Aodhán Ó Ríordáin (Dublin Bay North, Labour) | Oireachtas source

I move amendment No. 9:

In page 21, between lines 32 and 33, to insert the following: “(6) For the avoidance of doubt, this Act applies to gambling activities carried on by, or on the premises of, a private members’ club in like manner as it applies to such activities carried on by, or on the premises of, any other natural or legal person or unincorporated body of persons.”.

I will speak to amendments Nos. 9 and 10, which are in my name. There is an important history to amendment No. 9 and an important question about the entitlement of the Dáil and Seanad to know what precisely they are legislating for. For far too long, this question has been hidden in administrative omerta and legal obfuscation and the law as we understood it has been ignored and unenforced.

The issue I refer to is the status of private members' clubs. Under the Gaming and Lotteries Act 1956, various venues not a stone's throw from this building have operated as casinos for decades under the pretext that they are immune from the law because they are private clubs open to members only, even though membership can be bought at the door. There was a substantial amendment to the 1956 Act in 2019 and, in the course of debate on the Gaming and Lotteries (Amendment) Act 2019, the question arose of its impact on the operation on those private members' clubs.

It has been stated by successive Ministers for justice that the 1956 Act does not apply to clubs. Sometimes the argument has been more narrowly made that the Act does not apply to bona fide private members' clubs. In reality, the clubs advertised around town are proprietary clubs, not members' clubs, and are run by their owners as commercial operations. The question is important because these venues offer casino-style games such as roulette and blackjack.

A casino game is defined in law as one where "by reason of the nature of the game, the chances of all the players, including the banker, are not equal". Promoting casino-style games is unlawful under section 4 of the 1956 Act. Until recently it was generally hard to know how or why the 1956 Act was interpreted as not applying to these venues. As far as I know, there is no judgment of a superior court on the question and the State has never appealed the case and sought such a judgment from a higher court.

As is pointed out in Regulating Gaming in Ireland, the report of the casino committee of 2006, the provision of casino-style games in these clubs should be a matter of concern, given it is entirely contrary to the intentions of the 1956 Act and there can be no regulation of this activity. If that Act is defective, no Minister has ever spelled out to the Dáil what the precise defect is or why it has never been remedied. We do not even know if the defect is thought to cover both members' clubs owned and run by members and proprietary clubs owned and run as commercial operations.

However, in the course of debate on the 2019 amendment Bill, matters were placed on a different footing. In the Select Committee on Justice and Equality on 10 July, in reply to an amendment seeking to insert a definition of "Private Members Club", the then Minister of State, Deputy Stanton, said the existence of such clubs arose on foot of a constitutional protection that members' clubs were not governed by the 1956 Act or by his Bill and that, thus, according to the advice of the Office of the Attorney General, there was no need to accept the amendment. The Minister of State declared there was constitutional protection for private members' clubs. On Report Stage of the Bill in the Dáil on 4 November, the Minister of State said:

I have made the point repeatedly that the operation of such clubs enjoys a constitutional protection, that of free association. Those clubs are not governed in the context of gaming activities by the Gaming and Lotteries Act 1956, by this Bill or any other enactment or law.

This position is supported by the advice I have received from the Office of the Attorney General. I went there to be sure and to get that advice.

On the Minister of State's understanding, we can legislate to abolish gambling entirely but if all of us have decided to form a club, under the Constitution we can go away and engage in gambling. This is an astonishing proposition. I have discussed it with lawyers and they are equally astonished. It leads to a bizarre, nonsensical and unacceptable conclusion. Are we meant to believe the Oireachtas can legislate against misuse of drugs, for example, but opium dens should be exempted from the law so long as they charge a membership fee at the door, or that clubs on St. Stephen's Green can constitutionally ignore the liquor licensing laws?

I believe this interpretation of the Constitution is not only unsustainable but downright foolish on its face. Its foolishness can be seen in the fact even the gambling industry does not accept it. The Gaming and Leisure Association of Ireland helpfully circulated to TDs an opinion commissioned from David Conlan Smyth SC. That opinion concludes there was no unconstitutional interference in the 2019 Bill with the rights of members of private clubs to associate with each other. The legislation instead proposed to limit, in the public interest, gaming activities in and of such clubs and, in the opinion of senior counsel, the legislation should be defended by the Government as "regulation and control in the public interest of the existence of the foregoing right", as referred to in Article 40.6.1° of the Constitution.

We have a situation where the Minister of State has interpreted gambling legislation as not applying to private members' clubs because of the constitutional rights of their members while the clubs have been legally advised and believe they cannot assert any such right. I do not know of any other area where we as TDs are asked to legislate on an understanding the laws we pass will not apply to a certain sector because of an assumed constitutional bar that is nowhere referenced in law and where the sector does not assert any such constitutional immunity.

At the very least, we should have sight of any advice on this question from the Office of the Attorney General. We cannot be asked to legislate blindfolded. As members of the Legislature, we are in an impossible situation. There is already legislation in force aimed at outlawing certain commercial activities. However, even though the Act does not explicitly exempt a certain sector, the law is not applied to that sector.

When the Dáil was asked to amend this law in 2019, we were told any law we passed would not apply to that sector on constitutional grounds but the sector disavows any such constitutional entitlement. We need to know if the Government still insists, in the context of this Bill and despite legal opinion from other quarters, that the constitutional recognition and protection afforded to private members' clubs exempts them from compliance with gambling legislation. If the proposition is untenable as a matter of constitutional law, which I believe it is, then we need to know where this crazy notion came from and how it has been in place so long and so profitably.

Amendment No. 10 excludes charities from the Act. Charities should be regulated by the Charities Regulator. They are not and cannot be considered to be commercial gambling and this Act is very much directed to commercial gambling. UK Gambling Commission research showed that only a small minority of people believe charity fundraising lotteries or draws are regarded as a form of gambling, rather than primarily ways of donating. Those who see them as gambling see them as the least harmful form of gambling. The Bill has exempted the national lottery so it seem consistent to allow the same logic to apply to charities.

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