greater significance than
the views of others concerned?
2. Views of inner London boroughs: Even
if a small number of other local authorities have expressed support
for the proposals, is it not a fact that particular weight deserves
to be given to the views of the inner London authorities, with
an exceptionally high concentration of restaurants, clubs and
pubs (and hence with particular local problems in balancing commercial
interests against the interests of residents), who expressed opposition?
4. To what extent do you take account of the
particular needs of inner London and similarly congested urban
areas when assessing proposals of this kind?
3. Extended Hours Orders (provision of live
entertainment): Paragraph 23 of the Explanatory Document refers
to opposition to the proposal on the grounds that "the live
entertainment requirement constitutes a deterrent to restaurants,
and that without it more would probably apply for extended hours
orders". The Government's response is that "this is
not a good reason for retaining a requirement which lacks logic".
5. Why is the existing provision thought to
6. Is it not the case that the ability of
restaurants to apply for very late night opening without the expense
of live entertainment could lead to a significant extension of
late night opening and further late-night disturbance to residents?
What research, if any, has the Home Office conducted into the
likely effect of this measure on noise and disturbance levels
in residential areas?
4. Regulatory Impact Assessment: The Regulatory
Impact Assessment refers in passing to the fact that "There
would also be benefits for local residents through reduction in
noise from entertainment which restaurants dropped." It does
not however refer to the possible impact of increased noise outside
restaurants at a later hour of the night as a result of more restaurants
remaining open to late hours.
- How, and by whom, was the Regulatory Impact Assessment
carried out? What independent advice, if any, was provided in
carrying out the assessment? Or was the assessment simply a paper
exercise conducted within the Home Office to satisfy the requirements
of the deregulation procedure?
I would be grateful for reply to this letter (by e-mail or fax
if necessary) not later than Tuesday 24 April.
I am copying this to the Clerk of the Delegated Powers and Deregulation
Committee in the House of Lords, and to the Regulatory Impact
Letter from the Home Office to the Acting Clerk
of the Deregulation Committee (dated 23 April 2001)
Proposal for the Deregulation (Restaurant Licensing
Hours) Order 2001
Thank you for your letter of 9 April, setting out
a number of questions on the proposed Deregulation (Restaurant
Licensing Hours) Order. The answers are as follows.
Question 1: The comment
about targeting in the Explanatory Document which the Committee
has questioned was intended simply to reflect the fact that, whereas
the consultation document had been sent to many individual residents'
associations which had previously expressed an interest in proposed
changes to licensing law, it was not practicable to send it in
the same way to all the individual restaurants which might benefit
from the proposed Order. The Home Office relied on the Restaurant
Association to make the proposal known to its members. While the
Explanatory Document counts each response from a residents' association
separately, the response from the Association, representing the
views of around 3,000 businesses, is counted as no more than one.
We do not believe that we failed to include any relevant consultees
in the consultation exercise.
Question 2: This question
presupposes that organisations were incorrectly excluded. In our
view, this is not the case. I hope the answer to Question 1 clarifies
Question 3: No such
implication was intended, and we are sorry if the Explanatory
Document gave this impression to the Committee. In deciding to
proceed with the deregulation proposal, Ministers gave full consideration
to the views of all those who responded to the consultation document,
recognising the need to strike necessary balances between the
interests of local economies, local consumers and those of local
Question 4: While
paragraph 2 of your letter is certainly correct, it is worth noting
that the deregulation proposal applies only to restaurants and
not to nightclubs, discotheques or pubs. In addition, we believe
that the issue is a more complex one than simply balancing commercial
interests against the interests of residents. The equation is
more complex because a thriving local economy is beneficial to
all local taxpayers and residents. In London, in particular, hospitality,
leisure and tourism are vital components of the local economy,
and restaurants are an important element of these parts of industry.
An estimated 27 million tourists annually bring considerable wealth
and employment to the capital. We also need to consider the needs
of many visitors to London. Striking the balance between the desire
of local residents for a quiet life and the need to encourage
business and provide facilities to visitors is always a difficult
The part of the proposal relieving bona fide restaurants
of the obligation to obtain a supper hours certificate applies
to restaurants everywhere and will not be of particular value
to those in inner city areas. The part of the proposal relating
to extended hours orders will probably be taken up more by city
restaurants than those elsewhere, and to that extent the views
of inner London authorities have merit and have received particular
weight. Indeed, Home Office officials met and discussed the proposal
with a representative of the Royal Borough of Kensington and Chelsea
(RBKC) immediately following publication of the consultation document.
This was because we were aware that, although RBKC is the smallest
London Borough, it is the most densely populated in London, and
has in the past expressed anxiety about the deregulation of licensing
Ministers therefore fully recognise that London is
unusual. But equally restaurants are more important to the local
economy of London than almost any other part of the country, save
for areas of intensive tourism. For example, the Royal Borough
of Kensington and Chelsea (RBKC) is largely dependent on three
key areas of its local economy: museums, major retail activity
and entertainment and restaurants. The attached report, published
and celebrated in March 2001 on the RBKC website, provides this
wider picture, and confirms the importance of the hospitality
and leisure sector to Kensington and Chelsea. Tourism is enormously
important to London economically, and restaurants, as the attached
report makes clear, are one of the reasons for the raising of
RBKC's international profile. Finally, restaurants tend to be
small businesses, which means that RBKC and its residents are
not exposed to any one major employer. The report reflects this
as a very positive factor for RBKC's future.
We would therefore stress very strongly that to suggest
that a proliferation of restaurants in central London is somehow
to be regarded as damaging for local residents or something undesirable
would be an unreasonably narrow view.
It is Government policy to encourage the development
of residential accommodation in all town and city centres. But
central residential accommodation also gives rise to the need
for leisure and hospitality facilities for local consumers, of
which restaurants are a part, and which bring investment and employment
opportunities to such areas that benefit local residents. The
attached report indicates that there are areas of stressed socio-economic
conditions in the RBKC. Nationally, unemployment stood at 5.5
per cent in November 2000, but was more than 10 per cent in two
of RBKC's wards. The Government does however wholly agree that
the benefits which restaurants bring to local economies have to
be balanced with the nuisance factors which can arise for some
residents later in the evening. The Government believes that the
protections in existing law in respect of licensed premises provide
the necessary balance in the context of restaurants.
The Government also believes that the vast majority
of the problems of street noise late at night in central London
(in areas such as Westminster, Camden and RBKC) are primarily
associated with customers leaving public houses, nightclubs and
discotheques after closing time; and are less associated with
customers leaving restaurants. Key factors are age and levels
of alcohol consumption. The Government are addressing these issues
through the Criminal Justice and Police Bill which is currently
before the House of Lords.
In considering our response to this question, the
Committee will also wish to note points made in response to Question
Question 5: It is
illogical that the ability of restaurants to serve alcohol with
meals after the time covered by supper hours certificates depends
on the simultaneous provision of live entertainment. If the provision
of entertainment were thought to be necessary to enable the sale
of alcohol after normal permitted hours, following the provisions
in the present law enabling nightclubs to sell alcohol until 2am
on weekdays (3am in London) then there might be an argument, in
the interests of consistency, for requiring restaurants to provide
entertainment, but no reason to insist that the entertainment
was live: nightclubs are not subject to such a requirement. On
the same premise, the entertainment requirement should apply to
restaurants during the supper hour also, which it does not. So
the premise does not stand up even within the context of the present
licensing framework, which the Government sees as itself in need
Question 6: The Home
Office agrees that the lifting of a regulatory requirement imposing
costs on business could lead to some modest expansion of business
for restaurants only. But it questions the description of the
proposal as allowing "very" late night opening. In the
first place, extended hours orders for weekdays cover the period
from midnight to 1am: earlier on Sundays. 1am is not very late
at night in comparison to nightclubs, which can serve alcohol
until 3am in the West End of London and 2am elsewhere. Moreover,
many discotheques now open later than 2 or 3am under the terms
of their public entertainment licences, issued by local authorities,
but do not sell alcohol after the end of the period limited by
their special hours certificates, issued by magistrates. In the
second place, the proposal relates not to restaurants' trading
hours, but to their ability to sell alcohol with meals. They do
not need an extended hours order to open for business, as the
Committee's question implies.
The question also takes no account of the checks
already available against disturbance to residents. The licensing
justices are not required to grant any application for an extended
hours order. They have a broad discretion, and can use it where
the circumstances of the case so justify, to refuse an application
or to ask the restaurant to improve its noise controls. And of
course restaurants are subject to noise nuisance law in the same
way as any other premises. For example, under the Environmental
Protection Act 1990. This enables local authorities to take enforcement
action under that law if problems arise.
The public consultation on the proposal presently
under consideration constitutes the only specific research which
the Home Office has conducted of the kind described in the question.
However, the White Paper "Time for Reform: the Modernisation
of our of Licensing Laws" (Cm 4696) published on 10 April
2000, included a proposal to introduce flexible opening hours
for all licensed premises, including restaurants, to minimise
public order and disturbance resulting from fixed closing times,
subject to consideration of the impact on local residents. On
29 November 2000, in response to a request from the Right Honourable
Member for Maidstone and the Weald, the Home Secretary gave instructions
for the responses to the White Paper from 558 bodies to be placed
in the Library of the House. A further 656 responses were received
from Members of Parliament, on behalf of their constituents, and
from private individuals. These were not placed in the Library
as no advance notice was given that their views would be published.
Of those replies which commented specifically on licensing hours,
56 per cent were in favour of the proposal and 44 per cent were
Question 7: Regulatory
Impact Assessments are prepared in accordance with the published
guidance of the Cabinet Office ("Good Policy Making: A Guide
to Regulatory Impact Assessment"). The primary purpose of
a Regulatory Impact Assessment is to assess the impact, in terms
of costs, benefits and risks of any proposed regulation or deregulation
which could affect businesses, charities or the voluntary sector.
The RIA was prepared accordingly within the Home Office, taking
the advice of the Cabinet Office Regulatory Impact Unit, and was
initially published in draft as part of the consultation document.
It was then presented to the Committee of each House, after taking
account of all the responses to the consultation document, some
of which referred to the draft which was published. A wide range
of independent advice was therefore available.
I hope these comments and replies will be helpful
to the Committee as they continue their scrutiny of the proposal.
I am copying this to the Clerk of the Delegated Powers
and Deregulation Committee in the House of Lords, and to the Cabinet
Office Regulatory Impact Unit.