Gambling Commission v GK

The national gambling regulator may refuse an operating licence where it considers the proposed operating environment inconsistent with the licensing objectives. Its responsibility is not confined to assessing the applicant’s integrity, competence and resources. The statutory scheme gives primacy to its operating-licence decisions, although local licensing authorities retain functions concerning premises licences.

Gambling Act 2005 section 84 restricts conditions which may be attached if an operating licence is granted. It does not determine whether the Commission may grant or refuse the licence. The Commission may therefore address national regulatory concerns about an operating model without unlawfully usurping the local authority’s premises-licensing role.

Greene King applied to the Gambling Commission for bingo operating licences for up to eight public-house premises. The Commission accepted the company’s suitability and competence, but refused the applications because higher-stakes bingo and category B gaming machines in a pub environment might jeopardise the licensing objectives.

The First-tier Tribunal allowed Greene King’s appeals. It held that the Commission had intruded into matters assigned to local licensing authorities and had effectively prevented applications for premises licences. The Commission appealed to the Upper Tribunal.

The central issue was whether the Commission had power under the Gambling Act 2005 to refuse an operating licence on concerns about the proposed operating environment and its consistency with the licensing objectives.

1. Appeal allowed. The First-tier Tribunal erred in holding that the Commission lacked power to refuse the operating-licence applications because its concerns concerned pub premises. Its decisions were set aside and the appeals were remitted to a differently constituted First-tier Tribunal panel.

2. The combined effect of Gambling Act 2005 sections 1(c), 22 and 70(1)(a) gives the Commission the principal responsibility for securing compliance with the licensing objectives, particularly protection of vulnerable persons. That responsibility extends beyond an assessment of the applicant’s competence and suitability. It permits the Commission to consider whether the proposed operating model and environment are consistent with those objectives.

3. Sections 159(3) and 169(4) demonstrate the primacy given to the Commission’s decision whether to grant an operating licence. The existence of local authority functions concerning premises licences does not require the Commission to leave national regulatory issues to be resolved separately by local authorities. The statutory controls may overlap.

4. Section 84 concerns the conditions that may be included in an operating licence after it has been granted. Its prohibition on conditions requiring or preventing activities at specified premises or classes of place does not govern the prior question whether an operating licence should be granted.

5. The Regulatory Panel’s reasoning was therefore within the Commission’s statutory powers. The Upper Tribunal did not determine whether the refusal was correct on its merits; that issue remained for the First-tier Tribunal on remittal.

1. Upper Tribunal (Administrative Appeals Chamber): allowed the Gambling Commission’s appeal in [2016] UKUT 50 (AAC), set aside the First-tier Tribunal decisions, and remitted the matters for fresh decisions by a differently constituted panel.
2. First-tier Tribunal (General Regulatory Chamber): on 8 December 2014 allowed Greene King’s appeals, quashed the Commission’s refusals, and directed that the operating-licence applications be granted.