While the replacement of the Human Rights Act with a British Bill of Rights was delayed, the Queen’s Speech today (27 May) laid out the new Conservative government plans for the next year including transferring tax and spending powers to Scotland, plans for an in-out EU referendum and the resurrection of the Snoopers’ Charter after being mothballed by the Liberal Democrats in 2012 during coalition.
Though delayed, proposals for a British Bill of Rights that have been decried by some in the profession were highlighted in the Queen’s Speech, with the government stating that the change ‘would reform and modernise our human rights legal framework and restore common sense to the application of human rights laws, which has been undermined by the damaging effects of Labour’s Human Rights Act’.
The delay gives more time for lawyers and ministers to consult on the change. Jonathan Exten-Wright, an employment partner at DLA Piper, said: ‘A UK Bill of Rights is not unproblematic and may undermine situations where the Human Rights Act has been constitutionally adopted such as in the Good Friday Agreement and in the Scottish Constitution. There is a concern that if the UK were to withdraw from the jurisdiction of the Strasbourg court it would signal to other states the ability to cease to be held accountable. There is a still a debate to be had.’
Having supported the retention of the Human Rights Act, Law Society president Andrew Caplen added: ‘British people believe in fundamental principles such as freedom of speech, the right to life and the right to a fair trial. This makes the legal system in England and Wales respected throughout the world. We look forward to working with the government to ensure that these fundamental principles are protected as it consults on any proposals for change.’
The European Union Referendum Bill, the most talked about piece of legislation by business and the legal community, both during and after the general election was laid out in the speech with some details filled in.
The Bill will legislate for an in-out vote on the UK’s membership of the EU before the end of 2017 with British, Irish and Commonwealth citizens over 18 who are resident in the UK eligible to vote as well as UK nationals resident overseas for less than 15 years. The setting of an end date leaves open the possibility of the vote being held earlier. Ashley Crossley, European head of wealth management at Baker & McKenzie, commented that while the Bill ‘may cheer some Conservatives, UK plc and British business will be looking for a quick resolution’.
Caplen said that now a referendum on Europe is firmly on the government’s agenda, ‘it is important for the profession to look at the implications for the legal sector of any decision by the UK to remain in or withdraw from the EU.’ He added that the Law Society would consult on and publish a report by the end of the summer on implications for the profession.
The position of legal professional privilege also looks set to be called into question as a new Investigatory Powers Bill, commonly known as the Snoopers’ Charter, is set to expand the ability of intelligence agencies to collect information. The draft bill in 2012 detailed how communications companies will be forced to allow surveillance of emails, telephone apps and internet messaging. But with government documents late last year revealing that British intelligence agencies have policies allowing staff to access confidential communications between lawyers and their clients, Caplen said he had ‘serious reservations’ about the previous draft and is concerned the returning Bill will ‘include measures that would allow surveillance of data communications’.
Devolution was a reoccurring theme of the Queen’s Speech, with a raft of legislative changes set to be introduced which will reshape the UK’s constitutional settlement but also create differing regulatory regimes and tax codes.
Chief among the proposed measures was the Scotland Bill, designed to honour the UK government’s commitment in the run-up to last year’s independence referendum. It is transferring fresh powers to the country in a move that will see Scotland become one of the most powerful devolved parliaments in the world with responsibility for raising around 40% of Scotland’s taxes and for deciding around 60% of public spending. Holyrood will be able to set income tax rates and bands and will gain control over £2.5bn of welfare spending.
Bakers’ Crossley said: ‘The Scotland Bill paves the way to a United Kingdom with different income tax rates depending on where you live. It may make sense and be fair but it could also contribute to the further movement of people to the centre.’
Wales will also be handed new powers, including constitutional reform and control over licensing onshore oil and gas exploration, with the Welsh government taking decisions on whether shale drilling takes place. For England, there was a partial answer to the West Lothian question with legislation requiring majority support of English, or English and Welsh constituencies in Parliament for votes affecting devolved matters.
There will also be changes at a local level with the Cities and Local Government Devolution Bill cutting back the size of local councils in favour of mayoral offices, which will be freed from restraints that currently only allow them to handle economic development, regeneration and transport.
In energy, the Oil and Gas Authority (OGA) will be established as an independent regulator and handed powers to issue fines of up to £1m and revoke licenses of operators that don’t extract enough oil and gas. The Energy Bill will also transfer the existing regulatory powers of the Department of Energy and Climate Change to the OGA, with new powers to access company meetings, obtain data and sanction companies.
Bakers’ corporate partner Michael Herington commented: ‘Although the creation of the Oil & Gas Authority is not a new development, the additional powers which it would have relating to company meetings, data acquisition, etc are. The introduction of such powers seems in line with the UK Government’s willingness to take a more active role in the regulation of the oil and gas industry as exemplified by DECC in recent months and care will need to be taken to ensure that these additional powers are not perceived by the industry as additional hurdles to investing in UK oil and gas.’
General business measures saw promises to reduce regulation on small businesses and introduce a low-cost disputes forum, called the Small Business Conciliation service, to resolve business stand-offs without the need for court action. The new disputes body, centred on mediation, will handle business-to-business disputes and tackle late payment issues.
The government is also set to expand the amount of activities regulators can deregulate in line with its ambitions to cut at least £10bn of red tape for businesses over this parliament.
For more on the Conservative manifesto see: Fault lines – tax, Brexit and what the general election means to City lawyers