Human Rights in Wales

Professor Simon Hoffman, Swansea University

I am a professor of Law at the Hillary Rodham Clinton School of Law, Swansea University. My area of expertise is human rights, with a focus on social rights, children’s rights, disabled people’s rights and the rights of older persons. For the last decade I have worked with civil society and government in Wales, Scotland and Jersey on incorporation of international human rights through the exercise of devolved powers. I am currently Principal Investigator on research commissioned by the Welsh Government examining options for strengthening human rights and equality in Wales due to report in December 2020. I have been asked by the Assistant Assembly Clerk to pay particular attention in this submission to how the UN Convention on the Rights of the Child (CRC) has been incorporated and given effect in Wales through Welsh Law.

In order to properly understand the position concerning human rights generally, and the CRC in particular in Wales it is necessary to discuss the way in which devolution for Wales has developed. For this reason I hope the Commission will forgive some historical contextualisation in the submission below. The submission is set out as follows:

• Introduction
• Children’s Rights in Wales
• Incorporation of the CRC in Wales
• The Impact of Incorporation
• Human Rights in Wales: Ongoing Developments

Introduction

1. It is quite clear from the jurisprudence of the UN human rights treaty monitoring mechanisms that the primary responsibility to implement human rights rests with the State party signatory to an international human rights treaty (IHRT). However, governance of human rights is increasingly a responsibility of sub-State institutions, including devolved governments.  While globally and within the UK arrangements for devolution vary, local control over policy in areas such as health, education, housing, and social welfare, accompanied by fiscal decentralisation and legislative competence means that devolved institutions have a significant role in determining how people experience their human rights.

2, It is apparent from general comments published by UN treaty monitoring bodies, as well as other authoritative sources, that States parties to IHRTs should realise human rights by adopting a range of measures – not just legislation.[i] The most comprehensive guidance on implementation is given by the UN Committee on the Rights of the Child (the Committee) in its General Comment No.5, General Measures of Implementation of the UN Convention on the Rights of the Child  (2003). Amongst the measures recommended by the Committee is incorporation of the CRC into national law. According to the Committee incorporation should mean that the CRC is made part of national law so that it may be relied upon before a court or tribunal, with remedies available for violation of rights, and that it should be accorded a status superior to other national legislation or common practice.[ii] While views vary, it may be reasonably suggested that the prevailing view of incorporation reflects the Committee’s position, and in particular that incorporation connotes legal enforcement - even though this may be difficult to achieve in many jurisdictions worldwide.[iii] 

Children’s Rights in Wales

3. The Government of Wales Act 1998 (GOWA 1998) established the National Assembly for Wales (NAW) as a corporate entity with executive powers transferred from the UK Secretary of State. A de facto Welsh Assembly Government (WAG) emerged to take the lead on policy development and from the outset took a distinctive approach to children’s rights. In my view, a significant factor shaping the chid rights agenda in Wales was the limited scope of NAW powers during the early years of devolution. The NAW was denied full legislative competence but assumed powers in many areas of social policy affecting children, including: health, social care, and education. This meant that from the outset key decision-makers in Wales were focussed on social policy and social issues, something which continues as a feature of policy divergence between Wales and the UK Government.

4. The Government of Wales Act 2006 (GOWA 2006) replaced the GOWA 1998 giving the NAW competence to make primary legislation known as Assembly Measures in twenty policy areas, all of which were directly or indirectly relevant to children, e.g. health and health services, housing, education and training, the environment, and social welfare. The GOWA 2006 also formally established the Welsh Government as an executive body with powers to promote or improve the social, economic, and environmental well-being of Wales, including by introducing draft legislation. In 2009 the Welsh Government announced its intention to progress children’s rights in Wales by incorporating the CRC into domestic law through legislation. This was an audacious announcement as it was (and still is) in direct contradiction of the position of the UK government in relation to the CRC (as well as all other UN human rights treaties to which the UK is a State party). However, when the Welsh Government introduced the Rights of Children and Young Persons (Wales) Measure 2011 (the ‘2011 Measure’) to incorporate the CRC into Welsh Law it was politically uncontroversial.

5. While the GOWA 2006 puts legislation which is not compliant with the European Convention on Human Rights  (ECHR) beyond the competence of the NAW[iv] it does not provide any express competence to legislate on human rights, or children’s rights. A route to legislate was found in the NAW’s competence over the ‘well-being’ of children, which included ‘securing access to rights’.[v] (Recent developments in devolution mean it is now more straightforward for the NAW to legislate in the field of human rights – discussed below at para.14).

6. A particular issue relevant to incorporation of the CRC (or any other IHRT) in Wales is the fused justice system between England and Wales. As noted above (para.2), the prevailing view of incorporation should mean that an IHRT, in this case the CRC, is directly enforceable before national courts with remedies available to individuals whose rights are violated. At the time the 2011 Measure was introduced this would have been difficult to achieve as it would have led to asymmetry in the enforcement of children’s rights between Wales and England. A difference which would very likely have led to resistance from both the judiciary and the UK Government. Another crucial – and possibly the most significant – factor influencing incorporation of the CRC in Wales was the desire to connect policy decision-making to the reality of children’s lives in Wales. These factors led to rejection of an approach to CRC incorporation modelled on the Human Rights Act 1998, whereby a legal remedy is provided for violation of rights,. Instead stakeholders were in favour of legislation to incorporate the CRC in a manner which would promote a more holistic approach to CRC implementation focussed on influencing political and administrative decision-making.

7. The particulars of CRC incorporation in Wales is explained in the next section. What the experience of Wales confirms is that incorporating any IHRT necessarily requires consideration of the opportunities provided by devolution but also its limitations, as well as what incorporation is intended to achieve within a particular jurisdiction. Achieving a form of incorporation that works in specific devolved setting  may require departure from the orthodoxy on incorporation, and in some cases departure from what is recommended by a relevant Treaty Monitoring Body.

Incorporation of the CRC in Wales

8. The Rights of Children and Young Persons (Wales) Measure is primary legislation applicable only in Wales. It is the only general legislative measure of implementation of the CRC in the UK. It came into partial effect on 1^st May 2012, and has been in full effect since 1^st May 2014. The main legal device for incorporation of the CRC is set out in section 1 of the 2011 Measure. This requires the Welsh Ministers, when exercising any of their functions to have due regard to Part 1 of the CRC as well as select articles of its first and second optional protocols,[vi] both of which are listed as a schedule to the Measure. The 2011 Measure does not accord the listed articles superior status over any other factor which might be influential when Ministers exercise their functions, but instead they are made part of what must be taken into consideration when legislation or policy are being developed, or implemented. The due regard formula does not provide individual children with a right to action where their rights are breached. Instead, section1 of the 2011 Measure gives rise to a public law duty, the breach of which is actionable by way of judicial review. 

9. The due regard formula is borrowed from UK equalities enactments and cases brought under those enactments (now consolidated in the Equality Act 2010) explain how due regard should be applied in practice. In summary due regard means:  a decision-maker must ensure that they are properly aware of and informed about what must be considered before and at the time of making a decision; they must exercise the duty ‘in substance, with rigour and an open mind’ and should not conduct a mere ‘tick-box’ exercise; the duty should be integrated into the discharge of the public functions; and, it should be kept under review.[vii]  In application to the CRC in Wales this means, in short, the Welsh Ministers should be aware of and properly informed about any children’s rights that are engaged when they make decisions about legislation or policy, and will need to take these rights fully into account.

10. The 2011 Measure sets out other duties incumbent on Ministers intended to support the better implementation of children’s rights. Section 2 requires Ministers to publish a ‘Children’s Scheme’ (the Scheme) setting out the arrangements they have made (or propose to make) for the purpose of securing compliance with the duty to have due regard. Section 3 requires Ministers when making or revising this Scheme to have regard to the outputs of the Committee (reports, studies, recommendations, etc.), and to any other documents or matters which they consider to be relevant. Ministers are also required to consult with children and the Children’s Commissioner for Wales (CCfW) and any other person or body they consider appropriate before making or remaking the Scheme.[viii]  The making and remaking of the Scheme promotes an engagement between Ministers and stakeholders to support the development of  processes for effective implementation of children’s rights. Children’s capacity to participate in this engagement is enhanced by section 5 of the 2011 Measure which imposes a duty on Ministers to take appropriate steps to promote knowledge and understanding of the CRC and its optional protocols amongst the public, including children.  The first Scheme was made in 2012 then remade in 2014. Both the 2012 and 2014 Scheme include a commitment to introduce training for Welsh Government officials on the CRC, and to provide support for those working on policy affecting children to comply with the due regard duty.[ix] Both versions of the Scheme set out a Child Rights Impact Assessment (CRIA) to predict the impact of any proposals for legislation or policy on children’s rights, which in turn can lead to amendment to mitigate or remove any predicted negative impact.

The Impact of Incorporation

11. It can be said with confidence that the 2011 Measure has resulted in processes within the Welsh Government consistent with mechanisms recommended by the Committee in its General Comment No.5 (e.g. mandatory training for officials, CRIA). The 2011 Measure also underpins engagement between Welsh Government officials and civil society via a government coordinated Children’s Rights Advisory Group (non-governmental and academic sectors, UNICEF and the CCfW).  It is difficult however to comment on the impact of the Measure on outcomes for children due to the range of causative factors which might inform how children experience their rights. In a study in 2018 for the Equality and Human Rights Commission in Wales which I co-authored we focussed on the impact of the 2011 Measure to foster a policy culture where children’s rights are appropriately prioritised in high-level policy decision-making.[x] The research concluded:

• The 2011 Measure has resulted in greater visibility for children’s rights in policy processes undertaken by Ministers and their officials and has had a positive impact on the way policy is undertaken by the Welsh Government.
• The introduction of CRIA has had a positive impact to raise the profile of the CRC in policy development at Welsh Government level in Wales. However, the study  identified weaknesses in CRIA with potential to undermine its effectiveness, including capacity and resource issues, limited understanding of CRC obligations amongst officials, and a lack of participation by children.
• The 2011 Measure has introduced new opportunities for policy advocacy on behalf of children in Wales, including by legitimising the language of the CRC in policy discourse providing a foundation for stakeholders to engage with the Welsh Government about how to give effect to children’s rights.
• The 2011 Measure has introduced an expectation of compliance with the CRC, contributing a strong underpinning for child rights advocacy which has been exploited by, e.g. child rights organisations, the CCfW, and the EHRC.
• The free-standing duty on Ministers to take action to raise awareness and knowledge of the CRC in Wales (under s.5) has underpinned Welsh Government funding for initiatives and projects aimed at empowering children to take advantage of their rights.
• The above initiatives have resulted in new meaningful engagements between children and policy-makers.
• While the lack of a directly enforceable duty providing substantive protection of children’s rights may be a weakness of the 2011 Measure, there is little appetite amongst stakeholders for the legislation to be amended to introduce an enforceable duty. Instead, the expressed preferences were in favour of strengthening existing duties and associated mechanisms (e.g. CRIA).

12. Accountability for children’s rights is enhanced by section 4 of the 2011 Measure which requires Ministers to submit a periodic Compliance Report to the NAW on how they have complied with the due regard duty. The maximum period between these reports is five years (to coincide with UK State party reporting to the Committee), but this was shortened by the 2012 Scheme to two-and-a-half years. The 2018 study found:

• The Compliance report and the due regard duty provide new opportunities to hold Ministers to account for the way children’s rights are given effect in Wales.
• The 2011 Measure has established children’s rights as a new audit framework for government in Wales.
• Civil society (and in particular the CCfW) have been adept at using this framework to hold Ministers to account, e.g. in responses consultations on legislation or policy.

Human Rights in Wales: Ongoing Developments

13. The due regard approach has provided a model for other legislation in Wales to incorporate IHRTs, extending human rights obligations to lower tiers of government. The Social Services and Well-being (Wales) Act 2014 requires authorities and persons exercising functions under the Act to have due regard to the CRC as well as the UN Principles on Older People.[xi] The Additional Learning Needs and Education Tribunal (Wales) Act 2018 requires authorities exercising functions under the Act to have due regard to the CRC and to the UN Convention on the Rights Persons with Disabilities.[xii] These developments extend the reach of IHRT directly into services in areas directly affecting children, disabled people and older people.

14. The Welsh Government has signalled its intention to go further on incorporation of human rights, partly in response to fears for human rights protection in Wales under a Westminster Government which  is perceived as a hostile to human rights protections, in particular to the European Convention on Human Rights. Commencement of provisions in the GOWA 2006 in 2011enable the NAW to make ‘Acts of the Assembly’ in areas of devolved competence without seeking the consent of the UK Parliament (as had been the case with Assembly Measures). The Wales Act 2017 amended the GOWA 2016 to introduce a reserved model of devolution, and in so doing confirmed the NAW’s competence to legislate to promote human rights.[xiii]

15. Since the 2011 Measure was introduced Wales has become more self-assured as a jurisdiction. In 2018 the Counsel General for Wales asked (rhetorically) whether legislation in Wales should go further than the due regard approach and provide for enforcement of rights.[xiv] He spoke of a Human Rights Act for Wales. The possibility of different enforcement regimes in Wales and England under a fused judicial system, something which was seen as problematic when the 2011 Measure was introduced (above para.6), is now a real possibility.

16. A development in devolution likely to impact on human rights in Wales concerns the administration of justice. A recent report from the Commission on Justice in Wales concluded that the NAW had ‘passed distinctive legislation which has incorporated international principles of human rights’.[xv] The Commission concluded that justice should be determined and delivered in Wales in order to align with its distinct and developing ‘social, health and education policy and services and the growing body of Welsh law’.[xvi] The Commission recommended that Wales should have its own system of civil and administrative law,  something which could have profound  implications for human rights.[xvii]

Professor Simon Hoffman

30^th April 2020