Joint Committee on the Draft Gambling Bill Written Evidence


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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