I have had a lot of people comment to me about my two blogs (here and here) about the Gambling Commission’s view of information-sharing arrangement (particularly with the issue being raised in the GBGA’s case against the forthcoming Place of Consumption Tax (paragraph 41 (4) at the top of page 19). So I thought it worth getting a rather more expert view on the Commission’s position, rather than relying on my own rather amateur effort.
But where to go for such a thing, I wondered – before the thought struck me.
Back in my Betfair days, it may be remembered that we had the odd legal issue or two on which we needed sound advice. That advice always came from the same source – a man who has since retired as a practising QC, but who retains an interest in the industry and who knows gambling law as well as anyone on the planet. Might Simon Mehigan QC, I wondered, offer me his thoughts?
I contacted him. I was right that he is no longer practising (although he’s still editing Paterson, the ‘bible’ of licensing law), and so would not be in a position to be instructed even if I were so minded. But he agreed that he would write me an opinion on the issue as if he were, on the basis that I accept that he is not covered by legal indemnity insurance, and is not offering legal advice (either to me or to anyone else), and make clear that I (and anyone else) would hold him harmless against any claim that might arise in relation to this or any associated topic. Of course, I agreed.
Herewith, on that basis, the considered view on the topic of those two blogs of a retired QC, presented as if I had gone to him as a client and paid him for his services, when in fact neither I nor anyone else has done either: I have asked him as a former colleague, and no money has changed hands between us. In return for his input, a donation has been made to Emmaus UK, a Cambridge-based UK charity working to end homelessness.
It’s only a view, of course; but I wish the Commission’s position were watertight, and it seems to be anything but. It will be a disaster, in my view, if the new regime is challenged the moment it is introduced – particularly on an issue that is peripheral, can be corrected, and seems to be staring everyone pretty clearly in the face.
Note re FAQ 29
- FAQ 29 and the answer to it were published in 31.7 2014 by the Gambling Commission (“GC”). The issue raised is whether the GC has power to share information with “other regulators” (i.e. those not currently listed in Schedule 6 Gambling Act 2005) without any expansion of that Schedule. In answering “Yes” the GC relies on the absence in the 2005 Act of any “general prohibition on the provision of information by the Commission to others”. It claims to have a general power to disclose information provided to it “if it considers it appropriate to do so, as long as it complies with any general applicable legal requirements” such as data protection law.
- Mark Davies has, in his blog dated 4.8.14 (foreshadowed by a blog of 29.7.14) raised significant questions about the answer to FAQ 29. In my view he was right to do so. I have reached the conclusion that the GC’s answer is wrong and that the GC can only disclose to those bodies listed in Schedule 6. It has no general power to disclose. Its reliance on the absence of any general disclosure prohibition is misconceived.
- My reasons for so concluding are as follows:
3.1 The GC was entirely created by the 2005 Act; Part 2 thereof sets out a number of basic rules in relation to it and other Parts (e.g. Part 5) refer to specific powers/duties. Of particular relevance to FAQ 29 are s. 30, Schedule 6, and ss 350-352A.
3.2 s. 30(1) gives the GC power to provide information received by it in the exercise of its functions to any person listed in Schedule 6 and then only if the recipient uses the information in the exercise of its own or the GC’s functions. s. 30 (3) and (4) contain other powers of disclosure, although they do not appear to be relied upon under FAQ 29. s. 30(8) specifically refers to s. 352; that expressly forbids any disclosure which contravenes the Data Protection Act 1998. Clearly, the power given by s. 30(1) is specific and limited. It contains no general power to disclose. It does not say that disclosure can be made “to any persons or bodies”. It says that disclosure can be made to such persons “listed in Schedule 6” and then only for certain particular purposes. It does not give the GC a general discretion as to whom it may choose to disclose. Its power to disclose can only be exercised in accordance with s. 30(1). Nor does it refer to Schedule 6 as listing mere examples of bodies to whom disclosure can be made; there is no mention of “including” or similar words.
3.3 When we turn to Schedule 6 we see three categories of recipient set out in Parts 1-3. Since 2005 the list in each category has been amended both by deletion and addition; for example, see SI 2012/1633 which has made extensive changes to Part 3, the list of Sport Governing Bodies. Schedule 6 also contains various Notes, under Part 4; Note 1 expressly acknowledges that information provided to the persons etc. listed under Schedule 6 may be subject to overriding restrictions as to its use under other enactments. It envisages the possibility that the body may not have complete freedom as to the use it makes of information provided by the GC.
3.4 s. 350(1) gives power to any Schedule 6 recipient to provide that information to another Schedule 6 body “in the exercise of a function under the Act” and s. 350(2) enables only Part 1 recipients to provide information to HMRC “for use in the exercise of any function”.
3.5 s. 351 gives power to the Secretary of State to amend Schedule 6. It does not enable the GC to do so.
3.6 s. 352A, inserted by the FA 2006, refers to the concept of liability for wrongful disclosure and makes provision for limiting it.
3.7 It is quite clear to me that the 2005 Act sets out a detailed series of rules about disclosure by the GC. In particular it places a number of limits on that disclosure – to whom it’s made, to what it relates. They are comprehensive and cannot be ignored. Nor can they be supplemented in the manner suggested by the GC.
4. Moreover, if the GC answer to FAQ 29 is correct it seems that at least the provisions of s. 30(1) Schedule 6, s. 350 and s. 351 are otiose. No court will accept that they are. Further, if the GC answer is right what we’d see in s. 30(1) is a general power to disclose to any persons etc. ; however, instead we have a specific and limited power. That cannot be reconciled with the claims made by the GC in FAQ 29. Additionally, the fact that disclosure by the GC to a body not listed in Schedule 6 can evade the limitations on disclosure found in s. 30(1) and in Note 1, Part 4, Schedule 6 (at least in respect of overseas regulators) is another indicator that the only proper disclosures the GC can make are those expressly sanctioned by the 2005 Act.
5. The GC reliance on an absence of a general prohibition on the provision of information to others is misconceived. It flies in the face of the words used in the 2005 Act. If the GC wishes to disclose to bodies not listed in Schedule 6 it will have to ask the Secretary of State to amend that Schedule; until any such an amendment occurs it cannot make disclosures to any body outside s. 30.
Simon Mehigan Q.C.
20th August 2014