Bacta launches legal challenge to re-opening date for AGCs

Bacta – the trade association that represents the owners and operators of seaside amusement arcades, over-18 amusement centres, and the companies that hire machines to pubs, clubs, bowling alleys, bingo halls and similar venues – is challenging the Government’s ‘roadmap’ decision to delay the re-opening of adult gaming centres until 17 May 2021 (at the earliest).

In so doing, amongst other things it is alleging discrimination on the ground that betting shops are being regarded by the Government as akin to non-essential retail in the sense that they are to be permitted to re-open from 12 April 2021 (at the earliest).

The press release published by bacta on 3 March 2021 reads as follows:

Bacta Starts Legal Challenge of Government Regarding AGC Reopening

Bacta has instructed global legal firm DWF Law to challenge the thinking behind the delayed reopening of AGCs after all other non-essential retail businesses.

In a strongly worded letter to the Secretary of State for Culture, Media and Sport – Oliver Dowden – DWF Law stated:

“Bacta had hoped it would not need to subject the decision to legal scrutiny and/or challenge, but it simply cannot ignore the decision’s discriminatory impact and the long term hit to the AGC industry which would flow from it.”

While noting that the events surrounding the pandemic are of course unprecedented, the letter continued to make the claim that: “The government is still required to exercise its decision-making rationally, in a non-discriminatory way and in accordance with legitimate expectations.”

It goes on to point out that the decision to delay opening of AGCs is irrational as they have proved themselves to be COVID-safe, there have been no reports of infections arising from the use of these premises and they usually have few customers in the premises at any one time.

The discrimination against AGCs is highlighted by the decision to allow LBOs to open earlier and DWF Law states:

“Our client has never been told any good reason why the disparity of treatment between LBOs and AGCs exists. It therefore remains plain that the disparity is not based on any good evidence justifying it. Even when the point was specifically raised as a Parliamentary Question, tabled on 19 February 2021, Nigel Huddleston MP only noted that the “roadmap has been informed by the latest scientific evidence and seeks a balance between our key social and economic priorities, while preserving the health and safety of the country“. That response does not, however, provide any real clarity on the point, nor does it explain the disparity of treatment, in particular, between AGCs and LBOs.”

John White, CEO of bacta commented:

“We are doing everything we can to focus attention on the unfair, and we believe illegal, treatment of AGCs in the reopening roadmap. The decision to prevent this one venue on the High Street from opening with all other retailers is not only discriminatory, evidence for it is absent and it lacks any logic. We have decided to take legal action and were heartened by the Government’s U-turn following the Sacha Lord case, where the Greater Manchester night-time economy advisor brought a court case against Matt Hancock on behalf of the hospitality industry and won. This case  also mentioned the discriminatory impacts of closure decisions as contributing to the Government’s decision being unlawful, as did the complete lack of evidence to justify it – in this case the requirement to have a substantial meal with a drink when the tier system was brought in, which Lord successfully argued discriminated against certain ‘sections of society’ as thousands of pubs were forced to close.”

Like AGCs, casinos, bingo clubs and other premises described by the Government as “indoor entertainment venues” are scheduled under the Government’s ‘roadmap’ to re-open no earlier than 17 May 2021, the same re-opening date that applies to indoor hospitality venues (including pubs and bars).

It will be interesting to see what reaction, if any, comes from the casino and bingo sectors to the legal challenge being made by bacta. It all appears to boil down to which land-based gambling activities are properly classifiable as “non-essential retail” and which as “indoor entertainment venues”. Betting shops are regarded by the Government as falling within the former category and casinos, bingo clubs and AGCs in the latter.

As previously reported by us here, prior to the Prime Minister’s ‘roadmap’ statement, the Betting and Gaming Council called for a ‘level playing field’ in the sense of betting shops and casinos being allowed to reopen at the same time as other similar businesses.

However, in a slightly contradictory manner, it went on to say that:

  • “betting shops must be allowed to reopen alongside other non-essential retail”, which is exactly what the ‘roadmap’ is allowing (no earlier than 12 April 2021), and
  • “Ministers must allow casinos to reopen at the same time as other hospitality businesses including pubs”, which is also exactly what the ‘roadmap’ is allowing (albeit at a later date, i.e. no earlier than 17 May 2021).

Insofar as AGCs are concerned, the Government’s present approach is consistent with its change of position in June 2020 when it decided that amusement arcades were no longer to be included on a list of non-essential high street premises that were being permitted to reopen when the first lockdown restrictions were eased on 15 June 2020 (as previously reported by us here).