The legal view on the affordability checks parliamentary debate

Lawyers have their say on Monday’s three-hour debate in Westminster Hall on the implementation of the much-maligned measures, with insight from Northridge Law and Poppleston Allen
The post The legal view on the affordability checks parliamentary debate first appeared on EGR Intel.  

Between MPs comparing gambling spend and purchasing luxury shoes and dragging up provenly false statistics to make a point, the affordability checks date on Monday, 26 February, was eventually meted down into the same old stores.

The three-hour-long session concerning the highly controversial checks took place as a result of a petition set up by Jockey Club CEO Nevin Truesdale, which reached the requisite 100,000 signatures to trigger a parliamentary debate last year. 

The session examined several concerns raised by industry stakeholders over the proposed checks, in particular, the potential damage to the horseracing industry as well as how much these checks could infringe an individual’s privacy.

Another major concern high up on the agenda was whether the checks would work as intended, namely, to reduce the effects of gambling-related harm by identifying those at risk sooner. 

Those opposed to the checks believe a significant number of customers may opt to gamble with black-market operators rather than hand over personal financial documentation. 

But ultimately, despite the huffing and puffing, Gambling Minister Stuart Andrew remained steadfast in his approach. The Conversative confirmed the government would intend to push ahead with a pilot scheme which would pave the way for the checks’ full implementation.

To further get to grips with the outcome and perception of the debate, EGR spoke to several key lawyers for their thoughts from a legal standpoint. 

Melanie Ellis, partner, Northridge Law

“Predictably, it focused on the impact on horseracing, with some suggesting the checks should be applied to gambling on gaming products only, excluding betting.

“There were some surprising misunderstandings, including references to people being able to gamble using credit cards, increasing rates of problem gambling and the discredited Public Health England estimate of suicides associated with problem gambling.

“A few speakers mentioned the fact gambling operators are already carrying out affordability checks due to them knowing what was coming down the line. Frustratingly, none mentioned that they are also doing them because the Gambling Commission fines or removes licences from those who do not.”

Richard Williams, partner, Keystone Law

“It was an interesting debate, which was argued well on both sides. Of course, it was expected that MPs declaring an interest in racing or with a racecourse in their constituency would be against the measures. It was also inevitable that concerns would focus on the feared impact on racing finances.  

“Those opposing financial vulnerability checks correctly, in my view, distinguished between the risks from skill gaming (betting) and games of chance, such as online slots. I was not persuaded by arguments that migration to the black market isn’t a real risk and that this argument was previously used by the tobacco and alcohol industries to resist regulation.  

“Smuggling of physical items is clearly not the same as accessing black-market services online. While there was an air of inevitability about the debate, there may still be time to delay the introduction of financial [risk] checks for the betting industry – as was said, there may still be time to snatch victory from the jaws of defeat.”          

Felix Faulkner, solicitor, Poppleston Allen

There were many comments in the debate regarding whether these checks and the damage to the industry will drag the industry back to the pre-Gambling Act days, when underground gambling was considerably more prominent.

Whether that’s true or not, I can’t comment. However, I think it is fair to say that currently, the proposed idea of enhanced affordability checks is a far way off the reality of implementation. Significant developments and detail are needed from the Commission as to exactly how this proposal will benefit both the industry and punters alike.

It is also worth noting there is currently considerable confusion surrounding what the Gambling Commission are tabling to introduce, and who it will impact. Currently the proposal in the White Paper from the Gambling Commission is to implement affordability checks to the online sector only.

Although this currently will not impact the land operators, the possible impact on the horse racing industry still has the potential to be large, as customers who wish to bet will be required to prove their financial status if betting online, but not in shops or on-track. This will have a significant impact during the big events of the horse racing calendar, such as Cheltenham, where customers may be restricted from having a flutter as they are waiting for the result of an affordability check, which may only be completed once the event is done and dusted.

This, however, is only the Gambling Commission’s current thinking. If the checks are brought in for the online sector, there will be a significant disparity between the requirements placed on online and land-based operators. In practice, this inequality between the two markets could result in division, and in order to even out the playing field there is a risk that affordability checks could be introduced to the land-based sector in the distant future.

The current proposal tabled by the Gambling Commission and the government is going to be very difficult to implement and it will be interesting to see exactly how they propose to get around that difficulty. It is self-evident that the impact of affordability checks on the industry would have a significant impact to the customer experience and, at the moment, I struggle to feasibly see a way for them to implemented smoothly and without friction.

Elsewhere, Jockey Club CEO Truesdale has labelled affordability checks a “state overreach” as he hit the media following the debate.

The post The legal view on the affordability checks parliamentary debate first appeared on EGR Intel.


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