Latest legal and regulatory news update - 25 October 2019

Latest legal and regulatory news update - 25 October 2019

Our second October update includes the Brexit transition period, a risk & compliance forecast on economic crime and slavery and human trafficking, as well as the latest on corporate regulations and reporting. 

In this issue:

  • Brexit
  • Risk & Compliance
  • Commercial
  • Corporate
  • Information Law & TMT
  • Employment

Brexit

Brexit transition period

Graeme Cowie, Senior Library Clerk (Constitutional Law) at the House of Commons Library, explains how the European Union (Withdrawal Agreement) Bill (EU(WA)B) proposes to change domestic law to ensure that the transition period is honoured by the UK. It also explains what role Parliament would be given if the UK, for whatever reason, wished to extend that transition period beyond 2020. See News Analysis: Withdrawal Agreement Bill: Implementing the transition period.

TheCityUK’s CEO, Miles Celic, has called on the government to ensure a transition period and avoid a no-deal Brexit. Celic said the ‘central issue for our industry remains avoiding a no-deal Brexit. The interests of customers and communities across the UK and the EU will be best served by the delivery of a transition period and the rapid negotiation of a close future economic relationship.’ See: LNB News 21/10/2019 27.


Proxy Advisors Regulations and the Official Listing Regulations

The Cross-Border Distribution of Funds, Proxy Advisors, Prospectus and Gibraltar (Amendment) (EU Exit) Regulations 2019, SI 2019/1370 (Amending Regulations) were made on 22 October 2019 and come into force partly immediately before exit day and fully on exit day. This analysis considers the aspects of the Amending Regulations of most interest to corporate lawyers. See News Analysis: Brexit-related amendments to the Proxy Advisors Regulations and the Official Listing Regulations.

Immigration system

Details on the government’s post-Brexit immigration system have been published by the House of Commons Library. The report examines the government's current proposals for the future immigration system, which is intended to be implemented from 1 January 2021—such as ending free movement of EEA citizens into the UK, visa arrangements and a proposed transition period—although many of the details remain unknown. See: LNB News 18/10/2019 60.

UK digital service providers

The government has published guidance on what UK digital service providers operating in the EU should do after Brexit, to help stakeholders prepare for the UK leaving the EU without a deal in place. See: LNB News 18/10/2019 10.

Intellectual property

The Intellectual Property Office (IPO) has released numerous new Brexit guidelines on a range of subjects including changes to unregistered designs, copyright clearing for satellite broadcasting and collective rights management. See: LNB News 18/10/2019 61.

eCommerce Directive

The Department for Digital, Culture, Media & Sport has published new guidance on the eCommerce Directive to help stakeholders prepare for the UK leaving the EU without a deal in place. See: LNB News 17/10/2019 23.

Risk & Compliance

Risk & Compliance forecast

Our new Risk & Compliance forecast (as at 22 October 2019) is now live. This month, we report on issues including (1) AML and CTF; (2) regulation of legal services; (3) whistleblowing; and (4) data protection. You can rest assured we're tracking forthcoming regulatory changes so you can plan ahead. See: Risk & Compliance forecast as at 22 October 2019.

Economic crime

HM Treasury has confirmed that the public-private working group on information-sharing for economic crime purposes has begun its review and a steering group has been assembled. The group is made up of public and cross-sectoral private sector representatives, from the Home Office, HM Treasury (HMT), the National Economic Crime Centre, UK Finance, the Information Commissioner's Office, the Legal Sector Affinity Group, and the Accountancy Affinity Group. See: LNB News 23/10/2019 47.

The Financial Action Task Force (FATF) has published the outcomes of its plenary session held in Paris between 16 and 18 October 2019. The FATF document sets out the money laundering risks from ‘stablecoins’ and other emerging assets, a public statement on the continuing risks posed by North Korea and Iran, and a note which identifies the jurisdictions that have strategic AML/CFT deficiencies for which they have developed an action plan with the FATF. See: LNB News 21/10/2019 59.

Is the Business Integrity Consultancy Service for small and medium-sized enterprises (SMEs) part of the government’s post-Brexit trading strategy? Robert Barrington, Professor of Anti-Corruption Practice at the Centre for the Study of Corruption in the University of Sussex, assesses the Business Integrity Consultancy Service and the importance of preparing SMEs for bribery-related challenges when accessing non-EU markets. See News Analysis: Examining the Business Integrity Consultancy Service.

 Slavery & human trafficking

The Home Office has published its UK annual report on modern slavery which provides an assessment of modern slavery and explains the UK’s existing and future response. The Home Office has stated that in June 2019 there were 1,479 active law enforcement investigations, compared with 188 in November 2016. It is estimated that 75% of in-scope organisations now have a statement on modern slavery, after the home office wrote to over 17,000 UK registered organisations. The Home Office found that between March 2018 and March 2019, 5,059 modern slavery offences were recorded in England and Wales—a 49% increase on the previous year. See: LNB News 17/10/2019 38.

Data protection

The European Commission has published its report on the third annual review of the EU–US Privacy Shield, which has found that the US has maintained an adequate level of protection for personal data transferred under the Privacy Shield from the EU to US companies. The review determined that the US Department of Commerce has been improving its oversight with monthly checks on the sample companies to ensure compliance with Privacy Shield principles. According to the review, the number of EU individuals exercising their rights under the Privacy Shield is on the rise and the related redress mechanisms are functioning well. See: LNB News 23/10/2019 94.

 Cybersecurity & cybercrime

The National Cyber Security Centre (NCSC) has published its 2019 annual review, which outlines the developments and highlights of the NCSC’s work between 1 September 2018 to 31 August 2019 in order to meet its mission ‘to make the UK the safest place to live and work online’. See: LNB News 23/10/2019 95.

The Charity Commission has published an insights and actions report following its cybercrime survey of registered charities in England and Wales, finding that 58% of charities believe cybercrime to be a major risk to the sector and a growing threat. Larger charities were more likely to appreciate the risk while a higher age profile of trustees implied lower levels of cyber awareness. See: LNB News 23/10/2019 73.

Commercial
Contracts

Kristina Lukacova, barrister, at New Square Chambers, considers the case of ACON Equity Management LLC v Apple Bidco Limited, where the court construed the wording ‘without default or penalty’ narrowly, in accordance with the natural meaning of the words. The word ‘default’ was construed as an event of default under the relevant contract, and the word ‘penalty’ as a sanction applied due to a breach of an obligation under the contract. See News Analysis: ‘Without default or penalty’—what does it mean? (ACON Equity Management LLC v Apple Bidco Limited).

Adam Deacock, barrister at Radcliffe Chambers, considers the Court of Appeal’s judgment in Fraser Turner Ltd v PricewaterhouseCoopers LLP [2019] EWCA Civ 1290, [2019] All ER (D) 124 (Jul), and explains why it serves as a reminder to creditors not to expect any special treatment from administrators. See News Analysis: Court of Appeal upholds administrators’ actions to put the interests of creditors above an individual creditor (Fraser Turner Ltd v PricewaterhouseCoopers LLP and others).

 Consumer protection

The European Consumer Organisation (BEUC) has published a paper in which it sets out the rights of consumers in relation to artificial intelligence (AI) and is calling for these rights to be codified into enforceable rules. Among the rights is the right to transparency, explanation and objection, with BEUC highlighting the importance of consumers being able to get ‘a clear picture of how decisions that affect them are made’, so that they can request human intervention when necessary and oppose wrong or unfair decisions made by AI. See LNB News 23/10/2019 69. 

Corporate
Corporate reporting

The Department for Business, Energy & Industrial Strategy (BEIS) has published a report following research into how the non-financial reporting regime in the UK is perceived by stakeholders. The report found that there is a general agreement among stakeholders that corporate reporting has improved since regulations governing reporting were introduced in 2013. BEIS also identifies the costs and benefits of the current regime and explores potential avenues for its development. See: LNB News 22/10/2019 76.

The Financial Reporting Council’s (FRC) Reporting Lab has released a new report on climate-related corporate reporting, in which the lab highlights the gap between current company reporting and the disclosure expectations of investors. IThe FRC Reporting Lab also provides practical guidance for companies on how to improve their reporting and outlines what information investors want from climate change disclosures. See: LNB News 22/10/2019 37.

The FRC has launched a ‘Future of Corporate Reporting’ survey that seeks stakeholder views to inform the FRC’s project to better serve the needs of all users of corporate reports and address increasing demands, which involves improving current regulation and practice, as well as encouraging ‘blue sky’ thinking. The survey closes on 15 November 2019. See: LNB News 18/10/2019 9.

 

Quoted Companies Alliance

The Quoted Companies Alliance (QCA) has published its annual review reporting on its activities in 2019—including the work of its expert groups. The QCA announced that its membership has reached a record number of 293 firms—202 of which are quoted companies. See: LNB News 21/10/2019 6.

 

Information Law & TMT
Data protection

The Information Commissioner’s Office (ICO) has highlighted key components for organisations to consider when carrying out data protection impact assessments (DPIA) for personal data in artificial intelligence (AI) systems. The use of AI for processing data will usually meet the legal requirement for completing a DPIA as provided for in the General Data Protection Regulation, Regulation (EU) 2016/679 (the GDPR). The ICO must be consulted when an assessment indicates a high risk for an individual that cannot be reduced. See: LNB News 23/10/2019 85.

The European Data Protection Supervisor (EDPS) has called for a stronger collaborative approach between public authorities in Member States, EU institutions and other international organisations to ensure consistency for individuals rights in IT contracts. Initial findings from its ongoing investigation into the use of Microsoft products and services by EU institutions have revealed concerns about compliance with data protection rules and the role of Microsoft as a processor. See: LNB News 21/10/2019 43

The ICO, as part of an ongoing call for input to develop an AI auditing framework, has highlighted the challenges faced by organisations using AI systems in enabling data subjects’ personal data rights of access, rectification and erasure. The ICO reminds organisations that although it may be difficult to link data in a training model to an individual, it is not itself an anonymisation and such data can still be subject to requests. See: LNB News 17/10/2019 24.

 Media

Memes is a fast-growing phenomenon on social media, so it’s no surprise that companies are beginning to take advantage of them. What are the IP issues related to the use of memes? See News Analysis: Who owns the IP in a meme?

Employment 
Equality

Acas has published guidance on how to manage the impact of the menopause at work. The guidance provides advice for both employers and employees on the symptoms and ways to provide support within the workplace environment to ensure those going through the menopause are able to continue in their role and work. The guidance also addresses reducing the risk of discrimination and sets out the duties an employer has to support an employee going through the menopause under EqA 2010 and Health and Safety at Work Act 1974. See: LNB News 18/10/2019 13.

The Equalities and Human Rights Commission has launched new guidance for employers on the use of confidentiality agreements, also known as non-disclosure agreements (NDAs), in discrimination cases. See: LNB News 17/10/2019 87.

The scope of what sort of belief can be protected as a philosophical belief under section 10 of the Equality Act 2010 was considered by the Court of Appeal in Gray v Mulberry Company (Design) [2019] EWCA Civ 1720. See News Analysis: Dispute about the wording of an agreement could not be a philosophical belief (Gray v Mulberry Company (Design)).

Pensions

The Pensions Regulator has updated its multi-employer schemes and employer departures guidance. The update provides information on the deferred debt arrangement option that some employers may wish to consider when considering how to manage their multi-employer scheme section 75 debt. See: LNB News 22/10/2019 27.

In the second of a series of reports outlining the results of the ACA’s 2019 Pension trends survey, the Association of Consulting Actuaries (ACA) has found employers are particularly concerned about the complexity and cost associated with the equalisation of Guaranteed Minimum Pensions (GMPs), with many employers remaining undecided on how they should respond to the legal requirement to act. See: LNB News 22/10/2019 11.

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