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.
DEREGULATION (LICENCE TRANSFERS) ORDER 1997
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.
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.
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
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.
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.
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."
13. In our
earlier report, we made the following comments on the Home Office's
"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."
the publication of the Committee's report, but within the 60 day
period for parliamentary consideration of the proposal,
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.
The Committee has considered the evidence with care, but its earlier
conclusions remain unchanged.
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.
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 (http://www.parliament.uk), where further information about the work of the Committee is also available. Back