Open Book Contract Management Louise Bennett ECJ procurement ruling on replacing a consortium Tom Nanson Employment case focus Sarah Hooton Electronic disclosure - the path to date Nichola Evans General Data Protection Regulations - an update Megan Larrinaga The vote to leave Tom Nanson

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2. Birmingham Exeter London Manchester Nottingham
www.brownejacobson.com
1
Index
Page
Open Book Contract Management
Louise Bennett
2 – 3
ECJ procurement ruling on replacing a consortium
Tom Nanson
4 – 5
Employment case focus
Sarah Hooton
6 – 11
Electronic disclosure – the path to date
Nichola Evans
12 – 15
General Data Protection Regulations – an update
Megan Larrinaga
16 – 18
The vote to leave
Tom Nanson
19 - 21
The articles in this newsletter are for general information only. They do not represent legal advice. You
should always take legal advice before pursuing any course of action discussed in this newsletter. If you
would like to discuss any of this issues raised in this newsletter please call us +44 (0)115 976 6000.

3. 2
The Crown Commercial Service on the 24 May 2016 published a Procurement Policy Note (PPN) setting out the
government’s approach to Open Book Contract Management (OBCM).
The purpose of the PPN is to ensure that there is a proportionate and consistent approach of the open book
strategy by central government departments, their executive agencies and non-departmental public bodies.
This PPN is not mandatory for the remainder of the public sector.
What is OBCM?
OBCM is described as “the scrutiny of a supplier’s costs and margins through the reporting of, or accessing
accounting data”. It is essentially, a structured process for the sharing and management of charges and costs
and operational and performance data between the public body and the client. It is hoped that this financial
transparency will encourage a pattern of collaborative behaviour between public bodies and suppliers.
OBCM will mainly be used for the management and delivery of large and complex contracts which have
significant value and risk attached to them.
What steps need to be taken?
The type of contract that OBMC applies to is wide ranging, but it is likely to be very relevant to those
contracts that are procured through one of the complex procurement procedures, competitive dialogue and
competitive procedure with negotiation. That said, OBMC should always be applied in a proportionate way.
Guidance is issued alongside the PPN which sets outs the process organisations should follow. In summary, the
steps that organisations should take are:
1. Review contract portfolios:
Firstly, review the contract portfolio to establish which Tier of OBCM to apply. This includes deciding, by 24
June 2016, if third party support is required to conduct the review. Where third party support is required,
organisations should contact the Complex Transactions Team in Cabinet Office to access these services.
Alternatively, start the review of contract portfolios using internal resources.
2. Decide on the appropriate level of OBMC:
The guidance provides a decision tool to help organisations apply contracts to one of the four available
‘Tiers’. This is designed to assess the optimal level of OBCM application for the contract in question. The
decision tool considers various different factors that categorise most contracts. These include:
 the scope of the contract
 the number of service lines involved
 the complexity of the supply chain and the number of suppliers
 the complexity of the pricing model

4. 3
 the volumes under the contract
 any dependencies
 any saving potential
 innovations.
Those contracts falling into Tier 1 are likely to share characteristics such as a fixed scope and price with a
single supplier. Whereas on the other end of the scale, a Tier 4 contract will potentially involve a joint
venture or partnership, with uncertain volumes and an incentivised pricing model.
3. Use the Application Model
Once the correct Tier has been identified organisations should use the Application Model. This identifies the
proportionate set of tools and processes that should be applied to that model. The tools should only be
applied fully for more complex contracts (typically in Tiers 3 or 4). They are built around agreeing and
tracking allowable costs: those that qualify as being appropriate and attributable and so valid costs within
the contract. A clear definition of allowable costs is then used in assessing whether the costs incurred are
reasonable.
It is important for organisations to remember that whilst assigning a Tier to each contract may determine the
most appropriate processes to apply and how to apply them, this should not be applied in isolation. It
remains critical for appropriate people within the organisation to ‘commercial sense check’ the identified
tool. Whilst, the model provides an answer, consideration needs to be given to whether the Tier to be
allocated will deliver good benefits without being outweighed by the costs.
How will this impact your organisation?
Reviewing existing portfolios of contracts could initially be quite an intensive task. Assistance is available
through a third party provider but a cost of approximately £15,000 per organisation is attached to this
service.
The PPN suggests that organisations should begin assessing their contract portfolios by no later than 24 June
2016 and mobilising resources to begin implementing OBMC no later than 24 July 2016.
Organisations will need to commit to building a strong resource capability to successfully roll-out and
maintain good OBCM practices.
Louise Bennett | +44 (0)115 948 5615 | louise.bennett@brownejacobson.com

5. 4
Case C-396/14 MT Højgaard A/S, Züblin A/S v Banedanmark (24 May 2016) (Europa)
Procurement involving consortia can give rise to some tricky situations which must be carefully considered to
ensure compliance with the procurement rules. It is therefore welcome news that the European Court of
Justice (ECJ) has provided some further clarity in dealing with consortia with a recent ruling on whether a
consortium member can replace a consortium in a procurement procedure. The key question being asked was
whether such a replacement is a breach of the European Union (EU) principles of equal treatment and
transparency.
The case was referred to the ECJ by the Danish Public Procurement Complaints Board and concerns the award
of a public contract for the construction of a new railway line between Copenhagen and Ringsted. The Danish
railway infrastructure operator Banedanmark commenced a procurement procedure using a negotiated
procedure. Two companies, Per Aarsleff and E. Pihl og Søn A/S, combined to form a consortium and were
pre-selected to take part in the procurement process. However, on the same day they signed the consortium
agreement, E. Pihl og Søn was declared to be insolvent.
When it was clear that the consortium could not continue in the procurement process, Banedanmark
informed all the tenderers that it had decided to allow Per Aarsleff to continue in place of the consortium.
Banedanmark explained that this decision had been made because it was satisfied that Per Aarsleff alone still
met the conditions that had been set for participation in the negotiated procedure. Additionally, Per Aarsleff
had taken on employment of over 50 former E. Pihl og Søn staff. Importantly, these staff included all the key
personnel for the implementation of the project.
When Per Aarsleff went on to win the contract, a rival consortium who took part in the procurement process,
the Højgaard and Züblin group, brought proceedings for breach of the EU principles of equal treatment and
transparency. The group claimed that Per Aarsleff had not itself been pre-selected and therefore allowing
them to take part in the later stages of the procurement was unequal and lacked transparency.
The ECJ ruled that it would not be a breach of the principle of equal treatment for an economic operator
which is a consortium member to take the place of the consortium in the procurement of a public contract
using the negotiated procedure provided that two conditions were met. Firstly, that the economic operator
by itself meets the requirements set by the contracting authority. The court applied this test by looking at
whether Per Aarsleff would have been pre-selected had it applied alone in the first instance. The court was
satisfied that it would have been. The second condition is that the continuation of the economic operator’s
participation in the procedure does not mean that other tenderers are placed at a disadvantage.

6. 5
This ruling has confirmed that it is possible for a consortium member to replace a consortium in public
procurement but of course this case has its own unique facts and each situation will need to be considered on
its own merits. Here, Per Aarsleff was individually a strong candidate, being one of the leading contracting
companies in Denmark in terms of turnover for the period in question. It was also able to absorb key
personnel and expertise from E. Pihl og Søn by hiring a significant selection of their staff in order to continue
the procurement process thus allowing it to continue to meet experience based selection criteria. It is not
likely that these conditions will always be capable of being met in practice and contracting authorities
seeking to apply this line of thinking must always ensure they do so in a manner which is fully transparent at
all stages of the procurement process.
Tom Nanson | +44 (0)115 948 5604 | tom.nanson@brownejacobson.com

7. 6
There has been a recent flurry of cases concerning claims of discrimination on the grounds of religion and
belief. Here, we take a look at the principles that have emerged or been developed and the impact that
these could have on the manifestation of religious and philosophical beliefs in the workplace:
Mr Harron v Chief Constable of Dorset Police1
Background
Mr Harron had a belief, found by the Employment Tribunal to be genuinely held, that public service was
improperly wasteful of money; he claimed that he felt compelled to express these views that that he
suffered discrimination as a result. The Employment Tribunal held that, although genuine, Mr Harron’s belief
did not qualify as a ‘philosophical belief’.
Decision
The criteria for a belief to qualify as a ‘philosophical belief’ was set out in the case of Grainger2
:
1. It must be genuinely held.
2. It must be a belief and not an opinion or viewpoint.
3. It must be a belief as to a weighty and substantial aspect of human life and behaviour.
4. There must be a certain level of cogency, seriousness, cohesion and importance.
5. It must be worthy of respect in a democratic society, be not incompatible with human dignity and not
conflict with the fundamental rights of others.
The Employment Appeal Tribunal (EAT) considered the application of these criteria by the Employment
Tribunal in Mr Harron’s case and held that insufficient reasoning had been given to explain why three of the
criteria ((2), (3) and (4) above) had not been met. The EAT referred the case back to the same Employment
Tribunal for re-determination. However, the EAT referred extensively to the case of Williamson3
as to the
threshold that would need to be met to qualify as a philosophical belief – referring to the belief as relating to
matters “more than merely trivial” (similar to the ‘substantial’ requirement within the definition of
disability being more than trivial). The EAT also commented that the Tribunal must ensure that “it was not
setting the bar too high” when it carried out its assessment, giving a strong indication that the test is likely
to be met in this case.
1
UKEAT/2034/15
2
Grainger plc and Ors –v- Nicholson UKEAT/0219/09
3
R (Williamson) –v- Secretary of State for Education and Employment [2005] 2 AC 246

8. 7
Impact
It may well be considerably easier for employees to now assert that their beliefs meet the Grainger test,
given the importance of ensuring that the threshold is not set at such a level such as to effectively deprive
employees of their rights under Article 94
of the European Convention on Human Rights.
Ms S Pendleton v (1) Derbyshire County Council and (2) The Governing Body of Glebe Junior
School 5
Background
Ms Pendleton was dismissed after she elected to remain with her husband (a head teacher of another local
school), after he had been convicted of making indecent images of children and voyeurism. Ms Pendleton was
a committed and practicing Anglican Christian and there was no suggestion that she had known of these
matters prior to her husband’s arrest.
The appeal considered, amongst other things, the issue of ‘disadvantage’ in respect of an indirect
discrimination claim.
Decision
The Employment Tribunal initially held that no particular disadvantage had been shown here – the
disadvantage was the dismissal and that dismissal would have occurred irrespective of whether or not Ms
Pendleton held a religious belief in the sanctity of her marriage vows.
The EAT disagreed. ‘Disadvantage’ did not have to meet any particular threshold; and the fact that the
application of the policy would put others at a disadvantage did not prevent there being a particular
disadvantage for those sharing the belief in question. The EAT held that the particular disadvantage suffered
by Ms Pendleton here was “an additional dilemma of conscience” arising out of the religious belief in the
sanctity of her marriage vows.
Impact
Care will need to be taken when considering whether any provision, criterion or practice places any
employees at a particular disadvantage due to their religious or philosophical beliefs. Even where the primary
disadvantage appears to apply equally to those who do not share the same beliefs, employers will need to
consider whether there is nevertheless any additional particular disadvantage suffered. It appears that any
disadvantage would be sufficient – although, the greater the disadvantage, the more likely it is that a
complaint would be made.
4
The right to freedom of thought, conscience and religion, including the right to manifest such religion or
belief.
5
UKEAT/2038/15

9. 8
Miss V Wasteney v East London NHS Foundation Trust6
Background
Complaints were made against Miss Wasteney, a Christian, by a more junior Muslim employee. The complaints
were categorised as ‘grooming’ and included Miss Wasteney praying with the junior colleague, the laying on
of hands, the giving of a book which concerned the conversion to Christianity of a Muslim woman and Miss
Wasteney inviting the junior colleague to various services and events at her church. Following an internal
investigation, Miss Wasteney was found guilty of serious misconduct (namely the blurring of professional
boundaries and subjecting a junior colleague to improper pressure and unwanted conduct). Miss Wasteney
was given a final written warning, although this was reduced on appeal to a first written warning.
The Employment Tribunal rejected her claims of discrimination and harassment on the grounds of her religion
or belief.
Decision
The hearing in the EAT focused on Miss Wasteney’s Convention rights under Article 9 of the European
Convention on Human Rights (ECHR). However, Miss Wasteney’s case was based on the characterisation of the
manifestation of her religious belief in consensual interactions with her junior colleague. This
characterisation was not found to be the case by the Employment Tribunal; instead, the Employment
Tribunal had made a finding of fact that the exchanges were not consensual but were unwanted and
unwelcome, and had taken place without regard to Miss Wasteney’s own influential position. As a result, the
warning issued to her was not imposed because of a legitimate manifestation of her beliefs but rather
because of her inappropriate actions. The EAT therefore fully upheld the Employment Tribunal’s decision.
Impact
Employers in the public sector need to be mindful of employees relying on their Convention rights when
manifesting their religious beliefs and case law has previously established that Article 9 can extend in
principle to the right to attempt to convince others of the tenets of that religion or belief and to
manifestations within the workplace. However, the right is a qualified one and action may still be taken by
employers when the manner in which a religion or belief is manifested is inappropriate.
Ms T Begum v Pedagogy Auras UK Ltd T/A Barley Lane Montessori Day Nursery7
Background
This case concerned dress codes and the conflict that can sometimes arise with religious beliefs. Ms Begum
was a Muslim whose religious belief required her to wear a garment that reached from her neck to her ankle
(a jilbab). Ms Begum was offered an apprenticeship at the nursery but claimed that she had suffered a
6
UKEAT/0157/15
7
UKEAT/0309/13

10. 9
detriment by reason of the manifestation of her religious belief because she was told that she would not be
able to wear a jilbab of the appropriate length; she was therefore unable to accept the post.
The Employment Tribunal concluded that Ms Begum had not in fact been told that she could not wear a jilbab
of the appropriate length. Her claim therefore failed at that point. However, the Employment Tribunal went
on to find that if it was wrong on that point, then the provision, criterion or practice relied upon was that
staff should not wear garments that could constitute a tripping hazard to themselves or to the children in
their care. This was not indirectly discriminatory against Muslim women and, if it did put some Muslim women
at a particular disadvantage, it could be objectively justified because of the need to protect the health and
safety of staff and children.
Decision
The EAT upheld the Tribunal’s decision. There appears to have been some ambiguity throughout this case as
to what ‘ankle length’ meant. However, the finding of fact made was that there was no restriction on Ms
Begum from manifesting her religious beliefs in the manner that she believed to be appropriate by wearing an
ankle length jilbab, simply a requirement that it did not constitute a tripping hazard.
Impact
The case highlights the importance of being able to evidence what message is communicated where dress
codes impact on the manifestation of religious beliefs. Ms Begum’s case primarily failed because the
Employment Tribunal did not believe that she had been told what she had claimed – namely that she was
required to wear a knee-length jilbab. Employers should therefore consider when (and by whom) dress
requirements are communicated.
Where a dress code or policy does have an impact on the manifestation of religion or belief, employers should
think carefully about why any particular restrictions or requirements are needed; here, the health and safety
risks, not only for Ms Begum but also for the children in her care, were persuasive arguments as to why
garments which constituted a tripping hazard should not be permitted.
Ms S Achbita and Ors v G4S Secure Solutions NV8
Background
G4S had a policy which prohibited any employee in the workplace from wearing any visible signs of their
political, philosophical or religious beliefs. Ms Achbita, an employee of the Muslim faith, was dismissed after
she expressed her firm intention to wear a headscarf at work in the future (she had previously only worn it
outside of working hours).
8
Case C-157/15

11. 10
Decision
The Advocate General has issued her opinion in this case but it is worth highlighting that the opinion is not
binding on the ECJ nor on national courts and tribunals. The ECJ is also considering another similar case, in
which judgment is awaited.9
The Advocate General considered both direct and indirect discrimination claims here. In respect of direct
discrimination, her opinion was that the test was not satisfied. Given the wide remit of G4S’s policy, the
Advocate General’s opinion was that there was no evidence of discrimination perpetrated against members of
one religion or against religious individuals compared with non-religious individuals or atheists. She stated
that the only difference in treatment was between employees who wished to give active expression to a
particular belief (whether religious, political or philosophical) and those employees who did not feel the
same compulsion. In her view, there was therefore no less favourable treatment directly and specifically
linked to religion.
The Advocate General went on to consider indirect discrimination and potential justifications for it. She
concluded that G4S’ “policy of neutrality” did not “exceed the bounds of the discretion it enjoys in the
pursuit of its business”. She also concluded that the dress code imposed was both appropriate and necessary
to meet this policy.
In respect of proportionality, the Advocate General drew a distinction between religion and the other
protected characteristics (race, sex, age etc.) saying “the practice of religion is not so much an unalterable
fact as an aspect of an individual’s private life, and one, moreover, over which the employees concerned can
choose to exert an influence. While an employee cannot ‘leave’ his sex, skin colour, ethnicity, sexual
orientation, age or disability ‘at the door’ upon entering his employer’s premises, he may be expected to
moderate the exercise of his religion in the workplace, be this in relation to religious practices, religiously
motivated behaviour or (as in the present case) his clothing.” She went on to outline a number of factors
that would be relevant in considering proportionality: the size and conspicuousness of the religious symbol;
the nature of the employee’s activity; the context in which she has to perform that activity; and the national
identity of the member state concerned; concluding that it would be for the referring court to strike a fair
balance between conflicting interests, taking into account all the circumstances of the case.
Impact
It remains to be seen whether the ECJ will follow the Advocate General’s opinion in full or in part. However,
the amount of emphasis placed on an individual’s ‘choice’ to manifest their religious beliefs in a particular
way may make difficult reading for some – for many people, certain manifestations of their religion may not
be seen as optional, but rather an integral part of their religious beliefs.
9
Bougnaoui v Micropole Univers C-188/15

12. 11
The approach taken to a corporate policy of neutrality also seems to be at odds with Eweida10
which found
that a corporate image was unlikely to be sufficient to justify restricting an employee from manifesting their
religious beliefs (although this may have been taken into account by the Advocate General given her view of
the factors to be taken into account to determine proportionality).
Sarah Hooton | +44 (0)115 976 6033 | Sarah.Hooton@brownejacobson.com
10
Eweida and others –v- United Kingdom [2013] ECHR 37

13. 12
Background
Practice Direction 31B sets out what the practitioner needs to know in relation to electronic disclosure.
Electronic disclosure needs to be in accordance with the following general principles (paragraph 6):
(1) Electronic Documents should be managed efficiently in order to minimise the cost incurred;
(2) technology should be used in order to ensure that document management activities are undertaken
efficiently and effectively;
(3) disclosure should be given in a manner which gives effect to the overriding objective;
(4) Electronic Documents should generally be made available for inspection in a form which allows the party
receiving the documents the same ability to access, search, review and display the documents as the party
giving disclosure; and
(5) disclosure of Electronic Documents which are of no relevance to the proceedings may place an excessive
burden in time and cost on the party to whom disclosure is given.
Further when considering how the question of electronic disclosure ought to be tackled the parties need to
look at the following in accordance with paragraph 9 of the Practice Direction:
(1) the categories of Electronic Documents within the parties' control, the computer systems, electronic
devices and media on which any relevant documents may be held, storage systems and document
retention policies;
(2) the scope of the reasonable search for Electronic Documents required by rule 31.7;
(3) the tools and techniques (if any) which should be considered to reduce the burden and cost of
(4) disclosure of Electronic Documents, including:
a. limiting disclosure of documents or certain categories of documents to particular date ranges, to
particular custodians of documents, or to particular types of documents;
b. the use of agreed Keyword Searches;
c. the use of agreed software tools;
d. the methods to be used to identify duplicate documents;
e. the use of Data Sampling;
f. the methods to be used to identify privileged documents and other non-disclosable documents, to
redact documents (where redaction is appropriate), and for dealing with privileged or other
documents which have been inadvertently disclosed; and
g. the use of a staged approach to the disclosure of Electronic Documents

14. 13
Traditionally parties have used Boolean logic when seeking to identify potentially responsive electronic
documentation. Parties identify the Electronically Stored Information (ESI) to which they will apply search
terms. These search terms will filter out documents which may be relevant (or indeed privileged). Once the
documentation has been filtered in this way it is then subject to a human review.
So what is predictive coding?
Predictive coding can also be referred to as a form of technology-assisted or computer assisted review, and is
software to identify relevant electronic documents. It works via a series of advanced algorithms. It learns
from relevant coding decisions made by users, usually experienced personnel working on the case who review
a sub-set of documents to identify those that are relevant to the current proceedings. It then suggests similar
documents and produces documents which it believes are most likely to be relevant. Coding decisions can be
accepted or rejected and the lawyers involved can input their views on how the exercise can become more
sophisticated. Documents may or may not be reviewed by lawyers at the end of the process depending on
what the teams have agreed.
There are different predictive coding told and each has its own algorithms. However some of the most
common methodologies are:
 metadata searching – primarily looking at fields of data
 concept searching – effectively looking at the meaning of a key word and then extending it to similar
words or related items
 contextual searching – the algorithm would look at how and where key search terms appear in
documents.
Documents can be ordered in different ways depending on the requirements of the litigation.
Landmark case law on predictive coding
The case of Pyrrho Investments Limited and another v MWB Property Limited and Others [2016] EWHC 256
(Ch) is the first High Court decision approving the use of predictive coding in an electronic disclosure
exercise.
This was a multimillion pound case with 3.1 million electronic documents to review, where the parties had
agreed to use predictive coding subject to the court’s approval. The parties had agreed on the use of
software and how to use it. The parties approached the court for approval noting that no English court had
given judgment looking at the use of predictive coding as part of disclosure.
The court approved the use of predictive coding, with the reasons being that:
 experience in other jurisdictions had suggested that predictive coding was useful in appropriate cases
and there was nothing to suggest it was less reliable than manual and keyword review
 it was observed that there was nothing in the CPR or Practice Directions to prohibit its use

15. 14
 in this case the number of documents to be reviewed was huge and the cost of reviewing that
manually would be disproportionate
 it would allow the electronic documents to be reviewed at proportionate costs and if predictive
coding turned out to be unsatisfactory there was time before trial to find an alternative disclosure
method.
And the current position?
We have also seen the first contested case concerning predictive coding in Brown v BCA Trading this year.
This is an, as yet, unreported case from the Companies Court decided on 17 May.
This case involves an unfair prejudice petition brought by David Brown in relation to his minority
shareholding. The allegations and valuations were strongly contested by BCA.
The matter came to court for the first CMC with both parties reaching agreement on most of the case
management directions.
The only dispute was over the approach to disclosure. It was estimated that there were around 500,000
documents. Mr Brown’s legal team wished to approach this in the traditional way of manually reviewing
documents, in agreeing that the inboxes of agreed custodians would be filtered using an agreed list of search
terms, and the responsive documents would be reviewed by paralegals of Brown’s solicitors.
BCA wished to approach this in accordance with the disclosure exercise undertaken in the case of Pyrrho
Investments Limited and another v MWB Property Limited and Others. They asserted that the costs of the
traditional approach would be excessive and superior results could be achieved at a more proportionate cost.
It was ordered that predictive coding was to be used. It shows that predictive coding is not only suited to
large cases such as Pyrrho who had around three million documents, but may also be ordered in smaller
claims.
Conclusions
Lawyers need to be aware of the new and developing electronic tools that may be available to assist in large
scale litigation. These will develop and become even more sophisticated over time.
It is also clear that predictive coding is here to stay: there are significant rulings in relation to its use in both
the United States and in Ireland. Indeed in the United States statistics show it becoming more and more
mainstream.

16. 15
So the lessons to be learned from the case law are:
 if a case with a large amount of electronic documentation looks as if it might litigate begin the
electronic disclosure exercise as early as possible, pre-litigation if possible
 make sure that you have a relationship with an e-litigation provider who can provide e disclosure
services, including predictive coding
 make sure that you have an e-platform
 lawyers need to understand how predictive coding works and be able to devote the time to the front
end process to ensure the most accurate results.
Nichola Evans | +44 (0)161 300 8021 | nichola.evans@brownejacobson.com

17. 16
After years of political discussions and protracted negotiations, the provisions of the General Data Protection
Regulations (GDPR) have finally been agreed. More importantly, a date for the implementation of the GDPR
has been agreed: 25 May 2018.
What is the GDPR?
The GDPR is the regulations which will replace the Data Protection Act 1998 (the DPA). While the GDPR
mirrors and adopts many of the provisions of the DPA, there are some key differences.
Definitions
The definition of what constitutes personal data has been significantly widened to include name,
identification number, location data, online identifier or one or more factors specific to the physical,
psychological, genetic, mental, economic, cultural or social identity of an individual.
Basis for lawful processing
The basis for lawful processing remains largely the same as that which applies under the DPA however,
significantly the ability for public authorities to rely on the legitimate interests condition (currently condition
6 of Schedule 2 of the DPA) has been curtailed. Public authorities will only be able to rely on the legitimate
interests condition if to do so is in the public interest.
Information to be provided to data subjects
When information is being collected a public authority will need to provide the following in writing to the
data subject:
 identity and contact details of the public authority and the authority’s data protection officer
 the intended purpose of processing the data
 the period for which the data will be stored
 the rights of the data subject such as rights of access, rectification, erasure and the right to object
 the right to lodge a complaint to a supervisory authority (such as the ICO)
 the right to make a complaint
 the recipient or categories of recipients to whom to data will be disclosed
 any intention to transfer the data to another country or international organisation
 any other information necessary to render the processing fair.
Consent
As is the case under the DPA, consent should be freely given, specific, informed and unambiguous. However
the GDPR requires that if consent is written it must be clearly distinguishable from any other matter and that
data subjects are provided with the right to withdraw consent in a manner which should be as easy to

18. 17
exercise as the giving of consent. Any consent given is limited to the purpose for which it is given and will
lose its validity when the purpose for which it was given ceases to exist.
Right to erasure
The GDPR provides that personal data must be erased without undue delay where:
 it is no longer necessary for processing
 the data subject objects to the processing or consent has been withdrawn
 a court makes an order to that effect
 the data has been unlawfully processed.
Requirement to have a data protection officer
Public authorities will need to appoint a data protection officer. The role of the data protection officer will
be to:
 inform and advise the data controller/data processor of the obligations pursuant to the GDPR
 monitor the implementation and application of data protection policies and the GDPR
 monitoring impact assessments and breaches
 be a point of contact for the supervisory authority.
The GDPR provides that data protection officers shall be designated on the basis of professional qualities and
expert knowledge of data protection law and practices.
Transparency
Public authorities will need to have policies with regard to the processing of personal data and the exercise
of data subjects’ rights. Policies will need to be transparent and easily accessible in an intelligible form,
using clear and plain language and adapted to the data subject.
Accountability
Public authorities are now subject to a general personal data breach notification regime. This includes:
 maintaining an internal breach register
 reporting data breaches to the supervisory authority without undue delay and where feasible, within
72 hours
 notifying data subject where the breach is likely to result in a ‘high risk’ to the rights and freedoms
of natural persons.
Breaches
There could be significant penalties for the breach of the GDPR including a fine of up to €20million or 4% of
global turnover. In determining the level of the fine to be imposed, regard will be had to the:
 nature, gravity and duration of the breach
 whether the breach was intentional or negligent

19. 18
 previous breaches by the public authority
 steps taken by the public authority to remedy the breach
 technical, organisational and compliance measures in place.
What can public authorities do to start preparing for the GDPR?
25 May 2018 may seem like a long way away, and in many ways it is. Between now and then there are 15
bank holidays to enjoy, the possibility of two long hot summers and by the time the GDPR comes into force,
for fans of The Archers, Helen Archer’s fate will be known. However in order for public authorities to be
compliant on 25 May 2018, some of the ground work should begin now. Some of the ground work could
include:
(1) Analysing the basis on which personal data is processed
a) Consider the basis on which personal data is currently processed. Are any modifications necessary in
order for your public authority to comply with the GDPR? If so, what steps will need to be taken in
order for you to become compliant with the GPDR
b) Does your public authority rely on legitimate interests as a basis for processing personal data? If so, in
what circumstances? Is there another lawful basis for processing the personal data?
(2) Reviewing privacy notices and policies
a) appoint an individual or a team to review current policies
b) set a timetable for the conclusion of the reviews.
(3) Preparing for data breaches
a) test how well your public authority will react to a breach
b) ensure that policies comply with the GDPR and are robust
c) develop an internal and external reporting system and test those systems
d) create a team with defined roles and responsibilities for dealing with a breach
e) establish notification procedures both for the supervisory authority and affected individuals.
One of the stated aims of the GDPR was to reduce bureaucracy. However with the additional rights granted
to individuals and the greater obligations places on public authorities, it remains to be seen whether this aim
will be achieved. With the significant increase in penalties for data breaches it is important that the ground
work for ensuring that public authorities are compliant with the GDPR on 25 May 2018 begins now.
Megan Larrinaga | +44 (0)20 7871 8504 | megan.larrinaga@brownejacobson.com

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Brexit and uncertainty
The one thing commentators agree is certain following the vote to leave the European Union is that we are
entering an extended period of uncertainty. It is not only uncertain what our new relationship with Europe
will be but there are deeper uncertainties cutting across the nation, some of which need resolution before
we can even begin to negotiate with the EU.
The most pressing issue is that we don’t know who will lead the nation and ultimately the negotiations with
the EU. David Cameron has announced he is stepping down as Prime Minister, leaving the Government
without the negotiating voice it needs. EU leaders will likely be reluctant to engage in serious negotiation
until they know who it is they will be negotiating with in the long term. First order of business in the leaving
process is for the Conservative party to elect a new Prime Minister. They may not be alone in this exercise;
there have been calls for the Labour leader to step down and we could be headed for all change at the top. A
change in Prime Minister will inevitably lead to questions as to their mandate to lead and pressure to call a
general election will grow. Robert Peston has voiced an interesting lifeline for the EU, that if a general
election is called, Labour could potentially run on a platform of remaining in the EU, effectively forcing a
second vote on the issue.
The European Union is not the only union which will be affected by the vote to leave. The United Kingdom
has been clearly split on country lines. Northern Ireland and Scotland voted to remain and England and Wales
voted to leave. Sinn Fein has demanded a poll on uniting Northern Ireland with the Republic of Ireland as
they claim the result of the referendum has made a strong case for calling a border poll. There has already
been talk of another Scottish referendum on leaving the UK and as the political divide between an
overwhelmingly Labour, pro-EU Scotland and an overwhelmingly Conservative, anti-EU England and Wales
grows it becomes more and more difficult to see how this relationship will continue to work long term.
Whitehall’s relationship with the devolved administrations in the UK will be under pressure and may lead to
further demands from the devolved administrations in terms of direct powers. One thing that is clear is that
these debates and national interests will colour the negotiations with the EU and tough choices will have to
be made about the relative importance of each country’s relationship with the European Union and its
relationship with the union of the home nations. Within England, there are fears of a new wave of cuts and a
prolonged period of austerity being raised and senior local government figures warning that councils should
not be the ones to absorb these cuts.
One of the key motivators for the leave campaign was to control EU immigration. No doubt the public will
want information on Government plans to tackle this issue as a priority. Answers are needed to the questions
of what restrictions on immigration there will be and what will happen to the thousands of EU immigrants
already living and working in the UK. Somewhat beyond the UK’s control is the question of how EU countries

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will decide to treat UK immigrants living and working in Europe. Getting answers on these issues will likely be
a top priority for the new Prime Minister.
For central government there will be a number of major issues:
 there is a huge question mark over funding for social and infrastructure projects. With a possible loss
of EU investment, many projects will have to wait to see whether they will get any additional funding
promised by the leave campaign, funded by the savings made from leaving. This is clearly a longer
term issue as it is unlikely that funding already promised for the next couple of years will be
withdrawn;
 for some government departments the uncertainty will be more pronounced than for others, for
example the Department for Environment, Food and Rural Affairs (DEFRA) whose current workload is
for a large part based on EU legislation.
Experts are agreed that the economy will suffer short-term and we have already seen shares and the pound
plunge after the result was announced. The financial markets need stability and ultimately what the economy
needs in order to stabilise and begin projecting for the long-term is answers to these key questions.
Unfortunately, even the timeframe for leaving the EU is plagued by uncertainty and both UK and EU leaders
are already calling for timetables to be set as soon as possible in an attempt to give form and structure to a
process desperately in need of some certainty.
Brexit and public procurement
In the wake of the vote to leave the European Union contracting authorities will be dealing with a vast
amount of uncertainty and potential change. Here we take a look at the UK procurement regulations, which
were implemented to comply with an EU directive, and consider what the impact of the referendum result
might mean.
Overall, we are expecting there to be little change. In the short-term, the current rules will continue to
apply as the UK seeks to negotiate a deal for trading with the EU. If we wish to remain part of the European
Economic Area (EEA) then we will be required to continue to be subject to the EU directive on public
procurement and the UK regulations will stay in place as they are. Even if we do not remain part of the EEA,
the Government’s worst case scenario for Brexit involves using the mechanisms of the World Trade
Organisation (WTO). The WTO has its own procurement regulations based on the principles of transparency
and procedural fairness. Currently, a number of WTO members are subject to the rules including, among
others, the EU, the US and China. It is likely that the UK would join these important trade partners in
agreeing to follow the WTO procurement regulations, resulting in little change in domestic law.
Even if the UK were not required to follow international procurement agreements, there is still a strong
possibility that the UK procurement regulations would not change. The reason for this is that the

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procurement rules primarily aim to ensure openness and fairness in public procurement, goals which are not
necessarily tied to European or other international integration.
We currently follow the EU treaty principles of transparency and equal treatment in all procurement
processes. The aim of these is to allow for the accountability of contracting authorities. The current culture
in the UK is strongly in favour of mechanisms ensuring public transparency and accountability, highlighted in
recent years by the public outcry over the MP’s expenses scandal. Contracting authorities should be clear
that leaving the EU does not mean leaving behind public procurement processes and any changes to the
current regime will not likely see any significant change to the way public procurement is run in the UK.
Ultimately, only time will tell as until decisions start to be made we can only guess what the future of public
procurement will look like.
Tom Nanson | +44 (0)115 948 5604 | tom.nanson@brownejacobson.com