NO SAFE HARBOUR…AND A HAPPY HALLOWEEN!

In Schrems v Data Protection Commission (http://curia.europa.eu/juris/documents.jsf?num=C-362/14), the European Court of Justice looked at whether the Irish Data Protection Commissioners Office had the authority to examine claimant’s concerns regarding the transfer of his personal data under the Safe Harbour Framework from Facebook’s Irish subsidiary to its parent company, Facebook Inc., in the United States of America.

The Court ruled that the Safe Harbour agreement on data transfers from the EU to the US is invalid, as it fails to ensure adequate protection for that data, as required by the Data Protection Directive.  The Court has invited the Irish Data Protection Commissioner to consider suspending the transfer of European Facebook users’ personal data to the US.  The Court also found that national data protection authorities must examine claims from subjects that a transfer of their personal data to a non-EEA country violates their right to privacy even if the country receiving that information has been found by the European Commission to ensure an adequate level of protection for that data.

This judgment has far-reaching consequences.  Thousands of companies share data with US group companies and US-based service provides, such as Microsoft and Google, relying on the Safe Harbour arrangements to enable transfer of that personal data.  Now they will need to consider whether they can continue with this, and develop ways of doing so.  Just as interesting will be the effect the decision has on the flow of data between the EU and the US, and on the relationship between the countries.  UK companies who transfer such data to the US should look to review their data privacy compliance process and ensure that the fundamentals are in place and being followed, all the while eagerly awaiting a new Safe Harbour Framework, which it is hoped will be released sooner rather than later.

Meanwhile, here at LNTV HQ, preparations for Halloween are in full flow.  This does not mean dressing the office in cobwebs and pumpkins, but buying trick or treat chocolates and sweets, eating them, and then returning to the shop for more.  It’s all in the interests of supporting the British confectionary industry you understand 😉

Have a spooky week….

AN EXTRA HOUR…AND THE MODERN SLAVERY ACT 2015

Here at LNTV HQ many of us looked forward to the extra hour in bed on Saturday night, together with lighter mornings as we wait at train stations to start our commute, but the pay off is that evenings will now be getting darker earlier, and that is something we are not such great fans of.  Someone from the team who shall remain unnamed for fear of deserved reprisals, has even declared that they have bought their first Christmas present.  Don’t worry, appropriate action will be taken.

Meanwhile in the studio we were fortunate enough to have Richard Kenyon, Head of Employment and Pensions from Fieldfisher LLP, to talk to us about the new Modern Slavery Act 2015, and its implications for companies and organisations.  Here is a brief extract from that upcoming programme:

Interviewer: What requirement does s.54 of the Modern Slavery Act 2015 impose on organisations?

Richard Kenyon: Section 54 requires commercial organisations to produce an annual slavery and human trafficking statement for each financial year, and that needs to set out what the organisation has done, the steps its taken during that year to ensure that slavery is not taking place either anywhere in the organisation or anywhere in its supply chain.  And once the statement’s been prepared it needs to be approved in the case of a company – by the directors, the board of directors of the company, signed off by one of those directors and then published on the company’s website with a link – a prominent link from the webpage.

Interviewer: And what information should be in a slavery and human trafficking statement?

Richard Kenyon: Well, the type of information that should be included is really left up to the organisation.  The Act does give a high level framework of the type of information that might be included, and that includes a number of things.  First of all, a description of the organisation itself and its supply chain, then the policies that the organisation has in relation to modern slavery, the type of due diligence exercises it carries out within its organisation and its supply chain, how it identifies risk and what sort of Key Performance Indicators it puts in place to ensure that its supply chain are not engaging in modern slavery and, finally, the type of training of the employees in the organisation that the organisation undertakes.

Interviewer: Given that an organisation can discharge its duty simply by stating that its taken no steps, why does the government think that any organisation is going to go to some considerable trouble to supply this information?

Richard Kenyon: That’s right that an organisation can comply with the legislation by putting out a statement that says we’ve taken absolutely no steps to ensure that modern slavery isn’t taking place.  But the government is introducing this legislation in a kind of compliance and social shaming way, so that the statement itself will open up the organisation to public view, and the idea is that through pressure from NGOs and the public, and through peer group pressure, that organisations will want to show that they take this issue seriously. And therefore, peer group pressure will result in more and more information coming into the public domain as organisations take more and more steps is the idea.

Interviewer: So which organisations does this requirement apply to?

Richard Kenyon: Well, it applies to commercial organisations, which is bodies corporate or partnerships, which produce goods or services and which have a turnover of £36 million or more, some of which is done in the UK, so it’s businesses that are operating in the UK which have a turnover of £36 million or more.

Interviewer: And there was some debate, wasn’t there, about where to set the threshold of turnover?  How did they arrive at £36 million and what are the reasons behind it?

Richard Kenyon: Well, the government consulted over a number of figures, the lowest was £36 million and the highest was a billion. In fact, only 7% of the respondents to the consultation suggested that it should be a billion pound turnover. The government ultimately settled for £36 million largely because, first of all, that was the number that the majority of respondents to the consultation requested; secondly, there is in the Companies Act a definition of medium sized businesses which is businesses which have a turnover of £36 million or less, so £36 million or more is large businesses. And the rationale is that large businesses will have the commercial clout to push this issue down through their supply chains by requiring their suppliers to provide information about what they’re doing in relation to modern slavery.

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THIS WEEK IN THE STUDIO…RICHARD WILLIAMS, SENIOR POLICY EXECUTIVE AT THE SRA

This week we were lucky enough to be joined in the studio by Richard Williams, Senior Policy Executive at the Solicitors Regulation Authority, to talk about the future of Continuing Professional Development for our upcoming programme ‘SRA Competence Statement and Toolkit’, in the Practice Management & Compliance channel.

Here’s a sneak peak at part of Richard’s interview, before the programme’s release date:

Interviewer: And the key document in this is the Competence Statement, isn’t it?  And it’s a fairly extensive document.  Does it run the risk of being over-prescriptive?

Richard Williams: The Competence Statement really just articulates what all practicing solicitors need to do in order to do their job to the best of their abilities. But as an approach, our new approach to ensuring continuing competence is less prescriptive than the current requirement to undertake 16 hours. The 16 hours requirement is, in fact, a blanket approach, it applies to all solicitors, irrespective of their career, their experience, and also their role. With our new approach, solicitors can think about what they need to do in order to deliver a proper standard of service and meet their regulatory responsibilities.

Interviewer: So Principle 5 is what underlies all this, how do we interpret that in the light of the new CPD requirements and the Competence Statement?

Richard Williams: All solicitors have a regulatory requirement to deliver a proper standard of service, and this is articulated in Principle 5. The Competence Statement can help solicitors deliver this particular obligation, and there are two ways in which it does that. Firstly, the Competence Statement articulates what a solicitor needs to do to practice effectively. And, secondly, the Competence Statement in the context of our new approach can be used by solicitors to enable them to reflect on their practice and identify any learning and development they need to do in order to continue to practice effectively.

Interviewer: So how does the SRA believe it’s going to be using the Competence Statement in future?

Richard Williams: We use the Competence Statement as a key mechanism in order to allow us to ensure that the consumers of legal services are protected. It’s really important that solicitors do their job effectively and practice effectively, and the Competence Statement and our new approach to ensuring on-going competence enables us to do this in two ways. Firstly, solicitors have a regulatory responsibility to deliver a proper standard of service, and under our new approach to CPD they’ll have to reflect on the quality of practice in relation to the Competence Statement, and identify where they may have any learning and development needs.  As part of our Training for Tomorrow programme we’re also considering the introduction of an assessment framework. We will consult on this later in 2016. The point of the assessment framework will be to enable solicitors to demonstrate to us that they are competent at the point of admission to the profession, so in that way the Competence Statement will critical as part of ensuring that consumers and legal services are protected.

Interviewer: So some people might say that this looks very much like a box ticking exercise which, of course is what CPD was always criticised for. What would you say to them?

Richard Williams: Absolutely not. Our new approach is much harder than a solicitor attending a course towards the end of the CPD year to gain a specific number of hours. Solicitors will need to think really hard about what it is that they need to do in order to deliver a competent service and meet their regulatory obligations. As a regulator we take this really seriously. As a result, under our new approach all solicitors will be required to make an annual declaration that they’ve reflected on the quality of their practice. They’ve identified their learning development needs and addressed them, and we’ll monitor that.

That’s all for this week – a VERY happy bank holiday weekend to all our readers and subscribers!

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