Gambling Act Review: Base it on the Evidence

Andy Danson discusses a planned review of the UK's Gambling Act and what this could mean for players and operators.

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It seems that barely a day goes by without calls from members the UK Parliament and the national press for urgent legislative action to protect the British public from gambling related harm. For international readers who consider Great Britain to be one of the most exacting of regulated commercial online gambling markets, and who have witnessed the Gambling Commission conducting perhaps the most vigorous enforcement programme of any gambling regulator in the world, that perspective might seem surprising. Set against a background of the Gambling Commission’s own statistics showing stable (and internationally “normal”) rates of problem gambling, it might sound even more curious.

Nevertheless, that is the reality. The UK Government, acting on its pre-election manifesto promise, has indicated that a formal review of the Gambling Act 2005 will take place and will make recommendations on issues including prize and stake limits, putting the voluntary funding of research, prevention and treatment on a statutory footing, and new ways of raising revenue for problem gambling support. Recommendations will also be made on loot boxes: whilst this may be irrelevant to the gambling industry, the games industry should take note that it is a key priority.

It is strongly arguable that a review of the Gambling Act is an unnecessary use of valuable time and resources, particularly at this time of genuine international public health and economic crisis. Claims that the Gambling Act is unfit for the digital age – popular amongst politicians – are sound bites which are either misinformed or disingenuous: the Act’s definition of “remote” gambling is remarkably well future-proofed, covering all forms of online and mobile gambling which currently exist or are likely to be conceived any time soon. Much more importantly, the enhanced player protection measures being proposed could be introduced under the current framework, either through changes to the Gambling Commission’s licence conditions and codes of practice, or through the flexibility built into the Act for the Secretary of State to make changes. Indeed, a number of those proposed changes have already been made, most recently the ban on credit card use.

However, whilst no date has yet been set for the review (and the timing is understandably likely to impacted by COVID-19), such is the momentum and the cross-party support for it in Parliament, it seems inevitable it will happen.

Whilst a review may not be necessary, conducting it is not necessarily a bad thing. It is, after all, 15 years since the Gambling Act was passed, and there are certainly areas where it could helpfully be improved and updated. From the industry perspective, a formal review of the Gambling Act might just be the only thing which can mollify the sustained anti-gambling campaigns being waged by elements of the national press and of Parliament. Currently, the industry’s best efforts to voluntarily self-regulate (whilst broadly welcomed), and even the tightening of regulation and the escalation of enforcement by the Gambling Commission, appear only to embolden certain anti-gambling campaigners (including in Parliament) to demand more.

If we are to have a review of the Gambling Act, the most important thing is that it achieves its goals in a sustainable way. Player protection is being placed front and centre of the debate on Gambling Act reform. That is as it should be. We should all (operators, regulators and legislators alike) strive for constant improvement in the protection of the young and vulnerable from gambling related harm. At the heart of the debate will be how best to achieve that.

In the UK, we are seeing increasing calls for gambling policy to be made using a public-health style precautionary approach, whereby a lack of evidence of harm or of benefit is not seen as a barrier to policy-making to avert perceived risks. In the case of online gambling, that approach itself comes with significant risks. As we have seen with highly restrictive online gambling laws in numerous jurisdictions, where the regulated market cannot provide an attractive offering and satisfy demand, that demand will increasingly shift to the unregulated market where vulnerable players are unlikely to be protected in the same way. In this context, it is prohibitionism which is unfit for the digital age.

As a secondary consideration, getting the balance wrong will also mean significant tax leakage to the unregulated market, which the UK can ill-afford in the current circumstances.

What a formal review of the Gambling Act does provide is a real opportunity to properly gather and assess evidence on the best way to maintain a sustainable and successful regulated British gambling market which minimises gambling related harm. For the benefit of everyone: players (including those who are vulnerable, and the majority who are not), operators, suppliers, the regulator and the Exchequer, coherent evidence-based policy-making should be the primary objective.

This article was first published on EGR Intel.

Andrew is a partner in Bird & Bird's Commercial Department, concentrating his practice primarily on the gambling and sports sectors. He has particular expertise in online gambling regulation, a broad range of commercial gambling matters and major international sports media rights, sponsorship, licensing, event staging and supply agreements. He is a member of the International Masters of Gaming Law and also a former first-class cricketer.

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