PROPOSED CHANGES TO THE LAW ON SUNDAY OBSERVANCE RELATING TO MUSIC AND DANCING, AND TO THE LAW ON LIQUOR LICENSING ON SUNDAYS
April 1999
1. This consultation paper seeks your views on the Government’s proposals to amend the Sunday Observance Act 1780 to allow charging for admission to public dances which take place on Sundays, and to amend the Licensing Act 1964 to allow alcohol to be sold at public dances after 10.30pm on Sundays in England and Wales.
2. It also seeks your views on associated changes for registered members clubs, casinos and late night restaurants.
3. The Government has in mind to make the necessary legislative changes by means of an Order under section 1 of the Deregulation and Contracting Out Act 1994, which provides a power to remove or reduce certain statutory burdens so long as necessary protection is not reduced. This paper therefore constitutes formal consultation on the proposals, as required under section 3(1) of the 1994 Act. Details of the Parliamentary process are contained in Annex A.
The proposals
4. The Sunday Observance Act 1780 prohibited charging admission to entertainments and amusements to which the public were admitted on Sundays. In England and Wales, Parliament has since removed this prohibition from many Sunday activities, but it still applies to public dances. Scotland has no prohibition. The Government proposes to amend the Sunday Observance Act 1780 so that charges can be made for public admission to dances or discotheques on Sunday in England and Wales.
5. The Licensing Act 1964, which applies to England and Wales, provides for special hours certificates. These may be granted in respect of on-licensed premises which are licensed for music and dancing and which provide substantial refreshment. Special hours certificates permit alcohol to be sold as an ancillary to the music and dancing and refreshment beyond the normal licensing hours up to 2am, or 3am in parts of central London. However, these certificates are not available on Sundays. The Government proposes to 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, but only until 12.30am.
Registered Clubs and Casinos
6. A registered members club which has appropriate facilities for music and dancing may also be granted a special hours certificate. Casinos also qualify for these certificates, but need not provide entertainment in addition to substantial refreshment. In both cases, the certificates may only operate until a latest time of 2am (3am in central London). The Government proposes to amend the Licensing Act 1964 to allow special hours certificates to be available on Sundays for registered members clubs and casinos, in the same way as for other premises with a liquor licence.
Restaurants etc.
7. The Licensing Act 1964 provides for extensions of the general licensing hours in restaurants and similar licensed establishments, where musical or other entertainment as well as substantial refreshment are provided. The sale of alcohol beyond the normal hours must be ancillary to the entertainment and refreshment. The sale of alcohol on this basis can be allowed up to 1am. These orders also at present only permit extensions to weekday hours. The Government proposes to amend Licensing Act 1964 to permit alcohol to be sold up to 12.30am on Sunday evenings.
Protection for Residents
8. During Parliamentary consideration of earlier proposals to relax the Sunday dancing restrictions, concern was expressed about the potential for individual premises to cause noise and nuisance, especially to residents. The Government proposes to include in the amendments to the Licensing Act 1964:
b) a latest time for selling alcohol under a special hours certificate of 12.30am, except on the eve of a Bank holiday other than Easter.
c) power to exclude Sundays from a special hours certificate, on the grounds of disturbance caused outside the premises as a result of their use.
9. Comments on the proposals in this consultation paper are requested by 30 September 1999.
Disclosing responses
10. Details of representations received in response to this consultation paper will be disclosed and respondents will be identified unless the information relates to a particular person or business in which case details can be disclosed in an anonymised form. Please identify any information you or any other person involved wish to be disclosed only in this way.
Explanation of the proposals
Background
11. The Sunday Observance Act 1780 does not prohibit entertainments and amusements from actually taking place on Sunday. It prohibits the levying of admission charges to entertainments and amusements on Sundays to which the public are admitted. Charging inflated prices for routine refreshments in lieu of an admission charge, selling tickets in advance and advertising public entertainments which take place on a Sunday are also prohibited. The Act does not apply to bona fide clubs to which, by definition, members of the general public are not admitted.
12. The effects of the Sunday Observance Act have been removed from many forms of entertainment and amusement. The Sunday Entertainment Act 1932 enabled cinemas to open in some areas, subject to certain conditions, and permitted admission charges to them. The 1932 Act also removed the bar on Sunday admission charges to musical entertainments at places licensed for music and dancing; to museums, art galleries, zoological and botanical gardens and aquaria; and to lectures and debates. The Sunday Cinemas Act 1972 permitted cinema Sunday opening anywhere, subject to normal licensing conditions (this provision was consolidated in the Cinemas Act 1985). The Sunday Theatre Act 1972 permitted the use of a theatre for the public performance of a play, including an opera or ballet, on Sunday afternoons and evenings. In addition, the Licensing Act 1964 allows premises at which an extended hours order or a special hours certificate is in force when entertainments begin on Saturday night to continue into the early hours of Sunday morning. More recently, sporting events and activities were removed from the scope of the Sunday Observance Act by means of the Deregulation and Contracting Out Act 1994.
The burdens which the proposals will remove or reduce
13. The leisure and entertainment industry is constrained by the prohibition in the Sunday Observance Act 1780 on charging for admission to places where dancing takes place on Sunday. Similar constraints do not apply in other areas of the industry. The 1780 Act has been disapplied in respect of many other forms of entertainment, most recently in respect of sporting events and activities by means of section 21 of the Deregulation and Contracting Out Act. Section 20 of the same Act relaxed the restrictions on cash betting on Sundays. The continuing ban on admission charges to dances effectively means that discotheques and similar establishments where public dancing takes place do not open on Sundays. The Government considers this to be an unjustified restriction on business. These proposals to remove dancing from the scope of the 1780 Act, and to make an appropriate relaxation to the Licensing Act 1964, would enable dances and discotheques to be conducted on a commercial basis on Sundays, and for alcohol to be sold at those events after the end of normal licensing hours.
14. Consistent with the regime applying to licensed premises where dancing takes place, registered members clubs which want to provide music and dancing into the small hours, and to accompany that entertainment with the supply of alcohol, and casinos (which generally operate until the early hours) which want to sell alcohol at these times – permitted to both latter types of establishment under a special hours certificate – may not do so on a Sunday. The relaxation of the special hours certificate regime will apply to registered clubs and casinos, with the same additional protections as described in paragraph 8.
15. Restaurants which are allowed to sell alcohol under an extended hours order (until a latest time of 1am) on weekdays must provide some form of entertainment (not necessarily such as to require a public entertainment licence). Like special hours certificates, extended hours orders are not available on Sundays. The Government considers it appropriate that restaurants with extended hours orders should correspondingly also benefit from the proposed relaxation of the regime on Sundays.
16. The prohibition on admission charges for dances also constrains charitable and non-profit making bodies which might organise dances; and there have been instances where Sunday afternoon tea dances for elderly people have had to be stopped because of the requirements of the Sunday Observance Act. The Government regards this as a quite unacceptable constraint on legitimate pastimes. These proposals would remove that constraint.
Past Consideration
17. Following a consultation exercise in spring 1995, a proposal for a deregulation order was put before Parliament in June 1995. The Parliamentary committees reported unfavourably on this proposal. In their view, there had been insufficient consultation and the proposal did not adequately address questions of maintaining necessary protection. That order was not proceeded with.
18. In November 1996, Viscount Astor introduced a Private Members Bill to deregulate Sunday dancing. His Bill was modelled closely on the 1995 deregulation order. During consideration of the Bill by the House of Lords, amendments were introduced, and approved, to strengthen protections for residents and others from unwarranted noise and nuisance. Although approved in its amended form by the House of Lords, the Bill ran out of time for consideration in the House of Commons.
19. The Government considers that the arguments for implementing those protective measures remain, and it proposes to incorporate them in a new deregulation order.
Necessary protection
20. The Deregulation and Contracting Out Act provides a power to remove statutory burdens so long as any necessary protection is not removed. The original intention of the protective controls in the Sunday Observance Act 1780 were directed at what are described as "abuses and profanations" on Sundays. At that time the existence of modern dance clubs and similar establishments could not have been envisaged, and the protections in the 1780 Act necessarily apply by accident or association rather than design to modern-day leisure activity. Many other forms of recreational activity originally caught by the 1780 Act have now been deregulated, as described elsewhere in this paper. In the Government’s view the protection which the Sunday Observance Act of 1780 provides is no longer necessary in respect of commercially organised public dancing.
Protections for residents
21. The Government recognises that some people are concerned about the possible impact of allowing extended licensing hours on Sundays in premises where commercial dancing takes place in England and Wales. In recognition of those concerns, the Government proposes to include a range of measures to protect residents in addition to the existing safeguards (see Annex B). These will be available to the liquor licensing authority, to whom all premises affected will have to apply for a variation of the terms of their special hours certificate to allow it to extend to Sundays. The proposals contain a requirement for the licensing authority to consider the special nature of Sundays before deciding whether to grant or vary a certificate to allow the sale of alcohol late at night on Sundays.
22. Concerns have been expressed about the effect on residents and others who have to go to work on Monday morning. While noting that many people now do not work from 9am to 5pm on Mondays to Fridays, the Government understands the reservation which has been expressed. The proposals will impose a latest time for selling alcohol on Sunday nights of 12.30am. This will not apply where a Sunday is the eve of a bank holiday other than Easter; instead the normal weekday hours (2am, or 3am in central London) will apply.
23. The proposals also include power for the licensing authority to make an order restricting the hours of selling alcohol under a special hours certificate on Sunday to any time they consider appropriate in the light of the special nature of Sunday. In addition they would have power, on application by the police, to prevent a special hours certificate operating on Sundays, on the grounds of disorderly conduct in the vicinity of the premises, caused by its customers.
24. In the absence of evidence of significant disturbance on weekdays associated with registered members clubs or with casinos, it might be argued that the additional protections, envisaged for licensed premises where music and dancing takes place, are unnecessary. The Government takes the view that it is nevertheless appropriate to extend these additional protections to members clubs and casinos so that they can be applied if necessary, notwithstanding that their use may be infrequent.
25. While a restaurant which has a special hours certificate will be subject to that regime, restaurants which are allowed to sell alcohol only with table meals benefit from the more limited extension of hours currently available under an extended hours order (to a latest time of 1am). They provide entertainment as an ancillary rather than a primary function. The Government is not aware that such premises generally give rise to comparable concerns about disturbances. In its view, it is not necessary to apply to them the additional protective controls applicable to premises where music and dancing is usually the primary purpose.
26. The Government is not proposing additional protections focusing on public entertainment licences. Generally, concerns about noise and nuisance are very strongly associated with alcohol – induced misbehaviour, and the Governments’ proposals are directed towards appropriate controls on the supply of alcohol.
Protection for employees
27. The Government recognises that the opportunity for discotheques and other commercial premises where dancing takes place to open on Sundays may mean that workers who do not at present work on Sunday evenings could be asked to do so. However, the Government considers that existing practices and legislation ensure necessary protection for workers.
28. In law, employers cannot unilaterally change workers’ contracts of employment to require them to work on Sundays where they could not previously be required to do so. Employees dismissed for refusing to accept contractual changes can complain of unfair dismissal, subject to qualifying conditions.
29. In practice, the entertainments industry has traditionally operated flexible and voluntary staffing arrangements for weekend working, and such arrangements can be extended to Sunday for workers in dancing establishments who are willing to work then. Much employment in this sector is temporary and works tend to be highly mobile; their flexibility should ensure that they are less concerned about being asked to work on Sundays and less vulnerable to pressure to do so. As noted above, workers are already employed in a number of leisure and entertainment activities on Sundays, for example, in bars, cinemas, art galleries etc. Dancing establishments are no different from these other activities and indeed may already be open on Sundays (for example, as pubs or clubs). Like these other activities, which already operate successfully without special employment protection measures, dancing establishments can be expected to operate on Sundays with willing workers, drawings from the pool of existing staff or new recruits, possibly by those employed to work at weekends only.
30. In addition to these existing arrangements, the British Entertainments and Discotheque Association (BEDA) have prepared a voluntary code of practice to enable staff to opt out of Sunday working if they so wish. The code has been approved by members of BEDA (which represents about 80% of those who own dancing establishments), and has been prepared for those who may wish to opt out of Sunday working, perhaps for religious or family reasons. Under the code, BEDA members would enable workers to opt out of Sunday working, without any notice period. The code provides for independent arbitration in any cases of dispute. Although a voluntary code, BEDA have emphasised their commitment to ensuring that members apply the code fairly to all staff who wish to opt out of Sunday working, and would make it a condition of membership.
31. Furthermore, 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.
32. In combination, these measures will prevent workers who are covered by the Working Time Regulations from working excessive hours, and will ensure that they have adequate breaks, and enable entertainment establishments to operate with workers who are willing to be employed on Sunday.
Cost savings and financial benefits
33. The proposals would allow discotheques and similar places where public dancing takes place to operate on Sundays. This would not generate cost savings for the leisure industry, but there would be financial benefits. Discotheques and similar establishments have operated in Scotland on Sunday evening since 1976. The British Entertainment and Discotheque Association has reported that its members find Sunday evening there the third most popular night of the week, providing 13 per cent of overall turnover. It would be helpful if, in appropriate cases, respondents to this consultation paper could provide information about the financial benefits which might accrue if dancing were permitted on Sundays in England and Wales in the same way as it is at present permitted on weekdays. It would also be helpful to have this information in relation to registered clubs, casinos and restaurants as appropriate.
34. There will be a small transitional cost for business and for licensing authorities, associated with the need to amend the terms of existing public entertainment licenses or authorisations to sell alcohol in the first year of operation. In following years these matters can be addressed as routine. It would be helpful to have information from business and licensing authorities on the likely scale of any such transitional costs, and from licensing authorities on what, if any, continuing costs are likely to arise.
35. To ease the impact of implementation, it would be possible to phase in the new arrangements - for example by allowing for immediate applications for variation, and delaying for, say, two or three months, the coming into force of the new Sunday dancing arrangements. Yours views are invited on both the principle of a transitional arrangement of this kind and on the appropriate period for such a phasing-in.
Other benefits
36. The Government takes the view that people should be allowed to spend their leisure time as they wish. Recent legislation has relaxed restrictions on various activities on Sundays, such as shopping, betting and sport. The Licensing (Sunday Hours) Act 1995 permitted public houses to open throughout Sunday afternoon. The proposals in this consultation paper, which would effectively permit dancing to take place on Sunday as it can on other days of the week, would extend further the range of leisure activities which people might choose to pursue on Sundays and curtail further the extent of regulation in areas where, in the Government’s view, it is no longer justified.
37. Your comments on these proposals generally or on any particular aspect of them are invited, as would information referred to in paragraphs 33 and 34 about the financial benefits or costs which might accrue from their implementation.
Summary of Proposals
38. The Government proposes to:
Amend the Sunday Observance Act 1780 to exempt music and dancing from the scope of that Act (paragraphs 4, 11 – 13 and 20).Amend the Licensing Act 1964 to allow alcohol to be sold under a special hours certificate on Sundays:
a) In licensed premises where music and dancing takes place (paragraphs 5, 13 and 21-23);
40. Responses to this consultation paper should be submitted by 30 September 1999 to:
Philip Drummond
Home Office
Room 1171
50 Queen Anne's Gate
LONDON SW1H 9AT
Telephone 020 7273 4219
Further copies of the consultation paper can be obtained from him.
Home Office
April 1999
Constitutional and Community Policy Directorate