Gambling law: why we need to mind the gap
IN an Opinion article last month (“Gambling – we can’t wait to act any longer. The time is now”, The Herald, January 11), Dr Heather Wardle and Professor Gerda Reith from the University of Glasgow argued that a longawaited White Paper which purports to reform the Gambling Act 2005 should be fast-tracked, but they also argued that more needs to be done in relation to local enforcement in Scotland.
They said that local licensing boards have powers to inspect premises and carry out test purchases. They are also critical of the lack of seeming effort by local authorities given the Gambling Commission figures show there were no such inspections in any Scottish authority areas in 2020/2021.
As a solicitor who specialises in Scottish gambling law I’d like to offer a corrective analysis of the dearth of local gambling enforcement. Ever since the Gambling Act 2005 came into force, licensing lawyers in Scotland have pointed out there is a gap in the legislation, which means enforcement by licensing boards is unlawful. This is down to a drafting error in the legislation (s.304, to be precise), one I and others in the sector have highlighted in the past and which has never been addressed.
In England & Wales, the licensing authority is the local authority. This is not the case in Scotland, where the licensing authority is the licensing board, a separate, independent body. The Gambling Act gives enforcement powers to officers of the licensing authority but this wording was written by persons who failed to recognise the disconnect with the
Enforcement activity carried out by the local authority here is voidable on the basis it is not the licensing authority
separate Scottish legal regime. The licensing board in Scotland has no officers or employees. Alcohol enforcement is done by local authority officers called licensing standards officers. What this means is that any enforcement activity carried out by the local authority in Scotland is voidable on the basis it is not the licensing authority. A subtle difference, I grant you, but this gap is the main reason why the numbers of licensing enforcement visits in Scotland has been practically nil every year since 2007.
This issue has been raised with Westminster, and with the Gambling Commission. It was formally recognised by the Commission in 2012, who created a work around, a way of having alcohol licensing standards officers “authorised” under other legislation as a back-door way of getting them approved to carry out gambling enforcement work.
Whilst credit should be given to the Commission for exploring some way to overlook this issue, its solution is parastatutory – it does not change the law or close the gap. Only Westminster can do that, by a straightforward and minor amendment, the wording of which has even been presented to it by the Law Society of Scotland.
Although there are sporadic examples of local enforcement in Scotland, if the White Paper is published, I hope this gap can finally be closed, and local
Scottish enforcement activities can be conducted lawfully.
Stephen Mcgowan is partner and head of licensing (Scotland) at law firm TLT