Governance: Government response to report on Bribery Act 2010

As reported in issue 101 of this newsletter, on 14 March 2019, the House of Lords Select Committee on the Bribery Act 2010 published its report ‘The Bribery Act 2010: post-legislative scrutiny’ as to whether the Act is achieving its intended purposes. Although the report concluded that ‘the Act is an excellent piece of legislation which creates offences which are clear and all-embracing’, a number of recommendations were made.  A summary of the conclusions and recommendations is available on page 107 of the report. On 13 May 2019, the government published its response to the review of the Act.  Although many of the responses simply noted the view of the committee, certain recommendations were rejected. For example, the recommendation that the Ministry of Justice should consider adding to its section 9 guidance, clearer examples of what might constitute acceptable corporate hospitality was rejected.  It is stated: ‘…the Government does not consider that it would be best placed to provide the bespoke, or more detailed clarification that the Committee suggests…’.  It also states: ‘The MoJ Guidance was drafted in a deliberately high-level, non-prescriptive way to encourage organisations to examine their own internal systems and procedures. As the Committee suggests, there are other organisations on a level closer to business such as professional organisations or trade associations that could provide sector specific Read Full Article…

Data protection: Tribunal decides on ICO Information Notice under DPA 2018

The First-tier Tribunal (information division) has considered an appeal against an Information Notice issued by the Information Commissioner under section 142, Data Protection Act 2018 (DPA 2018).  In its decision (issued in January 2019), the Tribunal noted that this was the first such appeal to reach final determination under the regime introduced by the DPA 2018. The Information Commissioner has power, under the DPA 2018, to issue Information Notices requiring controllers and processors to provide her with information that she ‘reasonably requires for the purposes of carrying out’ her statutory functions. In July 2018 the Information Commissioner launched an investigation into the data protection compliance of Doorstep Dispensaree Ltd (the company), a pharmacy delivery service operating in the south of England.  The investigation was prompted by a report from the Medicines and Healthcare Products Regulatory Agency concerning the manner in which the company appeared to be processing personal data.  During the investigation, the Information Commissioner initially requested that the company provide relevant information voluntarily.  The company refused to provide the requested information.  The Information Commissioner followed up with a formal Information Notice. Section 143(6) DPA 2018 provides that ‘an Information Notice does not require a person to provide the Information Commissioner with information if doing so would, by revealing evidence of the commission of an offence, expose the relevant person Read Full Article…

Employment: Government consultation on confidentiality clauses and workplace harassment or discrimination

On 4 March 2019, the Government published an open consultation called: ‘Confidentiality Clauses: measures to prevent misuse in situations of workplace harassment or discrimination’. The purpose of the consultation is to seek evidence and views on the use of confidentiality clauses – also known as non-disclosure agreements or NDAs – in the employment context, and to propose further regulation to tackle their misuse. The consultation uses the term ‘confidentiality clause’ whether as a stand-alone agreement or part of a wider contract or settlement agreement. It is acknowledged that confidentiality clauses have an important role to play in protecting trade secrets or other confidential information pertaining to an employer. There are certain existing legal limitations on confidentiality clauses, for example, they cannot override anti-discrimination law under the Equality Act 2010, or remove the protections around making a protected disclosure (‘whistleblowing’).  Also, a stand-alone confidentiality clause cannot prevent someone taking a matter to an employment tribunal, however, a valid settlement agreement can waive this right. There is evidence to suggest that they have been used to intimidate victims of harassment or discrimination from disclosing their treatment to the police or other people.  Therefore, the consultation seeks to examine: whether there should be more limitations on confidentiality clauses in the employment context, to make it easier to understand when workers are able to disclose Read Full Article…

Governance: EHRC ‘Freedom of Expression’ guide for HEIs

On 2 February 2018, the Equality and Human Rights Commission (EHRC) published a guide on Freedom of Expression for Higher Education Providers and Students’ Unions in England and Wales (the Guide).  In its introduction, the guide states that it ‘provides practical advice on how to protect free speech and makes it clear to students what they should expect from their institutions’.  The guide is aimed principally at: governing bodies of universities and other higher education providers students’ union trustees It states that it may also be of interest to others including academic staff, students’ union elected officers, individual students and speakers. In 2017, the House of Commons and House of Lords Joint Committee on Human Rights held an inquiry into the state of freedom of speech in UK universities.  It was found that: ‘…while restriction of freedom of expression was not a widespread issue, there were concerns around increased bureaucracy, and potential self-censorship from students on campus as a result of the Prevent duty guidance. They also flagged intolerant attitudes and violent protest as potential obstacles to free speech, as well as a potential conflict in interpretation and grey areas in some existing laws and guidance.’ (see page 5 of the Guide) Following concerns raised by the inquiry, in May 2018 the Minister of State for Universities, Science, Research and Read Full Article…

Charity: Institute of Fundraising issues new guide on telephone fundraising

On 13 January 2019 the Institute of Fundraising (IOF) published guidance for charities and fundraising professionals titled A Good Call: using the telephone for successful fundraising. The IOF guidance aims to provide recommendations on best practice in the context of telephone fundraising, including selecting commercial partners, and data protection compliance. The guidance is set out in two parts: The first part provides recommendations on the purpose and content of conversations that fundraisers may have with existing and potential supporters.  The topics covered include eligibility for gift aid, record-keeping and legacy and event fundraising.  There is a dedicated chapter on inbound calls. The second provides information on how to plan and prepare for fundraising telephone campaigns.  This includes recommendations on strategy, delivery, including working with third parties such as telemarketing agencies, call monitoring specialists and data suppliers, and data protection compliance. The guidance contains a number of flowcharts aiming to help charities and fundraising professionals decide whether they have a legal basis for making unsolicited marketing and administration calls.  It also provides a compliance checklist, together with a table of relevant resources. Fundraising across the charitable sector in England, Wales and Northern Ireland is regulated by the Fundraising Regulator. Charities registered in Scotland only are overseen by the Office of the Scottish Charity Regulator (OSCR), and relevant fundraising activity and complaints Read Full Article…

Commercial agreements: The scope of an ‘entire agreement’ clause

Our June 2018 Newsletter reported on the case of NF Football Investments Ltd and another v NFCC Group Holdings Ltd and another [2018] EWHC 1346 (Ch). It concerned the acquisition by the claimant of the shares of Nottingham Forest Football Club Limited from the defendants.  This judgment concerned a claim for statutory misrepresentation pursuant to section 2(1) of the Misrepresentation Act 1967.  The defendants argued that this claim should be struck out as it was precluded by an ‘entire agreement’ clause set out in the share purchase agreement (SPA).  As we reported previously, the court agreed that it was not the intention of the parties to address outwith the contractual structures, claims arising out of the SPA (such as the statutory misrepresentation claim). This judgment has been overturned on appeal, however, in the case of Al-Hasawi v Nottingham Forest Football Club Ltd and others [2018] EWHC 2884.  The judge noted that it may have made commercial sense for the parties to have excluded claims for statutory misrepresentation, but he held that the entire agreement clause was not effective to achieve this.  To hold otherwise would be to improve the bargain that the parties had made.  Although the contract did provide for certain contractual remedies, the court held that the existence of specific remedies could not lead to the inference that all Read Full Article…