British Casino Association Ltd & Ors, R (on the application of) v Secretary of State for Culture & Media & Ors

The merits of a gambling policy adopted through primary legislation and subordinate legislation are not generally open to judicial review. A minister exercising a statutory discretion must, however, understand the scope of the power, consider the matters required by the statute, obtain sufficient relevant information and avoid material mistakes of fact.

There is no established general duty to consult before making delegated legislation subject to Parliamentary scrutiny where no statute imposes one. If consultation is undertaken, fairness may require it to occur while proposals remain formative and representations must be conscientiously considered. The relevant consultation may be assessed as part of the whole legislative process.

The claimants, operators and representatives of existing casinos, challenged the Secretary of State’s Transitional Provisions Order made under the Gambling Act 2005. Paragraph 65 of Schedule 4 created converted casino premises licences and restricted existing casinos’ gaming-machine and other gambling entitlements compared with the limited number of new casinos.

The claim alleged that the Secretary of State had wrongly regarded herself as lacking discretion to improve existing casinos’ position, had failed to consult properly, and had acted on a material mistake of fact concerning the number of existing casinos large enough to qualify as small or large casinos. The central issue was whether the Order was unlawful on any of those grounds.

1. The claim was dismissed. Paragraph 65 of Schedule 4 to the Transitional Provisions Order 2006 was lawfully made.
2. Under the principles stated in Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014, the court had to ask whether the Secretary of State had directed herself properly in law, considered relevant matters, excluded irrelevant matters and taken reasonable steps to obtain the information necessary to answer the right question. The Gambling Act 2005 did not finally determine existing casinos’ gambling entitlements, although its structure implied that they could not receive all the entitlements of the new limited-category casinos.
3. The evidence showed that the Secretary of State had not believed herself legally incapable of altering existing casinos’ entitlements. Meetings, correspondence and actual amendments demonstrated that the representations had been considered. The wider legislative process, including the Act and related secondary legislation, could not artificially be separated from the Transitional Order. The policy was not irrational merely because it produced commercial disadvantages.
4. The court accepted, without finally deciding, that if consultation was required, fairness would require consultation before the relevant decision and while proposals remained formative. The principles in R v North and East Devon Health Authority, ex parte Coughlan [2001] QB 213 were therefore potentially relevant. However, the consultation and representations concerning casino entitlements had taken place over the legislative process as a whole, before the Order was made, and had been conscientiously considered.
5. The alleged factual error—that very few existing casinos were large enough to meet the small-casino threshold—was immaterial. The decisive policy concern was the concentration of gaming machines and the controlled number of new licences, not simply the physical size of existing casinos. The difference between “very few” and “a minority” did not affect the decision.