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Welcome to this week’s edition of the In-house highlights, a curated summary of news analysis and new content from across the legal landscape.
In this issue:
Risk & Compliance
Information Law & TMT
Additional news—daily and weekly news alerts
New and updated content
Prorogation of Parliament
In R (on the application of Miller) (Appellant) v The Prime Minister (Respondent) Cherry and others (Respondents) v Advocate General for Scotland (Appellant) (Scotland)  UKSC 41, the Supreme Court concluded that the question of the lawfulness of the Prime Minister’s advice to Her Majesty the Queen to prorogue Parliament was justiciable, and in this case the decision to advise the Queen to prorogue Parliament was unlawful as it had the effect of frustrating/preventing Parliament’s ability to carry out its constitutional functions without reasonable justification. On this basis the prorogation was void and of no effect. Parliament has therefore not been prorogued. Nick Wrightson, senior associate in the Public Law team at Kingsley Napley, and Kieran Laird, partner and head of constitutional affairs in the Gowling WLG Brexit Unit give their analysis of the Supreme Court’s decision, highlighting key legal and constitutional implications. See: LNB News 24/09/2019 21.
The Chartered Institute of Personnel and Development (CIPD) has urged the government to increase the flexibility and user-friendliness of future immigration policies, as new research shows many employers are not prepared for EU worker restrictions. The CIPD has published a report in which it highlights a lack of awareness of government proposals among most employers, amplified by a lack of planning and the ongoing political uncertainty. The CIPD is urging the government to implement a two-year visa system for unskilled workers and lower the £30,000 minimum salary threshold for jobs on the shortage occupation list. See: LNB News 20/09/2019 19.
HMRC has published new guidance on what do if an EU business not established in the UK wishes to trade with the UK after Brexit. See: LNB News 23/09/2019 43.
The Department for Transport has published new guidance on the process flow for freight roll-on, roll-off (RORO) imports and exports between the UK and the EU to help stakeholders prepare for the UK leaving the EU without a deal in place. See: LNB News 23/09/2019 70.
The government has published new guidance summarising the driver, vehicle, cargo and customs documents required to transport goods into the EU, to help hauliers and commercial drivers prepare for the UK leaving the EU without a deal in place. See: LNB News 23/09/2019 66.
Design & trade mark law
The Intellectual Property Office has updated the guidance on the prospective changes to design and trade mark law, to help stakeholders prepare for the UK leaving the EU without a deal in place. See: LNB News 20/09/2019 89.
LexisNexis Aspire event—Wednesday, 2 October 2019
Join like-minded peers at the early stages of their in-house legal careers at our Aspire event. This unique event gives you the chance to engage with senior counsel and hear their professional experiences during an interactive panel session. Through our networking session, you will get to meet, connect and build relationships with other in-house lawyers at the start of their career. Register here.
LexisNexis Flying Solo Forum—Tuesday, 15 October 2019
Working solo or part of a small team? Join our unique event to network with peers and debate how to influence your CEO, how to grow yourself and your team and get up to speed on the latest news, trends and regulation. Register here.
AML & CTF
The Joint Money Laundering Steering Group (JMLSG) has received Treasury ministerial approval of its sectoral guidance material on Sector 4 (Credit unions), Sector 12 (Asset finance) and Sector 20 (Brokerage services to funds). The sectoral guidance makes up Part II of the JMLSG guidance for the UK financial sector, ‘Prevention of money laundering/combating terrorist financing’. See: LNB News 25/09/2019 49.
Members of the European Parliament have adopted a resolution calling for proper implementation of anti-money laundering (AML) rules, including better co-operation between the administrative, judicial and law enforcement authorities within the EU. MEPs stressed that the date of transposition of the fourth AML directive (MLD4) was June 2017 and MLD5 is January 2020 and urged Member States to implement the rules into national law. See: LNB News 19/09/2019 84.
Christina Gill, associate at Walker Morris, considers the Law Commission’s recent statement concluding that electronic signatures (e-signatures) are valid. See News Analysis: The validity of electronic signatures and implications of its legality.
Emily Betts, barrister and Amy Held, researcher (Commercial Dispute Resolution), at Hardwicke Chambers, consider KMG International NV (a company incorporated under the laws of the Netherlands) v Chen  EWHC 2389 (Comm). This case concerned an application for strike out/summary judgment which turned on pure points of law. Of these, this analysis considers the issue of whether the English rule barring recovery of damages for reflective loss (the reflective loss rule) is one of procedural or substantive law, both for the purposes of Regulation (EC) 864/2007, Rome II and under the common law. See News Analysis: Applicable law–Rome II and reflective loss (KMG International NV (a company incorporated under the laws of the Netherlands) v Chen.
The Financial Reporting Council (FRC) has published a FRC Lab project report on company disclosures relating to the sources, uses (and proposed uses) of cash. The FRC considered how companies can answer questions from investors on this issue outside of the core disclosure in this area: the cash flow statement. In the report, the FRC provides practical guidance for companies wishing to give more information and context to their investors in relation to cash disclosures. See LNB News 25/09/2019 56.
ICSA: The Governance Institute has announced that it changed its name to The Chartered Governance Institute on 16 September 2019, to mirror the change in name of the international professional body of which it is a division. See: LNB News 20/09/2019 81.
Restructuring & insolvency
Thomas Cook Group plc is the third large company to be wound up by the courts in 18 months, following British Steel and Carillion in 2018. Professor Andrew Keay, barrister at Kings Chambers, 9 Stone Buildings and Lincoln’s Inn and Professor of Corporate and Commercial Law at the University of Leeds, discusses why it entered liquidation rather than administration and how it will impact employees and customers of Thomas Cook. See Thomas Cook collapse—is court-ordered liquidation the new administration? and LNB News 23/09/2019 61.
The Department for Digital, Culture, Media & Sport (DCMS) is to undertake a new survey on the costs and impacts of cyber breaches and attacks on organisations. The survey, which will be called ‘Cyber Security Breaches Survey 2020’, is directed at UK businesses, charities and educational institutions and the DCMS intends to find out how these organisations approach cybersecurity and the cyberthreats that they face. See LNB News: 25/09/2019 65.
The Court of Justice in GC and others v Commission nationale de l’informatique et des libertés (CNIL), C-136/17, has ruled on various matters relating to the actions internet search engine operators (such as Google) are required to take when considering requests to remove links to information in search results under Directive 95/46/EC (Data Protection Directive) or under the General Data Protection Regulation (GDPR). Among other things, the judgment confirms that prohibitions on processing certain categories of sensitive personal data apply to operators of search engines and that a balance must be struck between the fundamental rights of the person requesting the links be removed and those of internet users potentially interested in that information. See News Analysis: Court of Justice rules on treatment of special category and offence data in de-referencing requests (GC and others v Commission nationale de l’informatique et des libertés (CNIL)).
The Court of Justice in Google LLC v Commission nationale de l’informatique et des libertés (CNIL), C‑507/17, has ruled on the territorial scope of the ‘right to be forgotten’ under Directive 95/46/EC (Data Protection Directive) and equivalent rights under Article 17 of the GDPR. In summary, the court clarified that those rights require de-referencing of search results at EU (as opposed to national or worldwide) level. However, the search operator may also be required to take measures to discourage searches by users in the EU that may link to the de-referenced material. See News Analysis: Court of Justice rules on territorial scope of ‘right to be forgotten’ (Google LLC v Commission nationale de l’informatique et des libertés (CNIL)).
Jo Joyce, senior associate in the Commercial technology and data group at Taylor Wessing, looks at some of the potential compliance issues for businesses around the ICO’s draft Age Appropriate Design Code. See News Analysis: The UK ICO's draft Age Appropriate Design Code.
The Phone-paid Services Authority has published new guidance on the retention of data, focusing on the handling and retention of consumer data. The publication follows a consultation which looked at how the GDPR would impact the industry. See: LNB News 20/09/2019 28.
The Government Equalities Office has revealed that a new Board of senior industry professionals, backed by the government, is to meet for the first time to discuss how business leaders can ‘act as change agents to promote diversity and inclusion in business’, and achieve ‘greater equality and opportunity at the top of companies’. See: LNB News 25/09/2019 60.
Vegetarianism is not a philosophical belief because it is not about human life and behaviour and lacks sufficient cogency and cohesion. It is therefore not a protected characteristic under the Equality Act 2010 (EqA 2010), according to the Norwich Employment Tribunal in Conisbee v Crossley Farms (3335357/2018). See News Analysis: Employment tribunal holds that vegetarianism is not a protected characteristic (Conisbee v Crossley Farms).
Whether unwanted physical contact that the claimant had been subjected to by his female team leader, namely massaging his shoulders on two or three occasions in the open plan office where he worked, amounted to harassment under EqA 2010, s 26 was considered by the EAT in Raj v Capita Business Services Ltd (UKEAT/0074/19/LA). See Case Digest:  All ER (D) 182 (Jun).
This document contains the highlights from the past week’s news. To receive all our news stories, whether on a daily or a weekly basis, amend your personal settings within your ‘News’ tab on the homepage by clicking on either ‘Email’ or ‘RSS’ (depending on how you prefer to receive them) on the right hand side of the blue banner.
New and updated content—Risk & Compliance
Updated Practice Note:
New and updated content—Commercial
Updated Practice Notes:
—Contract interpretation—terms implied by law
—Contract interpretation—the guiding principles
—Novation—why and how to novate a contract
—Termination for breach of contract
—Transferring and licensing copyright—commercial issues
—Prize promotion terms and conditions
—Indemnity clause—commercial contracts
New and updated content—Information Law & TMT
Please follow us on Twitter at @inhouse_leaders. You can also keep updated by reading our blog, including our monthly video news. If you need an overview of the materials in the in-house module, see: In-house—introduction to our materials.
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