Wales has international obligations. These are duties and commitments which the UK has agreed, or rules which apply universally. International obligations are commonly found in written agreements (“treaties”) between states or international organisations.
Not only does the devolution settlement require that Welsh Ministers comply with international obligations, but successive Welsh Governments have incorporated high-profile treaties that align with their ambitions into Welsh law.
This article traces Wales’ approach to adopting treaties and explains how the devolution settlement works to ensure that actions taken by the Welsh Government remain compatible.
Devolution and international obligations
The UK Government negotiates and enters into international obligations on behalf of the four nations. The devolved governments and legislatures must comply with these and are responsible for their implementation in devolved areas.
The devolved legislatures can also incorporate treaties directly into their domestic law, a practice recently affirmed by the Supreme Court. The judgment is confirmation for the Welsh Government and the Senedd, which have garnered international recognition for their adoption of high-profile treaties into Wales’ constitutional fabric.
Wales’ approach to adopting treaties
Successive Welsh Governments have adopted many important treaties as the basis for their policy-making, such as the United Nations’ (UN) Paris Agreement, its Refugee Convention and many human rights treaties. Use the drop-down menus below to see two examples.
Wales became the first UK nation to make the UN’s Convention on the Rights of the Child (UNCRC) part of its domestic law. This places a duty on Ministers to have due regard to the UNCRC when developing or reviewing legislation and policy and to ensure that people in Wales know about, understand and respect the rights of children and young people.
Wales’ Wellbeing of Future Generations Act 2015 adopts the principles of the UN’s Sustainable Development Goals (SDGs) and partly inspired the UN to create a Special Envoy for Future Generations. The Act requires every policy, action, initiative and piece of legislation to be designed and delivered through the lens of its sustainable development principles and seven well-being goals.
Welsh Government plans to adopt two UN treaties
The current Welsh Government intends to incorporate the UN Convention for the Elimination of all forms of Discrimination against Women and the UN Convention on the Rights of Disabled People into Welsh law.
The aforementioned Supreme Court ruling relates to the incorporation of two treaties into Scots law - the UNCRC and the European Charter of Local Self-Government. The court stated that incorporating the treaties was a matter for the Scottish Parliament, with which it did not take issue.
The court concluded that certain provisions of the Bills used to incorporate the treaties fell outside of the legislative competence of the Scottish Parliament. For more information, see a report provided to the Senedd’s Legislation, Justice and Constitution Committee (section 8.3).
Welsh Ministers must comply
Welsh Ministers must comply with the UK’s international obligations. The First Minister explains that Ministers:
[A]re required to take into account international obligations when making decisions, they could face Judicial Review or action from the Secretary of State for failing to do so.
A number of mechanisms exist to ensure that actions taken by Welsh Ministers are compatible. Use the drop-down menus below to learn more.
The UK Government’s Secretary of State has powers to:
- direct Welsh Ministers to take action to comply with any international obligation; or…
- direct them not to take action if it would be incompatible; or
- revoke subordinate legislation made by Welsh Ministers if it is considered to be incompatible with international obligations, or in the interests of defence or national security.
These powers are contained in section 82 of Government of Wales Act 2006 (GoWA), which has never been invoked.
The devolution settlement is silent on the position of Welsh Ministers in the event that the proposed actions of the Secretary of State are considered to be incompatible with international obligations.
Welsh Ministers, including the First Minister, and Counsel General, are specifically prohibited from taking action that is incompatible with the rights of the European Convention on Human Rights (ECHR). This duty can be found in section 81 of GoWA. Reform of the Human Rights Act 1998, which incorporated the ECHR into domestic law, is currently being considered by the UK Government.
It is within the Senedd’s competence to assist the UK Government in respect of international obligations and international relations. This can be found in paragraph 10(3) of Schedule 7A to GoWA.
The First Minister describes how this works in correspondence regarding the UK/Switzerland Convention on social security coordination. The UK Government entered into the agreement, which covers areas within the Senedd’s competence. The Convention requires implementation and compliance by the Welsh Government and for Welsh Local Health Boards to deliver the healthcare as per the Convention’s terms.
The Welsh Government’s Ministerial Code places a duty on the Welsh Ministers to comply with international law and treaty obligations in paragraph 1.3.
Senedd scrutiny of international obligations
The Senedd routinely considers the impact of international obligations across a broad range of issues, including Brexit, climate change and refugees.
It also has two dedicated processes to assess their impact. Use the drop-down menus below to learn more.
Senedd committees scrutinise treaties via the Senedd’s dedicated process. To date, they have considered the impact on Wales of over 130 treaties on trade, elections, fisheries, ports and more.
You can track this process for trade and non-trade agreements on the Senedd’s website.
Common frameworks are agreements between the UK’s four governments setting out how they will work together in some areas previously governed or coordinated at EU level, such as air quality, food safety and cross-border health threats.
Senedd committees consider how international obligations are taken into account by each framework and how they provide for the governments to work together on the negotiation and implementation of future international obligations.
Article by Sara Moran, Senedd Research, Welsh Parliament