UK LEGAL COMMENT


Again, though, Rhodes may be neglecting smaller


operators in this suggestion. Operators who are unlikely to have significant influence with a trade body may not find such banded intervention points useful for their particular business model or customer base. If the Commission could extend its account manager proposal to all licensees and truly embrace “more talking and less letters”, each operator would have the opportunity to discuss their own intervention points with the regulator directly. Providing all licensees with the opportunity to work with the Commission to develop compliant procedures, before they receive the dreaded licence review letter, would surely be to the benefit of all stakeholders, not least the 22 million gamblers in Great Britain. Overall, the Commission’s proposals are a step (back) in the right direction and I hope we will see better engagement between the regulator and licensees in the coming months and years.


A window of opportunity


An interesting example of this engagement is the Commission’s consultation on its customer interaction guidance. For the first time, licensees are being given the opportunity to comment on the guidance their regulator intends to give them before it is given. As a chance for all licensees to engage in dialogue with the regulator this is welcomed. In the consultation document, the Commission sells this


as taking advantage of “the window created by the postponement of the coming into force of the entirety of SR Code Provision 3.4.3”. However, there must be more to it than this, because leaving licensees without any in-force guidance on such a crucial issue is far from ideal. The “window” seems more like a solid wall with one brick missing, because the majority of Code Provision 3.4.3 is currently in force and operators are being expected to comply with it, but without any guidance. Describing this as a “window” begins to make more sense


when you realise that the “guidance” in not really guidance, but rather a set of additional requirements. The Commission says that “remote operators are at present not required to take into account any guidance” rather than, for example, “remote operators do not presently benefit from any guidance”. This interpretation is borne out by comparing the introductory section to the draft guidance to the status of the LCCP’s “Ordinary Code Provisions”: “licenses [can] demonstrate how their policies, procedures


and practices meet the required outcomes…through implementing relevant parts of the guidance or demonstrating how and why implementing alternative solutions equally meet the outcomes.” (Customer Interaction Guidance) “operators may adopt alterative approaches…if they have


actively taken account of the ordinary code provision and can demonstrate that an alternative approach is reasonable in the operator’s particular circumstances; or that to take an alternative approach would be acting in a similarly effective manner” (Ordinary Code Provisions) From this, it appears that the Customer Interaction Guidance


will have a similar status to the Ordinary Code Provisions of the LCCP, as operators must either follow it or be able to demonstrate that their alternative approach is equally effective.


Under the Gambling Act 2005, the Commission is obliged to consult before bringing new Codes of Practice into force. The Commission has been criticised in the past for bringing in guidance which has equal status to Codes of Practice without consultation, so at least engaging in this consultation exercise now is in line with the spirit of the law. Operators can comment on this as well as the specific


content of the guidance, until 23 January 2023. White paper imminent?


It is always risky commenting on possible publishing dates for the Government’s gambling review white paper, but recent reports indicate we may see it this side of Christmas. A lot has happened in the two years since the terms of reference for the review were published, including the appointment of five different ministers to oversee the process. As per leaked details earlier this year, it appears that the


white paper will still include proposals for affordability checks that are linked to stake limits. Whilst indications have been that online stakes will be limited to between £2 to £5 until affordability checks have been completed, there is a lot of missing information. Questions that will hopefully be addressed in the white paper include: Will deposits and/or losses also be limited, subject to affordability checks? How will operators be expected to limit gambling based on the results of affordability checks? What will affordability checks need to entail, and can their intrusiveness be scaled on a risk-assessed basis? Other measures looking likely to be introduced include a gambling ombudsman to deal with complaints and a relaxation of rules for land-based casinos. In terms of the latter, it is hoped that this may include an increase in the number of gaming machines in “1968 Act” casino premises and/or more freedom to move the location of casino premises licences. Certainty on affordability assessment requirements will


likely be welcomed by gambling operators and those wanting to see greater regulation. However, any relaxation of requirements combined with the expected absence of bans on football shirt sponsorships and free bet incentives seems likely to lead to criticism that the white paper doesn’t go far enough.


Melanie is a gambling regulatory lawyer with 13 years’ experience in the sector. Melanie advises on all aspects of gambling law including licence applications, compliance, advertising, licence reviews and changes of control. She has acted for a wide range of gambling operators including major online and land-based bookmakers and casinos, B2B game and software suppliers and start-ups. She also frequently advises operators of raffles, prize competitions, free draws and social gaming products.


Melanie has a particular interest in the use of


new technology for gambling products and novel product ideas.


DECEMBER 2022 27


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