The High Court has refused a judicial review challenge by the Rehab Group and Rehab Lotteries Limited to the Minister for Justice and Equality’s decision to phase out the Charitable Lotteries Scheme. The applicants argued they should have been consulted before the decision was made. The court refused the reliefs sought.
The non-statutory scheme was established in 1997 to assist charitable lotteries whose products competed with National Lottery products. Payments were based on eligible lottery turnover. Rehab was the largest beneficiary, receiving about €3.924 million from a €6 million fund in 2012, according to the judgment.
In October 2012, the Minister told the applicants the scheme would be phased out over three years, with payments ending after 2015. He cited the need to reduce Government spending and concerns that the scheme did not encourage low operating costs or ensure a high proportion of lottery revenue reached charitable causes. The applicants did not contest the Minister’s legal power to reduce or abolish the scheme, or claim that the decision was legally unreasonable. They argued that the process was unfair because they had not been told of the proposal or given an opportunity to address its reasons beforehand.
The applicants described the scheme as a form of compensation for the effects of the National Lottery. The Minister’s side argued it was not allocated according to losses and that the Government had never promised it would continue. The judgment noted that the scheme did not compensate for a legal wrong or measure actual losses. It was an effort to assist a specific group of charities, but beneficiaries had no legal right to its continuation and there had been no promise of consultation before termination.
The applicants had met the Minister in November 2011 and discussed the scheme. The Minister’s evidence said they had an opportunity at that meeting to argue for its retention. The applicants disputed that account. The judge said the meeting could not realistically be treated as an opportunity to make their case against abolition: the Minister had not told them he was contemplating ending the scheme or explained his potential reasons.
However, the judge concluded that the decision was a policy decision applying to the affected class of charities, rather than a decision focused on an individual organisation. Although consultation would not have been obviously impracticable or unduly onerous, and the time taken to decide did not itself establish urgency, the court found no legal requirement to consult in these circumstances. It held that the Supreme Court’s decision in Dellway did not eliminate the traditional exclusion of policy decisions from fair-procedure requirements.
The judgment addressed whether the applicants had a right to be heard before the decision was made. It did not determine whether the phase-out was good policy. The court refused the reliefs sought.