Key developments for in-house lawyers this month focus on climate change, with the 26th conference of the parties (COP 26) to the United Nations Framework Convention on Climate Change (UNFCCC) being held in Glasgow on 1-12 November 2021. In advance of COP 26, the government has published its long-awaited Net Zero Strategy.
Climate change
COP 26, which was postponed due to the COVID-19 pandemic, will be held on 1-12 November in Glasgow. It aims to bring parties together to accelerate action towards the goals of the Paris Agreement. In advance of COP 26, the government published its long-awaited Net Zero Strategy.
The Strategy sets out policies and proposals to ensure the UK continues to meet its carbon budgets under the Climate Change Act 2008 and achieves its nationally determined contribution under the Paris Agreement. It also sets out the government’s vision for a decarbonised economy in 2050. The Strategy also sets out the government’s policies to decarbonise key areas of the economy, including:
- Power.
- Fuel supply and hydrogen.
- Industry.
- Heat and buildings.
- Transport.
HM Treasury has published a final report of its Net Zero Review that uses existing data to analyse the key issues and trade-offs in the next 30 years as the UK transitions towards net zero greenhouse gas emissions by 2050.
Earlier this month, the Chancery Lane Project published its Net zero toolkit, which includes 20 new clauses and high ambition versions of 24 of its existing clauses. The new clauses principally cover:
- Corporate governance.
- Supply chain contracts.
- Construction and infrastructure projects.
- Finance and insurance contracts.
The Environmental Audit Committee has launched an inquiry on a potential future carbon border adjustment mechanism (CBAM) for the UK. CBAMs seek to prevent “carbon leakage”, under which the goods of energy intensive industries are imported more cheaply from countries with lower environmental standards. Carbon leakage disadvantages domestic industry and undermines government efforts to reduce carbon emissions.
Corporate
HM Treasury has published a call for evidence in relation to a review of the capital raising processes of existing publicly traded issuers by the UK Secondary Capital Raising Review. The review will examine whether rule changes and better use of technology could make capital raising more efficient for companies already listed on UK markets and is the latest step in the government’s response to Lord Hill’s UK Listings Review. Responses to the call for evidence should be submitted by 16 November.
Data protection
The Information Commissioner’s Office (ICO) has opened a consultation on the beta version of its AI and data protection risk toolkit, which will close on 1 December. The toolkit is part of the ICO’s commitment to enable good data protection practice in AI. It contains risk statements to help organisations that use AI to process personal data understand the risks to individuals’ information rights.
On 5 October, the ICO’s statutory data sharing code of practice came into force. The code provides practical guidance for organisations on how to share personal data in compliance with the requirements of the UK GDPR and Data Protection Act 2018, including on:
- Transparency.
- The lawful basis for processing.
- The accountability principle.
- The need to document processing requirements.
Anti-bribery and corruption
The Serious Fraud Office (SFO) has secured the conviction of Petrofac Ltd for seven separate counts of failure to prevent bribery between 2011 and 2017. Petrofac Ltd failed to prevent former senior executives of the Petrofac group of subsidiaries (the Petrofac Group) from using agents to systematically bribe officials over a period of six years to win oil contracts in Iraq, Saudi Arabia and the United Arab Emirates. Petrofac Ltd was fined £47,197,640 and ordered to pay confiscation of £22,836,985, along with the SFO’s costs of £7 million.
It is significant that Petrofac did have some, albeit inadequate, anti-corruption procedures in place. The sentencing remarks stated that they were easily bypassed. It therefore remains the case that there is no judicial guidance or contested case on the extent to which procedures can be considered adequate.
Gig economy
The Court of Appeal has made an important addition to the canon of employment status cases arising out of the gig economy. The court upheld an employment tribunal’s decision that a courier, who could release a delivery slot that he had agreed to undertake to another courier via a smartphone app, worked under a contract for the personal performance of services, satisfying the definition of “worker” under section 230(3)(b) of the Employment Rights Act 1996.
Merger control
The Competition and Markets Authority (CMA) has imposed a penalty of £50.5 million on Facebook, Inc (Facebook) for failure, without reasonable excuse, to comply with the requirements of an initial enforcement order (IEO) issued in the context of the completed acquisition by Facebook of Giphy, Inc. This is the first time the CMA has found a company to have breached an IEO by consciously refusing to report all the required information.
Dates for your diary
1 November
Deadline for responses to BEIS inquiry on state aid and post-Brexit competition policy.
10 November
Deadline for responses to CMA call for inputs to inform response to government request for advice on how competition and consumer regimes can support environmental sustainability goals.
19 November
DCMS consultation on government reforms to UK data protection laws ends.
24 or 25 November
The Court of Appeal will consider whether an employer was negligent or vicariously liable for the actions of an employee whose practical joke unintentionally caused injury to a contractor at work.
28 November
- ICO consultation on the first draft chapter of its draft guidance on anonymisation, pseudonymisation and privacy enhancing technologies ends.
- Deadline for member states to publish and adopt measures in compliance with the Enforcement and Modernisation Directive.
