Opinion column: Stephen McGowan
Public pressure is building for new controls on the spread of betting shops, but any change in the law should be properly based on evidence
There has been a lot of media and political attention about the presence of betting shops on the high street, particularly as a result of pressure groups which campaign against certain types of machines within them. Much of the discussion has been about the apparent clustering or proliferation of such premises. Looking at recent Scottish parliamentary discussions of betting shops, there are some interesting motions and debates, which lead me to think that policymakers are thinking about overprovision, a phrase more often associated with liquor licensing, in gambling terms.
In August 2012, a couple of MSPs raised motions about the proliferation of premises and purported to make a link between this proliferation and areas experiencing social deprivation. Similar motions were raised in October 2012 and March 2013. Questions have also been raised about particular machines that have attracted much vitriol in the press, known as “fixed odds betting terminals”, although their correct title under the Gambling Act 2005 is category B2 machines.
Earlier this year, the Directorate for Local Governance and Communities advised the Public Petitions Committee that changes to planning laws relating to betting premises were not envisaged, and that some alternative control might be looked at. This would require Holyrood to petition Westminster, as the Gambling Act 2005 is reserved. In the same month, there was published a paper by the London Health Inequalities Network on betting premises, which directly compares the use of “cumulative impact policies” under the (English) Licensing Act 2003 and argues in support of creating a parallel regime under the Gambling Act 2005.
Meanwhile, the adverse attention continues. Licensing authorities have been granting new betting licences, while indicating they are powerless to refuse them. Some authorities have been emboldened enough to refuse applications, but those decisions have been overturned on appeal, the leading case being Paddy Power v Newham DC (2013). In this case, the magistrate upheld the applicant’s appeal following a refusal; however, the local authority was granted leave to seek judicial review. While the issue of “primary activity” is important, Newham refused the licence based on a suggestion that the grant would lead to crime or disorder. The applicant contended that the evidence for that was nebulous. We await the outcome of the judicial review with interest.
This is not simply happening down south. William Hill had a licence refused by Highland Licensing Board in October 2013 on the basis that the location was unsuitable, as it might harm vulnerable people who use a nearby drug and alcohol treatment centre. The applicant appealed and the board announced that it would capitulate in entirety. The board conceded that the refusal had been based on pure speculation, with no real evidence, and without allowing the applicant to counter the claims of detriment.
Several English authorities, including Liverpool, various London boroughs and Manchester, have also passed motions indicating they are not prepared to grant any more betting licences. Although there is no legal effect to these resolutions, they certainly represent the authorities’ mindset. At the recent conference of the Institute of Licensing in Birmingham, I observed murmurings when one delegate suggested the introduction of a new gambling licensing objective relating to social deprivation.
It is interesting to note that, in the Scottish context, the Better Regulation Bill seeks to impose a requirement on local authorities to consider sustainable growth. Economic and business growth would become a duty in regulatory activity; however, this is still working its way through the parliamentary process.
One might argue that the existing objective concerning vulnerable persons could be sufficient to capture allegations that a new betting premises would lead to deprivation. However, the key issue for me is those twin pillars of natural law which underpin an authority’s vires: evidence, and causality.
Policy and decision making must be based on both, otherwise we create a system where subjective assessment, moral posturing and political short-termism may win out. I would suggest that it is incumbent on licensing authorities to base decisions on an evidential basis, to be aware of the failings that reactionary decision making may bring – outlined by thinkers such as sociologist Stan Cohen – and to understand the not insignificant difference between causation and correlation.
The Gambling Act 2005 does not entitle an authority to take demand into account, nor does it entitle an authority to refuse because of the simple reality that there are other betting shops in the locality. That would require a change to the Act. There is sufficient public and political interest that such a change may be formally proposed but, if it is, I hope it will be debated on the evidence.
Stephen McGowan is a director, and Head of Licensing (Scotland), at national law firm TLT t:0141 353 7773; e:stephen.mcgowan@TLTsolicitors.com; w: www.TLTsolicitors.com