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European Commission has concluded that the UK ensures an essentially equivalent
level of protection to the one guaranteed under the EU GDPR, Regulation (EU) 2016/679 and under Directive 2016/680/EU, the Law Enforcement
Directive. The publication of the draft decisions is the beginning of a process
towards their adoption. Next steps include the Commission obtaining a
non-binding opinion of the European Data Protection Board and, after taking
that into account, requesting approval from Member States’ representatives in the
so-called 'comitology procedure'. Following that, the Commission may adopt the
final adequacy decisions for the UK. See: LNB News 19/02/2021 66.
businesses may be premature in raising a cheer at the European Commission’s data adequacy proposal.
With a legal challenge over the process almost inevitably looming at the Court
of Justice, companies might be better off taking a more cautious approach and
using what could be borrowed time to press ahead with contingency measures. See
News Analysis: Comment—do
not count on UK data adequacy; legal challenges appear inevitable.
has published the monetary penalty notice that it issued to Just Hype Ltd. The
£60,000 penalty is for Just Hype Ltd having instigated the sending of 1,746,632
direct marketing messages between 1 June 2019 and 12 June 2020 to customers
that had not provided adequate consent in relation to the content of the
marketing material. See: LNB News 18/02/2021 57.
Financial crime prevention
Corporate Sanctions Act carries a presumption of mandatory prosecution but also
a defence in cases where reasonable precautions fail to prevent non-managers
from committing crimes, so companies should start putting such compliance programmes
into place now, say lawyers at Arnold & Porter. See News Analysis: Start preparing for Germany’s
Corporate Sanctions Act.
Finance has updated its UK Sanctions Statutory Instruments Review, adding a
review of the Misappropriation (Sanctions) (EU Exit) Regulations 2020 (at p
278) and updating the legislation table (at p 551). See: LNB News 19/02/2021 72.
Gender pay gap reporting
Equality and Human Rights Commission (EHRC) has announced that enforcement
action against employers that fail to report their gender pay gap will start on
5 October 2021, six months later than previously decided. The change has been
made due to the continuing effects of the coronavirus (COVID-19) pandemic. The
Government Equalities Office has published guidance for employers on these
changes. The EHRC encourages employers to submit their data for 2020–2021 before the deadline if
possible. See: LNB News 24/02/2021 10.
Additional Risk & Compliance updates this week
Finance has responded to HM Treasury’s phase-II consultation on
the UK financial services future regulatory framework review. The response
supports the broad thrust of the Treasury’s proposals for regulators
with enhanced powers, subject to effective scrutiny and accountability, and
adds suggestions as to how the future regulatory framework can benefit
consumers, firms, society and the UK as a whole. See: LNB News 19/02/2021 71.
Securities and Exchange Commission (SEC) has announced an award of over $US
9.2m to a whistleblower who provided information which led to successful
related actions by the US Department of Justice. The whistleblower provided ‘significant’ information concerning
ongoing fraud, enabling the return of ‘a large amount of money’ to investors. The award is
the first of its kind since amendments to the SEC’s whistleblower programme
rules became effective on 7 December 2020. See: LNB News 24/02/2021 84.
Prime Minister’s Office has updated its document
collection for the EU-UK Trade and Cooperation Agreement (TCA), and associated
agreements reached between the EU and UK at the end of the Brexit transition
period. The newly added documents include an exchange of correspondence
confirming the UK’s agreement to the EU’s proposed two-month
extension to the provisional application of the TCA, pending ratification in
the European Parliament. As interim co-chair of the Partnership Council under
the TCA, Michael Gove signalled the UK’s agreement to the draft
decision proposed by the European Commission, extending provisional application
from 28 February to 30 April 2021. However, his response also noted the
government’s expectation that there would be no
further extensions beyond 30 April 2021, particularly in light of the ‘uncertainty’ that continued provisional
application would create. See: LNB News 23/02/2021 123.
House of Commons Library has published a briefing on new customs rules for
trade with the EU, which provides an overview of the changes in trade rules
between the UK and EU, as well as information and sources of advice regarding customs,
imports and exports. See: LNB News 19/02/2021 30.
London: The Central Bank of Ireland has warned insurers that it will scrutinise
how they deal with business interruption payouts linked to coronavirus after
policyholders were successful in their claim against FBD Insurance for cover
for business interruption claims arising out of the coronavirus lockdown. See
News Analysis: Coronavirus (COVID-19)—Central
Bank of Ireland warns insurers over BI claims.
In Nirro Holdings SA v
Patrick O’Brien the court considered whether the term of a
personal guarantee for the debts of a company, provided by its director, were
enforceable in circumstances where the directorship had been terminated as a
consequence of the company’s liquidation. Written by
Graeme Kirk, barrister, at Lamb Chambers. See News Analysis: Guarantees—interpretation
of contractual terms—commercial—evidence (Nirro Holdings SA v Patrick O’Brien).
European Council has announced that it has adopted conclusions arising from a
communication from the European Commission on a ‘New Consumer Agenda:
Strengthening consumer resilience for sustainable recovery’. The conclusions emphasise
the importance of increasing consumer confidence in the context of coronavirus,
as the Council believes that stimulating economic recovery is an absolute
priority. See: LNB News 22/02/2021 38.
European Consumer Organisation (BEUC) has responded to the European Commission’s publication of its trade
policy review, which sets out the EU’s new trade strategy. BEUC
outlines various ‘positive outcomes’ of the review, including ‘the ambition to use trade
deals as a tool to spur co-operation between those public authorities all over
the world’ and ‘to make the EU’s internal and external
policies more coherent’, as well as what BEUC
believes requires further clarification or extra work. See: LNB News 19/02/2021 7.
Cabinet Office has issued Procurement Policy Note 02/21 (PPN 02/21),
highlighting key requirements for public procurements and public contracts
subject to the World Trade Organization Government Procurement Agreement (WTO
GPA) and EU-UK TCA. PPN 02/21 applies with immediate effect and sets out the
relevant ongoing requirements for in-scope procurements in accordance with the
UK’s international obligations under the WTO
GPA and TCA, which came into effect from 1 January 2021. While the domestic
public procurement regulations are already broadly in line with the UK’s obligations under the WTO
GPA, they do not (yet) fully reflect the UK’s obligations under the
TCA. Contracting authorities therefore need to read certain obligations under
the TCA into the existing rules in order to ensure compliance pending any
substantive update to the domestic public procurement regime. See: LNB News 19/02/2021 79.
Cabinet Office has published new promotional material for stakeholders on
moving goods between GB and France. Subjects covered in the February 2021
Technical webinar include the exchange of views on logistics, customs, and SPS,
as well as views for the future, views on planning for 1 April and 1 July, and
industry views on what is most urgent to cover in future engagement. See: LNB News 24/02/2021 48.
Foreign, Commonwealth & Development Office has published the Partnership,
Trade and Cooperation Agreement between Albania and the UK, which was presented
to Parliament in February 2021. According to Article 12 of the agreement, it
will enter into force ‘on the later of the date on
which the EU-Albania Agreement ceases to apply to the UK or the date of the
later of the Parties’ notifications, by which
the UK and Albania notify each other that they have completed their internal
procedures’. See: LNB News 22/02/2021 79.
Centre for European Reform (CER) has published a report which explores the
future of the UK services trade following the end of the Brexit transition
period. The report acknowledges the UK’s position as what it
labels a ‘services superpower’, but questions what the
future holds as 56% of annual services exports are from foreign-owned business.
Several suggestions are made as to how the UK could create new opportunities
and increase investment in the services market. These range from prioritising
policy stability after years of uncertainty surrounding Brexit, to ensuring the
free flow of data so that companies are not discouraged from moving personal
and commercial data in and out of the UK. See: LNB News 22/02/2021 56.
European Commission has unveiled its future trade strategy. Intended to be ‘open, sustainable and
assertive’, it centres around the concept of ‘open strategic autonomy’. World Trade Organization
(WTO) reform has been recognised as a ‘priority’, alongside key objectives
to contribute to the EU’s post-coronavirus economic
recovery and encourage the ‘transformation of its
economy to a climate neutral one’. Meanwhile, the EU will
adopt a ‘tougher, more assertive’ approach towards the
implementation and enforcement of its trade agreements to ensure they ‘deliver the negotiated
benefits’. See: LNB News 19/02/2021 29.
Department for International Trade (DIT) has issued an update on the third
round of negotiations for a UK-New Zealand Free Trade Agreement (FTA) that took
place between 25 January 2021 and 9 February 2021. The fourth round of talks is
scheduled to take place in April 2021. See: LNB News 18/02/2021 42.
Corporate analysis: This News Analysis summarises the latest guidance from the Corporate Governance Institute relating to the holding of company general meetings and AGMs during 2021 in the context of ongoing pandemic restrictions and concerns. See News Analysis: Company general meetings and AGMs in 2021 and LNB News 24/02/2021 81.
analysis: In Fairford Water Ski Club v Cohoon & another  EWCA Civ 143,  All ER (D) 49 (Feb), the Court of Appeal held
that there had been no breach of section 317 of the Companies Act 1985 (CA 1985) (now section 177 of the Companies Act 2006) (CA 2006) by Mr Cohoon. The nature of Mr Cohoon’s interest in Craig Cohoon
Watersports (Watersports) had been sufficiently disclosed to Fairford Water Ski
Club’s directors before it entered into a
management agreement with Watersports for the period 2007 to 2017. The Court of
Appeal’s judgment provides helpful guidance on the
proper interpretation of CA 1985, s 317 as well as its successor, CA 2006, s 177. The central question was whether the
other directors were ‘fully informed of the real
state of things’ at a point before the contract was
finalised. The court’s judgment also gave an
indication of the potential application of CA 2006, s 1157 to claims of this nature. Written by Hugh
Sims QC and Katie Gibb, barristers, and Charlotte Mallin-Martin, pupil
barrister, Guildhall Chambers. See: Directors’ duties to disclose conflicts of interest (Fairford v Cohoon).
In Langer v McKeown and
another  EWHC 3485 (Ch),  All ER (D) 125 (Dec), the High Court found that
the actions of a company’s largest shareholder (the
respondent) had unfairly prejudiced a minority shareholder (the petitioner) in
a number of ways. This included causing the company and its subsidiaries to pay
an unjustified or excessive salary to various of the respondent’s family and friends,
selling one of the company’s subsidiaries at an
undervalue to a company controlled by the respondent, and diverting a business
opportunity to himself. Taken together, the instances of unfair prejudice had
caused material financial damage to the petitioner and she was entitled to a
remedy for them. It was appropriate that the respondent should purchase her
shares at a price to be determined.
fifth and final report from the Hampton-Alexander Review has been published. The review was designed to report on and
increase the representation of women in senior leadership positions and on
boards of FTSE 350 companies, from 2016 to 2020. The review was an independent,
voluntary and business-led initiative, which has been supported by the
government. The report notes that ‘enormous’ progress has been made
over the last ten years, although this is principally in non-executive director
roles. See: LNB News 24/02/2021 60.
Investment Association (IA) has outlined its expectations of companies on issues
including climate change, diversity and executive pay, ahead of the 2021 AGM
season. According to the IA, investment managers will be ‘turning up the pressure’ on companies to improve
ethnic diversity on their board and to report on climate-related risks. See: LNB News 24/02/2021 30.
Lewis has published its Public Company Engagement Review for
2020 (the Review). The Review analyses Glass Lewis’ engagement levels with
public companies and their shareholders in an effort to increase transparency.
It also provides an insight into Glass Lewis’ public company engagement
initiatives. See: LNB News 15/02/2021 84.
Financial Reporting Council (FRC) has made some changes to its principles for
operational separation of the audit practices of the ‘Big Four’ audit firms (PwC,
Deloitte, EY and KPMG) originally published in July 2020. The changes follow
the FRC’s review of the Big Four firms’ implementation plans for the
principles and discussion of the plans with the firm. It is now content for the
firms to move to the next stage of implementation. See: LNB News 23/02/2021 116.
Department for Digital, Culture, Media & Sport (DCMS) has published an
update from the government on its progress relating to the call for views and
evidence on the operation of the ‘representative’ action provisions of the DPA 2018. The government has decided not to
introduce new legislation as ‘there is no strong evidence’ suggesting the ICO ‘cannot or will not
investigate serious, singular breaches of the legislation or systemic failings’. See: LNB News 24/02/2021 79.
has published its annual report on the UK’s cybersecurity sector. The
report found that the ‘growing’ cybersecurity industry
attracted record investment in 2020, despite the coronavirus pandemic, with
businesses raising over £821m—more than twice the amount
raised in 2019. This year’s survey also suggests that
around 54% of firms are now based outside of London and the South East, showing
flourishing cybersecurity clusters in Scotland, Northern Ireland and North West
England. See: LNB News 18/02/2021 14.
National Cyber Security Centre (NCSC) has published its third annual report to
provide transparency on the efforts and achievements of the Active Cyber
Defence (ACD) programme, as well as evidence of its effectiveness. ACD’s progress includes
maintaining the Takedown Service, which reduces ‘badness’ on the internet, acquiring
a better understanding of how to instruct organisations through adoption,
keeping track of email security standards and developing a ‘prototype capability to
detect subdomain hijack vulnerability at scale’. See: LNB News 19/02/2021 75.
European Data Protection Supervisor (EDPS), Wojciech Wiewiórowski, has
published an Opinion on the TCA and an agreement on the security procedures for
exchanging and protecting classified information agreed between the EU and UK
(currently applied on a provisional basis). While the EDPS welcomes the two
agreements, the Opinion expresses regret that: (a) the protection of personal
data has been negotiated in a trade agreement (the TCA) rather than using the
established mechanisms provided in EU data protection legislation; and (b) that
certain safeguards are missing from the TCA. See: LNB News 23/02/2021 27.
Department for Digital, Culture, Media & Sport has published its response
to the House of Lords Select Committee on Artificial Intelligence’s December 2020 report, ‘AI in the UK: No Room for
Complacency’. Responding to the Committee, the
government ‘fully recognises the critical importance’ of establishing public
trust in artificial intelligence (AI) and data technologies. Further, following
the Committee’s comments on the jobs, ie that ‘[t]here is no clear sense
of the impact AI will have on jobs’, the government provides
that ensuring the public is equipped for the future’s labour market is also ‘critically important’, citing the ‘Future of Work’ as a key policy area
across governmental departments. See: LNB News 23/02/2021 78.
Cabinet Office has published its roadmap out of the current coronavirus lockdown in
England. The roadmap contains four main steps to easing restrictions. Before it
is possible to proceed to the next step, an assessment of the previous step
will be undertaken using four tests. Because of a lag between making changes
and seeing this reflected in the data, this assessment will occur after a
minimum of five weeks from the date the last step was taken. At all four steps,
the guidance will still be that people should continue to work from home where
they can. See: LNB News 22/02/2021 95.
Scottish Government has also updated its Strategic Framework, setting out the phased
and careful approach to easing coronavirus lockdown restrictions. The phased
return of education will be prioritised, followed by the increased limit on
outdoor mixing between households to four people from two households. The next
phase will see the stay at home restriction lifted and essential retail
reopened, while the final phase will involve the reopening of non-essential
retail, hospitality and services like gyms and hairdressers. There is likely to
be at least a three-week gap between each phase of easing to assess the impact
of changes. Ongoing financial support will continue to be available to
businesses. See: LNB News 24/02/2021 14.
In Uber BV and others v Aslam
and others  UKSC 5 the Supreme Court held that whether a
contract is a ‘worker’s contract’ is a matter of statutory
interpretation, not contractual interpretation. That involves taking a purposive
approach which, in the employment context, is to protect those who are
vulnerable as a result of their subordination to, and dependence upon, another
person in relation to their work. In the case of Uber, the employment tribunal’s findings on the relative
degree of control exercised by Uber and drivers respectively over the service
provided to passengers justified its conclusion that the drivers were workers.
Other gig economy businesses that are in a position of control and dictate the
way in which a service is provided are also likely to find that their staff
have rights as ‘workers’ and are therefore entitled
to the national minimum wage and holiday pay. See News Analysis: Supreme Court confirms that Uber drivers are workers (Uber
BV and others v Aslam and others), LNB News 19/02/2021 67 and Case Digest:  All ER (D) 89 (Feb).
In Parris v (1) Ajayi (2) SHC
Clemsfold Group (3) SHC Rapkyns Group 
EWHC 285 (QB) the High Court held that where a claimant seeks
damages in a defamation action on account of things said or written by the
employer in the lead-up to a dismissal, then such losses may not be pursued if
they in fact arise as a result of the happening of the dismissal, since they
are covered by the Johnson exclusion principle and hence the sole remedy lies
instead in bringing an unfair dismissal claim in the employment tribunal. See
News Analysis: Defamation losses not claimable where Johnson exclusion principle applies (Parris v (1) Ajayi (2) SHC Clemsfold Group (3) SHC Rapkyns Group). .
published the latest version of its employer guides for benefits in kind (CWG5) and PAYE and National Insurance
contributions (CWG2) to be used from 6 April 2021. See: LNB News 23/02/2021 39.
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