Westminster Forum 25/02/21.

The Gambling Act 2005 Review and Priorities for Modernising Legislation.

Peter Hannibal contribution.

  1. Thank you, Lord Foster. Its been said already that one of the key criticisms of the current Act is that it is accused of being “analogue legislation not fit for the digital age”. Those of us like Lord Foster who have been around long enough will remember quite clearly that the Gambling Act 2005 was championed as an ‘enabling’ act, legislation that facilitated change. Those who contributed to its creation knew that it needed to be ‘future proof’ and approached it with the intention of allowing it to keep up with change.
  2. But this clearly hasn’t worked effectively enough. So what can we learn from this and ensure that we don’t replicate what hasn’t worked in the new drafting? If the current Act was purposely designed as an ‘enabling’ Act, what went wrong?
  3. There are various mechanisms that Government has available to make changes, to both primary legislation and secondary legislation. And then some powers have been devolved to the Regulator to make changes via the Licence Conditions and Code of Practice or LCCP (as it is usually referred to).
  4. But the Government has been reluctant to make changes to Gambling Laws, perhaps because gambling is too difficult a political subject to confront, perhaps because there are “no votes in gambling”, which has been said on many occasions.
  5. But here we are some 16 years after the current Act was written still unable to legally employ anyone under the age of 18 in any role in a race track, stadium or football ground because of a simple error in the drafting. Despite a desire to put this right and it being proposed in various iterations of ‘red tape challenges’, the error remains in section 182 and ‘no time in the Parliamentary timetable’ is the most common reason for not addressing the error. Such barriers should not be allowed to prevent this new Act from keeping up.
  6. So not only do we need an Act that facilitates change and that keeps pace with technology and consumer expectations, we also need a Government that is not averse to triggering change and confronting the implications.
  7. Yet we are finally ‘grasping the nettle’ that will change Gambling Legislation for the next 20 years. So what is different now to the last 16 years.
  8. The ‘political will’ in Parliament to make changes is now clearly a significant difference to previous times. But the other important change is in the approach being taken. Ewen has been talking about the importance of ‘balance’ and the role that ‘evidence’ needs to play in decision making. This approach is critical if the outcomes are going to be respected by the UK public and all of gambling’s many, many stakeholders. This approach is also critical in giving the Government ‘courage of their convictions’. Giving them the confidence to follow this though without fear of a major backlash – from any quarter.
  9. But if we want this new Act to be fit for another 20 years then it too needs to be able to facilitate change. Many elements of the new legislation and regulations will need to be reviewed frequently to prevent regress. Don’t lock the things that will need to be revisited on a regular basis in Primary Legislation.
  10. And if secondary legislation can’t be revisited positively and constructively on a regular basis, then we can’t possibly expect the requirements in this new Act to keep pace with change any better than the last one.
  11. So, we have to seriously consider including a commitment to a review secondary legislation on a regular two-year, or three-year basis to ensure that the Act remains relevant and keeps pace with change. Ideally, this commitment needs to be written into the Act.
  12. These regular reviews need adopt the very same principles and approach that we have been talking about. But with one addition – effective ‘evaluation’. We are not good at evaluation. There is a wealth of knowledge, learning and intelligence in the outcomes of effective evaluation, but we don’t do it. We don’t do it often enough and we don’t do it well enough. Effective evaluation will tell us whether the last changes have had the desired outcomes and impact or not……. and will be critical in informing the next decisions. The alternative is that we end up making bad decisions on top of bad decisions.
  13. National Lottery Scratch cards started off at £1per ticket. They peaked at £20 for the most expensive ticket and have since been paired back to £5. This change was a golden opportunity to learn about the impact of stake changes on consumers and the vulnerable – where is that evaluation?
  14. Similarly, when FOBT maximum stakes were reduced from £100 to £2 in April 2019 Jeremy Wright hailed it as “a significant step forward in protecting vulnerable people”. But has it? We don’t know because there has been no evaluation done and there is no consequential evidence of a reduction in problem gambling yet produced. Such an evaluation would surely inform any proposals or decisions around stake changes elsewhere.  As Adam said, this is an opportunity missed.
  15. If we are going to be responsible about making changes and creating new legislation, then we have an obligation to consumers and the public to make good decisions based on sound evidence. And then to go back and evaluate that if those decisions were right and if not, take corrective action.
  16. The Industry needs to get better at evaluation, the Regulator needs to evaluate all of the changes they make to LCCP to see if they have been effective (or not) and to understand if there have been unintended consequences. They even have an obligation in the Regulators’ Code to do exactly this……….but they don’t.
  17. And the Government also needs to evaluate the changes that they bring into force through legislation, and have the ability to put things right when they get it wrong.
  18. Which brings me onto my final point which is ‘enabling’ controlled and collaborative testing and evaluation of innovations and new concepts that are not accommodated within the Act. What can’t carry on is the scenario where all new ideas are met with “you have to prove it won’t cause any additional harm before it can even be considered”.
  19. There are two issues here, one – its difficult, if not impossible to predict how a consumer is really going to react to a new product or innovation without letting them try or sample it first. And then evaluating their reactions. And two – how do you prove a negative – that no harm will be caused? This approach to regulation is regressive and will only ever prevent progress and shouldn’t be allowed to prevail in the new Act.
  20. To combat this dilemma, there needs to be a facility in the new Act that allows new things, new products, new facilities to be trialled and tested and evaluated in an agreed, controlled environment. If the trials meet the success criteria, then it’s introduction to legislation can happen at the next regular review of the secondary legislation.
  21. So to summarise, if we want the new Act to be relevant for the 20 years then;
    1. we need Government to commit to and legislate for regular reviews of secondary legislation.
    2. we need the new Act to insist on effective evaluation following ALL changes.
    3. and we need to ensure that there is the facility to test, trial and evaluate new things before their introduction into secondary legislation.