Over the summer, in-house lawyers should keep abreast of developments across a range of areas, including climate change, data protection, sanctions, employment discrimination and artificial intelligence.
Climate change
The High Court has given its decision on a judicial review challenge to the government’s October 2021 Net Zero Strategy, brought by ClientEarth, Friends of the Earth and the Good Law Project. The claimants argued that the Net Zero Strategy failed to comply with the requirements of the Climate Change Act 2008 (CCA 2008), which sets a 2050 net zero target for greenhouse gas emissions and requires the Secretary of State to set carbon budgets and to prepare and report on policies and proposals to enable the targets and budgets to be met.
The court found that the Net Zero Strategy did not include matters that were material to the issue of whether the CCA 2008 targets could be met, and which the Secretary of State was obliged to report on to Parliament. The Secretary of State had failed to comply with their obligations under sections 13 and 14 of the CCA 2008 in relation to the Net Zero Strategy. As the court has decided that the Net Zero Strategy is inadequate, the government will need to update it to provide more information, including how the policies will achieve the CCA 2008 targets.
On 7 July 2022, the Energy Bill, also referred to as the Energy Security Bill, was published. Its aim is to build a more secure, homegrown energy system that is cleaner and more affordable. Practical Law has published an overview note of the Energy Bill.
Data protection
On 18 July, the much-anticipated Data Protection and Digital Information Bill was introduced into Parliament. Reflecting the freedoms afforded to the UK in a post-Brexit environment, the Bill is intended to update and simplify the UK GDPR and Data Protection Act 2018 with a view to reducing burdens on organisations, while still maintaining high data protection standards. The Bill aims to introduce more flexibility and makes provision for a variety of measures relating to personal data and other information, including digital information. There are numerous proposed changes, including reforming the Information Commissioner’s Office (ICO).
The Information Commissioner, John Edwards, has recently presented his vision for the ICO and launched the ICO25 plan, an ambitious draft three-year strategic plan that includes an accompanying annual action plan, which is open for public consultation.
Sanctions
The Office of Financial Sanctions Implementation and the National Crime Agency have published a red alert report describing the typical techniques used by Russian elites and their enablers to attempt to evade financial sanctions. Some of the methods described in the alert include the use of cryptoassets and the transfer of funds directly and indirectly to jurisdictions where sanctions are not in place, such as the UAE, Turkey, China, Brazil, India and former Soviet Union states. The techniques used and described in the red alert stand as a useful foundation against which those in the financial and commercial sectors can measure their existing sanctions due diligence policies and systems.
On 19 July, the Russia (Sanctions) (EU Exit) (Amendment) (No 12) Regulations 2022 (SI 2022/801) entered into force, making amendments to the Russia (Sanctions) (EU Exit) Regulations 2019 (SI 2019/855) by:
- Prohibiting additional types of new investment in Russia.
- Restricting acquisitions of any ownership interest in land in Russia and in entities connected with or having a place of business in Russia.
- Prohibiting the establishment of commercial arrangements such as branches in Russia and joint ventures with persons connected with Russia (It also prohibits investment services directly linked to such activities).
Employment: discrimination
An employment tribunal has upheld a claim of direct discrimination on ground of belief, where an individual’s contract was not renewed because she had expressed gender critical beliefs (including a belief that sex is immutable and should not be conflated with gender identity, and that trans women are men), which some colleagues found offensive. Although only a first instance decision, this judgment has generated much attention in the press and on social media, and is already being seen as a landmark by some. It is sure to help shape future debate on the scope of legitimate expression of beliefs, particularly beliefs about gender, both in and out of the workplace.
In another recent case, the Employment Appeal Tribunal held that a tribunal did not err in dismissing a Christian doctor’s claims of direct discrimination, indirect discrimination and harassment on grounds of religion or belief because of his refusal to address transgender service users by their chosen pronouns.
The government’s Race Disparity Unit has published a consultation on new standards for ethnicity data. The standards, produced by the government’s Equality Hub, set out best practice for government departments and other public bodies when collecting, analysing and reporting ethnicity data. The new standards will also be useful to anyone using ethnicity data, including private sector organisations. The consultation closes on 30 August.
National Security and Investment Act
BEIS has published a set of market guidance notes based on analysis of the notifications received under the National Security and Investment Act 2021, and feedback from stakeholders, during the first six months of its operation. The guidance particularly focuses on whether commonly raised scenarios require a mandatory notification, although BEIS states that it welcomes suggestions for future guidance and will publish further market guidance notes in early 2023.
Artificial intelligence
The government has published a policy paper entitled, Establishing a pro-innovation approach to regulating AI, and containing proposals for the regulation of artificial intelligence (AI), together with an action plan that provides a progress report on the government’s implementation of the strategy paper it published in 2021. The government says that it will publish a White Paper for consultation in late 2022 to set out a proposed framework, and its implementation and monitoring. It calls for views and evidence on the policy paper, based on six broad questions. The response period runs until 26 September.
Dates for your diary
1 August
LSE consultation on amendments to its Admission and Disclosure Standards closes.
18 August
Closing date for FRC consultation on audit quality indicators.
26 August
FRC consultation on draft amendments to FRS 100 (Application of Financial Reporting Requirements) closes.
31 August
ICO consultation on how digital product teams apply privacy by design ends.
