10 December 2018
This article was originally published on 1 November 2018. It is being reposted ahead of the debate on International Human Rights Day in Plenary on 12 December 2018.
On Wednesday 7 November the Assembly will debate the impact of Brexit on equality and human rights.
The External Affairs and Additional Legislation (EAAL) Committee and the Equality, Local Government and Communities (ELGC) Committee have explored this issue over the past 18 months. This article summarises the committees’ joint views and recommendations (Gareth Bennett and Janet Finch-Saunders dissented), and the responses from the Welsh Government.
EU Charter of Fundamental Rights
After Brexit the UK will not have to comply with the Charter when making laws and administrative decisions in areas previously within EU competence, such as consumer protection or workers’ rights. The Charter contains rights beyond those in the UK’s Human Rights Act, and in particular it covers many social and economic rights, which are not well recognised in UK law. They include:
- a range of social and workers’ rights in Title IV, including the right to fair working conditions, protection against unjustified dismissal, and access to health care, social and housing assistance;
- a guarantee of human dignity (including bioethics), and
- a right to physical and mental integrity (including rights around personal data).
The committees were “unconvinced” by the UK Government’s assertion in its right-by-right analysis of the Charter that all Charter rights are already protected by UK domestic law. They agreed with the Equality and Human Rights Commission’s (EHRC) legal advice that “contrary to the [UK] Government’s analysis, the Charter has created valuable new rights, and extended the scope of existing rights, and could continue to do so if Charter provisions were incorporated into domestic law”. The committees asked the Welsh Government to “set out how it will ensure that Charter rights continue to apply in Wales” after Brexit.
The Welsh Government’s ‘Continuity Act’ would have required EU-derived Welsh law to be interpreted in line with the Charter of Fundamental Right, but after a deal was agreed with the UK Government to resolve a conflict over devolved powers post-Brexit, the Welsh Government committed to taking steps to repeal the legislation.
In his May 2018 letter, the First Minister told the committees that the Welsh Government had begun discussions with the UK Government “about entering into a Political Agreement which would endorse the existing framework of equal treatment legislation in force that applies in our nations”.
The First Minister told the committees in July that the Government “will work with the UK Government to seek assurances on individual rights in the coming months [and] will also continue to engage actively with the Equality and Human Rights Commission on these issues.”
The committees heard concerns from a range of witnesses about the loss of EU funding that is targeted at equality and human rights issues.
The Welsh Government said that “Wales currently receives £370m a year from the EU to invest in our 2014 – 2020 European Structural and Investment Fund Programme [which includes the European Social Fund (ESF) and the European Regional Development Fund (EDRF)]. […] Equal Opportunities and Gender mainstreaming is one of three crosscutting themes integrated into the 2014-2020 Programmes”.
Research by the Equality and Diversity Forum (EDF) highlights that objectives 8, 9 and 10 [of the EU Structural and Investment Funds Programme] relate directly to equality and human rights and are worth £4.15 billion in the UK between 2014 and 2020. The target groups for these three objectives are: young people not in education employment or training (NEETs), older people aged 50 or over, women, disabled and minority ethnic people, people with multiple complex barriers, offenders and ex-offenders.
The research found that the ESF budget amounts to £1.4 billion in Scotland, Wales and Northern Ireland. Around 60% of ESF-funded projects identifiably target people with one or more protected characteristic under the Equality Act 2010. It also found that more than half of ESF funds focused on employability, skills and experience.
The committees recommended that the Shared Prosperity Fund (which will replace EU funds across the UK) should be administered by the Welsh Government in relation to Wales to ensure that it is sensitive to local needs and inequalities. They also considered that the Fund should be targeted at tackling inequality and socio-economic disadvantage. The Finance Committee also recently recommended that the Shared Prosperity Fund continue to focus on poverty, equality and human rights after Brexit.
The First Minister agreed with ELGC and EAAL committees’ recommendation, stating that “only a Welsh designed approach will be sensitive to local needs and inequalities”.
Wales as a world leader
The committees explored ways that Wales could continue to go beyond minimum requirements of equality and human rights standards to strengthen protections after Brexit.
The Equality Act’s socio-economic duty has not been commenced in Wales (the power to do so now rests with Welsh Ministers). The duty would require public bodies to make decisions in a way that tackles inequalities of outcome caused by socio-economic disadvantage. The committees recommended that the Welsh Government outline its latest position on the introduction of the socio-economic duty, and noted that the duty has been enacted in Scotland.
In response, the First Minister said that: “we will be reviewing our position in the context of our Rapid Review of Gender Equality in Wales and exploring the matters that informed the Scottish Government’s decision to implement the duty”.
Witnessesv also called for further incorporation of international human rights treaties. Professor Simon Hoffman argued that the ‘due regard’ model used by the Rights of Children and Young Persons Measure and the Social Services and Wellbeing (Wales) Act could be used to require Welsh public authorities to pay due regard to other international treaties (for example, the International Covenant on Economic, Social and Cultural Rights (ICESCR), or the Convention on the Rights of Persons with Disabilities (CRPD).
The committees recommended that consideration should be given to the further incorporation of international human rights treaties in Wales. In May, the First Minister responded by saying that “the Well-being of Future Generations (Wales) Act will remain our principle legislative instrument in this regard”, and in July reiterated this by stating that the Act “will help ensure that equality and human rights are safeguarded in Wales”.
The UK would not have to implement EU laws that come into force after Brexit, some of which may enhance protection against discrimination. Professor Thomas Glyn Watkin described human rights protection in the UK on exit day as a ‘freeze-frame’, while protection in EU countries could increase at a faster rate than in the UK.
Disability Wales and RNIB Cymru highlighted a range of future EU disability accessibility legislation likely to be enacted after the UK’s exit that people in the UK will not benefit from, such as the EU Accessibility Act, the EU Web Directive and air and bus travel accessibility regulations.
The committees were concerned about how the UK and Wales will keep pace with EU equality and human rights laws after Brexit. The ‘Continuity’ Act would have allowed Welsh Ministers to make regulations introducing new legislation or modifying existing legislation so that Wales could keep pace with new EU legislation passed after the UK exits the EU.
The First Minister stated that “the Welsh Government will continue to work with the UK’s Equality and Human Rights Commission (EHRC) to monitor the progress of human rights and equality in Wales, taking note of developments in the EU and elsewhere [..] the Commission is best placed to assess developments in this regard”.
The committees also raised concerns that the right to equality in the UK is not protected by a constitutional bill of rights, which would limit the extent to which equality could be eroded or removed by Parliamentary legislation. EU law currently performs this ‘backstop’ function by ensuring that rights in the Equality Act cannot be removed or eroded (because they are required by EU law).
The First Minister stated that “there are no plans at present to provide for an additional, freestanding right to equality which might duplicate or cut across existing provision”. He went on to highlight that “we have begun discussions with UK Government, via the Government Equality Office (GEO, now within the Home Office) about entering into a Political Agreement which would endorse the existing framework of equal treatment legislation in force that applies in our nations, namely the Equality Acts 2006 and 2010 and secondary legislation made under those Acts”.
The ELGC Committee found that “in the month following the EU referendum, reports show that racist or religious abuse incidents recorded by police in England and Wales increased by 41% compared to the previous year.” The Home Office stated that “the increase over the last year is thought to reflect both a genuine rise in hate crime around the time of the EU referendum and also due to ongoing improvements in crime recording by the police.”
The committees recommended that “the Welsh Government update the Community Cohesion Plan before summer 2018 to take account of recent rises in hate crime and new challenges to community cohesion in Wales.” In July, the Leader of the House stated in plenary that the Government would be consulting on the new community cohesion plan ‘in the autumn’.
Read more about human rights in Wales in our previous blog post.