Where next for human rights in Wales?

Published 10/12/2021   |   Reading Time minutes

Today is Human Rights Day. On this day in 1948 the United Nations General Assembly adopted the Universal Declaration of Human Rights. This landmark document set out rights that everyone is entitled to - regardless of race, colour, religion, sex, language, political or other opinion, national or social origin, property, birth or other status.

Since then the UK and Welsh governments have signed up to a range of international human rights treaties. The most significant is the European Convention on Human Rights (ECHR), which protects the right to life, liberty, private and family life, the freedom of assembly and freedom of expression, among others.

These rights apply in the UK and Wales through the Human Rights Act 1998. The Act requires public authorities (like local authorities, health services and the police) to respect and protect these rights in everything they do. If breaches of the convention occur, individuals can challenge these rights through the courts.

As we mark this international anniversary, the pandemic has been a stark reminder that inequalities continue to exist in almost all areas of life.

There are also other developments which could have an impact on equalities and human rights in Wales, including leaving the European Union and a UK Parliament independent review of the Human Rights Act 1998.

A distinct Welsh approach to human rights

While human rights are not devolved, the Welsh Government has taken a number of steps to enhance and strengthen the rights of people living in Wales.

International human rights have been embedded in Welsh law through ‘indirect incorporation’ using the ‘due regard’ mechanism. In simple terms this means that duties are imposed on relevant authorities to take specified human rights into account when exercising certain functions.

There are three examples of indirect incorporation in Welsh law:

The Wales Specific Equality Duties (WSEDs) go further than the English Public Sector Equality Duty (PSED) and compel Welsh Ministers and listed public authorities to undertake Equality Impact Assessments (EIA).

Wales has also taken a lead in legislating for well-being through the Well-Being of Future Generations (Wales)Act 2015, which requires public authorities to think about the long-term impact of their decisions on equality.

A further duty for Welsh public bodies (like Welsh Ministers, local authorities, and health boards) started on 31 March 2021. The socio-economic duty under the UK Equality Act 2010 places a duty on certain Welsh public bodies to consider how their strategic decisions can improve inequality of outcome for people who suffer socio-economic disadvantage.

The Welsh Government has set out further human rights commitments in its Programme for Government.

Strengthening and advancing human rights

In January 2020 the Welsh Government commissioned research to examine options to strengthen and advance equality and human rights in Wales. The research identified a number of issues with the current legislative and policy framework on human rights and equality, including:

  • a lack of connection between human rights, equality and well-being policy and legislation and clarity about priorities and responsibilities;
  • a misalignment of timescales for planning and reporting on equality and well-being duties;
  • an ineffectiveness of well-being legislation to protect equality and human rights;
  • a lack of legally enforceable rights and an implementation gap between equality and human rights policy and people’s lived experience;
  • poor Equality Impact Assessments which are often viewed as a ‘tick-box’ exercise; taking place too late in the policy process; and failing to involve people in the assessment;
  • a lack of confidence in current monitoring mechanisms to properly reflect progress on equality and human rights; and
  • barriers for individuals who want to challenge how government and public bodies treat them, and to question how decisions are made about them.

A Human Rights Act for Wales?

The report includes 40 detailed recommendations to strengthen and advance equality and human rights in Wales; the key being the introduction of a Human Rights (Wales) Act.

The report recommends introducing primary legislation to give effect to international human rights in Welsh law and to make select international human rights part of Welsh law and enforced by a court or tribunal.

The report did not confirm which international human rights should be adopted, but suggested taking a similar approach to Scotland. The Scottish Government has established an independent taskforce to consider the options for introducing stronger forms of incorporation and legal accountability for non-compliance than is currently available through the ‘due regard’ approach.

The Senedd’s Equalities and Social Justice Committee heard in November that, if the Welsh Government does want to bring legislation forward in the Sixth Senedd, establishing a taskforce “is matter of urgency”.

You can watch the report authors’ evidence session with the Committee on Senedd TV or read the transcript.

Article by Claire Thomas, Senedd Research, Welsh Parliament