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Flashcards in Government, legislation and regulation Deck (25)
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1

What are the FIVE principles of better regulation?

(HINT: PACTT)

Proportionally
Accountability
Consistency
Targeting
Transparency

2

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

3

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

4

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

5

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

6

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

7

What type of work does the Money Laundering, Terrorist Financing and Transfer of Funds Regulations (2017) cover?

Agency work

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

8

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

9

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

10

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

11

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

12

What is the relevant RICS PS for bribery, corruption and money laundering?

RICS Professional Statement - Countering Bribery, Corruption, Money Laundering and Terrorist Financing (2019)

13

When was the Bribery Act introduced?

April 2010

14

What are the FOUR offences under the Bribery Act?

1. Bribing
2. Receiving a bribe
3. Bribing a foreign official
4. Failure to prevent a bribe

15

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

16

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

17

What is a bribe?

Gifts in the form of cash, where the purpose is clearly to influence a decision

18

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

19

Are cash gifts allowed?

Cash payment >10,000 euros cannot be accepted under the Money Laundering Regulations (2017)

20

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

21

Who is the Bribery Act policed by?

The Serious Fraud Office (SFO)

22

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

23

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;
Staff training
Provision of policies
Regular reviews

24

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

25

What is the primary aim of the Equality Act (2010)?

Gives legal protection to protected characteristics in the workplace and wider society