Select Committee on Delegated Powers and Deregulation Ninth Report



49. A consultation paper setting out the Government's proposals was issued on 1 May 1999. Responses were requested by 30 September 1999.

50. The Committee considered the consultation document at its meeting on 19 May 1999, when it noted that Welsh organisations were under-represented in the list of consultees. The Home Office responded to the Committee's letter pointing this out by sending the consultation paper to the Welsh Local Government Association, the Welsh Development Agency, the Welsh Association of Community and Town Councils and the North Wales Association of Town Councils. The Home Office also added these organisations to its list for future consultation exercises.

51. Although in its response to the Home Office Warwick District Council expressed concern that the list of consultees was "far from comprehensive", noting that it had received its copy of the consultation paper through the Local Government Association, the Committee considers that the Home Office's final list of those who were consulted, or who were not formally consulted but who responded anyway, was adequate. We also welcome the fact that the Home Office published the consultation paper on its Web Site - a fact referred to in a couple of responses, where individuals had had access to the Home Office's proposals by this means.

52. Paragraph 32 of the explanatory memorandum states that "all the licensing authorities - the police, the Magistrates' Association, the Justices' Clerks' Society and the Local Government Association - supported the proposal". This is not quite accurate. Two of the six police organisations consulted were opposed, and the Association of Chief Police Officers supported the proposal but considered that it would have resource implications for forces in having to police areas during what was previously a quiet period.[9] The Local Government Association suggested that local authorities should be able to object to applications for extended hours orders for restaurants. They considered that the risk of disturbance to residents from customers leaving restaurants late at night on Sundays might be just as great as from customers leaving discos.[10]

53. According to the Home Office's explanatory document, the breakdown of the 328 responses received by the Home Office to the consultation paper was as follows:[11]

In favour of proposals
No preference
Local authorities
Residents Associations

54. The Committee attached particular weight to the responses from the local authorities, since these have no axe to grind other than that they would have to make the more liberal regime work. The Home Office's memorandum (paragraph 30), states that:

    58 local authorities were in favour of its proposals;
    9 were opposed; and
    4 expressed no preference.

The Home Office subsequently agreed[12] with the Committee's own rather fuller analysis, which is as follows:


    33 local authorities were fully in favour of the proposals (one responded twice);
    24 were in favour, but with reservations/proposed amendments;
    5 expressed no clear preference, but all suggested modifications;
    1 supported the liquor licensing proposals only, and those with modifications;
    5 were opposed (and so was the Kensington and Chelsea Opposition Group).[13]

55. We also considered carefully, over six meetings, the responses of those who would be adversely affected by the proposal. We set out their concerns about the maintenance of necessary protection, and our response to these concerns, in the following paragraphs.

56. We are satisfied that there was adequate consultation.

Necessary protection - workers

57. In its 1995 report the Committee commented that greater efforts should have been made to consult workers' representatives (paragraph 26 of the Report) and noted that the TUC had not been consulted nor had any trade union other than that representing licensed house managers. This time the TUC and the TGWU have been consulted and neither appears to have raised any objection to the proposal. The Home Office has sent the Committee the "Sunday working - code of conduct" produced by the British Entertainment and Discotheque Association which will bind its members. The explanatory memorandum argues (in paragraph 38) that there will be sufficient protection for workers.

58. As the Home Office's Consultation Document also pointed out, "the Working Time Regulations, which came into force on 1 October 1998, provide for all workers to be entitled to a day off each week (or two days a fortnight), together with rest breaks and restrictions on hours, including night work. Both the Working Time Regulations and the BEDA code of practice are new developments since the last deregulation proposal."[14]

59. In its response to the consultation paper South Lakeland District Council pointed out that very few of over 200 premises holding a public entertainment licence within its district were members of BEDA, and they were therefore "unlikely to benefit from the protection referred to in the consultation document". They also considered that the "Working Time Regulations are not in themselves likely to afford any protection given the way that hours are averaged over such a long timescale. It is the Council's belief that opting out procedures need to be applied in the same way as they do to, for example, the Sunday Trading Act."

60. Nevertheless, the Committee agrees with the Home Office's analysis that, in combination, these measures should prevent workers who are covered by the Working Time Regulations from working excessive hours, and ensure that they have adequate breaks, and enable entertainment establishments to operate with workers who are willing to be employed on Sunday.

61. In our 1995 report we concluded that the proposal failed to continue necessary protection for employees. We are satisfied that the two additional protections summarised above mean that the proposal is now satisfactory in this respect.

62. We are satisfied that the proposal would maintain necessary protection for employees.

Necessary protection - residents

63. The explanatory memorandum explains that the draft order provides remedies to residents who fear that their Sunday evenings and nights will be ruined by the disturbance that the changes would bring. In the first place, justices will have to approve applications for variation of the existing special hours certificate before the changes take effect in particular premises and in reaching their decisions they are to "have regard to the special nature of Sunday". In the Committee's view, however, the relevant concept when considering the maintenance of necessary protection for residents is not "the special nature of Sunday" but rather the present nature of Sundays in the neighbourhood of the premises concerned. For example, Kilburn High Road late on a Sunday is as busy as most high streets on a Friday night, while there will be night clubs in some residential areas which are "dead" on a Sunday.

64. The draft order also provides a remedy aimed at premises which have taken advantage of the proposed relaxation but where this has caused disturbance or annoyance (the new section 81AA added to the Licensing Act 1964). Here the problem is that only the police can invoke the remedy, and residents may believe that the police do not have sufficient resources to deal with crime, let alone to act on behalf of residents complaining of noise on a Sunday night, when traditionally the police presence on the streets has been at its lightest.

65. Paragraph 37 of the explanatory memorandum states that residents associations would like any person - not just the police - to be eligible to apply for revocation of a special hours certificate relating to Sundays, but that the Government is proposing to allow only the police to apply for revocation, which "would be consistent with the existing arrangements for other days. Revocation action could still be prompted by residents and other individuals." The Committee recalled that the proposal for the draft Deregulation (New Year Licensing) Order 1999, which the Committee considered last year (18th report 1998-99, HL Paper 73, paragraphs 21-23), contained a different system, under which an application could be made by the police, local residents or local authorities,[15] and asked the Home Office why a different approach was chosen for the present proposal.

66. The Committee also asked the Home Office for further information on how necessary protection would be maintained for local residents if they themselves are unable to apply for revocation of a special hours certificate.

67. In its response, the Home Office considered "that providing local residents with a right similar to that of the police to seek revocation of a special hours certificate is unnecessary and undesirable. The existing scheme appears to balance successfully the need for the involvement of public residents before any permission is granted and for the police to move swiftly to counter disorder with the need for some degree of certainty to allow proper business planning. We therefore consider that it should be the starting point for the model adopted for Sundays. By giving weight to the special nature of Sunday, and affording the police wider powers to seek revocation in respect of that day, the proposal modifies the model sufficiently to provide proper public protection."

68. We explored these issues with the witnesses from the Royal Borough of Kensington and Chelsea and the Home Office and their views are set out in the Annex. Our conclusion is that in areas where leisure facilities are surrounded by residential property, as is the case in the Royal Borough, there is at present no satisfactory protection on any night of the week for the rights of residents to peaceful nights. At present in such areas Sunday night is the one night of the week when residents are left in peace and the proposal would deprive them of that. We see the provisions in the draft order as doing very little to reduce the risk of this loss of protection to residents.

69. One part of the protection offered by the Home Office is the requirement that justices must have regard "to the special nature of Sunday" when considering whether a special hours certificate should include Sundays and if so whether it should be limited in the hours it allows. This attracted some anxious comments from some of those who were consulted.

70. The Federation of Licensed Victuallers Associations, commenting on the Consultation Paper, welcomed the general principle of de-regulation and, in particular, the changes as proposed to the Law on Sunday Observance and Liquor Licensing. Whilst it understood and appreciated that wherever possible the disturbance of residents caused through noise and nuisance was to be avoided it thought that to incorporate a further requirement under the Licensing Act 1964 "to consider the special nature of Sunday before reaching a decision on a Special Hours Certificate" was contradictory to the proposed deregulation legislation. The Federation thought "that some Licensing Committees may simply amend their Policy Statement (e.g. "the Committee considers that Sundays are special by their nature and inappropriate for the grant of Special Hours Certificates"), thus rendering this deregulation proposal redundant."

71. The Federation also objected to the proposed requirement for the Licensing Authority "to consider the special nature of Sunday before reaching a decision". It said that "the merit of an Application will be meaningless until this preliminary hurdle is overcome. It seems to the Federation that a Committee would find it difficult to reverse a decision that Sundays are special by nature, if such is their finding on the prior Application considered by them. How can Sundays cease to be special for some premises and not for others?" The Federation also considered it illogical that the terminal hour on Sundays should be any different from other week days. In their view the argument that "the majority of people go to work on Monday" does not hold good when considered against the fact that Special Hours Certificates can apply to each week day. It also considered that ample protection was provided to local residents within the Local Government (Miscellaneous Provisions) Act 1982.

72. The Royal Borough of Kensington and Chelsea (RBKC) said that although it was the smallest London borough it had some 1400 licensed premises in its area. 500 of these licensed premises were restaurants which could serve alcohol until 11.30 pm on Sundays. 96 premises had public entertainment licences with 55 having special hours certificates up until 2.00 am on weekdays and Saturdays. The nature of development in the borough meant that residential property of all sorts was cheek by jowl with retail and licensed premises. There had been a growth in activity in licensed premises in recent years.

73. RBKC said that the proposal would allow the sale of alcohol in restaurants and clubs up until 12.30 am on Monday morning, and with a further half an hour drinking up time patrons would be making their way home between 12.45 am - 1.15 am on Monday mornings. This was too late and would be disruptive. For the majority of residents, Monday morning represented the first day of the working and school week. In that context while residents were prepared for late night/early morning activity on Fridays and Saturdays, they needed peace and quiet on Sunday nights.

    "In an area like Kensington and Chelsea such a proposal will have a severe impact on those who rise early on Monday morning, schoolchildren and even those intending to have a good night's sleep on Sunday nights having stayed up late on Fridays or Saturdays. Car doors slamming, restaurants and clubs closing with noise in the streets is extremely intrusive. For residents such further intrusion on Sunday nights would be the last straw."

74. RBKC also said that there was a view that whilst some activity on Sundays was appropriate in a modern society, there should still be respect for those who treat Sunday as a day for prayer and worship. This had been recognised by public houses closing half an hour earlier and by supermarkets only being allowed to stay open for 6 hours between 10.00 am and 6.00 pm. These measures suggested that Sundays and especially Sunday nights were special and should remain special for compelling and sound reasons. RBKC questioned the basis upon which Sunday was to be considered special. Would it address religious matters, employment issues, noise and disturbance and the nature of the surrounding areas? Would distinctions be drawn between city centres like Coventry, rural areas and mixed areas like Chelsea? Would there be a distinction between premises on arterial roads and in quiet side streets or cul-de-sacs? How would the guidelines be followed by the Courts and local authorities?

75. RBKC pointed out that guidelines might be rigidly adhered to, taken as an indicator, given very liberal interpretations or even ignored. Residents would find it very difficult, time-consuming and costly to challenge applications, and if guidelines were imprecise legal advice might be needed to interpret them. In RBKC's view, guidelines and guidance generally were appropriate for such matters as planning but were not suitable for subjects so contentious as late night disturbance on Sundays. The burden of proof would rest firmly with residents and the Council. In an area which has reached saturation point with public houses, restaurants, hotels and clubs it was not possible to distinguish in many cases which establishment is causing noise. It was onerous for residents to give evidence, and they believed they should not have to do so just to obtain peace and quiet. There was no acceptable substitute to closing times. The Council already spent nearly £1M per annum on combating noise nuisance and dealing with licensing issues. This figure would need to increase substantially if the Council's services to residents were to be maintained in the event of either of the Sunday Dancing or the Sunday licensing for restaurants proposal becoming law.

76. In addition to the evidence received by the Parliamentary Committees on this subject, during the consultation exercise some respondents suggested that guidance would be needed on what was meant by "the special nature of Sundays" in order to ensure consistent interpretation around the country. So this point is of considerable importance.

77. The Home Office was asked by the Commons Committee, inter alia, about "the special nature of Sundays". Their answer is that this is given at paragraph 39 of the Explanatory Document and would be included in a circular to the courts, police and local authorities should the draft Order become law.

78. Paragraph 39 of the Home Office's explanatory memorandum reads as follows:

    "The concept of "the special nature of Sundays" features in the proposed additional protections for local communities and is aimed at avoiding noise or nuisance problems. For example, while some noise from discotheques might be acceptable in some parts of towns and cities on weekdays, local communities might prefer additional protections on Sundays to ensure that any disturbance to residents is reduced even further. The "special nature of Sunday" provisions would allow licensing justices to take this into account when considering applications for special hours certificates. Each case would have to be considered on its own merits, based on an assessment of the risk of disturbance from the premises concerned. The Government proposes to issue guidance along these lines to courts, police and local authorities should its proposal become law."

79. Two paragraphs on in the same letter from the Home Office to the Commons Committee the Home Office returned to the question of the special nature of Sundays:

    "The significance of Sunday for Christians in this country is well appreciated. However, we also recognise that we live in a multi-cultural society and there are a great many people who may prefer or need to take their weekly rest period on a day other than Sunday."

80. The draft order has no reference to guidelines. Nor does it require magistrates to take them into account. We are far from convinced that the concept of "the special nature of Sundays" will empower justices to reach sufficiently sensitive decisions about particular premises. Such decisions can be challenged in the courts and courts may not necessarily be significantly assisted by general guidelines issued by the Home Office as to what was intended by Ministers when the concept was included in the Order.[16] If Ministers wish to keep this provision in the draft Order, we recommend that when laying the "stage 2" order before Parliament the Government should also publish, in draft, its guidelines on "the special nature of Sundays", together with an explanation of the status of the guidelines in the courts. At this stage, we are far from confident that any guidelines will have significant effect.

81. But we see a more fundamental objection to relying on this injunction to licensing justices to have regard to the special nature of Sundays. The protection of residents is more appropriately the function of the elected councillors of the local authority having control over the licensing of places of entertainment. The Home Office has not suggested a way by which this could be achieved - they propose no change to the existing law in this area. The Royal Borough of Kensington and Chelsea witnesses saw no way of changing that law to enable them to provide the necessary protection but argued that what was needed in residential areas was a fixed closing time.

82. The Home Office based their case that necessary protection would be maintained on the stronger powers given to magistrates under the proposal.[17] These are clearly in principle helpful. We considered the possibility that these powers should be further strengthened in a number of ways, eg by reducing the closing hour or by giving a power of appeal to local residents. But we do not think that this would meet the real cause of concern. This concern is that the resources of applicants and the incentive for them to pursue appeals mean that in practice the scales are tilted against residents. In addition, the disturbance to residents generally will take place outside premises, and it is usually difficult to pinpoint the responsibility of any individual licensed premises.[18]

83. We see a central dilemma here. We believe strongly that these issues are more appropriate to be determined locally than by legislative prescription affecting all parts of the country equally. In this case it makes no sense to attempt a "one size fits all" approach. But at the same time there must be the opportunity to protect individual rights which are becoming increasingly important as concerns about noise rise in regard to the other six nights of the week.[19]

84. We are reluctant to advise the House to reject this proposal as failing to provide necessary protection. This would prevent the local decision-taking which we believe is the right way forward for this contentious issue, protecting the interests of those local authorities who are concerned about erosion of protection and yet allowing greater freedom for late night dancing and drinking on Sundays for those areas whose local authorities seek this. It would also place clear accountability on the local authority for the basic protection of their residents. Local authorities are best placed to judge the needs of their residents. As we have said, many authorities have welcomed the proposal as it stands. Others, the RBKC for example, see the need to protect their residents as a reason for urging the rejection of the proposal. We believe that necessary protection could be preserved by amending the draft Order to make the changes optional - a local authority would have to resolve that the provisions should apply in its area before the changes would take effect there.[20]

85. In a letter to the Committee BEDA objected to this "opt-in" proposal - which the Committee had discussed in oral evidence with the RBKC and the Home Office - on the two grounds that it could cause difficulties for residents living near the borders of local authorities and that they considered it might be ultra vires. We think that the "borders" problem would be a small one, and that under the existing regime there must be discrepancies in approach between licensing justices serving different areas. We also note that the Home Office official concerned had the chance to comment on the vires point in oral evidence, but simply observed: "I am sure my Ministers will look at any recommendation of that kind which the Committee brought forward." (Q 66).

86. The Committee sees no problem of vires here - the powers in section 1 of the 1994 Act are wide. There is express provision in section 1(4)(d) to make different provision for different areas and while that is not in form what we are suggesting, the provision indicates that Parliament was not ruling out even the most "local" of arrangements. In essence our position is that the burdens to be removed by the proposed order should be removed only if the necessary protection for residents in an area where residential and entertainment premises are intermingled can be maintained; that the proposal fails to make provision which will in practice preserve that protection; that the only effective solution is to give local authorities an effective veto over extended licensing hours on Sunday nights; and that that requires the order to provide a local option.

The White Paper on Licensing Reform

87. 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).[21] 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.[22] 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.


88. We have approached this proposal in the light of the continuing need, in our multi-cultural, multi-faith society, to balance the wishes of those who want to have "a good night out" with those who want - on one day a week - to be able to continue to enjoy a good night's sleep. The Committee's key concern about this proposal centres on how the proposed special hours certificate system would work to ensure the maintenance of "necessary protection" to residents and others who would be adversely effected by this proposal. To this end, we have recommended the amendment of the draft order to make the changes optional - a local authority would have to resolve that the provisions should apply in its area before the changes would take effect there.

89. We also recommend that when laying the "stage 2" order before Parliament the Government should also publish, in draft, its guidelines on "the special nature of Sundays", together with an explanation of the status of the guidelines.

90. We therefore accept - if, and only if, the amendment for an "opt-in" provision which we have proposed in paragraph 88 is included - that the proposal for the Draft Deregulation (Sunday Dancing and Licensing) Order 2000 meets the requirements of the Deregulation and Contracting Out Act 1994 and is appropriate to be made under it. [23] [24]

9   Explanatory memorandum, paragraph 28. In response the Government accepted "that some extra policing would be needed in some areas." The Committee notes that this would place an additional burden on the police, and that the hours would be "unsociable" ones, which are likely to be more difficult, and more expensive, to police. Back

10   Explanatory memorandum, paragraph 40. Back

11   Explanatory memorandum, paragraph 30. Back

12   In a letter dated 13 March 2000. Back

13   This adds up to 71 (the same total as the Home Office's figure), if one (i) allows the one case of double counting; (ii) counts the Kensington and Chelsea Opposition Group as a local authority, and (iii) counts the Local Government Association in the same way. Back

14   Consultation document, paragraph 31. Back

15   In its response to the consultation paper the London Borough of Sutton, which had "no strong views on the proposals", felt "that the power that licensing authorities have to prevent a special hours certificate operating on Sundays upon application by the police should be extended to the local authority. This would be in line with the proposals on New Year's Eve Licensing Hours". Back

16   In oral evidence Mr Cunningham of the Home Office said "My own view and certainly the view of Home Office lawyers would be that there is no guidance that could be issued by the Secretary of State which could bind the Crown Court." (Q 54). Back

17   Including in their oral evidence, Q 41. Back

18   This was emphasised by the Royal Borough of Kensington and Chelsea as being a key problem: see QQ 10-11, 13. Back

19   The Home Office agreed with the Royal Borough that this was the case (QQ 44-45).  Back

20   In this paragraph and elsewhere in our recommendations we are referring to local authorities which are responsible for licensing places of entertainment. Back

21   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

22   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

23   The deregulation procedure provides for a debate, if any peer wishes it, on an accompanying motion at the same time as the motion to approve a draft order. The companion motion is moved first and can be amended and voted on. There is a Government undertaking that, in the event of a motion hostile to a deregulation proposal being agreed to by the House, the motion for the draft order would not be moved (4th report, 1994-95, HL Paper 48, p 4). Although this procedure has never been used in the House of Lords, we attach considerable importance to it. Back

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

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