ON THE LEGAL STATUS OF LSOs IN CONNECTIONS WITH RIGHTS OF ENTRY, ENFORCEMENT AND COMPLIANCE FOR PREMISES LICENSED UNDER THE GAMBLING ACT 2005
Many of you will know that this is a topic on which I have written and spoken about at length since 2009. My view has always been that Licensing Standards Officers appointed under the Licensing (Scotland) Act 2005 cannot meet the definition of “authorised person” under s304 of the Gambling Act 2005 because they are not officers of the licensing authority (the licensing board), but the local authority – and these are separate legal entities. These views were extolled on this blog in July 2012.
The Gambling Commission has been mulling over this for some time now and I admit to having been a bit of a thorn in their side! I am pleased that they have worked towards trying to find a pragmatic solution to this conundrum and they have remained open to constructive feedback. The only real solution to this is to get Westminster to amend s.304. There is no appetite for fixing a “technical” issue such as this so the Gambling Commission have instead thought long and hard about a “workaround” and this has resulted in the publication of their advice note “The Role of Authorised Persons in Scotland“, which was published in July 2013.
The Commission wisely open with the following caveat: “The interpretation of the Act and powers of authorised persons in ultimately a matter for the courts“.
The Commission concedes that Licensing Standards Officers do not meet the definition under s.304 and this is confirmed at paragraphs 2.4 and 2.5 of the guidance note. The “workaround” they propose is that SOME Licensing Standards Officers may be capable of achieving s.304 status if they been assigned dual or multiple roles for the local authority; in other words, if the LSO also has other duties such as having been authorised to conduct functions in relation to public/environmental health.
I am aware of some LSOs in Scotland who do genuinely have a dual role and deal with other local authority regimes such as environmental health. However, there are numerous LSOs who have no such dual status and are full time LSOs with no “bolt on”.
I therefore sound a note of caution. If an LSO has genuinely been authorised for a dual role then the Act MAY allow them to be treated as authorised persons. If there is no dual authorisation then I remain of the view that the LSO cannot meet the criteria under s.304. There is also an issue in my mind if the local authority decideds to “authorise” an LSO as a mere fiction, in order to allow them to achieve s.304 status; and ultimately if this has or is done, then we can only lay the blame at the feet of the Parliamentary draftsmen who once again neglected the separate Scottish licensing regime. The Gambling Commission have been forced to construct an inelegant solution to the barren landscape of Scottish gambling enforcement as a result of the drafting error.
I sound a second note of caution. Just because LSOs may be capable of meeting s.304, does that mean they are appropriate persons to conduct gambling enforcement? The statutory LSO training does not deal with the Gambling Act 2005. In general terms, the knowledge of how gambling law works is poor. If LSOs are to be shoehorned into conducting gambling enforcement then it is entirely unfair to ask them to do so, unless they have received proper training.