Latest Legal and Regulatory news update - 20 December 2019

Latest Legal and Regulatory news update - 20 December 2019

In our final bi-weekly highlight for 2019 we cover the Queen's speech, Brexit, Advertising, employment, crime prevention and more!

We wish you an enjoyable festive period and a happy new year! 

 

Queen’s Speech 2019

The State Opening of Parliament and Queen’s Speech marks the formal commencement of the new parliamentary year and is a chance for the newly formed government to set out its revised policy agenda following the 2019 general election. See: Queen’s Speech December 2019.

See: LNB News 19/12/2019 23.

 

Brexit
Withdrawal Agreement

The UK general election on 12 December 2019 returned a significant win for the Conservative Party. The primary objective of calling the early general election was to break the parliamentary deadlock on Brexit, which the government’s new majority is certain to achieve, at least in the short term. This majority should enable the Prime Minister to get the Withdrawal Agreement ratified and achieve the UK’s withdrawal from the EU by deadline of 31 January 2020, but what happens next? See News Analysis: Brexit Bulletin—what does the general election result mean for Brexit?

 

Brexit negotiations

The Institute for Government has published a report that sets out the conclusions and learnings from the first round of Brexit negotiations. The report, authored by Raoul Ruparel, aims to provide advice to Boris Johnson as the next phase of Brexit negotiations begin. Ruparel set out five key lessons for Johnson, including having a clear view on the structure of the negotiations and getting on the front foot ahead of EU negotiators. Richard Eccles, partner at Bird and Bird, commented that ‘key issues must still be negotiated even under the Withdrawal Agreement’. See: LNB News 16/12/2019 37.

 

Risk & Compliance
Data protection

UK Finance has published a blog on the Information Commissioner’s proposals to extend its enforcement powers, including allowing it to recover profits from the criminal misuse of data under the Proceeds of Crime Act 2002. The authors note that such an extension is likely to be of interest to organisations that hold large volumes of data, such as banks, and is a further example of wider trends of regulators extending their enforcement powers, using dual-track criminal and regulatory investigations, and seeking parallel redress from individuals and corporates. See: LNB News 12/12/2019 72.

How does Article 71 of the draft agreement on the withdrawal of the UK from the EU (Withdrawal Agreement) ensure the personal data of non-UK data subjects is processed in the UK in accordance with EU law? Eleonor Duhs, director and barrister at Fieldfisher, considers the implications of the provisions in Article 71 for UK controllers. See News Analysis: Implications of Article 71 of the draft EU-UK Withdrawal Agreement for data protection practitioners.

Crime prevention

Two former Serco directors have been charged with fraud and false accounting which took place between 2011 and 2013. The charges followed scrutiny by the Serious Fraud Office of a contract between Serco and the Ministry of Justice. See: LNB News 17/12/2019 70.

Sanctions & export controls

Regulation of economic sanctions in the US continued at a breakneck pace this year, with new rules targeting Venezuela, Cuba, Turkey and Iran, expanded guidance from the Office of Foreign Assets Control (OFAC), and one of the most active enforcement years on record, say attorneys at Ropes & Gray. OFAC also flexed its enforcement muscle, imposing nearly US$1.3bn in monetary penalties, while laying the groundwork for further, aggressive enforcement of sanctions violations committed by non-US subsidiaries, affiliates and portfolio companies. See News Analysis: US strengthened and expanded economic sanctions in 2019.

Principal deputy assistant attorney general at the US Department of Justice, David Burns, has announced new export controls and sanctions enforcement policy for business organisations. The policy revises the 2016 voluntary self-disclosure policy for US sanctions and export control breaches. Under the revised policy, the default position will be a non-prosecution agreement where a company voluntarily self-discloses export control or sanctions violations, fully co-operates and makes timely and appropriate remediation. See: LNB News 16/12/2019 46.

Commercial
Advertising

The Competition and Markets Authority (CMA) has published an update on its online platforms and digital advertising market study, finding that in 2018, Google accounted for more than 90% of all revenues earned from search advertising in the UK and Facebook accounted for almost half of all display advertising revenues in the UK. Although these platforms have brought innovative products and services to the market, the CMA is concerned their position may result in a lack of real competition, meaning lack of proper choice for users, higher prices for advertisers (with associated cost rises for goods and services such as flights and insurance bought online) and the undermining of the ability of newspapers and other publishers to produce valuable content as large platforms squeeze revenue shares. Potential interventions considered by the CMA include opening up the search market and requiring platforms to allow people to turn off personalised advertising. At this stage, the CMA believes there is a strong argument for a new regulatory regime to include rules governing the behaviour of online platforms and giving people greater control over their own data. See: LNB News 18/12/2019 25.

 

Competition & procurement regimes

The UK’s competition, procurement, State aid and digital regulations are in line for revision, following the Conservative Party’s victory in the general election. See News Analysis: UK’s competition, procurement regimes in crosshairs after Tory victory.

Corporate
Audit

The Financial Reporting Council (FRC) has made major changes to its Ethical Standard and Auditing Standard in order to encourage auditor independence, stop conflicts of interest and increase investor protection. The changes are a result of the FRC’s post implementation review. See LNB News 17/12/2019 61.

The FRC has announced its corporate reporting and audit quality review programme for 2020–2021. The FRC’s Corporate Reporting Review team will supplement its routine reviews of corporate reporting with four thematic reviews. These reviews will identify scope for improvement, as well areas of better practices in a number of areas of stakeholder interest. The FRC Audit Quality Review team has also signalled its areas of focus for audit monitoring. See: LNB News 13/12/2019 62.

Directors & company secretaries

This case, [2019] EWHC 3318 (Ch), is the first reported case of an application for permission to act as a director in circumstances where the individual had provided a director disqualification undertaking to the CMA. The court granted permission for the applicants to continue to act as directors of, and be involved in the management of, certain companies within the Fourfront Group. The applicants offered disqualification undertakings following an investigation by the CMA which found breaches of competition law within the group. The CMA is increasingly flexing its muscles in this area, with nine of the 12 competition disqualifications that have been obtained by the CMA having been secured in the last year. Written by Christopher Buckley, barrister at Radcliffe Chambers, who appeared for the claimants. See News Analysis: Competition disqualification—first application for permission to act following disqualification (Re Fourfront Group Ltd and others) and case digest [2019] All ER (D) 74 (Dec).

Information Law & TMT
Data protection

The EDPB has published its opinion on the UK data protection supervisory authority (UK SA) draft accreditation requirements for a code of conduct monitoring body, pursuant to article 41 of the GDPR. The EDPB states the draft accreditation requirements of the UK SA ‘may lead to an inconsistent application of the accreditation of monitoring bodies’ and recommends several changes. See: LNB News 13/12/2019 74.

The EDPB has published its adopted draft guidelines on the criteria of the right to be forgotten in the search engine cases under the GDPR for public consultation. The guidelines provide an interpretation of Article 17 of the GDPR with regard to the grounds and exceptions for delisting requests directed to search engine providers and are an update of 2014 guidelines issued by the Article 29 Working Party. These guidelines will ultimately be complemented by another set of guidelines on the criteria for handling complaints for refusals of delisting. See: LNB News 12/12/2019 23.

The final text of the Danish standard contractual clauses, as adopted by the Danish supervisory authority, has been published in the EDPB’s Register for Decisions taken by supervisory authorities and courts on issues handled in the consistency mechanism. See: LNB News 12/12/2019 17.

Reputation management

In Triaster Ltd v Dun & Bradstreet Ltd, [2019] EWHC 3433 (QB), the High Court has issued a preliminary ruling regarding the meaning of words contained in a credit report and whether these are defamatory at common law. The court held that the majority of the words complained of were factual and that an inferential statement arising out of the facts therein was opinion. The argument that the wording meant that the claimant’s creditworthiness was ‘poor’ was specifically rejected. See News Analysis: Words in credit report held to be not defamatory at common law (Triaster Ltd v Dun & Bradstreet Ltd).

Employment
Prohibited conduct

In the case of Sethi v Elements Personnel Services Ltd (Case no 2300234/2018), the respondent recruitment agency recruited staff to five-star hotels in London and adopted a no-beard policy. Mr Sethi, a Sikh, refused to shave his beard for religious reasons. Mr Sethi successfully argued that the no-beard policy amounted to indirect discrimination (section 19 of the Equality Act 2010). Mukhtiar Singh, barrister at Garden Court Chambers and counsel for Mr Sethi, explains the decision and its implications. See News Analysis: Recruitment agency’s ‘no-beard’ policy indirectly discriminated against Sikhs (Sethi v Elements Personnel Services Ltd).

Workplace pensions

A recruitment agency and its managing director have been ordered to pay £10,890 for avoiding their automatic enrolment duties and misleading The Pensions Regulator (TPR) by falsely claiming staff had been put into a workplace pension. See: LNB News 17/12/2019 59.

Immigration

Following recommendations from the Migration Advisory Committee, the government has expanded the Shortage Occupation List. Laurence Keir-Thomas, senior associate at Fragomen, explains the changes and identifies which industries these changes are most likely to benefit. See News Analysis: Expansion of Shortage Occupation List—good news for employers.

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About the author:
Allison is a former partner of Shoosmiths, with extensive experience of legal management and practice compliance.