Making a statement
Licensing authorities will have started, or started thinking about, the process of preparing new gambling policy statements which must be published before 31 January 2013. Roy Light considers the form that policies should take.
By s.349(1) of the Gambling Act 2005 each licensing authority must prepare and publish "a statement of the principles that they propose to apply in exercising their functions" under the Act. The policy must be published for a three year period. The Secretary of State, under powers contained in s.349(6), set 31 January 2007 as the first day of the first three year period (Gambling Act 2005 (Licensing Authority Policy Statement)(First Appointed Day) Order 2006). As the policy must be published before its commencement date the next wave of policies must be published prior to 31 January 2013. To allow sufficient time to meet this deadline licensing authorities will already have started, or started thinking about, embarking on the process of preparing their next three year policy statements.[i]
Licensing authorities will be assisted in this task as they will have "review[ed] their statement from time to time" and if necessary revised it as required by s.349(2). Any revisions must be subjected to the same procedures as the full three-year revision and must be published. Few authorities appear so far to have published revisions during the current three year period.
Regulation 7 lays out the procedures to be followed in preparing and publishing the statement and any revisions. Briefly, the authority must publish/advertise the statement/revision for a minimum of four weeks before it comes into force.
Section 349(3) requires that in preparing a statement or revision a licensing authority must carry out a consultation. The section lists the consultees as the chief officer of police for the authority’s area (or in Scotland the chief constable of the police force maintained for the police area comprising that area); one or more persons who the authority considers represent the interests of persons carrying on gambling activities in the area and one or more persons who appear to the authority to represent the interests of those who are likely to be affected by the exercise of the authority’s functions under the Act.
The consultation process has provided a fruitful route for challenge of local authority policies in various areas and licensing authorities will be mindful of the need for care. While the Act requires only ‘one or more persons’ to be consulted it would be good practice to consult further and also to balance the numbers and quality of responses sought. Also, while the Act makes no mention of the consultation period, the Government Code of Practice (July 2008) suggests that "consultations should normally last for at least 12 weeks with consideration given to longer timescales where feasible and sensible".
The duration of consultation exercises is one of seven ‘consultation criteria’ contained in the Code of Practice. The others, briefly, are that: "formal consultation should take place at a stage when there is scope to influence the policy outcome"; consultation documents "should be clear"; the exercise should be accessible and targeted "at those people the exercise in intended to reach"; the burden on consultees should be kept to a minimum; responses should be carefully analysed with clear feedback to participants; and those "running consultations should seek guidance in how to run an effective consultation exercise".
What should be in a policy statement?
The form the statement shall take is laid out in the Gambling Act (Licensing Authority Policy Statement)(England & Wales) Regulations 2006 SI 2006/636 (made under s.349(4)). Regulations 4 and 5 set out what shall be included in a statement or revision, while regulation 6 refers specifically to revisions. Regulation 3 provides that subject to regulations 4, 5 and 6 the form of the statement/revision is a matter for the licensing authority. So that providing a policy statement complies with the requirements of regulations 4, 5 and 6 an authority is free to include any further matters which it considers to be appropriate. This allows authorities to tailor their policy to meet local needs and circumstances (arrived at by way of a fully informed and considered consultation exercise).
While no exercise seems to have been conducted on the form of policies around the country, it appears that the majority of licensing authorities have adopted the regulations as a template for policies and a number have included little beyond that required by the regulations. This is not surprising given the novel and complex nature of the Gambling Act regime. Six years’ experience of working with the Act may be reflected in an expansion of content in the forthcoming policy statements.
The regulations provide that a statement must include an introduction at or near the start of the policy. This must contain a summary of the matters dealt with in the policy, a description (or plan) of the licensing authority’s geographical area and a list of persons consulted on the policy. Provided the last two of these are referenced in the introduction they may be contained in appendices at the end of the policy document. It is important that the invitation to contribute to the consultation makes it clear that consultees will be listed in the policy document. And a plan is useful as it can provide an easily referenced, clear delineation of the area in which the authority exercises functions under the Act.
Other matters which it may be thought helpful to provide by way of introduction are confirmation that the policy has had regard to the licensing objectives, the Guidance and any responses from those consulted and to demonstrate how these matters have been taken into account when drafting the policy statement. Also of use would be a statement of the licensing objectives, the duties and responsibilities of the authority (including enforcement), as well as information on responsible authorities and interested parties (although any temptation to embark on a textbook or manual is probably better resisted).
The regulations require the inclusions of separate sections setting out the principles to be applied by the authority in: designating the body competent to advise on the protection of children from harm under s.157(h); exercising the power to determine if a person is an interested party pursuant to s.158; exercising the functions under ss.29-30 regarding exchange of information with the Gambling Commission and others listed in schedule 6; exercising the functions under part 15 of Act relating to the inspection of premises; and the powers under s.346 to instigate criminal proceedings.
If the authority is entitled to issue casino licences the policy must contain the principles that will be applied by the authority for selecting from competing applications. If a resolution has been made not to issue casino premises licences this must also be included in the statement (s.166(5)).
Additional information that an authority may consider necessary or helpful may include factual information, such as the different types of authorisations for which the authority has responsibility; factors which the licensing authority may take into account when considering applications and reviews; and a statement of the principles to be applied when considering applicant suitability for an FEC permit or prize gaming permit.
Some authorities have included considerations specific to the licensing objectives that may be taken into account by the authority when considering applications under the Act. For example, in relation to the crime and disorder licensing objective, the location of the premises, their design and layout, staff training, physical features (such as the position of cash registers and the standard of the cctv provision), the procedures for proof of age and even, "the likelihood of any violence, public nuisance, public disorder or other crimes and policing problems if the licence is granted."
Authorities are free to include such information as they consider necessary and useful. The explanatory memorandum to the Policy Statement regulations states the purpose of a gambling policy statement as being "to assist licensing authorities in undertaking these new responsibilities and to provide transparency for those wishing to apply for an authority for permission under the Act" (para.4.2). This will need to be borne in mind when policies are drafted
Prof Roy Light is a licensing barrister practising from St John’s Chambers, Bristol. He can be contacted at This email address is being protected from spambots. You need JavaScript enabled to view it..
[i] The time period for policy statements under the Licensing Act 2003 is about to be extended from three to five years. A representative from the Gambling Commission recently agreed with the author that a similar extension for gambling policy statements would probably be looked upon favourably.
