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(a) may make an order revoking the exclusive licence if a material term or condition of the licence has been materially breached and that breach has not been remedied within 28 days of written notice having been given by the Gaming Board to the successor company notifying it that if it does not remedy the breach the Gaming Board may make an order revoking the exclusive licence, and"
The noble Lord said: My Lords, we have just been arguing about the status of the seven-year exclusive licence for the Tote and we said, "Seven years; nothing but seven years; the whole seven years". The amendment provides a kind of protection for that because at the moment the Bill allows the Gaming Board to remove the exclusive licence without very much ceremony, I fear. So the aim of the amendments in the group is to inject ceremony—for example, the 28 day rule—and I hope that the Government, who rightly put so much store on the seven years, will accept them. I beg to move.
Lord Moynihan: My Lords, I am pleased to support the amendments in this group, which bear more than a passing resemblance to those tabled in Grand Committee. I hope and trust that the noble Lord, Lord Lipsey, in his brevity has been more successful in convincing the Minister with his compelling argument than I was in Grand Committee.
Perhaps I may elaborate a little, as the issues involved are important. They relate closely to those that affect the amendment that I have tabled, to which I shall speak in a moment. Having re-read our discussions in Grand Committee I am afraid that, unlike the noble Lord, Lord Lipsey, I am no wiser as to what, if any, circumstances could justify the immediate removal of an exclusive licence. I hope that when the Minister addresses the amendment he can give a clear answer to that simple question.
It would also be appreciated if the Minister could clarify whether the removal of the exclusive licence would prevent the successor body continuing to offer pool betting on a non-exclusive basis. The amendments in the group similarly concern the ability of the Gaming Board to remove the exclusive licence of the successor body. As currently drafted, the Bill gives the Gaming Board the ability to remove the successor body's exclusive licence,
In Grand Committee it was clear that there was concern among a number of noble Lords that the Bill gave the Gaming Board too much power and could be against the principles of natural justice. Their concern was heightened when we learned that the only appeal against such a decision would be through judicial review, which can often be clumsy, time consuming and expensive.
Nevertheless, the Minister was, as always, robust in his defence of government policy and went on to say that the Gaming Board already had those powers. By way of an example, he went on to draw an analogy with its powers to close down casinos. It is greatly appreciated that the Minister subsequently reflected upon his comments and wrote to me and other Members who attended the Grand Committee to clarify that point. His letter recognised that he may have somewhat overstated the existing powers of the Gaming Board. The letter also went on to set out the powers which it is anticipated would be given to the new gambling commission with which the Draft Gambling Bill proposes to replace the Gaming Board.
These new powers will require that before any licence can be revoked it will be necessary to have a review to which the licence holder rightly has the opportunity to make representations. Similarly the putative Gambling Bill proposes that there should be a gambling appeal tribunal to hear any appeals against the decision to suspend the licence. Those safeguards form the basis of my amendment, which, together with the amendments in the name of the noble Lord, Lord Lipsey, improve the Bill by adding checks and balances to the powers that the Gaming Board will have over the successor company and the operation of its exclusive licence.
I am grateful to the Minister for outlining in his letter of 26 April the latest government thinking about the regulation of gambling and I trust that my proposal sits within that framework and that the amendments have been drafted in a manner that the Government may find acceptable.
Lord McIntosh of Haringey: My Lords, the intention of my letter of 26 April was to head off amendments like this at the pass. It was not my intention that we should continue to debate this issue. The Government intend to sell the Tote to a consortium of racing interests. As part of the sale, the Tote will be given a seven-year exclusive licence to provide pool betting. As I said in response to the previous amendment, this is a transitional measure to foster a strong pool betting market and to allow the Racing Trust-owned successor company an opportunity to establish itself in a fully commercial environment. After the seven-year period of exclusivity the licence will expire and under the terms of this Bill any bookmaker holding a permit will be able to provide pool betting services on horseracing.
The Bill does contain a reserve power for the Gaming Board to revoke the exclusive licence in the event that the terms and conditions are breached. But we do not believe that the Gaming Board will ever need to exercise this power. We believe that the successor company—assumed to be the Racing Trust-owned
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Tote—will co-operate fully with the Gaming Board in complying with the terms of the licence. The Tote, which has an excellent reputation, would have to commit an extremely serious breach in order for the licence to be revoked. A revocation in any circumstances other than a serious breach would be unreasonable and, on that basis, open to judicial review.
We do not believe that it is appropriate to set up a review procedure and an appeals process. A licence of this kind would not be revoked lightly. If the holder of an exclusive licence committed an offence so serious that the Gaming Board decided to revoke it, we believe that it would be in the public interest to revoke the licence without delay; in other words, if there were something so seriously wrong that it had to be done immediately and any damage may be compounded by leaving it for 28 days. However, under the Bill, the Gaming Board is already obliged to specify the reasons of any decision to revoke a licence. If the holder of a pool operating licence disagrees with the Gaming Board's decision, he or she can challenge the decision through judicial review. We do not consider that an additional statutory right of appeal is necessary.
My officials are already working on a draft code of practice that will inform the licence as a whole. It will be circulated to the current Tote management and to the Gaming Board shortly. A meeting has already been arranged for early August to discuss it. I am sure that a collaborative approach of that kind will deliver sufficient clarity on the issue without any need for provisions appearing in primary legislation. I believe that those discussions and the final code will greatly assist in spelling out the relationships between the parties and their responsibilities and should be an entirely satisfactory way of proceeding. A formal system of review, representation and appeal may simply serve to harden the relative positions of the parties at an early stage, when an informal approach may be good enough to resolve matters.
As I have been able to give additional information about the way in which negotiations are proceeding, the results of which should be available before Third Reading, I hope that the amendment will not be pressed.
Lord Lipsey: My Lords, I am grateful to the Minister, particularly for saying that the code will be available before Third Reading. I take his point that in such extreme circumstances there would be a case—
Lord McIntosh of Haringey: My Lords, I qualified that remark. I believe I said that I hope it will be available before Third Reading.
Lord Lipsey: My Lords, I am glad that the Minister has clarified his clarification. It enables me, even more comfortably, to end up where I hoped to end up. I can see the point about taking it away if something really disastrous takes place and it turns out that the chairman of the Tote is taking 20 per cent out of the pools and putting it into his Mauritian bank account. Of course, that could not happen under the current chairman; but
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in the past there have been some strange chairmen of the Tote. Nevertheless, I do not find the promise of judicial review as a backstop very comforting. The judicial review hoops are relatively easy to jump through as long as one follows the procedure, but they may have little to do with justice.
In the circumstances, given what the Minister has said, I hope that the code will be available and that we shall be able to study it before Third Reading. That will give us a good idea about where the balance between the Minister's argument and that of the proponents of these amendments stands. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 10, 13 and 14 not moved.]
Clause 9 [Section 8: supplemental]:
[Amendments Nos. 15 and 16 not moved.]
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