UK: The Treatment Of Ex Post Facto Reasons In Judicial Review

Last Updated: 23 January 2019
Article by Kieran Laird

Going to a bookmakers and placing a bet on the outcome of a lottery (known as 'secondary betting') is distinct from participating in a lottery by buying a lottery ticket. The distinction is important as it is currently unlawful under Section 95 of the Gambling Act 2005 for a licensed bookmaker to offer betting on the outcome of any of the games which comprise the National Lottery in the UK.

Included within those games is the EuroMillions lottery.

However, because of its international dimension, EuroMillions is different from the other National Lottery games. It is a co-ordinated lottery licensed and promoted in nine European jurisdictions with a common draw which takes place in Paris twice a week. It is in fact nine different lotteries with a common draw and prize fund.

This structure created a loophole with respect to section 95, under which although it was illegal to accept a bet on the UK EuroMillions draw, it was not unlawful to accept a bet on a non-UK EuroMillions draw - even though in substance the two are one and the same.

The government sought to close that loophole through the Gambling Act 2005 (Operating Licence Conditions) (Amendment) Regulations 2018 (the 'Regulations') by amending bookmakers' licences to make it unlawful to accept a bet on the outcome of any EuroMillions lottery in any jurisdiction.

In R (EU Lotto Limited & Ors) v Secretary of State for Digital, Culture, Media and Sport the Regulations were the subject of a judicial review challenge brought by a group of gambling businesses who wished to preserve their ability to accept secondary bets on non-UK EuroMillions draws.

It was accepted by both the claimants and the government that the Regulations would place a restriction on the former's freedom to offer services under Article 56 of the Treaty on the Functioning of the EU. In order to be lawful such a restriction had to be justified on public policy grounds and be proportionate.

Whether the Regulations met that test was the main question on which the Court focused.

A secondary question was whether the failure by the government to mention one of its justifications for the Regulations in the consultation on its proposals rendered that consultation unlawful.

The justification for closing the loophole

The government put forward a number of justifications for the Regulations, including -

  1. the desire to eliminate confusion amongst the general public regarding the difference between participating in the EuroMillions game and secondary betting on its outcome,
  2. the desirability to clearly separate the (more onerous) regulatory regime for the National Lottery from that for gambling generally,
  3. the desire to prevent a reduction of the amount of money collected through the National Lottery as this is provided to a range of good causes, whereas funds generated by secondary betting are not, and
  4. the need to avoid the risk of secondary betting leading to other 'harder' forms of gambling (the 'lead-in justification').

The Court accepted that all four reasons were valid justifications for restricting the claimants' right to provide services.

This was despite the fact that the fourth was raised by the government only during the proceedings and did not form part of the reasons articulated in the consultation prior to making the Regulations.

The Court stated that, although the government was entitled to rely on an ex post facto reason, the evidential justification for it would be subject to greater scrutiny than would otherwise be the case as it had not been subject to scrutiny by Parliament or through consultation. However, despite that enhanced scrutiny and the submissions by the claimants to the contrary, the same margin of appreciation would be granted to the decision-maker with respect to the 'new' lead-in justification.

The Court also accepted that the Regulations were proportionate as there existed no less onerous means of achieving the four public policy aims cited by the government.


The claimants argued that the consultation undertaken before the Regulations were made was unlawful as the failure to mention the lead-in justification was misleading where that was part of the rationale behind proposing the Regulations at the time.

The Court held that although the issue had been raised at the time, it had only assumed importance following the submission of the claimants' evidence in the judicial review proceedings. This was because, in making the case for the financial damage that the Regulations would do, the evidence demonstrated that, far from being a theoretical risk, moving people from secondary betting to other forms of gambling was an important part of the claimants' business models. It was therefore not a point on which consultation was required at the time that consultation was held. 

Read the original article on

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions