Latest Legal and Regulatory news update - 21st February 2020

Latest Legal and Regulatory news update - 21st February 2020

In this issue:



Risk & Compliance



Retained EU law―a practical guide

Retained EU law is a legal term introduced into UK law under the European Union (Withdrawal) Act 2018. It captures EU-derived rights and legislation the government intends to retain and preserve in UK law for legal continuity once the transitional arrangements under the Withdrawal Agreement come to an end. There is no specific list of retained EU law for lawyers to refer to—it is a matter of statutory interpretation. In this revisited analysis, Kieran Laird, partner and head of constitutional affairs at Gowling WLG, examines its meaning, scope and status, and provides essential tips for navigating and interpreting retained EU law. See News Analysis: Retained EU law―a practical guide.


Brexit negotiations

BusinessEurope, the continent’s federation of business associations, has called on the UK and the EU to ‘find pragmatic solutions that prevent a cliff edge by the end of 2020’ if the negotiations over the future relationship do not move quickly enough. See News Analysis: BusinessEurope warns against Brexit ‘cliff-edge’ in negotiation wish list.


EU Court of Justice post-Brexit

Sylvia de Mars, senior researcher in international affairs and defence at the House of Commons Library, explains what role the Court of Justice of the European Union will play in the UK during the post-Brexit transition period and beyond. See News Analysis: Brexit next steps: The Court of Justice of the European Union and the UK.


Import controls post-Brexit

Michael Gove has confirmed plans which will introduce import controls on EU goods at the border between GB and the EU, following the end of the transition period on 31 December 2020. The plans mean that customs declarations will have to be submitted and goods’ checks will be enforced. Businesses have until 31 January 2021 to apply for customs support funding. See: LNB News 11/02/2020 9.


Data protection post-Brexit

MLex: Baroness Neville-Rolfe, who sits on the EU Committee in the House of Lords, has said that UK data-protection rules could be tweaked after Brexit if the government sees benefits and there is no impact on a data-transfer deal with the EU. On 3 February 2020, the Conservative-led UK government sent mixed signals over its intent for data protection as it launched its Brexit negotiations stance. See News Analysis: UK may tweak privacy rules if EU data-transfer deal isn’t affected, UK parliamentarian says.


Aspire event, 4th March 2020

LexisNexis works hard to make the law as accessible as possible for all lawyers, regardless of their career stage. Join us at our next Aspire event on 4 March 2020 to hear from some fantastic speakers who will be discussing how the BBC’s 5050 Project is driving forward gender equality in news and what’s on the horizon in 2020 from an employment law perspective. There will also be a panel discussion on this year’s International Women's Day theme, ‘Each for Equal’. To find out more and to register for this event click here.


Risk & Compliance
Anti-bribery & corruption

Southwark Crown Court has approved a deferred prosecution agreement (DPA) requiring the respondent aircraft manufacturer (Airbus SE) to pay a total financial sanction of €983,974,311 to the applicant Serious Fraud Office (SFO) after it was charged with five counts under section 7 of the Bribery Act 2010 (BA 2010) of failing to prevent persons associated with it from bribing third parties in order to secure the purchase of its aircraft. The court found that entering into the DPA would be in the interests of justice and its proposed terms were fair, reasonable and proportionate. Pam Shearing, solicitor and director at Fulcrum Chambers Ltd, Farheen Ishtiaq, solicitor, and Emily Lewis, solicitor, examine the judgment and the DPA. See News Analysis: Court approves €1bn DPA in Airbus bribery case (SFO v Airbus SE).

Prosecutors received a boost in their fight against corruption after the first use of new powers to target suspected criminal assets survived a concerted legal challenge. The Court of Appeal held that the National Crime Agency (NCA) had legally targeted the high-spending wife of an Azeri banker using powers introduced in 2018 to crack down on the flow of suspected dirty money to the UK. See News Analysis: UWO appeal ruling gives boost to UK's new anti-fraud law.


Data protection

Europe's formidable new data protection laws have created challenges for companies facing demands for employee communications as part of fraud investigations, leaving lawyers to balance the risk of privacy fines against the potential ire of government enforcers. See News Analysis: EU data privacy laws pose disclosure risks in fraud probes.


Consumer protection

The Department for Digital, Culture, Media & Sport and Home Office have released a joint initial consultation response to the Online Harms White Paper. In the initial response, the departments confirm that Ofcom is to be appointed as regulator due to its ‘organisational experience, robustness, and experience of delivering challenging, high-profile remits across a range of sectors’. In addition, they note that current analyses suggest the proposed regulatory framework will only apply to approximately 5% of UK businesses. See: LNB News 12/02/2020 28.


Agency & distribution

In Filatona Trading Ltd v Navigator Equities, the Court of Appeal addressed the interesting question of when it might be possible to exclude the right of a disclosed principal from enforcing and/or relying on the terms of a contract which does not expressly exclude such a principal from its remedies. The court considered the rare circumstances in which that might be a possibility, as there is a strong presumption against finding that a disclosed but unnamed principal has given up their contractual remedies. Written by Adam Heppinstall, barrister, Henderson Chambers. See News Analysis: Contractual rights of disclosed principals (Filatona Trading Ltd v Navigator Equities Ltd).



What are the current trends in the UK public mergers and acquisitions market? This Market Tracker trend report includes in-depth analysis of the 66 firm offers and 45 possible offers announced in 2019 and provides insight into what to expect to see in 2020 and beyond. See News Analysis: Market Tracker trend report—trends in UK public M&A deals in 2019.


Corporate governance

Business Secretary Andrea Leadsom has called for higher female representation in key executive and director roles within FTSE 100 companies. This is despite the Hampton-Alexander Review revealing that a third of all board positions in these companies are now held by women and that its target has therefore been met almost a year early. However, the government believes there is more work to be done, with only 15% of FTSE 100 finance directors being female. In addition, the FTSE 250 is yet to meet its 33% target, with female representation currently standing at 29.5%. See: LNB News 10/02/2020 60.



The Investment Association has published a report outlining its members’ priorities for 2020 and has highlighted climate change, audit quality, stakeholder engagement and diversity as being areas of focus for 2020. See News Analysis: Analysing the Investment Association’s report on shareholder priorities for 2020.


Information Law & TMT
Data protection

The Data Protection Intelligence Group has begun work on a guide to the negotiation of data protection provisions in commercial agreements between controllers and processors. The first sections of the new guide are now available. See News Analysis: Data Protection Intelligence Group begins work on GDPR negotiation guide.

The Financial Conduct Authority (FCA), the Information Commissioner’s Office (ICO) and the Financial Services Compensation Scheme (FSCS), have issued a joint warning to FCA-authorised firms and insolvency practitioners to be responsible when dealing with personal data. It follows reports that some have attempted to sell clients’ personal data to claims management companies unlawfully. See: LNB News 07/02/2020 22.



MLex: Deutsche Telekom, Orange, Vodafone and other telecoms and Internet platforms will face a revised, slimmed-down draft of EU rules in the coming weeks aimed at protecting privacy and security over communication networks. See News Analysis: Telecoms and big tech face revised, slimmed-down EU draft ePrivacy regulation.



The European Parliament (EP) has issued some warnings on the threats that artificial intelligence (AI) can pose for consumers. Learning algorithms used to process data have been found to affect automated decision-making (ADM) processes negatively, as their reliance on ‘pattern recognition’ has led to a bias against certain types of consumers. Concerns have been raised about the potential lack of human oversight when using said systems in the fields of finance, healthcare, education, and the legal system among others. See: LNB News 10/02/2020 25.

The EP has approved a resolution calling for a stronger set of safety and liability rules in the context of artificial intelligence AI and ADM technologies. Current safety and liability rules would need to be adjusted to the technologies, ensuring that consumers are informed about how to use the product and be protected from harm, and manufacturers should have clarity on their obligations. The EP called for a risk-assessment scheme for AI and ADM, and said that ultimately, humans should be held responsible for, and be able to overrule, the decisions of these technologies. See: LNB News 12/02/2020 40.


Employment & pensions

The Advisory, Conciliation and Arbitration Service (Acas) has published new guidance on the general use of non-disclosure agreements (NDAs) in the workplace. Acas emphasised that employers should be careful when using NDAs, making it clear that NDAs should not be used to prevent an individual from reporting discrimination or sexual harassment, as well as whistleblowing. Acas advises that, where an employer thinks it appropriate to use an NDA, the employer should make it clear why an NDA is used, ensure the worker is given reasonable time to consider it and ensure NDAs are never used routinely or as a way to cover up an issue. A worker should be able to seek advice before signing an NDA. See: LNB News 10/02/2020 47.



The question of whether a later disclosure of information may be aggregated with an earlier disclosure in order to form a disclosure that is a protected disclosure for whistleblowing purposes was considered by the EAT in Robinson v Al Qasimi (UKEAT/0106/19/RN, UKEAT/0107/19/RN, UKEAT/0136/19/RN). See News Analysis: Later disclosure may be protected if it incorporates an earlier disclosure (Robinson v Al Qasimi).



The government has published its response to submissions made for the consultation on salaried hours workers and salary sacrifice schemes. As a result, the government will make three substantive changes to National Minimum Wage (NMW) rules while maintaining existing worker protections. See: LNB News 12/02/2020 32 and LNB News 12/02/2020 5.



HM Revenue & Customs (HMRC) has announced that it is to give more time for businesses to prepare for changes to the operation of the off-payroll working rules, which will now only apply to payments made for services provided on or after 6 April 2020. The announcement comes as HMRC prepares to publish a review into the implementation of changes to the off-payroll working rules, which is due to be released in February 2020. During the review, many businesses expressed concerns over what payments the rules will apply to and from when. As a result of these concerns, the government decided to give businesses more time to prepare in order to give them certainty and ensure a smooth implementation of the reforms. As drafted, the rules would have applied to any payments made on or after 6 April 2020, regardless of when the services were carried out. See: LNB News 07/02/2020 83.

Constantine Christofi, associate solicitor at RPC, analyses the recently published draft secondary legislation, which forms part of the package of measures that will implement changes to the off-payroll IR35 rules from 6 April 2020, and considers what actions engagers of contractors should take before the new rules are in place. See News Analysis: Examining the off-payroll IR35 rules’ draft PAYE debt transfer provisions.


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