Newsletter Issue 89

The following articles are covered in this newsletter:

• Governance: Office for Students launches new regulatory framework; Educational negligence claim failed
• Procurement: Model Services Contract updated; CCS guidance on GDPR and DPA 2018; European Commission publishes Public Procurement Guidance for Practitioners
• Commercial Agreements: High Court: terms of contract termination notice and common law claims for damages; Practical contracting – memoranda of understanding, etc
• Data protection: Data Protection (Charges and Information) Regulations 2018 and ICO guide published; Consultation on draft Regulations to transpose Trade Secrets Directive into UK law
• Employment: Establishing equal pay claims using statistical evidence
• FAQ Data protection: Are current Privacy Impact Assessments (PIAs) different from the Data Protection Impact Assessments (DPIAs) required by the GDPR?
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Office for Students launches new regulatory framework

The Office for Students (OfS) has published its regulatory framework for higher education in England and a number of associated documents, all of which are now available on its website. The framework, which is the result of the consultation launched by the Department of Education in October 2017 and reported in issue 87 of our newsletter, describes how the OfS intends to perform its various statutory functions under the Higher Education and Research Act 2017 (HERA), and provides guidance for HEIs on conditions of registration. The framework is split into five parts: the OfS’s risk-based approach sector-level regulation regulation of individual providers validation, degree awarding powers and university title guidance on the general ongoing conditions of registration Key points from the framework include the following: the categories for registration are reduced from three to two, ‘approved’ and ‘approved (fee cap)’.  Only HEIs in the latter category will be eligible for direct funding provided by UK Research and Innovation under section 97, HERA.  The ‘registered (basic)’ category in the original proposal for providers that simply wished to be registered but would not have been entitled to research funding or student support has been dropped annual OfS registration fees for smaller providers are lower than those in the original proposal there will be a subsidy for providers with fewer than 300 students Read Full Article…

Practical contracting – memoranda of understanding, etc

From time to time, the service is consulted about the application and interpretation of documents of a preliminary nature to a contract, such as memoranda of understanding.  Generally, these will be employed where a formal contract is anticipated, but the parties may not wish, or be in a position, yet to enter into a detailed and binding commitment. Each document requires to be considered in the light of the relevant circumstances, which will vary from one arrangement to another.  There are certain general considerations, however, that should be borne in mind when dealing with such matters – as follows: Terminology – various terms are used to describe the documents, such as memoranda of understanding, letters of intent, heads of agreement, terms sheets.  The use of one of these titles may reflect the practice of a particular sector or party.  They have no particular legal significance or meaning, however, and are not conclusive of the legal effect of the document, which will depend ultimately on the assessment by a court of the contents and other relevant evidence. Uncertainty – in particular, the legal status of such documents – ie whether or not they are of a binding nature – can be uncertain.  Accordingly, we recommend that any such document should clarify the intentions of the parties in this regard. Ancillary provisions Read Full Article…

CCS guidance on GDPR and DPA 2018

On 7 February 2018, the Crown Commercial Service (CCS) published a correction to Procurement Policy Note 03/17 (PPN) published on 19 December 2017. As reported in issue 88 of this newsletter, the PPN contains guidance on how existing and new contracts can be brought into line with the requirements in the EU General Data Protection Regulation (GDPR) and Data Protection Act 2018 (DPA 2018), which will come into force on 25 May.  The PPN includes a set of standard generic terms and conditions covering GDPR that can be added into relevant contracts. The correction is regarding an error in clause 1.13 which was corrected on 17 January 2018 to reinstate the control of the Customer.  This clause now states: ‘The Customer may, at any time on not less than 30 Working Days’ notice, revise this clause by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when incorporated by attachment to this Agreement).’ Although in-scope organisations are restricted to central government departments, their executive agencies and non-departmental public bodies, the guidance observes that other public bodies are subject to the new data protection legislation and may wish to apply the approach set out in the PPN 03/17.