Joint Committee On Human Rights Appendices to the Minutes of Evidence


31.  Memorandum from the Wales Public Law and Human Rights Association

INTRODUCTION: THE ASSOCIATION

  The Association was established in July 1999. Its patron is Sir Michael Pill and its President is Sir John Thomas, formerly Presiding Judge of the Wales and Chester Circuit. Members are lawyers in private practice, members of the judiciary, public sector lawyers, academic members, trainee solicitors and pupil barristers.

  The Association holds between six and eight meetings each year, covering topics of both practical and academic interest. To date, meetings have been addressed by, amongst others, Dame Elizabeth Butler-Sloss DBE, President of the Family Division, Scott-Baker J, Lead Judge of the Administrative Court, Richards J, Presiding Judge of the Wales and Chester Circuit, and Professor William Schabas, Director of the Irish Centre for Human Rights. Where appropriate, proceedings are published in the Wales Law Journal.

  The executive committee of the Association comprises representatives of the Bar, solicitors, academic lawyers, and employed lawyers in local government and the National Assembly for Wales. The Association is aware of the position taken by the Welsh Assembly Government on the subject of this submission as set out in its written evidence to the Committee (EOC—06 01). Accordingly no part has been played in the preparation of this submission by any member who is an official of the Assembly.

A HUMAN RIGHTS COMMISSION FOR WALES

  The Association takes the view that

  1.  The establishment of a Human Rights Commission or Commissions for the United Kingdom should be included as an integral part of the programme of constitutional change which includes absorption of the European Convention on Human Rights and devolution to Scotland and Wales as well as Northern Ireland.

  2.  Without such a Commission implementation of that programme of constitutional change is rendered less effective than it would be with such a Commission.

  3.  It is consistent with the legal and political form of devolution to Wales for there to be a separate Human Rights Commission for Wales, and contrary to the progress of Welsh devolution for an England and Wales body to be established.

  4.  There are specific issues within Wales justifying a separate Commission rather than an England and Wales body with a Welsh limb.

  5.  Prior to any final decision being made about whether a Commission should be established and the form that it might take in Wales, there should be consultation within Wales on the lines of that carried out in Scotland.

  6.  Before a final position is taken by the Welsh Assembly Government there should be an opportunity for its thinking to be informed by a debate in plenary session following the consultation referred to above.

  These points are considered in greater detail below:

  1.  The establishment of a Human Rights Commission or Commissions for the United Kingdom should be included as an integral part of the UK Government's programme of constitutional change which includes absorption of the European Convention on Human Rights and devolution to Scotland and Wales as well as to Northern Ireland.

  The Association adopts the generally accepted understanding of the role of Human Rights Commissions, embracing:

    —  advisory functions, advising relevant tiers of government of legislative and other measures that need to be taken to protect and promote human rights;

    —  scrutiny functions, providing an independent scrutiny of policy and legislative proposals to ensure compatibility with human rights;

    —  monitoring implementation of international obligations in the field of human rights, in the UK including but not limited to the impact of the Human Rights Act 1998;

    —  promoting awareness and understanding of human rights through research, educational and other appropriate activities;

    —  support and advice for individuals in bringing claims alleging violation of their human rights.

  The Association notes that it is common in many States and regions which have legislated for the protection and promotion of human rights that part of the legislative scheme adopted is the establishment of a Commission or Commissions having all or some of these functions. There were particular reasons for the establishment of Commissions in Northern Ireland and in the Irish Republic but it is unsurprising that since 1998 the argument for such institutional support for implementation of human rights obligations has developed in Scotland, England and Wales. The development accords with experience in many other countries where such Commissions have played a key role in changing cultures, attitudes and behaviour, especially through exercise of the last two mentioned functions in the above list.

  2.  Without such a Commission implementation of that programme of constitutional change is rendered less effective than it would be with such a Commission.

  The functions of raising awareness and promoting enforcement of human rights are especially important under this heading. The Human Rights Act was heralded by a plethora of conferences and training activities directed at specialist groups and public services but the extent to which a human rights culture has truly been absorbed, with human rights considerations informing policy development, operational decisions and case work is much more difficult to measure.

  The existing specialist Commissions on gender equality, race and disability carry out promotion and enforcement functions in those specific fields. They do not however cover wider human rights issues which spring from the European Convention on Human Rights and from other international obligations in the field of human rights which are not yet incorporated into domestic law yet ought properly to be taken into account. Examples of such wider human rights issues include freedom of expression and assembly, the right to life, respect for private life etc. The Association takes the view that the reasons for establishing the specialist commissions apply equally to the wider category of human rights and that a Human Rights Commission would render true absorption of human rights into public policy and practice far more effective.

  3.  It is consistent with the legal and political form of devolution to Wales for there to be a separate Human Rights Commission for Wales, and contrary to the progress of Welsh devolution for an England and Wales body to be established.

  Section 107 of the Government of Wales Act 1998 makes human rights a matter of vires so far as the National Assembly is concerned. The position is not the same for Westminster legislative acts, nor does the prohibition in section 6 of the Human Rights Act necessarily produce the same legal effect for Whitehall government departments exercising ministerial functions. There are therefore different strictly legal considerations that apply to action taken by the National Assembly, suggesting a potentially different role or at least a different emphasis for a Human Rights Commission for Wales when carrying out advisory and scrutiny functions in relation to policy and legislative proposals.

  Section 108 of the Government of Wales Act, which concerns other international obligations, operates differently from section 107 but also constitutes a constraint on Assembly action. As mentioned above there are international obligations in the field of human rights which, while not incorporated into domestic law, influence policy development and decision making because of the obligations of the UK at the level of international law. No independent body has specific remit to advise either the Assembly or a Minister of the Crown on the compatibility of Assembly action with this wider collection of international obligations. In relation to human rights obligations a Human Rights Commission for Wales might have a role in the effective operation of this provision, facing in this regard two ways—both towards the Assembly and towards Whitehall. Again, there is no English equivalent to this potential role.

  Section 120 of the Government of Wales Act 1998 should also be considered. It imposes on the National Assembly for Wales a particular responsibility to ensure that its functions are exercised "with due regard to the principle that there should be equality of opportunity for all people". This goes wider than the remit of the existing specialist commissions and certainly embraces the wider concept of discrimination under Article 14 of the European Convention on Human Rights. A Human Rights Commission for Wales could play a useful part in the "arrangements" made by the Assembly under section 120, performing an independent advisory, information and scrutiny role. Again, this is a uniquely Welsh dimension to the consideration of the role and functions of a Human Rights Commission. No such overarching provision as section 120 exists in relation to Whitehall government departments.

  Accountability of Welsh public bodies: Most "public authorities" in Wales for the purposes of the Human Rights Act are now accountable to the National Assembly for Wales rather than to Whitehall Departments. In various fields in which the Assembly exercises functions there is, in accordance with the purpose of devolution, a distinct and growing policy agenda addressing the scope and delivery of services of Welsh public authorities. Different considerations of scale, culture and political priority apply. This in part accounts for the establishment of a Children's Commissioner for Wales and for other Wales-only supervisory functions such as those exercised by the Commissioner for Local Administration in Wales under the Local Government Act 2000. It would be wholly consistent with these trends for a Human Rights Commission for Wales to be established. It would be inconsistent with these trends for a Commission to be established for England and Wales jointly. It is submitted that the existing commissions on gender equality and race, the establishment of which preceded devolution to Wales, are for that very reason less relevant precedents than those institutions that have been established since the Government of Wales Act 1998 was passed. The legislative base for the Disability Rights Commission only just postdates the Government of Wales Act, and it should not necessarily be regarded as the appropriate model for the much broader remit of a Human Rights Commission.

  The progress of Welsh devolution: Though the Association recognises this next point is essentially a matter for political judgment, it is submitted that the worst scenario would be the creation of a Commission for England and Wales while Scotland and Northern Ireland have their own Commissions. This position would tend to bolster the view that devolution to Wales is still perceived by the UK Government, and is accepted by the Welsh Assembly Government, as a lesser form of devolution, and the Welsh case for separate political and institutional development of lesser importance than that in Scotland and Northern Ireland.

  4.  There are specific issues within Wales justifying a separate Commission rather than an England and Wales body with a Welsh limb.

  The Association endorses what is said in the written evidence submitted to the Committee by Katherine Williams of the Centre for Welsh Legal Affairs, University of Wales, Aberystwyth, in this regard. In particular:

    —  (a)  There are specific legal issues, sufficient to warrant a distinct statutory remit for a Human Rights Commission for Wales, keyed in to the structures of devolved governance in Wales. These include the matters mentioned under point 3 above but the Association would also endorse Ms Williams' point that specifically Welsh culture and political perspectives will come into play in considering the "margin of appreciation" likely to be accorded in case of any human rights challenge to an act or omission of a Welsh public authority.

    —  (b)  There are specific issues in public policy and provision which are likely to generate a distinct agenda for a Human Rights Commission for Wales in contrast to its counterpart in other parts of the UK. These include the use of the Welsh language in law and administration, particular issues of access to justice and the particular structures of regional and local governance and service provision.

    —  (c)  Human rights awareness in Wales appears to be poor. The lack of a Welsh body with responsibility in relation to human rights may be in part the cause of this, and it would be a pity if it also became the effect of it, as the first paragraph of the National Assembly's written evidence seems to contemplate![64] The point is also made by Luke Clements and Sarah Spencer in their article "A Human Rights Commission for Wales?" in (2001) Wales Law Journal 132 (at page 137):

    "There is a paucity of collated information on the human rights situation in Wales. This no doubt reflects, in part, the absence of any statutory or voluntary body responsible for monitoring the situation; and the fact that statistics for England and Wales are frequently presented together."[65]

  Furthermore, anecdotal evidence tends to confirm that there is in Wales a dearth of knowledge and awareness of human rights on the part of many people who ought to benefit from assertion of those rights. At the very least this suggests that further government support for raising such knowledge and awareness would be appropriate. As already canvassed, promotion of human rights awareness is one of the key functions of a Human Rights Commission, but the process might be started by encouraging public debate on the need for such a Commission.

  5.  Prior to any final decision being made about whether a Commission should be established and the form that it might take in Wales, there should be consultation within Wales on the lines of that carried out in Scotland.

  Building on the last point, the Association would urge the National Assembly to follow the example of the Scottish Parliament and undertake a consultation exercise to establish the views of the public and interested organisations in Wales on whether a Human Rights Commission is needed and if so whether a Wales-only body should be created.

  The National Assembly has undertaken a wide range of consultations in relation to policy development and the creation of new institutions, including the establishment of the Children's Commissioner for Wales. It is somewhat surprising that the issue of a Human Rights Commission is not being accorded the same treatment, especially in view of the entrenchment of human rights obligations in the Government of Wales Act itself.

  In the course of such consultation the National Assembly would also begin the important process of raising awareness of wider human rights within Wales, whatever the outcome of the process in terms of the establishment or otherwise of a Commission.

  As a result of such consultation it would be possible to support or disprove the statement of the Welsh Assembly Government that "there does not appear to be (as yet) a substantial body of public opinion in Wales in favour of a Human Rights Commission"[66] Without such consultation the Association submits that there is a danger that the very problem (lack of consciousness) is being given as the reason ("no one wants it") for not providing a solution.

  6.  Before a final position is taken by the Welsh Assembly Government there should be an opportunity for the thinking of its Ministers to be informed by a debate in plenary session following the consultation referred to above.

  Following consultation it would seem appropriate for the Assembly as a whole to have the opportunity to debate the merits of a Human Rights Commission for Wales. It is an issue which seems likely to transcend party political boundaries and on which the Welsh Assembly Government has declared itself at least in part agnostic. The topic seems therefore to be particularly appropriate to be the subject of a fully inclusive debate involving the whole Assembly, informed by the result of external consultation.

  After such consultation and such debate, whatever the outcome, the issues would have been aired and a position reached in accordance with the Assembly's declared aims of inclusive, participative policy development.



64   EOC-06 01 (page 6). The lack of public debate or press interest is given as evidence of no "substantial body of public opinion in Wales in favour of a Human Rights Commission" and justification for Assembly Ministers following the UK Government in keeping an open mind on the question whether any Commission is required at all, be it for England and Wales or Wales only. Back

65   This article is based on a paper presented to an Institute of Public Policy Research seminar in Cardiff in January 2000, chaired by Val Feld AM, and referred to in paragraph 1 of the document mentioned in footnote 1 above. Back

66   See footnote 1. Back


 
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