Library Note

Queen’s Speech: Home, Legal, Constitutional and Devolved

Affairs

Day 3: 24 May 2016

The House of Lords is due to debate the Queen’s Speech over four days between 19 and 25 May 2016.

This briefing is one of four prepared by the House of Lords Library to cover the themes of each day of

debate.

This briefing provides information on the following:

Extremism Bill;

Money Laundering and Counter-Terrorist Finance;

Investigatory Powers Bill;

Policing and Crime Bill;

Guardianship;

Civil Registration;

Prison Reform;

Prisoner Voting;

Electoral Administration;

British Bill of Rights;

Strathclyde Review; and

Wales Bill.

This briefing has been prepared in advance of the Queen’s Speech based on Government commitments

and speculative reports about what legislative proposals may be included; it does not constitute official

information about the Government’s intentions or provide a complete list of bills to be announced.

Available separately are further briefings for each day’s debate on the Queen’s Speech. For further

reading or more detailed information, Members are encouraged to contact the Library’s Research Desk.

Russell Taylor | Edward Scott | Thomas Brown | Emily Haves | Amritpal Bachu | Matt Korris

12 May 2016

LLN 2016/024

Table of Contents

1. Home Affairs ................................................................................................................................................. 1

1.1 Extremism Bill .................................................................................................................................... 1

1.2 Money Laundering and Counter-terrorist Finance .................................................................... 5

1.3 Investigatory Powers Bill (Carry-over Bill) .................................................................................. 5

1.4 Policing and Crime Bill (Carry-over Bill)...................................................................................... 9

2. Legal Affairs ................................................................................................................................................. 10

2.1 Guardianship ..................................................................................................................................... 10

2.2 Civil Registration ............................................................................................................................. 10

2.3 Prison Reform .................................................................................................................................. 11

2.4 Prisoner Voting ................................................................................................................................ 12

3. Constitutional Affairs ................................................................................................................................ 14

3.1 Votes for Life Bill ............................................................................................................................. 14

3.2 Electoral Administration ................................................................................................................ 14

3.3 British Bill of Rights ......................................................................................................................... 15

3.4 Strathclyde Review .......................................................................................................................... 15

4. Devolution .................................................................................................................................................. 18

4.1 Wales Bill .......................................................................................................................................... 18

House of Lords Library Note I Day Three: 24 May 2016 1

1. Home Affairs

1.1 Extremism Bill

Counter-extremism Strategy

In December 2013, the Coalition Government’s Extremism Taskforce published a report

entitled Tackling Extremism in the UK.1 The taskforce, formed following the murder of Fusilier

Lee Rigby in May 2013, was given a remit to agree “practical steps to fight against all forms of

extremism” as a means of combating and preventing terrorism.2 The taskforce’s

recommendations included that the Government should seek to disrupt extremist preachers

and groups operating within the current laws on incitement to violence or glorifying terrorism,

and counter extremist narratives and ideology.3 It also recommended that more should be

done to prevent the influence of extremism in institutions such as prisons and some

independent and religious schools.4

In September 2014, the Home Secretary, Theresa May, announced during her speech to the

Conservative Party Conference that the Home Office would develop a new counter-extremism

strategy, with the intention of countering different forms of extremism including violent and

non-violent, and ideological and non-ideological.5 The Home Office published its Counter-

Extremism Strategy in October 2015.6 This included the following definition of extremism for the

purposes of the Government’s Prevent strategy:

Extremism is the vocal or active opposition to our fundamental values, including

democracy, the rule of law, individual liberty and the mutual respect and tolerance of

different faiths and beliefs. We also regard calls for the death of members of our armed

forces as extremist.7

A similar definition, with a reference to protecting “British Values”, had also been published by

the Home Office prior to 2015.8

Extremism Bill in the 2015 Queen’s Speech

The 2015 Queen’s Speech included the announcement that measures would be brought

forward to “promote social cohesion and protect people by tackling extremism”.9 The Cabinet

Office’s briefing accompanying the Queen’s Speech stated that an Extremism Bill would seek to

tackle all forms of extremism and combat groups and individuals who “reject our values and

promote messages of hate”.10 The Bill would provide government and law enforcement

agencies with more powers to “stop extremists promoting views and behaviour that undermine

1 HM Government, Tackling Extremism in the UK, December 2013. 2 ibid, p 1. 3 ibid, pp 2–3. 4 ibid, p 9. 5 Conservative Party, ‘Theresa May: Speech to Conservative Party Conference 2014’, 30 September 2014. 6 Home Office, Counter-Extremism Strategy, October 2015, Cm 9148. 7 ibid, p 9. 8 HM Government, Prevent Duty Guidance: A Consultation, December 2014, p 9. 9 HC Hansard, 27 May 2015, col 32. 10 Cabinet Office, The Queen’s Speech 2015, 27 May 2015, pp 62–3.

2 House of Lords Library Note I Day Three: 24 May 2016

British values”, including where extremist activities fell below the threshold for action that

exists under counter-terrorism legislation.11 The main elements of the Bill would entail:

Granting new powers to the Home Secretary to introduce banning orders against extremist groups.

Giving powers to law enforcement to introduce extremism disruption orders, intended

to stop individuals engaging in extremist behaviour.

Enabling law enforcement and local authorities to close down premises used to support

extremism through the use of closure orders.

Provide Ofcom with a remit to take action against channels judged to be broadcasting

extremist content.

Enable employers to check whether an individual is an extremist and enable such

individuals to be barred from working with children.12

Civil powers to introduce banning orders, extremism disruption orders and closure orders to

disrupt terrorist or criminal activity currently exist under legislation including the Anti-Social

Behaviour, Crime and Policing Act 2014, the Terrorism Prevention and Investigation Measures

Act 2011 and the Terrorism Act 2000.13

Pre-legislative Scrutiny

At the time of writing, no draft bill has been published subsequent to the proposals outlined for

the 2015 Queen’s Speech. Regarding the drafting of the final legislation, in January 2016, the

Home Secretary told the House of Commons that the Home Office was “looking at the

question of the legislation that [it] would undertake” as part of its counter-extremism strategy.

The Times reported in May 2016 that, according to a Home Office source:

[…] getting agreement about the thresholds for what constitutes extremism and what

needs to be protected as free speech [was] not going to be easy or straightforward.14

The Independent Reviewer of Terrorism Legislation, David Anderson QC, commented on the

proposal for an Extremism Bill in September 2015.15 Mr Anderson set out 15 issues of

“particular sensitivity” regarding the proposals that the Government had outlined up to that

point. This included how extremist activity was to be defined, the evidence of a causal link

between the expression of extremist views and terrorist activities, and how these proposed

new civil powers would be implemented and what would be their effect and duration.16

Mr Anderson stated a public consultation or a green or white paper on either the definition of

the extremist activity or the details of the proposed new banning orders and extremist

disruption orders would have been helpful and might have been useful in encouraging broad

cross-community support for the proposals.17

11 Cabinet Office, The Queen’s Speech 2015, 27 May 2015, pp 62–3. 12 ibid. 13 ibid. 14 Francis Elliott, PM Plans New Laws to Stop Muslim Extremists, Times, 3 May 2016. 15 Independent Reviewer of Terrorism Legislation, The Terrorism Acts In 2014, September 2015, pp 61–5. 16 ibid, pp 54–5. 17 ibid, pp 62–3.

House of Lords Library Note I Day Three: 24 May 2016 3

On 25 November 2015, the chair of the Joint Committee on Human Rights, Harriet Harman,

wrote to the Home Secretary with nine “overarching questions of interest” relating to the

proposed Bill, which the Committee had identified as likely to be the focus for scrutiny of the

legislation.18 These included what the definition of the terms ‘non-violent extremism’ and

‘British values’ were to be in the Bill, whether the legislation would be applied in a way that

ensured equality before the law without the risk of disproportionate or undue focus on Muslim

communities, and whether the Bill might risk a diminution of freedom of speech, freedom of

religion and freedom to protest. The Home Secretary provided an interim response on

9 December 2015, stating that it would be inappropriate for her to comment on the legislation

before it had been brought forward, but that the Home Office was “engaging widely on the

proposals for legislation”.19 Mrs May stated that, as a result of this engagement, the legislation

would be underpinned by a “clear and sufficiently prescribed definition of extremist activity”.

She also stated that the new powers granted under the legislation would include “significant

judicial oversight together with clear guidance to the police” to be published in draft to inform

parliamentary scrutiny of the Bill.

Comment

Mrs May, speaking in Parliament following the March 2016 terrorist attacks in Brussels, has

argued that the Government would combat both the terrorists and their ideology through its

counter-extremism strategy and would “ensure that the values that underpin our society, which

the terrorists are attacking and trying to destroy, are maintained”.20 On the issue of community

relations, Mrs May stated that:

[The Government] want to work with communities across the United Kingdom to

promote the values that underpin what makes this country such a great place to live

in—values that are shared across the United Kingdom and across all communities.21

The Shadow Home Secretary, Andy Burnham, has argued that there should be a rethink of how

extremism in the UK is addressed, arguing that the Government’s Prevent agenda, initiated by

the last Labour Government, was no longer working and that not enough was being done by

the Prime Minister “to win hearts and minds in the Muslim community”.22 Mr Burnham argued

that the “idea that the Muslim community is being checked upon, spied upon, creates the

conditions for further alienation, and then potential radicalisation”.

The Liberal Democrat Home Affairs Spokesman, Alistair Carmichael, has criticised the

measures proposed in the Extremism Bill on the grounds of a lack of definition as to what

activities would be covered, arguing that:

We have been round this course so many times with the Home Office over the years.

They know what they dislike but they can’t describe it. Every time [the Government] try

and fail they make the tackling of extremism more difficult. They hand a propaganda

victory to those who preach hatred.23

18 Joint Committee on Human Rights, Letter to Rt Hon Theresa May MP, Secretary of State for the Home Department,

Home Office, 25 November 2015, 25 November 2015. 19 Joint Committee on Human Rights, Letter from Rt Hon Theresa May MP, Home Secretary, 9 December 2015,

16 December 2016. 20 HC Hansard, 23 March 2016, col 1585. 21 ibid. 22 Progress, ‘“Loyal is My Brand”’, 11 April 2016. 23 Alan Travis, ‘Cameron Terror Strategy Runs Aground on Definition of Extremism’, Guardian, 3 May 2016.

4 House of Lords Library Note I Day Three: 24 May 2016

The Scottish National Party’s Westminster Justice and Home Affairs spokesperson, Joanna

Cherry, has argued that more should be done by the Government to engage with those

communities most affected by radicalisation.24 Ms Cherry also stated that it was “disappointing

that the UK Government [had] failed to conduct any meaningful consultation with the Scottish

Government” regarding the proposed Extremism Bill.25

The anti-extremism think tank the Quilliam Foundation has stated its support for the

Government’s emphasis on countering extremism.26 However, Haras Rafiq, Managing Director

at the Quilliam Foundation, has argued that proposed banning orders and extremism disruption

orders were problematic because they would go beyond the existing ban on hate speech or the

promotion of terrorism, and move the bar “from those who do bad things to those who think

bad things”.27 Mr Rafiq instead argued that the focus ought to be on encouraging civil society to

challenge extremism.

Peter Hitchens, writing in the Mail on Sunday, has argued that the proposed legislation would

result in the suppression of any views judged to be unorthodox, stating: “[…] the expression ‘extremism’ doesn’t mean anything objective or measurable. It just means a view that is out of

favour with the current government and establishment”.28

Writing in the Telegraph in July 2015, the former Director-General of MI5, Lord Evans of

Weardale, argued that, without a clear definition of extremism in the Bill, it could be used in a

broader way than intended:

The forthcoming Counter-Extremism Bill aims to crack down on extremism but

definitions will be crucial, and implementation of the new powers will be fraught with

risk. One can imagine already the powers being used against harmless evangelical street

preachers or the like, out of misplaced zeal and a desire to demonstrate that they are

not directed against one religion alone.29

Counter-extremism and Universities

Following the passing of the Counter-Terrorism and Security Act 2015, measures requiring

universities and colleges to prevent extremists from radicalising students came into force on

21 September 2015.30

Further information is provided in the House of Lords Library briefing Freedom of Speech in

Higher Education Institutions, 23 November 2015.

24 Andrew Learmonth, ‘Westminster under Fire over its Failure to Consult Holyrood on Anti-Extremism Plans’,

National, 20 October 2015. 25 ibid. 26 Jonathan Russell, ‘Counter-Extremism Is Not Just the Responsibility of Muslims’, Newsweek, 20 October 2015. 27 Haras Rafiq, ‘To Curb Radicalization We Should Battle Extremist Ideas, Not Ban Them’, Newsweek, 5 May 2016. 28 Peter Hitchens, ‘Think Extremism’s a Crime? You'll Change Your Mind When They Come for You’, Mail on

Sunday, 8 May 2016. 29 Jonathan Evans, ‘To Defeat Terrorism, Police and Spies Need Better Tools’, Telegraph, 1 July 2015. 30 Prime Minister’s Office et al, ‘PM’s Extremism Taskforce: Tackling Extremism in Universities and Colleges Top of

the Agenda’, 17 September 2015.

House of Lords Library Note I Day Three: 24 May 2016 5

1.2 Money Laundering and Counter-terrorist Finance

In April 2016, the Home Office and HM Treasury published their Action Plan for Anti-Money

Laundering and Counter-Terrorist Finance.31 In a statement on the day of the publication of the

action plan, the Home Secretary, Theresa May, described the focus of the Government’s plans

as being to tackle the use of illicit funds for serious and organised crime, terrorism, and the

laundering of the proceeds of overseas corruption.32 The action points outlined in the plan

included that, by October 2017, the Home Office would have ‘explored’ legislation “to achieve

better information sharing between law enforcement agencies and the private sector, and

between private sector entities”.33

1.3 Investigatory Powers Bill (Carry-over Bill)

The Investigatory Powers Bill has been carried over from the 2015–16 session. The

2015 Conservative Party manifesto contained commitments to “keep up to date the ability of

the police and security services to access communications data” and introduce new legislation

to “strengthen our ability to disrupt terrorist plots, criminal networks and organised child

grooming gangs, even as technology develops”.34 It also promised to “maintain the ability of the

authorities to intercept the content of suspects’ communications, while continuing to

strengthen oversight of the use of these powers”.35

In the Queen’s Speech in 2015, the Government proposed new legislation “to modernise the

law on communications data”.36 The Draft Investigatory Powers Bill (the draft Bill) was

subsequently published on 4 November 2015.37 In respect of the law on communications data,

the draft Bill sought to replace the Data Retention and Investigatory Powers Act 2014 (DRIPA)

which expires at the end of 2016 and which has been the subject of legal challenge.38 The draft

Bill also represented the Government’s response to three recent reviews of investigatory

powers:

David Anderson QC, Independent Reviewer of Terrorism Legislation, A Question of Trust: Report of the Investigatory Powers Review, June 2015.

Intelligence and Security Committee of Parliament, Privacy and Security: A Modern and

Transparent Legal Framework, 12 March 2015, HC 1075 of session 2014–15.

Royal United Services Institute, A Democratic Licence to Operate: Report of the Independent Surveillance Review, July 2015.

31 Home Office and HM Treasury, Action Plan for Anti-Money Laundering and Counter-Terrorist Finance, April 2016. 32 House of Commons, Written Statement: Action Plan for Anti-Money Laundering and Counter-Terrorist

Finance, 21 April 2016, HCWS686. 33 Home Office and HM Treasury, Action Plan for Anti-Money Laundering and Counter-Terrorist Finance, April 2016,

pp 5 and 17. 34 Conservative Party, Conservative Party Manifesto 2015, 13 April 2015, p 63. 35 ibid. 36 HL Hansard, 27 May 2015, col 6. 37 HM Government, Draft Investigatory Powers Bill, November 2015, Cm 9152. 38 Davis et al v SSHD [2015] EWHC 2092.

6 House of Lords Library Note I Day Three: 24 May 2016

All three reviews recommended wider reform of investigatory powers, beyond modernising the

law on communications data, replacing existing legislation with a single piece of statute.39

The Government acknowledged these calls,40 and in response said that the draft Bill would:

[…] bring together all of the powers already available to law enforcement and the

security and intelligence agencies to obtain communications and data about

communications. It will make these powers—and the safeguards that apply to them—

clear and understandable.

[…] radically overhaul the way these powers are authorised and overseen. It will

introduce a ‘double-lock’ for interception warrants, so that, following Secretary of State

authorisation, these—and other warrants—cannot come into force until they have been

approved by a judge. And it will create a powerful new Investigatory Powers

Commissioner (IPC) to oversee how these powers are used.

[…] make sure powers are fit for the digital age. The draft Bill will make provision for

the retention of internet connection records (ICRs) in order for law enforcement to

identify the communications service to which a device has connected. This will restore

capabilities that have been lost as a result of changes in the way people communicate.41

The draft Bill was scrutinised by three parliamentary committees, all of which reported in

February 2016:

Joint Committee on the Draft Investigatory Powers Bill, Draft Investigatory Powers Bill,

11 February 2016, HL Paper 93 of session 2015–16.

Intelligence and Security Committee of Parliament, Report on the Draft Investigatory

Powers Bill, 9 February 2016, HC 795 of session 2015–16.

House of Commons Science and Technology Committee, Investigatory Powers Bill:

Technology Issues, 1 February 2016, HC 573 of session 2015–16.

The Government published a combined response to all three committees on 1 March 2016,42

alongside the introduction of the revised Investigatory Powers Bill to the House of Commons.

For an analysis of the pre-legislative scrutiny of the draft Bill, and the changes made by the

Government subsequently, see the House of Commons Library briefing, Investigatory Powers Bill, 11 March 2016.

39 Joint Committee on the Draft Investigatory Powers Bill, Draft Investigatory Powers Bill, 11 February 2016,

HL Paper 93 of session 2015–16, para 30. 40 HC Hansard, 15 March 2016, col 822. 41 HM Government, Draft Investigatory Powers Bill, November 2015, Cm 9152, p 5. 42 HM Government, Investigatory Powers Bill: Government Response to Pre-Legislative Scrutiny, March 2016, Cm 9219.

House of Lords Library Note I Day Three: 24 May 2016 7

The Investigatory Powers Bill would provide a range of investigatory capabilities to law

enforcement, the security and intelligence agencies (the Agencies), and other enforcement

bodies, including local authorities. These capabilities include:

Targeted interception:

Intercepting communications (eg telephone calls, emails, social media messages etc) during the course of their transmission.43

Available to law enforcement, the Agencies and Her Majesty’s Revenue and Customs

(HMRC).

Targeted equipment interference:

Accessing equipment (eg computers, mobile phones etc) in order to obtain stored communications and other data.44

Available to law enforcement, the Agencies and HMRC.

Obtaining communications data:

Acquiring communications data from communications service providers (CSPs). Communications data is the context, but not the content of a communication: who was

communicating, when, from where, and with whom. For example it can be a person’s

mobile phone number or email addresses used to send and receive emails, but not what

is said in a telephone conversations or written in an email”.45 CSPs may be served with

Data Retention Notices by the Secretary of State requiring them to keep such data for

twelve months.

Available to law enforcement, the Agencies, HMRC, local authorities, and other

bodies.46

Obtaining internet connection records:

Acquiring Internet Connection Records (ICRs)—a proposed new form of

communications data—from CSPs. ICRs are the “the name used to describe

communications data that can be used to identify, or assist in identifying, internet

services that have been accessed by a device”.47 They would include records of source

and destination IP (Internet Protocol) addresses and port numbers, and other

information necessary to identify the service a customer has been using, though not

what they have been doing on that service.48

43 Home Office, Investigatory Powers Bill Factsheet—Targeted Interception, March 2016. 44 Home Office, Investigatory Powers Bill Factsheet—Targeted Equipment Interference, March 2016. 45 Home Office, Investigatory Powers Bill Factsheet—Communications Data, March 2016, p 1. 46 For a full list, see Investigatory Powers Bill, schedule 4. 47 Home Office, Investigatory Powers Bill Factsheet—Internet Connection Records, March 2016, p 1. 48 Home Office, Operational Case for the Retention of Internet Connection Records, March 2016, p 7.

8 House of Lords Library Note I Day Three: 24 May 2016

Available to law enforcement, the Agencies, HMRC, and other bodies, but not local

authorities.49

Bulk interception:

Collecting of a volume of communications of persons who are outside the British

Islands, during their transmission.50

Available to the Agencies.

Bulk equipment interference:

Accessing computer equipment overseas, in order to obtain the communications,

private information or equipment data of persons who are outside the British Islands.51

Available to the Agencies.

Bulk acquisition:

Acquiring communications data in bulk, including the communications data of people

within the British Islands.52

Available to the Agencies.

Bulk personal datasets:

Acquiring and retaining large datasets containing information about a wide range of

people, most of whom are not of interest to the security and intelligence agencies.

Examples include lists of people who have a passport or a licensed firearm.53

Available to the Agencies.

The Government has said that only ICRs are a new power.54 The other capabilities are

currently provided for and utilised under existing legislation, but are being consolidated in the

Investigatory Powers Bill in order to improve “openness and transparency”.55

The Investigatory Powers Bill proposes changes to the way in which many of these capabilities

are authorised. At present, the Secretary of State must approve warrants to undertake

activities such as interception or equipment interference, after having considered an application

from law enforcement or one of the Agencies.56 The Bill proposes appointing a number of

senior judges as Judicial Commissioners and that the approval of warrants in future would

require the sign-off of both the Secretary of State and one of the Judicial Commissioners before

49 For a full list, see Investigatory Powers Bill, schedule 4. 50 Home Office, Investigatory Powers Bill Factsheet—Bulk Interception, March 2016. 51 Home Office, Investigatory Powers Bill Factsheet—Bulk Equipment Interference, March 2016. 52 Home Office, Investigatory Powers Bill Factsheet—Bulk Acquisition, March 2016. 53 Home Office, Investigatory Powers Bill Factsheet—Bulk Personal Datasets, March 2016, p 1. 54 HC Hansard, 15 March 2016, col 820. 55 ibid, col 813. 56 Applications by law enforcement in Scotland require the approval of Scottish Ministers.

House of Lords Library Note I Day Three: 24 May 2016 9

it could take effect.57 In urgent circumstances, the warrant could be approved solely by the

Secretary of State, although it would have to be reviewed and approved by a Judicial

Commissioner within three working days and would cease to have effect if approval was not

granted.

The Investigatory Powers Bill proposes changing the oversight of these powers. A new

Investigatory Powers Commissioner, supported by the Judicial Commissioners, would be

appointed to replace the oversight functions currently split between the Intelligence Services

Commissioner, the Interception of Communications Commissioner and the Chief Surveillance

Commissioner. The Investigatory Powers Commissioner would be “responsible for overseeing

the use of all investigatory powers” and would “ensure that the public and Parliament are

better informed about how these powers are used and the adequacy of the safeguards in

place”.58

The Investigatory Powers Bill received a second reading in the House of Commons on

15 March 2016 and completed its public bill committee stage on 3 May. A carry-over motion for the Bill was passed following second reading.59

Further information on the Investigatory Powers Bill is available in the House of Commons

Library briefing, Investigatory Powers Bill, 11 March 2016.

1.4 Policing and Crime Bill (Carry-over Bill)

The Policing and Crime Bill will be carried over into the 2016–17 session following a successful

motion in the House of Commons on 7 March 2016.60 This Bill was introduced in the House of Commons in the 2015–16 session and began report stage in the House of Commons on

26 March 2016. At the time of writing the second day of report stage has yet to take place.

Measures in the Bill include:

A duty to be placed on the police, fire and rescue and ambulance services to

collaborate.

Reforms to police complaints and disciplinary systems and reforms to some police powers.

Enabling chief officers to confer further policing powers to civilian staff and volunteers.

Enabling the Home Secretary to specify police ranks in regulations.

Changes to the Firearms Acts intended to close existing loop holes.

Further information on the Policing and Crime Bill is available in the House of Commons

Library briefing, Policing and Crime Bill 2015–16, 2 March 2016.

57 This does not apply to applications for communications data. Warrants for targeted equipment interference by

law enforcement would require the approval of a law enforcement chief and a Judicial Commissioner. Applications

by law enforcement in Scotland would require the approval of Scottish Ministers and a Judicial Commissioner. 58 Home Office, Investigatory Powers Bill Factsheet—Investigatory Powers Commissioner, March 2016, p 1. 59 HC Hansard, 15 March 2016, col 909. 60 HC Hansard, 7 March 2016, col 104.

10 House of Lords Library Note I Day Three: 24 May 2016

2. Legal Affairs

2.1 Guardianship

The Government has stated that it intends to legislate to create a new legal status of guardian of the property and affairs of a missing person.61 The charity Missing People, who have been

campaigning for a system of guardianship, state that “approximately 250,000” people go missing

every year62 and that research shows relatives of missing people experience a range of practical,

financial and legal difficulties.63 The House of Commons Justice Committee—having heard

evidence from Missing People, UK Missing Person’s Bureau and others—reported in 2012

claiming that families’ suffering is exacerbated by “the inability to administer the financial

situation of their missing relatives”.64 The Committee recommended:

That the Government take steps to introduce provision for ‘guardianship’ orders

modelled on the approach adopted by states in Australia, either via the introduction of

the presumption of death legislation we have recommended, or some alternative

legislative mechanism.65

Following a government consultation in 2014, the Ministry of Justice published its response in

2015 confirming its support for the “creation of a new legal status of guardian of the property

and affairs of a missing person” and providing some details of the proposals.66 In a written

statement in March 2015, Lord Faulks, Minister of State for Civil Justice, further set out the

proposals and stated that “the Government hopes that legislation will be brought forward

without delay in the new Parliament”. 67

The Government is currently reviewing the Missing Children and Adults Strategy68 and, in

relation to introducing the legislation to create the new legal status of guardian, Dominic Raab,

Parliamentary Under Secretary, Ministry of Justice, stated on 9 March 2016 that the

Government will do this “as soon as parliamentary time permits”.69

2.2 Civil Registration

On 18 August 2014, the Prime Minister, David Cameron, announced proposals to update civil

registration of marriages to include couples’ mothers’ names in addition to fathers’ names,

stating that the current system “doesn’t reflect modern Britain”.70 Presently, entries in the

paper based registration system are proscribed by law71 and changes to civil registration,

61 Ministry of Justice, Guardianship of the Property and Affairs of Missing Persons: A Response to Consultation, 23 March

2015, p 3. 62 Missing People, Managing a Missing Person’s Affairs: Guardianship, October 2013. 63 Lucy Holmes, Living In Limbo: The Experiences of, and the Impact On, the Families of Missing People, Missing People,

2008. 64 House of Commons Justice Committee, Presumption of Death, 22 February 2012, HC 1663 of session 2010–12,

p 3. 65 ibid, p 26. 66 Ministry of Justice, Guardianship of the Property and Affairs of Missing Persons: A Response to Consultation, 23 March

2015, p 3. 67 HL Hansard, 23 March 2015, HLWS423. 68 Home Office, Missing Children and Adults: A Cross Government Strategy, 1 December 2011. 69 House of Commons, Written Question: Missing Persons, 9 March 2016, 29212. 70 Prime Minister’s Office, ‘David Cameron on Families’, 18 August 2014. 71 Births and Deaths Registration Act 1836 and Civil Partnerships (Registration Provisions) Regulations 2005. A

Civil Partnership Schedule does include the mothers’ name, surname and occupation.

House of Lords Library Note I Day Three: 24 May 2016 11

including changes to include mothers’ names, have been put forward as far back as 2002.72

There is also interest amongst the public,73 the media74 and Members of Parliament75 in support

of these changes.

In the 2015–16 session, Christina Rees (Labour MP for Neath) introduced the Marriage and

Civil Partnership Registration (Mother’s Names) Bill, which had its first reading on 4 November

2015. The Bill sought to make similar changes to those announced by David Cameron, but did

not progress to second reading. The need for reform was also supported in the Westminster

Hall debate on Marriage Registration Certificates on 8 December 2015.76 In relation to the

latest position by the Government, James Brokenshire, Minister of State for Security and

Immigration, has said:

There is agreement that the names of both parents should be included in the marriage

entry. The Home Office has, therefore, been working with all interested parties to

consider the most efficient and effective way to achieve this. Doing so is likely to require

additional funding and changes to legislation, IT systems and administrative processes. A timetable will be confirmed for changes as soon as there is an opportunity to legislate

on this matter.77

2.3 Prison Reform

On 8 February 2016, in a speech at the think tank Policy Exchange, the Prime Minister, David

Cameron, argued that reform of the prison system was necessary in order to reduce

reoffending and bring down levels of violence, drug-taking and self-harm in prisons.78

Mr Cameron stated that the Government would base its approach to prison reform on four principles which it had used in reforming other public services: giving greater autonomy to

professionals who work in public services; holding providers and professionals to account;

intervening “decisively and dramatically” to address persistent failure or underlying problems;

and using behavioural insights evidence and new technology to deliver better outcomes.

In evidence to the House of Commons Justice Committee on 16 March 2016, Michael Gove,

Lord Chancellor and Secretary of State for Justice, outlined the Government’s plans for prison

reform.79 Mr Gove stated that this would include publishing, in the 2016–17 parliamentary

session, draft legislation which would create a new legal status for prisons, allowing prison

governors more autonomy. Mr Gove drew a comparison with academy schools, saying:

Ideally, we want to be able to create a free-standing trust or foundation—what we call a

reform prison. In order to allow governors to have a significantly greater degree of

freedom than we currently grant them, we will need to create a new legal status. In the

same way as the Blair Government created a unique status for academy schools, we are

72 Office for National Statistics, Civil Registration: Vital Change. Birth, Marriage and Death Registration in the 21st

Century, January 2002. 73 Change.org petition: ‘Mothers’ Names Should Be On Marriage Certificates Alongside Fathers’ Names’. 74 Joanna Moorhead, ‘Mums’ Absence from Marriage Certificates Shows We’re Still Wedded to Inequality’,

Guardian, 8 May 2014; and Laura Dixon, ‘Why Can’t your Mother’s Name be on your Wedding Certificate?’,

Telegraph, 24 January 2014. 75 Early Day Motion 27 of 2014–15. 76 HC Hansard, 8 December 2015, cols 286–310WH. 77 House of Commons, Written Question: Marriage Certificates: Mothers, 9 February 2016, 25738. 78 Prime Minister’s Office, ‘Prison Reform: Prime Minister's Speech’, 8 February 2016. 79 House of Commons Justice Committee, Oral Evidence: Prison Reform, 16 March 2016, HC 859 of session

2015–16.

12 House of Lords Library Note I Day Three: 24 May 2016

looking at what the firm legal foundation should be for prisons that operate in an

independent way. We want to ensure that that firm legal foundation can allow,

potentially, groups of prisons, which are led by a strong governor who has made a

significant difference in one and can then take on others, in the same way as executive

head teachers within academy chains have done.80

Mr Gove also stated that the Government would look to introduce a system of league tables

for prisons.81 These would include long-term indicators, such as qualifications achieved by

prisoners and measures relating to resettling prisoners in the community, and more immediate

measures such as the number of hours prisoners spend out of their cells. Mr Gove said that

such measurements could be used to hold prison governors to account and to facilitate the

sponsorship of less well-performing prisons by better-performing ones, such that “if prisons are

not performing well, sometimes stronger prisons may operate as their improvement partner, in

the same way as we have seen in schools and, indeed, the NHS, with strong foundation trusts

taking weaker ones under their wing”.82

In a debate in the House of Lords on prison reform on 21 January 2016, Lord Beecham,

Shadow Justice Spokesperson, argued that the number of people in prison was too high, and

that “too many” prisons were “overcrowded and understaffed”, resulting in increased

incidence of violence.83 Lord Beecham also contended that the amount of time prisoners spent

out of their cells and engaged in “purposeful activity” should be increased.84

2.4 Prisoner Voting

In 2005, the European Court of Human Rights (ECtHR) found that the ban on prisoner voting contained in the UK’s Representation of the People Act 1983 breached article 3 of the first

protocol to the European Charter of Human Rights (ECHR).85 The same conclusion was

reached in a number of subsequent cases on the same issue.86

In February 2011, a debate was held in the House of Commons on the following motion:

That this House notes the ruling of the European Court of Human Rights in Hirst v the

United Kingdom in which it held that there had been no substantive debate by members

of the legislature on the continued justification for maintaining a general restriction on

the right of prisoners to vote; acknowledges the treaty obligations of the UK; is of the

opinion that legislative decisions of this nature should be a matter for democratically-

elected lawmakers; and supports the current situation in which no prisoner is able to

vote except those imprisoned for contempt, default or on remand.87

The motion was agreed on division by 234 votes to 22 votes.88

80 House of Commons Justice Committee, Oral Evidence: Prison Reform, 16 March 2016, HC 859 of session

2015–16, p 4. 81 ibid. 82 ibid, p 5. 83 HL Hansard, 21 January 2016, col 938. 84 ibid, col 939. 85 Hirst v United Kingdom (No 2), 6 October 2005. 86 European Court of Human Rights, Prisoners’ Right to Vote, February 2015. 87 HC Hansard, 10 February 2011, col 493. 88 ibid, col 584.

House of Lords Library Note I Day Three: 24 May 2016 13

In November 2012, the Coalition Government published draft legislation suggesting three

options to address the ECtHR’s judgment: a ban for prisoners sentenced to four years or

more; a ban for prisoners sentenced to six months or more; or maintaining the current

situation, with a ban for all prisoners.89 The draft Bill was considered by a joint committee,

which made the following recommendation:

We recommend that the Government bring forward a Bill, at the start of the 2014–15

session of Parliament, to give legislative effect to the following conclusions:

That all prisoners serving sentences of 12 months or less should be entitled to vote in all UK parliamentary, local and European elections;

That such prisoners should be registered to vote in the constituency where they

were registered prior to sentencing; and that, where there is no identified prior

residence, they should be able to register by means of a declaration of local

connection;

That prisoners should be entitled to apply, 6 months before their scheduled release date, to be registered to vote in the constituency into which they are due

to be released.90

In its response to the report, the Coalition Government stated that the recommendations

required “thorough consideration” and that the matter was under “active consideration within

Government”.91 No legislation on the subject was introduced in the 2014–15 session. In

evidence given to the House of Lords Constitution Committee on 2 December 2015, Michael

Gove, Lord Chancellor and Secretary of State for Justice, stated that the Government hoped to

produce a “more substantive response” to the Joint Committee’s report in 2016, after the

publication of the Government’s planned consultation document on revising the Human Rights

Act and introducing a bill of rights.92

On 9 December 2015, the Council of Europe’s Committee of Ministers adopted Interim

Resolution CM/ResDH (2015) 251, which called on the UK to respond to the ECtHR’s

judgments regarding prisoner voting, and stated its intention to revisit the cases in December

2016. On 2 February 2016, Parliamentary Under Secretary of State at the Ministry of Justice,

Dominic Raab, stated in evidence to the House of Lords Committee on the European Union’s

Justice Sub-Committee that “the views of Parliament make it unlikely—or unrealistic—that the

ban will be lifted in the foreseeable future”.93

89 Ministry of Justice, Voting Eligibility (Prisoners) Draft Bill, November 2012, clauses 13. 90 Joint Committee on the Draft Voting Eligibility (Prisoners) Bill, Draft Voting Eligibility (Prisoners) Bill, 18 December

2013, HL Paper 103 of session 2013–14, p 67. 91 Ministry of Justice, Draft Voting Eligibility (Prisoners) Bill, 25 February 2014. 92 House of Lords Constitution Committee, Oral Evidence Session with the Rt Hon. Michael Gove MP, Lord Chancellor

and Secretary of State for Justice, 2 December 2015, p 17. 93 House of Lords European Union Committee, The Potential Impact on EU Law of Repealing the Human Rights Act:

Evidence Session No 8, 2 February 2016, p 11.

14 House of Lords Library Note I Day Three: 24 May 2016

3. Constitutional Affairs

3.1 Votes for Life Bill

The Conservative Party manifesto, published ahead of the 2015 general election, stated:

We will complete the electoral register, by working to include more of the five million

Britons who live abroad. We will introduce votes for life, scrapping the rule that bars

British citizens who have lived abroad for more than 15 years from voting.94

In a Cabinet Office briefing published to accompany the 2015 Queen’s Speech, the Government

stated that it intended to bring forward a Votes for Life Bill as part of its legislative

programme.95 The briefing stated that this Bill would:

End the disenfranchisement after an arbitrary 15 years of British citizens living

abroad, enabling them to continue voting in UK parliamentary and European

parliamentary elections.

Make it easier for overseas electors to cast their votes in time to be counted.

Encourage larger numbers of British citizens living abroad to register to vote in

UK elections.96

Speaking on behalf of the Government in July 2015, Lord Bridges of Headley, Parliamentary

Secretary at the Cabinet Office, stated in response to an oral question on the subject of UK

overseas voters that the Government was “committed to making a permanent change to

remove the 15-year time limit on the parliamentary voting rights of British citizens living

overseas” and that it was “currently considering the timetable for doing so and will set out

more detail in due course”.97 On 9 March 2016, in response to a written question on the

subject of the proposed Votes for Life Bill, Lord Bridges stated that the Government would

“introduce a Bill in due course”.98

3.2 Electoral Administration

In respect of electoral administration reform, the Conservative Party manifesto stated that if

elected to office, a Conservative government would “continue to make our arrangements fair

and effective [following the introduction of individual voter registration] by ensuring the

Electoral Commission puts greater priority on tackling fraud and considers insisting on proof of

ID to vote”.99

In January 2014, the Electoral Commission published a report on electoral fraud in the UK. The report made three recommendations, regarding the following: tackling the risk of electoral

fraud in higher risk areas; verifying the identity of voters in polling stations; and restricting the

94 Conservative Party, Conservative Party Manifesto 2015, 13 April 2015, p 49. 95 Cabinet Office and Prime Minister’s Office, The Queen’s Speech 2015, 27 May 2015, p 96. 96 ibid. 97 HL Hansard, 6 July 2015, col 9. 98 House of Lords, Written Question: Political Parties—Finance, 9 March 2016, HL6395. 99 Conservative Party, Conservative Party Manifesto 2015, 13 April 2015, p 49.

House of Lords Library Note I Day Three: 24 May 2016 15

involvement of campaigners in absent vote administration processes.100 Jenny Watson, chair of

the Electoral Commission, stated at the time that introducing a requirement for voters to

produce ID at polling stations in England, Scotland and Wales would “strengthen the system

and bring Great Britain into line with Northern Ireland and many countries where this is

already in place”.101 Voters in Northern Ireland have been required to present photographic ID

before they can be issued with ballot papers at polling stations since 2003.102

In December 2015, the Electoral Commission published proposals for a proof of identity

scheme for polling station voters in Great Britain.103 It recommended that a proof of identity

scheme “should be in place [in Great Britain] to be used by no later than for the 2019

European Parliamentary and English local government elections”.104

In August 2015, the Cabinet Office announced that Sir Eric Pickles (Conservative MP for

Brentwood and Ongar), the Government’s Anti-Corruption Champion, would lead a review

into electoral fraud.105 Sir Eric was due to provide a report to the Prime Minister with

recommendations and proposals for change by the end of 2015.106 On 27 April 2016, John Penrose, Parliamentary Secretary at the Cabinet Office, stated that he “look[ed] forward with

great anticipation” to Sir Eric’s report.107

3.3 British Bill of Rights

The 2015 Conservative Party general election manifesto included a commitment to abolish the

Human Rights Act and introduce a British bill of rights to “break the formal link between British

courts and the ECtHR, and make our own Supreme Court the ultimate arbiter of human rights

matters in the UK”.108 In evidence to the House of Lords Constitution Committee in December 2015, Michael Gove, Lord Chancellor and Secretary of State for Justice, stated that

the Government expected to publish a consultation paper on a new bill of rights in 2016. 109 At

the time of writing, a date is not known for the launch of the consultation. In response to a

question in the House of Commons on 11 May 2016, the Prime Minister reiterated his

commitment to introducing a British bill of rights.110

More information on proposals for a British bill of rights can be found in the House of Lords

Library briefing, National Bills of Rights: International Examples, 19 February 2016.111

3.4 Strathclyde Review

On 26 October 2015, the Government was defeated in the House of Lords when the House

voted in favour of two amendments to the approval motion on the Tax Credits (Income

100 Electoral Commission, Electoral Fraud in the UK: Final Report and Recommendations, January 2014, pp 3–8. 101 Electoral Commission, ‘ID Needed at Polling Stations, Recommends Independent Watchdog’, 8 January 2014. 102 Electoral Commission, Briefing on Electoral Fraud Vulnerabilities at Polling Stations, December 2015, p 1. 103 Electoral Commission, Delivering and Costing a Proof of Identity Scheme for Polling Station Voters in Great Britain,

December 2015, p 3. 104 Electoral Commission, Briefing on Electoral Fraud Vulnerabilities at Polling Stations, December 2015, p 1. 105 Cabinet Office, ‘Press Release: Sir Eric Pickles to Examine Electoral Fraud’, 13 August 2015. 106 ibid. 107 HC Hansard, 27 April 2016, col 1414. 108 Conservative Party, Manifesto 2015, 2015, p 60. 109 House of Lords Constitution Committee, Oral Evidence Session with the Rt Hon. Michael Gove MP, Lord Chancellor

and Secretary of State for Justice, 2 December 2015, p 16. 110 Parliament Live, ‘Prime Minister’s Questions’, 11 May 2016. 111 House of Lords Library, National Bills of Rights: International Examples, 19 February 2016.

16 House of Lords Library Note I Day Three: 24 May 2016

Thresholds and Determination of Rates) (Amendment) Regulations 2015 that sought to delay

consideration until specific conditions had been met.112 On 27 October 2015, the Government

commissioned Lord Strathclyde, a former Leader of the House of Lords, to lead a review into

“how to secure the decisive role of the elected House of Commons in the passage of

legislation”.113

Lord Strathclyde’s report was published on 17 December 2015.114 The report suggested three

options which might “provide the House of Commons with a decisive role” on statutory

instruments.115 The report outlined these options as follows:

One option would be to remove the House of Lords from statutory instrument procedure altogether. This has the benefit of simplicity and clarity. However, it

would be controversial and would weaken parliamentary scrutiny of delegated

legislation and could make the passage of some primary legislation more difficult.

The second option would be to retain the present role of the House of Lords in

relation to statutory instruments, but for that House, in a resolution or in

standing orders, to set out and recognise, in a clear and unambiguous way, the

restrictions on how its powers to withhold approval or to annul should be

exercised in practice and to revert to a position where the veto is left unused.

This option seeks to codify the convention. However, since a resolution of the

House could be superseded, or standing orders could be suspended, by further

decisions of the House, it would not provide certainty of application.

A third option would be to create a new procedure—set out in statute—

allowing the Lords to invite the Commons to think again when a disagreement

exists and insist on its primacy. This would better fit with the established role of

the House of Lords as regards primary legislation.116

Lord Strathclyde recommended the third option of “creating a new process, set out in statute,

for the Lords to ask the Commons to think again about a statutory instrument”.117

Also on this date, Chris Grayling, Leader of the House of Commons, and Baroness Stowell of

Beeston, Leader of the House of Lords, made statements on the floor of each House,

respectively, on the proposals contained within Lord Strathclyde’s report.118

112 HL Hansard, 26 October 2015, cols 976–1042. 113 House of Lords, Written Statement: Strathclyde Review, 4 November 2015, HLWS285. For further

information, see House of Lords Library, Strathclyde Review: Secondary Legislation and the Primacy of the House of

Commons, 23 December 2015; and House of Lords Library, History of the House of Lords: A Brief Introduction,

12 February 2016, pp 19–21. 114 Cabinet Office, Strathclyde Review: Secondary Legislation and the Primacy of the House of Commons, 17 December

2015, Cm 9177. 115 ibid, p 5. 116 ibid. 117 ibid. 118 HC Hansard, 17 December 2015, cols 1740–50; and HL Hansard, 17 December 2015, cols 2189–201.

House of Lords Library Note I Day Three: 24 May 2016 17

The House of Lords debated the report on 13 January 2016.119 Since then, three committees of

the House of Lords have reported on the review and its proposals:

Constitution Committee, Delegated Legislation and Parliament: A Response to the Strathclyde Review, 23 March 2016, HL Paper 116 of session 2015–16.

Delegated Powers and Regulatory Reform Committee, Special Report: Response to the

Strathclyde Review, 23 March 2016, HL Paper 119 of session 2015–16.

Secondary Legislation Scrutiny Committee, Response to the Strathclyde Review: Effective

Parliamentary Scrutiny of Secondary Legislation, 14 April 2016, HL Paper 128 of session 2015–16.

In addition, the House of Commons Public Administration and Constitutional Affairs

Committee held a one-off evidence session on 19 January 2016 to take evidence from Lord

Strathclyde and Professor Meg Russell, Director of the Constitution Unit at University College

London.120 The Committee reported on 12 May 2016, stating that:

The Government should not produce legislative proposals aimed at implementing the

Strathclyde Review’s recommendations. Such legislation would be an overreaction and

entirely disproportionate to the House of Lords’ legitimate exercise of a power that

even Lord Strathclyde has admitted is rarely used. The Government’s time would be

better spent in rethinking the way it relies on secondary legislation for implementing its

policy objectives and in building better relations with the other groupings in the House

of Lords.121

On 20 April 2016, Baroness Stowell of Beeston stated, in response to an oral question on the

subject of the review, that the Government would respond to Lord Strathclyde’s report and

the three House of Lords committee reports “in due course”, adding that the Government had

not yet reached a decision on how to respond.122 The Government has yet to indicate that

legislation to implement Lord Strathclyde’s recommended option (to “create a new

procedure—set out in statute—allowing the Lords to invite the Commons to think again when

a disagreement exists and insist on its primacy”) is planned to be brought forward in the

2016–17 session.123

119 HL Hansard, 13 January 2016, cols 272–380. 120 House of Commons Public Administration and Constitutional Affairs Committee, ‘The Strathclyde Review’,

accessed 5 May 2016. 121 House of Commons Public Administration and Constitutional Affairs Committee, The Strathclyde Review:

Statutory Instruments and the Power of the House of Lords, 12 May 2016, HC 752 of session 2015–16, p 21, para 15. 122 HL Hansard, 20 April 2016, cols 626–8. 123 Cabinet Office, Strathclyde Review: Secondary Legislation and the Primacy of the House of Commons, 17 December

2015, Cm 9177, p 5.

18 House of Lords Library Note I Day Three: 24 May 2016

4. Devolution

4.1 Wales Bill

Published in October 2015, the draft Wales Bill set out draft provisions to transfer new powers to Wales following the commitments made by the Coalition Government as part of the

St David’s Day Agreement on 27 February 2015.124 In particular, the draft Bill contained

provisions to move to a ‘reserved powers’ model (as operated in Scotland) and to devolve new

powers in relation to energy, transport and elections. Introducing the draft Bill, Stephen Crabb,

then Secretary of State for Wales, stated:

For too long Welsh politics has been dominated by constitutional debates about what is

and is not devolved. I want to ensure that both the UK and Welsh Governments are

focused on delivering a stronger economy, creating jobs and providing the highest

quality public services. This draft Bill sets out in detail how the Government plans to

deliver the St David’s Day commitments to create a stronger, clearer and fairer

devolution settlement for Wales that will stand the test of time.

The proposals in the draft Bill create a new Welsh devolution system, moving to a

reserved powers model similar to the one which currently operates in Scotland. This

will deliver a devolution settlement which provides greater accountability to the Welsh

people. The draft Bill also devolves important new powers over energy, transport and

local government and Assembly elections. These are powers that can make a real

difference to the lives of people in Wales. As set out in the St David’s Day agreement

they are also proposals which attracted cross-party political consensus.125

Pre-legislative scrutiny of the draft Bill was conducted by the House of Commons Welsh Affairs

Committee, which considered evidence from witnesses including Stephen Crabb, the First

Minister of Wales, Carwyn Jones, and a number of constitutional and legal experts.126 The

Committee’s final report was published on 28 February 2016. Although the Committee noted a

number of areas on which its members had differing views (such as whether there should be a

separate legal jurisdiction and the extent of powers to be devolved), it stated:

The majority of witnesses we heard from, and who have provided written evidence,

have suggested improvements to the draft Bill. Some of these, such as replacing the

“necessity” test with a test that is clearer and has a lower threshold, and that in relation

to ministerial consent, that the UK Government transfers to the Welsh Ministers all

ministerial functions in areas of devolved legislative competence, the Committee have

been able to agree upon […]127

The Committee noted that consideration of the “necessity test” had taken up much of the time

in the inquiry.128 In brief, this is the requirement that if the Assembly wanted to make changes

to criminal or private law it would need to show the law was “necessary” to perform a

devolved function. The UK Government indicated that the purpose of the restriction was to

124 Wales Office, Draft Wales Bill, October 2015, Cm 9144. 125 ibid, p 4. 126 House of Commons Welsh Affairs Committee, Pre-legislative Scrutiny of the Draft Wales Bill, 28 February 2016,

HC 449 of session 2015–16. 127 ibid, p 30. 128 ibid, p 15.

House of Lords Library Note I Day Three: 24 May 2016 19

“protect the unified legal system of Wales and England”.129 The Committee criticised the

necessity test, stating that its application was uncertain and would set too high a threshold for

the Assembly to reach before it can legislate.130

Based on the above issues, and stressing that there were other matters that needed further

consideration, the Committee called on the Secretary of State to “pause” the legislation and

requested the Minister to:

[L]ook again at the necessity tests, the list of reservations, the matter of ministerial

consent and also to continue to review the issue of a separate or distinct Welsh

jurisdiction. There is a growing body of Welsh law that differs from that which applies in

England, but the implications of this requires careful scrutiny. We share the view of the

Silk Commission, that the UK and Welsh governments will need to continue to review

the issue of a separate or distinct Welsh jurisdiction.131

On 29 February 2016, Stephen Crabb announced that “significant changes” would be made to the draft Bill and that it would be delayed until the summer.132 As part of this announcement, it

was stated that the following changes would be made:

Remove the so-called ‘necessity test’, so that the Assembly will be able to change the

law to help enforce its legislation without first applying the test.

Reduce the number of reservations in the Bill.

Remove the general restriction on the Assembly modifying a Minister of the Crown

function in devolved areas.133

Subsequently, the Welsh Government launched an “alternative” draft Wales Bill in March 2016,

the Government and Laws in Wales Draft Bill.134 Speaking about the alternative draft Bill,

Carwyn Jones (who has been critical of the UK Government’s draft Bill135) stated that, although

he welcomed the UK Government’s commitment to make changes to its draft Bill, he remained

concerned about the Welsh Government’s lack of consultation and involvement in the

process.136 The Welsh Government’s draft Bill contains additional proposals for the devolution

of air passenger duty; the partial devolution of income tax (following Assembly agreement); and

the division of England and Wales into separate legal jurisdictions (but both served by a

common judiciary and courts service).

129 House of Commons Welsh Affairs Committee, Pre-legislative Scrutiny of the Draft Wales Bill, 28 February 2016,

HC 449 of session 2015–16, p 15. 130 ibid, p 20. 131 ibid, p 30. 132 BBC News, ‘Wales Bill Needs Significant Changes, Stephen Crabb Says’, 29 February 2016. 133 Wales Office, ‘Amended Wales Bill Will Deliver a Stronger Devolution Settlement’, 9 March 2016. 134 Welsh Government, ‘Government and Laws in Wales Draft Bill’, 7 March 2016. 135 Wales Online, ‘First Minister Carwyn Jones Warns Draft Wales Bill Could Create “English Veto” and Fan

Flames of Nationalism’, 20 October 2015. 136 BBC News, ‘Carwyn Jones Reveals Alternative Wales Bill’, 7 March 2016.

House of Lords Library Notes are compiled for the benefit of Members of the House of Lords and their personal staff,

to provide impartial, politically balanced briefing on subjects likely to be of interest to Members of the Lords. Authors

are available to discuss the contents of the Notes with the Members and their staff but cannot advise members of the

general public.

Any comments on Library Notes should be sent to the Head of Research Services, House of Lords Library,

London SW1A 0PW or emailed to purvism@parliament.uk.