First-Tier Tribunal questions Gambling Commission’s powers over premises

David Clifton, of gambling consultancy Clifton Davies, looks at the latest challenge to the Gambling Commission’s decision making process.

A Decision Notice delivered on 8 December 2014 by the First-Tier Tribunal, quashing the Gambling Commission’s refusal to grant Greene King a bingo operating licence, has been reported in the pub industry press (The Publican’s Morning Advertiser) as “opening the door for larger pubcos to operate commercial bingo”.

It may be thought that is rather overstating the effect of the decision in the sense that it merely enables Greene King to proceed with applications for bingo premises licences for its pubs. Whether or not to grant such licences (with their accompanying machine entitlements) will be a matter for the licensing authorities to which such applications are made. The Tribunal’s logic was that under the Gambling Act 2005:

• it is a licensing authority, rather than the Gambling Commission, that has the power to determine premises licence applications, and
• the Commission has no power to impose a condition on an operating licence that the licensed activities are not provided “at a specified place or class of place”.

  The Decision Notice concludes with a finding that “it is not open to the Commission to use s159(3) of the Act to give them an effective right of veto on an application for a premises licence. Their role in respect of premises licences … is to give guidance; make representations; even appeal against the licensing authority’s decision – but not to usurp the role of decision maker”.

  The Decision Notice – a copy of which is available here – may be thought to be at odds with the following views expressed by Philip Graf, Chairman of the Gambling Commission, at the BACTA Convention as recently as 27 November 2014:

• “… the Act not only enables the Commission to adapt regulation over time – make the law if you like – it requires it to” and
• “A system in which the Commission focused just on the letter of the law as set out in the Act is a system that would see the industry set in aspic. It would be a system … in which regulation could not be flexed to accommodate changes in consumer preference or consumer concern. And a system that would quickly fall into disrepute, with adverse consequences for the gambling industry”.

It will be of interest to the industry and lawyers alike to see how this develops further.