Opinion: A look at the judicial review of the GB Gambling Act

The Gibraltar Betting and Gaming Association (GBGA) has now begun its judicial challenge of the Gambling (Licensing and Advertising) Act 2014 (the 2014 Act) in the High Court.

What is judicial review?

Judicial review is a procedure by which the courts examine the lawfulness of decisions that have been made by public bodies. An applicant for judicial review must bring an application promptly and at most within three months of the decision and have sufficient interest to bring the challenge.

The GBGA has sought judicial review of the 2014 Act or more specifically, the new licensing regime it will introduce, which will require operators to obtain a licence from the Gambling Commission if they take bets from players located in the Great Britain

The GBGA argues that this is an illegitimate and disproportionate interference with the right to free movement of services under Article 56 of the Treaty on the Functioning of the European Union, discriminatory in breach of European law and irrational.

The GBGA was granted permission to bring the claim by Mr Justice Hickinbottom on 12 September after it demonstrated it had sufficient interest and had exhausted every other alternative remedy.

Justice Hickinbottom also ordered expedition of the hearing, an action heralded as a good sign by Dan Tench, Head of Public Law at Olswang (representing the GBGA), who said: “The Judge has recognised the strength of our claim, and has taken very sensible steps to ensure this is heard expeditiously before the regime is due to come into force.”

But will the GBGA be successful? In this week’s proceedings the GBGA will ask the court to declare that:

1. The new licensing regime is unlawful; and

2. The decision to refuse to adopt a “passporting” procedure proposed by the GBGA in its submissions before adoption of the Act was irrational.

It is difficult to know whether the judge will agree that the licensing regime is an interference to the right of free movement of services. However, there exist many gaming and betting licensing regimes across the European Union: a testament to the variety of ways in which gaming and betting can be regulated successfully and without breaching the fundamental right to free movement.

After all, it is hardly out of this world to imagine why a member state would want to approve a gambling operator before allowing it to take bets from its citizens, something even the GBGA seems to agree with.

The GBGA’s ‘passporting regime’, put forward during consultations, is not a bad idea either. Under this regime, overseas regulators would continue to license their own operators but work with and share information with the Gambling Commission.

There is no doubt that this type of scheme could work, but it is a far stretch to say that the UK government not implementing it was irrational and unlawful. Nonetheless, this is a decision for the court to take.

So what now?

Many operators hoping the GBGA’s case is successful are also hedging their bets. It is understood that 161 applied for operating licences from the Gambling Commission in preparation for 1 October, the date on which the 2014 Act will come into effect. With judgment expected to be issued before the end of the week, many operators and the Gambling Commission will be watching this case with keen interest.

Gemma Boore is a corporate and commercial solicitor at Bates Wells & Braithwaite London LLP with an interest in the regulation of gaming, betting and gambling.