Part 7: Operating and Personal Licences: Appeals
374.Part 7 provides for the formation and operation of an independent tribunal to deal with gambling matters. It will deal with appeals against decisions taken by the Commission in respect of operating and personal licences (Parts 5 and 6 of the Act), as well as appeals in relation to a decision by the Commission to void a bet under Part 17.
Section 140: The Gambling Appeals Tribunal
375.This section provides for the establishment of the Gambling Appeals Tribunal. The requirements for the foundation and operation of the tribunal are set out in Schedule 8 to the Act. The purpose of the Tribunal is to hear appeals against the decisions of the Commission. The mechanism for appeals against the decisions of licensing authorities are set out in those Parts and Schedules of the Act which deal with the functions of such authorities e.g. Part 8 on premises licences and Part 9 on temporary use notices.
Section 141: Appeal to Tribunal
376.Rights of appeal are available to people affected by the decisions of the Commission. This section sets out the particular circumstances under which holders of, and applicants for, operating and personal licences will have a right of appeal against decisions of the Commission:
A person who has applied for grant of an operating or personal licence, (or, when relevant, an existing licence holder who has applied for renewal of their licence), will have the right of appeal against the Commission’s decision.
Where the Commission attach an individual condition to an operating or personal licence, the holder of the licence will have the right of appeal against the decision.
An operating licence holder that is a company limited by shares, which has applied for the operating licence to continue to have effect when a new controller takes over, can appeal against the Commission’s determination.
The holder of an operating or personal licence who has applied to the Commission for variation of the licence by adding, amending or removing an authorised activity; amending another detail of the licence; or adding, amending or removing an individual condition attached to the licence, may appeal against the Commission’s decision.
The holder of an operating or personal licence can appeal against a decision by the Commission that they are incapable of carrying on their licensed activities by reason of mental or physical incapacity.
The holder of an operating or personal licence can appeal against the Commission’s use of its regulatory powers in connection with a review: that means that an appeal can be made against the issue of a warning to the licence holder; the variation or removal of a condition or exclusion, or attachment of a new condition or exclusion to the licence; suspension or revocation of the licence; or imposition of a financial penalty.
Section 142: Timing
377.This section provides for a time limit within which an appeal must be commenced. An appeal must be made within one month of the date of decision or action that is to be appealed against. However, the Tribunal has discretion to permit an appeal to be started after this period.
Section 143: Appeal from Tribunal
378.This section provides that parties to an appeal before the Tribunal may appeal the Tribunal’s decision to either the High Court, or, in Scotland, the Court of Session. The right only extends to appeals based on a point of law, and appeals may only be brought with the permission of the Tribunal or, if this is denied, the relevant appeal court. A higher court to which an appeal is brought under this section can affirm or quash the Tribunal’s decision, or remit the matter back to the Tribunal for a re-determination. There is no power for the higher court to make a fresh determination based on the facts of the case.
Section 144: Powers of Tribunal
379.This section provides for the Tribunal’s powers following an appeal. It allows the Tribunal to either uphold or overturn all of, or part of, the Commission’s decision. The Tribunal can also substitute a decision or action taken by the Commission for another. In so doing, it is limited to taking only decisions or actions of a kind which the Commission is empowered to take. For example; if the Commission recommended that a financial penalty be imposed, the Tribunal could rule that a more appropriate decision would be to revoke the licence, or to issue a warning. But the Tribunal cannot order something which the Commission could not have ordered in the first place.
380.The Tribunal can also add to the Commission’s decisions, i.e. it could uphold a decision to impose a financial penalty, and add that the licence should also be revoked. This section also allows for the Tribunal to refer a matter back to the Commission for further consideration, following which there will again be the right to appeal to the Tribunal under this Part from the new decision made by the Commission.
381.The Tribunal can also re-instate a lapsed or revoked licence following a successful appeal.
382.When determining an appeal, the Tribunal can take into account evidence that was not previously available to the Commission, and it must ensure that it considers any relevant code of practice issued by the Commission.
Section 145: Stay pending appeal
383.This section provides that a decision or action of the Commission, in relation to an operating or personal licence, will not have effect until either the period for bringing an appeal has expired, or if an appeal is in progress, until the appeal has been finally determined or abandoned. For example, if a financial penalty is imposed, and this is appealed against, the penalty cannot be enforced until the Tribunal decides, following that appeal, whether to uphold the decision to impose the penalty.
384.However, the Commission has the discretion to disapply this stay in a particular case if, for example, it considers that it is necessary that a particular licence is revoked or suspended with immediate effect. In such circumstances, the bringing of an appeal will not prevent the Commission’s decision having effect, pending the outcome of the appeal. This power is provided so that the Commission can ensure fairness to players, protection of children and the vulnerable, and the prevention of crime (the licensing objectives).
Section 146: Rules
385.This section gives the Lord Chancellor the power to make secondary legislation in relation to the regulation of appeals to the Tribunal, and the procedure of proceedings before the Tribunal. In particular, these rules may specify who can be a party to proceedings, including, specifically, for the purposes of an appeal against a decision of the Tribunal. Paragraph 14 of Schedule 8 gives a non-exhaustive list of matters about which rules can be made. It includes:
the manner and time in which appeals are instituted;
determination of ongoing issues during the course of proceedings and other ancillary matters;
issuing directions to parties;
disclosure;
joining the Commission to proceedings;
suspension of Commission decisions;
giving evidence and production of documents;
administration of oaths to witnesses;
public admission to proceedings;
representation of parties;
withdrawal of proceedings;
recording and declaration of decisions;
award of costs or expenses;
variation or revocation of Tribunal decisions.
386.Rules made under this section may make it an offence not to comply with certain requirements.
Section 147: Fees
387.This section enables the Lord Chancellor, through regulations, to set the level of fees to be paid by a person when bringing an appeal to the Tribunal. Different fees for different types of case or circumstance may be charged, and the Tribunal may waive a fee where it deems it appropriate. The Lord Chancellor must consult the Secretary of State before exercising this power.
Section 148: Legal Assistance
388.This section enables the Lord Chancellor, through regulations, to establish a legal assistance scheme to provide financial assistance to appellants who might otherwise be unable to instigate an appeal to the Tribunal. Regulations may specify the kinds of assistance that may be provided and the classes of person by whom assistance may be provided. They may also include provision about applications to the Tribunal for assistance, including a requirement to provide information. The Lord Chancellor may state the criteria to be used by the Tribunal in determining eligibility for legal assistance, and may make provision for an applicant to appeal against a decision to refuse assistance. This section does not apply to Scotland, where different powers for affording legal assistance are available.
Section 149: Enforcement of Costs Orders
389.This section enables an award of costs made by the Tribunal to be enforced as though it was an order of the county court. The judgement creditor must apply to the county court for the district in which the debtor resides and payment may be enforced in accordance with Part V of the County Courts Act 1984. This includes the power to call in the bailiffs if necessary.
