§ 5.2 p.m.
§ Order of the Day for the House to be put into Committee read.
§ Moved, That the House do now resolve itself into Committee.—(The Earl of Kinnoull.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The LORD MERTHYR in the Chair.]
§ The EARL OF KINNOULL moved, before Clause 1, to insert the following new clause:
§ Gaming machines
§ "In section 33(2)(b) of the Betting, Gaming and Lotteries Act 1963 (which imposes the condition with respect to gaming by means 418 of a gaming machine that the stake required to be hazarded in order to play the game once does not exceed sixpence) the words 'required to be' are hereby repealed."
§
The noble Earl said: I beg to move the Amendment standing in my name. This is a new clause which has been put down at a rather late stage in the Bill in view of the recent decision of the House of Lords in the case of Rosenbaum v. Burgoyne. Under Section 33 of the 1963 Act—your Lordships will recall that that section deals with club premises—there were laid down for these premises conditions which were originally embodied in the 1960 Betting and Gaming Act and which are far less stringent than those for premises such as cafés and restaurants, which are, of course, open to the public. Under Section 33 there were three conditions: first, no more than two gaming machines may be in operation in any one place; secondly—and here I quote—
that the stake required to be hazarded in order to play the game does not exceed sixpence";
and thirdly, that no profit should go towards private gain—or, in other words, into the pockets of the club owner.
§ No limit was set for prizes that may be won, either in cash value or in kind. The intention of Parliament, as I understand it, under Section 33(2)(b) of the 1963 Act was to limit the maximum stake that could be hazarded at any one time to sixpence. However, by the recent ruling of the House of Lords the interpretation of this paragraph now has what appears to be the completely opposite effect. The question posed by the noble and learned Lords was: what stake is required in order that the game shall be played? It was clearly denned that the legal interpretation of this paragraph was that there would be no maximum limit on the stake so long as any one of the machines could be played for sixpence or less. In other words, it is optional—and this is the important word—whether the player wishes to stake more than sixpence or not.
§ The effect of this could lead, I submit to your Lordships, to serious danger, and it strikes at the fundamental principle Parliament laid down that such machines should provide only an innocuous form of gaming. The effect of the interpretation is considered so serious by some that they believe that 419 unless steps are taken immediately unscrupulous operators could well step in. A further effect arising out of the interpretation is that clubs would now appear to have an unfair advantage over such premises as public houses which may be competing in the same business and in the same area. Such an advantage was never intended by Parliament. This Amendment I regard as important, and I would ask your Lordships to consider it. I beg to move.
§
Amendment moved—
Before Clause 1, insert the said new clause.—(The Earl of Kinnoull.)
§ LORD SHEPHERDI have had some notice of the problem to which the noble Earl has drawn our attention, and I would recommend the Committee to accept the Amendment, on one condition: that the Government assure us that the drafting is right. I am assuming that the noble Earl has had some consultation with the Government and has had the use of the Parliamentary draftsmen I want that assurance because I recognise the difficulty of Back-Benchers in producing Amendments, not only for Private Bills but for Public Bills. If we had that assurance, I would recommend the Committee to accept this Amendment.
§ LORD ILFORDHer Majesty's Government have certainly acted with alacrity in this matter; in some quarters it might be considered with unbecoming alacrity. The cause of Rosenbaum v. Burgoyne to which my noble friend referred was decided in the House of Lords I think on July 7. It had travelled the full distance from the magistrates' court via the Divisional Court of the Queen's Bench Division and the Court of Appeal and eventually arrived in the House of Lords, and there it was decided that the appellant's contention was right. In those circumstances it is, as I say, sometimes thought to be unfitting that the Government should then promote legislation in order to put right something which the parties have contested at considerable expense in the courts.
My noble friend has explained very clearly the purpose of this Amendment and I propose to acquit the Government of anything unbecoming in promoting it. I think what has happened is that the decision of the House of Lords has really 420 defeated one of the main purposes of the principal Act. The principal Act was intended to restrict the use of these machines to a type of machine on which the stake was relatively small. The House of Lords decision has really destroyed the purpose of that enactment, and in those circumstances, undesirable as it usually is, as I think, to correct too soon by legislation something which has been decided in the courts, perhaps this case stands on rather a different footing. For my part, I do not propose to direct any real criticism at Her Majesty's Government for what has happened.
§ LORD AIREDALEBefore the noble Lord sits down, may I ask him whether the successful appellant in the Rosenbaum case got his costs? I expect he did. I hope he did.
§ LORD ILFORDThe noble Lord must not put questions to me; but as he has done so, all I can tell him is that I do not know whether costs were awarded or not. Successful parties in the courts usually expect to get their costs, but they often find that the sum which is awarded does not, by any means, cover the expenditure which they have incurred.
EARL FERRERSI think it might be helpful to the Committee, and to the noble Lord, Lord Shepherd, if I were to say that Her Majesty's Government are satisfied with the wording of this Amenment; that indeed the Parliamentary draftsman has seen it, and has been able to assist in the wording of it. In fact, this does not alter the intention of the original Act one bit. As noble Lords appreciate, the intention of the original Act was that 6d. should be the maximum stake; but it has transpired that you can have a machine with a 6d. slot and, if you like, four or five other 6d. slots. Indeed, it would be possible under the judgment which was given for a machine to have one 6d. slot and then 12 slots which would take 2s. 6d., all of which could function by one operation of the lever. Frankly, that was not the intention of the original Act, and this Amendment would clarify that intention.
§ THE EARL OF KINNOULLI should like to thank all noble Lords who have spoken on this Amendment, and I ask your Lordships to accept it.
§ On Question, Amendment agreed to.
421§ Clause 1 [Provision of certain amusements with prizes at certain commercial entertainments]:
§ 5.13 p.m.
§ LORD ILFORD moved, at the beginning of Clause 1, to insert:
§
"(1) After section 49(1) of the Betting, Gaming and Lotteries Act 1963 (which relates to the conditions to be observed in connection with the provision of amusements with prizes at certain commercial entertainments) there shall be added the following subsection:—
'(1A) Notwithstanding the provisions of this section a local authority may by a resolution determine not to grant permits for the provision of amusements with prizes in respect of
and a resolution passed by a local authority under this subsection may apply to part of the whole of the area of the local authority.'
§ The noble Lord said: The purpose of this Amendment is to make it possible for a local authority by resolution to determine that they will not grant permits for these machines in a defined class of premises. It would enable a local authority by resolution to decide that they would not in any circumstances grant permits for these machines in, for example, public houses or in cafés, or in certain classes of café or certain classes of public house. When the Bill was in another place, it was, I think, made reasonably plain that its purpose was to facilitate the granting of permits for these machines, not in public houses or in cafés, but in the major amusement parks, as they are called, or, if I may employ an expression with which your Lordships are, no doubt, more familiar than I am, in fun fairs. I have never derived any fun from visiting one of these places myself, but a great many people do so. The purpose of the Bill is to facilitate the granting of permits for places of that sort, and not for the ordinary public house or café.
§ As the Bill stands, the local authorities have to examine, in circumstances which we shall come to later on, the conditions in which the applicant proposes to make use of these machines, and they have to give what is really a semi-judicial decision. Sometimes there are a large 422 number of public houses, and in many towns there are an even greater number of cafés. I should have thought that these machines were certainly unsuitable for installation in cafés, and that a local authority might quite reasonably say, "We ought not to be overwhelmed with applications from the proprietors of all these cafés when we consider that the use of these machines in a café is really out of place, and we ought not to grant a permit to anybody on that ground".
§ I had hoped that my noble friend might have met me about this. At any rate, if he thinks that it is too hard on the public houses, he might at least consider giving me some help over the cafés. That would certainly ease the burden of the local authorities considerably. This is going to be a not inconsiderable burden. In some towns, the local authorities will be overwhelmed with applications, all of which have to be determined individually and independently. I hope that Her Majesty's Government may think it reasonable that if the local authorities should, in their discretion, consider that the use of these machines in a particular class of premises was undesirable, they might pass a resolution to that effect and spare themselves the burden of examining all these applications which, on the common ground that they considered the premises themselves not to be suitable, they felt it desirable in any case to reject. I beg to move.
§
Amendment moved—
Page 1, line 5, at beginning insert the said subsection.—(Lord Ilford.)
§ THE EARL OF KINNOULLAS the noble Lord has said, this Amendment has the purpose of giving to the local authorities, as a matter of general policy, the power to refuse to grant any permits for gaming machines in their area. The Amendment has been given the most careful study, and it is felt that it widens the power of authorities under Clause 2 to far too great an extent. It jeopardises the important principle of each application being considered on its merits. The effect of the Amendment would not be beneficial to the Bill, for three reasons: first of all, local authorities already have adequate powers to grant or refuse permits under the Bill; secondly, it is considered as an important principle that applica- 423 tions should be considered individually; and lastly, it is felt that in practice the effect of this Amendment, if passed, would lead to results not foreseen originally by the local authorities.
To illustrate this last point, I would say that if a general resolution were made forbidding permits to premises described in paragraph (b) of this Amendment, it might affect not only restaurants but also genuine amusement places. While this particular objection might be met by drafting alterations, it illustrates the danger of generalising as a whole. The noble Lord made a point about local authorities being overwhelmed with applications. I am informed that this is not considered to be the case, and that the principle of individual applications should be accepted. I would therefore suggest to the noble Lord that he might consider not pressing this Amendment.
§ LORD ILFORDI had hoped that my noble friend might be prepared to meet me, at any rate so far as the cafés were concerned. I see that he is quite stubborn about it and has no intention of doing so. In those circumstances, I ask leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 1 agreed to.
§ Clause 2 [Permits for the provision of amusements with prizes]:
§ 5.20 p.m.
§
LORD ILFORD moved, in subsection (1), after "used" to insert:
or having regard to the character and record of the occupier of the premises".
§
The noble Lord said: The purpose of this Amendment is to clarify the definition in the Bill of the grounds upon which a local authority may decide to refuse or to grant or renew a permit. The Amendment proposes to introduce among the grounds which the local authority may consider in determining to refuse or grant a permit one additional ground: the character and record of the applicant. Clause 2(1) of the Bill sets out in some detail the grounds on which the local authority may act. They may refuse to grant or renew the permit
on the ground that, by reason of the purposes for which, or the persons by whom, or any circumstances in which, the premises are, or are to be, used, it is undesirable that amusements with prizes should be provided thereon.
424
It is significant that one ground which is not included in this enumeration of grounds is the character and record of the applicant. It is of special significance for the reason that the courts, in construing the similar section in the principal Act, have held in express terms that the character and record of the applicant may be one of the grounds upon which the permit may be refused.
§ The difficulty that I apprehend about this definition is this. The courts having defined in fairly clear terms the grounds on which the local authority may act, shortly afterwards legislation is passed and one of the grounds which the courts have held to be a good ground is omitted. That will be taken by persons who have to construe this Bill to mean that Parliament did not intend to include among the grounds upon which the local authority can act the character or record of the occupier. I cannot see that any harm would be done to the Bill by introducing these words. They will, I am sure, forestall much difficulty and argument amongst those whose duty it will be to carry out the Bill. It seems to me that it will inevitably be interpreted as meaning that Parliament, in enacting a specific enumeration of the grounds on which the local authority may act, has deliberately excluded the record and character of the owner. If there is a danger of this section being construed in that way, I should have thought that my noble friend might have been able to agree to these words being included so that any doubt would be eliminated.
§
Amendment moved—
Page 2, line 20, after ("used") insert the said words.—(Lord Ilford.)
§ THE EARL OF KINNOULLI am in some difficulty in that I am not a lawyer and have to accept the advice I am given. On the point the noble Lord makes, I am told that legally this Bill only adds to existing legislation and would not alter the effect of the case of Hewison v. Skegness Urban District Council. In that case Mr. Justice Salmon in his judgment held that local authorities had discretion to refuse a permit on the grounds of the character and record of the occupier. As to the harm the Amendment may cause, I should like to say that the Amendment possibly could weaken the important discretion under Schedule 6 of the 1963 Act. It is considered that it 425 would be wrong to over-emphasise the conditions upon which local authorities have to decide whether to refuse or accept a permit. I would suggest to the noble Lord that, for the reason that this Amendment may do harm to the Bill and, furthermore, that legally his point only adds to existing legislation, he should withdraw his Amendment.
§ LORD CHAMPIONMay I ask the noble Earl one question? Am I to understand him to say that this will in no way alter this part of Schedule 6 of the 1963 Act in such a way as to prevent the local council from taking into consideration the character and record of the occupier? As I understand it, that will remain. But is the noble Earl suggesting that it would be wrong to import the words in Schedule 6 of the 1963 Act into Clause 2 of this Bill?
§ THE EARL OF KINNOULLThat is the very point. I agree with the noble Lord, and I am grateful for his putting it so clearly.
§ LORD AIREDALEI should have thought that this Amendment was worth further consideration, for this reason. It would be open to an ingenious advocate to create some confusion in the minds of the court by pointing out that this Bill omits specifically to mention one part of the existing law, and thereby to contend, perhaps quite wrongly, but in good faith, that the law has been changed by the omission of the Bill to mention those matters, when that was not the true situation.
EARL FERRERSPerhaps I could help the noble Lord?. I should have thought that this Amendment was in fact unnecessary because the whole purpose of a permit's being granted by the local authority is that they should have discretion to do so. This Bill in fact extends the local authority's discretion, and to a certain extent removes doubts by specifying a little more what they can do. In the judgment that Mr. Justice Salmon gave in Hewison v. Skegness U.D.C. what he said was:
When a local authority considers an application…what it has to decide is whether, having regard to the character and record of the occupier of the premises, the nature of the premise and the general requirements of the neighbourhood, it is desirable that there should be gaming machines on the premises.426 It would therefore seem to me to be a pity to make explicit in the Bill what is implicit from the judgment which I have just read. I think there is a danger that if one categorises too much what local authorities may do one may narrow the scope of their discretion.
§ LORD ILFORDThat is exactly what the Bill does: it enumerates the grounds on which the local authority is required to act. The point of my Amendment is that, although the Bill enumerates the grounds, it expressly omits this particular ground. I am quite sure that the noble Lord, Lord Airedale, is right when he draws attention to the difficulty which is going to arise in the construction of this clause. Of course that is exactly what will happen. If I may differ from him in this respect, I do not think that the advocate who argues this point would have to be a very ingenious one. It is in fact a very obvious point of interpretation.
§ LORD SHEPHERDBefore the noble Lord decides what he wishes to do in regard to this Amendment, may I make an appeal to the noble Earl and to the Government that they should offer to reconsider this matter between now and the next stage? I well remember the effect on the Factories Act—a law that had been in existence, I think, for nearly 70 or 80 years—when the Act was being consolidated and a particular provision was inserted. The provision was of so little importance, in the view of the Government, that they made no speech about its inclusion; and no member of the Opposition took any notice of it—possibly because the Government had not drawn attention to it during the debate. But in fact that provision altered very radically the law which had been in existence for 70 or 80 years, and, if I may say so, to the disadvantage of the factory worker. That position still exists and we have not been able to amend it.
If, as I understand from the noble Lord, Lord Ilford, there is a doubt as to the way this clause may be construed in the future, I think we should insist that the Government consider this matter and give us their advice on Report stage. There is no fear that the Bill will be lost if this Amendment is passed, or if 427 another is proposed and accepted, because the Bill has already been amended and will in any event have to go back to another place. So the question of time and the saving of the Bill do not therefore arise. I should have thought, in view of the weight of argument that has been put, admittedly briefly but with a good deal of unanimity, that the Government ought to say immediately that they will consider this matter with their own legal advisers and Parliamentary draftsmen, and give us their answer on Report stage.
§ THE EARL OF KINNOULLAS we have another opportunity to look at this Bill again at the Report stage, as the noble Lord, Lord Shepherd, has mentioned, perhaps my noble friend would agree to withdraw the Amendment at this stage on the understanding that we can discuss it again at a later stage.
§ LORD ILFORDI am very grateful to the noble Lord. I am quite sure that he is right in deciding that this matter should be looked at again. On those terms, I ask leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ THE EARL OF KINNOULLI beg to move this Amendment which is consequential on Amendment No. 1, to which your Lordships have agreed.
§
Amendment moved—
Page 3, line 21, leave out ("(Amusements with Prizes)").—(The Earl of Kinnoull.)
§ On Question, Amendment agreed to.
§ 5.33 p.m.
§
LORD ILFORD moved to add to the clause:
(6) An authorised officer of a local authority shall, on producing if so required some duly authenticated document showing his authority, have a right to enter any premises at all reasonable hours for the purpose of the performance by the local authority of their functions under the said Act of 1963.
§ The noble Lord said: This Amendment is of a much simpler character than the other two which I ventured to move earlier this afternoon. All this Amendment does is to make it possible for the local authority's duly authorised inspector to enter premises, either before an application is determined or at any 428 other time afterwards. The local authorities attach some importance to this right of inspection, and I think it is reasonable that if a local authority is to be expected to give a semi-judicial decision on these applications, it should at least have the opportunity of sending its inspector into the premises first, to report what the circumstances are. I hope that my noble friend will be as forthcoming over this Amendment as he was over the last, and will undertake to look at this matter again. It is a matter to which the local authorities, I think reasonably, attach importance. I beg to move.
§
Amendment moved—
Page 3, line 28, at end insert the said subsection.—(Lord Ilford.)
§ THE EARL OF KINNOULLThis Amendment, along with the others, has received the most careful attention by those who drafted the Bill. The Amendment is couched in very wide terms, and seeks to confer a power of entry on local authorities not only under the scope of this Bill but under the entire 1963 Act. The local authorities have already been granted under that Act certain powers of entry—and the registration of pool promoters is one example. I feel that this point is important, because at the moment we are considering only this Bill, and I feel that to go outside the scope of the Bill may be dangerous.
With respect to the noble Lord, it is felt that in practice this Amendment in relation to Clause 2 of this Bill, which deals with public premises, such as public-houses, would really have little effect for two reasons. First, the premises involved are public premises and therefore, even if a refusal of an official inspection were made, unofficial and probably more informative inspection could be made as a member of the public. Secondly, it would seem unlikely that any applicant would refuse the local authority entry for inspection, as without doing so the local authority is hardly in a position to judge either whether the premises are suitable, or whether any conditions should be imposed. To refuse entry would appear likely to have the direct consequence that an application for a grant, or for renewal, of a permit would be refused. Finally, if there were reason to suppose that offences were being committed on the premises, it 429 would seem more appropriate for the police to intervene, under the powers given to them in Section 51 of the 1963 Act. For these reasons I would suggest that the noble Lord might withdraw his Amendment.
§ LORD SHEPHERDI think the noble Earl indicated that the local authority has power of entry into premises where these machines are in existence and are being operated. I think he then indicated that the local authority, if it had grounds to refuse a permit, was able to do so. May I take it that it would be a ground for refusing a licence if the local authority was not permitted to inspect the premises?
§ THE EARL OF KINNOULLYes. If the local authority could not enter the premises there would be a right to refuse, on the ground that it had not been able to judge whether the premises were suitable.
§ LORD ILFORDThe applicant would have the right, of course, to appeal against that decision. When the noble Lord, Lord Shepherd, asks my noble friend whether it can be assumed that a refusal of entry would itself be a good ground for refusal, one cannot answer that question. It would depend entirely upon the view which was taken by the appeal tribunal.
§ LORD SHEPHERDCould the noble Earl help us between now and the next stage, and see whether this could be one of the grounds for the refusal of a licence by the local authority?
§ THE EARL OF KINNOULLYes. I will certainly look into this.
§ LORD ILFORDI am very grateful to my noble friend for the way he has handled these Amendments, and, if I may say so, for the clarity with which he has developed his arguments.
EARL FERRERSMight I just interrupt the noble Lord before he withdraws this Amendment, if he is going to do so, merely to say that in fact the drafting 430 of his Amendment is couched in such wide terms that it affects a great many more places than the actual places which have these gaming machines. Therefore, I think he is going very much wider than the scope of the Bill itself.
§ LORD ILFORDThe Government have themselves gone outside the scope of the Bill. They themselves are amending the principal Act by this Bill. It does not lie in the mouth of the noble Earl to complain. One of his Amendments proposes to do the very same thing. But I am very grateful to Lord Kinnoull for the way he has handled this matter, and on the undertaking he has given I ask leave to withdraw my Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 2, as amended, agreed to.
§ Clause 3 [Citation, commencement and extent]:
§ THE EARL OF KINNOULLThis Amendment is consequential on Amendment No. 1, which the Committee have already agreed to. I beg to move.
§
Amendment moved—
Page 3, line 30, leave out ("(Amusements with Prizes)").—(The Earl of Kinnoull.)
§ On Question, Amendment agreed to.
§ Remaining clause, as amended, agreed to.
§ In the Title:
§ THE EARL OF KINNOULLThis Amendment, also, is consequential upon Amendment No. 1, to which the Committee have already agreed. I beg to move.
§
Amendment moved—
In the Title, line 2, after ("to") insert ("gaming machines and with respect to").—(The Earl of Kinnoull.)
§ On Question, Amendment agreed to.
§ Title, as amended, agreed to.
§ House resumed: Bill reported with Amendments.