Is the affordability checks question to be decided by Parliament rather than by the UKGC?

On 3 May 2021, in an article entitled “Bookmakers to be spared toughest of new curbs on gambling”, The Telegraph reported that the “betting industry [is] likely to avoid affordability checks for customers as plans are rolled into a wider review”.

The article reported ‘industry sources’ as saying that “the Gambling Commission will be stripped of the power to force punters to submit work payslips before they are allowed to place a bet”. Instead it is suggested that the 13,000 responses to the Gambling Commission’s Call for Evidence on “affordability thresholds and actions” (that ran between 3 November 2020 and 9 February 2021 and on which we have previously reported here) will instead by considered by politicians as part of the UK Government’s Review of the Gambling Act 2005. The Telegraph article adds that “insiders expect the move will lead to affordability checks being either watered down or shelved completely”.

This has yet to be confirmed formally by either government sources or the Gambling Commission. However, as mentioned in David Clifton’s November 2020 Licensing Expert article for SBC News entitled “Affordability Takes Centre Stage”, many concerns have been expressed that imposing monthly spending caps on gambling consumers in line with the Commission’s consultation affordability proposal would constitute such a fundamental policy change affecting personal freedoms that it would be constitutionally wrong for it to be considered otherwise than in Parliament as part of the Government Review of the 2005 Act.

In addition, it is most certainly the case that the Government’s December 2020 Policy Paper entitled “Review of the Gambling Act 2005 Terms of Reference and Call for Evidence” included the following questions within the “Online protections – players and products” section of its own Call for Evidence in relation to that Review (as previously reported by us here).

Q3: What evidence is there for or against the imposition of greater controls on online gambling accounts, including but not limited to deposit, loss, and spend limits?

Q4: What is the evidence on whether any such limits should be on a universal basis or targeted at individuals based on affordability or other considerations?

The Telegraph article quotes the Gambling Commission as saying that it is continuing to review the 13,000 responses to its consultation. iGB has today (4 May 2021) expanded on this, quoting a Gambling Commission spokesperson as saying (in line with comments made by the Commission’s Executive Director Tim Miller in his ‘Moment for Momentum’ speech on 30 March 2021):

Our work on remote customer interaction continues. We continue to review the large amount of evidence we received in the 13,000 responses we received to our consultation and call for evidence.

We will in due course be publishing an update and setting out what our next steps will be, which will focus upon addressing the risks that we currently see in our casework. In the meantime, the Commission continues to take action in relation to any breaches to the current customer interaction requirements that are identified as a result of compliance and enforcement activity.

This is a vital area to continue to address because whilst some operators have continued to improve their customer interaction processes, our evidence shows that many online operators are not setting thresholds for action at appropriate levels. They are not taking the appropriate action or acting quickly enough when they do identify risks of potential harm.