Is the time ripe for a Judicial Review of the Point of Consumption Tax?

davidcliftonDavid Clifton, director at Clifton Davies Consultancy Limited and speaker at SBC’s Betting on Football Conference, asks whether the time has arrived for a Judicial Review of the looming remote gambling changes?

Now that Royal Assent in respect of the Gambling (Licensing & Advertising) Bill is looming and the 15% point of consumption tax has been confirmed in the Chancellor’s Budget announcement on 19 March, there is great speculation on whether we can now expect an aggrieved party such as the Gibraltar Betting and Gaming Association (GBGA) to apply for Judicial Review (JR).

GBGA has certainly flagged up the possibility of such a challenge. Having taken Leading Counsel’s advice, it submitted written evidence to Parliament last year in which it said:

  • The proposed measures both separately and together with the related changes to the tax regime for online gambling are unlawful in terms of EU, national and international law and are liable to successful legal challenge”,
  • “The proposals also violate the European Charter of Human Rights guaranteeing freedom of expression and the peaceful enjoyment of property”,
  • “The proposal to exempt non-UK transactions from taxation is both discriminatory and constitutes unlawful State aid” and
  • “In the event that the Government determines to proceed with the proposed legislation and fiscal reforms, the GBGA will regrettably have little alternative but to institute judicial review proceedings to challenge these measures”.

Some have queried why a JR has not already been commenced. However, that’s not as straightforward a question as it might sound as complex rules exist in relation to the timing of such applications. Putting matters simply, under the relevant Court Rules, any such application must be filed promptly and in any event not later than three months after the grounds to make the claim first arose, leading to the question when such time would start to run in the circumstances of the Gambling (Licensing & Advertising) Bill. For example, does time run from:

(a)    the date on which the Bill receives Royal Assent or

(b)    later still, when an action is taken pursuant to that legislation (i.e. once enacted) that is susceptible to challenge by JR, or

(c)     earlier than either, for example when the Government published the draft Bill or the Minister signed the relevant Impact Assessment?

Arguments could no doubt be advanced by learned Counsel in relation to each of the above timescales, but I have in mind a very recent Supreme Court judgment delivered by Lord Reed on 22 January 2014 in the High Speed 2 JR. In that case, the Court had to determine whether it should intervene at an early stage of the proposals for HS2 or, alternatively, wait until some future time when the Parliamentary process had been completed. In a judgment that may signal a green light for an imminent JR of the remote gambling changes, Lord Reed rejected the argument that early intervention by way of JR proceedings was justified on the ground that:

(a)        EU law does not subject Parliament to the sort of judicial scrutiny that the Claimants in that case wanted and

(b)       in any event, there was no indication that Parliament’s procedures would be inadequate.

As I see it, that judgment supports the argument that JR proceedings could only properly be brought once the Bill has been enacted, in which case the various justifications for the Bill that have been expressed during the Parliamentary process could work more in favour of the Government than would have been the position had a JR been possible and instituted at a much earlier stage, for example when in his budget statement on 21 March 2012 George Osborne said nothing about the need to introduce measures to improve player protection or to better regulate the gambling industry, but instead said that the proposed taxation changes that will accompany the regulatory changes will “protect jobs here”. 

Come what may, the Government seems unperturbed. During a House of Commons Committee Debate on 19 November 2013, the Parliamentary Under-Secretary of State for Culture, Media & Sport said that she was not aware of any significant challenges and that “the Bill will proceed in the normal fashion, regardless of whether there are any challenges whatsoever” on the basis that “the Bill is legally sound”.

What is clear is that the Bill will not “go live” until three months after Royal Assent. It remains to be seen whether a JR will be mounted, whether by GBGA or anyone else, within that period. If this occurs, it will be a matter of speculation whether the Gambling Commission might conclude that, whilst it will consider “continuation” licence applications made during the transitional period, it will defer its final determinations until such a JR has been determined.

E: [email protected]

W: www.cliftondavies.com

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