The new guidance (195-page / 611KB PDF) is primarily a consolidation of guidance which has been issued by the Gambling Commission in other ways, although there are some additions and clarifications. It also removes references to documents that have become obsolete since its last update in 2009. The draft is open to consultation until 6 July 2012.
The Commission said that the revised guidance "does not represent a change of policy or approach". However gambling law expert Susan Biddle of Pinsent Masons, the law firm behind Out-Law.com, said that the deletion of a previous guideline that licensing authorities would not be expected to "undertake any compliance or enforcement action in relation to private gaming" could hint at more active enforcement in some areas.
"Is this perhaps because there has been greater reliance on the private gaming exemption and the local authorities are increasingly prepared to take action against those seeking to stretch this exemption beyond what was intended?" she said.
Biddle also warned that members' clubs could still potentially take advantage of an exemption primarily intended to "preserve the right to freedom of action in one's own home".
"Non-commercial gaming" and "private gaming and betting" may take place without any specific permission from a licensing authority if certain conditions are met. Members' clubs which are established for a purpose other than gaming are automatically able to offer "equal chance gaming", including games such as backgammon, bingo and poker, providing this is "ancillary to the purposes of the premises" and meets statutory limits on stakes and prize money and other conditions. "Private gaming" can take place anywhere to which the public do not have access, and is not subject to the same statutory limits and conditions.
"It is perhaps unfortunate that a members' club can potentially avoid certain player protections if it can bring itself within the private gaming exemption rather than having to rely on the exemption for members' clubs," she said. "It would appear still to be possible in certain circumstances for a members' club to 'get round' the prohibition on underage gambling, and the player protections conferred by the statutory conditions for the members' club exemption and the Gambling Commission's code of practice on equal chance gaming in clubs and pubs, by using the private gaming exemption."
The guidance states that private gaming can potentially take place on commercial premises, and so fall within the ambit of the private gaming exemption, in the situation where a members' club hires a room in such a facility for a private function where only equal chance gaming is played. However, it states that organisers must "scrutinise very carefully the arrangements put in place" to make sure that only members of the club have access to that area. Equal chance gaming is gaming that does not involve staking against a 'bank', and where the chances of winning are equally favourable to all participants.
Biddle welcomed the areas of the draft which consolidated guidance that had previously been published in separate documents. However, she added that it would have been "helpful" if the Commission had indicated "which of the changes is simply a relocation of existing guidance or advice (or, in the case of poker as non-commercial gaming, a repetition of the general guidance on non-commercial gaming), and which is actually new".