Leicester Gaming Club Ltd, R (on the application of) v The Gambling Commission

A statutory body may possess an implied power where that power may properly and reasonably be regarded as incidental to an express power. Where legislation gives a body broad discretion to fix a time period, and the statutory scheme does not otherwise indicate finality, that may support an implied power to amend or extend the period. The certificate may remain in force even after the specified application period has expired, because those are separate statutory requirements. The power must be exercised rationally and remains subject to judicial review.

The claimant held a certificate of consent under the Gaming Act 1968 permitting an application for a casino licence to be made by a specified date. Through an error by its solicitors, the application was not made within that period. The claimant sought judicial review of the Gambling Commission’s refusal to amend the certificate or issue a further certificate.

The central issue was whether the Commission had an implied power under Schedule 2 to amend the period specified in a certificate of consent. A further application was unavailable because of the Gambling Act 2005 (Transitional Provisions) Order 2006.

1. The claim succeeded in principle. The Gambling Commission had an implied power to extend the period specified in a certificate of consent for making a licence application. The issue of the appropriate consequential order was left for agreement or further consideration.
2. The applicable test, derived from A-G The Great Eastern Railway Company (1880) 5 App Cas 473, was whether the alleged implied power could properly and reasonably be regarded as incidental to an express power.
3. Paragraph 4(7)(b) of Schedule 2 conferred a distinct, or at least separately identifiable, power and duty to specify the period within which a licence application could be made. Parliament had imposed detailed limits on other aspects of the certificate decision but had imposed no comparable limitation on fixing that period. That structure supported an implied power to alter the period where appropriate.
4. Paragraph 3(1)(a) contained two separate requirements: the certificate had to be in force when the licence application was made, and the application had to be made within the specified period. The certificate could therefore remain in force after the specified period had expired. The latter requirement did not cause the certificate itself to cease to be in force.
5. The Commission was not functus officio when it issued the certificate or when the specified period expired. Its relevant function continued while the certificate remained in force. The power to extend time was not implied merely to avoid the Transitional Provisions Order, but followed from the statutory scheme itself.
6. The expression “for good reason” involved some imprecision, but that did not prevent the power from existing. Any decision to extend time would remain subject to ordinary judicial review principles.
7. Patmore Limited and Stanley Casinos Limited were not directly affected by the claim and therefore were not interested parties under CPR 54.1(2)(f), although it was proper for them to make representations under CPR 54.17.