House of Commons - Explanatory Note
Gambling Bill - continued          House of Commons

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EUROPEAN CONVENTION ON HUMAN RIGHTS

748.     Section 19 of the Human Rights Act 1998 requires the Minister in charge of a Bill in either House of Parliament, to make a statement before second reading about the compatibility of the Bill with the Convention rights (as defined by section 1 of that Act). The Secretary of State for Culture, Media and Sport has made the following statement:

    In my view the provisions of the Gambling Bill are compatible with the Convention rights.

749.     The Bill raises issues under Article 1 of Protocol 1, and Articles 5, 6, 8 and 10 of the European Convention on Human Rights.

750.     The controls imposed by the Bill on gambling activities, particularly the creation of the licensing and permit regimes, are likely to engage Article 1 of Protocol 1 (protection of property). In some circumstances they may interfere with the current rights of individuals to provide facilities for gambling, by imposing additional controls on their activities. It is possible that there will be a deprivation of rights, if a person who is currently able to provide facilities for gambling is unable to satisfy the criteria for a licence, once the licence provisions come into operation. This is expected to be the exception rather than the rule, however. In addition, a fee may be payable before a licence or permit will be issued.

751.     The Government considers that any such interference or deprivation of rights can be justified. The controls in the Bill have been introduced to provide an adequate level of protection against exploitation for, in particular, children, young persons, and vulnerable adults. There is also a need to ensure that gambling is conducted in a fair and open way to protect the interests of the general consumer. The current law does not provide an adequate level of protection in either regard.

752.     Article 1 of Protocol 1 is also likely to be engaged by the power to enter premises and seize property in certain limited circumstances (Part 15); and by the power of the Commission to freeze payments in relation to bets, while they investigate whether to make an order voiding the bet (Part 17). Again, the Government considers that any interference with property under these Parts can be justified in the interests of keeping gambling crime-free, and ensuring that bets are conducted in a way that is fair and open. The Government is satisfied that where provisions in the Bill engage Article 1 of Protocol 1, a fair balance has been struck between the rights of the individual and the needs of population in general.

753.     Article 6 (right to a fair trial) is engaged wherever Article 1 of Protocol 1 is engaged, as the determination of pecuniary rights necessarily concerns the determination of civil rights and obligations. Article 6 is also engaged by the provisions of the Bill that give rise to criminal penalties. Where the penalty includes a term of imprisonment, Article 5 (deprivation of liberty) may also be engaged.

754.     In every case where Article 6 is engaged, the individual concerned will be entitled to a fair hearing by an independent and impartial tribunal. In the case of civil rights, this will usually involve a right of appeal to the Gambling Appeals Tribunal (which is Article 6 compliant) although in a few circumstances it will be limited to a right to bring judicial review proceedings. Criminal cases will always be heard by the usual, Article 6 compliant, criminal courts. The Government therefore concludes that the provisions of the Bill do not give rise to any breach of Article 6. It follows that any deprivation of liberty will be in accordance with a procedure prescribed by law, so the Government is also satisfied that there is no breach of Article 5.

755.     Article 8 (private and family life) may be engaged by the provisions providing for exchange of information in Parts 2 and 15, and by the inspection rights in Part 15. In view of the fact that any processing of data will need to be consistent with the law of confidence, any specific restraints and controls, and with other legislation relating to data processing, the Government does not consider that Article 8 will be engaged by the provisions relating to data exchange. To the extent that it may be, however, any interference can be justified in the interests of public safety and the prevention of public disorder or crime.

756.     The Government recognises that the right to enter and inspect property is likely to engage Article 8. Part 15 contains a number of safeguards, however, including the requirement to comply with codes under the Police and Criminal Evidence Act 1984 (c.60), and the prohibition on entering dwellings without permission or a warrant. There are also restrictions on the types of records that can be inspected without warrant. These safeguards will limit the extent to which Article 8 is engaged, and the Government is satisfied that they render the interference with private life proportionate to the legitimate aims of preventing crime, and ensuring that gambling is properly regulated.

757.     Finally, Article 10 (free expression) is likely to be engaged by Part 16, which puts limits on the extent to which gambling can be advertised. These controls are designed to protect members of the public, especially children, young persons and vulnerable adults, from inducements to gamble inappropriately or illegally. They are also intended to help to prevent crime and disorder arising from unlawful gambling. The Government accordingly concludes that the limits on free expression are properly justified and do not give rise to a breach of Article 10.

COMMENCEMENT

758.     The Bill's provisions will be brought into force on dates appointed by the Secretary of State by commencement order. It is the intention to bring Part 2 of the Bill (The Gambling Commission) into effect soon after Royal Assent, and for the remaining provisions to be implemented from the second half of 2005 onwards. It is intended that the full regime will be in place by the end of 2006.

Department for Culture, Media and Sport

 
 
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Prepared: 19 October 2004