Prohibition on betting on non-UK EuroMillions unlikely to face a judicial challenge

DCMS has announced that it intends to introduce a new operating licence condition to prohibit consumers in Great Britain from placing bets on EuroMillions games which take place outside the UK. However, betting operators will still be able to offer bets on international lotteries such as the Irish Lottery or New York State Lottery. As these lotteries do not raise funds for UK good causes, operators will remain able to offer bets on them under the Gambling Act 2005.

This announcement is contained in its “Consultation​ ​Response:​ ​Prohibiting Third​ ​Party​ ​Betting​ ​on​ ​Non-UK EuroMillions​ ​Draws” document that can be downloaded below.

In March 2017, the UK Government published a consultation on a proposal to close the regulatory loophole which allows betting on non-UK EuroMillions. The responses to that consultation indicated broad support for this proposal, noting the importance of National Lottery funding to good causes across the UK, and what was described as “the anomalous position” of non-UK EuroMillions in the law.

The Government’s view is that betting on non-UK EuroMillions runs counter to the spirit and intention of section 95 of the Gambling Act 2005, that seeks to maintain “clear blue water” between the National Lottery and commercial gambling products, thereby protecting returns to good causes, by prohibiting bets on the outcome of a lottery that forms part of the National Lottery.

It believes that a new licence condition prohibiting British consumers from placing bets on EuroMillions games which take place outside the UK will ensure that those draws receive the same level of protection in relation to funds for good causes raised by The National Lottery as is the case for UK EuroMillions draws. It says that it is mindful of the effect on impacted businesses, and that it will tailor the licence condition to ensure that it (a) is in line with the Government’s aims to reduce consumer confusion, and (b) protects returns to good causes in the UK.

Comment has been made in some quarters that introduction of such a new licence condition (extending the existing section 95 prohibition to include betting on all EuroMillions draws, including those held in other European countries) could be the subject of a judicial challenge. However, such comment wrongly assumes that the new licence condition would be introduced by way of amendment to the LCCP by the Gambling Commission.

DCMS intends instead to impose a statutory licence condition prohibiting betting on EuroMillions draws in other European countries, using the power afforded to the Secretary of State to make regulations under section 78 of the Gambling Act 2005. That section provides for a specific condition to be so attached to a class (or classes) of operating licence. In this case (as confirmed in the DCMS Impact Assessment), these would be:

  • a general betting operating licence
  • a pool betting operating licence and
  • a betting intermediary operating licence.

UPDATE: In fact, contrary to our forecast, application for judicial review was subsequently made by three online betting operators, namely EU Lotto Limited, Lottoland Europe Limited and Multi Lotto UK Limited (“the Claimants”). However, it was unsuccessful. The Claimants’ challenge was against Regulation 4 of the Gambling Act 2005 (Operating Licence Conditions) (Amendment) Regulations 2018 that, as we correctly stated above, introduced a new operating licence condition to prohibit consumers in Great Britain from placing bets on EuroMillions games which take place outside the UK. In a judgment given on 18 November 2018, the High Court rejected that challenge on its substantive merits and upon the evidence.