Betindex
Request
- The identity (name and chambers) of the King's Counsel (KC) who provided legal advice to the Gambling Commission regarding the regulatory classification of BetIndex Ltd's "Football Index" product.
- The date(s) on which the Gambling Commission sought and received this KC opinion.
- The full text of the KC's written opinion, or a redacted version if exemptions apply
Public Interest Justification: The Football Index collapse in March 2021 resulted in over £124 million in consumer losses, with significant public and parliamentary interest. Disclosure is in the public interest to ensure accountability, inform ongoing gambling regulation reforms (e.g., Gambling White Paper 2023), and prevent future consumer harm from misregulated products.
Exemption Consideration: I recognise potential exemptions under Section 42 (legal professional privilege) and Section 31 (law enforcement). Given the scale of consumer harm and ongoing reform, there is a strong public interest in transparency. If full disclosure is not possible, please provide:
The KC's name and chambers, and the instruction and delivery dates; and A redacted or summarised account of the legal reasoning, in line with the duty to advise and assist under Section 16 FOIA.’
Response
Thank you for your request which has been processed under the Freedom of Information Act 2000 (FOIA).
In your email you have requested:
‘1. The identity (name and chambers) of the King's Counsel (KC) who provided legal advice to the Gambling Commission regarding the regulatory classification of BetIndex Ltd's "Football Index" product. 2. The date(s) on which the Gambling Commission sought and received this KC opinion. 3. The full text of the KC's written opinion, or a redacted version if exemptions apply
Public Interest Justification: The Football Index collapse in March 2021 resulted in over £124 million in consumer losses, with significant public and parliamentary interest. Disclosure is in the public interest to ensure accountability, inform ongoing gambling regulation reforms (e.g., Gambling White Paper 2023), and prevent future consumer harm from misregulated products.
Exemption Consideration: I recognise potential exemptions under Section 42 (legal professional privilege) and Section 31 (law enforcement). Given the scale of consumer harm and ongoing reform, there is a strong public interest in transparency. If full disclosure is not possible, please provide:
The KC's name and chambers, and the instruction and delivery dates; and A redacted or summarised account of the legal reasoning, in line with the duty to advise and assist under Section 16 FOIA.’
The Gambling Commission can confirm as follows:
Question 1:
The Commission can confirm that we do hold information falling within the scope of part one of your request.
However, the Data Protection Act 2018 requires personal data to be processed lawfully, fairly and in a transparent manner in relation to the data subject. It is the view of the Commission that disclosing the name and chambers of the King’s Counsel who provided legal advice to the Commission on this case would constitute the disclosure of personal data and therefore would contravene this data protection principle.
The Commission has also considered the legitimate interest of disclosing this information under Article 6(f) of GDPR, and it is our view that the legitimate interests for disclosing this information do not outweigh the rights of the individual.
This information is therefore exempt under section 40(2) of the Freedom of Information Act 2000.
Question 2:
Section 21 of the FOIA provides that information is exempt where it is reasonably accessible elsewhere. In order to be of assistance, please see page 93 of the Sheehan Report, which states:
- The Commission instructed Counsel to give an opinion on the product on 10 March 2020
- On 19 March 2020, the Commission received the draft legal advice.
Question 3:
The Commission does hold a legal opinion which was obtained by BetIndex from Leading Counsel and which was provided to the Commission in December 2020. However, this information is exempt under Section 42 – Legal Professional Privilege on the basis that it is subject to legal advice privilege which was shared on a limited and confidential basis with the Commission, and the public interest test lies in favour of maintaining the exemption.
Our consideration for engaging this exemption is detailed below
Legal Professional Privilege – Section 42
Section 42 provides an exemption under the FOIA for Legal Professional Privilege (LPP). Information in respect of which a claim to legal professional privilege or, in Scotland, to confidentiality of communications could be maintained in legal proceedings is exempt information.
LPP protects the confidentiality of free and frank communications between a legal advisor and a client.
These records, which are not being disclosed, pertain to legal advice provided to Commission staff (clients) or to third parties who have provided the material to the Commission on the basis that the privileged status of the material is maintained.
The communications between the legal advisor and the client was provided for the main purpose of legal advice.
There has been no previous disclosure of the information and therefore the advice remains confidential.
Public interest test
The factors the Commission has considered when applying the public interest test have been detailed below and our view is that the public interest lies in favour of applying the exemption.
In favour of disclosure
- The Commission is a public body which is required to regulate the gambling industry in the public interest. There is therefore a public interest in members of the public having confidence that the Commission is being open and honest with the information it holds so that it can be held to account.
- There is public interest in knowing what legal advice was obtained in relation to Betindex so the public can be assured that the correct advice was provided.
In favour of maintaining the exemption
- There is a strong public interest in Commission staff being able to access full and frank legal advice without concerns that this advice will be disclosed.
- There is a strong public interest that third parties can share privileged legal advice with the Commission on a confidential basis (on the basis of “common interest privilege”) to allow frank and open discussion between parties.
- Disclosure may hinder the candid nature of communications in the future which could be damaging to future decision making which is not in the public interest.
- Disclosure may have a negative impact upon the frankness of legal advice provided and may even have an impact upon the extent that legal advice is sought. This would also not be in the public interest.
Weighing the balance
The Commission recognises that there is a public interest in the disclosure of information relating to BetIndex, however, there is a greater argument in favour of safeguarding the communications between clients and their legal advisors to ensure access to full and frank legal advice. The advice provided is the opinion of a legally qualified individual and is not a definitive statement in law.
Disclosure of this information would infringe on the rights of Commission staff to gain legal advice on matters which ultimately could impact on consumers.
On balance, we consider that the public interest is better served by withholding the information ensuring that the provision of legal advice is safeguarded.
Finally, you have requested that if full disclosure is not possible, to provide a redacted or summarised account of the legal reasoning. It should be noted that the FOIA gives individuals the right to request only recorded information held by public authorities, such as the Gambling Commission. It does not provide an avenue for individuals to gain views or opinions of public authorities or information not held at the time the request is made. The FOIA also does not require public authorities to create new information in order to answer a request.
Review of the decision
If you are unhappy with the service you have received in relation to your Freedom of Information request you are entitled to an internal review of our decision. You should write to FOI Team, Gambling Commission, 4th floor, Victoria Square House, Victoria Square, Birmingham, B2 4BP or by reply to this email.
Please note, internal review requests should be made within 40 working days of the initial response. Requests made outside this timeframe will not be processed.
If you are not content with the outcome of our review, you may then apply directly to the Information Commissioner (ICO) for a decision. Generally, the ICO cannot make a decision unless you have already exhausted the review procedure provided by the Gambling Commission.
It should be noted that if you wish to raise a complaint with the ICO about the Commission’s handling of your request for information, then you are required to do so within six weeks of receiving your final response or last substantive contact with us.
The ICO can be contacted at: The Information Commissioner’s Office (opens in new tab), Wycliffe House, Water Lane, Wilmslow, Cheshire SK9 5AF.
Information Management Team
Gambling Commission