The Gibraltar Betting and Gaming Association (GBGA) has followed through with its threats and written to the UK Government and Gambling Commission placing them on notice of a claim for judicial review, giving them 14 days in which to respond.
The GBGA, which represents Gibraltar-based online gambling operators, has instructed the law firm Olswang to write to the Secretary of State for Culture, Media and Sport Sajid Javid MP, the Attorney General Dominic Grieve QC MP and the Gambling Commission to spell out the risks posed by the Gambling (Licensing and Advertising) Act 2014 and to declare its intention to challenge it. In letters before action, Olswang argues that the new licensing regime established under the Act breaches Article 56 of the Treaty on the Functioning of the European Union (TFEU) and is unlawful.
Dan Tench, a partner at Olswang, explained: “The Government announced that this law was introduced with the express intention of addressing concerns it said it had about the protection of consumers. The measures introduced through this Act are neither reasonable nor proportionate to achieving that goal and are likely to have adverse consequences for consumers. All this Act achieves is a wholly unjustified, disproportionate and discriminatory interference with the right to free movement of services, a right enshrined in European Law. For these reasons the Government must reconsider this law or we shall have no option but to ask the courts to review it for them.”
Peter Howitt, Chief Executive of the GBGA argues that this new point of consumption licensing, combined with planned tax changes, will drive consumers to the unregulated or poorly regulated market, and so ensure that a significant proportion of UK consumers will be unprotected when they play and bet with foreign operators. He said: “This is bad for UK consumers, bad for the regulated industry, bad for Gibraltar and is in breach of European law, but fantastic news for operators who choose to avoid proper regulation.
“We know of no precedent where any regulator in any industry will be granted the role of licensing and regulating operators all over the world in this way, threatening to criminalise companies and people who fail to submit to its regime. This is plainly unworkable. The likely impact of this legislation will be to drive UK consumers towards unregulated or poorly regulated operators, leaving them exposed to unnecessary risks. This Act allows operators from 165 new jurisdictions to gain licences to operate and advertise in the UK and the Gambling Commission is supposed to regulate this industry with no extra-territorial information gathering or enforcement powers. Clearly that spells a new danger for British consumers.”
Whether a Judicial Review will be ultimately successful in changing the regulations remains to be seen, but even if it delays the implementation of the new point of consumption laws then it might be seen as worthwhile. However there is also the possibility that the Judicial Review is too late to change anything and that by moving against the government’s plans, the industry is stoking already existing anti-gambling resentment in the corridors of power.