GAMBLING COMMISSION: Local problems should be dealt with by Local Authorities
I was interested to note that Chairman of the Gambling Commission, Philip Graf, was keen to remind the gambling trade that the job of the Commission is not to “police” the industry. In the GC annual report 2012 he said: “Over the past year we have concentrated on increasingly higher risk issues and operators with a regional or national impact, leaving day to day compliance and enforcement to licensing authorities (LAs). They are on the spot and better placed to assess local priorities. This reflects the dual regulatory structure of the Act and was enshrined in the concordat agreed with LAs in 2009 but is still not fully understood. Many still expect the Commission to police the high street – a role for which we are not resouirced, nor should be”.
The problem is, this statement is only relevant for England & Wales.
Due to a drafting error in the Gambling Act, only officers of English and Welsh licensing authorities are actually permitted to undertake compliance and enforcement activities. This is down to the definition of “authorised person” in s.304 of the 2005 Act. It refers to such persons as officers of the “licensing authority”. This is fine and well for England & Wales, as the licensing authority is also the local authority, i.e. the council, and therefore council employees can fulfill this role. In Scotland, however, the licensing authority is the licensing board, not the local authority. The licensing board is a quasi-judicial body and a legally separate entity to the local authority. Crucially, it has no employees. In other words, there can be no officers of a licensing authority in Scotland.
So, whilst it is perfectly reasonable for Mr Graf to remind us all that local matters should be enforced by local authorities, that cannot apply in Scotland where such enforcement is in fact illegal. Depressingly, this is one in a long list of errors made by Westminster draftsmen who seem ignorant to the separate Scottish licensing system.
There have been efforts by some to suggest that this should just be ignored and that in fact enforcement could by carried out by Licensing Standards Officers. Aside from the fact that any action by LSOs would in my view be struck down by the court as illegal under the Gambling Act, I also think it is very dangerous to ask LSOs to enforce gambling premises when they have no legal remit to do so under the Licensing (Scotland) Act 2005, and they have no mandatory or statutory training on gambling law. A number of LSOs have been keen to expand their knowledge in this area – I know this because I am the one who has trained them – and that is to be commended, but in my view LSOs should very simply stay clear of gambling related compliance/enforcement until this is fixed.
Looking at it again now, I still cannot fathom why this is not being resolved. I have raised this issue in a number of forums for probably around two years now. All that is required is an amendment to s.304 to cover the Scottish position. The Law Society of Scotland’s licensing sub-committee has even offered to do the drafting. The issues has been acknowledged by Holyrood, Westminster and the Gambling Commission itself. Yet it appears that there is no political will to fix this despite the fact that I understand that it could be done by secondary legislation. I realise and appreciate that Parliament is busy with big policy, headline stuff – but surely this cannot be ignored forever? In the meantime, English & Welsh licensing authorities can congratulate themselves on succesful joint ventures, test purchasing of gambling premises, and so on, whilst Scotland is forgotten.
The Gambling Commission have formally recognised this issue in their updated Guidance to Licensing Authorities which is out for consultation at the moment, but it has been buried away in the section on poker in pubs and strangely is not addressed at all in the main chapter on enforcement. That may be amended for the final version.
So who can keep an eye on the gambling sector north of the border? This drafting error does not mean that Scotland is like the wild west and it is worth remembering that it is the job of the police to monitor crime, so they are equipped to deal with offences under the Act. The Gambling Commission has Scottish compliance officers, most of whom I deal with and I must say are very accomodating and happy to help. But, as Mr Graf points out, the 2005 Act has a three tier licensing stratification – operating licences, personal licences and premises licences. The Commission and it’s compliance officers should only be dealing with operating and personal licences. Premises licences are issued by the licensing boards and therefore the regulation of them is not for the Commission but the boards – and that brings us back to the drafing error in s.304.
It is no coincidence that since the Gambling Act 2005 came into force on 1 September 2007 there has not been a single review hearing of a gambling premises licence in Scotland.