Report (3rd Day) (Continued)
50F: After Clause 86, insert the following new Clause—
“Direction by Gambling Commission to block financial transactions of person or organisation without remote gambling licence
In section 33 of the Gambling Act 2005 (provision of facilities for gambling), after subsection (5) insert—“(6) The Commission may give a direction under this section if the Commission reasonably believe that—
(a) a person or organisation who does not hold a remote gambling licence is providing remote gambling services in the United Kingdom; and(b) failure to give such a direction would deprive consumers of remote gambling services in the United Kingdom of the protection afforded by the licensing objectives in section 1 of this Act.(7) A direction under this section may be given to—
(a) a particular person operating in the financial sector,(b) any description of persons operating in that sector, or(c) all persons operating in that sector.(8) A direction under subsection (6) may require a relevant person not to enter into or continue to participate in—
(a) a specified transaction or business relationship with a designated person,(b) a specified description of transactions or business relationships with a designated person, or(c) any transaction or business relationship with a designated person.(9) Any reference in this section to a person operating in the financial sector is to a credit or financial institution that—
(a) is a United Kingdom person, or(b) is acting in the course of a business carried on by it in the United Kingdom.(10) In this section—
“credit institution” and “financial institution” have the meanings given in paragraph 5 of Schedule 7 to the Counter-Terrorism Act 2008;
“designated person”, in relation to a direction, means any of the persons in relation to whom the direction is given;
“relevant person”, in relation to a direction, means any of the persons to whom the direction is given.””
My Lords, I am pleased to have retabled this amendment, which I also tabled in Committee. As I explained then, Members of your Lordships’ House and the other place expressed serious concerns about the Gambling (Licensing and Advertising) Act 2014. The Government presented it as a great step forward, because it means that everyone accessing the UK market must get a Gambling Commission licence. There are, however, two difficulties with this argument.
First, the Act dramatically widens the scope for online gambling providers which access and advertise in the UK market. Previously, only providers based in 31 jurisdictions could access and advertise in the UK market. Now, thanks to the Gambling Act (Licensing and Advertising) 2014, any provider based anywhere in the world can access the UK market and advertise here, so long as they get a Gambling Commission licence.
Secondly, this dramatic increase in the scope of online gambling advertising and supply is not backed up by an appropriate enforcement mechanism to ensure that those without a licence could not continue to access the UK market. These weaknesses were, and are, a particular concern but, as the problem gambling survey demonstrates, problem gambling is more prevalent for individuals who gamble online than those who choose other types of gambling. The 2010 prevalence figure for general problem gambling was 0.9%, but it was more than 9% for online gambling and more than 17% on a monthly basis. During the debates on the latest gambling Act, Members of another place and then your Lordships’ House suggested that the best way to provide a credible enforcement mechanism was through financial transaction blocking. Amendments to this end were tabled first in another place and then by me in your Lordships’ House. The Government resisted this until the end of the Bill’s journey through Parliament, when I tabled a Report stage amendment. The day before I was asked to meet the Minister, who said that the Government had asked the Gambling Commission to negotiate an agreement with MasterCard, Visa Europe and PayPal not to process transactions of unlicensed sites.
This is good news, but I pointed out that a statutory approach would afford consumers much better protection, because it would cover 100% of financial transaction providers and not just those processed by MasterCard, Visa Europe or PayPal. As I said, I tabled the same amendment to the Bill in Committee and made two points to the Minister. First, I argued that this amendment was necessary because it afforded us an opportunity to engage with 100% of transaction providers. Secondly, I argued that it was very appropriate, because when I tabled my Report stage amendment to the Gambling (Licensing and Advertising) Bill, the Government said that they thought a better place for it would be in a consumer rights Bill.
In response to these points the Minister said in Committee on 5 November, at column 740:
“It is worth teasing some of this out for noble Lords, because MasterCard, Visa and PayPal cover the vast majority of relevant financial transactions. The noble Baroness mentioned the others but, although they might not appear in the list, the other payment service providers also use Visa and MasterCard. The branding might not be there but, behind the system, the actual infrastructure will be Visa or MasterCard. Reputable and legally compliant payment service providers are unlikely to have any greater interest in facilitating unlawful activity than the major providers have”. [Official Report, 5/11/14; col. 740.]
I have given this a fair amount of thought and would have been happy to leave the matter there but, having spoken to experts, I have to say that I am not convinced. In the first instance, the Minster’s response did not seem to engage with the increasing tendency for customers to use e-wallets provided by Neteller or Skrill, for example. I am not convinced that MasterCard or Visa could block a payment to Neteller or Skrill on the basis that they know that the payment would be going to an unlicensed gaming company, as there are situations where the gaming company is not involved in the transaction. A Neteller customer could for instance log on to their e-wallet and decide to lodge £100 to their account to fund a range of weekend purchases.
The card company—MasterCard or Visa—would see only the transaction coming to them from Neteller. The £100 would be completed successfully and the customer would have the ability to spend that money anywhere on the web. This could include purchasing books and music, and it could include the customer lodging £10 to his online bookie. There is no record of this transaction sent back to MC or Visa. They are blind to the transactions at that point.
Gambling companies have noticed an increase in the trend for consumers to put money into e-wallets before they log on to their online gaming. I am advised that this may be to avoid any reference to their bookie on their bank statement. Instead, all their statement will say is “Neteller deposit”, rather than show a debit to a gambling company for whatever sum that the consumer chooses. There is a perception that having multiple payments to your bookie on your statement may be detrimental to your mortgage application in the future.
Another concern of mine is that there are other ways of paying online, including via Ukash or Paysafecard vouchers. These are purchased in shops for cash, which is ideal for customers without a card, and the customer is given a receipt with a voucher number. The customer can then log into their Ukash account and redeem the voucher. They are then free to gamble on any site that accepts Ukash, which is very popular in the UK.
In reality, I am told, it is quite easy to avoid making transactions that are visible to MasterCard, Visa or Paypal. Not only that but these alternative mechanisms for making payments are growing in popularity and are very likely to continue to do so if punters think that they provide a way of placing bets with unlicensed providers offering better odds that would otherwise be blocked if one went through MasterCard, Visa or Paypal.
Mindful of that, I have a number of questions for the Minister. First, does she accept that these alternative means of paying are certainly not always visible to MasterCard, Visa or PayPal? Secondly, does she acknowledge that, in this context, the provision of a statutory approach, such as set out in my Amendment 50F, covering all those facilitating financial transactions for online gambling—not just MasterCard, Visa and PayPal—is important? Thirdly, does she acknowledge that, mindful of the increased popularity of these alternative forms of payment, the need to future-proof our legislation renders the approach set out in my Amendment 50F even more pressing?
I very much look forward to what the Minister has to say. I am open to her demonstrating that I am wrong and that transactions conducted by Neteller, Skrill and Ukash are always visible to MasterCard, Visa and PayPal. However, if she cannot do that, I hope that she will support my amendment. It is absolutely vital that the consumer protection provisions in place to protect UK consumers from unlicensed websites are robust, especially given that the problem gambling prevalence figures for online gambling are significantly higher than they are for gambling generally. I beg to move.
I am sorry that the noble Baroness, Lady Howe, has had to address these very important issues in such an empty House. Her comments deserve a better audience than they are getting at this time, although of course they will be reported in Hansard and, it is hoped, will be read.
The noble Baroness has been such a doughty campaigner on many issues of relevance and salience to various Bills over the last few years that one almost takes it for granted that she will pop up with something that we have heard before but which is none the less important. However, this time she may be beginning to sense, as I certainly do when listening to her—I hope that the Minister is also feeling this—that she is being given a bit of a run-around. This is a substantial issue dealing with real detriment in the real world, where people who have problems with gambling or who just wish to partake in it as a form of recreation previously had to deal with gambling operators located outside the UK and, hence, outside the regulatory net of the UK. Even though some of them were very close physically, there was no way in which the UK Government could operate to protect those who were in danger or provide services for vulnerable people who got involved in it.
The gambling Bill comes along and the noble Baroness puts forward a series of amendments aimed at reflecting the issues that she has just been talking about. She is told, first, the usual rubric that a voluntary arrangement would be the preferred solution and that there is not really an issue here because taking place elsewhere are conversations that will sort all this out. Of course, the pressure of time and, presumably, the pressure of the Government’s need for business mean that we do not get any further with it.
The fact is that, although the Gambling (Licensing and Advertising) Act is a major step forward, unlicensed gambling is continuing and people are still partaking in it. The latest saga—which is why I think the noble Baroness should recognise that she is being spun a line here—is that somehow the existence of a deal on a voluntary basis with four major payment processors will be sufficient to deal with the issues that she genuinely believes are of concern. I share that concern, which I feel needs to be addressed by the Government if they have a sensible interest and a public policy in this area.
Because of her assiduous research in this area, the noble Baroness has discovered that it is possible to have unlicensed gambling operators that are based offshore and over which the Government have no obvious or direct way of prevailing in terms of trying to block or stop their activities. There is now a mechanism that people can use, and would often want to use for the reasons that the noble Baroness gave, to ensure that the payments they make to these unlicensed gamblers are not caught, not visible and not made available. Therefore there is no effective blocking in place. The Government owe her a very full response on this issue—something that will lead us to better understand why they feel defensive when it is so clear that action is required. If they will not accept this amendment, which I am sure they will not, on their previous track record, they should at least give her a sense of how this matter can be taken forward. Surely, it simply is not acceptable for the Government to say that they recognise that there is an issue, to explain that they think their voluntary arrangements work when they patently do not but then to make it more and more difficult for the noble Baroness to bring forward proposals.
The noble Baroness has a very good case, and I look forward to seeing how the transactions that are currently made can be made more visible, because if they are made using an e-wallet or Ukash and are not being caught, that is obviously a problem. Why is it not possible to underpin this on a statutory basis, so that we can get at the financial transactions that are at the heart of the unlicensed operators? If they cannot get their money they will go away. What future-proofing can be brought forward, given that, as she so rightly said, this is only going to bring us up to the current state of knowledge about the technology and its use? What can be done, either now, if it is possible, or in the next piece of legislation—perhaps the Small Business, Enterprise and Employment Bill will be an opportunity—to really get to grips with this very difficult issue, which needs resolution?
I thank the noble Baroness for her amendment, which seeks to block transactions with illegal, remote gambling operators and I applaud her tenacity. I confess that I thought we had got it sorted, so there is no intention on the Government’s behalf or indeed on my behalf to try to pull any wool over anybody’s eyes.
I wholeheartedly agree with the noble Baroness on the importance of protecting consumers. During the course of the Gambling (Licensing and Advertising) Bill 2014, I met several problem gamblers and was really very moved by their plight, as indeed were other members of the Government. As a result of the 2014 Act, all remote gambling operators selling into Britain will be required to hold a Gambling Commission licence, so they will be subject to robust and consistent regulation by the Gambling Commission, thereby increasing the protection for British consumers, supporting action against illegal activity, including on sports betting integrity, and establishing fairer competition for British-based operators.
The Government share the noble Baroness’s concern that the new remote gambling regime must be enforceable. As this House has heard before, the Government and the Gambling Commission believe that it is. In addition, the issue has been considered by the High Court. In a recent, unsuccessful, attempt to judicially review the 2014 Act, the High Court concluded that,
“there is no evidence or reason to believe that there will be a major enforcement problem”.
Therefore the Government have actually done what they thought was the right thing, and thought that they were going along the right track. As I explained during the debate in Grand Committee, the Gambling Commission has reached agreement with three payment systems organisations to work together to block financial transactions with unlicensed operators.
The Act came into force only this month and so these arrangements are in their early days. However, as I mentioned in Grand Committee, the Gambling Commission will report back to Parliament on its effectiveness in enforcing the Act. We must be guided by what the evidence tells us, and presently, up until just before the noble Baroness started speaking, the Government had found no evidence of a problem that required a legislative solution.
We are fully confident that we can make the arrangements effective. No payment system organisation can afford to be associated with illegal activity, and this shared objective underpins the agreement with the three main payment system organisations. My noble friend had a constructive meeting with the noble Baroness last week and we assure the House and the noble Baroness that we will keep the issue under review. The Gambling Commission will provide an assessment of the effectiveness of these arrangements as part of the annual reporting. This will enable the Government to ensure that the Gambling Commission continues to have all the tools it needs.
On the issue of e-wallets, which I think are the new player in this game, I do not have an answer here in my note for the noble Baroness. I have spoken to my officials and we have decided that the safest thing to do is to offer to write to the noble Baroness. We will do some research on this and work with the Gambling Commission to see what it knows and then get back to her. Given these assurances, I ask the noble Baroness to withdraw her amendment.
My Lords, I am most grateful to the Minister for her reply and, indeed, to the noble Lord, Lord Stevenson, for his very helpful assessment of what I was trying to get over. I am grateful to the Minister and her preparedness to look into the matter but I will be even happier if she is prepared to go away and have a careful look at this issue and then follow it up with a meeting of interested parties between now and Third Reading. If that would satisfy her, I will be happy to withdraw my amendment.
Amendment 50F withdrawn.
50G: After Clause 86, insert the following new Clause—
“Lettings and property management disputes: costs
In the Landlord and Tenant Act 1985, after section 20C (limitation of service charges: costs of proceedings), insert—“20D Unenforceable service charges: costs of proceedings
(1) Every contract or leasehold agreement between a landlord and a tenant, who is not leasing property in the course of business, is to be treated as including a term that all or any of the costs incurred, or to be incurred, by the landlord in connection with proceedings before a court, residential property tribunal or leasehold valuation tribunal or the First-tier Tribunal, or the Upper Tribunal, or in connection with arbitration proceedings, are not to be regarded as relevant costs to be taken into account in determining the amount of any service charge payable by the tenant.
(2) Unless there is express provision to the contrary, this section shall apply to contracts or leasehold agreements that were made before the commencement of this section and the provisions of this section may not be excluded in any extensions, variations or renewals of such contracts and leasehold agreements or in any subsequent contracts of leasehold agreements.””
My Lords, this amendment seeks to correct an injustice from which a number of leaseholders are suffering at present. The leasehold valuation tribunal—LVT—set up years ago has now been abolished and replaced by a tribunal. An aggrieved leaseholder who has not managed to receive any satisfactory response from their landlord, be it for repairs to be carried out or any other problem of non-compliance with the terms of his lease, has to take his case to the First-tier Tribunal. I opposed this change when it was debated in Grand Committee.
It was interesting to read in the past week—I think it was in the Evening Standard—that as yet there has not been one single application to the First-tier Tribunal relating to the redress scheme in the new regulations. That is not surprising. Everyone is waiting to see how heavy the costs are and what the procedures are. I have asked questions in the House as to how people are able to find out exactly what the new procedures are and what steps they need to take. In reply, I have been assured that efforts are being made to see that this information is readily available, but I have not seen anything other than that piece in the press.
As a tribunal application is now a much more expensive process than the LVT process, where costs were intended to be limited to a maximum of £500, the present reaction is not surprising. No one wants to plunge in at what looks like the deep end but someone will be forced to dip a toe in the water sooner or later, and I expect that then we will eventually have a deluge of applications. It was always understood that if a case needed to move on from the LVT to the Lands Tribunal and was to be financially within the reach of any leaseholder, much higher costs would be involved. I opposed the move to close the leasehold valuation tribunal and the move to the new tribunal and I will be very interested to see how it will work. It was debated in Grand Committee at the time the change was proposed.
This change of tribunal, however, makes my amendment even more necessary. A most unfortunate practice has developed in the leasehold valuation tribunal, whereby leaseholders bringing their cases personally found that they were confronting capable and expensive solicitors, in some cases QCs. That might seem to be a free choice of the landlord, and I have no objection to it. What I believe is totally immoral and unjust is that some less scrupulous landlords are charging these costs, even when they lose the case, back to the very leaseholders who were right in their claims. Those costs come disguised as service charges.
Whenever I have raised this question in your Lordships’ House, the reply is always that it depends on the terms of the lease. My amendment covers that situation for now but would prevent such a new clause being inserted into any new lease or extension of an existing lease. Too many leasehold terms and conditions are not understood by leaseholders and it is time that the many Acts, made over very many years, should be reviewed and a consolidation Act was brought forward. This House would be the ideal body to set up a committee to consider this in detail. There are too many Acts, each changing the preceding Acts and making these laws very difficult to follow. Even highly experienced lawyers have to spend their time referring from one Act to another, backwards and forwards. I was very grateful to the noble and learned Lord, Lord Lloyd of Berwick, who has long experience in consolidation, for supporting the principle of a consolidation Bill when it was raised recently in the House. I beg to move.
My Lords, we are very happy to support this amendment, which would ensure that tenants do not end up being charged a share of the landlord’s legal costs which were perhaps incurred when he was challenging those very same leaseholders, as the noble Baroness has said. That makes sense and I hope the Government will accept the amendment.
While I am standing, perhaps I might report to the House the outcome of our discussions in Committee on the rights of leaseholders. In that case, the discussion was on insurance and the difficulty which leaseholders have in seeing the underlying information in the insurance policy, as the contract is actually between the landlord and the insurer. Partly because of that and partly because the cost is passed onto tenants by the landlord, there is no incentive for the landlord to shop around for a better deal.
I received a letter today from the ABI, which agreed with the statement that I had made in Committee that leaseholders should have increased opportunities to engage in the process when the managing agent purchases insurance and that the landlord, as the client of the insurer, should request relevant information from the insurer. The ABI supports leaseholders being given clear and timely information about the insurance contract. The letter from the ABI suggests the sort of information that should be provided before the contract is signed, including any commission paid to the agent. While the Government were not able to accept the amendment in Committee, it is very good that the knock-on effect has been that it will become a note of good practice, which should have some impact on leaseholders. I hope the Government will now accept this amendment and help them in that way, too.
My Lords, I have listened with great interest to the comments made on this important subject and I am very grateful to the noble Baroness, Lady Gardner, for giving up some time earlier today to take me through her points. The purpose of her amendment, as I understand it, is to provide leaseholders and tenants with protection from a landlord seeking to recover the costs incurred through proceedings at court or tribunal through their service charges. This is obviously a sensitive area for both leaseholders and landlords and it is important to get the right balance. It is of course important that leaseholders are provided with protections but also that the law creates parity between the parties.
Section 20C of the Landlord and Tenant Act 1985 enables a leaseholder to apply to the tribunal for an order that the landlord’s costs should not be included in determining the service charge payable by the leaseholder. At any point during proceedings, a leaseholder may make an application to the tribunal to ensure that they do not bear the costs of all the litigation. This ensures that the leaseholder knows where the costs of the matter will lie. The tribunal process is designed to be as cost effective and user friendly as possible. It may be that this could be better communicated so that leaseholders understand their rights. The judiciary has always been aware that, if costs have been awarded against the landlord, they should not get through the back door what has been refused through the front door. Tribunals must make decisions that are just and equitable in the circumstances; they are best placed to make those decisions because they are apprised of the facts.
I am a bit concerned about the perverse effect of the amendment, which could restrict landlords from ever recovering costs of legal proceedings by way of a service charge. This seems wrong. For example, in an insurance dispute resulting in the insurance company refusing to pay out, the landlord would need to instigate proceedings ensuring that leaseholders do not have to pay for repairs through service charges that might be covered by the insurance. However, I am very glad to say that the leasehold sector is large and growing; we have over 4 million dwellings in England subject to a long lease, and the noble Baroness, Lady Gardner, explained to me that there are 6 million leaseholders. Of course, there are also 2.8 million dwellings in flats. I am advised that the amendment could change the leases for flats without consultations with individuals or working with the sector to consider these matters, although I think the noble Baroness was saying something different in her comments. Be that as it may, this is an incredibly important sector, and I know that the changes and new regulations on redress introduced on 1 October may change the market place and need to be allowed to settle. Again, there may be an information problem that we would be keen to address.
Before I finish, I pick up the point that the noble Baroness, Lady Hayter, made about the ABI letter, which she was kind enough to give me a copy of earlier today. DCLG officials are working closely with the Competition and Markets Authority in relation to the remedial measures from its market study on property management services. The final report will be published next week and is likely to ask government to consider most of the points in the ABI letter. My noble friend will also be interested to hear about that report. She identified an important issue, that of legal costs that are incurred by landlords and how they are passed on as service charges. I do not feel able to accept her amendment but I shall write to my ministerial colleagues at the Ministry of Justice and DCLG alerting them to the issue, making sure that they consider the points that she made very carefully. I will ensure that we follow through as a Government and I will see her again if the need arises. There is a willingness to take this forward. In the circumstances, I hope that she will feel able to withdraw her amendment.
I must thank those who have spoken on this issue and pay credit to the noble Baroness, Lady Hayter, who got her amendment through on the Enterprise and Regulatory Reform Bill. That was extremely valuable and will be most important for many people.
The statement that I welcome most in what the Minister has just said is that she will be in touch with the Justice and Communities departments, because the lack of connection between the two has been a great problem. Whenever I have tabled a Question for one, it has been answered by the other one. Even when the previous Lord Chancellor told me exactly how to word it—he told me, “Justice has to answer that”—it did not do so; Communities answered it. The Minister at that time said, “They just said, ‘You’ve got it, we don’t want it’”. So we really need to bridge those two departments to get anywhere with this matter.
I want to comment on the Minister’s suggestion that my amendment could in any way restrict the landlord from ever recovering his costs. That is not so at all, and I think that if her department looks carefully at the amendment’s wording she will see that it is only when the landlord has lost his case. The tribunal can always award costs in any case. But in a case where it has decided strongly against the landlord, and he has even perhaps gone through an appeal and it has denied that as well, I think it would be very wrong. Disguising costs as a service charge would also be very wrong.
That leads me to the point that those who have been following this matter think is so essential: the need for greater transparency. I think that the Minister did suggest that the Government would be willing to try to ensure that people understand. Again and again we have heard reports that people who buy a lease have no idea what their obligations and commitments are, or what they are really getting for their money.
It is late at night, and there is hardly a living soul left in the Chamber, but I can tell your Lordships that I will persist. I think it was Lord Stanley, from Oxfordshire, who taught me that in Parliament you treat everything you fail to achieve as a brick wall, and if you keep bashing your head against it long enough and your head is tough enough, eventually it will give way. We look forward to more to follow on this subject. I emphasise how valuable the round table meetings held by the Department for Communities and Local Government have been in bringing together people involved in all the different aspects of leasehold. Often, hearing the views of someone else has made a big difference to everyone there.
At this time of night I would not consider putting the amendment to a vote—partly because there are hardly any of us here; I am not sure whether we would even be quorate. This whole debate has gone on for a long time, but it has been interesting and informative, and I feel that hope has come out of what the Minister has just said to us. As I said, I shall not be giving up, and I hope that she will not, either. I beg leave to withdraw the amendment.
Amendment 50G withdrawn.
Clause 88: Power to make transitional, transitory and saving provision
51: Clause 88, page 48, line 12, at end insert “or 3A”
My Lords, as Report stage draws to a close, I would like to move some technical amendments. These amendments are necessary to reflect the new provision regarding the student complaints scheme, which was agreed on Monday, to our great satisfaction. Without further discussion, I therefore beg to move the amendment.
My Lords, this is not quite the end of the process, because we will be back here at Third Reading. I know that between now and then Alex Crook, the Minister’s private secretary, will have to continue to deal not only with the Minister’s diary but with ours as well, so I wonder whether, through her, I may convey my thanks to him for what he has done. Needless to say, I am delighted with the technical amendments.
Amendment 51 agreed.
52: Clause 88, page 48, line 16, after “3” insert “or 3A”
Amendment 52 agreed.
Clause 91: Commencement
53: Clause 91, page 48, line 39, leave out “Chapter 3 of this Part comes” and insert “Chapters 3 and 3A of this Part come”
Amendment 53 agreed.
House adjourned at 10.03 pm.