Responding to the Gambling Act White Paper Consultations
United Kingdom (August 1, 2023) — On 26 July 2023, the Gambling Commission published its first tranche of white paper consultations. The ‘consultation package’, due to close on 18 October 2023, addresses the following four areas:
- improving consumer choice on direct marketing;
- strengthening age verification in premises;
- remote game design; and
- remote gambling: financial vulnerability and financial risk.
The consultation package will also cover the proposed extension of personal management licence requirements, and “changes to the composition and decision-making processes of the Commission’s Regulatory Panels.”
Also on 26 July 2023, the Department for Culture, Media and Sport (DCMS) launched its consultation on maximum stake limits for online slots games, which is due to close on 20 September 2023, and its consultation on proposed changes to the regulatory measures governing the land-based gambling sector, which is due to close on 4 October 2023.
The coming months present a key window of opportunity for the industry to engage with and materially impact the outcome of the consultation process.
As the industry formulates its responses, we set out some of the key principles of ‘good regulation’ and ‘good consultation’ which apply to the Commission and to DCMS. While this area of public law is broad and complex, we have outlined some of the key principles below.
‘Good regulation’ and ‘good consultation’ principles
Consultations carried out by public authorities in the UK must be fair and lawful. The elements of a ‘fair and lawful’ consultation are well established, and include that:
- consultations must be conducted at a time where proposals are still at a formative stage;
- sufficient explanation and information must be given within the consultation to allow people to consider and respond to the proposals meaningfully;
- adequate time must be given for consideration and response; and
- the body conducting the consultation must conscientiously take into account the responses received when reaching a final decision.
These principles are also enshrined in the Cabinet Office consultation principles, which the Commission has undertaken to comply with. The Cabinet Office consultation principles provide that:
- consultations should be clear and concise;
- consultations should be informative, and include a validated impact assessment of costs and benefits of the proposals, where possible;
- the public body’s response to the consultation (i.e., its ultimate policy decision) should be published in a timely manner; and
- the public body’s consultation response should facilitate scrutiny (by, for example, stating how many responses were received, and how the responses informed the policy decision).
In addition, the Commission has a statutory obligation to have regard to the principles of ‘good regulation’ set out in the Regulator’s Code. These principles include that regulators should act transparently and proportionately, avoid imposing unnecessary regulatory burdens, and use the least intrusive approach to ensure regulatory compliance.
In a speech in July 2022, the Gambling Commission Executive Director, Tim Miller, referred to industry concerns that the Commission ‘pushes out’ consultations without giving the industry adequate advance notice to allow them properly to plan time to respond, and concerns that consultation responses do not make a difference to the Commission’s decision making. It will be interesting to see whether and how the Commission has sought to address these concerns in the current round of consultations, with a particular eye to the principles of good consultation.