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Unjust enrichment and contract drafting

In Barton v Gwyn-Jones the Court of Appeal addressed whether the so-called ‘Costello principle’ precluded a claim in unjust enrichment by an agent for an introduction fee where an oral contract governed the arrangement. The court’s analysis turned on the precise interpretation of the remuneration terms and provides a valuable lesson on the failure of parties to cover all possible outcomes by way of express agreement.

See News Analysis: Contractual silence—a gateway for unjust enrichment (Barton v Gwyn-Jones).

Permission to appeal to the Supreme Court was granted on 25 February 2021, and the Supreme Court hearing held on 2 November 2022.

On 25 January 2023, the Supreme Court handed down its judgment. By a narrow majority, the court allowed the appeal, stating that a seller is not obliged to pay reasonable remuneration to an introducer for their services, where the underlying oral contract merely provides for an introduction fee to be payable upon a property being sold for a certain amount and the property is ultimately sold for less than that conditional amount. The majority rejected the claim on both the contractual interpretation and unjust enrichment claim bases. See: .

On 25 January 2023, the Supreme Court delivered its judgment by narrow majority allowing the appeal.

New powers for the Competition and Markets Authority (CMA)

The government is proposing changes to enhance the CMA’s powers and ability to tackle breaches of competition and consumer law and empower its new Digital Markets Unit.

The changes would see the CMA given power to declare companies in breach of consumer law without taking them to court first, and levy fines accordingly. The proposals, which it is anticipated will be set out in a forthcoming Digital Markets, Competition and Consumer Bill, would also enhance the CMA’s competition powers, increasing their speed and effectiveness.

See: .

It is anticipated that the new digital markets regulator will come into force by October 2023. See News Analysis: UK’s digital markets regulator to come into force by October 2023, CMA official says

Expected October 2023

Vertical agreements block exemption

Finalised guidance to accompany the Competition Act 1998 (Vertical Agreements Block Exemption) Order 2022, was published on 12 July 2022.

Following the introduction of the UK VABEO on 1 June 2022, a 12-month transition period applies to accommodate pre-existing vertical agreements which did satisfy the conditions for exemption provided in Retained Regulation (EC) 330/2010, the Retained Vertical Restraints Block Exemption Regulation (UK Retained VBER) prior to 1 June 2022, but which do not otherwise satisfy the conditions for exemption provided in the UK VABEO.

See Practice Notes:
—Chapter I prohibition.
—Introduction to the application of Chapter I to vertical agreements.
—The Competition Act 1998 (Vertical Agreements Block Exemption) Order 2022.
See also: .

The 12-month transition period ends on 31 May 2023.

Research and development block exemption and specialisation block exemption

The retained Research and Development Block Exemption Regulation, Retained Regulation (EU) 1217/2010 (the Retained R&D BER) applies to a variety of R&D agreements and ranges from outsourcing certain R&D activities relating to the improvement of existing new technologies, and the research, development and marketing of completely new products.

The retained Specialisation Block Exemption Regulation, (Retained Specialisation BER) applies to unilateral specialisation agreements, reciprocal agreements or joint production agreements.

Both retained regulations expire on 31 December 2022.

The CMA has initiated the process to review the Retained R&D BER and the Retained specialisation BER, and a consultation on its proposed drafting of the Block Exemption Orders for Specialisation and R&D agreements on 20 September 2022. The consultation closed on 7 October 2022. See .

The retained regulations expired on 31 December 2022.

The Retained R&D BER has been replaced in the UK by the Competition Act 1998 (Research and Development Agreements Block Exemption) Order 2022, (the UK R&D BEO) in force from 1 January 2023 and which provides the framework for the assessment of this type of horizontal agreement.

The Retained specialisation BER has been replaced by the Competition Act 1998 (Specialisation Agreements Block Exemption) Order 2022, (UK SABEO) in force from 1 January 2023 and which provides the framework for the assessment of this type of horizontal agreement.

See Practice Note: UK block exemptions revision—tracker.

The Competition Act 1998 (Research and Development Agreements Block Exemption) Order 2022, (the UK R&D BEO) and the Competition Act 1998 (Specialisation Agreements Block Exemption) Order 2022, (UK SABEO) are each in force from 1 January 2023.

Horizontal agreements block exemption

The CMA has launched a on its draft guidance on the application of the Chapter I prohibition in the () to horizontal agreements. The purpose of the draft guidance and consultation is to explain how the CMA applies the Chapter I prohibition to common types of agreements between actual and potential competitors.

The guidance also describes the application of the UK SABEO and the UK R&D BEO (see above) and is intended to help businesses examine horizontal agreements to establish whether they fall within the scope of the block exemptions. The consultation will close on 8 March 2023.

See: and Practice Note: UK block exemptions revision—tracker.

The consultation closes on 8 March 2023

Motor vehicle agreements block exemption

On 9 February 2023, the government launched a consultation on a proposed draft Order to replace the retained Motor Vehicle Block Exemption Regulation (retained MVBER) with a United Kingdom (UK) Motor Vehicle Block Exemption Order (UK MVBEO).

The retained MVBER expires on 31 May 2023.

See: and Practice Note: : UK block exemptions revision—tracker.

The consultation closes on 1 March 2023.

Online Safety Bill (OSB)

The OSB sets out a regulatory framework for the proposals given in the Department for Digital, Culture, Media and Sport’s (DCMS) Online Harms White Paper, the February 2020 initial response, and the December 2020 full response to the consultation on the same.

On 17 March 2022, a revised version of the OSB was introduced to Parliament (the first version having been published on 5 May 2021). The draft progressed through to Report Stage in the House of Commons and was due to be discussed by Parliament at the end of July, before proceeding to the House of Lords. However, as a result of changes within the parliamentary schedule, it paused until after the summer recess.

In March 2022, the government published a factsheet setting out the key points covered by the OSB and highlighting changes since the previous May 2021 version. In August 2022, the government published two further factsheets detailing amendments made to the illegal content duties (at clauses 8 and 9 of the OSB) and enhanced protections for journalism. These changes were added to the OSB in Parliament on 12 July 2022. See: . Further amendments, including stronger protections for children and free speech online were announced in November 2022. See: .

The Leader of the House of Commons, Penny Mordaunt, confirmed that the remaining stages of the OSB would be provisionally debated on 5 December 2022. See: LNB News 24/11/2022 73.

On 5 December 2022 the UK Parliament re-committed the OSB to the Committee stage due to the scale of the government’s proposed amendments. See: .

On 6 December 2022, DCMS published a guide to the OSB. The explains what the new internet safety laws will mean for adults and children online. The Secretary of State for DCMS also published an to parents, carers and guardians explaining the protections available under the proposed Bill.

On 21 December 2022, the DCMS opened a for the submission of questions about how the OSB will help ‘protect children, hold social media companies to account and give users greater say in what they see on the internet’. Questions to be submitted by 6 January 2023.

The House of Lords first reading was held on 18 January 2023, and the second reading on 1 February 2023. See: , and News Analysis: Online Safety Bill arrives at the House of Lords.

Ofcom published on the role of transparency report under the Online Safety Bill on 31 January 2023. See: .

The OSB is at Committee stage in the House of Lords, pending Report stage.

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On 7 February 2023, the government launched a regarding its proposals to reform . The consultation will address several issues:

—the development of a new power to take control of domains and IP addresses where these have been used in criminal activity

—extension of powers to allow a law enforcement agency to require the preservation of data, in order to establish whether it is required in an investigation

—creation of a new offence to allow action to be taken against a person possessing or using data obtained by another person through an existing CMA offence

For further information, see: .

The consultation closes on 6 April 2023.

Annual reporting and AGMs

Many companies will be finalising their 2023 annual financial reports and preparing for their AGMs. Focal points are likely to be a mix of traditional themes such as executive remuneration and diversity, along with hot topics such as sustainability and cyber risk.

See News Analysis: Hot topics for 2023 AGMs and financial reports.

2023 AGM season

Corporate transparency

On 22 September 2022, BEIS published (the Bill).

The Bill includes an ambitious package of reforms and enhancements relating to the integrity of corporate data held by Companies House, particularly as regards identity verification for directors, PSCs and persons delivering information to the Registrar.

The Bill also contains a major overhaul of the regulatory framework that applies to limited partnerships including new requirements about information that needs to be supplied to the Registrar about the firm’s partners and nature of its business.

Other aspects of the Bill relate to the register of overseas entities that own UK property (see below), the regulation of cryptoassets and strengthened money laundering powers (see: Economic crime below).

See Practice Note: The Economic Crime and Corporate Transparency Bill.

The Bill received its first reading in the House of Lords on 30 January 2023 and its second reading on 8 February 2023. Indications suggest that it may receive Royal Assent in the spring of 2023.

Register of overseas entities that own UK property

Overseas entities who own or lease property or land in the UK must register information about the entity and any beneficial owners with Companies House.

The requirement relates to the Register of Overseas Entities, which came into force in the UK on 1 August 2022 through the Economic Crime (Transparency and Enforcement) Act 2022. The initial transitional period for overseas entities who already owned or leased property or land in the UK ended on 31 January 2023.

See Practice Note: The beneficial ownership register of overseas entities that own UK property.

The Economic Crime and Corporate Transparency Bill (see above) makes further provision about the registration of overseas entities. Part 3 of the Bill amends the definition of ‘registered overseas entity’ for the purpose of to the Land Registration Act 2002. When in force, an overseas entity will need to be both up to date with its obligation to register in the register of overseas entities and with a new obligation to provide information under a new section 1092A of the Companies Act 2006.

See Practice Note: The Economic Crime and Corporate Transparency Bill.

The transitional period for registration ended on 31 January 2023.

Indications suggest that the Economic Crime and Corporate Transparency Bill may receive Royal Assent in the spring of 2023.

Pre-emption principles for premium-listed companies

In the context of listed companies, following the recommendations for a revised pre-emption regime in the (October 2021), the Pre-Emption Group published a revised and on 4 November 2022. These enable companies to raise up to 20% of their issued share capital via non pre-emptive placings and to encourage retail investor participation.

The revised Principles should be applied at a company’s next AGM. Where a company needs to raise cash non pre-emptively using the increased thresholds before its next AGM, it should follow the set out in the Secondary Capital Raising Review.

See Practice Note: Pre-emption rights—listed companies.

Revised Principles to be applied at the company’s next AGM.

Climate-related reporting

Commercial companies with a premium listing with accounting periods beginning on or after 1 January 2021 are to report in line with the Taskforce on Climate-related Financial Disclosures (TCFD) framework on a comply or explain basis.

For comprehensive analysis of recent developments in this area, see Market Tracker Trend Report: Analysis of TCFD reporting by premium listed companies in 2022—Market Tracker Trend Report.

The FCA has also amended the Listing Rules to extend the requirement to make climate-related disclosures to issuers of standard listed equity shares and global depositary receipts (excluding standard listed investment entities and shell companies) with accounting periods beginning on or after 1 January 2022.

See Practice Note: CSR, ESG and human rights reporting and initiatives—Listed companies.

Premium-listed companies to continue reporting in line with TCFD framework ahead of the 2023 AGM season.

Standard listed companies with accounting periods beginning on or after 1 January 2022 to start reporting on similar basis.

Biodiversity

The Global Reporting Initiative (GRI) has published its latest , asking companies to disclose their biodiversity impacts, boosting data transparency. GRI has also launched a consultation, which coincides with the UN Convention on Biodiversity (COP15). The proposals include measures for reporting throughout the supply chain.

See:

The deadline for responses to GRI’s consultation on biodiversity standards is 28 February 2023.

Data Protection and Digital Information Bill

On 18 July 2022, the government published the . The Bill is intended to update and simplify the UK’s data protection framework with a view to reducing burdens on organisations while maintaining high data protection standards.

The second reading was pulled at short notice in September 2022. According to recent reports, a new draft of the bill is now ready and should be published soon—see News Analysis: UK data protection reform bill now ready following political delays, minister says.

See further Practice Note: The Data Protection and Digital Information Bill.

There is currently no projected timetable.

International data transfers

International data transfers The UK and US plan to reach a deal on data flows this year.

See: .

In November 2022 the Information Commissioner’s Office (ICO) published:
—updated guidance on
—new guidance on
—a new and lengthy

These set out a methodology for international data transfers on the basis of EU standard contractual clauses (EU SCCs) or the UK International Data Transfer Agreement (IDTA).

See Practice Note: How to manage international personal data transfers.

The ICO has indicated that further guidance will be published on international data transfers.

A data bridge for UK-US data flows is expected to be finalised by the end of 2023.

Further ICO guidance on international data transfers is expected but no date confirmed.

EU-US data transfers

EU-US data transfers In late March 2022, the EU and US announced an agreement in principle on a new Trans-Atlantic Data Privacy Framework. The new Framework will replace the discredited Privacy Shield, to allow for cross-border data flows between the EU and US.

See: and .

In October 2022, President Biden signed an Executive Order setting out the steps the US will take to implement the commitments under the new Framework.

See: .

On 13 December 2022, the European Commission its draft adequacy decision along with a set of . The draft reflects the European Commission’s assessment of the US legal framework, which concludes that it provides comparable safeguards to those of the EU. The draft has been transmitted to the EDPB for its opinion, which is the first stage of the adoption procedure.

Although indications were that the transfer agreement should be in place by the end of March 2023, speaking on 1 December 2022 the European Justice Commissioner suggested the process may take longer. See News Analyses: EU ‘adequacy’ decision on EU-US data transfers seen before summer 2023, Reynders says and EU-US data flows provisionally approved, but court challenge looms.

UK SCCs and international data transfer agreement (IDTA)

On 21 March 2022, the following came into force: (i) UK GDPR standard contractual clauses (SCCs)—officially called the international data transfer agreement (IDTA), (ii) international data transfer addendum to the EU GDPR SCCs, and (iii) transitional provisions.

Subject to transitional arrangements, from 21 September 2022, organisations must use the IDTA or the addendum when entering into new arrangements for international transfers caught by the UK GDPR.

See News Analysis: New UK standard contractual clauses for personal data transfers and MLex analysis: Comment—UK international data transfer tool enters with a whimper.

See also Precedents: UK GDPR—2022 standard contractual clauses (SCCs) for the transfer of personal data outside the UK—International Data Transfer Agreement (IDTA) and UK GDPR—2022 standard contractual clauses (SCCs) for the transfer of personal data outside the UK—Addendum to 2021 EU SCCs.

The IDTA, SCCs and transitional provisions came into force on 21 March 2022.

From 21 September 2022, organisations must use the IDTA or the addendum when entering into new arrangements for international transfers caught by the UK GDPR. Subject to this:
—transfer arrangements using the pre-2021 EU SCCs and concluded before 21 September 2022 continue to be valid until 21 March 2024 (unless the underlying processing operations change before 21 March 2024)
—any existing arrangements for UK transfers based on the pre-2021 EU SCCs must be replaced by 21 March 2024

Anonymisation, pseudonymisation and privacy enhancing technologies

Since May 2021, the ICO has been publishing, in stages for consultation, draft . The fifth chapter was published for consultation on 7 September 2022 and covers .

See: .

A final consultation on the full guidance is expected to be published in late Spring 2023.

Direct marketing code of practice

On 4 March 2020 the ICO’s closed, but the final code remains outstanding while Parliament is debating new privacy legislation.

In December 2022, the ICO published further . The guidance will form the basis for the code once changes to the law have been finalised. The most relevant ICO documents are:
——this is the ICO’s main direct marketing guidance pending publication of the final code
——this covers electronic marketing messages (by phone, email and text), cookies and similar online advertising

See: and Practice Notes: Direct marketing compliance and How to handle personal data for direct marketing.

The ICO’s strategic plan includes a commitment to produce and publish a ‘guidance pipeline’ to include its updated direct marketing code. The timescale given is October 2022 to October 2023.

Financial sanctions

Financial sanctions The strict liability nature of sanctions offences and in particular the ongoing Ukraine conflict presents challenges to all businesses in the UK. Staying up to date is critical—see:
—Conflict in Ukraine—UK sanctions tracker
—Conflict in Ukraine—EU sanctions tracker
—OFSI General Licence tracker
—Conflict in Ukraine news & analysis—tracker

See also Practice Notes:
—UK sanctions regimes currently in force
—Sanctions regime—Russia

Ongoing

Failure to prevent offence

Failure to prevent offence The Law Commission has consulted on the law regarding corporate criminal liability, including extending the scope of failure to prevent offences to cover fraud and other economic crimes. The consultation closed on 31 August 2021.

The Law Commission published an on 10 June 2022. The paper contains ten options for reform, including expanding the number of failure to prevent offences to cover fraud, human rights abuses and computer misuse. Other recommendations include options in relation to monetary penalties, use of Serious Crime Prevention Orders and reporting requirements.

It had been anticipated that a new failure to prevent offence might be included in the Economic Crime (Transparency and Enforcement) Act 2022, but no such offence was in fact included. However, during the Commons Report Stage of the Economic Crime and Corporate Transparency Bill on 25 January 2023, Security Minister Tom Tugendhat MP confirmed the government’s intention to bring forward a failure to prevent fraud offence in the Bill when it progresses to the House of Lords.

See: and News Analysis: Expanding corporate criminal liability: is failure to prevent fraud next?

The Law Commission had recommended that further work and consultation would be necessary on the scope of any new offences, however it is unclear what will now happen given indications suggest that the Bill may receive Royal Assent in the spring of 2023.

Economic crime levy for MLR 2017 regulated firms

On 21 September 2021, HM Treasury announced that anti-money laundering (AML) regulated entities with over £10.2m in UK revenue will be charged an economic crime levy of £10,000 to £250,000 depending on UK revenue. The levy will be applied on an annual basis for each financial year, commencing in the tax year 2022/2023. Payment will be due within six months of the end of the financial year, ie by 30 September, although collectors (HMRC, the FCA and the Gambling Commission) may require earlier payment if this aligns with their existing fee processes.

See News Analyses: Finance Bill 2022—the economic crime levy and The Economic Crime (Anti-Money Laundering) Levy.

The Economic Crime (Anti-Money Laundering) Levy Regulations 2022, SI 2022/269 were made to make provision relating to the assessment, payment and collection of the Levy. They came into force on 1 April 2022.

The first charge for the levy will be for the 2022/2023 financial year with the first payments due to be made before 30 September 2023.

AML, CTF and counter-proliferation financing

The Money Laundering and Terrorist Financing (Amendment) (No 2) Regulations 2022, (No 2 Regulations 2022) contain some key changes in relation to:
—Trust and Company Service Providers (re business relationships)
—proliferation financing
—reporting discrepancies, and
—supervision and information-sharing

See News Analysis: Money Laundering and Terrorist Financing (Amendment) (No 2) Regulations 2022—key amendments for compliance teams.

This is not the end, however, as the government published a forward-looking in June 2022. Alongside this, the government also published to fulfil its statutory obligations, one of the Money Laundering Regulations 2017 and one of the OPBAS Regulations 2017.

We therefore expect a rolling programme of change to the AML regime in the coming months and years. See: .

The No 2 Regulations 2022 come into force on various dates between August 2022 and September 2023. See News Analysis: Money Laundering and Terrorist Financing (Amendment) (No 2) Regulations 2022—key amendments for compliance teams

The discrepancy reporting provisions will come into force on 1 April 2023.

European AML package

The European Commission has published a package of , including:
—two draft Regulations, one to create a single EU supervisory authority (AMLA) (the AMLA Regulation) and another to set out detailed rules and requirements in areas such as client due diligence (the Conduct Regulation)
—a new directive—6MLD

See Practice Note: European Commission 2020 Action Plan on AML/CTF and 2021 legislative package.

AMLA is scheduled to start work in 2024 with the aim of reaching full staffing and direct supervision in 2026.

New SAR online portal

The NCA is replacing the current SAR Online portal with a more modern digital service.

In January 2023, the NCA published five new pieces of guidance aimed at helping users navigate the new SAR Portal. See .

In a webinar held in August 2022, the NCA said that organisations are being moved across to the new portal in batches between October 2022 and February 2023.

The webinar was not widely advertised and it does not appear to be accessible through the NCA website. However, you can register to view the webinar .

Holiday pay

Following the Supreme Court’s judgment in Harpur Trust v Brazel , the government is on its proposal to make holiday entitlement for part-year and irregular hours workers proportionate to the annual hours they work.

For further information, see: .

The consultation closes on 9 March 2023.

Statutory rates and limits—April 2023 changes

The national living and minimum wage rates will increase as follows: for workers aged 23 or over from £9.50 to £10.42 per hour; for workers aged 21 to 23 from £9.18 to £10.18 an hour; for 18 to 20-year-olds from £6.83 to £7.49 per hour; for 16 to 17-year-olds from £4.81 to £5.28 per hour; and for apprentices from £4.81 to £5.28 per hour. See: .

The rates of Statutory Maternity Pay (SMP), Statutory Paternity Pay (SPP), Statutory Adoption Pay (SAP), Statutory Shared Parental Pay (SSPP) and Statutory Parental Bereavement Pay (SPBP) will increase from £156.66 to £172.48 per week. See: .

The rate of Statutory Sick Pay (SSP) will increase from £99.35 to £109.40 per week. See: .

For further information, see Practice Note: Employment-related statutory rates and limits.

Increase to rate of NMW: 1 April 2023.

Increase to rate of SMP, SPP, SAP, SSPP and SPBP: 2 April 2023.

Increase to rate of SSP: 6 April 2023.

Employment contract—dismissal and re-engagement

The government has launched a on a new Code of Practice on dismissal and re-engagement, to tackle the controversial use of ‘fire and rehire’ practices to change employees’ terms and conditions of employment. For an analysis of the first draft of the Code, see News Analysis: Increased liabilities under new draft Code on dismissal and re-engagement—evidence is all.

The consultation closes on 18 April 2023.

Industrial action

The , introduced to Parliament on 10 January 2023, enables regulations to be made by the Secretary of State setting minimum levels of service that must be maintained during a strike in specified public services, namely, health, fire and rescue, education, transport, border security, and nuclear decommissioning and management of radioactive waste and spent fuel.

If passed, this legislation will allow an employer in those sectors to serve a ‘work notice’ on a union notifying it of a strike under , identifying the persons required to work and the work to be carried out so that the relevant minimum service level (as set out in regulations) is provided.

Unions will lose their protection from certain tortious liabilities if they do not take reasonable steps to ensure that the workers identified in the notice comply with it. Those workers identified in the notice will lose their unfair dismissal protection if they do not comply with the notice.

It would seem that this Bill is intended to replace the , which was introduced in the House of Commons on 20 October 2022, but which has not progressed to a Second Reading.

See: Strikes (Minimum Service Levels) Bill—expert commentary (26/1/23).

This Bill is expected to come into force during 2023.

Retained EU Law (Revocation and Reform)—employment

Under the Retained EU Law (Revocation and Reform) Bill

(REULRR Bill) (previously known as the Brexit Freedoms Bill), the special status of retained EU law under UK law will be ended from the end of 2023.

Retained EU law includes the Working Time Regulations 1998, the , TUPE 2006, the Agency Worker Regulations 2010 and Part-time Worker Regulations 2000.

The Bill will enable the government to specify, amend, repeal and replace retained EU law more easily via secondary legislation.

The Bill contains provisions on sunsetting the majority of retained EU law, ending the principle of supremacy of retained EU law and associated EU law principles in UK law, creating a new category of ‘assimilated law’, facilitating departures from retained EU case law, allowing easier modification of retained EU legislation, and further powers relating to EU law and assimilated law.

For further information, see Practice Note: Retained EU law in employment, and the House of Lords Library on the REULRR Bill.

By 31 December 2023.

Data protection and employment practices

The Information Commissioner’s Office (ICO) has announced that its (not yet updated for UK GDPR or the ) will be replaced by an Employment Practices Hub.

The ICO is releasing draft guidance for different topic areas in stages. It has already consulted on draft and guidance to be included on the Hub.

The consultations closed in January 2023 and final guidance is awaited.

See Practice Note: The UK GDPR and DPA 2018: key data protection issues for employment lawyers—Information Commissioner's Office (ICO) guidance.

The monitoring at work consultation closed on 11 January 2023.

The health information consultation closed on 26 January 2023.

Final guidance is awaited.

Immigration—skills shortages

The Migration Advisory Committee (MAC) has been commissioned to review the shortage occupation list for sponsored Skilled Workers. This includes considering whether, and if so, how, jobs at a skill level lower than RQF 3 should be added to the list.

See: 47 and .

Note: in its annual report for 2022, issued in December 2022, the MAC stated that the review ‘is currently on hold at the request of the Home Office pending clarification from the Government on migration policy’.

See: .

On hold

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2023 should see further significant steps in the ongoing process of digitalisation of the UK immigration system. This will include the delivery of the first two stages of the ‘sponsorship roadmap’ to streamline IT aspects of the work sponsorship system, and the phased introduction of Electronic Travel Authorisations (ETAs). When ETAs are introduced, persons who currently do not require a visa to travel to the UK for business trips (such as US nationals) will be required to apply online for prior authorisation to do so.

See News Analysis: Second legal migration statement focuses on digital transformation and the border.

Ongoing.

Independent review of the

The government has been engaged in a review of since 2018. It has announced a number of changes will be made to and government guidance.

See Practice Note: How to prepare a slavery and human trafficking statement—Future changes to slavery and human trafficking statements.

Revised government guidance was due to be issued in 2020, with further revisions once the legislation has been changed. This guidance is still awaited.

Sustainability reporting—EU on Corporate Sustainability Reporting (CSRD)

The new CSRD will extend the scope of reporting requirements under the Non-Financial Reporting Directive (NFRD) to a broader spectrum of companies, require the audit of reported information, and introduce more detailed reporting requirements including a requirement to follow mandatory sustainability reporting standards.

Notably, the CSRD will capture all large companies (ie companies with more than 250 employees and more than €40m in turnover and/or more than €20m in total assets) as well as all listed companies (save for micro-enterprises).

In addition, the CSRD contains extraterritorial provisions and will extend the scope of reporting requirements to listed SMEs and non-EU companies with substantial activity in the EU market.

Companies within scope of the CSRD will need to report in compliance with European Sustainability Reporting Standards (ESRS), which will be adopted by the Commission in the form of delegated acts by June 2023.

For further information, see Practice Notes: Directive 2014/95/EU on disclosure of non-financial and diversity information—snapshot and EU environment tracker 2023—sustainability in business and finance.

Published in the Official Journal on 16 December 2022 and in force on 5 January 2023.

The application of the CSRD will be phased, as follows:
—1 January 2024 for large public interest companies already subject to the NFRD, with reports due in 2025
—1 January 2025 for ‘large’ companies not presently subject to the NFRD, with reports due in 2026
—1 January 2026 for listed SMEs, small and non-complex credit institutions and captive insurance undertakings, however for a transitional period of two years relevant SMEs will have the option to opt out of the reporting requirements subject to including an explanation as to why sustainability information has not been provided in the management report
—1 January 2028 for non-EU undertakings within the scope of the CSRD, with reports due in 2029

Supply chain due diligence—forest risk commodities

Following a in 2020, the includes new provisions requiring larger businesses to undertake due diligence to show that they have taken proportionate action to ensure they are not using ‘forest risk commodities’ in their supply chains.

The detail of the proposed requirements will be implemented through secondary legislation and following a by the Department for Environment, Food & Rural Affairs (Defra), the government has that the due diligence requirements will apply to large companies and the definition of turnover will be aligned with the Companies Act 2006. The threshold will be based on turnover in the previous financial year. In respect of the other consultation questions, the government merely says it will take into account consultation responses in developing the legislation and accompanying guidance, and publish the government’s approach to secondary legislation in due course.

See: LNB News 03/12/2021 and News Analysis: New Environment Act demands more diligence in supply chains.

No timescale has been given.

Supply chain due diligence—EU Directive on Corporate Sustainability Due Diligence

The European Commission published a proposal for a Directive on Corporate Sustainability Due Diligence on 23 February 2022. The aim of this Directive is twofold—to foster sustainable and responsible corporate behaviour and to anchor human rights and environmental considerations into companies’ operations and corporate governance. It would introduce a corporate due diligence duty, requiring certain companies to undertake due diligence checks of their supply chain to identify actual and potential adverse impacts of their activities on human rights and the environment.

Notably, the proposal will provide victims of identified harm recourse to bring civil claims before the competent national courts, to hold companies to account.

See News Analysis: EU Directive on Corporate Sustainability Due Diligence—what do the new proposals mean for business and SMEs? and Practice Note: EU environment tracker 2023—sustainability in business and finance.

Legislative proposal adopted on 23 February 2022. The Council of the EU published its general negotiating position on the proposals on 1 December 2022. The European Parliament’s legal affairs committee (JURI) is expected to vote on the proposal on 13 March 2023.

Continuing competence

The SRA has published an in response to a statement of policy on ongoing competence issued by the Legal Services Board. As part of the action plan, the SRA is intending to carry out more thematic review work, which it has said will include a focus on in-house solicitors as well as other parts of the profession.

See News Analysis: SRA sharpens focus on in-house lawyers for skillset review.

Ongoing

Regulation of solicitors—keeping of the roll

Following a consultation, the SRA has announced it will be reinstating the annual keeping of the roll exercise for solicitors who do not have a practising certificate but wish to remain on the roll of solicitors.

The exercise will restart from April 2023. There will be an administration charge in the range of £20–£40 to remain on the roll of solicitors as a non-practising solicitor.

Health and well-being at work—solicitors

The SRA has on changes to its rules and the SRA Codes of Conduct to clarify issues surrounding the appropriate treatment of work colleagues, and the risks regarding an individual solicitor’s health and fitness to practise.

In its the SRA has confirmed it will be bringing forward most of the proposed changes, including a new regulatory requirement for solicitors to treat colleagues fairly and with respect and not to bully, harass or discriminate unfairly against them.

The new provisions are expected to take effect in Spring 2023.

Minimum energy efficiency standards—commercial leases

Under the Energy Efficiency (Private Rented Property) (England and Wales) Regulations 2015, from 1 April 2018 landlords were prohibited from granting new leases or renewal leases of commercial and residential properties in England and Wales which are rated F or G on their EPCs. Before such properties can be let, cost effective energy efficiency improvements must be performed so that the property attains an EPC rating of E or above. From 1 April 2023 the requirements will apply to all commercial leases (ie including those already in existence). Landlords who consider that an exemption applies under these regulations are still able to let F and G rated properties, but will need to lodge an exemption on a centralised .

See: Practice Notes: Minimum energy efficiency standards (MEES) in the private rented sector—snapshot and Minimum energy efficiency standards (MEES)—non-domestic property within the scope of MEES.

1 April 2023 for all commercial leases.

Registration of overseas entities

The Economic Crime and Corporate Transparency Bill makes further provision about the registration of overseas entities—see: Corporate law and governance above.

See: Corporate law and governance above.

Vacant high street properties and property information and records

The Levelling-up and Regeneration Bill deals with various planning matters. Parts 10, 11 and 12 of the Bill deal with letting by local authorities of vacant high street premises after letting auctions, information and records about interests in, and dealings with, land and for the changes to pavement licences to be permanent.

See: .

This public Bill has now completed all its stages in the House of Commons and the second reading in the House of Lords, the general debate on all aspects of the Bill, took place on 17 January 2023.

Committee stage, where there will be a line by line examination of the Bill, is scheduled to begin on 20 February 2023.

Commercial contracts—conclusive certification provisions in the Supreme Court—pay now, argue later

The Supreme Court has delivered its judgment in Sara & Hossein Asset Holdings Ltd v Blacks Outdoor Retail Ltd [2023] UKSC 2, in which it considered the effect of a common provision within a commercial lease. The clause in question provided that the landlord was to certify the amount of service charge payable by a tenant and that such a certificate, in the absence of manifest or mathematical error or fraud, ‘shall be conclusive’. By a majority of 4–1, the court decided that the certificate is conclusive as to the tenant’s liability to pay service charge, but only at the time that it is issued. Accordingly, payment of the certified sum does not preclude the tenant from later disputing liability for all or part of that payment, which can be recovered in separate proceedings. Interestingly, the court rejected both parties’ submissions on the meaning of the clause. The Supreme Court’s solution to the problem was labelled by Lord Hamblen as creating a ‘pay now, argue later’ regime, which achieved practical justice while remaining true to the words of the clause interpreted in its full documentary and commercial context.

See News Analysis: Conclusive certification provisions in the Supreme Court—pay now, argue later (Sara & Hossein Asset Holdings v Blacks Outdoor Retail).

Supreme Court judgment 18 January 2023.

Electronic Communications Code—renewal of agreements

Vodafone Ltd v Gencomp (No 7) Ltd and AP Wireless II (UK) Ltd is a decision which presents a potentially considerable problem for site providers who have become landlords of operators by taking overriding or concurrent leases from an original site provider; such site providers will now not be able to terminate an operator's rights under the Electronic Communications Code.

See News Analysis: Renewal of agreements under the telecoms code where the site provider holds its interest under a concurrent lease (Vodafone v Gencomp (No 7) Ltd and AP Wireless II (UK) Ltd).

The Court of Appeal is due to hear the appeal on 10 May 2023.

Electronic Communications Code—Consultation: Electronic Communications Code—Proposed Template Notices resulting from amendments to the Code

Ofcom is required to prepare and publish template notices which must or may (depending on the circumstances) be used by operators and landowners or occupiers under the Code when they seek to exercise Code rights.

This consultation seeks views on the form of two notices Ofcom is required to prescribe following amendments to the Electronic Communications Code made by the . These notices relate to the upgrading and sharing by an operator of apparatus situated under privately-owned land and are required to be given by the operator before the operator begins to upgrade the apparatus or share its use.

See: Consultation: .

The deadline for responding to the consultation is 6 March 2023.

Carbon emissions from buildings

The Carbon Emissions (Buildings) Bill requires the whole-life carbon emissions of buildings to be reported; to set limits on embodied carbon emissions in the construction of buildings; and for connected purposes.

This is a Private Members' Bill and was presented to Parliament on Monday 20 June 2022.

The next stage for this Bill, second reading, was scheduled on Friday 25 November 2022 and has been adjourned to Friday 24 February 2023.