In this article Andy Woods looks at the latest Gambling Commission Consultation, dated November 2015, on controlling where gaming machines may be played. Any responses to the consultation must be submitted by 22 February 2016.
We end 2015 with an article not too dissimilar to others articles we have written since 1 September 2007, when the Gambling Act 2005 came into effect. The Gambling Commission has issued a further consultation document which in practice relates specifically to the granting and operation of premises licences for betting, bingo, casino and adult gaming centre premises and in particular the ancillary permissions for gaming machines in such gambling premises.
The document runs to nineteen pages and contains a number of very strong hints that the Gambling Commission is trying to interpret legislation in a way in which it should not, and is also trying potentially to create new legislation. The concluding sentence to paragraph 18.25 of the consultation is a very good example. It states “Furthermore the function of the premises should ensure the sum of the gambling activity is not ancillary to some other non gambling purpose”. This is not what the legislation says, is not what case law says and in my opinion is very dangerous advice to be sending out to local authorities. There is no definition of “the sum of gambling activity” and nowhere in the legislation does it say that the gambling activity cannot be ancillary to a non-gambling purpose.
I have obtained a number of bingo premises licences throughout England (in excess of fifty) for premises which also offer snooker and pool. The premises are fully compliant with the Gambling Act 2005 and many of the premises will call themselves “Bingo and pool clubs”. There is a notice displayed clearly telling customers that they are entering bingo premises and at all times these premises comply with the Commission’s Licence Conditions and Codes of Practice (“LCCP”) and the legislation.
With the exception of one application in London which related to a converted sports bar, the Gambling Commission has neither objected to any of these applications nor sought to review any of the licences once the premises have opened. The premises comply. It may well be the case (and I haven’t seen any figures on this) that more people play snooker and pool than play bingo there. It may be the case that more money is spent on snooker and pool than on bingo, and yet the premises are fully compliant with the legislation and are bingo premises. The final sentence of paragraph 18.25 is in my opinion wholly incorrect and completely without foundation and should not appear in the consultation document. The Gambling Commission appears to be saying that if more people go to a premises to play pool/snooker than to play bingo then it naturally follows that the premises are not compliant, which is quite clearly wrong.
This document is obviously a response by the Gambling Commission to the Greene King case. Greene King (a pub operator) applied for an operating licence to the Gambling Commission to allow it to apply for bingo premises licences for some of its pubs. The Gambling Commission refused the application principally on the basis that the premises which would be the subject of applications for bingo premises licences were “pubs” and this was not therefore within the “graduated regulatory framework” (a Gambling Commission term). This decision was overturned on appeal and the Gambling Commission was told to grant the operating licence, although it is right to say that there is a further appeal pending and we await that decision.
The Gambling Commission also refers in the consultation document to the decision in the Luxury Leisure Limited case (GA/2013/0001), in which Luxury Leisure were subject to an operating licence review on the grounds that they were not adhering to condition 16 of the LCCP, otherwise known as “the primary activity condition”. Were Luxury Leisure providing sufficient facilities for betting as opposed to just machines? The Gambling Commission upheld the review and issued a written warning but this decision was overturned by the first tier tribunal. Judge Warren rejected the Gambling Commission’s argument, saying that “the Gambling Commission interpretation inserts into the condition without justification words which are simply not there”. He then noted that there is a difference between existence of facilities and dominance of facilities: “I conclude that Condition 16 does not require a contest between betting and the fixed odds betting terminals as to which is or could be the primary activity at any given time”.
This court found that there was no contest between the activity named on the premises licence and the machines and yet at paragraphs 2.21 and 2.22 of the consultation document there is a very selective spin placed on this decision by the Gambling Commission.
The Gambling Commission then goes on, at paragraph 3.2 of the consultation document, to say: “in order to draw a definitive line under all previous related consultations etc” that it is proposing to remove a list of provisions and guidance documents from its website and to no longer rely on them, or even make them available. Many previous guidance notes and documents are now irrelevant. There is then a debate at paragraph 3.10 on how the Gambling Commission considers it more appropriate to make additions to the Codes of Practice issued under Section 24 of the Act, instead of introducing new licence conditions.
I should like to make it clear that the consultation process used by the Gambling Commission can be a useful tool in assisting it in drawing up its guidance and codes of practice. I should also like to stress that my articles are not always anti the Gambling Commission. For example, I was understanding of the recent changes requiring betting shops to undertake full risk assessments when making applications for premises licences. What I do not agree with is the way in which it would appear that the Gambling Commission tries to introduce new tests which are not set out in the legislation and, in my view, are not supported by the Gambling Act 2005. The proposition that the function of premises should ensure that the sum of gambling activity is not ancillary to some other non-gambling purpose is wholly without foundation and introduces a completely new concept and argument for gambling operators to deal with.
I know Paddy has done a general report on our last twelve months which have been amazing for the business in terms of what has been achieved for all clients. I would just like to wish everybody a happy Christmas and successful New Year.