UK GAMBLING ACT WHITE PAPER
Industry stakeholders should also have regard to certain public law principles in order to effectively influence the outcome of any proposals: ‘Good regulation’ and ‘good consultation’ principles The Commission has a statutory obligation to have regard to certain ‘good regulation’ principles, including that it will act transparently and proportionately, consult on proposed changes to the regulation of the industry, avoid imposing unnecessary regulatory burdens, and use the least intrusive approach to ensure regulatory compliance. There are also established ‘good consultation’ principles under English law that the Commission must comply with. It is vitally important that the Commission and the Government adhere to such ‘good regulation’ and ‘good consultation’ principles, to ensure that operators are treated fairly and transparently during the consultation process. The adherence to such principles is particularly pertinent given that Tim Miller previously acknowledged the industry’s perception that the regulator takes a scattergun approach to conducting consultations, as well as the industry’s concern that their consultation responses do not actually influence the outcome of the Commission’s proposals. When consultation responses are being formulated, the industry should also keep in mind that the consultation process could be a useful opportunity to lay the groundwork for future legal challenges if there are procedural flaws in the consultation process and the aforementioned principles have not been adhered to. Concluding thoughts The Government claims that at the heart of the white paper is striking the right balance between consumer freedoms and choice on the one hand,
and protection from harm on the other. Going forwards, it will be important for the Government and Commission to ensure that a proportionate, evidence-led approach is taken towards shaping future regulation, as the proposals for online protection and a new avenue of consumer redress could change the landscape significantly in terms of social responsibility and the protection of the most vulnerable. The steps taken towards parity for the land-based industry, or at least increased competitiveness, are to be welcomed – though whether they are sufficient to kick-start new investment, particularly following the damage done by Covid-19, remains to be seen. There are also some notable omissions. For an industry that is so prolific in its use of new technologies, the content of the white paper is relatively light on innovative thought about the future of the industry. In some respects it is backwards looking, seeking to fill in regulatory gaps and belatedly account for changes to the industry that have been developing, at pace, for two decades. There are also areas that would have benefitted from more information before proposals were made: the Government’s proposals for ‘enhanced spending checks’, which have been made without a full understanding of how such checks might be carried out, risk encouraging the most high-risk customers to move away from the regulated market. While the white paper proposes increased powers for the Commission to tackle ‘black market’ activity, these are very unlikely to be a complete solution to an increasing problem. As a final note: the industry has a critical role to play in ensuring that the final policy decisions stemming from the white paper are proportionate, balanced, and evidence led. With the principles of ‘good consultation’ and ‘good regulation’ in mind, businesses from all corners of the sector should dedicate resources to engaging meaningfully with the Government and Commission consultations over the next 12-18 months.
SIAN HARDING Associate, Betting and Gaming Group TOM WHITTON Associate, Betting and Gaming Group Mishcon de Reya
For information contact +44 20 3321 7174 tom.whitton@mishcon.com sian.harding@mishcon.com
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IMGL MAGAZINE | JULY 2023
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