The Queen's Speech - 18th May 2016

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Following the Queen's Speech on 18th May 2016, we analyse a number of the Bills that were announced as part of the State Opening of Parliament.

Bill of Rights

The Government have again included a proposal to bring forward a British Bill of Rights in this year's Queen's Speech, which given a similarly brief statement in the 2015, may feel like 'Groundhog Day'.  This controversial Bill has been dogged by setbacks and inaction and faces strong opposition from human rights groups as well as some backbenchers.

The Conservative manifesto pledge promised to scrap the Human Rights Act 1998; re-define the UK’s relationship with the European Court of Human Rights; create a British Bill of Rights and Responsibilities and make the Supreme Court the ultimate arbiter of human rights matters in the UK. The main elements of the Bill would be rights-based on those set out in the European Convention on Human Rights, "while also taking into account common law tradition". The Bill is currently subject to consultation and is likely to lay dormant until after the EU referendum, as the outcome of that will have a strong bearing on its future. 

Investigatory Powers Bill

This Bill, like the British Bill of Rights, has been carried over from the previous parliamentary session.  The so-called 'snoopers' charter' aims to overhaul the rules on data collection and agencies’ capabilities, including a requirement for internet companies to hold connection records for a year and provides for updated authorisation procedures for more intrusive interception requests. 

The Bill aims to tread the fine line between updating the UK’s surveillance capabilities in the fight against terrorism and protecting people's right to a private life.  Whilst no Conservative MPs rebelled against the Bill in its second reading in March, Labour abstained, calling for “substantial changes” to be made before the party could vote in favour of it. The Bill is currently in the report stage before a third reading in the House of Commons.

Children and Social Work Bill

The speech confirmed the Government's intention to speed up adoptions; raise the professional standards of the social work profession and improve opportunities for young people in care in England.  The purpose of the Bill is also to ensure that the state delivers on its responsibility to help those children leaving care make a good start in adult life, through a new ‘Care Leavers’ Covenant’ underpinned by a statutory duty requiring local authorities to publish the services and standards of treatment that care leavers are entitled to. The Bill will also tip the balance in favour of permanent adoption where that is the right approach.

David Cameron pledged to set new, demanding professional standards in the social work profession which he expects every child and family social worker to meet by 2020. He also pledged to bring in a new regulator to oversee this new system.  The new specialist regulator will eventually replace the Health and Care Professions Council as the regulator for social work.

Counter Extremism and Safeguarding Bill

In essence, this Bill would contain stronger powers to disrupt extremists and protect the public, including a civil-order regime; Ofcom regulation for internet-streamed television and powers to intervene in unregulated religious schools.  The civil-order regime is likely to prove controversial and would involve introducing restrictions on people showing extremist behaviour, similar to antisocial behaviour orders. 

The proposals are currently vague but are likely to face challenges where freedom of expression is at risk of being curbed. In terms of safeguarding children, the emphasis is on safeguarding children from extremist adults and preventing radicalisation, by taking powers to intervene in intensive unregulated education settings which teach hate and drive communities apart, and through stronger powers for the Disclosure and Barring Service.

New Planning Bill

Only six days after the Housing and Planning Act 2016 received Royal Assent, the Government has announced its intention to introduce yet further changes to the planning landscape.

The Neighbourhood Planning and Infrastructure Bill is intended to support the Government’s ambition to deliver one million new homes, whilst protecting those areas that we value most including the Green Belt; deliver the homes and infrastructure that this country needs and transform the way we plan for major infrastructure projects in this country.

From a planning perspective, key elements of the Bill are:

  • Neighbourhood Planning – to give more power to local people as part of the Government's localism drive.                     
  • Planning Conditions – to tackle the excessive use of pre-commencement conditions which can hold up development.
  • Compulsory Purchase – to make the compulsory purchase order process clearer, fairer and faster and to reform the compensation framework.
  • National Infrastructure Commission - to establish the independent National Infrastructure Commission on a statutory basis.

The Bill’s substantive provisions will apply across England and Wales. Little further information is available at present, but suffice to say, further significant changes to the way planning decisions are made are on the horizon.

Changing the schools landscape

For those working in the education sector, the State Opening of Parliament today put an end to months of speculation as it set out the Government's legislative intentions in regard to academisation.

The Queen's Speech stated:

"A Bill will be brought forward to lay foundations for educational excellence in all schools, giving every child the best start in life. There will also be a fairer balance between schools, through the National Funding Formula".

It is understood that the Government's agenda is still to install a process whereby all schools will become academies but only those schools that are under-performing will now be forced to convert to academy status. This means that those schools that are performing well will be able to choose to become an academy if they wish to, but will not be compelled to do so.

In addition, the reform of the school funding system also announced by the Queen today was a commitment in the Government's manifesto and is anticipated to address long standing disparities across the country that the Government feels have disadvantaged schools in some rural areas.

The Intellectual Property (Unjustified Threats) Bill

The law of unjustified threats in intellectual property matters is to be revamped under the new Bill. Unjustified threats is a concept that, at least in the EU, is unique to the UK. It makes the sending of letters before action to potential infringers actionable, by the recipient (or another affected party) with the possibility of obtaining an injunction and/or damages against the sender.

However, the current law is unclear with different rules for different rights. The result is that, as it stands, it is difficult for rights holders to understand what they can, and can't say and when they can do it. A revamp of the law has been in discussion for a number of years with the new Bill proposing a number of important changes:

  • Threats made to primary infringers (i.e. usually those that manufacture or import) in trade mark and design matters will escape liability.
  • A new 'safe harbour' for communications with secondary infringers (i.e. usually retailers) allowing rights holders to correspond with retailers in certain situations for example to discover if the right is being infringed, and if so, who is the primary infringer.
  • Professional advisors were previously also liable for such threats however, provided they make threats based on instructions, advisors are now protected from being sued for such threats.

Despite offering a degree of clarity on the issue it is certainly not the case that rights holders can now send threats as they see fit, to whom they like, without fear of reprisal. The new Bill gives a little more leeway in respect of threats to primary infringers and a route to communicating with secondary infringers but the general provisions are still there.

Accordingly it is important that rights holders are mindful of the threats provisions if they do seek to enforce their rights and, if in any doubt, then expert legal advice is recommended. In particular commentary in the drafting process of the new Bill identified the growing issue of online marketplaces (for example eBay and Amazon Marketplace) and the fact that notice and take down requests filed with these services will certainly be considered to be actionable threats under the threats provisions – rights holders beware!

There are 3 areas of focus:

  • Stronger regulation of Master Trusts – partly in response to concerns expressed by the Work and Pensions Select Committee, the Government proposes to specify "strict new criteria" that such arrangements will have to meet, and to give greater powers to the Pensions Regulator so that it can supervise them and take action where it is needed.
  • Capping early exit charges – the Government proposes to impose a cap on early exit fees charged by some trust based occupational pension schemes and to create "a system that enables consumers to access pension freedoms without unreasonable barriers."
  • Restructuring financial guidance – There are two proposed reforms for the  delivery of financial guidance to consumers. Firstlythe Pensions Advisory Service, Pension Wise and the pensions services currently offered by the Money Advice Service will be merged, with the aim that the new organisation will be able to provide "access to a straightforward private pensions guidance service for customers".  Secondly, a new money guidance body will replace the Money Advice Service and be charged with "identifying gaps in the financial guidance market to make sure consumers can access high quality debt and money guidance".

The restructuring of financial guidance is likely to be the biggest challenge for the Government. Individuals will be faced with potentially complex choices and enabling them to take well-informed decisions will always be a major challenge. Providers and potentially employers could be exposed to criticism if the information made available to individuals is later judged to be inadequate or unclear.

Most of the focus of the proposals announced in the Queen's Speech is on money purchase schemes and steps to protect members and improve governance. However, the Pensions Bill is likely to be subject to change as it makes it way through Parliament and further changes may be incorporated to address some of the specific problems arising from defined benefit scheme regulation. This follows the announcement made on 31 May that the Work and Pensions Committee will be launching a “major inquiry” into defined benefit pension schemes. This follows the high profile collapse of high street retailer BHS and the inquiry into its pension scheme, and the threat to the British Steel Pension Scheme as Tata Steel put its UK business up for sale.