Latest legal and regulatory news : 11th December

Latest legal and regulatory news : 11th December

In this issue:

Risk & Compliance

Commercial

Corporate

Information Law & TMT

Employment

Additional news—daily and weekly news alerts

Dates for your diary

Useful information

In-house

LexTalk®In-house: a Lexis®PSL community
 

 

Risk & Compliance

Data protection

The Information Commissioner’s Office (ICO) has published a recording and the slides of its webinar ‘Keep data flowing at the end of the UK’s transition out of the EU’, to help stakeholders prepare for the end of the transition period and beyond. See: LNB News 07/12/2020 107.

The Department for International Trade (DIT) has published a guide explaining the provisions of the UK-Japan Comprehensive Economic Partnership Agreement (CEPA) relating to data protection. The guidance affirms that the CEPA does not undermine UK data protection laws and doesn’t change existing onward transfer of personal data measures where data is sent from the UK to Japan. See: LNB News 07/12/2020 56.


 

Financial crime and sanctions

The Council of the EU has adopted a decision and a regulation establishing a global human rights sanctions regime. The new framework permits it to target individuals and state and non-state entities associated with serious human rights violations and abuses worldwide. The measures include the possibility of the application of a travel ban for individuals, the freezing of funds for individuals and entities and the prohibition for persons and entities in the EU to make funds available to those listed. See: LNB News 08/12/2020 22.

MLex: The criminal prosecution of companies ‘doesn’t drive the culture change’ necessary to mitigate the risk of future economic crime, an official from the UK’s Serious Fraud Office (SFO) has said. See News Analysis: Criminal prosecution of companies doesn’t drive culture change.

The Financial Action Task Force (FATF) and the Egmont Group have published a report which aims to help the public and private sectors with the challenges of detecting trade-based money laundering. Using case studies from around the FATF’s Global Network, it explains the ways in which criminals exploit trade transactions to move money, rather than goods. See: LNB News 09/12/2020 113.

The European Commission has adopted a delegated regulation that would remove Mongolia from the list of high-risk third countries in point I of the Annex to Delegated Regulation (EU) 2016/1675, which supplements the Fourth Money Laundering Directive (EU) 2015/849 (MLD4) by identifying high-risk third countries with strategic deficiencies. See: LNB News 09/12/2020 53.


 

Commercial

Brexit and beyond

The DIT has set out the UK’s new independent approach from the EU on tariffs relating to steel, aluminium, and aerospace. See: LNB News 09/12/2020 38.

In London on 8 December 2020, the UK, Norway and Iceland signed a trade continuity agreement to lock in trade in goods. The agreement is an interim agreement while the UK and EEA-EFTA countries complete negotiations for a comprehensive FTA to come into force in 2021. See: LNB News 08/12/2020 74.

The UK-Kenya Economic Partnership Agreement was concluded during a meeting in London on 8 December 2020. The agreement should ensure that companies operating in Kenya have duty-free access to the UK market. The agreement will apply from 1 January 2021. See: LNB News 08/12/2020 64.

The Foreign, Commonwealth & Development Office and the DIT have announced that a UK-Egypt Association Agreement has been signed to strengthen the political and trade ties between the two countries. See: LNB News 07/12/2020 49.

The DIT has announced a new agreement with Switzerland which will allow UK service suppliers to have effective access to the Swiss market. The UK-Switzerland Mobility Agreement is intended to assist trade for vital industries for the UK’s economy—such as the tech sector and legal services. See: LNB News 04/12/2020 102.

The Foreign, Commonwealth & Development Office and the DIT have announced that a UK-North Macedonia Partnership, Trade and Co-operation Agreement has been signed. See: LNB News 03/12/2020 85.

HM Revenue and Customs (HMRC) has published a new letter to VAT-registered businesses about new trade arrangements with the EU from 1 January 2021 to help stakeholders prepare for the end of the transition period and beyond. See: LNB News 09/12/2020 40.

DIT has published updated guidance on selling services to the EU and EFTA countries to help stakeholders prepare for the end of the transition period and beyond. See: LNB News 09/12/2020 94.

The World Trade Organization (WTO) has announced that the UK has completed the final step for independent participation in the revised WTO Government Procurement Agreement (GPA), by submitting its instrument of accession. See: LNB News 04/12/2020 92.

The Office for Product Safety and Standards has published new designated standards to help stakeholders prepare for the end of the transition period and beyond. See: LNB News 03/12/2020 119.


 

Contracts

In ABC v Network Rail, the Court of Appeal found that the term ‘default’, as used in the definition of ‘Disallowed Cost’ in a target cost contract, referred to any failure by the contractor to comply with its contractual obligations. The court rejected the argument that ‘default’ referred only to contractual non-compliances that entailed some blame or culpability on the contractor’s part. The case concerns the ICE Conditions of Contract, Target Cost Version (1st edition) as amended by Network Rail’s standard amendments (NR12). See News Analysis: Court of Appeal upholds decision on meaning of ‘default’ in disallowed costs clause (ABC v Network Rail).


 

Intellectual property

The European Commission has published a report on the co-operation of the .eu Registry with EU agencies, including the EU Intellectual Property Office (EUIPO), on the combating of abusive and speculative domain name registrations. The report found that co-operation is ‘satisfactory’, although improvements concerning the co-operation between EURid and EUIPO and other entities, such as Europol, and measures for small and medium-sized enterprises were suggested. Further legislative measures will not be required to achieve the recommendations. See: LNB News 04/12/2020 29.

The Intellectual Property Office (IPO) has published updated guidance on the Intellectual Property system to help stakeholders prepare for the end of the transition period and beyond. Further new and updated guidance may be issued as the transition period progresses, so stakeholders are advised to monitor these pages for updates. See: LNB News 07/12/2020 74.


 

Corporate

Brexit

​The Financial Conduct Authority (FCA) has published Primary Market Bulletin No. 32 (December 2020) which contains a reminder of changes that will take effect when onshored EU legislation enters into force, in particular, the Market Abuse Regulation and the Prospectus Regulation. The newsletter also gives an update on the FCA’s work to implement some aspects of the onshored legislation, summarises recent EU developments and re-states the FCA’s approach to EU non-legislative materials. See: LNB News 03/12/2020 125.


 

Corporate governance

The Quoted Companies Alliance (QCA) has published a new and updated version of its Remuneration Committee Guide. The updated edition covers a range of related matters such as what an effective remuneration committee looks like, practical aspects of running one, remuneration policy, directors' reporting obligations and communicating with shareholders. The guide is available to download from the QCA’s website. See: LNB News 09/12/2020 107.


 

Coronavirus

Corporate Insolvency and Governance Act 2020 (Coronavirus) (Extension of the Relevant Period) (No 2) Regulations 2020 SI 2020/1483: Provisions are made to extend the duration of the temporary measures restricting the use of statutory demands and winding-up petitions introduced by the Corporate Insolvency and Governance Act 2020 beyond their current expiration date of 31 December 2020, which extends these measures to 31 March 2021. These Regulations come into force on 31 December 2020. See: LNB News 09/12/2020 44.

The Financial Reporting Council (FRC) has published (i) updated guidance for companies on corporate governance and reporting during the coronavirus (COVID-19) pandemic, and (ii) guidance for auditors carrying out audit engagements which may be affected by the pandemic. The former guidance covers a range of topics, including narrative reporting’s need to provide forward-looking information, going concern and related material uncertainties and the importance of providing information on significant judgements applied in the preparation of the financial statements. The latter guidance provides information on whether to amend risk assessments and how to do so effectively during the pandemic. See: LNB News 04/12/2020 63.


 

Audit

The FRC has published new research into what makes a good audit. The report was conducted by YouGov and shows that developing standards for audit committees would enable greater consistency for audit quality. See: LNB News 03/12/2020 12.

The FRC has also published a new report on audit quality. A key finding in the report is that audit firms have not been effectively challenging the management of their audited entities. One way the report recommended achieving this is to ensure there is operational separation of audit practices in place so that public interest is prioritised. The FRC plans to host a conference in June 2021 to initiate a more specific action plan on building a challenge culture within firms. See: LNB News 08/12/2020 80.


 

Information Law & TMT

Data protection

Directive (EU) 2020/1828 of the European Parliament and of the Council of 25 November 2020 on representative actions for the protection of the collective interests of consumers and repealing Directive 2009/22/EC has been published in the Official Journal. In summary, the Directive applies to representative actions brought against infringements by traders of the provisions of EU law referred to in Annex I, which includes the General Data Protection Regulation, Regulation (EU) 2016/679, that harm or may harm the collective interests of consumers. See: LNB News 04/12/2020 105.


 

Advertising, marketing and sponsorship

The ICO has announced that it has fined a mortgage and loans broker, OSL Financial Consultancy Ltd (OSL) t/a MortgageKey, £50,000 for illegally sending over 174,000 nuisance marketing texts. The ICO launched a probe into companies seeking to benefit from the coronavirus pandemic with nuisance marketing, during which OSL came to the ICO’s attention after complaints had been registered at the 7726 spam text reporting service between March and June 2020. An ICO investigation found that OSL collected people’s personal data after accessing their website to obtain a quote, then used the data for marketing without offering the people an opportunity to opt in or out of the marketing. OSL claimed it had received consents, however the ICO found that valid consents had not been obtained. See: LNB News 04/12/2020 42.

IAB Europe, the European-level industry association for digital advertising and marketing, has released a ‘Guide to Ad Fraud’. The publication has the scope of helping ‘drive media quality and effectiveness in the digital advertising industry’. The guide defines certain types of fraud in digital advertising and outlines how verification companies work to tackle new types of ad fraud across all channels. The guide also provides ‘top tips’ for stakeholders to prevent ad fraud. IAB Europe also intends the guide to serve as a call for action to the industry to follow best practices to tackle ad fraud. See: LNB News 08/12/2020 122.


 

Internet and digital markets

The European Commission has published guidelines for online platforms on how to improve the transparency of their ranking parameters. The guidelines detail the main requirements for online platforms identified in Regulation (EU) 2019/1150 (the P2B Regulation) and aim to help online platforms ‘make the right information available to businesses so that they in turn can consider how best to increase and manage their online visibility, enabling consumers to ultimately receive the highest quality goods and services’. Although the guidelines are not legally binding, they will assist platforms and search engines in complying with their obligation to be transparent on how ranking works on their services. See: LNB News 08/12/2020 51.

The European Council has adopted conclusions regarding increased usage of connected devices which make up the Internet of Things (IoT) across Europe and the consequent increased risks to ‘privacy, information security and cybersecurity’. The conclusions set out the requirement for horizontal legislation in order to regulate the cybersecurity of connected devices and discuss the integral role that cybersecurity certification will play in strengthening security within the digital single market. See: LNB News 03/12/2020 37.

The Competition and Markets Authority (CMA) Digital Markets Taskforce has delivered advice to the government on the design and implementation of the new pro-competition regime for digital markets. The advice published covers the potential design and implementation of pro-competitive measures for unlocking competition in digital markets. The proposed new regime will govern the ‘most powerful’ tech firms and will establish a Digital Markets Unit to ensure the ‘rules of the game’ are clear and complied with. The CMA has also published responses to the call for information issued in July 2020. See: LNB News 08/12/2020 95.


 

Employment

Coronavirus

Following the announcement that the Pfizer vaccine is now available to be rolled out in the UK, David Whincup, Partner at Squire Patton Boggs, examines the key questions for employers on providing the vaccine for employees. See News Analysis: Employers needled by vaccine refusals.

The Department for Business, Energy & Industrial Strategy (BEIS) has published new guidance on a quarantine exemption for senior executives who bring significant economic benefit to the UK (the Business Jobs and Investment Exemption). If an individual travels from a country outside of the UK’s travel corridor during the coronavirus pandemic, in general they will need to self-isolate for 14 days. To have the benefit of the exemption from this, an individual must fulfil both the full definition of a ‘senior executive’ (ie multinational, returning, and international executives) and be undertaking work with a ‘significant economic benefit’ (ie more than a 50% chance of creating or preserving UK-based jobs or resulting in the purchase of goods or services from UK-based companies). See: LNB News 04/12/2020 109.

Nine of HMRC’s guidance documents on the Coronavirus Job Retention Scheme (CJRS) were updated on 1 December 2020 primarily to take account of the passing of the 30 November 2020 deadline for claim periods ending on or before 31 October 2020 under the revised CJRS. Two of the guidance documents were further updated on 3 December 2020. See News Analysis: Analysis of 1 and 3 December updates to HMRC guidance on the Coronavirus Job Retention Scheme.


 

Employment contracts

BEIS has launched a consultation on a proposal to extend the ban on exclusivity clauses beyond zero hours contracts to include contracts where the workers’ guaranteed weekly income is less than £120 a week. The change seeks to allow low-income workers who cannot secure their desired amount of work hours from their current employer to seek additional work elsewhere. Responses will help inform policy decisions on matters such as the appropriate level to set the earnings threshold and the appropriate level of hourly wage cap to warrant an exemption to the ban. The consultation closes at 11.45 pm on 26 February 2021. See: LNB News 04/12/2020 125.


 

Restrictions on competition

BEIS has announced that it is seeking views on options to reform post-termination non-compete clauses in contracts of employment. The consultation is part of the government’s effort to support economic recovery following the impacts of the coronavirus pandemic and to explore new ‘avenues to boost innovation, create the conditions for new jobs and increase competition’. The consultation closes at 11.45 pm on 26 February 2021. See: LNB News 04/12/2020 60.


 

Redundancy

In Berkeley Catering v Jackson (UKEAT/0074/20/LA(V)) the EAT held that a redundancy situation under section 139(1)(b) of the Employment Rights Act 1996, ie where the employer has a reduced need for employees to carry out work of a particular kind, either exists or it does not. It is open to an employer to organise its affairs so that its requirement for employees to carry out particular work diminishes and, if that occurs, the motive of the employer is irrelevant to the question of whether the redundancy situation exists. See News Analysis: Owner taking on claimant’s duties in addition to his own created a redundancy situation (Berkeley Catering v Jackson).


 

Equality

The Office for National Statistics (ONS) has published its latest report on gender pay gap statistics for 2020. For full-time employees, the pay gap fell 2.4% between April 2019–April 2020, and for all employees, the gap fell by 1.9% within the same period. The ONS commentary is based on the Annual Survey of Hours and Earnings and the Labour Force Survey. See: LNB News 08/12/2020 116.


 

Tax

HMRC has published its report on the implementation of the Loan Charge as recommended in the 2019 Loan Charge Review together with its review of the future policy on interest rates. See: LNB News 04/12/2020 119 and LNB News 04/12/2020 122.


 

Additional news—daily and weekly news alerts

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.


 

 

Dates for your diary

Time

Event

Subjects Covered

14 December 2020

Webinar—TMT

The European Electronic Communication Code (2020)

31 December 2020

Webinar—In-house Counsel

Dealing with conflicts of interest within your organisation

31 December 2020

Webinar—Commercial Law

Recent developments in commercial contracts (2020)

On demand

Webinar—TMT

FinTech (2020)

On demand

Webinar—TMT

Cloud computing (2020)

On demand

Webinar—TMT

Drones law (2020)

On demand

Webinar—TMT

Influencers and intellectual property (2020)

On demand

Webinar—TMT

(Brief) The Copyright Directive (2020)

Q4 2020

Webinar—Commercial Law

Commercial Law—End of year round-up 2020

Q4 2020

Webinar—Commercial Law

Consumer law in 2020

Q4 2020

Webinar—Commercial Law

E-commerce in 2020

 


 

Useful information

Contact us

Please follow us on Twitter at @inhouse_leaders. You can also keep updated by reading our blog. If you need an overview of the materials in the in-house module, see: In-house—introduction to our materials.

 


 

 

In-house

Virtual networking and forum events

There’s no need to feel isolated if you’re working from home—join one of our virtual networking or forum events. Even if you aren’t working from home, take some time to network with your peers, find out what challenges they’re facing and how they are meeting those challenges.

20 January 2021
Brexit. Thriving in a new era
Register now to attend

In this session we’ll be discussing our thoughts on how to deal with the new world (whatever that may be) after the end of the Brexit transition period. There also be an opportunity to share experiences and helpful insights with your peers under Chatham House rules.
Held in partnership with Radius Law and Flex Legal.

27 January 2021
Virtual Lunch
Register now to attend

A continuation of our series of Virtual Lunches that provide an insight into the legal industry and networking opportunities.
Held in partnership with Flex Legal and Crafty Counsel.

24 February 2021
IR35, worker status and the end of self-employment?
Register now to attend

The planned changes to IR35 are now scheduled to be in force in April 2021 (deferred from April 2020). Join this session to learn how you can safeguard your organisation against significant liabilities and prevent your business from making incorrect and costly decisions.
Held in partnership with Radius Law and Flex Legal

24 March 2021
The commercial benefit of effective panel management
Register now to attend

An opportunity to share experiences and helpful insights with your peers under Chatham House rules. This month we focus on effective panel management. Discover how legal teams take a strategic approach to law firm management to demonstrate commercial value to their organisations.
Held in partnership with Radius Law and Flex Legal

Various dates from November to December 2020
LexisNexis® Aspire Forum for Junior In-house Lawyers
To register your interest in joining the events, sign up as an Aspire member today

Aspire is a professional development and networking forum for junior in-house counsel. Following the success of the summer event series, we have several events planned for the remainder of the year to continue supporting you through these uncertain times and provide a platform for you to connect with your peers. Events take place at the same time each month, from 5pm to 6.30pm.
Upcoming subjects include mental health and junior in-house counsel, legal operations, career development and mentoring for junior in-house counsel and, of course, a Christmas quiz and networking social.

 


 

 

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