The Gambling Commission’s recently published purported “guidance” for online operators (“New Guidance”), issued under social responsibility code provision 3.4.1 (“SRCP 3.4.1”) of the LCCP, highlights how carefully it is focusing on a perceived risk presented by the current COVID-19 crisis. If this risk does exist – and the evidence on which the Gambling Commission (the “Commission”) relies is questionable at best – it is unlikely that anybody would dispute the need to recognise and address it: operators do not want to benefit from problem gamblers, consumers must be protected, and the depreciating reputation of the industry in the wider public eye must be addressed.
However, the manner by which the Commission has implemented the New Guidance and the strength of its content, is suggestive of the Commission taking a novel approach that facilitates prescriptive changes to its regulatory framework without consultation or notice.
The data is, we have said, questionable, which is an issue for separate discussion. However, even if accepted at face value, it does not support emergency measures introduced at little notice without consultation. In their press statement, the Commission notes that “during lockdown gambling participation is down overall” and concludes that “there is no evidence to suggest an increase in problem gambling.”
The Commission issued SRCP 3.4.1 under section 24(2) of the Gambling Act 2005. Section 24(10) which requires that before issuing or revising a code of practice, the Commission shall consult (inter alia): the Secretary of State; Her Majesty’s Commissioners of Customs and Excise; one or more persons who appear to the Commission to represent the interests of persons who carry on gambling businesses and are likely to be affected by the code or revision; and one or more persons who appear to the Commission to have knowledge about social problems relating to gambling.
SRCP 3.4.1 is not a licence condition; it is a code provision that, by virtue of section 82 and as a consequence of it being a SRCP, is subject to the licence condition that it is complied with. This is an important distinction as, were it to be a general licence condition under section 76 the requirements for general licence conditions under that section would apply. These prescribe that, before specifying the licence condition the Commission must consult and that at least three months’ notice be provided to the holders of affected operating licences. Section 76(5) permits the Commission to specify a licence condition without providing this required notice “if it thinks it necessary by reason of urgency”, but requires it to “give as much notice as it thinks possible in the circumstances”.
By combining its reference to SRCP 3.4.1 and the New Guidance in the same paragraphs when publishing it on its website, the Commission has caused confusion and led some operators and commentators to conclude that it has amended this SRCP. This misapprehension is then compounded by the fact that when the Commission first introduced its guidance on customer interaction in July 2019 (the “2019 Guidance”), it consulted on that change.
The Commission cannot properly have amended SRCP 3.4.1; had it done so, it would have acted in breach of the requirements of the Gambling Act 2005 by failing to consult in line with section 24. In this case, the Commission has introduced additional formal guidance under the SRCP.
SRCP 3.4.1 requires that licensees “take into account the Commission’s guidance on customer interaction”. The 2019 Guidance sets out why customer interaction is a requirement and provides operators with suggestions as to how the Commission’s expectations can be met. The Commission states in this guidance:
“For compliance and enforcement purposes, we will expect licensees to demonstrate how their policies, procedures and practices meet the required outcomes. This can be through implementing relevant parts of the guidance or demonstrating how and why implementing alternative solutions equally meet the outcomes.”
Introducing guidance under SCRP 3.4.1 was an arguably sensible approach. It enables the Commission to outline to operators in more detail how they can meet its expectations in applying the SRCP.
The New Guidance: not what it seems
The New Guidance issued by the Commission is not as broad as the 2019 Guidance. It uses very different wording and is less outcome focused. It requires licensees to undertake specific measures. This is clear from the requirement that operators “prevent reverse withdrawal options for customers until further notice”, an issue that has justifiably been on the Commission’s radar for some time, now brought into effect and, given the Commission’s reference to a consultation on this issue following later this month, that is unlikely to change. By including such specific directions, this is guidance in name only; the consequence being that whether intentional or not, the Commission has amended the SRCP by the back door, avoiding the need to adhere to the requirements of the legislation
The New Guidance is made all the more difficult for operators to understand, given the mismatch between the press statement accompanying the New Guidance, and the New Guidance itself. An example of this is the statement included that “operators must take account of the Commission’s guidance, which makes it clear they should: … interact with customers who have been playing for an hour in a single session of play”. This is inconsistent with the New Guidance, which requires operators to “specifically, review [their] time indicators to capture play in excess of one hour as this is a proxy for potential harm”. Should all customers be interacted with after an hour, or is this just an indicator to be considered?
Operators therefore find themselves in an unenviable position. Despite their ongoing efforts to protect consumers during the COVID-19 crisis, they are forced, with little notice and no consultation, to make immediate changes to their policies, procedures, terms and conditions and processes, in order to take into account prescriptive guidance. In the absence of any consultation, this guidance is difficult to interpret, it is based on limited and questionable data, and may be inconsistent with their own experience and observations: all at potential detriment to other valuable projects in the consumer protection field that may have to be side-lined.
Nobody would challenge efforts by the Commission to protect consumers throughout this crisis. However, a demonstrable understanding of the industry it regulates, sympathy for the time it takes to implement change, and adherence to the outcomes based flexibility that allows operators to focus on the consumer risks identified in their business, may ultimately produce better results. Arguably, a consultation, however short, would have enhanced the impact of the New Guidance, avoided confusion, and provided at least some notice.
A sign of things to come?
By taking the course of action that it has, the Commission has perhaps signalled a questionable new approach. Its introduction of guidance under SRCP 3.4.1 has, whether intentionally or not, made indirect, prescriptive changes to code provisions carrying the weight of licence conditions, without it having to consult, or provide notice. Operators should be aware of this and be ready to take prompt action the next time the Commission introduces further guidance at short notice. Whatever the merits of changes introduced by the Commission, it is vitally important that it acts transparently, proportionately and fairly in accordance with its own Statement of principles for licensing and regulation, if high standards are to be achieved and the industry’s trust in its regulator is to be maintained.
With thanks to my colleague David Whyte for his invaluable co-authorship