Harris Hagan Bulletin: Judicial Review a ‘clear cut case’

John Hagan

Specialist gaming law firm Harris Hagan has issued a bulletin detailing the outcome of the GBGA’s Judicial Review challenge to the point of consumption licensing regime. Here John Hagan digests some of the judgment.

Mr Justice Green handed down his eagerly awaited Judgment this morning in the judicial review proceedings brought by the Gibraltar Betting and Gaming Association (“GBGA”).

In a 96 page Judgment, Mr Justice Green rejected the GBGA’s claim that the Gambling (Licensing and Advertising) Act 2014 infringed EU or domestic law. In what he stated was in his judgment “a clear cut case” he ruled that the new regime was:

“..neither disproportionate, nor discriminatory, nor is it irrational. The new regime serves a series of legitimate objectives. There is no reason to doubt Parliament’s judgement that it will achieve a reasonable degree of effectiveness and there is no proper basis for concluding that it is or will be discriminatory in its effects. Further, I reject the submission that the new regime will create perverse incentives and lead to the creation of an illicit market of unscrupulous service providers.”

In his judgment, the documentary evidence from 2010 onwards (when the UK Government began to consult over changes to the licensing regime) recorded “a strong and consistent justification based upon consumer protection and the protection of public order” and that “these were objectives the Government and Parliament were entitled to pursue”.

He concluded that: “Consumers want to avoid being cheated. They want winnings to be paid. They want their personal data to be kept confidential. They want to have confidence that the operators with whom they deal are properly regulated in these respects and that in the event of a problem they can contact the regulator easily. The State wants consumers to be protected from addiction and wants those who profit from gambling to assume some level of responsibility for the social ills that gambling can lead to. In my view a regime that does no more than bring service providers within the confines of a consumer and public order oriented regime in the State that they target serves entirely legitimate objectives.”

For those within the industry who believe the new regime is really about tax revenues, Mr Justice Green noted the explanation of the UK Government that the exposure of offshore operators to the domestic tax regime “was a by-product of the regime not its principal justification”. For his purposes, he excluded any economic considerations in determining that there was sufficient justification for the new regime based only upon legitimate consumer and/or public order grounds.

For those within the industry who believe the new regime will prove to be unenforceable, Mr Justice Green said that: “First, there is no evidence or reason to believe that there will be a major enforcement problem. Secondly, even if there are limitations in the enforcement regime, the Government and Parliament were entitled to take the view that the suite of enforcement powers available to the GC would be sufficient, at least in large measure, to meet the licensing objectives. Thirdly, the Government has acknowledged that if and insofar as this proves not to be the case that it would review the law and take steps to strengthen enforcement powers.”

No application was made in court this morning for leave to appeal, as we would ordinarily have expected if there had been any intention on the part of the GBGA to appeal. In terms of what this means for operators, the new regime will go ahead, as planned, on 1 November 2014.

A full copy of the Judgment is available on our website here.


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