I've been handed 12 months of emails between the BHA and the Gambling Commission - and they paint a sorry picture of what racing is up against

The BHA continues to be frustrated in its perfectly reasonable efforts to achieve some much-needed transparency from the Gambling Commission. I, on the other hand, have been more fortunate.

As was reported in last week's column, in April British racing's governing body and regulator took the remarkable step of issuing a Freedom of Information submission against another regulator. 

On June 1, the Gambling Commission replied to the BHA's request to see correspondence between the Gambling Commission, the Department for Culture, Media and Sport and NatCen, the research group that assessed evidence gathered in the affordability checks pilot. In that response, the Gambling Commission refused to release the material and claimed the BHA's inquiry had been "vexatious". Quite how it was vexatious is hard to fathom but in recent days exactly the same word has been used by the Gambling Commission to once again block the BHA.

On the Thursday of Royal Ascot I lodged my own FOI request, asking to see correspondence "relating to financial risk assessments (or anything else by which they may now or previously have been known) between the Gambling Commission and the British Horseracing Authority over the course of the last 12 months". Fortunately, this was not deemed to be vexatious.

What quickly becomes apparent is that for the two-month period prior to the Gambling Commission formally approving affordability checks – or financial risk assessments as it prefers to call them – it failed to reply to BHA emails. Prior to that, the two most interesting emails in the FOI bundle are the ones sent by acting BHA chair David Jones to his Gambling Commission counterpart Charles Counsell and the reply that was eventually sent, not by Counsell, but his acting chief executive Sarah Gardner.

Acting BHA chair David Jones wrote to his Gambling Commission counterpart Charles Counsell on April 28

In the opening paragraph of his email, sent on April 28, Jones stressed the BHA's "serious concerns about the Gambling Commission’s handling of the financial risk assessment pilot". He went on to claim that racing's position "has been mischaracterised to suit the Commission’s aims" and lamented the fact DCMS had given the Gambling Commission final say on whether or not to approve affordability checks without any notice being provided.  

As well as laying out the many reasons why affordability checks are a bad idea, and his belief that the desire to implement them was being fuelled by "an ideological will", Jones told Counsell he understood that stakeholders were now being expected to accept the regulator giving the green light to checks without it first releasing the research and evidence on which that decision would be made.

Jones stated: "I am also writing to make a clear request that your Board pauses any decision-making process on financial risk assessments until all relevant stakeholders have received the materials – such as the Stage 3 report and NatCen evaluation – upon which you are being asked to make your decision." He then added: "We insist that no decision-making process should take place until this documentation has been put into the public domain."

Inexplicably, the documentation remains outside the public domain. So, too, does Counsell's thinking, for aside from a short holding reply, he did not show his fellow chair the courtesy of answering his questions. Instead, it was Gardner who penned the frosty reply that arrived three weeks after Jones had raised pressing questions.

After noting what she alleged to be "continued misrepresentation or misunderstanding of important aspects of the current proposals", she accepted that "there may be legitimate commercial and other concerns in respect of the proposals". 

Towards the end of her email, Gardner wrote: "It is, however, disappointing to read a fellow regulatory authority suggest that my team are driven by 'ideological will' . . . Whether you agree or not with individual decisions . . . is a matter for you. However, such representations can be made without resorting to baseless assertions about my team who continue to work diligently on this complex issue."

Nowhere in the email, which ended with Gardner thanking Jones for "sharing your views and insight", did she respond to his request to see the pilot evidence. Astonishingly – but unsurprisingly given the Gambling Commission's track record – his question was completely ignored.

Elsewhere in the bundle, it is apparent that the Gambling Commission shows no regard for racing's case that the punters most likely to be impacted by checks are the sport's biggest-spending and most engaged customers. Bizarrely, the Gambling Commission also seemed to allege that falling betting turnover on racing might be attributable to "structural" issues between racing and betting, with a Gambling Commission employee questioning what data was being used "to cite so-called 'affordability checks' as the main reason for reduced betting turnover on non-premier fixtures".

On the questions front, here are a few more.

Acting Gambling Commission chief executive Sarah Gardner failed to answer key points in a letter sent by BHA acting chair David Jones

Is it acceptable for a government-appointed regulator to ignore the emails of another regulator for a period of two months, moreover doing so at a time of critical importance to the organisation being ignored?

Is it acceptable for a government-appointed regulator to avoid transparency by twice dismissing the BHA's eminently reasonable freedom of information request as "vexatious"?

Is it acceptable for the chair of a government-appointed regulator, the person responsible for leading a board making critical decisions, to fail to respond personally to questions asked by the BHA's chair?

Is it acceptable for a government-appointed regulator to answer a BHA email while completely ignoring the BHA's request to see hugely important pilot evidence that should have been considered when the decision to proceed with affordability checks was taken?

Quite obviously, none of those things is acceptable. For that reason, it is encouraging that the House of Commons' Culture, Media and Sport Committee has written to the Gambling Commission and asked a number of questions of its own, including one similar to the question posed by the BHA about the still unpublished evidence on which the affordability checks decision was made. On this occasion, it may be harder for the Gambling Commission to conveniently ignore the inquiry.

Affordability checks are deeply flawed. So, too, is the regulator responsible for their existence. That much will surely become obvious when parliament and others further scrutinise the Gambling Commission.

Racing Post+ Ultimate subscribers can read more pieces from Lee Mottershead here:

'The Derby is now under threat - and anyone who doesn't think Ballydoyle's domination is a problem is being deliberately obtuse or naive' 

'It's a disaster. They don't deserve it' - sympathy expressed from the Hill and winner's enclosure as Derby day proves a washout 

The amazing story of Frankel's one failure - and how he bounced back to prove the experts wrong

'Perception doesn't bother me - I don't care what people think. If you don't like it, you don't like it - I've not done anything wrong'

'I enjoy making money and it's so easy to do, all you need is a brain' - the gospel according to Saint Mick

'I go to parties because people invite me but I'm happier here - if I never saw another person, it wouldn't bother me'

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