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Navigating a way through the international data transfer regime was never easy, but it’s now a minefield following the decision of the European Court of Justice in Schrems II. There’s no sign of substantive guidance from the ICO on what to do following the Schrems II judgment, so to help you we’ve developed a range of tools, including a new Practice Note on practical compliance, two new Flowcharts and a Precedent assessment for your international data transfers. We’ve also added international Getting the Deal Through guidance on data protection and government investigations. See News Analysis: New tools for international personal data transfers.
MLex: If the UK were to win a data adequacy finding from the EU, it would be ‘very likely, if not certain’ to face an immediate challenge by privacy campaigners, given recent rulings by the EU’s top court on international data transfers, a British technology industry representative has warned. See News Analysis: UK data adequacy decision by EU would face immediate legal challenge, lawmakers told.
The Information Commissioner’s Office (ICO) has issued Experian Ltd, a credit reference agency, with an enforcement notice which requires it to notify people, by July 2021, that it holds their personal data, and how it is using them or intends to use them for marketing purposes. In addition, by January 2021, Experian Ltd must cease to use data derived from the credit referencing side of its business. It is also required to improve privacy information, stop the processing of any unlawfully collected personal data, and delete any data supplied under the lawful basis of consent as that data is now being processed using the lawful basis of legitimate interests. Failure to comply with the enforcement notice may result in further action, which could include a fine of up to £20m or 4% of its total annual worldwide turnover. See: LNB News 27/10/2020 76.
The Serious Fraud Office (SFO) has published a chapter from its handbook that provides ‘comprehensive guidance’ on how the SFO approaches Deferred Prosecution Agreements (DPA). See: LNB News 23/10/2020 74.
The SFO has announced that it has reached a DPA with Airline Services Limited, which is subject to approval by the court. Approval is to be sought from Mrs Justice May at Southwark Crown Court on 30 October 2020. See: LNB News 22/10/2020 24.
The United States’ Department of Justice has announced that Beam Suntory Inc. (Beam) has agreed to pay $US 19,572,885 to close the government’s investigation into violations of the Foreign Corrupt Practices Act. Beam entered into a three-year deferred prosecution agreement, in which Beam agreed to co-operate with the department investigation which resulted in a 10% reduction off the bottom of the US Sentencing Guidelines fine range. In reaching this resolution, the government considered, among other factors, the seriousness of the crime, failure to promptly disclose conduct which promoted the investigation and Beam’s failure to fully remediate. See: LNB News 28/10/2020 53.
The Financial Action Task Force (FATF) has published the outcomes of its 21–23 October 2020 plenary meeting. The meeting covered the FATF’s strategic initiatives, country-specific processes and other strategic initiatives. The plenary meeting also resulted in the publication of a new list of jurisdictions under increased monitoring and updated FATF recommendations on combating money laundering and terrorist financing. See: LNB News 26/10/2020 36.
Law360, London: An influential parliamentary committee launched an inquiry on 23 October 2020 into how government bodies are working to combat economic crime after leaked files allegedly highlighted the failure of law enforcement to act against potential money laundering. See News Analysis: MPs launch inquiry into economic crime after files leak.
The Financial Conduct Authority (FCA) has published a number of webpages on whistleblowing, setting out how to report instances to the FCA, how the regulator can act, protecting whistleblowers’ identities, case studies, contact information, and what happens to disclosed information after a report is made. See: LNB News 22/10/2020 37.
Practising certificate renewals
The Solicitors Regulation Authority has announced that it has extended the practising certificate renewal window until 20 November 2020. See: LNB News 23/10/2020 83.
Brexit and beyond
The Ministry of Justice (MOJ) has published a list of webinars for legal professionals that will explore the legal changes from 1 January 2021. See: LNB News 28/10/2020 63.
The International Trade Committee has opened an inquiry on the UK-Japan Comprehensive Economic Partnership Agreement (CEPA). The inquiry is to consider the possible impacts of the Agreement, how it varies from the Japan-EU Economic Partnership Agreement, and the extent to which the government has accomplished its negotiating targets. The deadline for responses is 11 November 2020. In addition, the International Agreements Sub-Committee has reopened its call for evidence for the UK-Japan trade negotiations inquiry after the government released the final trade agreement. This inquiry will focus on the government’s aims and targets, the development of negotiations, and the possible effects of a final deal for individuals and businesses across the UK. The deadline for responses is 6 November 2020. See: LNB News 26/10/2020 13.
The Department for Transport has published the government’s response following a consultation on proposed amendments to relevant statutory instruments, made in 2019, relating to Operation Brock. The consultation sought views from stakeholders and residents regarding the policy approach and enforcement arrangements underpinning the contingency plans for the flow of trade across the Short Straits and management of traffic disruption in Kent at the end of the Brexit transition period. The renewal and updating of the relevant secondary legislation endeavours to minimise the risk of disruption and to mitigate the impact of the new controls that are likely to be placed on the movement of goods between Great Britain and the EU from 1 January 2021. See: LNB News 22/10/2020 54.
Legislation has been laid in Parliament detailing new rules and logos to protect British food and drink, guaranteeing the authenticity and origin of British produce. Geographical Indications (GI) schemes will ensure popular and traditional produce from the UK have special status highlighting their authenticity and origin at the end of the transition period. The status will ensure the products benefit from intellectual property protection and makes them highly valued by producers. This includes products such as Stilton cheese and Melton Mowbray pork pies. See: LNB News 22/10/2020 48.
Law360, London: Royal & Sun Alliance Plc (RSA) has excluded certain policy wordings from its Supreme Court appeal application in the FCA BI test case for non-damage losses arising out of the coronavirus lockdown, a step that has been described as a victory for small businesses. See News Analysis: FCA BI test case—RSA excludes policies from appeal.
Julie Farley, professional support lawyer, Maura McIntosh, professional support consultant, and partners Sarah Pollock and Emma Schaafsma, all of Herbert Smith Freehills, pinpoint how a second wave of coronavirus may affect force majeure clauses. See News Analysis: COVID-19 pressure points—force majeure considerations in the second wave of coronavirus (COVID-19).
The Court of Justice has ruled that a consumer’s right to cancel an off-premises contract under the Consumer Rights Directive does not apply to contracts for bespoke goods, even if the trader has not yet started producing the goods. See News Analysis: No right to cancel contract for bespoke goods, even if production has not begun (Möbel Kraft v ML).
The European Parliament’s Internal Market Committee has proposed a series of measures designed to strengthen consumer protection and enhance product safety and sustainability. The Committee called on the European Commission to grant consumers a ‘right to repair’, which would make repairs more appealing, systematic, and cost-efficient, and to enhance product safety. In addition, the Committee asked the Commission to consider labelling products and services according to their durability and possible restrictions on practices that intentionally shorten the lifetime of a product, called again for a common charger system, and pushed ‘for more sustainable public procurement’, as well as ‘responsible marketing and advertising that encourages sustainable business and consumer choices’. See: LNB News 27/10/2020 39.
Companies House has updated its coronavirus (COVID-19) guidance regarding access to its offices. Companies House offices in Cardiff, Belfast and Edinburgh will be closed to the public until March 2021. The London office will remain closed until March 2021. Paper documents and deliveries can still be made to the offices in Belfast, Edinburgh and Cardiff. See: LNB News 22/10/2020 71.
Public company takeovers
This analysis considers the Takeover Panel’s latest proposals to amend the Takeover Code in relation to the treatment of offer conditions and the offer timetable. The proposed changes are intended to ‘simplify the offer timetable and to accommodate the potentially lengthy timeframes required in order to satisfy the conditions relating to official authorisations and regulatory clearances to which many offers are now subject’. The Code Committee invites comments on the proposed amendments by 15 January 2021. See: LNB News 27/10/2020 58 and News Analysis: Analysing the Takeover Panel’s proposed changes to the offer timetable and offer conditions.
Equity capital markets
The FCA has publicly censured Aviva plc for breaching the Listing Rules and the Transparency Rules by failing to take reasonable care to ensure that a public announcement was not misleading and did not omit anything likely to affect the import of the information contained in it. The announcement, made on 8 March 2018, concerned Aviva’s ability to cancel certain preference shares at par. The FCA has found the breach to be serious but not intentional and recognises that Aviva acted to clarify the announcement and provided a payment scheme for affected preference shareholders. The FCA Executive Director of Enforcement and Market Oversight, Mark Steward, said that but for these prompt actions, the case could have led to a financial penalty. See: LNB News 26/10/2020 18.
MLex: EU companies should see an EU-wide certification programme for cloud services (aimed at boosting the security of cross-border data processing) by the spring of 2021, MLex has learned. See News Analysis: EU cloud services certification programme to be ready by spring 2021.
State security and intelligence
MLex: Fighting financial services crime with crime will become an option for the FCA if the Covert Human Intelligence Sources (Criminal Conduct) Bill is passed as it stands by Parliament—but the powers are no guarantee of more success in its mission to protect consumers from harm. See News Analysis: FCA’s licence to commit crime is no guarantee of consumer protection.
The elements of the Job Support Scheme that will assist employees who are working reduced hours due to coronavirus have been made more generous and broader in their coverage, the level of grants under the extension to the Self-Employment Income Support Scheme (SEISS) have been doubled, and new business grants have been announced for severely impacted (but still open) businesses in Tier 2 areas, under new measures announced by the Chancellor of the Exchequer on 22 October 2020. See News Analysis: Government makes Job Support Scheme and SEISS extension grants more generous.
The Department of Health and Social Care has updated its guidance on NHS Test and Trace in the workplace to reflect employers’ legal duties surrounding staff who are self-isolating. The guidance states that employers are legally required to ensure that their employees self-isolate if they have tested positive for coronavirus or have been in close recent contact with someone who has tested positive and received a notification to self-isolate from NHS Test and Trace. See: LNB News 27/10/2020 101.
Regulations underpinning the three-tier lockdown system are now in force in England, as part of the government’s efforts to step up its response to the pandemic. Shalina Crossley, Partner, Colin Leckey, Partner, and Gemma Taylor, Managing Practice Development Lawyer at Lewis Silkin consider if the new regulations demand a stricter approach to office work and meetings. See News Analysis: What does the COVID-19 tier system mean for offices?
The FCA has published policy statement PS20/12: Extending implementation deadlines for the Certification Regime and Conduct Rules. PS20/12 sets out the FCA’s final rules which require solo-regulated firms (except benchmark administrators) to fully implement the Certification Regime and Conduct Rules, and report information on Directory Persons, by 31 March 2021. The deadlines have been extended to give solo-regulated firms significantly affected by the coronavirus pandemic time to fully and properly implement the Certification Regime and to train staff effectively in the Conduct Rules; both are key components of the wider Senior Managers & Certification Regime (SM&CR). See: LNB News 28/10/2020 89.
The implied term of trust and confidence requires employers and employees not to conduct themselves, without reasonable and proper cause, in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee. In this context, conduct can take the form of a failure to do something, as well as the form of positively doing something, according to a Master of the High Court in Nair v Lagardère Sports And Entertainment UK  EWHC 2608 (QB). See News Analysis: Breach of trust and confidence can take the form of a failure to do something (Nair v Lagardère Sports And Entertainment UK).
Pay, benefits and tax
HMRC has produced a new factsheet setting out support available to businesses which will be affected by the changes to the off-payroll working rules from 6 April 2021. See: LNB News 22/10/2020 50.
In this article, Tracey Marsden, Partner and Catriona Aldridge, Senior Associate at CMS consider why the coronavirus crisis threatens the progress that has been made in reducing the gender pay gap and explore the opportunities the pandemic presents for employers to change the gender pay gap for the better.
See News Analysis: The gender pay gap in a COVID-19 world—are we falling back on old habits?
The Home Office has issued a substantial new Statement of Changes in Immigration Rules HC 813, along with an Explanatory Memorandum. The Statement implements many categories of the post-Brexit immigration system (termed the ‘Future Points-Based Immigration System’), including the new Skilled Worker route, as well as making amendments to the EU Settlement Scheme to deal with the end of the transition period, and various other changes. The new system, including the criminality changes, will also apply to EEA citizens who arrive in the UK from 1 January 2021 and are not covered by the EU Settlement Scheme. Many of the changes come into force on 1 December 2020.
See: LNB News 22/10/2020 80, and News Analyses: HC 813 and the new immigration system—skilled workers, HC 813 and the new immigration system—Global Talent and HC 813 and the new immigration system—Intra-Company Transfer.
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.
2 November 2020
Employment law issues for in-house lawyers
18 November 2020
Autonomous vehicles (2020)
30 November 2020
Commercial law—end of year round-up 2020
8 December 2020
14 December 2020
The European Electronic Communication Code (2020)
31 December 2020
Dealing with conflicts of interest within your organisation
Recent developments in commercial contracts (2020)
Cloud computing (2020)
Drones law (2020)
Influencers and intellectual property (2020)
(Brief) The Copyright Directive (2020)
Virtual networking and forum events
There’s no need to feel isolated if you are 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.
11 November 2020Modern slaveryRegister now to attend
Modern slavery is a topic of vital global importance. A panel discussion on this topic will be followed by an interactive Q&A session. As this is Armistice Day, we will end the session with a minute’s silence.
8 December 2020Gift to youRegister now to attend
This session will focus on your personal and career development. There will be an executive coach guest speaker who will address virtual networking and leadership. The session will also include both a commercial and COVID-19 update.
Various dates from October to December 2020LexisNexis Aspire Forum for Junior In-house LawyersTo 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.
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.
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