The Gambling Commission has published the 5th Edition of the Guidance to Licensing Authorities. Stephen McGowan looks at what is new.
The Gambling Commission has released its 5th edition of the Guidance to Licensing Authorities document. The guidance remains comprehensive, running to some 187 pages, and has tightened up on a number of areas as well as introducing new considerations. Some of the key changes which licensing authorities as well as gambling operators will wish to note include a new approach to consideration of the "aim to permit" regime under s.153, in which the Gambling Commission is encouraging licensing authorities to think about "aim to permit" in a wider sense; so that instead of it being interpreted as a shackling provision, they will be emboldened to think more widely about their available powers.
The guidance is peppered with a distinct alteration in approach which appears to be motivated by the prevention of risk, rather than previous guidance which was more about being reactive to evidence that a particular issue is a problem. This "risk based" approach may prove controversial as it could be seen as inverting the burden of proof. It is for the licensing authority to "aim to permit" the application as long as the application is "in accordance with" certain measures or "reasonably consistent" with licensing objectives. It is for the licensing authority to prove that the application is not in "accordance with"; or prove that the application is not "reasonably consistent" with the objectives.
The focus on "guiding" licensing authorities to base their views on assessing risk as opposed to evidence is shown in particular with reference to the new approach to local conditions and review hearings outlined, plus the new requirement for local risk assessments. In each of these examples the burden of proof has shifted and become a debate on speculation and future-proofing rather than evidential decision making. There is a significant amount of new material on premises licence reviews, for example, but any reference to requirement of basing a review on evidence appears to have vanished from the new guidance.
The Commission has changed its approach to the guidance in relation to proposing model or pool conditions. The existing guidance says: “It is the Commission’s view that the conditions necessary for the general good conduct of gambling premises are those set as default and mandatory conditions by the Secretary of State and Scottish Ministers. Therefore, a pool of additional conditions published by the Commission is not necessary. Where there are specific, evidenced risks or problems associated with a particular locality, or specific premises or class of premises, a licensing authority will be able to attach individual conditions to address this. That will be a matter for them in the light of local circumstances."
The new guidance becomes:
"Licensing authority policy statements will need to consider the local circumstances which might give rise to the need for conditions. Where there are specific risks associated with a particular locality, the licensing authority might decide to attach conditions to the premises licence to mitigate those risks. For example, local issues associated with a high crime rate may put a premises at risk of not being consistent with the licensing objectives, and specific conditions may be necessary to address the risk."
Where there are risks associated with a specific premises or class of premises, the licensing authority may consider it necessary to attach conditions to the licence to address those risks, taking account of the local circumstances.
Note that the Commission's old view was that a pool of additional conditions was not necessary, and they suggested that individual conditions might be attached where there are "specific, evidenced risks". That word "evidenced" disappears entirely. The Commission goes further, providing an extensive list of pool "suggested" conditions in the new Appendix F which are comprehensive to say the least and it is not outlandish to suggest that some licensing authorities will wish to "dip" into this pool of conditions.
The shift from evidence to risk is also displayed with the introduction of a "local risk assessment" requirement.The new guidance includes the following new paragraph:
"To improve the exchange of information between licensing authorities and operators, the Commission has introduced SR code provisions that require operators of premises-based businesses to conduct local risk assessments (SR 10.1.1), and an ordinary code provision that says licensees should share their risk assessments with licensing authorities in certain circumstances (OC 10.1.2)."
This obligation has created a requirement for operators to create and present a "local risk assessment". What should this entail? How much detail should be provided? We are into the realms of something new here and the consideration of such a local risk based approach to dealing with the issue of licensing. This change comes into effect as of 6 April 2016. Licensing authorities will be able to create "Local Area Profile" assessments – which we believe will become a sort of route to "Overprovision zone" style policy approaches. The Local Area Profile is not a mandatory requirement and some licensing areas may not adopt one for various reasons such as resource or even lack of evidence of harm. Applicants for new licences or variations will be required to submit a local risk assessment with regard to the Local Area Profile if there is one.
This is a huge change for gambling applications. The creation of a requirement to submit a risk assessment – even in a variation application, which may be something as uncontroversial as a modest layout change – is significant and may well be challenged. It will be argued by some that creating a detailed requirement which does not appear on the face of the Act, and inverts the evidential burden is a significant step-change and that this level of change should be one which is introduced by Parliament.