Latest legal and regulatory news - 17th September 2021

Latest legal and regulatory news - 17th September 2021

In this issue:

In-house resources, events and networking

Risk & Compliance



Information Law



In-house resources, events and networking

Crafty Counsel videos available in Lexis®PSL

LexisNexis® has entered into a content sharing partnership with Crafty Counsel, the market-leading provider of video guidance for in-house lawyers.

A selection of Crafty Counsel videos are now available within Lexis®PSL—you can find them in the ‘Training for you and your team’ topic within Lexis®PSL In-house Advisor and they are also available alongside practical guidance and tools in related Lexis®PSL subtopic areas. Practice Note: Crafty Counsel videos in Lexis®PSL In-house Advisor contains a consolidated list of all the videos available.

Networking and forum events

22 September 2021

Disrupted or accelerated? Digital transformation in legal teams

Register now to attend

COVID-19 showed how an agile in-house team can be a competitive advantage for a business. Yet did the pandemic accelerate or disrupt digital transformation in legal teams? In this session, we explore the issues that deserve deeper consideration on the topic of legal tech. How are other legal teams using technology to increase productivity, reduce risk and collect meaningful data to demonstrate their value? Is there just a shift from legal tech to enterprise tech? What should you expect from your law firms in relation to use of technology to improve efficiency and reduce costs? What practical strategies can be used in implementing an effective change management initiative?

3 November 2021

Your essential regulatory and commercial news update

Register now to attend

We are almost a year into Brexit and settling into a new way of life post-lockdown. Parts of the economy are rebounding after a tough 18 months. Yet challenges will remain, alongside renewing optimism. What should be on your radar to best support your organisation moving forward? Join us as we highlight the key priorities for legal departments from recent government and regulatory guidance updates and recommended practical next steps to consider.

8 December 2021

The fight against modern slavery

Register now to attend

40 million people are estimated to be trapped in modern slavery worldwide. 1 in 4 of them are children. 71% are women and girls. 10,000+ were identified as potential victims by the authorities in the UK in 2019. Join us as we welcome guest speakers and senior counsel to discuss the critical role you can play as senior counsel in helping in the fight against modern slavery. This is not only a moral obligation, it is a regulatory obligation too.

26 January 2022

The effective leader—how to lead amid disruption and complexity

Register now to attend

This free-to-join forum brings together in-house lawyers working solo, or in smaller teams, to network and learn from one another. It is a chance to connect, debate topical issues and stay ahead of the latest regulatory and legal commercial updates for legal teams. Held in partnership with Flex Legal, Radius Law and Crafty Counsel.

Various dates

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. We have several events planned for the new 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.



Risk & Compliance

Consultation launched by DCMS on reforms to UK data protection and ePrivacy regime

The Department for Digital, Culture, Media & Sport (DCMS) has launched a public consultation on the UK’s data protection regime focusing on potential changes to the current United Kingdom General Data Protection Regulation, Retained Regulation (EU) 2016/679 (UK GDPR), as well as to the Privacy and Electronic Communications (EC Directive) Regulations 2003 (PECR 2003), SI 2003/2426. In addition, the DCMS announced proposed reforms to the Information Commissioner’s Office (ICO), which include tougher penalties for nuisance calls and text messages, and the creation of an independent board and Chief Executive. Some of these reforms may undermine the ICO’s independence, but may also improve overall regulation, according to Stewart Room, partner at DWF Law LLP, who shared his views on the announcement. The DCMS’ public consultation closes at 11.45 pm on 19 November 2021.

See: LNB News 10/09/2021 45.

For further analysis and detail on the proposed reforms, see News Analysis: Details of UK privacy regime overhaul lay out likely GDPR flashpoints for EU.

Attorney General’s Office publishes Economic Crime speech

The Attorney General's Office has published a speech made by the Attorney General (AG), Michael Ellis, at the Cambridge International Symposium on tackling economic crime. In it, the AG discussed the economic crime threat, the UK government response, the impacts of the coronavirus (COVID-19) pandemic, the critical work of prosecutors, the essential role of the Crown Prosecution Service and the Serious Fraud Office and finished by claiming that the associations must work collaboratively to fight against economic crime.

See: LNB News 10/09/2021 6.

Technology companies pledge to support Take Five in tackling fraud

Take Five to Stop Fraud (Take Five), UK Finance’s anti-fraud campaign, has announced that technology companies, including Google, Facebook, Instagram, Twitter, Amazon, Microsoft and TikTok, have pledged to support Take Five by donating $1m worth of advertising to the campaign to raise awareness and by using Take Five content on their own platforms. This pledge of support has flowed from the Online Fraud Steering Group, which brings together industry leader representatives to help tackle fraud.

See: LNB News 15/09/2021 49.

Helsinki Commission introduces US Congress of the Counter-Kleptocracy Act

The Helsinki Commission has announced the introduction into the US Congress of the Counter-Kleptocracy Act by the co-chairman of the Helsinki Commission, Rep. Steve Cohen, and Ranking Member, Rep. Joe Wilson. The Act consolidates 7 bipartisan bills pursued by the Commission and US Congressional Caucus against Foreign Corruption and Kleptocracy during the 117th US Congress.

See: LNB News 13/09/2021 81.

EU to propose ban on forced labour-linked products

MLex: An EU ban on products involving forced labour will be proposed by the European Commission, President Ursula von der Leyen said on 15 September 2021 at her annual State of the Union speech. Companies operating on the EU’s market are awaiting a legislative proposal on due diligence by the end of the year.

See News Analysis: EU to propose ban on forced labour-linked products, Von der Leyen says.

HSE publishes updated guidance on ventilation in the workplace

The Health and Safety Executive (HSE) has published updated guidance on ventilation and how it can help reduce the spread of coronavirus as more people return to the workplace. It covers how to identify poorly ventilated areas, the use of carbon dioxide monitors, how to improve natural and mechanical ventilation, balancing ventilation with keeping warm and ventilation in vehicles.

See: LNB News 09/09/2021 90.



Coronavirus (COVID-19) BI update—denial of access—access granted? (Policyholders v China Taiping)

The latest coronavirus (COVID-19) business interruption (BI) decision to arrive following the conclusion of the test case provides fresh hope for policyholders with denial of access clauses whose claims currently remain declined. It will be recalled that the Divisional Court in the test case found that such clauses provided a ‘narrow, localised form of cover’ which did not respond to the broader circumstances of the pandemic. Many policyholders were disappointed at the Financial Conduct Authority’s (FCA) decision not to appeal these rulings, and have subsequently argued that the Supreme Court’s ultimate conclusions on causation rendered the Divisional Court’s ruling an unsound authority for declining coverage under such clauses. Aaron Le Marquer, partner at Fenchurch Law, considers an arbitral award issued on 10 September 2021 by Lord Mance, whose clear support is provided for that proposition.

See News Analysis: Coronavirus (COVID-19) BI update—denial of access—access granted? (Policyholders v China Taiping).

Brexit Bulletin—government revises timetable for introducing full border controls for EU imports 

In a Written Statement, Cabinet Office Minister, Lord David Frost, has revised the timetable for the phasing in of post-Brexit import controls across 2022. The Statement was read in the House of Commons by Paymaster General Penny Mordaunt. As the coronavirus (COVID-19) pandemic has impacted supply chains across Europe, particularly the agri-food sector, the government will introduce full customs declarations and controls on 1 January 2022, as previously announced, but safety and security declarations will be delayed until 1 July 2022.

See: LNB News 14/09/2021 50.

Beyond Brexit—DIT sets out next phase of UK trade strategy

International Trade Secretary, Elizabeth Truss, has delivered a keynote speech to the Policy Exchange thinktank on the next phase of the UK’s trade strategy. In the speech, Truss explained why it is time to 'move from defence to offence in trade' in order to deliver the government's 'levelling up' agenda. With negotiations for accession to the Comprehensive and Progressive Trans-Pacific Partnership (CPTPP) already launched, the Department for International Trade (DIT) will 'shortly' commence parallel discussions with India, Mexico, Canada and the Gulf.

See: LNB News 14/09/2021 29.

Weekly roundup of HMRC post-Brexit import, export and customs guidance—13 September 2021

HMRC has updated its import, export and customs guidance to reflect the post-Brexit regime. The update covers the period from 6 September 2021 to 13 September 2021.

See: LNB News 13/09/2021 76.

European Commission publishes sustainability and competition policy brief

The European Commission has published a new policy brief in relation to its approach to competition law in support of EU sustainability goals set out in the European Green Deal. In response to a debate launched by Executive Vice-President of the European Commission, Margrethe Vestager, on how competition rules and sustainability policies can co-exist and co-operate, the policy paper sets out ‘clarifications’ on how EU competition policy can ‘support and complement’ Europe’s environmental aims, giving examples of reform in areas such as State aid, antitrust and merger control. A number of public consultations regarding revisions in these areas are ongoing, including one on the regulation on vertical agreements and vertical guidelines closing on 17 September 2021, and another on the short-term export credit insurance communication, closing on 23 September 2021.

See: LNB News 10/09/2021 82.

Ministry of Justice letter regarding the UK acceding to the Lugano Convention

In a letter dated 27 August 2021, the Right Honourable Robert Buckland QC MP, the Lord Chancellor & Secretary of State for Justice, has responded to correspondence from the Justice and Home Affairs Committee. The letter emphasises the commitment of the government to the accession of the UK to the Lugano Convention. It sets out the current position and the fact that there has been no final decision by the EU as to whether to consent to the accession request. The government expects that the decision will be made by way of qualified majority voting. The government continues to liaise with the EU Member States individually and a number have said they would welcome the UK's accession, although there are some that oppose it.

See: LNB News 09/09/2021 108.

Commission announces Export Control Regulation enters into force today

The European Commission has announced that the Export Control Regulation enters into force today, tightening control on trade in dual-use items, enhancing the protection of human rights and supporting secure supply chains for strategic items. According to the Commission, the Regulation will allow the EU to pool expertise and tackle particular challenges, for example cyber-surveillance and dual-use technologies, such as advanced computing. In addition, the Commission contends that there will also be greater transparency, given increasing levels of consultations and reporting between Member States and the Commission, which is expected to contribute to the EU electronic licensing platform. Furthermore, the regulation provides a legal basis for EU action at multilateral, plurilateral and bilateral levels and builds on the existing framework of export controls.

See: LNB News 09/09/2021 48.



Financial Conduct Authority (FCA) board flags risks of regulator’s SPAC rule changes

Law360, London: The board of the FCA has told it to monitor conflicts of interest and disclosure risks that could arise after the watchdog amended rules to make it easier for large special purpose acquisition companies (SPACs) to list on the London Stock Exchange.

For further information, see News Analysis: FCA board flags risks of regulator’s SPAC rule changes.

FRC Lab publishes UK electronic reporting (DTR 4.1.14) survey results and list of resources

The Financial Reporting Council (FRC) has published the results of the Financial Reporting Lab’s survey on how companies are responding to the introduction of new electronic reporting requirements. The survey asked companies and service providers to comment on their preparations for the introduction of structured electronic reporting for annual accounts under DTR 4.1.14 as part of the UK implementation of a wider cross-EU initiative (ESEF). In addition, the Lab has released a list of resources to help companies understand and implement the requirements.

See: LNB News 09/09/2021 36.

FRC publishes report on implementation of SECR requirements

The FRC has published a report reviewing the new streamlined energy and carbon reporting (SECR) rules which came into force on 1 April 2019. The SECR rules set out requirements for statutory disclosures about emissions and energy use. In its review, the FRC considered the extent to which a sample of 27 companies and limited liability partnerships complied with the SECR requirements, identified challenges with reporting and examples of emerging good practice, and outlined its expectations for future reporting.

See: LNB News 09/09/2021 28.


Information Law

DCMS Committee confirms John Edwards as the new Information Commissioner

MPs have confirmed the appointment of John Edwards as the new Information Commissioner following his appearance before the DCMS Committee. The DCMS Committee also published a report expressing concern regarding the rising trend of administration interference in appointment processes, which it believes could limit the number of candidates applying for roles.

See: LNB News 10/09/2021 72.

ICO publishes communiqué where G7 authorities commit to closer collaboration

The ICO has published a communiqué agreed on by G7 authorities after a virtual meeting that sets out their commitment to closer international collaboration to tackle emerging challenges. The authorities discussed a number of specific key issues to share their expertise and experience, and explore possible closer cooperation between G7 data protection and privacy authorities. The meeting was closely aligned with the Roadmap for Cooperation on Data Free Flow with Trust, announced by G7 digital and technology ministers on 28 April 2021. The discussion was held in the context of a growing global, data-driven economy, recognising the changes brought by the coronavirus (COVID-19) pandemic and included discussions on shaping the future of online tracking, redesigning remedies for the digital age, pandemic driven tech innovation and the development of a framework for cross-border transfer of personal data.

See: LNB News 10/09/2021 64.

ICO fines We Buy Any Car, Saga and Sports Direct for nuisance messages

The ICO has fined We Buy Any Car, Saga Services Ltd, Saga Person Finance Ltd and Sports Direct for sending more than 354 million unsolicited marketing messages between them, breaching the Privacy and Electronic Communications (EC Directive) Regulations 2003, SI 2003/2426, reg 22. We Buy Any Car was fined £200,000, Saga Services Lts and Saga Personal Finance Ltd were fined £150,000 and £75,000 respectively and were both issued with an enforcement notice, while Sports Direct was fined £70,000.

See: LNB News 15/09/2021 54.

EU cybersecurity rules for connected devices are near, but business harbours doubts

EU businesses do not have long left to wait for greater clarity on cybersecurity rules for Internet-connected devices, with European Commission legislation expected in the autumn 2021. But the industry is calling instead for rules that go across sectors and for more harmonised standards, questioning whether the EU executive’s approach of secondary legislation to update Directive 2014/53/EU (the EU Radio Equipment Directive) is the right one.

See News Analysis: Comment—EU cybersecurity rules for connected devices are near, but business harbours doubts.

DigitalEurope publishes findings of Commission’s approach to IoT cybersecurity

DigitalEurope has published a new study on cybersecurity of the Internet of Things (IoT) and found that the European Commission’s present approach to upshot cybersecurity ‘leads to security risks in connected devices’ as well as legal uncertainty. The study involved interviews with 18 standards experts who found a number of vulnerabilities within connected devices, and provided recommendations for how EU product legislation and harmonised standards should collaborate in an effort to maintain the cybersecurity of connected products. DigitalEurope recommends that the Commission ‘prioritise new horizontal cybersecurity legislation applicable across all connected products’ and that it should set a ‘realistic timeframe for standards organisations to develop the necessary harmonised standards, thus maximising the link between legislation and standards’.

See: LNB News 09/09/2021 65.



Coronavirus (COVID-19)—Government publishes autumn and winter 2021 plan

As announced by the Prime Minister on 14 September 2021, the government has published its COVID-19 Response: Autumn and Winter Plan 2021 setting out its plans for autumn and winter 2021/22 in England regarding the coronavirus (COVID-19) pandemic. It includes Plan A, which is a comprehensive approach designed to steer the country through autumn and winter 2021-22, and Plan B, which would be enacted only if the data suggests further measures are necessary to protect the NHS.

See: LNB News 15/09/2021 66.

PLSA publishes guide to encourage employers to talk about workplace pensions

The Pensions and Lifetime Savings Association (PLSA) has published guidance to encourage employers to speak with employees about workplace pensions. The guidance includes information about the regulatory regime and laws surrounding pensions, as well as what employers are allowed to say in terms of providing advice.

See: LNB News 15/09/2021 86.

New statement of changes in Immigration Rules—HC 617

The Home Office has issued a new Statement of changes to the Immigration Rules HC 617, together with an Explanatory Memorandum (EM). The changes include the launch of the International Sportsperson route (and associated changes to other routes), the rebranding of the T5 Temporary Worker routes, an increase in the list of eligible prizes under the Global Talent route and the expansion of the Youth Mobility Scheme to include Iceland and India. The changes in the new Statement come into force on various dates between 1 October 2021 and 1 January 2022.

See: LNB News 10/09/2021 75.

Statutory Sick Pay (Coronavirus) (Funding of Employers’ Liabilities) (Closure) Regulations and the Statutory Sick Pay (Coronavirus) (Funding of Employers’ Liabilities) (Northern Ireland) (Closure) Regulations 2021

SI 2021/1013: Under these regulations, amendments are made to the Statutory Sick Pay (Coronavirus) (Funding of Employers’ Liabilities) Regulations 2020, SI 2020/512, and the Statutory Sick Pay (Coronavirus) (Funding of Employers’ Liabilities) (Northern Ireland) Regulations 2020, SI 2020/513, to end employers’ ability to access support with the costs of paying eligible Statutory Sick Pay (SSP) to their employees with effect from 30 September 2021. Claims must be made by 31 December 2021. These regulations come into force on 30 September 2021.

See: LNB News 09/09/2021 56.

DfE and HM Treasury launch online service boosting apprenticeships opportunities

The Department for Education (DfE) and HM Treasury have launched an online service which is intended to help businesses create apprenticeship opportunities by making it easier for large employers that pay the Apprenticeship Levy to spend their levy funds. Large employers could already transfer up to 25% of their annual levy pot to support other employers to take on apprenticeships and now levy paying employers can advertise funding pledges, enabling more businesses to apply for funds. Employers can specify the types of apprenticeships they wish to fund, such as location and sector. The employer can then create their transfer pledge through their apprenticeship service account, which will be advertised via the online service.

See: LNB News 14/09/2021 14.

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