Memorandum from the Magistrates' Association
(DGB 75)
1. Foreword
Gambling in England and Wales is regarded both
nationally and locally as being "clean". Local gamblers
can gamble with some peace of mind, and this reputation attracts
gamblers from abroad, especially from the Middle East, to Londons
concentration of Casinos, in the hot summer season in their own
countries. It has been kept clean by the diligence of the Betting
and Gaming Magistrates who are "independent and impartial",
but who pay "due regard" to the Gaming Boards annual
"Note on the Boards Advice to Licensing Justices". This
annual "advice" deals with matters relevant locally
as well as nationally. Because of the ever changing scene, the
Licensing Justices are required to undertake significant ongoing
training.
In response to the Joint Committees request
that "written evidence should be short and concentrate on
Major issues", the Association in its response concentrates
on the major issues of concern to Betting and Gaming Justices,
some of which also apply for Liquor Licensing.
2. The Better Regulation Task Forces Mistake/Error
As the Committee will be aware, the transfer
of jurisdiction recommendation came from the Better Regulation
Task Force. When the then Chairman of the Task Force (Lord Haskins)
was asked why ?, he responded as follows.
"I am very concerned to increase the credibility
of Local Government generally. I am in favour of reforming it
and resisting demands to go on reducing it. What decided us in
the end were the views of the Police who felt it would be more
efficient and consistent if these powers were transferred to the
Local Authories".
The Magistrates Association (MA) contacted the
Association Of Chief Police Officers (ACPO), who denied that this
was the Police position. A copy of the ACPO response is attached.
In summary the Task Force was careless, did not check, and got
it wrong.
3. The Human Rights Act And Conflicts Of
Interest For Local Councillors And Local Authority Employees In
Licensing Matters
A copy of a letter dated 3 April 2000 from the
then Lord Chancellor is attached advising that following the introduction
of the Human Rights Act, "it is inappropriate for magistrates
who are local authority Counciliors to serve on a Licensing Committee
at the magistrates court" (second paragraph in letter). In
the case of Licensing Committee magistrates who were local authority
employees, his advice was that they should not sit on any case
in which their employer is involved (top of page two in the Letter).
As a result of this advice from the Lord Chancellor, Licensing
Committees up and down the country lost many able and experienced
Licensing colleagues. The MA however accepted it, as a price that
had to be paid to preserve the integrity of the Human Rights Act
and its credibility in the community at large.
As the Joint Committee will be aware the DCMS
proposals call for Betting and Gaming premises matters to go to
the Local Authorities, together with jurisdiction for Liquor Licensing
and for betting and gaming jurisdiction to go to the proposed
Gambling Commission. As the your Committee might expect the MA
took the matter up, in March 2002 with the then Lord Chancellor.
His response dated 18 April 2002 is attached. As the Joint Committee
will see (paragraph 4) the then Lord Chancellor would seem to
have abandoned his high standards of two years previously. Why
he did so, the MA is not aware. What he possibly felt enabled
him to do so was European Court of Human Rights appeals such as
Bryan versus UK where "the court held that in the circumstances
of that particular case that as there was a further right of appeal
to the UK High Court this was sufficent to provide an independent
hearing for the purpose of the Article". What view the Strasbourg
Court would take in this particular case has not, to the best
knowledge of the MA, been tested. Given the welcome given to the
Human Rights Act by the press, public at large, and the judiciary,
undermining the Act in this way would be a tragedy.
4. Betting Issues
(1) The licensing of Bookmakers by the Licensing
justices is fairly straight forward and there are no specific
issues that the MA wishes to bring to the attention of the Joint
Committee.
(2) Applications for new betting shops can
be quite time consuming and can last for several days. This is
because the large chains often object when an application is made
for a new shop adjacent to one of theirs. The objections are somewhat
ritualistic. Up to a dozen regular customers are lined up to give
evidence to the Betting and Gaming Committee to the effect that,
there are adequate shops in the area to satisfy demand. An independentt
person (often a retired policeman) is retained to count the number
of customers going into local betting shops to make the case that
local demand is satisfied. The applicant produces contra evidence.
5. Gaming Demand/The Ritz Case/Partial Deregulation
As referred to in the foreword above, the concentration
of Casinos in England and Wales is in the London Borough of Westminister.
Against a background of the Gaming Boards annual "advice"
to the London Magistrates Betting and Gaming Licening Committees,
as per paragraph 19 of the Gaming Act 1968, that "it is the
view of the Gaming Board for Great Britain that existing facilities
for gaming other than for bingo which are currently available
in London are adequate to meet the existing demand", the
local Magistrates Betting & Gaming Committe refused an application
from the Ritz Hotel, approximately two years ago, for a Gaming
Licence. The application arose because the Casino licensee holder
at the Ritz moved out to other premises and the Ritz wished to
take it on themselves. As per the Gaming Boards annual advice,
the local Betting & Gaming Committee refused the application.
The Ritz Appealed to the Crown Court (a Crown Court judge sitting
with four experienced Betting & Gaming Magistrates) who allowed
the appeal. As a result of this case, the Gaming Board "advice"
document for 2003 is as follows, "the Board has concluded
that in future it will object on grounds of demand only if this
raises regulatory concerns", ie partial deregulation now
exists.
6. The Gambling Commission/European Court
Of Human Rights Compatibility. The above landmark case sets a
precedent and addresses one of the key issues highlighted by the
Government in the Draft Gambling Bill (item 2.7 page 11), "the
Government is also alive to the limitations in the present legislation
that have prevented the gambling industry from playing a more
substantional role in the continuing development of areas of the
country that have traditionally sought to offer themselves to
tourists as an exciting holiday destination". It also highlights
the necessity for an independent Gaming Board, an independent
and impartial Magistrates Licensing Committee, and an independent
appeal tribunal, the Crown Court, all of which, unlike the current
proposal are fully compatible with the Human Rights Act (see item
three above). One change in the current appeals procedure should
be considered on Human Rights Act grounds, ie the Crown Court
judge should sit with only the two Magistrates from a different
Magistrates Betting & Gaming Committee from which the appeal
came, ie the two Magistrates from the court from which the appeal
came should not sit.
The other Human Rights compatibility issue that
arises relates to clauses 93 and 94 of the Draft Gambling Bill
Explanatory Notes, ie the Commision to have the power to revoke
a Licence. While there may be an appeal procedure from a Commission
decision, the European Convention On Human Rights requires that
the fair and public hearing by an independent and impartial tribunal
should apply, by way of initial, not appellate recourse. The Gambling
Commission, unlike the Magistracy, would not be an independent
and impartial tribunal. As one of the Senior Judges put it in
a case he was dealing with, following the introduction of the
Human Rights Act into domestic legislation, "you cannot be
policy maker and decision taker".
7. Conclusion
This otherwise progressive Bill is flawed by
a breakdown in communications between the Better Regulation Task
Force and the Police re jurisdiction, an apparent change of policy
by the Lord Chancellors Department who initially took account
of a decision of the Court of Appeal and implications of the Human
Rights Act on who should, and who should not be involved in licensing
jurisdiction, but subsequently changed its stance, and the potential
damage to the credibility of Human Rights Act. It is also a Bill
which flouts the "Rules of Natural Justice", which require
that a person must not be a judge in their own cause, which the
Gambling Commission would be, because it would make policy, grant
licences, and revoke them.
December 2003
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