Flashcards in Government, legislation and regulation Deck (25)
What are the FIVE principles of better regulation?
What is a contract?
An agreement entered into voluntarily by 2 parties, where generally money = passed between 2 parties, and where terms of that agreement = enforceable
RICS members and their firms = liable to anyone with whom they make a contract and for breaches of that contract
Contracts for provision of advice and services usually contain implied term (both at common law and pursuant to the Supply of Goods and Services Act 1982) that the advice and services will be provided with all reasonable care and skill
What is tort?
Law of tort = designed to regulate conduct of individuals to each other and allows for compensation / damages if 1 party suffers a loss through another’s action
Deals with civil wrongs
Law of tort introduces important concept of duty of care
Under the law of negligence, an actionable error or omission is known as a tort
An employer = generally have responsibilities in tort (or delict) to clients but individual employees may also owe a duty of care personally
What is the Equality Act (2010)?
Law which protects you from discrimination
Means that discrimination / unfair treatment on basis of certain personal characteristics, such as age = now against the law in almost all cases
What is the Consumer Protection from Unfair Trading Regulations (2008)?
Protect consumers from unfair / misleading trading practices and ban misleading omissions and aggressive sales tactics
There is a duty to trade fairly and honestly with consumers
What is the Business Protection from Misleading Marketing Regulations (2008)?
Prohibit misleading business-to-business advertising and impose further restrictions on how businesses compare their products to rival products from other companies
Prohibited from giving misleading information that injures, or is likely to injure, a competitor
What type of work does the Money Laundering, Terrorist Financing and Transfer of Funds Regulations (2017) cover?
Independent legal professionals including firms / sole practitioners who;
- buys and sells real property or business entities
- manages client money, securities or other assets
- opens or manages bank, savings or securities accounts
- organises contributions necessary for the creation operation or management of companies creates, operates or manages trusts, companies, foundations or similar structures
What are the key requirements of the Money Laundering, Terrorist Financing and Transfer of Funds Regulations (2017)?
Sets out additional obligations of private sector firms working in areas of higher money laundering risk
Aim to stop criminals using professional services to launder money by requiring professionals to take a risk-based approach
Firms must put measures in place to identify clients and monitor how they use their services
What are the three levels of AML due diligence?
Customer Due Diligence (CDD) – identify client and conduct background checks
Enhanced Due Diligence (EDD) – if person from high risk country or politically exposed person (PEP)
Simplified Due Diligence (SDD) – low risk of money laundering case
What would you need to do to carry out appropriate due diligence on an individual?
Identify your client and verify their identity on basis of a reliable independent source (such as a passport) and proof of address (utility bill)
Check they are one of the company shareholders / if they are a representative, that they are permitted to act on behalf of the company shareholder
What would you need to do to carry out appropriate due diligence on a private limited company?
You must obtain and verify:
Company name, number, registered office address
The law to which it's subject and its constitution or other governing documents
Names of the board of directors and the senior persons responsible for its operations
What is the relevant RICS PS for bribery, corruption and money laundering?
RICS Professional Statement - Countering Bribery, Corruption, Money Laundering and Terrorist Financing (2019)
When was the Bribery Act introduced?
What are the FOUR offences under the Bribery Act?
2. Receiving a bribe
3. Bribing a foreign official
4. Failure to prevent a bribe
What are the SIX Principles of the Bribery Act?
1. Proportionality - organisation's procedures to prevent bribery = proportionate to bribery risks it faces and scale of organisation's activities
2. Top-Level Commitment - management of an organisation (board of directors) = committed to preventing bribery
3. Risk Assessment - organisation assesses nature and extent of exposure to potential risks of bribery
4. Due Diligence - organisation applies due diligence procedures, taking a proportionate and risk based approach
5. Communication (Incl. Training) - organisation ensures bribery prevention policies and procedures = understood throughout communication and training
6. Monitoring and Reviewing
Why was the Bribery Act introduced and what do you know about the Bribery Act?
A legal requirement
Act introduced to enhance UK law on bribery in light of requirements of 1997 OECD anti-bribery Convention.
Introduced a new strict liability offence for companies failing to prevent bribery
Act has global jurisdiction; legislation covers UK companies and residents, but also companies that do business in the UK
Act imposes strict penalties for active and passive bribery by individuals and companies
What is a bribe?
Gifts in the form of cash, where the purpose is clearly to influence a decision
Is hospitality prohibited by the Act?
No as long as it is reasonable and proportionate and it is registered in a gift and hospitality register
Are cash gifts allowed?
Cash payment >10,000 euros cannot be accepted under the Money Laundering Regulations (2017)
What happens if you commit and act of bribery?
Excluded from RICS
Imprisoned for up to 15 years
Heavy fines for companies, could be in the millions
Who is the Bribery Act policed by?
The Serious Fraud Office (SFO)
Are you aware of any case law relating to bribery?
In 2016, SWEET GROUP were prosecuted for a bribe offered to a Middle Eastern Business in order to secure a contract - fined £1.4m by Serious Fraud Office and £250k by RICS
Are companies responsible for their employees corrupt acts?
Yes, unless they can show that they have put adequate policies and procedures in place to combat bribery
Some examples of procedures;
Provision of policies
What are the THREE aims of the Construction (Design and Management) Regulations 2015?
1. Focus the project team on health and safety throughout the lifecycle of a building
2. Improve the planning and management of projects to identify dangers early
3. Place responsibilities upon those best placed to benefit health and safety