Why the UK hasn’t seen the last of EuroMillions betting
Richard Williams, partner at Joelson, argues the government’s plan to ban EuroMillions betting may not be as straightforward as it hopes
There has been significant growth in lottery betting in recent years. A number of operators have sprung up, licensed in multiple jurisdictions and backed up by insurance to pay out in the unlikely event of a big win.
In response to the growth of lottery betting in the UK, in March 2017 the Department of Culture, Media & Sport (DCMS) in the UK launched a consultation seeking views on a proposal to ban UK-licensed operators from offering betting on the EuroMillions draw numbers.
The consultation said allowing betting on EuroMillions was “contrary to the spirit and intention” of s.95 Gambling Act 2005 which restricts offering bets on a lottery that “forms part of the National Lottery”.
S.1 of the National Lottery Act 1993 helpfully defines “The National Lottery” as “all the lotteries which form part of the National Lottery, taken as a whole” i.e. any lottery promoted by Camelot as part of its licence.
Despite the s.95 Gambling Act 2005 restriction on betting on the National Lottery, UK-licensed operators have continued to offer betting on non-UK EuroMillions draws, on the basis that it does not breach the statutory restriction because EuroMillions is a separate lottery game in each participating country, even though the draw numbers are the same in each country.
The government consultation stated that preventing UK operators offering betting on EuroMillions was necessary to prevent customer confusion and to protect good causes in the UK, which are supported by the National Lottery. It also claimed that lottery betting customers were confused, as some thought they were participating in the lottery itself, when they were actually placing a fixed-odds bet on predicting the correct numbers.
There was some evidence for this confusion, as a single complaint had led to EU Lotto Limited t/a Lottoland receiving an adverse ruling from the ASA in February 2017 for “misleading” customers, by using terminology which implied that they were participating in a lottery, rather than betting on it.
Not the end of the road
On 30 November 2017, having heard from 34 respondents including Camelot, UK lottery ticket retailers, lottery betting operators and other parties on both sides of the argument, DCMS announced that it was intending to introduce a restriction on EuroMillions betting.
The impact assessment estimated that the cost (in terms of lost profit) to operators would be something in the region of £5m. This proposal is to be introduced “through a statutory licence condition” and it is envisaged that the government will move on this in the spring of 2018.
However, it’s unlikely that the lottery betting operators will take this development lying down, even though to some extent it was expected.
Under s.78 Gambling Act 2005, the Secretary of State has a wide discretion to attach a new condition to operating licences, apparently without consideration of whether the condition is necessary to promote one of the licensing objectives.
Given that only one confused consumer complained to the ASA about Lottoland and that protecting National Lottery revenues is not a licensing objective, this seems a rather half-baked proposal and there is little actual evidence that lottery betting is adversely impacting on the National Lottery.
Even the Regulatory Policy Committee reported that it was concerned about the quality and thoroughness of the consultation and the regulatory impact assessment.
Under s.355 Gambling Act 2005, the government can only introduce a significant condition such as this if a draft regulation “has been laid before and approved by resolution of each House of Parliament” so introducing a consequential (rather than an incidental) condition in this way might not be plain sailing.
Even then, operators may be able to challenge the proposal under European legislation, because non-UK residents would still be able to bet on EuroMillions, while UK residents (betting via UK licensed operators) would not. I know we have Brexit to consider, but these free EU arguments are likely to rumble on for some time.
I very much doubt that this is the end of the road for EuroMillions betting in the UK.
Richard Williams, partner at Joelson