Back in September last year, the Parliamentary All Party Betting & Gaming Group (APBGG) launched its investigation into the competence and effectiveness of the Gambling Commission.

Bearing in mind that the APBGG investigation followed on from heavy criticisms of the regulator by each of the National Audit Office, the House of Commons Public Accounts Committee, the Gambling Related Harm All Party Parliamentary Group and the House of Lords Select Committee on the Social and Economic Impact of the Gambling Industry, I was not alone in wondering whether one unintended consequence might be the grant to the Commission of even stronger and wider regulatory enforcement powers than it presently possesses, something that the anti-gambling lobby would love to see.

Fast forward then to 24 January, when the APBGG published a controversial and highly critical report in which it goes so far as to describe the Commission as ‘an industry-funded anti-gambling activist group’ that has ‘gone rogue’ and is ‘actively seeking to get the industry’. I have to say that this and some of the other extremely emotive language used in the report is a world away from the constructive and collaborative attitude adopted by many of those I have worked with at the Commission over many years now.

It’s hardly surprising therefore that the Betting and Gaming Council has distanced itself and its members from the report. Its CEO, Michael Dugher has said:

“It was disappointing to see a report … that was so critical of the regulator … Ironically, the report reminded me of the previous call by Iain Duncan-Smith to abolish the GC. I disagree with both. The GC is not perfect and is changing, but the regulator is rightly and importantly pushing forward steps to further raise standards on safer gambling”,adding:

“In the end, when it comes to reforming gambling, there are extremists on both sides of this debate. There are the anti-gambling prohibitionists on one extreme and there are still sadly a few people in the industry who aren’t prepared to embrace change …. the Government should ignore the extremists and stick to its “evidence-led” approach”.

I wholeheartedly agree with that but, if one strips away the wildly inappropriate language used in the report, I believe there are some criticisms contained within it that may well strike a chord with a sizeable number of UK licence holders and their advisors alike who, for good reason, decided not to participate in the APBGG’s investigative process.

For example, the time taken to determine relatively straightforward licence applications leaves room for improvement and, more often than not, exceeds the Commission’s own ‘target’ timescales. Some licence-holders have complained that the manner in which compliance assessments are conducted is unnecessarily aggressive and that some Commission officers display little knowledge of industry terms and operational processes, which leaves room for considerable misunderstandings to arise. I know I am not alone in believing the search engine on the Commission’s new website to be no better (and possibly even worse) than the previous poor quality version.

However, some of the more extreme criticisms in the report clearly lack merit. Let me give you an example. The Commission rightly expects that its licensees will keep up to date with regulatory developments published on its website and derive learning from Guidance and Public Statements relating to regulatory action taken against licensees, but it cannot really be suggested that operators and their advisors are forced to do so “by a rather Stalinesque diktat”, as the report inappropriately suggests

The use of more considered and less emotive language throughout the APBGG report might have lent it greater weight than I suspect it will be given in the debates that will follow publication of the forthcoming White Paper on the UK Government’s Review of the Gambling Act 2005.

Furthermore, suggestions in some quarters over the last year or so that the regulator might be shown the exit door by the Government have been firmly laid to rest by the Gambling Minister’s support for the Commission’s “excellent work over recent years to protect vulnerable consumers”, that was so clearly expressed at GambleAware’s Annual Conference in December. After all, the Commission has a statutory duty to promote the licensing objectives under the Gambling Act 2005, one of which is to ‘protect children and other vulnerable persons from being harmed or exploited by gambling’.

That said, it would be wrong for the Gambling Commission to dismiss out of hand every criticism contained within the APBGG report.

For example, the report has drawn attention to concerns expressed about the regulator in 2009, following a Hampton Implementation Review supported by the Better Regulation Executive and the National Audit Office, including the following:

“Amongst the challenges facing the Commission, we were interested in the nature of its relationship with its stakeholders, particularly from the gambling industry. The quality of this relationship is critical to the long-term success of the Commission in pursuing its statutory objectives. The quality of communication between the regulator and the industry remains a significant issue here …. We believe that there is scope for developing more effective engagement, and many of our recommendations relate to better engagement with regulated stakeholders in relation to issues including risk, outcomes, and data requests. There is a need for a clear “narrative” – communicating the Commission’s objectives, processes, and thinking, in a way that makes sense to the different elements in the gambling sector. We believe that this will be critical in ensuring the long-term effectiveness of the Commission as a regulator.”

Key amongst the ‘issues to be addressed” identified by the authors of that report 13 years ago was the following: “The Commission could be clearer about its responsibilities with regard to the economic vitality of its regulated sector.”

It continued, saying: “The gambling sector, particularly through employment and tax revenues, makes a significant contribution to the UK economy. The Review found some conflicting views within the Commission as to the extent to which it is responsible for setting a regulatory framework within which (other things being equal) members of the gambling industry can operate effectively as businesses. While some staff accepted this, other parts of the Commission appeared to the Review Team to be less comfortable with this role. We believe that this may be partly due to perceived sensitivities regarding the ethical issues associated with the gambling sector. The Commission should work to embed a more consistent recognition of the ways in which its actions can have an economic impact, and to improve the economic modelling of the likely impacts of regulations on the sector.”

I believe that many stakeholders who will not have contributed their opinions to the APBGG nevertheless take the view that some of those same concerns raised in 2009 could equally apply today. On that basis alone, there may be justification now for ‘more effective engagement’ between the regulator and those it regulates with a view to ensuring that substantially increased levels of trust and respect are achieved and maintained between both sides. With the regulator’s new leadership briefed to bring about ‘transformational change’ at the Commission, let’s hope that is precisely what happens.

Before I move on, there’s one single book that has probably played a more significant role in my life than any other. It has never troubled compilers of the Best Book Sales list and most people will happily live their entire lives without ever having cause to consult the words of wisdom stored within its pages. It’s ‘Smith & Monkcom: The Law of Gambling’. I had the privilege of being a Contributing Editor to the second and third editions of that weighty tome.

I want to quote the following extract from the second edition, published in 2001, describing what it termed ‘the achievement of the Gaming Board, which was the predecessor regulator to the Gambling Commission. In doing so, I feel sure that many readers will share my hope that a future edition of ‘Smith & Monkcom’ might use these same words, save only for substituting the words ‘gambling’ for ‘gaming’ and ‘Gambling Commission’ in place of ‘Gaming Board for Great Britain’:

“The Gaming Board for Great Britain has been a success. It has become a respected and indispensable institution …. It is subject to review by the courts, and it must therefore exercise its far-reaching powers fairly and hold a balance between the public interest that commercial gaming should be kept within strict limits and properly controlled and the legitimate interest and expectations of those who obtain a livelihood from the industry. At the same time, it must, and does, remain vigilant to detect abuse or exploitation. A close reading of its annual reports shows beyond doubt that it has its finger on the gaming pulse of Great Britain and it must take considerable credit for the present health state of the gaming industry”.

To conclude, let me draw attention to a few other developments over the last month or so that are definitely worth noting.

1. Affordability

This is a subject that has excited the particular attention of both the APBGG (in its above-mentioned report) and the Betting and Gaming Council which reported on 20 January that a poll conducted on its behalf by YouGov has revealed that only 16% of betting customers would be willing to allow betting operators to access their bank accounts or wage slips to conduct an affordability check before the customer is permitted to place a bet.

From my own perspective on the affordability front, I had been hoping that by now we would have heard more from the Gambling Commission about a consultation, to which its Executive Director Tim Miller made reference in his keynote speech at the 4^th Annual KnowNow Conference last September, when he said: “our planned next step will be a consultation on thresholds for identifying key financial risks: when it comes to significant losses in a very short time, significant losses over time and financial vulnerability”. As I write this, further news is still awaited.

One month after that, we became aware of the Commission’s acknowledgment to the Information Commissioner’s Office (in the context of the so-called ‘SCV solution’) that its Remote Customer Interaction Guidance does not form an absolute requirement, but instead “presents additional information about how operators should implement the requirements, and which operators are required to take into account”. That’s entirely correct but, based on feedback I have received, that may not sometimes appear to operators to be the way in which some Gambling Commission enforcement officers approach the subject.

Come what may, greater clarification on the Commission’s current affordability expectations would be welcomed. In the meantime, operators should continue to keep an eye on Public Statements on the regulator’s website, two of which (published on 20 January):

• emphasise the importance of operators undertaking affordability checks early in their relationships with customers in order to properly inform risk-based decision-making,
• warn against (a) use of average income data to set deposit limits which can then be set too high and (b) affordability assumptions based on other open-source information which, the Commission has said, “should[also] have been corroborated against other independent sources of information”, and
• appear to endorse imposition of a £500 monthly gross deposit limit on all new customers as an interim measure pending implementation of an effective affordability check on the basis that, if any customer wantsto increase that deposit limit, their account will be flagged for review and no increase will be permitted until the review has been completed in line with AML and safer gambling policy considerations.

Examples quoted in a further Public Statement published on 27 January rather more obviously drive home the affordability message.

2. The Gambling Act Review White Paper

My money is still on publication of the White Paper at the end of Q1/beginning of Q2 this year. In the meantime some insightful comments have been made by the Gambling Minister, Chris Philp, in the House of Commons on 6 January and by the former Gambling Minister, John Whittingdale, in a RacingTV interview on 23 January.

3. Other developments

On 3 January, the Gambling Commission published an information notice entitled ‘Information on incorrect Covid-19 data supply’ that will have bearing on previous research findings on the impact of the Covid-19 pandemic on gambling behaviour.

On 5 January, the Advertising Standards Authority made an interesting ruling in which it refused to uphold complaints made against 888 UK Limited, in the process providing insight into means whereby social media gambling advertisements can avoid accusations of targeting those who are under-age.

On 11 January, a Gambling Commission blog entitled ‘Gambling Commission and Local Authorities: Applying a public health approach to tackling gambling harms’ reported on creation of a network of local authorities, co-ordinated by the Commission, in which members share their experience of how they have tackled the issue of gambling harms in their area and support other local authorities who are trying to get a public health approach to gambling off the ground.

On 20 January, the Commission published guidance to non-remote operators for age verification test purchasing, that explains what data it needs from the holders of non-remote operating licences regarding age verification test purchasing.

On 24 January, the Commission’s fortnightly e-Bulletin newsletter contained a warning to both licensees and applicants for licences about the risks and limitations of using crypto-assets as a source of funds for financing their business, adding that the anonymity afforded by most crypto-assets – along with issues in the process of obtaining them – has meant that it has been impossible to satisfactorily answer questions the Commission poses to ensure that gambling is not funded by the proceeds of crime.

On 27 January, it was announced that the ‘TalkBanStop’ campaign had secured funding for a further year from a regulatory settlement approved by the Commission, enabling it to continue providing (a) free tools and support for people struggling with their gambling until March 2023, (b) increasing awareness of the partnership among those who need it most and (c) sharing best-practice between each of its three organisations (GamCare, Gamban and GAMSTOP), ensuring efforts to enhance the joint offering of easy, free access to all three services.

On 31 January, GambleAware launched a new campaign that highlights critical early warning signs and support available at BeGambleAware.org. This follows a Rapid Evidence Assessment conducted by the University of Bristol’s Personal Finance Research Centre that showed: (a) up to one million women could be at risk from gambling harms, (b) women are more likely than men to say their gambling has caused them mental health issues such as stress and anxiety, and (c) almost 40% of women experiencing high levels of gambling harm may not seek out help due to stigma or shame.

More information on each of the above (and plenty more besides) can be found in the ‘Articles/News’ section of the Clifton Davies website. Feel free to visit it.

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David Clifton Director Clifton Davies