Gambling Comparative Guide

• Published date: 26 October 2022
• Subject Matter: Media, Telecoms, IT, Entertainment, Media & Entertainment Law, Gaming
• Law Firm: Memery Crystal
• Author: Mr Carl Rohsler

1 History of and overall attitudes to gambling

1.1 How prevalent are different types of gambling in your jurisdiction? For example, does the current law reflect: (a) Religious or moral objections to gambling? (b) A permissive approach which also seeks to address the social consequences of gambling? and (c) The promotion of gambling as an 'export' industry?

Gambling has a long history in Great Britain. In past centuries, many forms of gambling were heavily controlled by reference to the places where they could take place or the nature of the participants. However, gambling has never been the subject of an outright ban and gaming houses and betting on horse racing was a common feature of aristocratic entertainment in the 18th century. Indeed, lotteries have an even longer history as tools to raise funds. The Crown used a lottery to fund part of the defence of Britain from the Spanish Armada; and in the 1720s, Parliament used the proceeds from a lottery to purchase the land required to house the collection which now forms the British Museum.

Gambling has often been frowned on by religious leaders. Protestant Christianity in the 16th and 17th centuries regarded it as an immoral activity, and those sentiments continued in the general disapproval found in the temperance groups and Wesleyan and Methodist movements in the 19th and 20th centuries. Religious objections to gambling, however, have never manifested themselves in legal bans and overall, tolerance of gambling as an activity has been widespread for centuries. It is of note that the current legislation, the Gambling Act 2005, repealed a number of previous statutory provisions, the earliest of which dated back to 1710.

Over the past 50 years, Great Britain experienced a significant modernisation of its gambling market. In the 1960s and 1970s, legislation such as the Betting Gaming and Lotteries Act 1963, the Gaming Act 1968 and the Lotteries and Amusements Act 1976 formed a stable if somewhat restrictive regime, controlling land-based gambling. The core principle of that legislation was the tight control of premises at which gambling could take place. Those who wished to gamble should be entitled to have access to such facilities, but nothing should be done to stimulate new demand for expansion of the marketplace. Control also extended to the visibility of gambling, with heavy restrictions on advertising and even the physical frosting of windows for gambling premises.

This repressive philosophy began to be eroded in the 1990s, when the Conservative government under Prime Minister John Major developed the idea of a National Lottery, designed as a way of funding additional spending on the arts, culture and sport. With government explicitly sponsoring and promoting gambling, it was not long before the industry moved to demand greater liberalisation of the wider gambling market - a matter which found legislative voice in the Gambling Act 2005. Promoted by the Labour government under Prime Minister Tony Blair, the Gambling Act 2005 signalled a significant shift in approach. Gambling was considered to be a morally neutral activity forming a normal part of the adult entertainment market. This change of philosophy found its most direct expression in Section 22 of the Gambling Act 2005, which spelled out that the Gambling Commission's role was to uphold and protect the three licensing objectives but, to the extent that those objectives were met, it should to permit the gambling market to expand to its natural economic limits. In short, artificial control over the number of gambling opportunities was removed.

The new legislation catered for online gambling as well as gambling at premises and liberalised the regime relating to advertising. Control of gambling premises was removed from the Gaming Board for Great Britain and the criminal courts and placed instead in the hands of a new regulator, the Gambling Commission, responsible for controlling all forms of gambling. The task of granting and supervising premises licences was placed in the hands of local authorities which also dealt with entertainment and alcohol licences, with each authority being entitled to determine its own policy in relation to casinos.

The following decade saw a gradual but sustained increase in the presence of gambling opportunities in the United Kingdom. Online gambling increased substantially and the United Kingdom became the largest gambling market in Europe. Changes in 2014 altered the liberality of the regime from a jurisdictional point of view, with all foreign operators being obliged to obtain a licence from the Gambling Commission in order to be able to offer services to British citizens.

Over time, as gambling and the perceived harms caused by gambling became more prevalent, the public mood began to shift and the commission embarked on a concerted programme of auditing, investigating, rebuking and often punishing gambling operators for perceived failures in their social responsibility policies. The gambling industry has largely reacted earnestly to this change and, over the last five years, there has been a marked improvement in standards relating to:

• customer care;
• fairness of terms and conditions;
• rights of the public to complain; and
• the need for interventions by operators where customers appear to be gambling in a harmful way, or beyond their means.

Recorded levels of problem gambling have reduced substantially as a result and are now at historically low levels.

In 2020, the government announced that it would undertake a comprehensive review of the Gambling Act. However, following a formal call for evidence, the process has become subject to significant delays, mostly due to the COVID-19 pandemic diverting the whole political agenda. At the time of writing, it was said that a white paper was about to be published, but that process has also been delayed by the resignation of Prime Minister Boris Johnson. It now seems unlikely that publication will take place before Autumn 2022. Indeed, there are rumours that the review will be shelved by the new administration under Prime Minister Liz Truss.

The current legislation permits the existence of casinos, adult gaming centres, high-street bookmakers and bingo halls, as well as the location of gaming machines in venues licensed to serve alcohol. It also permits the full range of online/remote gambling. The National Lottery has become established as a national institution - albeit that this year has seen the appointment of a new licensee, with Allwyn taking over from Camelot.

In short summary, almost all forms of gambling are permitted for those of 18 years and over; and currently some forms of gambling (lotteries and some small prize amusement machines) are even permitted for those over 16.

2 Legal and regulatory framework

2.1 Which legislative and regulatory provisions govern gambling in your jurisdiction?

The law on gambling is set out primarily in Gambling Act 2005 (as amended) and, for the National Lottery, in the National Lottery etc Act 1993. There are more than 70 statutory instruments that inform the detailed implementation of the basic regime set out in the Gambling Act. The Act applies fully in England and Wales. It also applies in large measure in Scotland (subject only to some minor modifications which reflect Scotland's different licensing structure for liquor at premises). Two sections of the act apply in Northern Ireland (a minor repeal and an offence relating to chain gift schemes); apart from those provisions, the law on gambling in Northern Ireland is currently reflected in its own legislation (the Betting Gaming, Lotteries and Amusements Order 1985, as substantially amended by the Betting Gaming Lotteries and Amusements Act 2022).

Taxation of gambling is dealt with under the annual Finance Act, which makes amendments to the Betting and Gaming Duties Act 1981.

2.2 Which bodies are responsible for regulating and enforcing the applicable laws and regulations? What powers do they have?

The Gambling Act 2005 created a single regulator for all forms of gambling (now including the National Lottery) in the form of the Gambling Commission. The commission is a statutory corporation with its offices in Birmingham. The main officers of the commission are the commissioners, aided by a staff of licensing officers and enforcement officers responsible for dealing with the day-to-day functions of the regulator.

The Gambling Commission is responsible for, non-exhaustively:

• upholding the licensing objectives (Section 1 of the Gambling Act 2005);
• issuing operating and personal licences (Part 5 of the Gambling Act 2005);
• regulating licence holders and their activities (Sections 99-120 of the Gambling Act 2005);
• issuing policies, advice and codes of practice (Sections 23-24 of the Gambling Act 2005); and
• investigating and prosecuting gambling offences.

The cornerstones of the Gambling Act 2005 are its three licensing objectives (Section 1 of the Gambling Act 2005) - which are:

• to ensure that gambling is conducted fairly and only by those that are suitable to provide such services;
• to protect minors and the vulnerable from gambling harm; and
• to keep gambling free of crime.

The Gambling Commission has a team of investigating officers with powers to enter and inspect premises and investigate suspected wrongdoing (Part 15 of the Gambling Act 2005). It is a criminal offence to supply false information to the commission (Section 342 of the Gambling Act 2005).

The advertising of gambling is regulated by the Advertising Standards Authority (ASA), which promulgates and polices its own code on the advertising of gambling and the use of prize draws and competitions as sales promotions. Adherence to the code is also a condition of operator licences and so capable of being regulated both by the commission and by the ASA.

Finally, the Financial Conduct Authority retains control of spread betting and binary betting, which are both forms of...