Category Archives: Legislative Changes

Looking at recent and future legislation.

Draft Bills In Parliament that you may not have heard about…

As a self-confessed legal nerd I often check the Parliament Web pages for  draft bills that may eventually become law; and consider how they could affect clients, the economy and ponder whether they stand any chance at all of receiving royal assent.

Many of my readers will have heard of the Academies Bill, but I dare say that the majority will not have heard about Allhallows Staining Church Bill, or the Face Coverings (Regulation) Bill or the Former Metal Mines Bill.  Further details of these proposed laws can be found on the web site, and I set out a few details of some choice selections below:

Face Coverings (Regulation) Bill is a Private Members’ Bill proposed by Mr Philip Hollobone, and it had its first reading in the House of Commons on 30 June 2011.   The purpose of the proposed law is “to regulate the wearing of certain face coverings; and for connected purposes”.

s.11 provides as follows:

Subject to the exemptions in subsection (3), a person wearing a garment or
other object intended by the wearer as its primary purpose to obscure the face
in a public place shall be guilty of an offence.
A “public place” is as defined in section 9(1) of
the Public Order Act 1936.

Those important exemptions set out at clause 1 (3) are:

A person does not commit an offence under subsection (1) if the garment or
other object is worn—
(a) pursuant to any legislative or regulatory provision;
(b) as a necessary part of any activity directly related to a person’s
(c) for reasons of health or safety;
(d) for the purposes of a sporting activity;
(e) for the purposes of art, leisure or entertainment; or
(f) in a place of worship.

I am not convinced that this private members bill will make it onto the statute books.

Former Metal Mines Bill – another private members bill, this time proposed by Tom Blenkinsop. This Bill was introduced to Parliament on 9 February 2011 under the Ten Minute Rule. This allows an MP to make his or her case for a new bill in a speech lasting up to ten minutes. An opposing speech may also be made before the House decides whether the bill should be introduced. If the MP is successful the bill is taken to have had its first reading.

Private Members bills are often not printed until close to the second reading debate – which seems to me to be rather contrary to open government. However, the summary states that it is a “Bill to give the Coal Authority responsibility for preventing adverse environmental impacts from former metal mines; and for connected purposes“.

Freedom of Information (ammendment) Bill  sponsored by Tom Brake, was not moved for debate on 17 June 2011. The order to read the Bill a second time lapsed. There is no sign of when the Bill will progress further. The Bill had its First reading on 7 September 2010 through the Ten Minute Rule.

It is described as a ” Bill to amend the Freedom of Information Act 2000 to remove provisions permitting Ministers to overrule decisions of the Information Commissioner and Information Tribunal; to limit the time allowed for public authorities to respond to requests involving consideration of the public interest; to amend the definition of public authorities; and for connected purposes”.

Health and Safety Consultants (Qualifications) Bill sponsored by Chris Chope and is expected to have its second reading debate on 9 September 2011.

It is described as “A Bill to introduce qualification requirements for health and safety consultants; to provide accreditation for such consultants; and for connected purposes”.

Lip-reading Bill – The sponsoring member (Ian Lavery) has nominated 4 November 2011 for the second reading. As the House is not expected to sit on this day it is unlikely to be debated on this date. The sponsoring member may choose another day for the second reading.

Described as: “A Bill to require lip-reading to be classified as an essential skill for the purpose of skills funding; to require the Secretary of State to ensure that people who are deaf or hard of hearing have access to lip-reading classes provided by local learning providers at no cost to the learner; and for connected purposes”.

London Olympic Games and Paralympic Games (amendment) Bill – due to have its report stage and third reading on 8 September 2011.

The Summary states:

The Bill makes a small number of technical amendments to the advertising and trading, ticket touting and traffic management provisions of the London Olympic Games and Paralympic Games Act 2006. These amendments cover:

  • the seizure of articles which contravene advertising and trading regulations
  • the parliamentary procedure and notice periods required when new advertising and trading regulations are introduced
  • the penalty for unauthorised sales of Olympic tickets
  • traffic regulation and enforcement during the Games.

Medical Insurance (Tax relief) Bill – sponsored by Peter Bone, the bill aims to “provide for tax relief on medical insurance premiums”.

Onshore Wind turbines (proximity of habitation) Bill – introduced in November 2010 and is expected to have its second reading debate on 20 January 2012.

The Bill is summarised as: “The Bill would give powers to local authorities to specify in their neighbourhood development plans (defined as in the Localism Bill) a ‘recommended best practice set-back distance’ between onshore wind turbines and habitations. It includes recommendations for this set-back distance, calculated as a multiple of the turbine rotor diameter”.

Police Reform and social responsibility bill – proposed by the Home Secretary, Theresa May, and had its third reading on 20 July 2011.

The bill is summarised as: “The Bill covers five distinct policy areas: police accountability and governance; alcohol licensing; the regulation of protests around Parliament Square; misuse of drugs; and the issue of arrest warrants in respect of private prosecutions for universal jurisdiction offences.

Key areas

  • replaces police authorities with directly elected Police and Crime Commissioners, with the aim of improving police accountability
  • amends and supplements the Licensing Act 2003 with the intention of ‘rebalancing’ it in favour of local authorities, the police and local communities
  • sets out a new framework for regulating protests around Parliament Square. Relevant sections of the Serious Organised Crime and Police Act 2005 would be repealed and the police would be given new powers to prevent encampments and the use of amplified noise equipment
  • enables the Home Secretary to temporarily ban drugs for up to a year, and removes the statutory requirement for the Advisory Council on the Misuse of Drugs to include members with experience in specified activities
  • introduces a new requirement for private prosecutors to obtain the consent of the Director of Public Prosecutions prior to the issue of an arrest warrant for ‘universal jurisdiction’ offences such as war crimes or torture. The Government’s aim in introducing this change is to prevent the courts being used for political purposes”.

Protection of Freedoms Bill – is awaiting its report stage, and is summarised as:

The Bill includes a wide range of measures.

Key areas

  • brings in a new framework for police retention of fingerprints and DNA data, and requires schools to get parents’ consent before processing children’s biometric information
  • introduces a code of practice for surveillance camera systems and provides for judicial approval of certain surveillance activities by local authorities
  • provides for a code of practice to cover officials’ powers of entry, with these powers being subject to review and repeal
  • outlaws wheel-clamping on private land
  • introduces a new regime for police stops and searches under the Terrorism Act 2000 and reduces the maximum pre-charge detention period under that Act from 28 to 14 days
  • restricts the scope of the ‘vetting and barring’ scheme for protecting vulnerable groups and makes changes to the system of criminal records checks
  • enables those with convictions for consensual sexual relations between men aged 16 or over (which have since been decriminalised) to apply to have them disregarded
  • extends Freedom of Information rights by requiring datasets to be available in a re-usable format
  • repeals provisions (never brought into force) which would have allowed trial without a jury in complex fraud cases
  • removes time restrictions on when marriage or civil partnership ceremonies may take place”.

Referendums Bill – had its first reading in July 2010, and is summarised as being: “A Bill to provide for minimum turn-out thresholds for referendums; to impose restrictions on holding elections and referendums on the same day; to facilitate combined referendums on different issues; and for connected purposes“.

Rights Bill – sponsored by Philip Hollobone and described as “A Bill to set out certain principles in a United Kingdom Bill of Rights; to repeal the Human Rights Act 1998; and for connected purposes“.

Snow removal bill – had its first reading in July 2011, and is summarised as: “A Bill to provide immunity from prosecution or civil action for persons who have removed or attempted to remove snow from public places; and for connected purposes“.

United Kingdom sovereignty Bill – This Bill was introduced by Christopher Chope, and the Parliament web site gives this rather sad addendum: “This Bill was stood over at its second reading on 18 March 2011 because fewer than 40 MPs were present. The Bill can still progress through the House. The second reading debate will be on a date to be announced”.

The Bill seeks to confirm the sovereignty of the UK Parliament by prohibiting the Government from signing, ratifying or implementing a treaty or law which increases the powers of the European Union over the United Kingdom, unless it has first been approved in a UK referendum.

If enacted, the Bill would override the requirements of the European Communities Act 1972, the rule of prerogative, the rule of international law, and any other Act of Parliament, unless the latter expressly stated to the contrary. The requirement for the Queen to withhold Assent from a Bill without a referendum first having been won would seem to interfere with a constitutional personal prerogative of the Crown.

Review by Philip Henson 


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Enforceability of Compromise agreements – ambiguities in the Equality Act 2010

The Law Society has recently raised concerns over an ambiguity (or more correctly errors) in the drafting of section 147 of the Equality Act 2010, which came into force on 1 October 2010. This drafting error is likely to have an immediate effect on the use and effectiveness of compromise agreements (now referred to as compromise contracts) made under the Equality Act (the “Act”).

 The concern of the Law Society, which is echoed by many employment law practitioners, is that S.147 of the Act does not mirror the definition of who is considered to be an “independent advisor”, as set out in the Employment Rights Act 1996 (the “ERA”). The ERA provided that a lawyer will not be independent if he is employed by, or is acting for, the employer or associated employer.

 Section 147[1] sets out the requirements that must be fulfilled for a qualifying compromise contract to settle claims arising under the Act. Most important is that the complainant must receive advice from an ‘independent adviser’ about its terms and effect.  However, section 147 (5) (d) of the Act provides that an independent adviser cannot be “a person who is acting for” a person who is a party to the [compromise] contract or complaint; or someone connected to that person. This leads to the absurd position, highlighted by Counsel’s advice to the Law Society, (referred to in the press release) that a court or tribunal would construe section 147(5)(d) as meaning that a solicitor who was instructed by the employee prior to the production of the final contract for consideration; or who has acted in any way for the employee during the course of their complaint – even in a supporting role to the lead adviser perhaps as holiday cover – will be precluded from acting any further as an independent legal adviser in that compromise contract[2].

 The Law Society has gone to great lengths to seek clarity on the interpretation of this issue including instructing Counsel, requesting an urgent meeting with the Government Equalities Office, and even notifying the Home Secretary. Advice from Counsel also indicates that a solicitor to whom the client was referred solely for the purpose of advising on the agreement would not be able to provide such advice. I would hope that a legislative amendment can be made sooner rather than later to correct the drafting errors.

 The Government Equalities Office (“GEO”) issued a press release at the end of October to state that it is not a proper reading of section 147 to suggest that the complainant’s adviser is debarred from being the qualified adviser, because the section has to be ‘read as a whole[3]. The official view of the GEO is that ‘the situation that existed prior to passage of the Act’ remains unchanged and, by implication, that a solicitor who had advised a client in respect of an action would also be able to provide advice on a compromise agreement. This is unlikely to provide much comfort to practitioners before the matter has been considered by Parliament or an Employment Judge.

An obvious consequence is that compromise agreements will not be as widely used and ACAS will see a huge peak in demand for assistance with conciliation. Many will question whether ACAS has the means to deal with such further demands on its already stretched services.

A practical matter, which may have dipped below the radars of some practitioners, is the payment of legal fees. It is usual for compromise agreements to include a clause providing that the employer will make a contribution towards the legal fees of the employee, for the purposes of receiving advice about the terms of the agreement, or entering into the agreement. For taxation purposes such fees are usually payable on receipt of an invoice addressed to the employee but marked payable by the employer[4]. Payments of such contributions are often conditional upon the employer receiving a signed compromise agreement from the employee and/or a signed independent adviser’s certificate. It is foreseeable that some employers may try to argue that they do not have to pay for the legal advice if the compromise agreement itself has not been concluded and as a result they have not received the signed compromise agreement and/or adviser’s certificate. On a similar note practitioners may wish to check their client care letters (and terms and conditions) to ascertain that any costs estimate provided to the client does not merely record that the employer’s contribution towards legal fees (as per the terms of the compromise agreement) will be sufficient to complete the matter, without any further contribution from the client, and that it expressly states that the client is primarily responsible for paying the legal fees.

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Equality Strategy – An aspiration, or just vague and voluntary?

In “Equality Strategy – Building a fairer Britain” published this month the Home Secretary and Minister for Women and Equalities, Theresa May, declares that “Equality is at the heart of the Coalition Government”.  The strategy marks a turning point in the equality regime reflecting that the word ‘equality’ has been misused and misunderstood and has come to mean political correctness, social engineering, form filling and box ticking. The new strategy moves away from legislation, and increased regulation, which is “not a panacea” and has “produced diminishing returns”.

The message is that legislation is only part of the approach, and that a “voluntary approach”, specifically on gender pay reporting (with an emphasis on companies with 150 or more employees in the private and voluntary sector) will need to be developed; which the strategy notes that they expect and want to work.  Annual reviews will be carried out to consider the number of companies releasing information, and its quality, under the voluntary approach to assess its success and to review whether alternatives are required; including using a mandatory approach through section 78 of the Equality Act 2010. In the interim section 78 will not be commenced, amended or repealed.

The strategy focuses on two principles of equality: equal treatment and equal opportunity.

The Government intends to lead by example by:

  • Promoting transparency and good practice in the public sector. The new specific duties made to support the public sector Equality Duty will require large public bodies to be transparent about the make-up of their employees.
  • Improving careers advice for girls, women, ethnic minorities, disabled people and others who can be disadvantaged by occupational segregation, to help ensure that they are aware of the options open to them;
  • Setting a new “aspiration” that 50 per cent of all new appointments to public boards will be women by the end of the current Parliament;
  • Publishing research exploring the barriers that employers face in establishing lesbian, gay, bisexual and transgender friendly workplaces;
  • Extending the right to request flexible working to all employees – promoting flexible working as sensible business practice rather than special treatment.

I expect that this strategy is only part 1 of a swathe of fundamental changes to the equality regime, and employment practices, that we can anticipate from the Coalition Government:

  • The strategy refers to a future consultation which will set out the Government’s approach to how they will take “strong action” where there is evidence of discrimination against women on pay.
  • Lord Davies is currently undertaking a review into the lack of female representation on corporate and business boards and a report is expected early next year;
  • The Government is to look at how the new Universal Credit can support non-traditional work patterns such as ‘mini jobs’ as the first step back into work.
  • Phasing out the Default Retirement Age, and a full public consultation on exceptions to the ban on age discrimination.

The voluntary schemes may create something of a headache for solicitors and HR professionals. There are some ambiguities – such as the comment that the Government will work with regulators and business trade organisations to “shine a light on those who are promoting equality well and those who are not doing well”. Does this mean that those who do well are to be rewarded, or those who do not follow the, supposedly, voluntary scheme will be punished?

There is an ambiguous commitment from April 2011, to allow employers, on a permissive basis, to apply “voluntary positive action” in recruitment and promotion processes when faced with two or more candidates of equal merit, to address under-representation in the workforce.  The strategy document is however keen to point out that voluntary positive action does not mean ‘quotas’, and that “positive discrimination is not acceptable and is unlawful”. The immediate concerns for solicitors are that many clients may make decisions to address perceived imbalances in the work place without taking legal advice about possible discrimination claims. Clear Government guidance will be required.

Please follow this link to read the Equality Strategy –

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Preventing Bribery (Section 9 of the Bribery Act 2010)

The Bribery Act 2010 was passed in the last minute legislative scramble before the dissolution of the last parliament.

Most people will have a broad understanding of what constitutes bribery; the law has been in existence for a substantial period. Indeed the Magna Carta declared, “We will sell to no man…either justice or right[1]”. The question which is screaming out to be asked is why has it taken the UK so long to reform the bribery laws in the UK?

A parliamentary research paper on the Bribery Bill which was published on 1 March 2010[2], explains that there has been pressure on the UK to update its anti-corruption legislation, which was last amended way back in 1916.

The new bribery law replaces the offences at common law and under the Public Bodies Corrupt Practices Act 1889, the Prevention of Corruption Act 1906 and the Prevention of Corruption Act 1916. The new law also creates a discrete offence of bribery of a foreign public official and a new offence of negligent failure of commercial organisations to prevent bribery. It is the latter of which will be of particular concern to UK businesses.

Does this sound familiar?

Have we not heard the rhetoric about getting tough on bribery and corruption before? Yes we have. The Law Commission reviewed the bribery laws way back in 1998. A draft Corruption Bill was presented to Parliament in 2002 Queen’s Speech, but was rejected by the Joint Committee which examined it and who also heavily criticized the Bill and recommended that the scheme of offences be restructured.

The Law Commission then published a consultation paper “Reforming Bribery” in November 2007. That paper argued that the distinction between bribery in the public sector and bribery in the private sector should be abolished, and also proposed a new offence of bribing a foreign public official.

Pressure to reform

In November 2008 the Law Commission published its final report on bribery[3]. The Organisation for Economic Co-operation and development (OECD) Working Group on Bribery issued a report in 2008[4]. The press release to that report stated:

“Current UK legislation makes it very difficult for prosecutors to bring an effective case against a company for alleged bribery offences. Although the UK ratified the OECD Anti-Bribery Convention 10 years ago, it has so far failed to successfully prosecute any bribery case against a company[5].”

 Prosecutions for Bribery

A government research paper made much of the fact that the above statement was incorrect, and provided two examples:

1. Mabey & Johnson who were convicted and fined in September 2009 for trying to unlawfully influence officials in Jamaica and Ghana and also for violating the terms of the UN’s ‘Oil for Food’ scheme in Iraq, and,

2. Balfour Beatty who agreed in 2008 to pay a fine to settle bribery allegations concerning its work to rebuild Alexandria’s Library – although this was not a formal conviction.

Compliance Risk Assessment

Ignorance of the law is no defence. Employers should carry out a compliance risk assessment to ensure that they are prepared when the law comes into force, and then set out a timetable to review that policy and implement training.

Businesses should arrange training for all staff about the standards expected, both in the UK and abroad, to demonstrate that they have “adequate procedures” in place. A much anticipated September 2010 Government consultation exercise has provided UK businesses with some advice on how to effectively implement the “adequate procedures” required to shield themselves from potential section 7 liability, which the guidance has expressed as six “principles[6]:

1. Risk Assessment,

2. Top level commitment,

3. Due diligence,

4. Clear, practical and accessible policies and procedures,

5. Effective implementation, and,

6. Monitoring and review.

The practical implications of these principles provide some indication of the level of commitment the Government will expect from UK businesses if they are not to breach section 7.

Although expressed as six principles, the guidance can be simplified into just two: The aforementioned risk assessment, and the mitigation of that risk.

Risk assessment

 What is required will vary according to the size of an organisation, but is likely to include regular assessment by way of:

  • Company audit reports,
  • Internal investigation reports,
  • Focus groups,
  • Analysis of staff/client/customer complaints,
  • Analysis of any bribery issues/risks associated with the industry sector(s) and foreign jurisdictions in which the company operates,
  • Employee knowledge of potential bribery risks, and,
  • The remuneration structure of the company.

Risk mitigation

 The completion of risk assessment procedures will then inform the action needed to mitigate that risk. The guidance to principles 2-6 suggest this may include:

  • The personal involvement of top level management (i.e. directors) in establishing a culture within their organisation where bribery is never an acceptable business practice and ensuring that this message is communicated through all levels of management;
  • Adding anti-bribery measures to the due diligence procedures applied to all third parties before a transaction is conducted, including the organisation’s supply chain, agents and intermediaries;
  • Seeking advice of the relevant civil and criminal law governing a foreign jurisdiction in which a company may wish to conduct business;
  • Formation of a strategy to implement an anti-bribery element into all relevant decision making processes;
  • Issuance of a code of conduct to all employees, detailing expected standards (which could potentially form part of the company’s standard employment contract); and,
  • Appointing a senior manager to oversee the company’s adherence to anti-bribery policies.

Businesses may want to create a stand alone bribery policy to ensure that third parties (including agents and joint venture parties) – especially those in other jurisdictions as section 7 provides that it is immaterial where the conduct element of the offence occurs –  do not breach any provisions of the new law on their behalf.

Many businesses are already asking suppliers to confirm that they have equal opportunity and corporate social responsibility policies in place; an anti-bribery provision may quickly be added to that list as an added seal of approval (and reassurance) for the modern business.

Local customs

The explanatory notes state at section 5 that: “in deciding what a reasonable person in the UK would expect in relation to functions or activities the performance of which is not subject to UK laws, local practice and custom must not be taken into account unless such practice or custom is permitted or required by written law”. Therefore businesses with an associated office in another jurisdiction may want to take specific local advice as to whether a practice or custom is permitted by “written law”.

Corporate Hospitality

Corporate hospitality was a dogged issue in the parliamentary debates. So much so that Lord Tunnicliffe (the former Government spokesperson for the Ministry of Justice) wrote a letter to Lord Henley in January this year[7] requesting “further clarification about the treatment of Corporate hospitality” under the then Bill[8]. That letter stated: “We recognise that corporate hospitality is an accepted part of modern business practice and the Government is not seeking to penalise expenditure on corporate hospitality for legitimate business purposes. But lavish corporate hospitality can also be used as a bribe to secure advantages and the offences in the Bill must therefore be capable of penalising those who use it for such purposes”.

 No more gift bags?

In the entertainment industry, for example, outlandishly lavish gifts are often included in bags given to celebrities. Will they become a thing of the past?

 Who will prosecute?

Section 10 of the new law provides that no proceedings under the Act can be instituted in England and Wales without the consent of (a) the Director of Public Prosecutions, (b) the Director of the Serious Fraud Office, or (c) The Director of Revenue and Customs Prosecutions. Unless under section 10 (5) the Director is “unavailable” (although it is not clear what this means!) and there is another person designated in writing to exercise such a function.

 Treasury cash cow?

Putting my cynical hat on when seen in the context of the current financial malaise we may see the authorities in the future wanting to use the new law as a way to raise additional revenues.  How strictly the new law will be enforced will remain to be seen. The best advice is to carry out a risk assessment of your business sooner rather than later, and to seek advice from a lawyer as to the best way of doing this.

 Further Comments

For further comments please follow this link for a special bribery supplement that I contributed to which was published in the Times Newspaper[9].

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Filed under Bribery Act, Legislative Changes