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Intellectual Property Law

In February, 2012, the European Court of Justice was asked to rule on the legality of the Anti-Counterfeiting Trade Agreement (ACTA) which at the time had been signed by 22 European member states including the UK, as well as the Unites States, Japan and Canada. The agreement has been shrouded in controversy and several countries, including Germany and Poland have backed away from the agreement following protests in several countries.

The European Commission said it "decided today to ask the European Court of Justice for a legal opinion to clarify that the Acta agreement and its implementation must be fully compatible with freedom of expression and freedom of the internet".

The agreement is scheduled to be debated by the European Parliament in June of 2012.

In April, 2010, a draft of the Anti-Counterfeiting Trade Agreement (ACTA) – which has been the subject of rumor, leaks and controversy – was released after two years of behind-the-scenes negotiation and scrutiny by the parties involved. The release was approved by the negotiating parties at a recent negotiation round held in Wellington, New Zealand, following pressure from the European Union to do so.

However, despite the two-year negotiations between the potential signatories, which include Australia, the EU member states, Switzerland, the USA, Japan, New Zealand, South Korea and Canada, various provisions were the subject of further negotiation over the coming months. A final version of the agreement was expected by end-2010.

The draft ACTA has been met with mixed views. Some commentators conclude that, as the agreement stands, it is not as bad as feared, pointing to the fact that the current British and French “three strikes” penalties model is not to be forced on all governments in the final ACTA. The “three strikes” model is aimed at Internet users who repeatedly infringe copyright law.

Internet service providers have, though, raised concerns over the introduction of measures that would force them to monitor Internet traffic. In a press release, the European Internet Service Providers Association (EuroISPA) worries that the draft text “still goes far beyond the existing implementation of the European regulatory framework regarding liability, introducing measures that will damage the industry sector via the creation of undue liability on ISPs and jeopardizing the openness of the Internet.”

According to EuroISPA president Malcolm Hutty, “This is a serious concern considering the crucial role played by the Internet for the development of the economic recovery, not only in the consumer space but also as an infrastructure underpinning business and employment.”

Two civil liberties groups have highlighted what they believe are the dangers of the agreement.

Florian Leppla, spokesman for Open Rights Group based in the UK, raised concerns that “we still don't know the positions of individual countries. So we won't know who is pushing for the most dangerous enforcement policies. What we need now is an open process that allows consumer and citizens groups to influence what is in the document.”

Jérémie Zimmermann, head of La Quadrature du Net – which leaked a previous draft of the agreement – said: “All the leaks have shown that ACTA could dangerously hinder freedom of expression, access to medicines and innovation in the global knowledge society. This official release suggests that it is still the case.”

The Motion Picture Association of America, however, welcomed the draft agreement, claiming in a press statement by Executive Vice President and Chief Policy Officer Greg Frazier, that “it represents a solid building block, an important step forward in the work of like-minded governments to strengthen protection against Internet piracy, the fastest growing threat to filmed entertainment and other segments of the copyright industries.“

In December, 2008, in a letter sent by the Secretary of State for Innovation, Universities and Skills, John Denham to EU Internal Market Commissioner Charlie McCreevy, it was announced that the UK intends to maintain its existing derogation from resale right for the works of deceased artists for a further two years. The extension means that resale right will continue to apply in the UK to works by living artists only.

The resale right entitles authors of original works of art, such as paintings, engravings, sculpture and ceramics, to receive a royalty each time one of their works is resold in a sale involving an art market professional, and a consultation was held on extending the derogation with a wide range of stakeholders, including artists and traders, according to the government.

Ministers decided, Denham revealed in his letter, that the current economic climate could adversely affect the art market’s ability to cope with the application of artist’s resale right to the works of deceased artists.

He explained that: "We are committed to supporting businesses, including the UK art trade, through the current downturn. Applying resale right to deceased artists at this time would place a considerable burden on the art trade."

"If the art traders are seeing a reduction in business they will not only sell fewer works, but will not buy them from artists either. This will have a knock on effect for artists who will find that there is less of a market for their work."

Speaking in July 2007 at the Annual General Meeting of the UK recording industry group, BPI, Tory party leader David Cameron expressed his support for the proposed extension of the copyright term for sound recordings from 50 years to 70.

Outlining his new policy on the creative industries and social responsibility, the Conservative leader, who was the meeting's keynote speaker, described the extension of the term of copyright from 50 years to 70 years for sound recordings as “good for musicians and consumers too”.

"A Conservative Government will argue for this in Europe, for this change to happen in order to protect investment in the future of the industry, reward our creative artists and generate more choice for consumers," stated Cameron.

He also highlighted the role that ISPs should play in combating copyright theft. Describing them as "the gatekeepers of the internet", he argued that illegal downloads were "clear and visible internet traffic" and "could be blocked by ISPs".

Noting the "massive fraud" carried out against the music industry every day, Cameron emphasised that "copyright theft has to be treated like other theft" and pledged that the Conservatives would enforce laws more strongly so that perpetrators are brought to book.

He added that the Conservatives would work with industry to "get the message out that piracy and illegal filesharing is wrong".

In March 2012, the UK Intellectual Property Office started its fifth pilot project for a Patent Prosecution Highway (PPH) with Germany (DPMA). The fourth PPH program had been started just two months earlier with the Canadian Intellectual Property Office (CIPO).

The second and third projects with the United States Patent and Trademark Office (USPTO) and the Korean Intellectual Property Office (KPO) we signed in 2007 and 2009 respectively. Both of these have now been extended indefinitely.

In July 2007, the UK Intellectual Property Office and the Japan Patent Office announced that a new initiative designed to speed up the processing of patent applications in the two countries, the Patent Prosecution Highway (PPH), had been launched.

The year-long pilot of the Patent Prosecution Highway scheme allowed patent applicants who have received an examination report by either the UK Intellectual Property Office (UK-IPO) or the Japan Patent Office (JPO) to request accelerated examination of a corresponding patent application filed in the other country.

The aim of the pilot was to test applicant demand for this additional option for speeding up examination of patent applications, and to quantify the quality and efficiency gains to be expected.

Ian Fletcher, Chief Executive of the UK Intellectual Property Office explained that:

"The Patent Prosecution Highway is a valuable additional resource for those seeking to protect their intellectual property in both the UK and Japan. I am especially pleased that the improved efficiency and quality expected to arise from the PPH is a direct result of the strong relations that exist between the UK Intellectual Property Office and the Japan Patent Office."

"The PPH will help the offices in their goal of stimulating and rewarding invention and innovation and is an important step towards a global patent prosecution highway network."

Mr. Nakajima, Commissioner of the Japan Patent Office added:

"The Patent Prosecution Highway is a significant step in the cooperative efforts of Japan and the UK to streamline patent prosecution and support Japanese and UK industries to acquire patents throughout the world."

"This initiative between the two countries is expected to further contribute to the realisation of a global patent prosecution highway network."

The agreement with Japan was made permanent in March 2010.

Copyright on music recordings was extended from 50 years to 70 years following ratification of a new law by the EU in September 2011. The copyright of many well known 60s songs was due to expire in 2013 but will now continue until 2033.

"This important decision comes not a moment too soon," said the chief executive of UK music industry body the BPI, Geoff Taylor. "An exceptional period of British musical genius was about to lose its protection. As a matter of principle, it is right that our musicians should benefit from their creativity during their lifetimes, and that they should not be disadvantaged compared to musicians in other countries."

In a report published in May 2007, the House of Commons Culture, Media and Sport Select Committee had recommended that the current copyright term for sound recordings of 50 years should be extended to 70 years.

This contradicted the findings of the previous year's Gowers review of the UK's intellectual property regime, which suggested that the economic benefit to performers of such an extension would be minimal.

However, the Culture, Media and Sport Committee argued that:

"Copyright term for sound recordings should be extended to at least 70 years, to provide reasonable certainty that an artist will be able to derive benefit from a recording throughout his or her lifetime."

It continued:

“We have not heard a convincing reason why a composer and his or her heirs should benefit from a term of copyright which extends for lifetime and beyond, but a performer should not”.

The Select Committee went on to suggest that the rejection of an extension to copyright term by Andrew Gowers in his Review of Intellectual Property, published in December 2006, failed to take account of the moral right of creators to choose to retain ownership and control of their own intellectual property, and instead examined the matter from a purely economic standpoint.

The Committee additionally called for new measures to help tackle piracy, setting out in statute deterrent levels of damages available in cases where copyright has been infringed, and making it illegal to camcord a film being shown in a cinema.

The Committee also concluded that the present statutory exemptions from infringement of copyright are not providing clarity or confidence for users or for the creative industries, particularly in relation to home copying, and it recommended that the Government should draw up a new exemption permitting copying within domestic premises for domestic use (including portable devices such as MP3 players, and vehicles owned or used regularly by the household) but not onward transmission of copied material.

Noting the role of the internet and of social networking websites in distributing unlicensed creative material, the Committee called upon internet service providers and internet search-based businesses to do more to discourage piracy, and to take more responsibility for dealing with unlicensed material, for instance by establishing a proactive body to examine claims that unlicensed material is being made available.


The UK Intellectual Property Office (formerly the UK Patent Office) on December 8, 2011, published on its website new measures announced by the Government under the banner 'Innovation and Research Strategy for Growth'. The measures contain key actions by the IPO, namely:

  • A new online business advisor training tool that will give advisors the skills and information they need to help businesses protect the value of their intellectual property;
  • An online register of advisors to help businesses find the right advisor for them quickly and easily;
  • Consulting businesses, business advisors and IP specialists about how lower cost IP legal and commercial advice can be provided;
  • Offering free intellectual property audits to businesses through the Technology Strategy Board;
  • Enhancing existing schemes such as mediation to provide a more efficient dispute resolution service that can prevent potentially costly legal cases.

"The intellectual property of small and medium sized businesses is vital to their future economic growth and success. Their innovative ideas and creations can be worth billions of pounds so it is essential that we provide them with the support they need to protect and enforce their rights.

"The package of measures outlined today will allow the Intellectual Property Office to build even stronger links with businesses, giving them the confidence to trade both in the UK and abroad."

In February 2007, the UK's Trade and Industry Minister, Malcolm Wicks confirmed that, from 6 April, new powers under the Copyright, Designs and Patents Act, backed up with GBP5m new funding, would be at the disposal of Trading Standards Officers and other UK enforcement agencies.

The Minister explained that:

"The UK film, music and game industries are among the most creative and innovative in the world, but peddlers of counterfeits are costing those industries up to GBP9 billion a year. The taxpayer is also losing out to the tune of GBP300 million. It's a serious offence, whether committed by small-scale hawkers or international crime organisations."

"From 6 April, there’ll be an additional 4,500 pairs of Trading Standards eyes watching counterfeiters and pirates. This will mean more surprise raids at markets and boot sales, more intelligence, more prosecutions and more criminals locked up. IP criminals should know that the UK is not a safe place. Their risk of 10 years' imprisonment and unlimited fines is very real and from this date forward a markedly higher risk."

The UK Patent Office (now the UK Intellectial Property Office) announced in December, 2006, that it was seeking the views of businesses on rules which will bring into effect the new regime for examination of trade marks on relative grounds.

Earlier that year the Patent Office consulted on how, in the future, the relative grounds for refusal contained in the Trade Marks Act 1994 should be dealt with. After taking into account the views expressed in response to the consultation it then published a decision on how it should proceed.

Under the proposed new regime, the Registrar of Trade Marks will no longer refuse to register a new trade mark application in the face of an earlier conflicting trade mark unless the owner of the earlier mark successfully opposes the new application.

The Registrar’s examiners would, nevertheless, still conduct a search as part of the examination process and would inform both the applicant for registration of the results of the search and also the owners of earlier conflicting trade marks identified in it if, and when, the application proceeds to publication.

The Patent Office explained that: "Having decided what the policy should be, consideration has now been given to the legislative changes that are required to bring this policy into practice. This consultation document therefore sets out draft legislation to show how the new regime will operate."

Comments were invited until March 12.

Responding to the publication in December, 2006, of the Gowers Review of Intellectual Property, Ron Marchant, Chief Executive and Comptroller General at the UK Patent Office praised the job done by the former Financial Times editor.

Mr Marchant stated that: "The Patent Office joins others in welcoming the Report and I look forward to the Patent Office playing a full role in implementing the recommendations for which it is responsible. Andrew Gowers and his team have done a comprehensive and thorough job in a very open-minded way. We congratulate them."

"The Report has confirmed the crucial importance of IP to the success of the UK in the global knowledge economy and we are pleased that the report sees the system as operating broadly satisfactorily. We are very pleased that the report recognises the important role played by the Patent Office and supports our own programme "Patent Office for the 21st Century", identifying the programme as an appropriate vehicle for some of the recommendations."

In particular, he announced that the Patent Office will be revising its role in the following areas:

  • Advice for UK Businesses as they seek to obtain and protect their rights both domestically and in other countries;
  • Fast track rights processing;
  • Seeking to make progress on European and Community Patent proposals;
  • Continuing to improve patent quality;
  • Working with other Patent Offices, particularly the US and Japan, to make multinational patent processing simpler;
  • Creating a better match between fees and the costs of the services covered by them; and
  • Raising public awareness of the wider impact of IP crime

The Patent Office chief concluded: "Thanks to the work we began with our Patent Office for the 21st Century programme we are ready to rise to the challenge. That challenge is highlighted by the proposed change of name to the UK Intellectual Property Office as this will signal to all customers and stakeholders the true range of our activities and contribution. I am delighted that the Patent Office for the 21st Century will be "The UK Intellectual Property Office"."

BACK TO TOP

Media Law

In December, 2009, Meltwater Group, a leading "software-as-a-service" company, announced that it had taken the UK Newspaper Licensing Agency (NLA) to court over what it is considering a “link tax.”

In a statement, Meltwater said that it is pursuing this legal action after the NLA threatened to sue online media monitoring companies who fail to sign up to its new content licensing agreement by January 1, 2010.

"Meltwater has decided to challenge the legal basis of the NLA’s licensing scheme, and in particular the NLA's claim to be able to license hyperlinking, which Meltwater believes has no basis in English law," the company's statement explained.

The NLA, originally formed in 1996, was created to license and collect revenue from the copying and clipping of print media. But, according to Meltwater, the agency is attempting to enforce licensing agreements on sending and receiving Internet links and is targeting both companies providing media monitoring services and the customers subscribing to such services.

“Media monitoring services create value for Internet users similar to search engines like Google, Yahoo, and Bing,” said Jorn Lyseggen, CEO of Meltwater Group. “We use sophisticated search algorithms to help our clients find content they otherwise would have difficulties locating. The NLA’s attempt to license our clients is essentially a tax on receiving these Internet links. This fee is not only unjust and unreasonable, it is contrary to the very spirit of the Internet.”

While Meltwater says that it "respects the copyright of the NLA's members," it is of the opinion that the licensing scheme seeks to "control the receipt of links to freely published content on the Internet, even though such rights are not legally granted to copyright owners."

Meltwater announced that it is referring the matter to the UK Copyright Tribunal because the company believes that the NLA's licensing scheme has no basis in English copyright law.

In a brief statement posted on its website, the NLA confirmed that its web licensing scheme had been referred to the Copyright Tribunal, but insisted that its approach was "reasonable."

"While we respect their right to take this action, we are confident that the Copyright Tribunal will recognize that our approach has been measured and reasonable. Licensing will proceed as planned from January 1, 2010," the NLA stated.

In May 2007, accounting firm, KMPG suggested that the failure of direct and indirect tax regimes to proactively address the seismic shifts taking place in the media sector may be discouraging development in this critically important arm of the EU economy.

David Nickson, Media Tax Partner for KPMG in the UK suggested that: “For companies on the cutting edge of developing and delivering digitised products and services, particularly those fuelling the growth in internet businesses, it is becoming increasingly difficult to align these new ways of doing business with international tax principles."

“The challenges presented to national tax laws are principally those of intangible borders. The immediate reaction from fiscal authorities to the changing environment has been to try to counter the potential for tax leakage, however, it would be wrong to focus solely on the potential for tax loss, as taxpayers simply seeking to meet their obligations will find it increasingly difficult to do so when tax systems fail to proactively address the way profits are generated in the online world.”

“In addition, by shoehorning new forms of economic activity into existing tax frameworks, there is a serious risk that governments’ underlying objectives, such as stimulating business activity and consumer spending in certain sectors could be inhibited.”

Amanda Tickel, Indirect Tax Partner with KPMG in the UK added: “The 2003 changes for VAT in Europe are a good example – at the same time a tax leakage for electronic services sold in to the EU was addressed, EU tax authorities limited the extent of zero or reduced VAT rates, and instead taxed all media published electronically. Now there is a stark difference between VAT payable on printed books and books sold in any other form – audio, digital and downloadable. For the publishing industry, these changes amount to real tax increases and are not simply measures to counter the threat of potential tax leakage.”

The rates levied on digital media throughout Europe average four times those on traditional media such as books and newspapers. In the UK, the difference is between zero percent for traditional media, and 17.5% for digital.

Ms Tickel continued: “Because the focus of the 2003 VAT law changes was on internet based services, there was little public debate, or lobbying activity across the publishing industry in Europe. In retrospect, some governments, notably the French, are now questioning this decision. For the publishers, four years on, the technological capability to read books digitally is only just becoming reality – and choices for new product development mean realisation of the VAT impact."

“Publishers can now reach a wider audience – notably generation Y who prefer digital to printed media. But to reach these consumers the publishers need to invest in technology platforms and build new distribution models. For many countries the addition of VAT completely wipes out the standard profit margin – typically 16% - and there can be little doubt this tax cost presents a further barrier for electronic media."

“The question is, whether the success of European business in the digital space is suffering as a result and whether the original socioeconomic reasons for reducing VAT rates, namely to encourage reading and learning, are being ignored."

“It appears the tax authorities anticipated the future of publishing in the years preceding 2003. Now it is time to readdress this decision with the full attention of those affected, to make an informed choice of how VAT law should apply to the written word in Europe, and to positively encourage digital reading and learning.”

Speaking in November, 2006, ahead of an international conference to discuss online gaming, the UK's Culture Secretary, Tessa Jowell argued that the recent US move to ban such activity was not the way forward, and suggested that the UK's proposed regulatory code could become the gold standard for gaming firms throughout the world.

In a radio interview, Ms Jowell explained that: "In relation to gambling, you have three choices; you allow the market to rule, which some jurisdictions do, you prohibit, which some jurisdictions do, or you regulate. If Internet gambling were to be prohibited, it would drive it underground."

The Culture Secretary additionally indicated on Tuesday that the government is considering putting in place a regime which would allow online gambling sites to be registered in the UK, which would allow them to present a "hallmark of quality" to their customers.

"By being licensed, we have signed up to the very tough regulatory codes to protect the public and that that in time will be very good for their reputation," she stated.

The conference, held at Ascot, was attended by delegates from around 30 countries. However, representatives from the United States were conspicuous by their absence, having reportedly declined an invitation to the meeting.

UK newspapers and media organisations were angered by a temporary injunction granted to the Law Society in October, 2006, which they viewed as 'gagging' the UK courts.

A new rule would have allowed people not involved in cases, such as journalists, to gain access to information involving details of claims and defences without first seeking permission from a judge.

It was further decided that the right to inspect court documents in civil cases should apply retrospectively, and it was this provision which especially concerned the Law Society.

The injunction obtained by the Law Society prevented the rule from taking effect pending a full High Court hearing on the matter.

Desmond Hudson, Law Society Chief Executive, announced that:

”The Law Society was granted an urgent injunction on Friday evening to prevent the Court Service from permitting public access to statements of cases filed at court before today. New court rules come into force today permitting public access. The injunction is a temporary one only that will preserve the status quo until Thursday when the High Court will consider the issue fully. The injunction does not apply to statements filed from today."

”While the Law Society supports public access to statements, several of our members became concerned last week that the change would apply not only to new cases but also retrospectively to old cases, many of which have long been closed. The Court Service reversed its position on the interpretation of the rule, putting many clients in the unreasonable position of having to apply to court at very short notice if they wanted statements to remain confidential."

"Court rules must strike a balance between the right to privacy and the public interest in open and transparent justice. Clients who were involved in litigation prior to the new rules had a legitimate expectation that the balance would not suddenly shift around them. At the next hearing, we will be asking the court to consider whether this retrospectivity is fair.”

 

BACK TO TOP

Financial Law

In February, 2010, the UK Parliament passed measures to support Islamic finance and the issuance of corporate sukuk.

The Financial Services and Markets Act 2000 Order 2010 is designed to help provide a level playing field for corporate sukuk within the UK. The Order provides clarity on the regulatory treatment of corporate sukuk, reducing the legal costs for these types of investments and removing unnecessary obstacles to their issuance.

Sukuk are a broad class of financial instruments designed to replicate the economic function of bonds, but with a structure which complies with Islamic principles. Although there is an obvious appeal to the Muslim community, sukuk can be issued and bought by everyone.

Exchequer Secretary to the Treasury Sarah McCarthy-Fry said: “The government’s objectives on Islamic finance are to enhance the UK’s competitiveness in financial services by maintaining the UK’s position as a Western leader for international Islamic finance; and to ensure that everybody, irrespective of their religious beliefs, has access to competitively priced financial products.”

“This measure is another important step in the development of the Islamic finance sector in the UK and will help to provide a level playing field for Islamic financial products in this country. It is good news for the UK economy and for our Islamic finance industry.”

A joint Treasury–Financial Services Authority (FSA) consultation on proposals for the legislative framework for the regulation of alternative finance investment bonds, which include sukuk, was launched in December, 2008, by Ian Pearson, Economic Secretary to the Treasury.

Commenting on the launch of the consultation, Pearson said: “This consultation is an important part of the work government is doing to support the growth of Islamic finance in the UK and to increase our position as a leading global centre in this market."

“The government wants to ensure no one in the UK is denied access to good financial services on account of their religious beliefs. We value the contribution Islamic finance makes to London’s position as an international financial centre and we want to see this sector continue to grow and prosper in this country.”

The consultation paper states: "This document sets out the proposed legislative framework for the regulatory treatment of ‘Alternative Finance Investment Bonds’. AFIBs refer to a type of financial instrument commonly known as sukuk or Islamic bond, but can also refer to any financial instrument with similar characteristics. This consultation paper considers the regulatory policy options for these instruments."

"Sukuk are one of the most prominent instruments used in Islamic finance. Since 2003, there have been several initiatives by the authorities to create a ‘level playing field’ for Islamic finance. For example, the government has introduced, and has proposals to further introduce, various tax changes with respect to AFIBs."

"Classifying Islamic financial instruments, including sukuk, under existing regulatory frameworks has posed challenges in the UK and other jurisdictions. Although many instruments are designed to replicate the economic functions of certain conventional financial products, their legal structure and risk characteristics may be different. It may therefore be difficult to map these products into the existing legal framework. Some of these instruments currently appear to fall within the definition of a Collective Investment Scheme (CIS) as set out in the Financial Services and Markets Act (FSMA 2000). However, alternative interpretations exist, and assessment is currently conducted on a case-by-case basis."

"HM Treasury is seeking to introduce legislative changes to align the regulatory treatment of AFIBs with conventional debt securities. Four policy options have been identified:

  • Option 1: introduce legislative amendments to explicitly exempt these instruments from CIS regulations and create a new specified investment under the Regulated Activities Order (RAO). Introduce a unique regulatory definition for AFIBs for this purpose;
  • Option 2: same as option 1 but AFIBs will be defined by the existing tax definition;
  • Option 3: same as option 1 but include AFIBs under the existing specified investment of creating or acknowledging indebtedness; and
  • Option 4: is to do nothing."

"The preferred option is option 1. As with options 2 and 3, its main benefit is that it treats AFIBs as conventional bonds. This provides clarity about the regulatory treatment and compliance costs for AFIBs and thus facilitates UK issuance of these instruments. It also creates a level playing field between AFIBs and the conventional bonds that they mirror in economic substance. Option 1 produces this benefit in a flexible and simple manner that creates legal certainty. It does not distinguish between private and public issuance of AFIBs."

In July 2007, the UK's new Chancellor of the Exchequer Alistair Darling, ruled out any immediate changes to the tax system aimed at making the private equity industry pay more tax, saying that to do so would send out all the wrong signals to the City.

In his first interview with the press since being appointed Chancellor in Prime Minister Gordon Brown's new-look cabinet, Darling told the Financial Times that the government should not bow to pressure from unions, the public and from within the ruling Labour Party to end the tax privileges currently enjoyed by private equity firms operating in the UK, even though such a move would be a popular one.

“I think we should be very, very wary indeed of a knee-jerk reaction or a reaction to a day’s headlines into making a tax change that could result in unintended consequences and undesirable consequences,” he told the paper, adding: "If any tax changes need to be made in this or any other area, they ought to be made in the proper context of considering what is best for the economy overall. Once you get yourself into a situation where you make economic policy up on the trot, then you get into huge difficulties."

The activities of private equity groups have come increasingly under the microscope, as some of Britain's biggest firms have become targets for buy-outs. This has prompted fierce criticism from labour unions, which charge that private equity groups are effectively rewarded for sacking staff and stripping a company's assets with a tax system which lets them take advantage of taper relief rules on capital gains at rates as low as 10%.

Private equity firms have also come under fire for loading up on debt to finance their take-overs and using interest payments to offset corporate tax in the companies they buy.

In October 2011, HMRC announced that it would be writing to UK residents and organisations who it believed had not reported all their income and capital gains and were holding Swiss bank accounts with HSBC in Geneva.

A former employee of HSBC had provided HMRC with information which indicated that there were around 6,000 account holders with 'UK links'. Account holders who had not yet disclosed any tax irregularities would be given the opportunity to settle their tax affairs.

An account holder may be able to take advantage of the Liechtenstein Disclosure Facility (LDF) whereby HMRC will recover liabilities for a fixed penalty of 10%.

The announcement further stressed that the newly signed tax agreement between the UK and Swiss governments and due to come into effect in 2013, did not mean that this was the deadline by which non-disclosures had to be reported.

In April 2007, HM Revenue and Customs on announced arrangements enabling investors with offshore accounts to disclose to HMRC any income and gains not previously included in their tax returns.

The UK tax authority explained that:

"HMRC has recently obtained information about holders of offshore accounts from a number of banks and has obtained similar details through the European Savings Directive."

The banks in question were thought to include Barclays, HSBC, HBOS, Royal Bank of Scotland and Lloyds TSB, according to reports.

HMRC continued:

"There is nothing wrong with holding an offshore account as long as you pay any tax due on the money deposited in it, and on the interest from it. If you have done this you do not need to use the Offshore Disclosure Facility."

"We want to encourage those with unpaid tax and duties to pay what they owe. Therefore, we are introducing the Offshore Disclosure Facility to help them get their tax affairs up to date."

The facility is open to those who hold or have held an offshore account, either directly or indirectly, that is in any way connected to a loss of UK tax and/or duty.

For a limited period, taxpayers can come forward and make a full disclosure of all undeclared liabilities, not just those connected with an offshore account. Personal disclosures or those made on behalf of others will be accepted under the terms of the Offshore Disclosure Facility.

There are two stages to the process, namely notifying HMRC of an intention to disclose, and making the disclosure and payment.

To use these arrangements, investors needed to notify HMRC by 22 June 2007 of their intention to make a disclosure and then make their disclosure by 26 November 2007.

After disclosure and payment, HMRC will acknowledge the disclosure and payment, and will inform taxpayers by 30 April 2008 if their disclosure has been accepted.

HMRC warned, however, that:

"At the end of the notification period, HMRC will target those with offshore bank accounts and undeclared tax liabilities who have chosen not to come forward to make a disclosure."

Also in April 2007, the FSA published an update on the investment entities listing review which is to lead to a further consultation on a proposed single listing regime for all UK and overseas closed-ended investment funds.

The update was announced in response to feedback received from the Investment Entities Listing Review. The consultation proposals, published in December 2006, included clarifying the importance of a company's investment policy; explaining the FSA's decision to withdraw its proposal to abolish the directive minimum regime for overseas investment companies, and introducing new listing categories to make it clear to investors what obligations a listed company is subject to.

"Throughout our consultation on this aspect of the listing rules, we have been conscious of our responsibility to protect investors while having regard to the competitiveness of the UK market," said Hector Sants, FSA Wholesale Managing Director. "We are persuaded by the responses that have indicated a preference for a single regime. This will form the basis of our proposals when we consult in June."

"The consultation has also sparked an important debate about the nature of the wider listed market and the segments of the listing regime that carry differing levels of regulatory requirements particularly with regard to overseas companies," Sants added. "We will explore those issues in a separate paper later this year."

In March 2007, the Government's strategy to combat money laundering and the financing of terrorism was launched.

The strategy, which has been drawn up with law enforcement agencies, policy departments and the private sector, sets out a series of new measures and key priorities for the future, designed to increase the use of the financial system as a weapon against international crime and terrorism.

Then Economic Secretary to the Treasury, Ed Balls explained that:

"The Government's over-riding goal is to protect its citizens and reduce the harm caused by crime and terrorism. The strategy published today sets out a comprehensive programme of financial measures, supported by UK-sponsored international standards that deter crime and terrorism; detect it when it happens, and disrupt those responsible and hold them to account".

The strategy set out new measures including:

  • Consultation with the charitable sector on measures to keep it safe from terrorist exploitation, with additional funding of GBP1 million to ensure the Charity Commission has the resources it needs to identify and disrupt terrorist exploitation of charities and protect donor confidence;
  • Further steps to promote the proactive use of asset freezing powers, including the creation of a dedicated Treasury Asset Freezing Unit that will increase the expertise and operational focus that the Government is able to bring to bear on asset freezing in response to advice from law enforcement and security agencies;
  • New steps to make financial tools a 'mainstream' part of the UK's approach to tackling crime and terrorism, including through new powers to increase their impact, a radical increase in targets for criminal asset recovery, and steps to ensure that Companies House data is fully utilised by law enforcement agencies;
  • Developing further data-sharing between the public and private sectors, and better pooling of intelligence between different public authorities;
  • Reinforced measures to tackle the abuse of money service businesses, including by replacing the current registration system with a licensing system, underpinned by a new action plan for the supervisor, HMRC;
  • Further steps to extend a risk-based approach to regulation - a key principle of the Government's better regulation agenda - including through the creation of a new money laundering supervisors' forum and a commitment to ensure authoritative guidance is available to all regulated industries;
  • Reforms to reduce red-tape, including measures to simplify identification and due diligence checks within revised Money Laundering Regulations and a consultation on changes to the consent and tipping-off rules; and
  • Fresh action at the international level, including through the UK's Presidency of the Financial Action Task Force from July 2007, to identify and tackle the most serious financial threats to international security and ensure an effective international architecture.

A report published in December, 2006, by the Financial Services Authority (FSA), shows that consumers are getting better outcomes in the way their mortgage endowment complaints are handled, but that there is no room for complacency.

Since July 2005, the FSA has been examining how 52 firms, covering 90% of the mortgage endowment market, handle complaints. The report revealed that the regulator had concerns with regard to 22 firms, 14 of which have taken or are taking remedial action to improve the quality of their complaints handling.

As a result of this work:

  • More than 100,000 complaints previously rejected have been or are being reviewed. Around 75% of those reviewed so far have been decided in the consumers' favour and over GBP120 million in compensation has been paid in these cases;
  • Consumers are getting decisions made more quickly. The number of complaints taking more than eight weeks to resolve has fallen from 33,000 in September 2005 to 7,000 in September 2006;
  • The quality of firms' decisions is improving and so the Financial Ombudsman Service is having to uphold fewer complaints in consumers' favour.

The FSA is also urging firms to plan ahead. This includes proactively helping consumers who cannot avoid shortfalls set up sensible repayment plans when their policies mature.

Vernon Everitt, FSA Retail Themes Director, announced that:

"It is encouraging that firms have improved the speed and quality of how they handle complaints. News of a potential shortfall is a major worry for consumers and firms owe it to them to deal with their complaints quickly and fairly. We are keeping a close eye on this to make sure that firms continue to do just that. Firms must also look ahead and not focus solely on the here and now. They need to pay particular attention to helping people deal with shortfalls when policies mature."

Since 2000, the FSA has fined 10 firms more than GBP14 million for mishandling mortgage endowment complaints. To date, firms have looked at more than 1.8 million consumer complaints and paid over GBP2.7 billion in compensation.

In November, 2006, the UK's Financial Services Authority on Friday published a paper setting out its assessment of the overall costs and benefits for the financial services industry of implementing the Markets in Financial Instruments Directive (MiFID).

The paper indicated that, under certain assumptions, MiFID could generate some GBP200 million per year in quantifiable ongoing benefits, which will be attributable mainly to reductions in compliance and transaction costs.

However, the quantified one-off cost of implementing MiFID could be between GBP870 million and GBP1 billion, with ongoing costs of around an extra GBP100 million a year.

Hector Sants, FSA Managing Director Wholesale and Institutional Markets, observed that:

"It is in the nature of regulation that costs are relatively easier to define and quantify for firms while benefits can be harder to pin down. As we have already foreshadowed, it is clear that implementation of MiFID represents a substantial cost to industry particularly in the upfront years, but it does create the potential for revenue opportunities over the longer term. We would encourage firms to focus on these opportunities."

The cost estimates are based on a survey of firms in which they were asked to set out their actual and/or expected budget for MiFID implementation. The results from this survey were then aggregated using estimates of the total number of firms directly affected by MiFID.

The benefits were calculated against a number of scenarios relating to the impact of MiFID on business practices and dynamics in the UK’s financial services industry and the extent to which MiFID contributes to the aim of the Financial Services Action Plan in helping to foster a single integrated market in EU financial services.

 

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Law For Lawyers

In March, 2010, new trust legislation entered into force. The Perpetuities and Accumulation Act 2009 lifts the restriction on the accumulation of trust income, which is currently restricted to just twenty-one years in most cases. From April 6, new trusts were permitted to roll up trust income throughout the lifetime of the trust, with no requirement for the trustees to distribute income to the beneficiaries.

Emma Haley, a solicitor in the Private Client and Tax Department at Boodle Hatfield, said: “This piece of legislation brings English trust law up-to-date and more in line with trusts available in other jurisdictions. As well as allowing trusts to accumulate income, the lifetime of a trust has been expanded from 80 to 125 years. This means that new trusts can be run on a more flexible basis to benefit successive generations for longer.”

The new legislation does not however apply to existing trusts she warned, effectively creating two different systems, which will undoubtedly cause some confusion, according to the firm.

Concluding, Haley explained: “It is quite common for people to leave property in trust in their will, yet the new legislation will only apply to wills executed on or after the April 6 and not to wills already made, even if they come into effect after April 6 on the date of death.”

“[For this reason] people who have wills that contain a trust may wish to consider making a new will that takes advantages of the unrestricted power of accumulation and the longer perpetuity period."

In June 2007, the UK's Bar Council published a statement outlining the industry body's thoughts on the government's Legal Services Bill.

Commenting as the Legal Services Bill received its Second Reading in the House of Commons, the Bar Council emphasised the need to put consumers first in any changes to the current legal framework.

It explained that:

"The Bar Council is in favour of the modernisation of legal services and believes that the Bill as presently formulated by the House of Lords benefits the consumer interest while also maintaining a strong and independent legal profession."

"At the heart of the Bar's position is that proper regulation of the legal profession is needed to ensure that consumers and the wider public can be confident in the quality of the services they receive. In light of the Bill's consideration by the Commons this week the Bar Council is keen to make clear to MPs and users of legal services its position on a number of key issues."

The issues addressed by the Bar Council in its statement were broken down into the following key areas:

"Legal Services Board (Independence): The Bar Council believes that, to reinforce consumer confidence in the profession, it is vital that the proposed Legal Services Board (LSB), as the oversight regulator of legal services, is fully independent. It supports provisions in the Bill for appointments to the Board to be non-governmental and made by the Lord Chancellor with the concurrence of the Lord Chief Justice. Safeguarding the independence of the profession, through an independent Legal Services Board is essential in safeguarding the international reputation of the English legal profession."

"Legal Services Board (Powers): The Legal Services Board (LSB) needs to have an effective range of powers over providers of legal services and front line regulators. But the Legal Services Board (LSB) should only intervene where there is some significant challenge to the regulatory objectives. Otherwise, the LSB would amount to a costly and unnecessary second tier of regulation."

"Complaints’ Handling: By January 2006 the Bar Council had already responded to the recommendations of the report of Sir David Clementi into Legal Regulatory Frameworks through the establishment of the Bar Standards Board (BSB) which split the representational and regulatory aspects of the Bar Council's work. The Bar has been repeatedly commended by the Government and Legal Services Ombudsman for its strong performance in complaints’ handling, at no expense to the public. The Bar Council therefore believes it would be against the consumer interest not to provide the Office for Legal Complaints (OLC) with a discretion to delegate the investigation of complaints to approved regulators."

"Alternative Business Structures: The Bar, in principle, has no objection to the development of Alternative Business Structures (ABSs). To protect the public and consumer interest, ABSs must be regulated by approved regulators, who should ensure that they do not diminish access to justice."

"Costs: The Bar Council is concerned that, under the Bill, all costs of the new structure will fall on legal service providers. The Bar Council believes that the costs should be shared between the legal profession and the Government to avoid excessive costs being passed back to the users of legal services."

In April 2007, the UK's Legal Services Complaints Commissioner, Zahida Manzoor declared the Law Society's complaints handling plan for the period 1 April 2007 to 31 March 2008 to be adequate.

The declaration is likely to have come as something of a shock for the legal profession's representative body, which over the past few years has been more used to defending itself against accusations of inadequate complaints handling levelled at it by the LSCC.

The newly agreed complaints handling plan followed a period of detailed discussions between the Office of the Legal Services Complaints Commissioner and the Law Society.

Ms Manzoor commented:

"I believe the greater collaborative approach adopted by the Law Society this year has been fundamental to producing a complaints handling Plan for 2007/08, which not only focuses on improving the processes and procedures of the Law Society but more importantly its wider business improvements."

The Commissioner asked the Law Society to include in its Plan the key deliverables from the Legal Complaints Service and Solicitors Regulation Authority Improvement Agendas.

Speaking with regard to the plan, the Commissioner stated:

"This is the first year I can recall where the Law Society has committed to delivering wider business improvements which better serve the needs of all its users and I look forward during the Plan year to seeing the potential benefits being realised for the consumer, profession and the Law Society."

However, she also sounded a note of caution in agreeing the plan by pointing out the importance of the Law Society being more proactive in managing performance against the targets and delivery of its plan earlier in the year.

Ms Manzoor observed that:

"Since I was appointed as Commissioner two years ago a reactive approach by the Law Society has resulted in effort being made during the latter part of the year once there has been realisation that some targets are unlikely to be met. This approach has been unsatisfactory and would not be acceptable in future years."

She concluded:

"With the proposals for the new Office for Legal Complaints, although not envisaged to be in place until 2010, it is imperative that a step change in the handling of complaints by the Law Society is made to ensure improvements are delivered sooner. "

Also in April 2007, Lord Falconer, then recently unveiled as the UK's first Secretary of State for Justice, hailed the creation of the new Ministry of Justice as a "huge step forward" in the government's drive to reform courts, prisons and the probation service.

Suggesting that it made sense to bring together all the people involved in the justice system, Lord Falconer announced that:

"I am honoured to have been chosen by the Prime Minister for the task of focusing the justice system on what matters - protecting the public and reducing re-offending."

"It makes sense to bring under one roof everyone looking after the criminal and civil courts, sentencing, imprisonment, community penalties and rehabilitation."

"This is a huge step forward in making sure we have a justice system that works for the public, punishes the guilty and offers a realistic prospect of rehabilitation for the contrite."

The Ministry of Justice came into being on May 9, and comprises the National Offender Management Service from the former Home Office, the Office for Criminal Justice Reform and the Department for Constitutional Affairs (DCA).

The new department has responsibility for the courts, sentencing, prisons, and rehabilitation, in addition to DCA policies like voting, crown dependencies, human rights, tribunals and freedom of information.

In December, 2006, Ms Manzoor announced the targets she had set in relation to the handling of complaints about members of the Law Society for the period 1 April 2007 to 31 March 2008.

In determining the targets, the Commissioner stated that: "I have been pleased with the constructive work between my Office and the Law Society which has led up to the setting of these targets and am grateful to the Law Society for its input."

The Commissioner has set targets in three key areas, in order to bring the performance of the Law Society to a level that moves it closer towards effective and efficient complaints handling.

The first of these areas is improving the speed with which complaints are handled by the Law Society. One of the targets is that by the end of March 2008, there should be no more than 65 cases that have been open for 12 months or more.

Improving the quality of complaints handling by the Law Society continues to be a priority area. In order to deliver improvements in this area the Commissioner has set a range of targets. One is that the Law Society must share guidance on levels of financial redress with the consumer and solicitor in at least 85% of cases.

The Commissioner has also set the Law Society a target that 88% of consumers should receive a substantive response within 45 days of receipt of the complaint.

Commenting on this, the Commissioner added:

"This target does not require the complaint to be investigated, it only requires the Law Society to accurately identify and communicate all the issues, specific to the consumer's individual circumstances to enable the complaint to progress. It is not unreasonable for a consumer to expect to receive this letter within a month and a half."

The final area in which the Commissioner is driving for improvement is in the Law Society's financial and resource management, and its ability to implement change.

The UK's Legal Services Minister, Bridget Prentice in December, 2006, asked lawyers to help open up the legal profession to people from different backgrounds, in order to retain and enhance public confidence.

Speaking at the Law Society's Equality and Diversity forum in London, Ms Prentice said that the legal profession should be - and be seen to be - representative of the people it serves.

She challenged more law firms to publish their equality and diversity figures to show their commitment and acceptance of the valuable contribution diversity and equality made, which would increase staff morale and public confidence.

The Legal Services Minister explained that: "In a modern and democratic society, equality and diversity should be acknowledged, taken seriously and celebrated. It is not enough to say we are doing it, we must show that we are".

"Some law firms have taken up my challenge to them last year to publish their diversity and equality data to give a visible sign that the legal profession is at the forefront of upholding our values. But not enough!"

"Almost everyone will use legal services at some point in their lives. People may choose to use firms that have demonstrated their commitment to diversity and equality. Publicly declaring their diversity policy therefore makes business sense."

At the same time, she announced the findings of a working group, set up by the Department for Constitutional Affairs to explore the recommendations made in the Increasing Diversity in the Legal Professions Report.

The working group identified a number of barriers that people face in pursuing a career in the legal profession and suggests ways of overcoming them.

The obstacles identified include:

  • Lack of easily accessible information about how to pursue a career in law or alternative routes into the profession.
  • Inadequate information to students about costs, timescales, employer expectations, skills and experience required.
  • Lack of comprehensive research about what affects career progression, equal pay, and flexible working.
  • The need for more recognition of work based learning and other skills and experience as part of recruitment.

Bridget Prentice concluded:

"Today's report outlines the problems people from certain groups face when trying to pursue a career in the legal profession. Those barriers can occur at any stage of a career."

"It is important that, in addition to encouraging people from a wide range of backgrounds into the profession, there are policies and practices in place that will make them want to stay in the profession."

"Opening up the profession to people from diverse backgrounds and educational establishments will bring innovation, creativity and further skills for firms to benefit from."

It emerged in December, 2006, that magic circle law firm, Clifford Chance had converted from an US limited liability partnership to become an UK LLP.

In a statement announcing the move, quoted by The Lawyer, managing partner David Childs explained that: “After extensive investigation, the firm has concluded that a British LLP best suits our needs as regards liability, tax and structure, while retaining the culture and organisation of an international partnership.”

The move follows a similar decision by Allen & Overy in 2004, and may signal the start of a growing trend, with other international firms such as Linklaters and Freshfields Bruckhaus Deringer also reported to be considering conversion to UK LLP status.

According to The Lawyer's report, only the firm's Amsterdam, Beijing, Brussels, Dubai, London, and Shanghai offices will operate within the new framework, with the remainder of its 29 international offices being obliged to operate as sub-entities of the LLP due to regulatory factors.

The UK government's new Legal Services Bill, designed to overhaul the way legal services in England and Wales are regulated, was published in parliament in November. 2006.

The Legal Services Bill introduces sweeping reforms in the regulation of the legal sector, brings in an independent complaints body and opens the way for consumers to buy legal and other services under one roof.

The new Legal Services Board will act as a single, independent and publicly accountable regulator with power to enforce high standards in the legal sector, replacing a number of regulators with overlapping powers.

The Bill, published last week by the Secretary of State for Constitutional Affairs and Lord Chancellor Lord Falconer, also introduces:

  • A new kind of Alternative Business Structure that enables consumers to get services from one business entity that brings together lawyers and non-lawyers, increasing competitiveness and improving services.
  • A single and fully independent Office for Legal Complaints to remove complaints handling from lawyers and restore consumer confidence.

Lord Falconer announced that:

"Today's proposals aim to increase public confidence in acquiring legal services that are fit for purpose. The Legal Services Board will oversee approved regulators who will be required to separate regulation and representation, thus removing any conflict of interest."

"Currently, bodies that regulate legal services provision also act as representatives of their profession, a position that could raise the question of impartiality."

"The Office of Legal Complaints will further increase public confidence through handling consumer complaints against legal services providers and ensuring a quick and fair response."

He concluded: "These are bold steps. But they have been taken after long and careful study, informed by a large cross-section of people from expert bodies such as the Office of Fair Trading, to the consumer panel to individual complaints from consumers."

Company Law


In May 2007, a group of foreign multinational companies based outside the European Union were refused the right to claim back tax from the UK government in a key test case ruling by the House of Lords.

The five-member panel of law lords ruled 5-0 against the companies' arguments that the UK had violated anti-discrimination clauses in double taxation treaties by making them pay advanced corporation tax on dividends paid to foreign parents from UK subsidiaries when similar dividends paid to UK parents did not attract the tax, which was abolished in 1999.

The group litigation, led by some 50 companies from Japan, Switzerland and the US in the action which became known as the Boake-Allen case, effectively reverses decisions made by the Court of Appeal and the High Court and will be considered a major victory for the UK government after a similar claim was partially upheld by the European Court of Justice last year.

According to the law lords' verdict, the scope of the group's claim was much narrower than that of cases based on EU law, and while UK advanced corporation tax may have breached the anti-discrimination clauses set out in the relevant double tax avoidance treaties, those provisions had not been implemented in the UK.

Commenting on the verdict, Bill Dodwell, head of tax policy at business services firm Deloitte, noted that the outcome would be likely to "make it very much harder for foreign multinationals to make claims based on EU tax cases."

However, Simon Whitehead of Dorsey and Whitney, which represented the claimants in the Boake-Allen case, says that multinationals hoping for a more favourable ruling can still take some solace from the law lords' verdict.

"This could interestingly make other claims seeking to enforce such articles beyond the context of ACT look more attractive," he was quoted as observing by the Financial Times.

In March 2007, then Chancellor of the Exchequer Gordon Brown (now the UK's Prime Minister) surprised many by announcing a 2% reduction in the rate of corporation tax and a 2% cut in the basic rate of income tax, representing the first major cut in these taxes in many years.

Taking centre-stage in Brown's last budget speech was the announcement that corporation tax would be cut by 2% to 28%. According to the Chancellor, this would bring the UK's corporate tax rate below both the OECD and EU15 average. However, tax experts observe that while the Chancellor has given with one hand, he will claw back much of this lost revenue with the other through changes in capital allowances.

According to the Treasury, the reform of the capital allowance regime will "better reflect true economic depreciation," by ensuring that business investment decisions reflect commercial rather than tax considerations. But for manufacturers and companies with large property portfolios, the changes could well cancel out any benefit brought by the cut in corporate tax.

But in a somewhat confusing message for the small business community, Brown also decided to increase the rate of corporate tax for small companies with profits up to GBP300,000 per year by 3% to 22% over the next two years in a bid to ensure "fairness across the tax system." This will entail a 1% increase from April 2007, another 1% hike in April 2008 and a final 1% increase in April 2009. This move is being seen by the Treasury as part of tackling "tax motivated incorporation" and an initiative towards "refocusing incentives for small businesses towards those businesses that reinvest," but tax experts argue that the move sends conflicting signals about government policy in this area.

More positive measures affecting business announced in the budget include: the introduction of an Annual Investment Allowance of GBP50,000 which will target investment support on all businesses that are investing for growth helping to alleviate the cash flow constraints which confront small and growing businesses; and an increase in the headline rate of the R&D tax credit rate for SMEs to 175% from 150%, and increasing the R&D tax credit rate from 125% to 130%, from April 2008.

Richard Lambert, director-general of Confederation for British Industry (CBI) in September, 2006, warned that proposed pension reform legislation, which includes automatic pension scheme enrolment and compulsory company contributions, will be hard for small firms to adopt and could undermine existing pension schemes.

Unless the burden is reduced there are real risks that employers will react in ways which could jeopardise the objective of increasing private pension saving, Mr Lambert told the Secretary of State for Work and Pensions, John Hutton.

In a statement, the CBI warned that this could include employers 'levelling down' existing pension contributions, or result in employees being discouraged from remaining opted-in to the new personal pensions accounts.

It is also vital that trust in pension schemes is not jeopardised, the Confederation urged, explaining that:

"If it is, people are likely to opt-out and the mission of increasing pension saving, which business backs, will be unsuccessful."

To prevent this, the CBI is urging Mr Hutton to adopt a series of measures aimed at assisting both small firms without pension schemes, and employers with existing arrangements, to ensure cost increases and administrative burdens are kept to a minimum.

These include fixing the level of compulsory employer contributions at 3%, with a reduction for the smallest firms, and a six month waiting period before staff are automatically enrolled into schemes.

Employers should also be kept at arms' length from the administration of the new pensions accounts, the CBI argues, and a light-touch, risk-based compliance regime should be enforced.

The CBI's submission to the Government's pensions white paper calls for a package of proposals including:

  • Phasing in compulsory employer contributions over three years, with a Government commitment to firms not to ratchet up the level by fixing it in the bill at 3% of employees' salary.
  • Time-limited financial support for employers with fewer than 50 staff through reduced compulsory contributions - 2% of employees' salary instead of 3%.
  • Minimising the administrative and cost burden on employers via a six month waiting period before employees are automatically opted-in, with auto-enrolment starting at 25. This would apply to both existing and new pension schemes. There should also be a simple ‘good scheme’ test so employers can offer their alternative without having to jump through hoops.
  • Deregulating and simplifying occupational pension rules so firms are encouraged to continue offering their own good quality pension schemes. Government should also consider incentives for employers who offer top quality schemes.
  • Making employees, not firms, responsible for choosing their pension provider unless employers wish to do so. There should also be a 'central clearing house' so that employers have a single point of contact for dealing with administration.
  • A Government commitment to a ‘light-touch, risk-based’ enforcement regime aimed at tackling likely offenders, based on the successful model adopted for the minimum wage.

Speaking in May, following the unveiling of the White Paper, Adair Turner, former Chairman of the Pensions Commission, stated that:

“The White Paper commits British pension policy to the three key policies which were at the centre of our recommendations: first, state pension provision which increases over time in line with the nation’s prosperity, limiting the extent of means-testing, and made affordable by a steady rise in the state pension age as people live longer. Second, a better deal for women. Third, automatic enrolment into a new system of low cost personal pension savings accounts with provision for an employer contribution. We hope that this overall architecture can command support from all parties, whatever the debates about details.”

The former members of the Commission, which was a temporary body established in December 2002 and wound up earlier this year, announced that:

“We welcome the government’s commitment to the three key features of the Commission’s proposed new private pension saving system: automatic enrolment, organisational arrangements which ensure low cost provision, and a compulsory matching employer contribution set at a minimum 3%. A package of measures to mitigate the initial cost impact on small businesses will be an important implementation detail. And the Commissioners continue to believe, as the White Paper tentatively concludes, that a single national scheme, rather than a multi-provider model, will deliver lowest cost, and thus highest possible pensions to savers."

In September, 2006, the UK's Financial Services Authority announced that it had fined Braemar Financial Planning Limited for systemic failings in its sales process for pensions unlocking. The failings resulted from advisers not taking reasonable steps to ensure that recommendations were suitable for their customers.

Pensions unlocking allows people aged 50 and over to take some or all of the benefits of their pension in a lump sum and/or income before they retire. This is a high risk option which is only suitable for a limited number of people.

The FSA found that between November 2002 and November 2005, Braemar had persistently failed to collect sufficient personal and financial information about their customers before making recommendations that they unlock their pensions.

The firm also could not demonstrate that its recommendations were suitable, as its suitability letters were inadequate and its communications were not clear or fair, and were misleading.

Additionally, Braemar could not demonstrate that all the alternative options available to customers had been adequately explored during the sales process.

Clive Briault, FSA Managing Director for Retail Markets, announced that:

"Braemar is one of the largest players in this sector of the industry and it should have been able to demonstrate that product recommendations were suitable for its customers. When unlocking a pension, the onus is on the firm to ensure that the customer is aware of all the risks within the product as well as any alternative options available to them."

"It is senior management's responsibility to ensure that all communications, particularly those to vulnerable customers, are clear, fair and not misleading. Other firms in this market must take heed and ensure they have customers' interest in mind at all times during the sales process."

In determining the appropriate level of financial penalty, the FSA took into account that Braemar had proactively cooperated and sought to mitigate the failings once they were brought to its attention. Braemar immediately suspended business and instructed a pensions consultant to review both its systems and controls and sales process. Braemar is also reviewing its revised procedures and monitoring most of its new business for a three month period.

Were it not for the co-operation afforded by the firm, the fine imposed would have been substantially higher. Taking into account the firm's co-operation, the appropriate level of the financial penalty was determined to be GBP260,000. As Braemar entered into negotiations at the earliest opportunity, in accordance with the FSA's settlement process, it received a 30% reduction in the level of its fine. Therefore the final financial penalty imposed was GBP182,000.

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Compliance Law

In November, 2009, the UK's Financial Services Authority (FSA) announced proposals to simplify the structure of the fees it levies on regulated firms, in order to enhance fairness and transparency.

Following a review of its approach for determining the annual fees that firms pay, the FSA consulted on a number of measures to ensure that fees continue to be set in a fair way, and to make the basis for calculating fees easier for firms to understand, including:

  • Setting a standard "minimum fee" that all firms will have to pay to cover the basic cost of being regulated; and
  • Ensuring that "variable" fees over and above this basic minimum amount increase in direct relation to a firm’s size – with the result that fees for the largest firms reflect the greater regulatory engagement they receive.

By the end of November, the FSA said it would publish a Fees Calculator which would enable firms to assess what these proposals mean for them.

Mark Norris, the FSA’s Chief Operating Officer, said: "We are committed to delivering fair and transparent fees to all authorized firms. This is particularly important given that we are funded entirely by the firms we regulate, so we need to ensure firms can clearly see how we calculate their contribution to the running costs of the FSA."

The FSA is inviting responses to the proposals in its consultation paper by January 11, 2010. In February 2010, depending on the outcome of this consultation, the FSA plans to consult on fee levels for 2010/11 using this new fee model.

In May 2007, it emerged that less than half (41%) of the UK’s largest companies believe that their accounting systems collect adequate information to produce the tax calculations and disclosure required to meet new accounting regulations, according to a new report by Deloitte.

According to the 'Mind the GAAP' report, only 20% of company tax professionals believe that their systems adequately meet new GAAP requirements, at a time when tax disclosures are more closely scrutinised than ever by regulators, analysts, investors and tax authorities. 43% of companies fear that small errors in brought forward balances could lead to material weaknesses in their tax reporting.

Commenting on the findings of the study, Alan MacPherson, tax partner at Deloitte, said:

“UK plc is getting to grips with an unprecedented raft of regulatory changes, such as the adoption of IFRS. While many of the changes are intended to increase transparency, companies currently lack the necessary knowledge and systems to achieve clearer, more accurate disclosure."

“Traditionally the focus of tax departments has been on planning in order to minimise costs and underpin shareholder value. With regulators and financial markets now demanding greater tax transparency and certainty, we believe that tax departments should dedicate at least one third of their time to reporting and compliance."

“Many tax directors do not believe that tax is currently a major driver of accountancy systems, and there is a strong consensus that it should play a much more influential role in future. It’s important that their tax concerns are firmly on the boardroom agenda."

“On the bright side, seven out of 10 in-house tax professionals believe that technology will positively improve tax accounting in the future. However, their expectation of further regulatory change means that many are adopting a 'wait and see' approach. Only one third (31%) have plans to implement new systems or upgrade existing ones."

“With nearly half (47%) of companies believing that the rate of regulatory change will stay the same or increase, taking time to take stock is an understandable, but high risk, response. We’ve seen from Sarbanes Oxley in the US, that the financial markets tend to severely punish companies with tax weaknesses."

“Companies are no longer able to rely on support from their auditors and are dependent on accounting systems, which were not designed with tax as a priority. Almost three quarters of the company tax professionals we interviewed admitted to feeling exposed as a result of the changes - they are acutely aware that they may be held personally responsible for any inaccuracies or misrepresentations."

“It is encouraging to note that companies understand that technology has a positive role to play in the compilation and submission of year end tax figures. The companies that cope best will be those with formal schedules for reviewing and regularly upgrading or updating their systems."

“While companies may find the current pace of change challenging, the silver lining is that better systems will in time ensure more accurate and reliable numbers, and so give greater confidence in the integrity of the accounts.”

Also in May 2007, then Economic Secretary to the UK Treasury, Ed Balls last week announced the next steps in the government's agenda to increase the global competitiveness of the UK's Financial Services industry at a City High-Level Group meeting.

At the meeting, the Government and industry representatives discussed detailed plans for an International Centre for Financial Regulation (ICFR). The Centre will carry out research and offer training on international regulation with a view to influencing global regulatory developments.

This proposal was drawn up by a joint Government and industry working group, chaired by Lord Currie, who presented the findings to the High-Level Group.

The proposal has attracted significant financial support from industry and the City, in addition to the GBP2.5 million to be provided by the Government over the next 3 years.

Mr Balls explained that:

"Developing a new world class centre of financial regulatory expertise will not only help to inform the UK's principles based regulatory approach, but influence developments in regulation across the world."

"The Centre will be the first of its kind in the world, and although based in London it will have global reach, providing research and training for financial services regulators around the world."

In April 2007, The US Securities and Exchange Commission, the United Kingdom Financial Services Authority (FSA), and the United Kingdom Financial Reporting Council (FRC) on Wednesday signed a protocol for implementing the Work Plan between the SEC and the Committee of European Securities Regulators to share information on application of International Financial Reporting Standards (IFRS) by issuers listed in the UK and the US.

At separate meetings with the FSA and FRC in London, SEC Chairman Christopher Cox executed the Protocol with FSA Chairman Callum McCarthy and UK FRC Chief Executive Paul Boyle to facilitate implementation of the SEC-CESR Work Plan.

The information to be shared concerns the application of IFRS in the financial statements of issuers listed in the UK and registered with the SEC.

According to the SEC:

"The world's capital markets stand to benefit significantly from widespread acceptance and use of global accounting standards that are high-quality, comprehensive, and rigorously applied. With issuers and investors alike increasingly looking beyond their borders for opportunities to invest and raise capital, they are typically seeking the accuracy, timeliness, and consistency in the reporting of financial information that such standards could provide."

Chairman Cox added:

"This agreement provides the framework for the confidential exchange of information between the SEC staff and the staff of the FRC, which is charged with reviewing issuers' published financial statements in the UK. High-quality and consistent application of IFRS is critical to the future of global accounting standards. Sharing information under this protocol should help to promote this goal."

In its Market Watch newsletter, published in December, 2006, the UK's Financial Services Authority (FSA) announced that it has launched a thematic review of insider trading controls.

Following the revelation that of the 266 suspicious transaction reports (STRs) received between between 1 July 2005 and 31 October 2006, 255 related to insider dealing, the Financial Services regulator explained that:

"We have started a thematic review of the controls over the handling of inside information on mergers and acquisitions (M&As) – principally public takeovers. The background to this project is our occasional paper published last March on measuring the cleanliness of the UK financial markets."

"We suggested that insider trading may have taken place before about one-third of takeover announcements in 2004. The project is being done in consultation with the Panel on Takeovers and Mergers."

"The work, which is being led by Markets Division with inputs from supervisory areas, involves looking at a small number of deals where there was a leak of information. We are holding detailed discussions with all the key parties to those deals – the advisers, lawyers, PR firms, printers, issuers, debt and equity providers. We will compare these deals with deals that did not have a leak of information."

"Also, several more generic (non-deal specific) meetings are taking place so we can get a good feel for the range of systems and controls employed across the industry. So we are talking to both the FSA-regulated and nonregulated community and are working together with the industry to address the risk issues and to enhance controls where necessary."

The FSA continued: "We aim to increase our understanding of how information is controlled and consider ways to tighten the flow of information. We note that M&A deals are often complex and involve a large number of ‘insiders’."

"In this review we will meet specific ‘deal teams’ to go through the chronology of deals, undertaking a high level study of IT systems and security and reviewing hard-copy filing systems together with a sample review of documents. We are particularly interested in understanding how conflicts are managed and what use is made of information barriers such as Chinese walls and, related to this, wall-crossing procedures."

"A review of the adequacy of insider lists is an important part of the project, as is considering whether there are ways for a firm to reduce the number of insiders or potential insiders. More generally we are considering firms’ training programs and compliance culture."

It concluded: "We aim to publish our findings in the Spring of 2007. We plan to include a summary of good practice examples of controls and procedures and to encourage firms involved in M&A advisory work to review their controls and to benchmark themselves and to consider what action is appropriate where standards fall short."

The UK's Financial Services Authority (FSA) in October, 2006, obtained an interim injunction at the High Court against Treadstone Corporation Ltd and its director, Thedfred Lemont Shepherd for allegedly operating unlawfully by promoting and selling shares to UK investors without authorisation from the FSA.

This action is intended to stop Treadstone and Mr Shepherd from continuing these activities. It also freezes their assets and other assets under their control up to GBP500,000.

The FSA is continuing its investigation and is seeking further information on the company and its principals.

According to the FSA, since May 2006, Treadstone and Mr Shepherd had arranged cold calling of UK investors to persuade them to buy shares which may have been issued by a Finnish company called Tramigo Limited. The Authority believes that over 150 investors have paid in excess of GBP400,000 for such shares.

Because neither Treadstone nor Mr Shepherd are authorised by the FSA, investors may not claim compensation from the Financial Services Compensation Scheme or make a complaint to the Financial Ombudsman Service.

 

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