On 17 November 2021, the Gambling Commission launched a consultation proposing changes to its Licensing, compliance and enforcement policy (the “Consultation”), including changes to:

• how compliance assessments are conducted;
• its regulatory toolkit, introducing special measures;
• the licence review process;
• the way in which financial penalties are calculated; 
• interim suspension appeals; and
• regulatory settlements.

This is the second blog on the Consultation in which we consider the proposed changes to compliance and enforcement.  The first blog can be accessed here. The enforcement proposals, if implemented (cue cynicism), will severely impact fairness to licensees and unveil an even more punitive and unpredictable regulator.  

Compliance changes

a) Compliance Assessments

Under sections 27 and 305 of the Gambling Act 2005, the Gambling Commission, its enforcement officers and other authorised persons are empowered to monitor and assess the compliance of licensees. In recent years, the Gambling Commission moved to conducting these compliance assessments remotely.

The Consultation proposes to formalise the current position by adding the following new section:

Remote compliance assessments

The Commission may conduct remote compliance assessments for the purposes of determining whether activities are being carried on in accordance with the conditions of the operator’s licence or determining the suitability of the licensee to carry on the licensed activities. Such assessments may be conducted using video conferencing platforms such as Skype. During such assessments the Commission may request sight of documents and records held by the licensee, including customer records and the audit trail in relation to customer accounts.

Additionally, as part of the framework to judge levels of compliance, the Consultation proposes to add details of what non-compliant/just compliant and compliant looks like. 

b) Special measures

As part of its regulatory toolkit, the Gambling Commission has been piloting the use of special measures, since September 2020, “to bring operators to compliance at pace” following the identification of failings during a compliance assessment.  The recently published Raising Standards for consumers – compliance and enforcement report 2020 to 2021 reports that the pilot scheme has used in relation to eight licensees.  

During the special measures process the licensee makes various commitments to, and is supervised by, the Gambling Commission in “a closely managed and monitored timetable to achieve compliance over a relatively short period of time.”  Wide-ranging, significant and immediate improvements are required to the licensee’s policies, procedures and controls, generally, within a challenging timeframe.  Once the Gambling Commission is satisfied improvements have been made and there is no risk to the licensing objectives, particularly consumers, the special measures will be lifted. 

The Gambling Commission has found special measures highly effective in incentivising licensees to make quick and substantial improvements (and divestments!) to avoid a licence review, and that it why they are being formalised. The shared objective of the dangled carrot is to avoid a section 116 licence review, and in the case of the licensee, the uncertainty, huge stress and cost that they bring!  

The Gambling Commission’s online guidance on compliance assessments states:

Special measures

To increase the tools available to us and to ensure swift interventions with failing licensees we have been piloting a ‘special measures’ scheme. The aim of this process is to raise standards immediately under strict supervision. Where licensees are being considered for regulatory action, we may consider special measures and notify you that it is an option. Special measures is an opportunity to achieve compliance before formal action. Failure to achieve compliance during the special measures process would lead to a regulatory investigation.

Special measures is only appropriate if:

• there is an acceptance of failings
• we have a high level of confidence that a licensee can become compliant quickly, and they have demonstrated this during the assessment
• actions which mitigate the risks to the licensing objectives and consumer harm are put in place immediately
• there isn’t a history of protracted non-compliance
• there isn’t evidence of significant consumer harm
• there is an offer to divest any profit made from non-compliance.

Furthermore, the Raising Standards for consumers – Compliance and Enforcement report 2020 to 2021 states:

Our requirements

The process of special measures is commenced by the Commission and requires a licensee to meet the following requirements:

• the licensee must acknowledge and accept the failings
• key persons must attend a formal meeting and explain why there are failings and what will be done immediately to mitigate the risk of consumer harm
• a formal action plan detailing improvements to be made must be submitted within five days, this plan should implement controls that immediately mitigate the risk of consumer harm

The Commission will consider the submitted action map and decide whether it appears acceptable. A further short extension may be given if some alterations are required (not more than two days) to enable agreement on the suggested revision. Following this, the licensee is required to adhere to the following requirements:

• report weekly on the progress against the action plan and meet the deadlines proposed
• complete the action plan within three months
• pass one of our compliance assessments after three months
• calculate how much they have financially benefited from non-compliance and propose how they will divest themselves of this amount.

The Consultation proposes to add the following new paragraph to the Licensing, compliance and enforcement under the Gambling Act 2005: policy statement (the “Policy”):

Special measures

4.22   If serious failings are revealed during or as a result of a compliance assessment, then the Commission may decide that it is appropriate to place the licensee into Special Measures. The effect of Special Measures is that the licensee will be invited to submit and agree an urgent action plan to rectify the regulatory failings identified. This may include divestment of any financial benefits derived from the failings. If the licensee fails to agree an action plan, or fails to implement the agreed action plan, the Commission is likely to proceed to review the licence. Compliance with the action plan does not prevent the Commission from reviewing the licence in any event, but such compliance will be treated as a mitigating factor. Where the licensee has fully complied with the action plan, it may request release from Special Measures. The Commission will consider such a request following a further compliance assessment.

Enforcement changes

a) Commencing a licence review

If the Gambling Commission decides to commence a licence review, generally, the following – unreasonably lengthy – process is followed:

Stage 1	Section 116 letter sent providing notice to the licensee setting out the grounds of the review, the procedure and the licensee’s right to make representations and when (the “Section 116 Letter”).
Stage 2	Invariably lengthy Gambling Commission investigation.
Stage 3	Following its investigation, the Gambling Commission sends letter setting out its preliminary findings (the “Preliminary Findings”).  This will usually set out details of the documents and any other evidence being relied upon.  The letter will remind the licensee of their right to make representations on both: (i) the Preliminary Findings; and (ii) the preliminary assessment of seriousness, and timing requirements (normally 28 days).
Stage 4	Licensee responds to Preliminary Findings with representations (the “Representations”).
Stage 5	Gambling Commission considers the Representations or if none are received by the deadline, further notice setting out the settled findings (the “Settled Findings”) and the outcome of the review.  If the Gambling Commission is minded to impose a financial penalty, the licensee will be given a further opportunity to make representations about the proposed financial penalty.  The licensee may accept the outcome of the review or refer the matter – both the Settled Findings and the proposed sanction – to the regulatory panel for determination.

Any licensee that has lived through enforcement action will know well that the Gambling Commission will take (persistently in our extensive experience) many months, and sometimes more than a year, to reach Preliminary Findings (Stage 3 above), leaving a cloud of uncertainty and tension hanging over the business.  It therefore seems unfair to say the least that licensees are granted a single month to respond with their case – with extensions generally refused these days – whilst continuing: (1) to run their business, without which a licence is obviously not required; and (2) on their improvement journey.  In the months or years that have elapsed, key employees may have changed and those remaining may have a dwindling recollection of events that in many cases occurred years before the Section 116 Letter.

The Consultation explains:

During a section 116 review, the Gambling Commission is obliged to properly consider and take account of all information revealed during that review and to provide licensees with an opportunity to make representations. Whilst every attempt is made to do this in one act, there may be times when issuance of further preliminary findings is required particularly where, in responding to previously issued findings, new evidence is introduced. The Commission considers that until an outcome is reached, the investigation stage of a review remains live.

…

It is essential that within a review, all relevant matters, mitigation, remedial actions, and aggravating factors are assessed, considered and representations gained. This ensures fairness to the licensee in being able to present their response to our conclusions before an outcome is obtained.

The Consultation proposes to add the following new paragraphs to the Policy:

5.10 The process of review may itself reveal facts or matters requiring investigation. Accordingly, the Commission will take a flexible approach to the procedure to ensure that all relevant facts and matters are investigated, and that the licensee has a full opportunity to make representations in relation to the review 

5.20 While in most cases, the Licensee’s representations will enable the Commission to proceed to a determination, in some cases the Licensee’s representations may raise further questions for the Commission. This may be because the licensee has not adequately replied to the preliminary findings letter or because its representations raise further questions requiring investigation. This may lead to further investigations by the Commission, as set out at paragraph 5.10 above, which may result in a further consolidated preliminary findings letter. In such a case, the Commission will afford the Licensee the opportunity to make further representations before moving to consider its determination.

The Gambling Commission proposes to take a “flexible approach to the procedure to ensure that all relevant facts and matters are investigated”, for example, with the opportunity to send “a further consolidated preliminary findings letter” following the Representations (after Stage 4 above). In contrast, existing policy requires the Gambling Commission to send Preliminary Findings (Stage 3) following an investigation (Stage 2).  “Flexible” is not a word one would use to describe the Gambling Commission, and nor should it be, at least in the context of important policy and procedure.  The Regulators’ Code, which the Gambling Commission and its officers are obliged to follow, stipulates that “regulators should ensure that their approach to their regulatory activities is transparent.”  Adopting a flexible approach during enforcement action is anything but transparent, especially where it would be so one-sided!  Inevitably, adopting such an approach and issuing further preliminary findings during the same licence review will delay an already unreasonably lengthy process.  

As though we needed another reminder of the notable shift in the Gambling Commission’s approach to regulation, the Consultation adds that the additional stage “may be [required] because the licensee has not adequately replied to the preliminary findings letter or because its representations raise further questions requiring investigation.”  The proposed “flexible” approach would be especially unfair and unjust to a licensee, and against the principles of natural justice, because the Gambling Commission would be able to reach new and additional findings of fact based on the original investigation. A cynic would say that it unfairly gives the Gambling Commission a second bite at the cherry if its initial investigation was incomplete, for example, through its own incompetence.  However, it is much worse.  In its Representations, a licensee will put forward its case, including acceptance of failings and, very often, a Regulatory Settlement offer. The Gambling Commission is proposing to give itself the option – upon receipt of the Representations and having considered the licensee’s case – to issue further Preliminary Findings, taking advantage of the Representations and pushing up an offer.  This is procedurally unfair in the absence of new information, prolonging an already invariably lengthy investigation.

b) Financial penalties

Financial penalties, which are sanctions imposed by the Gambling Commission only if a licence condition has been breached (with or without a licence review), are governed by the Statement of principles for determining financial penalties.  Paragraph 2.5 of that policy states:

2.5 Although the Act…does not set a limit for a financial penalty, a penalty will be set at a level which the Commission considers to be proportionate to the breach. It will take into account the financial situation of the licensee where this information is provided to the Commission. A financial penalty allows the Commission, amongst other things, to eliminate any financial gain or benefit from non-compliance.

The Consultation proposes to add the following new paragraph:

Whether a financial penalty is to be imposed following a review or without a review having taken place, the Commission may request financial information regarding the financial resources available to a licensee, including but not limited to its own resources and those of any parent or group company or ultimate beneficial owner. In the absence of sufficient information, the Commission will infer that the licensee has the resources to pay such financial penalty as is appropriate in the circumstances of the case.

In considering quantum, the Gambling Commission requires financial information regarding the licensee’s financial resources.  In our extensive experience, this requires the disclosure of not only the licensee’s, but also parent companies’, financial accounts.  The Consultation therefore proposes to go one step further by enabling the Gambling Commission “to consider the resources available to the licensee and any parent or group company as well as the ultimate beneficial owner” [emphasis added]. Boldly, the Gambling Commission describes this as providing “further clarity on [its] approach”, which is disingenuous because it is a marked departure from existing policy.  The Consultation goes on to state that if the requested information is not provided, “the inference should be that [the licensee] is sufficiently resourced to meet the penalty.”  

Paragraph 1.4 of the Statement of principles for determining financial penalties requires the Gambling Commission to make decisions “openly, impartially, with sound judgment, and with justifiable reasons” and “make a decision only after due consideration of all information reasonably required upon which to base such a decision”.  

The Regulators’ Code requires it to “choose proportionate approaches” to those it regulates based on “business size and capacity”, “minimis[ing] negative economic impacts of their regulatory activities”.  It seems to us that reference here is being made to the licensed gambling business in Great Britain rather than its parent or sister companies, let alone its ultimate beneficial owners.

Critically, the Gambling Commission appears to believe it is empowered to break the corporate veil (between the licensed company and its shareholders) by virtue of section 121(7)(c) of the Gambling Act 2005.  This provision states that in considering the imposition of a financial penalty, the Gambling Commission is required to consider “the nature of the licensee (including, in particular, his financial resources).”  This language is mirrored in the “key considerations” at paragraph 1.6 of the Statement of principles for determining financial penalties.  Unhelpfully, the Explanatory Notes to the legislation do not provide any guidance to help us – or the Gambling Commission – establish the intent of parliamentary draftsmen.  We would therefore expect the Consultation to explain the reasoning behind such a seismic change.  

The key question is whether the Gambling Commission is empowered to consider the financial resources of all parent companies, group companies and shareholders?  Plainly the Gambling Commission believes it is empowered to do so because it has determined that the “nature of the licensee” and its “financial resources” includes group companies, parent companies, shareholders and any other ultimate beneficial owners.  The result being to push up quantum, in many cases by millions of pounds.  In our view, “nature” is not carte blanche to consider any of the licensee’s corporate or individual relatives, save where the licensee’s corporate structure is not bona fide, as described below.

The Gambling Commission proposes to also have regard to the financial resources of ultimate beneficial owners.  This is interesting because: (1) as discussed in my first blog, there is no definition of this term so it could include an indirect shareholder at 3%; and (2) it is in stark contrast to the Gambling Commission’s focus on an operating licence application, where financial documentation would only generally be required in respect of controllers (those at 10%) unless the ultimate beneficial owner was also funding the business.

We accept that a licensee could not structure itself such that it had no financial resources for paying a financial penalty but continued to generate revenues for group companies and shareholders.  In such circumstances, there is established English case law that the separate legal personalities of group companies constitute a single unit for economic purposes and should therefore be seen as one legal unit. This, of course, would not be the case in the structure of most licensed groups acting in good faith.

Where should the line be drawn? The principle of single unit for economic purposes seems indisputably fair in the extreme example of a licensee acting in bad faith.  However, life rarely operates in extremes (except for the pandemic).  What about the following fact scenarios?

1. A licensee that has £1m in the bank, passed £10m up the chain of ownership, during the three financial years before, in a corporate group structured in good faith.  It balks at a £5m financial penalty because it cannot pay without the support of its parent company and ultimate beneficial owners.  Is it piercing the corporate veil to expect money to come back down? Does the single economic unit argument exceptionally work for the Gambling Commission because the statutory wording – “licensee’s resources” – includes monies paid to the parent in such circumstances?
2. A loss-making licensee who has received financial support in the form of intra-group loans, without which the British business would have gone bust.  The British business has been loss-making since inception, but the business outside Great Britain, in Malta, has been highly profitable and subject to M&A activity.  Does “licensee’s resources” overlook the losses and intra-group loans?  
3. A licensee under new ownership. Does the Gambling Commission consider the group financial situation before or after the change in ownership? Is this something potential investors should consider carefully when investing?
4. A licensee and its ultimate parent company have suffered financially because of the pandemic which hit its retail business heavily.  Both companies have limited financial resources and received Government support during the pandemic.  The ultimate beneficial owners provided various shareholder loans to the business, which remain largely unpaid.   Does “licensee’s resources” overlook the unpaid loans, despite the inappropriateness of doing so from an accounting perspective, and focus on the wealth of the ultimate beneficial owners?  Can the Gambling Commission reasonably expect disclosure of the ultimate beneficial owners’ financial resources?

Regulators must be consistent and transparent in their approach. The Consultation should, therefore and at a minimum, have answers to these questions (and more!) to understand how the Gambling Commission intends to apply its wide-ranging proposals.  This is not the first time the consultation process has seemed like a sham.  Most notably, in earlier blogs, we noted our concerns regarding the regulatory panel reforms, where the overwhelming majority of respondents, including Harris Hagan, disagreed with the proposals.

To date, instead of poking the bear, clients have been eager to draw a line under licence reviews that inevitably take years to conclude, creating huge uncertainty and stress for the business.  It seems to us that until a licensee is motivated (and brave enough) to challenge the Gambling Commission by taking a licence review to regulatory panel or judicial review, rogue and baseless decisions will continue to be reached.  Worryingly though, the Consultation proposes to prop up the bear by empowering it to make even worse decisions on quantum.  

c) Interim suspension

Where there is a serious risk to the licensing objectives the Gambling Commission may decide it is “proportionate and appropriate” to suspend the operating licence.  A suspension may take place with immediate effect, and it may relate to only certain activities authorised by the operating licence.  

In recognising the impact an interim licence suspension may have upon a gambling business, the Gambling Commission proposes to list any challenge before the Regulatory Panel “as soon as reasonably practicable”.  Unlike many other regulators, a definitive time period is not provided; however, the Consultation refers to “expediting these hearings wherever possible”.  It is not clear whether this means within seven days or four weeks, but getting before a Regulatory Panel quickly is a good thing.

Interestingly, the Raising Standards for consumers – compliance and enforcement report 2020 to 2021 now includes a designated section on licence suspensions, which may signal a stronger appetite for imposing them!

d) Regulatory settlements

The Chief Executive’s message to the Raising standards for consumers – compliance and enforcement report 2019 to 2020, published in November 2020, stated:

Regulatory settlements are a way of resolving enforcement cases which we have used to good effect. Frankly, however, there are too many occasions where settlement proposals are made at a late stage of our investigation process or approached as if a licence review is a commercial dispute to be negotiated. That is not acceptable.

Our Statement of Principles for Licensing and Regulation…makes it clear that settlements are only suitable where a licensee is open and transparent, makes timely disclosures of the material facts, demonstrates insight into apparent failings and is able to suggest actions that would prevent the need for formal action by the Commission. Only licensees who meet those criteria need make settlement offers; licensees who choose to contest the facts before conceding at a later stage need not make offers of settlement.

As part of the Consultation, the Gambling Commission wants “to provide greater clarity for licensees…[to] reset to [the] original purpose [of a Regulatory Settlement] i.e. to expedite the delivery of an appropriate regulatory outcome.”

The Consultation proposes to add the following new paragraph:

The process of regulatory settlement is intended to produce a rapid and fair disposal of a case. Accordingly, regulatory settlements should be offered at an early stage in the process. The Commission will not normally accept offers of regulatory settlements offered after the licensee has made representations on the Commission’s preliminary findings.

Unsurprisingly, in an archetypal Gambling Commission edict, licensees are blamed for submitting late offers, contesting “facts” and treating the process like a commercial negotiation. Conveniently, the Gambling Commission now wants offers to be made before the licensee makes its Representations, assuming the Gambling Commission is always right in its findings of fact. Any licensee with Gambling Commission enforcement war wounds will know first-hand that the Representations (Stage 4 above) is – without doubt – the most critical in putting forward the licensee’s case. Bypassing this stage suggests the Gambling Commission is right with all its findings and that the licensee should just accept the one-sided “facts” and lay its head on a platter, as required by the Gambling Commission. In our extensive experience, no proper view can be taken on the appropriateness of: (1) Regulatory Settlement; and (2) the proposed offer put forward by the licensee, until after receipt and consideration of the Representations, and perhaps even until the Gambling Commission produces its Settled Findings (Stage 5).

What both the enforcement report and the Consultation fail to point out is that, in accordance with the Commission’s own policies, offers can be made at any time. Further, paragraph 5.33 of the Policy states “the Commission will only engage in such discussions once it has a sufficient understanding of the nature and gravity of the suspected misconduct or issue to make a reasonable assessment of the appropriate outcome.” Surely, this can only be after the Representations have been submitted? How can the “nature and gravity” be assessed when only the “prosecutor” has been heard? Even in a dictatorship, a jury would not be asked to return a verdict without hearing the defence’s case. Fairness is not a word one associates with the Gambling Commission these days, unless of course the letters “u” and “n” are added at the beginning.

The Gambling Commission states its purpose is early settlement. Again, this is disingenuous, because accepting a regulatory settlement between the Representations and any regulatory panel is still early! Each stage of the licence review process takes at least several months and whilst there is a shared keenness to reduce the unreasonable length of time the Gambling Commission takes for a licence review, it cannot be at the sacrifice of fairness to the licensee. As the only party with the luxury of more than a few weeks to respond, the Gambling Commission’s efforts would be best served overhauling its compliance and enforcement departments to speed up its investigation process (Stage 2) and the time taken to reach Settled Findings or accept a licensee’s regulatory settlement (Stage 5).

Respond to the Consultation

We strongly encourage licensees and even their owners to respond to the Consultation to express their concern for the proposals.

The Consultation closes on 9 February 2022. Responses can be submitted here.

Please get in touch with us if you would like assistance on any compliance or enforcement matters.