Risk & Compliance monthly highlights - October 2019

Risk & Compliance monthly highlights - October 2019

This month’s edition of Risk and Compliance highlights includes: (1) Brexit; (2) crime prevention; (3) AML & CTF; (4) information management & security; (5) data protection; (6) a selection of other news and updates; (7) all the latest new and updated content.

 

In this issue:

Brexit

Crime prevention

AML & counter-terrorist financing

Data protection

Information management & security

 

Brexit

Prorogation of Parliament

In a unanimous judgment, the Supreme Court concluded that the question of the lawfulness of the Prime Minister’s advice to Her Majesty the Queen to prorogue Parliament was justiciable, and in this case the decision to advise the Queen prorogue Parliament was unlawful as it had the effect of frustrating/preventing Parliament’s ability to carry out its constitutional functions without reasonable justification. On this basis the prorogation was void and of no effect. Parliament has therefore not been prorogued. Nick Wrightson, senior associate in the Public Law team at Kingsley Napley, and Kieran Laird, partner and head of constitutional affairs in the Gowling WLG Brexit Unit give their analysis of the Supreme Court’s decision, highlighting key legal and constitutional implications. See: LNB News 24/09/2019 21.

‘Get Ready for Brexit’ campaign

The government has launched a public information campaign to prepare the public and business owners for Brexit. The campaign aims to set out to the public and business owners what they need to do in order to be prepared when the UK leaves the EU on 31 October 2019. UK citizens intending to travel to EU countries, exporters to the EU and groups requiring particular information, such as the legal sector, are specifically targeted by the campaign. See: LNB News 02/09/2019 36 and LNB News 12/09/2019 84.

Import & export processes post-Brexit

The Department for Environment, Food & Rural Affairs has published a collection of flowcharts that detail changes to import and export processes for certain goods and products to the EU post-Brexit. See: LNB News 18/09/2019 18.

No-deal Brexit & competition

Jay Modrall, partner at Norton Rose Fulbright, gives an in-depth look into competition waivers in a no-deal Brexit scenario and highlights the ‘case-by-case’ nature of the EU’s stance on competition waivers. See News Analysis: No deal Brexit and competition waivers—an in-depth look.

On 9 September 2019, the government published the Competition (Amendments etc) (EU Exit) (No 2) Regulations 2019. See News Analysis: Brexit—UK government adopts SI to copy commitments in EU competition cases into UK law.

No-deal Brexit & data protection

The Information Commissioner’s Office (ICO) has published guidance to assist small and medium-sized businesses in their preparations for a no-deal Brexit scenario and emphasises that businesses must ‘prepare for all scenarios’. In the guidance, the ICO highlights previously published information on the maintenance of data flows that has been tailored to be more relevant and accessible to small and medium-sized businesses. See: LNB News 11/09/2019 55.

Crime prevention

Economic crime

HM Treasury has updated its guidance notice for the frozen asset reporting exercise 2019. The exercise is carried out annually, to update the Treasury’s records to reflect any changes to accounts during the reporting period. All persons that hold or control funds or economic resources belonging to a designated person, are required to submit the frozen asset reporting form to the Office of Financial Sanctions Implementation (OFSI) by 11 October 2019. See: LNB News 05/09/2019 77.

On 2 September 2019, the Serious Fraud Office (SFO) Director, Lisa Osofsky, gave a speech to the Cambridge Symposium on Economic Crime 2019. Co-operation was the key theme to Osofsky’s second speech before the annual symposium—co-operation with their international law enforcement partners, and co-operation with the private sector in terms of crime prevention. See: LNB News 02/09/2019 48.

The Solicitor General, Michael Ellis QC, has delivered a speech at the Cambridge International Symposium on Economic Crime, in which he has outlined some of the recent work that has been undertaken to combat economic crime, including the launch of the National Economic Crime Centre, the new powers, including unexplained wealth orders, under the Criminal Finances Act 2017 and the introduction of the ‘failure to prevent’ offence under section 7 of the Bribery Act 2010. See: LNB News 02/09/2019 44.

Prosecutors should consider offering more incentives to companies that strike bargains allowing them to avoid prosecution in exchange for paying a fine and showing that their culture has changed, the former head of Britain’s white-collar crime agency has said. See News Analysis: Ex-SFO chief calls for bigger discounts on DPA fines.

The US Department of Justice (DOJ) may add more guidance for US prosecutors on what to do when a company claims it can’t survive a big fine, a DOJ official has said, suggesting the potential for yet another policy aimed at decreasing uncertainty for companies facing an enforcement action in the US. See News Analysis: DOJ mulls new US guidance on corporate poverty claims.

AML & counter-terrorist financing

Regulation & supervision

Members of the European Parliament have adopted a resolution calling for proper implementation of anti-money laundering (AML) rules, including better co-operation between the administrative, judicial and law enforcement authorities within the EU. MEPs stressed that the date of transposition of the fourth AML directive (MLD4) was June 2017 and MLD5 is January 2020 and urged Member States to implement the rules into national law. See: LNB News 19/09/2019 84.

The Financial Action Task Force (FATF) has published an updated overview of the AML and counter-terrorist financing (CTF) ratings of the 205 jurisdictions that have committed to implementing the FATF Recommendations. See: LNB News 06/09/2019 58 and LNB News 11/09/2019 43.

HMRC has updated its list of UK firms not complying with AML obligations. As a supervisor of the Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017, which came into effect on 26 June 2017, HMRC has a duty to publish details of businesses that have been penalised for non-compliance. See: LNB News 04/09/2019 8.

The European Parliament has published an analysis paper on AML reinforcing the supervisory and regulatory framework. It presents current initiatives and actions aimed at reinforcing the AML supervisory and regulatory framework in the EU, and outlines the EU supervisory architecture. The paper also discusses ways that have been proposed to further improve the AML supervisory and regulatory frameworks. See: LNB News 02/09/2019 61.

 

Data protection

Lawful processing of data

The ICO has urged anyone who deals with the personal details of others in their work to be mindful of the stricter regulations surrounding the retainment of persona data in the Data Protection Act 2018 compared to the Data Protection Act 1998. See: LNB News 05/09/2019 72.

The Law Society has published a blog exploring the ‘known paradox’ that digital innovation is dependent on consumers trusting organisations with their personal data, and considers how the General Data Protection Regulation (EU) 2016/679 (the GDPR) facilitates this for lawtech. The blog emphasises the importance of using data protection impact assessments and designing data protection initiatives carefully to protect people’s data and rights from the start of a project to ensure lawtech is being used efficiently and lawfully. See: LNB News 04/09/2019 43.

 

Privacy policies & notices

Vice’s ‘Motherboard’ team has found that Microsoft workers occasionally listen to real Skype conversations that have been processed by translation software, despite this not being explicitly stated in Skype’s terms and conditions. Emma Wright, partner in the commercial technology team, and Anita Bapat, partner in the data protection and privacy team, both at Kemp Little, discuss the implications of this on consumers and businesses, and highlight the importance of consumers and businesses alike taking the time to read terms and conditions and privacy policies before signing on the dotted line. See News Analysis: Protecting personal conversations from human monitoring.

EU-US Privacy Shield

EU commissioner for justice, consumers and gender equality, Věra Jourová and US secretary of commerce, Wilbur Ross, have issued a statement following the third annual joint review of the EU-US Privacy Shield framework. The review ‘covered all aspects of the functioning’ of the framework, including the administration and enforcement, as well as wider legal developments in the US. See: LNB News 16/09/2019 29.

US Secretary of Commerce, Wilbur Ross, has announced that more than 5,000 companies have been certified under the EU-US Privacy Shield framework, by which data is transferred between the two jurisdictions in accordance with the GDPR. The Privacy Shield framework requires companies to make public, legally enforceable commitments to comply with the framework’s data protection principles. Approximately 70% of the companies certified are small and medium sized businesses. See: LNB News 13/09/2019 12.

Information management & security

Cybersecurity

The Department for Digital, Culture, Media & Sport (DCMS) is to undertake a new survey on the costs and impacts of cyber breaches and attacks on organisations. The survey, which will be called ‘Cyber Security Breaches Survey 2020’, is directed at UK businesses, charities and educational institutions and the DCMS intends to find out how these organisations approach cybersecurity and the cyber threats that they face. See: LNB News 25/09/2019 65.

On 2 September 2019, insurer Swiss Re and Capsicum Re launched a new program to help underwriters and brokers assess cyber risk and avoid the risk of inadvertently offering ‘silent’ cyber cover. See: Insurers launch program to tackle ‘silent’ cyber risk.

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