The Gambling Commission has publicly rejected a district judge’s suggestion in the recent Paddy Power case that primary gambling activity is an area solely for the watchdog, not licensing authorities.
The betting company won an appeal over the London Borough of Newham’s decision to refuse an operating licence for a new shop on the grounds that it would attract crime and disorder.
Newham had conceded during a three-day hearing at Thames Magistrates’ Court that if it could take account of Primary Activity, it had fallen into error in its interpretation and had therefore been wrong to refuse the licence on that ground.
In the course of his judgment, District Judge Goldspring said on the issue of Primary Activity: “For my part (this appeal does not turn on this point) I believe the concept to fall outside the remit of the local authority and squarely with the Gambling Commission.
“If such a significant concept as primary activity existed on the fact of the Act, then one would have expected Parliament to make that clear. And in turn, it would have made clear who the appropriate enforcing body of that concept is.”
The judge suggested a local authority was not entitled to circumvent the split regulatory roles of the Gambling Commission and the local authority or the statutory intention of Parliament, and could not therefore take account of Primary Activity when considering a premises licensing application.
However, the Gambling Commission has issued a statement saying that it disagreed with the judge’s conclusion.
The watchdog suggested the terms of s. 153(1)of the Gambling Act 2005 were clear in that the authority “…shall aim to permit the use of premises for gambling insofar as the authority think it
(a) in accordance with any relevant code of practice under section 24,
(b) in accordance with any relevant guidance issued by the Commission under section 25…”
The Commission said: “It is open to a licensing authority to take account of the relevant parts of those documents that relate to primary gambling activity.”
It has therefore issued a reminder to local authorities of the powers and sanctions available.
This stresses that when issuing premises licences or ensuring that licensing objectives are being met, councils must have regard to guidance issued by the Commission and to the codes of practice it publishes, including for example those on primary gambling activity.