In this article we will take a brief look at the following:-
· Brexit
· Cybersecurity
· The General Data Protection Regulations (GDPR)
· The Uber Case
· Facebook and its abuse of WhatsApp
· Minimum wage
· Christmas Messag
This is a short article looking at things likely to be of interest to businesses next year. I have missed a few things out: for example artificial intelligence; although recently some of the top law firms have started to look at it. Important cases, such as the Chesterton case which is being appealed. This is whistle-blowing case where the issue is the definition of ‘public interest’. In this case it has been interpreted widely and will be appealed next year.
1. Brexit decision
The decision is expected in January 2017; hopefully the result should not cause a riot.
The factual issue the court has to decide is whether or not the executive (the current government), using its prerogative powers can trigger article 50 without the need for an act of parliament.
The government lost its case in the lower court on the basis that parliament is supreme and only parliament has the power to make and get rid of our laws. The government appealed. They were represented by the Attorney General (Jeremy Wright) and Mr Eady QC. The argument put forward on behalf of the government is that the lower court got the law fundamentally wrong and that the government can use its prerogative powers to trigger article 50.
The AG of Northern Ireland, Ron Lavery intervened and stated (besides other matters), it would be unconstitutional to withdraw from the EU without the consent of the people from Northern Ireland. EU law was part of the devolution settlement and accordingly the UK government had transferred power to Ireland and it cannot simply take it away.
James Wolfe QC, the Lord Advocate intervened on behalf of Scotland. The Lord Advocate accepted that Scotland did not have a right to veto the UK parliament; however because the withdrawal from the EU has such constitutional importance and impacts upon Scotland’s devolved powers; Scotland’s consent would be required.
Scotland also argued that the decision of the divisional court must be upheld as the government does not have the authority to remove the UK from the EU using its prerogative powers.
Lord Pannick, on behalf of the respondent, Ms Gina Miller, stated quite clearly in his submissions thatit is preposterous (my words) for the executive to believe it has the power to trigger article 50 using the royal prerogative. The European Communities Act 1972 brought us into the European Union, It is of constitutional significants because it created a new source of law. The Act also gave new rights to the citizens of the UK and parliament never intended for these rights to be removed by a minister, using the royal prerogative.
James Eady in his closing submissions stated that the European Communities Act is designed for acceptance by the UK of its treaty obligations. It is not intended to control those obligations. The Act is merely a conduit for legal rights.
I sadly believe that Mr Eady has got his law wrong. Parliament is Supreme and there is no legal concept ‘the will of the people’. However the Oxford legal philosopher Timothy Endicott has written a brief article which appears to support the government’s position. So I cannot wait for the Judgment, especially as it has been reported in the press that the decision may not be unanimous!
2. Cybersecurity
This will really be a hot potatoes next year! Well the breaches we had (whether in the UK or the USA) were all too embarrassing and could happen to anyone. Talk Talk, Sony and the law firm Mossack Fonseca.
The government has created recently its new National Cybersecurity centre to be based in London. The government will invest 1.9 billion pounds over the next 5 years into cybersecurity. GCHQ will have some input and over see it. The objectives is for the government to understand the cybersecurity environment in the UK as we are lagging behind when compared to the USA.
The government aims to reduce the risk to the UK and wants the public and private sector to work together in the creation of a more secure environment. There will be a push to nurture the UK’s cybersecurity capabilities and to provide leadership in this area.
We have to improve (on cybersecurity) and it will be relevant to the next topic under discussion.
3 GDPR
I know that we are leaving the European Union, however all organisations small and large must be get ready for compliance with the General Data Protection Regulations. It is not negotiable. It will become law in 2018.
Businesses will have to get to grips with the fact that data will be portable, heavy fines if there is a breach of new data protection rules. There will be a new role for the data protection officer and the larger businesses have started employing data protection officers in order to protect their businesses.
I have written a lot on this subject. I am not going to do so today. What I will say is that I will run a few seminars in 2017 to help small businesses get ready.
4. Aslam and Others v Uber (2016)
This was one of the more important employment law cases this year. It was decided that Uber workers were ‘employees’ and not self-employed contractors. Thus Uber’s staff are entitled to the minimum wage and holiday pay. Uber may also find itself being hit with a huge tax bill!
The decision was not a surprise as Uber had been losing these cases in other parts of the world (for example the USA where it settled drivers claims).
Whilst Uber’s business model had been viewed as ‘disruptive technology’. There are other companies that use similar technology that will be before the courts/ tribunals next year for example Adison lee, City Sprint, excel and ecourier. It is worth looking out for these cases.
There is no guarantee that the outcome will necessarily be the same as each case is determined on how the facts are pleaded and presented to the Judges.
On 21 November 2016 permission to appeal the Uber decision was granted; so it is clearly a case to watch in 2017.
5. Facebook
Facebook took over WhatsApp as many people will know. However few people new that Facebook were told by the European Commission that they were not allowed to use the WhatsApp data and link it to Facebook. Instead most people opted out of consenting to Facebook using their WhatsApp data as Facebook gave people that opportunity.
Any way what is exciting is that the European commission is investigating Facebook. It claims that Facebook has been misleading it during the investigation. Consequently, Facebook is at real risk of a fine! 1% of turnover.
Facebook has until 31 January 2017 to respond.
6 Minimum Wage
There are some employers who just love to flout the law. However in the Autumn Statement the government announced that it was going to spend more money trying to enforce the law so that these rouge employers will be made to pay the minimum wage.
From the 1 April 2017 the minimum wage increases will be:-
£7.50 per hour - 25 yrs old and over
£7.05 per hour - 21-24 yrs old
£5.60 per hour - 18-20 yrs old
£4.05 per hour - 16-17 yrs old
£3.50 for apprentices under 19 or 19 in the first year of apprenticeship.
Christmas Message
Thank you for taking time out to read out newsletters. Have a wonderful Christmas and a prosperous New Year. Please do not forget, if someone has legal problems, we would like to be the first to solve them. If we cannot, we are always happy to refer them to a third party.
Kindly note the firm will be closed from the 21 December 2016 until 4 January 2017