Overprovision under the Gambling Act 2005?

A SHORT REPORT ON EVIDENCE OF POSSIBLE PARLIAMENTARY INTENT TO REVISIT THE GAMBLING ACT 2005 AS REGARDS GIVING LICENSING AUTHORITIES THE POWER TO CONSIDER A FORM OF “OVERPROVISION” OR “CUMULATIVE IMPACT”

Recently I had call to peruse Scottish Parliamentary discussions of betting shops and I found some interesting motions and debates which led me on to a fuller exploration of the possibility that Holyrood and/or Westminster may be looking at changing the Gambling Act 2005. There is a series of publicly available breadcrumbs which the interested person (or licensing anorak) can discover and posit the suggestion, and it is no more than that at present, that somewhere in the higher echelons of power the idea of introducing “overprovision” as a legal concept to the Gambling Act 2005 is on the cards.

The following are my exhibits.

Exhibit A.
The first is from 9 August 2012:

Motion  S4M-03812: John Mason, Glasgow Shettleston, Scottish National Party, Date Lodged: 09/08/2012

Gambling Proliferation: That the Parliament notes the recent comments made by the former Leader of the House of Commons, Harriet Harman MP, when she said that the previous UK administration had made a mistake by allowing an increase in the number of betting shops on the UK’s High Streets; further notes the study by Professor Jim Orford of the University of Birmingham, which suggests that, on average, richer areas have around five betting shops for every 100,000 people, whereas less well-off areas have up to twelve; believes that many forms of gambling are effectively a tax on the poor; understands that money spent on buying lottery tickets in poorer areas is considerably higher than that being invested back into these communities, and would welcome a review of the legislation on gambling in order to protect vulnerable people in Glasgow Shettleston and the rest of Scotland.

Supported by: Humza Yousaf, Bill Kidd, Bill Walker, Dennis Robertson, Richard Lyle, Dave Thompson, Anne McTaggart, Kenneth Gibson, Margaret Burgess, Chic Brodie, Annabel Goldie, David Torrance, Gil Paterson, Angus MacDonald, Margaret McDougall, Stuart McMillan, Maureen Watt, Paul Wheelhouse, Mike MacKenzie, Patrick Harvie

Exhibit B.
We then have the last named MSP raising the issue later that month:

Question  S4W-09335: Patrick Harvie, Glasgow, Scottish Green Party, Date Lodged: 31/08/2012

To ask the Scottish Government whether limits could be set on the number of betting shops that can operate in certain areas, in a manner similar to the limits applied to sex shops under the Civic Government (Scotland) Act.

Answered by Kenny MacAskill (10/09/2012): Gambling is a reserved matter and the Scottish Government has no power to set limits on betting shop numbers. Decisions about premises licences for betting shops must be made in accordance with the criteria set out in the Gambling Act 2005 and with regard to statutory guidance. Whilst the Civic Government (Scotland) Act 1982 offers the local authority the ability to designate an appropriate number of sex shops for a locality (and for that number to be zero), neither the Gambling Act 2005 or the Civic Government (Scotland) Act 1982 allows the same in relation to betting shops.

Exhibit C.
Then in October 2012 Jonathan McColl MSP raises a motion on this issue, and links the matter to poverty and pay-day loan shops. This attracts various interest and moves through Parliament (to which I will return shortly).

Exhibit D.
The matter is raised again in a motion in March 2013 by Kevin Stewart MSP although this time no answer was received:

Motion  S4M-05989: Kevin Stewart, Aberdeen Central, Scottish National Party, Date Lodged: 19/03/2013

Gambling Act 2005: That the Parliament believes that local authorities should have the ability to decide if there is overprovision of betting shops in their area; understands that the Gambling Act 2005 removed the requirement to demonstrate demand for new betting shops and effectively removed local discretion on gambling licensing; recognises concerns that increased availability of gambling opportunities increases problem gambling, and believes that the Gambling Act 2005 should be revisited to allow for greater local choice and more protection for deprived areas from what is a drain on their income.

Supported by: Nigel Don, Bill Walker, Patrick Harvie, Richard Lyle, Joan McAlpine, David Torrance, Maureen Watt, Gil Paterson, Kenneth Gibson, John Mason, Rob Gibson, Bill Kidd, Adam Ingram, Dennis Robertson, Bob Doris, Chic Brodie, Colin Beattie, Sandra White, Elaine Smith, Mike MacKenzie, Dave Thompson, Annabelle Ewing, Jean Urquhart, Stuart McMillan, Colin Keir

Exhibit E.
It is not Holyrood alone which is looking at this. In the heated context of FOBTs, the House of Commons has discussed overprovision or proliferation, for example in debate raised by Scottish MP Tom Greatrex on 22 April 2013. That debate can be read in Hansard, here. Whilst briefly on the topic of FOBTs, I noted some specific discussion back up in Scotland as early as 2004:

Question S2W-11061: Kenny MacAskill, Lothians, Scottish National Party, Date Lodged: 30/09/2004
To ask the Scottish Executive what its powers are in respect of the use in casinos, or other establishments, of (a) category A slot machines and (b) fixed-odds betting terminals; what action it can take in respect of the use of these machines, and what representations it will make on the matter.
Answered by Tavish Scott (29/10/2004):These matters are reserved to the UK Government. However, the Executive has been and continues to be in regular discussion with the UK Government on a range of matters relating to these issues.

FOBTs were also raised in two questions from Patrick Harvie MSP on 31 August 2012, as follows:

Question  S4W-09333: Patrick Harvie, Glasgow, Scottish Green Party, Date Lodged: 31/08/2012

To ask the Scottish Government whether it has assessed the impact of the provision of fixed-odds betting terminals on the issue of problem gambling.

Answered by Kenny MacAskill (10/09/2012): Gambling is a reserved matter. The Scottish Government is aware of some concerns in relation to fixed odds betting terminals as revealed by the Gambling Prevalence Survey 2010 and other studies. However, the causal link between problem gambling and fixed odds betting terminals is not well established. We would welcome further research conducted by bodies who conduct or sponsor research.

Question  S4W-09334: Patrick Harvie, Glasgow, Scottish Green Party, Date Lodged: 31/08/2012

To ask the Scottish Government whether its powers under the Gambling Act 2005 allow it to set limits on the provision of fixed-odds betting terminals in premises licensed under the Act.

Answered by Kenny MacAskill (10/09/2012): Gambling is a reserved matter. The limited powers devolved would not allow the Scottish Government to set limits on the provision of category B2 gaming machines (which includes fixed-odds betting terminals) in premises licensed under the Gambling Act 2005.

Turning back now to “overprovision” of betting premises themselves as opposed to FOBTs.

Exhibit F.
SPiCE briefing from October 2012, in connection with the Jonathan McColl MSP motion, confirms a number of variables in this milieu, including that the Scottish Parliament has asked the UK Parliament to review this issue. The context has always been, as far as media reporting is concerned, in relation to planning laws. I have commented elsewhere on the short sightedness of this. This SPiCE briefing is different in that it poses a comparison to “overprovision” as defined and dealt with under the Licensing (Scotland) Act 2005. Of course, overprovision under the L(S)A 2005 remains a hot potato and even yesterday was the principle topic of discussion at the Alcohol Focus Scotland conference in Glasgow.

Exhibit G.
I then discovered a letter from June 2013 which is an internal communication between Alan Camerson of the Directorate for Local Governance and Communities and Stuart Todd of the public petitions committee. The letter contains the following paragraph: “At present I regret that am unable to provide a commitment as to a review of the Use Classes Order. We have, however, decided to consider further at this time the issues regarding possible controls around the sorts of uses mentioned in the petition” (my emphasis).

The Use Classes order relates to planning, of course. If it has been decided that the planning regime is not the focus of ministerial attentions here, then what is the alternative? (There are continued calls south of the border for planning to be revisited, such as here). This somewhat elusive reference to “possible controls” could only refer to pay day loan premises but if there is also a consideration of betting shops beneath that comment that what might that be, remembering the jurisdictional limitations?Could Holyrood be petitioning Westminster to introduce a “overprovision” to the Gambling Act 2005?

Exhibit H.
There is further evidence. This document confirms that this has been suggested through the public petitions regime to the UK Government on 13 November 2012. There is even evidence of the use of “overprovision” coming to the fore in local licensing authorities in England & Wales by reference to certain studies on the “cumulative impact” of betting premises. Licensing practitioners will not lose sight of the fact that “cumulative impact” is the England & Wales equivalent of “overprovision” under alcohol licensing.

Exhibit I.
A paper by the London Health Inequalities Network was published in June 2013 and can be viewed here. This report directly links the use of “Cumulative Impact Policies” (in Scotland, read “Overprovision Zones”) under the Licensing Act 2003 and whilst conceding the matter is theoretical, plainly this report is an argument in support of creating a parallel regime under the Gambling Act 2005.

Meanwhile, adverse press coverage continues to appear and yet further calls for amendments to the English planning regime are proposed, for example by Lid Dem MP Don Foster as recently as 6 August 2013 and reported here. But note that part of what Mr Foster is quoted as saying is that he wants to: “allow councils to take into account the ‘cumulative impact of a proliferation of  gambling activities’ when considering applications“.

It may be that the wider debates on FOBTs are driving this issue, but be warned that if an overprovision or cumulative impact provision is brought in then it would apply to all types of premises licence – not just betting but also casino, bingo, AGCs and FECs too. And how might this apply to existing premises? The answer to that is to re-introduce licence renewals and make the test apply at the renewal stage.

This is all speculation at present, but there is a gathering pile of evidence that Parliament(s) may be minded to head in this direction.

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About Stephen McGowan

Leading Scottish licensing solicitor at TLT. Chairman of BII Scotland.
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2 Responses to Overprovision under the Gambling Act 2005?

  1. Pingback: Overprovision of Betting Premises: An Update | Stephen McGowan's Licensing Blawg

  2. Pingback: Will Scotland have its own Gambling Laws? | Stephen McGowan's Licensing Blawg

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