Machines & gaming: the new laws

Final regulations are about to be published - check the news section of Thepublican.com for the latest...​

Our present government, whoever happens to be in number 10, has a rather idiosyncratic approach to the legislative process - or at least that's the way it looks from the vantage point of the pub.

It has the usual White Papers, bills, democratic debate and parliamentary scrutiny, but as soon as an Act is passed everything seems to get tossed in the air and we start a new round of consultation on related regulation and guidance that come like a tail of noisy tin cans on the just-married jalopy - and they can have a profound impact on the way the law actually works.

In fact, it can seem as though we've got a fresh piece of legislation which has taken a completely different route onto the statute book.

This happened with the 2003 Licensing Act, guidance for which has only lately been revised again, and it happened with the anti-smoking legislation, forcing licensees to delay decisions over measures such as smoking shelters and running into difficulties with planning permission.

Now it's happening again, this time with the new laws that will govern gaming and machines in pubs - among many other things.

Due to come into force this September, the 2005 Gambling Act, passed two years ago you'll notice, is still waiting for its final guidance to be published. Proposals and recommendations have whirled around in a growing tornado of paperwork. Even the lawyers who specialise in the field admit they are getting confused - not that you should feel sorry for the lawyers. They, after all, are the only sure beneficiaries of the government's machinations.

A couple of those expert lawyers, Jeremy Phillips and James Rankin, appeared at the Wells & Young's brewery in Bedford last week, in a seminar organised by solicitors Kimbells, to explain to an impressively large audience of pub operators and local authorities some of the implications of the legislation - as far as we know it.

As Phillips began by pointing out, it's not just the Act you need to get a handle on, it's the 'dozens' of regulations and guidelines that support it, and which are still under consultation - and still coming out of government. At last count there were, in fact, 45 regulations, plus amendments to those regulations.

Perversely, many of these relate not to the way pubs are treated under the new law but under what conditions pubs can be exempted from the law. As one operator joked in the coffee break, these regulations may turn out to be so onerous pubs might be better off if they weren't exempt.

The British Beer & Pub Association (BBPA) is still fighting the industry's corner. While there is general agreement that some kind of code of practice (see box, facing page) would be appropriate for exempt gaming premises, the details are controversial.

On the table at the moment, for instance, and unhinted at in the Act, is the appointment of a "gaming supervisor", a member of the pub staff who is responsible for ensuring the regulations attached to being exempt are adhered to.

The BBPA is taking "strong exception" to this, arguing that the designated premises supervisor is already charged with such responsibilities and the extra position would only cause confusion.

There is the bigger question, too, of how, exactly, this supervisor is to enforce the code of practice, especially when it comes to ensuring that stakes and prizes do not exceed whatever limits are finally agreed upon, and that nobody is cheating.

As you probably know, under the old laws pubs can allow games of some skill - in practice, dominoes and cribbage - for small stakes. The new law will define "small" and limit the pot. But is the licensee really expected to monitor every hand? And how will they know whether the visible stake really represents a bigger bet, which will be settled outside the pub?

And nobody likes a cheat, but it's not easy to prevent cheating nor to make sure every player is suitably wise to the rules.It looks like one of those impossible burdens to add to the licensee's lot - although the clever money is on some form of words including "not knowingly" providing wriggle room.

The suggestion that all gambling must be in cash is another point the BBPA is concerned about, fearing theft and the crime and disorder that could lose a publican their licence. One alternative could be a casino-style chips system for doms, crib, poker and other games.

Breach of the code of practice would entitle the local authority to remove a pub's exemption from the Act, meaning it would lose all its AWP machines as well as games for stakes.

And if the breach is such that it causes crime and disorder, the premises licence itself would come under threat.

AWP machines

Pubs with no more than two AWP machines should notice little change as the new gambling regime comes into effect. Their existing Section 34 permits will automatically transfer and continue to their current expiry date.

It's rumoured that certain local authorities will be looking to charge licensees for the conversion, but according to licensing lawyer James Rankin "they're wrong - and you must challenge that".

When that permit expires a new one will cost £100 and last three years. It will allow you two AWP machines under law, and if you want more you must apply to your local authority, which has discretion over whether they can be allowed.

An authority may object to extra machines if there is a breach of licence conditions or, for some reason, it feels the machines will not be consistent with the licensing objectives.

"I cannot see a licensing authority busying itself too much about this if there has been no problem with existing machines in the past," says Rankin. "But a licensee applying for 20 machines is likely to raise alarm bells!

"The question will be, at what point does a pub become an amusement arcade?"

The likely limit would come at around four machines, he believes.

Licensees should also be aware that gaming machines will come under the new code of practice. Already, AWPs must be installed in view of barstaff to prevent under-18s playing them, but according to Rankin it's likely the new law will tighten things up.

Councils could insist on extra signage and CCTV being trained on machines, he suggests."The proposed code of practice says machines should be played in 'a pleasant atmosphere', but what's the test for that?" he wonders. "It's incapable of definition!"

However, "the onus is on all members of staff to abide by the code of conduct. Licensees should make all staff aware of their duties, even waiting staff, getting them to sign a piece of paper saying they understand, and they should carry out a risk assessment on misuse of machines.

"Otherwise they could be in breach of the code of conduct and liable to a cancellation or forfeit of the permit."

Poker: will pubs be given a winning hand?

Of course, life might have been made a little easier if the poker craze hadn't suddenly hit pubs in the middle of the legislative process.

Inspired by online gaming and late-night Texas hold-em contests on the television, many pubs have seized on poker as a good way of attracting customers for an evening.

While we wait for the new laws to come into force, there's tacit acceptance that pubs can run tournaments as long as there is no prize money. It's yet to be demonstrated that poker is a game of skill, which would give it the same status as dominoes or cribbage.

Although this situation is complicated by competitions in which winners go through to a chance to win prizes in later rounds, it's unlikely that any action will be taken while legislation is in transition.

This may not last forever, though. Jeremy Phillips believes poker could face special "more stringent regulations" under the coming regime."The government is concerned about poker," he says.

It's a lottery. Or