A Welsh Constitution XI: Future-proofing Basic Rights

(Title Image: laptopmag.com)

Almost there….

This penultimate piece looking at options for a future Welsh Constitution considers “rights of the future” which could, with debate, be added on to the basic rights included in the European Convention on Human Rights (Part IX) and other major international rights agreements.

A state should always be judged by how it treats its least fortunate and drafting a new constitution would be an opportunity to set a floor for living standards. While people should have a significant measure of responsibility for looking after themselves, there’s no reason why the state’s responsibilities to the fundamental day-to-day wellbeing of its citizens shouldn’t be set out either, particularly if you consider a constitution to be a “contract” of sorts.

This could include:

  • A right to access the basics of life: food, water, energy, education, healthcare and necessary social services.
  • A right to shelter (Radical Wales: A Home for Everyone).
  • A constitutional obligation for the state to prevent destitution and/or provide security for people facing unemployment, low income, old age, sickness, disability and homelessness, as well as any other circumstances which are beyond the control of an individual and which negatively affects their livelihoods or quality of life.
  • A constitutional obligation that all workers are paid fairly for their labour (possibly enshrining a living wage in the constitution), including protection from unfair dismissal and unsafe working environments.

This would mean the Welsh Government would be obliged to provide or ensure the above, but with enough leeway as to how to deliver it on the ground – which would be down to politics.

For example, forced evictions without finding alternative housing for the evictees or discharging prisoners or ex-service personnel onto the streets would essentially become illegal. However, a homeless shelter could be defined as upholding a right to shelter, as would going further and providing homes to everyone.

If you want further examples, a food bank could be (strictly) interpreted as upholding a right to access food, while “preventing destitution” could range from a rudimentary welfare system like jobseekers’ allowance right through to a basic income.

The usual definition of this would be freedom of movement – and that’s generally a guaranteed right anyway. This could be expanded to become a rights-based approach to transport and mobility (Radical Wales: Free Public Transport).

This would include a right to accessibility (enshrining things like Disability Discrimination Act requirements for public transport in the constitution) and free access to publicly-owned land/”right to roam” (unless restricted in law as a designated site, like a military base).

Additionally, there could be a right to – barring human error – move about safely within the law and without being presented with unnecessary barriers.

It could become unconstitutional in principle, for instance, to favour motorised traffic over cycling and pedestrians (i.e. by maintaining 30+mph speed limits in built-up areas) unless otherwise impractical to do so. Another example would be withdrawing the only public transport services in a given area being unconstitutional.

There’s been a lot of debate over the last few years as to whether internet access should be a basic right. Given how so many services are moving online-only, the case for it being a right is open and shut.

In 2016, the UN Human Rights Council managed to get a resolution passed declaring internet access a basic right and to be interpreted as such concerning the Universal Declaration of Human Rights:

“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”
– Article 19, Universal Declaration of Human Rights

Further debate would be needed on whether this should extend to net neutrality/open internet – that Internet Service Providers (ISPs) should treat all internet traffic equally, meaning they can’t make access to certain content exclusive or otherwise tier internet access (other than through hardware such as fibre vs wire broadband).

It may be a mistake to focus only on internet services though, as many people may not be able to afford it or can’t access the right infrastructure. To solve that problem you could make it a constitutional right for everyone to have access to internet infrastructure at a minimum standard set in law.

So it could become unconstitutional to throttle internet connections in Wales, but it doesn’t mean every occupier of a building would have a right to wired access (as satellite broadband is available pretty much everywhere). Neither would it mean a right to access the internet at home for free 24/7, though people could have a right to access the internet for free in designated public buildings (railway stations, libraries, post offices etc.).

The constitution could also require the government to set minimum standards in other forms of interpersonal communication including postal services, public service broadcasting as well as a requirement to provide an offline option for accessing essential public services (i.e. physical bank branches would need to be provided in some form, paper applications would need to be available on request at least).

The European Union’s Charter of Fundamental Rights (Article 8) includes protections, and a requirement for consent, over the use of personal data. While linked to a right to privacy, in the EU this evolved to become the General Data Protection Regulation (GDPR) – both of which will cease to apply, in principle, to the UK at the end of the Brexit transition period.

That said, according to the Information Commissioner the UK intends to enshrine the GDPR in UK data protection laws (pdf – p2).

It should be relatively straightforward to include a clause similar to Article 8 in a Welsh Constitution, with a more detailed data protection law – whether a continuation of UK data laws or a bespoke law – being drafted by the Senedd to give it legal effect and to set out the details of how it would be enforced..

Similarly, a general principle of open government and public access to public documents could be included in a Welsh Constitution. The exemptions would likely be similar to those in the Freedom of Information Act: national security, diplomacy, official secrets, to prevent crime and to protect individuals from being identified without their consent.

The right to challenge cases where public bodies have refused to disclose information in the courts – with a Media Commission(er) perhaps taking on the current role of the UK Information Commissioner – could be included too.

See also – Life, Ethics & Independence VI: Genetic Engineering; Life, Ethics & Independence VIII: Cloning

With genomic medicines and genetic screening starting to come into their own, as well as controversies over the use and retention of DNA by the police and security services, this issue is probably going to become more important over the next decade.

While genetic medicine has the potential to completely transform healthcare – and potentially make some otherwise incurable conditions treatable – there’s a darker side to it. At the most superficial level, this hands untold power to pharmaceutical companies who may or may not have the public interest at heart.

Further down the rabbit hole, there are issues around using genetic engineering to practice eugenics which, indirectly, could bring into question the ethics of genetic screening – for example, genetic screening increasing the abortion of foetuses with non-terminal but life-limiting conditions like Down Syndrome (which has nearly been eradicated in Iceland).

The EU’s Charter of Fundamental Rights does protect from discrimination based on genetic features,  bans eugenics and bans reproductive cloning. After Brexit, that won’t necessarily apply in the UK anymore and we have admitted eugenicists advising the UK Government.

A ban on eugenics at the very least would be a wise clause in the constitution, as would giving people similar controls over their genetic code as we do with personal data.

See also – Life, Ethics & Independence IX: Robots & Cyborgs

It’s still too soon to consider this question while nearly all efforts to create human-like artificial intelligence/robots have to this point been largely unsuccessful.

When the technology and programming reaches a point where artificial intelligence attains a measure of sentience – self-awareness and an ability to make decisions autonomously – then does it/do they become a person (and subject all the rights and responsibilities that come with that), or remain a machine/property?

The worst-case scenario could see the creation of new forms of slavery and discrimination and the situation becomes even more complicated with augmented humans/cybernetics. There would also be questions about how to manage the personhood of sentient artificial life – for example, a ban on AI resembling humans, a ban on creating AI that resembles a child and a ban on the use of AI in weaponry. More immediately, there are issues of liability when it comes to accidents involving automated systems, like automated cars.

These questions may well be too big for Wales to deal with by ourselves. The UN and OECD are in the process of developing treaties and agreements on the ethics of artificial intelligence. It may well be appropriate, even essential, that whatever outcomes they propose are included in a Welsh Constitution.

At the time it was introduced I said the original Wellbeing of Future Generations Bill was a proto-constitution:

“You could, in a twisted way, interpret this Bill as being an embryonic written Welsh Constitution. It sets out clear long-term goals and establishes a set of core principles ‘the Welsh state’ will be obligated to work towards.

 

“However, while constitutions and long-term goals are nice, they’re not policy and they often don’t warrant legislative measures.”
– Oggy Bloggy Ogwr, 13th July 2014

Beyond the Future Generations Act, with climate change and decarbonisation being key issues to address, expanding the terms and clauses of a possible future Welsh Constitution to consider the human impact on the environment – not just on each other – is a must-have.

The majority of nation-states in the world either fully constitutionally protect a healthy environment or have a passing mention of protecting the natural environment in their constitutions. As usual, it’s not a case of saying you’re going to do something, but actually doing it and it’s safe to say that humanity isn’t living up to its self-appointed stewardship responsibilities.

The Future Generations Act hasn’t yet lived up to the potential it was touted as having either. The goal has been to put long-term sustainable development at the heart of public decision-making, but on the ground it’s questionable whether it’s made any real impact beyond statutory wellbeing goal assessments within public authorities – literally a tick box exercise.

You can point towards decisions such as abandoning the Newport bypass, a presumption against coal mining permits and fracking, expansion of free childcare and a desire to eliminate rough-sleeping as examples of the Act influencing policy. But there have been so many other decisions at a local and national level which contradict the Act’s goals, or even circumstances where the Act has been outright ignored or bent to suit a particular set of circumstances when different goals clash.

Enshrining the core elements of the Future Generations Act in a constitution – the wellbeing objectives, a statutory sustainable development responsibility for public authorities, the requirement for a future trends report and an accountable office holder (not necessarily a dedicated Commissioner) – should be straightforward.

But it could be built upon:

  • Expanding or reframing the wellbeing objectives to match/include the UN’s sustainable development goals (though some would be otherwise dealt with in other parts of the constitution/Bill of Rights).
  • The impact of human development and natural resource extraction on the ecology, hydrology and environmental health of Wales has to be a material consideration in law and mitigated against wherever possible.
  • A right to keep companion animals, livestock and working animals subject to legal restrictions (legally allowing things like pet licences, restrictions on breeding and sale etc.).
  • Non-domesticated/wild animals can’t be kept, traded or used for entertainment purposes unless there’s a proven scientific, educational, veterinary/zoological or conservation need, subject to the law.
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