A new frontier in the boundary between professional and private life – solicitors’ undertakings
The courts appear to have intervened in the age old discussion as the English Bridge Union (“the Union”) lost its fight against Sport England in the High Court recently.
Sport England, a public body that aims to encourage people to play sports, initially refused the card game’s recognition as a sport in mid-2014. The Union felt that if it wasn’t ratified, it would impact upon its ability to take part in international competitions. It also put forward the International Olympic Committee’s classification of chess as a sport, and offered that the organisers of the 2020 Olympics in Japan have invited bridge organisations to apply for inclusion in the games.
Furthermore, and perhaps at the heart of the matter, the Union felt that bridge’s recognition as a sport would enable investment and facility improvement, with potential scope for lottery funding and valuable tax exemptions.
The Union’s argument that so-called “mind sports” should be included in the definition of ‘sport’ was shut down by its opposition who declared that bridge amounted to nothing more than “sitting at home, reading a book”. A harsh statement, perhaps, but one that echoed the core issue in most animated discussions: must a ‘sport’ have an overwhelming element of physical activity?
That the Union was granted permission to seek judicial review in April of this year must have given it hope that the answer to this particular question would, with judicial intervention, fall in its favour. Its arguments were certainly legally compelling; Union officials declared that Sport England’s initial decision was inconsistent with Parliament’s wishes (specifically that “mind sports” formed part of the definition of sport in the 2011 Charities Act) and that bridge had renowned health benefits. Even Mr Justice Mostyn, when considering whether to grant permission, said “I cannot see how this case is not arguable”.
However, in detailed consideration, the Judge noted that Sport England derives its power from the Royal Charter – which was itself an offspring of the Physical Training and Recreation Act 1937, a piece of legislation designed to improve the population’s fitness ahead of the impending military crisis it was about to face. Both the Royal Charter and the 1937 Act’s use of the word “physical” led Mostyn J to infer “although not necessarily conclusively (…) sport has to have a physical component”.
In his final judgment, Dove J considered it appropriate to interpret various pieces of legislation by factual contextualisation. He said “sport” appears in the Royal Charter phrased as “sport and physical activity”. He felt that the operative phrase struck at the heart of Sport England’s (and its predecessors’) embrace of and engagement with physical activity as a means of improving well-being and fitness. His conclusion, therefore, was that Sport England had not erred in interpreting “sport”, in light of the Royal Charter and European Sport Charter, as having an essential element of physicality.
Bridge fans (and other proponents of its union’s position) may be disappointed that the High Court did not answer the underlying philosophical question of whether bridge is a sport or not. On the other hand, Sport England can take comfort from the fact that its decision-making withstood the scrutiny of a judicial review (a remedy which scrutinises the legality of decisions made by public bodies). The court found it had acted within its power in adopting a policy that was based on the European Sports Charter’s definition of sport as a “physical activity” so Sport England were legal in their view but the topic, for the sake of discussion, looks set to rumble on.
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