Select Committee on Deregulation and Regulatory Reform First Report

Committee consideration of the proposal

14. We first met to consider this proposal on 17th July this year, the day after the Committee's establishment. We did not anticipate any difficulties. The proposal itself was in substantially the same form as the Deregulation (Millennium Licensing) Order, which our predecessor Committee had considered, and cleared, two and a half years previously.[16] Many of the matters which the House has instructed us to consider could therefore be expected not to give rise to any concerns.


15. We were immediately satisfied that the proposal was appropriate for delegated legislation. We were also satisfied that the proposal would reduce a burden. Permitted hours for pubs and registered clubs run from 11 a.m. to 11 p.m. on weekdays (New Year's Eve this year falls on a Monday). Subject to the approval of licensing justices, nightclubs and restaurants may stay open later B up to 2 a.m. for nightclubs (3 a.m. in central London) and up to 1 a.m. for restaurants. Special extensions to normal hours can be granted by magistrates, on application from a licensee. Magistrates are required to consider whether there are special circumstances to justify extra hours on the night or nights proposed. The proposed order would allow for a general 12 hour extension of permitted hours, allowing uninterrupted opening from 11 a.m. on 31 December 2001 to 11 p.m. on 1 January 2002. The Department told us that almost all the affected licensees are expected to want some extended hours for New Year's Eve this year.[17] A general 12 hour extension of permitted hours on New Year's Eve would remove the need for such licensees to apply for extended hours.


16. Similarly, we conclude that the proposal has been the subject of appropriate consultation. The crown court, all police forces and authorities, all magistrates' courts and committees and all local authorities in England and Wales were consulted, as were a further 125 individuals and bodies who were known or likely to hold a view on licensing matters. Press notices from the Home Office and the Cabinet Office made the proposal more widely known, and the consultation document was made available on the websites of both those two Departments. In accordance with section 5(1)(d) of the 2001 Act, the National Assembly for Wales was consulted separately about the proposal.

17. The Department received a total of 115 responses to the consultation. Of these 115 individuals or bodies, over 84 per cent (97) supported the proposals. Almost 15 per cent (17) opposed the proposed order and less than 1 per cent (1) held no views. Those opposing the proposal were chiefly residents' associations and local authorities, although two police forces were also opposed;[18] 15 forces, however, declared themselves in favour of the proposals, as did 37 local authorities. Magistrates/benches were also overwhelmingly in favour of the proposal.[19]

18. Opposition to the proposal focussed on the disturbance to local residents which could be caused by all-night drinking. These concerns relate to the maintenance of necessary protection, which we discuss elsewhere in this Report.[20] Subject to our comments on that issue, we are satisfied that the Department responded adequately to the concerns raised by consultees.

19. No changes were made to the proposals specified in the consultation document. However, following the suggestion of the police during the consultation period, the Department reduced the period between notification being given to the licensing authorities, and the application for a restriction order being heard, from twenty-one days (as it was in the 1999 Millennium Licencing Order) to five. This was done in order to permit the police, local authorities and local residents to have as much time as reasonably possible to consider whether to apply for and to decide to seek restriction orders, a point crucial to the maintenance of necessary protection.[21] We are satisfied that this change would not significantly disadvantage those licensees who may be subject to applications for restriction orders.


20. We are also satisfied that the Government has made, and taken appropriate account of, estimates of increases or reductions in costs or other benefits which may result from the implementation of these proposals B although we have more to say on this matter under "desirability" below.[22] The Department estimated that 134,000 pubs and clubs which would normally apply for special orders of exemption will save the costs of this application, which the Department estimates to be approximately ,70 per application. This results in a saving of ,9.4 million. However, the Department also estimated that approximately 700 clubs and pubs would be faced with the costs of opposing restriction orders, estimated at around ,500, making a total cost of around ,350,000. The overall saving to the trade was therefore estimated at around ,9 million. The abolition of special orders of exemption for New Year's Eve would not result in savings for licensing authorities, since the fees charged for these orders are based on full cost recovery. The costs to licensing bodies of processing applications for restriction orders would, the Department argues, be minimal, since they would be marginal to the task of making the very large number of other licensing decisions which fall to them every year.[23]

21. Cost savings for the police are said to be difficult to estimate. According to the department there would be some saving in that officers would not be required to be present at licensing hearings for applications for special orders of exemption. However, the police may need to incur the costs of making applications for restriction orders. As far as the costs of policing on New Year's Eve itself are concerned, the Department concludes that the costs of policing extended licensing hours are likely to be marginal to the policing of large crowds attending public celebrations on New Year's Eve.[24]

22. Local authorities and local residents making applications for restriction orders (see para ? below) are also likely to face costs. The department estimates this to be £3,000 nationally for local authorities and ,12,500 nationally for residents.[25]

23. The Department also argues that the proposed order would lead to additional benefits as a result of the abolition of fixed closing times. Such benefits include a safer environment as a result of a reduction in problems of disorder and street noise; a reduction in binge drinking; the dispersal of crowds in an orderly manner; and reduction of the density of people and noise at peak hours.[26]


24. Nor did the majority of the new tests set out in the Regulatory Reform Act (to which the Millennium Order would not have been subject) raise any difficulties. The proposal does not prevent any person from exercising any right or freedom which he or she might reasonably expect to continue to exercise. We are also content that the proposal satisfies the conditions of proportionality set out in sections 1 and 3 of the Regulatory Reform Act. Section 1(1)(c) requires that any new burden created be "proportionate to the benefit which is expected to result from its creation". The Order creates the new burden on licensees of restriction orders, which may restrict their permitted hours on New Year's Eve this year. This appears to us to be proportionate to the benefit to local residents, local authorities or the police of enabling them to restrict the opening hours of premises which may give rise to problems of disturbance or disorderly conduct. Section 3(2)(a) requires that the provisions of the Order, taken as a whole, strike a fair balance between the public interest and the interests of the persons affected by the burden being created. We agree with the Department that the proposed extension of licencing hours and the provision for the making of restriction orders strikes a fair balance between the commercial interests of the licensed trade, the interests of the consumer (in being able to enjoy unrestricted opening hours over the New Year holiday period), and the public interest in preventing or controlling nuisance, disturbance or disorderly conduct.


25. To ensure that necessary protection is maintained, the proposal provides for a system of restriction orders which would allow courts to impose earlier closing times on individual premises in order to avoid or reduce disturbance or annoyance to local residents or disorderly conduct by customers. An order could be applied to any part of the extended hours. Applications for restriction orders could be made by the police, local councils or local residents. Under the current procedures governing extensions of permitted hours, although anyone can object to the grant of an extension, there are no rights of appeal against such a grant. Extensions can be granted without a hearing and there is no requirement for a licensee to give notice of his application. The proposed Order provides for a right of appeal for licensees to the Crown Court against a decision to make a restriction order, or against its terms.

26. These arrangements are substantially the same as those provided for in the Millennium Licencing Order, which our predecessor Committee cleared in 1999. In principle, therefore, there should have been no difficulties with the proposal. However, the Department's failure to bring the proposal forward at an earlier date presented us with a significant problem concerning the practical operation of the system of restriction orders.

Timetable for consideration of the proposal

27. From the date of laying before Parliament, the Regulatory Reform Act allows a period of 60 days for Parliamentary consideration of regulatory reform proposals.[27] Those sixty days exclude periods of dissolution or prorogation, or any time during which either House of Parliament is adjourned for more than four days.[28] No draft Order giving effect to those proposals may be laid before Parliament until those 60 days are up, irrespective of how quickly we or our counterparts in the Lords may report on a proposal.[29] Once a draft Order is laid, it must be considered again by both Committees, then by both Houses, and only once approved by both Houses can it be made and brought into force.

28. Consequently, taking into account the Parliamentary summer recess, at the time the proposal was laid before Parliament (and at the point when we first considered the proposal) the earliest likely date on which effect could be given to the Special Occasions Licensing proposal was around the second week of December. The question which immediately arose was this: was there enough time for the system of restriction orders to operate effectively?

29. At the time of our initial consideration of this proposal, we were highly sceptical of whether sufficient time would be allowed. A period of less than three weeks would be available for the police, local authorities or local residents to apply for a restriction order in respect of particular premises; the licensee concerned to prepare a defence against the application; the relevant licensing authority to consider the application; and, if necessary, the licensee to appeal against the grant of such an order and such an appeal to be heard. All this during the Christmas holiday period. Notwithstanding the reduction (compared with the Millennium Order) to five days of the period between notification being given to the licensing authorities, and the application for a restriction order being heard, we were not inclined to regard this timescale as reasonable.

30. Indeed, the Department itself recognised that the timing meant that its proposals were flawed (though we note that it did not see fit to say so in the main body of the explanatory statement laid before Parliament). In response to concerns about the provision for appeals against the granting of restriction orders expressed during consultation by Hampshire Constabulary , the Department said:

The DCMS ... recognises that in practice it is unlikely that the Crown Court could complete an appeal against a decision by magistrates to impose a restriction order in December before New Year's Eve. In addition, the appeal has no suspensive effect and the order would remain in place until set aside by the Crown Court. ... [30]

The Department was thus laying before Parliament a proposal which it knew could not work as intended.

Consequences of the late date of laying

31. It was evident to us that the Government and the licensed trade needed to be warned that it was possible that the Committee would not be able to clear the proposals. As noted in responses to the consultation, a late decision on the proposal would make planning for licensees difficult both in the context of waiting to decide if a special order of exemption would be necessary and, for some licensees, in deciding when to seek a variation of public entertainment licences.[31] One respondent in particular, a firm of solicitors who represent licensees, suggested that a decision on the proposal needed to be made by the end of July.[32]

32. We therefore issued a press notice indicating the Committee's intention to invite evidence from a Government Minister, during which the Government would have to convince us that necessary protection could be maintained in the face of a significantly compressed timetable.[33] We understand that, as a result of the issuing of that notice, a number of licensees decided that they could not wait until December before making firm plans for New Year's Eve, and applied for special orders of exemption to cover that period.[34] Regrettably, as a result, it seems likely that a large percentage of the ,9 million which the Department estimated would be saved by business as a result of the proposal will now be lost.[35]

"Desirability" and the adequacy of the proposal as a "trial run"

33. The fact that many licensees would not wait until December before making firm plans for New Year's Eve in turn raised a further question. Where an order imposes a burden, Section 3(2)(b) of the 2001 Act requires that the extent to which the order removes or reduces one or more burdens, or has other beneficial effects for persons affected by the burdens imposed by the existing law, makes it desirable for the order to be made. The Department argued in its explanatory statement that the Order "would remove the considerable administrative and legal burden involved in applying for and processing special orders of exemption."[36] To what extent, though, would the Order actually remove a burden, if licensees were applying for special orders of exemption anyway; and to what extent was it therefore desirable (in terms of the Regulatory Reform Act) that the Order should be made?

34. Additionally, it was not clear to us that relaxation of licencing hours at New Year this year could, in the circumstances, serve as an adequate "trial run" in advance of future permanent relaxation for New Year's Eves. It would be difficult, it seemed to us, to draw meaningful conclusions about the arrangements which were to be put in place if those arrangements were not to be given sufficient time to work as intended.

35. We therefore wrote to the Department asking for further information on both the issue of timing and a number of other matters related to the proposal.[37] We also wrote to representatives of the licensed trade; the police; and representatives of licensing authorities.[38]

Government response to concerns

36. The Department's response to our concern regarding the timescale was to express its belief that the police, local authorities and local residents would still have sufficient time to apply for restriction orders in respect of licensed premises which might give rise to problems. This belief was based on three main factors:

  • furthermore, the majority of such applications are expected to be made by the police, whose licensing officers "are generally well aware of which premises in their divisions pose problems on busy nights";

37. Furthermore, the Department contended, even if only a very short period is allowed in which to seek a restriction order, the draft Order provides local residents in particular with more influence than they have now in respect of such nights. Under current arrangements, the vast majority of on-licensed premises and registered members' clubs are granted special orders of exemption for a normal New Year's Eve at the discretion of magistrates, allowing various extensions of permitted hours up to 12 hours. Only 24 hours notice has to be given of such an application. The application does not have to be advertised, though the chief officer of police must be notified. Only the chief officer of police has a formal right to object, and there is no requirement on the justices to hold a public hearing. The 1964 Act provides no entitlement to appeal, either by the applicant or a third party, against the grant or refusal of a special order of exemption. Parliament had not, therefore, the Department argued, given either local authorities or local residents any locus in the existing procedures; whereas the arrangements in the proposed Order provide them with a significant opportunity to restrict the opening hours of premises which may cause them nuisance.[40]

38. The Department also argued that section 17 of the Criminal Justice and Police Act 2001, which provides the police with new powers instantly to close down disorderly or excessively noisy licensed premises where that is necessary in the interests of public safety or to prevent further disturbance to the public, would give local residents additional protection against excessive disturbance.[41]

39. These arguments were reiterated when the Minster came before us to give evidence on the proposal. The Minister also noted that the recall of Parliament during the summer recess had brought forward the end of the statutory 60-day period for Parliamentary consideration of the proposal, and therefore extended the time available for the consideration of restriction order applications by around a week.[42]

40. Also during oral evidence, one of the Departmental officials responsible for the proposal responded to concerns regarding the value of the relaxation as a "trial run" in advance of a more permanent relaxation of permitted hours on all future New Year's Eves. "In terms of the way we planned to look at the impact of the Order," he said,

the key areas we considered would be the position taken by the three groups (the local authorities, the police and the magistrates); the key issue for us in reflecting on the impact of the Order during a New Year's Eve would be what actually happened in licensed premises, on the streets, in and around the general event and, therefore, the impact on the community ... In reflecting on whether restriction orders have worked as an effective measure, we will be looking at the view taken by the people who apply, who are either going to be successful or not in applying for restrictions, and whether they feel they got a reasonable hearing and they got a reasonable chance to influence what actually happened.[43]

The Government is confident, therefore, that the timescale will not prejudice the information which will be gained from the exercise in advance of consultation on future proposals.

Response from other interested parties

41. We had a mixed response from representatives of licensing authorities. The Association of Justices' Chief Executives and the Justices' Clerks' Society shared our concerns both about the necessity of issuing a clear statement about whether the proposal was likely to become law or not; and about the ability to apply for a restriction order.[44] They suggested that it would be better to delay implementation of the proposal until next year. The Magistrates' Association, on the other hand, indicated that licensing justices "would be willing and able to take on extra sittings if necessary to deal with any increase in applications for restriction orders".[45]

42. A less equivocal response came back from representatives of the licensed trade. There was unanimity amongst those to whom we wrote that, notwithstanding the late introduction of the Order, it would be beneficial for it to proceed -- not least because they were keen that the "trial run" in advance of possible future permanent relaxation of New Year's licencing hours go ahead as soon as possible.[46] The point was also made that the current system can lead to inequities, as licensing authorities in different districts grant special orders of exemption for differing periods of time; the proposed Order would provide for uniform permitted hours across the country (subject to any successful applications for restriction orders in the case of rowdy or disorderly premises).[47]

Necessary protection and desirability: conclusion

43. There is no doubt that the proposal will result in a less than an ideal situation. Those police forces, local authorities and local residents who wish to take advantage of the provisions allowing them to apply for restriction orders (to say nothing of the licensing authorities who will have to consider those applications, and licensees themselves) will be unnecessarily inconvenienced by the Department's failure to bring this proposal forward in better time. Nevertheless, we are persuaded that, notwithstanding the very tight timescale, the situation which would prevail should this proposal become law would not result in a lesser degree of protection against excessive noise or nuisance than that which currently obtains.

44. We are also now satisfied that it is desirable that the Order should be made. Responses from representatives of the licensed trade (referred to by the Minister in oral evidence[48]) indicate that many licensees have indeed applied for special orders of exemption in respect of New Year's Eve this year; and that as far as they are concerned, the financial savings at least have been lost. Nevertheless, some licensees have not yet applied for such orders, and there will therefore be some financial and administrative benefits for them (and for licensing authorities in not having to consider applications). Furthermore, there are other benefits which will accrue should this Order become law:

  • special orders of exemption will, for the most part, not allow extensions of permitted hours for the whole of the period specified in the proposed Order: passage of the Order will, therefore, benefit even those licensees who have obtained such orders;

  • such an extension of hours will benefit not only licensees themselves, but also their customers;

  • the draft Order would remove inconsistencies in licensing hours between licensing districts, and fixed closing times in any area, which the Government argues contribute to crime and disorder by encouraging binge drinking close to earlier closing times and producing large numbers of people on the streets simultaneously;[49] and

  • we are satisfied that, as a pilot, it would provide the evidence the police and magistrates have requested before supporting any permanent relaxation for future New Years' Eves, and help the Government in deciding whether to bring forward such a proposal.

45. We have two important provisos to our clearance of this proposal, however. Firstly, we recommend that the proposal be amended by the deletion of the provisions relating to a right of appeal for a licensee against the grant of a restriction order. It may have been desirable for such a provision to have been included had the proposed Order been able to come into force sooner, but we are satisfied that, whilst desirable, it is not necessary.[50] As the Department acknowledges, the late introduction of the Order means that its inclusion would serve no useful purpose;[51] and in view of that fact we consider that it would be inappropriate to include it. We understand that licensees themselves have indicated that they are content for the proposal to go ahead without an appeal provision.[52]

46. Secondly, and perhaps more importantly given the tight timescale within which applications for restriction orders must be made and dealt with, it is vital that adequate publicity be given to the ability of local residents, local authorities and the police to apply for such orders.[53] The Government must ensure that every local authority and police force is circulated as soon as possible after the order comes into force with details of the procedures for doing so. Similarly, the press, particularly the local press, should be informed that these provisions will come into effect, so that those who live near premises which might give rise to difficulties are given the best possible chance of hearing about the opportunity to apply for restriction orders. We will be looking for assurances from the Department that these arrangements will be put in place when we examine any resulting draft Order at "second-stage" scrutiny.

16  op citBack

17  Explanatory Statement, para 39. Back

18  See responses from Gloucestershire Constabulary and from the Licensing Officer, Watford Central, Explanatory Statement, Annex B. Back

19  Explanatory Statement, paras 49B50, Annex B. Back

20  See paras 25 to 46 below. Back

21  Explanatory Statement, para 53. See para 29 below. Back

22  See paras 33, 42, 44 below. Back

23  Explanatory Statement, paras 39B41. Back

24  ibid, paras 42B43. Back

25  ibid, para 44. Back

26  ibid, para 47. Back

27  Regulatory Reform Act 2001, s8(2). Back

28  ibid, s8(3). Back

29  ibid, s8(1). Back

30  Explanatory Statement, p.29 (Annex B). Back

31  See comments from Poppleston Allen, Licensing Solicitors, Explanatory Statement, p.31 (Annex B). Back

32  See comments from Addleshaw Booth & Co, Solicitors, Explanatory Statement, p.31 (Annex B). Back

33  Deregulation and Regulatory Reform Committee Press Notice No. 1 (2001B02), dated 19 July 2000. Back

34  Appendix 2, para 20; QQ1, 10. Back

35  Appendix 2, para 20; Q10. Back

36  Explanatory Statement, para 38. Back

37  Appendix 1. Back

38  Appendix 4, Appendix 8 and Appendix 10. Back

39  Appendix 2, paras 35, 36. Back

40  Appendix 2, para 40. Back

41  ibid, para 31. Back

42  Q3; Q19. Back

43  Q9. Back

44  Appendix 6, Appendix 7. Back

45  Appendix 5. Back

46  Appendices 11 to 15. Back

47  Appendix 11, Appendix 13, Appendix 15. See also Appendix 2, paras 25B28. Back

48  Q1. Back

49  Appendix 2, para 23. Back

50  See Q8. Back

51  Appendix 2, para 37. Back

52  Q8. Back

53  See QQ20, 27. Back

previous page contents next page

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

© Parliamentary copyright 2001
Prepared 8 November 2001