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Mr. Caborn: The gambling commission may impose two types of conditions on an operating licence: general conditions, under clause 71, which will apply to all operating licence holders or all operating licence holders in a particular class; and individual conditions, under clause 73, which will apply to an individual operating licence. The right of appeal exists against only the decision of the commission to impose an individual condition on an operating licence, because that condition will be specific to that operating licence holder. There is no right of appeal against the imposition, amendment or revocation of a general condition by the commission, because those conditions will apply to all operating licence holders or all operators in a specific category. Those conditions must be general in nature in order for them to apply across the board.
It is difficult to see how an appeal process could be made to work in practice when so many different interests will be involved, but that does not mean that operators have no means of redress. If anyone believed that the gambling commission had acted unreasonably or unlawfully in imposing a condition, they could have a judicial review as their means of challenging it. There is a full consultation procedure for the commission's general conditions. In light of that explanation, I hope that the hon. Gentleman will withdraw the amendment.
Mr. Moss: I am grateful to the Minister for that explanation, which is now on the record. That is very helpful, and on that basis, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
2.45 pm
Mr. Moss: I beg to move amendment No. 333, in clause 134, page 60, line 24, at end add—
'(9) Where the Commission directs that section 138(1) shall not apply, the applicant or the licensee may appeal to the Tribunal.'.
The Chairman: With this it will be convenient to discuss amendment No. 264, in clause 136, page 60, line 40, at end add—
'(3) The Secretary of State shall issue a statement following consultation with the Lord Chancellor and parties listed in section 22(5) regarding the principles under which permission to appeal from the tribunal will be granted by the tribunal or the court referred to under subsection (1).'.
Mr. Moss: Amendment No. 333 applies to clause 134, and amendment No. 264 is more or less consequential to that, although it does apply to clause 136. The clause deals with appeals to the tribunal, and rights of appeal against commission decisions.
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Although the clause sets out a range of circumstances under which people can appeal, we believe that the amendment would extend them to include an appeal in the event that the commission, under clause 138(1), decided that no stay should be granted pending an appeal. Operators have been given the right to a stay where an appeal has been brought—or could be brought—under that clause. However, if the commission chooses to exercise its right in clause 138 to override the stay, there could be no appeal against such a decision.
The consequences of the immediate application of a commission decision without any right of appeal could have serious, long-term implications for an operator. Such an action by the commission should be subject to the scrutiny provided by an appeal. It makes no sense to set out a lengthy series of rights for appeal against commission decisions, while giving the commission an arbitrary and final right to overrule them without further recourse to appeal.
Mr. Caborn: I do not believe it is necessary to provide for a right of appeal to the gambling appeals tribunal where the commission decides that a decision or action should take immediate effect.It is intended that the commission will use the power only in exceptional circumstances, such as a situation where it determines that the immediate suspension of a licence is necessary in order to protect children or vulnerable adults from exploitation. The licence holder will still be able to challenge the commission's decision by way of judicial review through the courts. In addition, the tribunal has discretion, under paragraph 13(f) of schedule 7, to suspend the commission's decision to disapply the stay provisions, but that should be on its own initiative and not in response to an appeal on this point.
I am grateful to the hon. Gentleman for his explanation of the amendment. Its purpose was not immediately clear to us. Onward appeals to the High Court in England and Wales and the Court of Session in Scotland are only to be permitted on points of law. Therefore, I am not clear what the Secretary of State's statement regarding onward appeals would contain.
Where a person applies to the gambling appeals tribunal seeking leave to appeal to a higher court on a point of law, the tribunal will consider that application on its merits and will have to consider whether the grounds for the appeal indicate a real issue of law to be decided on the appeal. If the tribunal denies an onward appeal, an appellant can apply to the relevant higher court. Again, each application will be considered on its merits. Requiring the Secretary of State to issue a statement on onward appeals is unnecessary. With that explanation, I hope that the hon. Gentleman will withdraw his amendment.
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Mr. Moss: I am grateful to the Minister for his explanation, and on the basis of what he has put on the record, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 134 ordered to stand part of the Bill.
Clauses 135 and 136 ordered to stand part of the Bill.
Clause 137
Powers of Tribunal
Mr. Moss: I beg to move amendment No. 265, in clause 137, page 61, line 17, at end insert
'including reference to what will constitute reasonable belief for the purposes of section 60 and other defences under the Act.'.
This is an attempt to tease out what would constitute reasonable belief about a person's age, which would hopefully provide a defence under clause 60, and other defences available under the Act, which could be usefully incorporated into a code of practice issued by the commission, possibly under clause 23.
Mr. Caborn: I thank the hon. Gentleman for his explanation of the amendment, but it is unnecessary. The tribunal is charged with hearing appeals against certain decisions of the commission. The decisions over which it has jurisdiction to hear appeals are listed in clause 134. None of those decisions contains any defence of reasonable belief, and nor are they amenable to any such defence. In addition, clause 60 provides a defence of reasonable belief against criminal charge under part 4 of the Bill, which relates to children and young persons. Although I have sympathy with the hon. Gentleman's sentiments, the commission will have no power to assist in the interpretation of reasonable belief under clause 60; it will be a matter for the ordinary criminal courts. The defence of reasonable belief does not appear in any other clause. It is not necessary for me to require the commission to make any statement in its code of practice about interpretation and the concept of reasonable belief; nor are there any circumstances in which the tribunal might apply that concept. Reasonable belief will have to be judged in each circumstance. For example, reasonableness will vary between the betting office and the children's arcade. With that explanation, I hope that the hon. Gentleman will withdraw the amendment.
Mr. Moss: I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Mr. Moss: I beg to move amendment No. 334, in clause 137, page 61, line 21, at end add—
'(6) The appeal is a rehearing de novo.'.
The Chairman: With this it will be convenient to discuss the following amendments: No. 268, in clause 139, page 61, line 39, at end insert—
'(2A) Rules under this section shall provide for all appeals to be a re-hearing de novo.'.
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No. 338, in clause 193, page 88, line 40, at end add—
'(6) The appeal is a rehearing de novo.'.
Mr. Moss: Amendments Nos. 268 and 338 are consequential. If the tribunal is to exercise its powers fully under this clause, any hearing should consider all relevant facts or material, as originally considered by the commission when making its decision. The clause sets out the tribunal's powers, including the ability to uphold or overturn all or part of the commission's decision. If, as the clause states, the tribunal is able to consider material not previously available to the commission, it goes without saying that the tribunal's deliberations should be in the form of a re-hearing of the original application. For that to be possible, it must hold a full, de novo hearing. Although that may be the intention of the clause, it is not spelt out clearly enough. The amendment seeks to replicate the provisions in the Gaming Act 1968, whereby operators can appeal to the Crown court against refusal of a gaming licence by the licensing magistrates.
Mr. Caborn: I am grateful to the hon. Gentleman for his explanation of the amendment, as its effects were not immediately clear to us.
All appeals to the gambling appeals tribunal can be based on law and fact. When a person appeals to the tribunal against a decision taken by the gambling commission, the commission will have already heard the facts of the case. The tribunal will hear those facts again and will also be able to consider any additional evidence that may not have been available to the commission. That means that there are always two opportunities for the facts to be heard. Any onward appeal from the tribunal to the High Court or the Court of Session may be permitted on a point of law only. That is standard practice. Likewise, for appeals to the magistrates court or sheriff court under clause 192, the court will hear the facts again and will be able to consider any additional evidence that may not have been available to the licensing authority. With that explanation, I hope that the hon. Gentleman will withdraw the amendment.
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