(Title Image: Mark Lostracci under Creative Commons Licence CC-BY-2.0)
Last but not least in this series on the constitution and independence is the question of precisely how to enshrine basic rights in Welsh law.
There are at least four options, with the ECHR likely being the starting point:
1. Carry-over the existing Human Rights Act 1998 and Equality Act 2010 (Part IX)
The simplest and easiest thing to do – and the default position – is to carry forward pre-existing UK laws (assuming they’re not repealed before independence). There may need to be some minor amendments on how the acts would be enforced (I come to that later), but other than that things would remain unchanged from what they are now.
If any additional rights need to be added, or existing rights and duties need to be reviewed, then as under an unwritten constitution (Part I) it would be as simple as changing the law – meaning the power to do so would rest solely with the Senedd (with the courts interpreting any of their changes).
2. Enshrine the Universal Declaration of Human Rights and/or ECHR (Part IX) directly in a Welsh Constitution
There isn’t that much difference between this and carrying over the Human Rights Act (because it enshrines the ECHR in law anyway). In this case, it would be done word-for-word in the constitution itself. Some of the clauses in the Human Rights Act and Equalities Act may no longer apply or be left to interpretation by the courts.
The Senedd wouldn’t be able to make changes except through a full constitutional amendment (Part VIII), though as it deals with established international law, they might not be able to make any changes.
3. Draft a bespoke Bill of Rights/Rights Charter
Under this option, the Bill of Rights would be separately drafted and either included within the text of the constitution itself or take the form of a completely separate document.
The options for drafting a bespoke Bill of Rights would likely be similar to that of the constitution itself (Part IIIa) – closed convention, open convention, constitutional assembly, citizens’ assembly – each with their own advantages and disadvantages.
The ECHR would probably be the starting point as for actual rights anyway, but a bespoke Bill of Rights would allow new clauses and rights to be included or more clearly defined to address clashes between different rights (Part X) and rights of the future (Part XI).
Like the constitution itself, the Bill of Rights could be subject to a referendum before being ratified.
4. Draft a Welsh equivalent of the Human Rights Act
Instead of having a “Bill of Rights”, drafting a Welsh rights law would place control with the Senedd and we would be able to tailor it to suit our needs and changing circumstances. Again, the starting point would likely be the ECHR, but it may be a wasted effort if the final law ends up being almost exactly like the Human Rights Act and Equality Act anyway.
Upholding & Policing Basic Rights
The responsibility for upholding, interpreting and policing basic rights would likely remain with the judiciary (Part VII) – specifically a Supreme Court.
As long as the ECHR was enshrined in Welsh law in some way, then human rights cases could still be heard in Wales (as under the existing Human Rights Act), with only the most serious cases going to the European Court of Human Rights in Strasbourg (Part IX).
In terms of educating the public about their rights, presently this is done by the Equality and Human Rights Commission – which already has an office in Cardiff. At a UK level, the Commission received direct government funding of around £18.7million as of 2019 (pdf – p106) and employed 189 people.
Since devolution, Wales has moved towards having a single named person acting as an advocate in a particular area of rights and equality. This includes the Public Services Ombudsman, Children’s Commissioner, Older People’s Commissioner, Welsh Language Commissioner and the Future Generations Commissioner. There has also been discussion in the Senedd about establishing a Disability Commissioner and a Veteran’s Commissioner.
Creating a commission the same size as the office of the Future Generations Commissioner – which would include advisory committees looking at different areas of rights policy – might cost (based on the Commissioner’s financial report for 2018-19 – pdf) around £1.6-2million and employ between 30-40 people.
There’s also the option of rolling the Children’s Commissioner, Older People’s Commissioner and Future Generations Commissioner into a single “rights champion” role (“Equality, Rights and Future Generations Commissioner”). They would serve a single 7-year term and would be appointed by the Senedd. If the roles were combined then there may be a cost saving.
Many third sector organisations and think tanks in Wales act as advocates for rights and equality in given areas too (BAWSO, Stonewall, Chwarae Teg, Disability Wales, Shelter, Citizens Advice, Bevan Foundation) and there’s no reason why that wouldn’t continue, nor preventing them from playing a key role in shaping the constitution itself on behalf of clients.
It goes without saying that the Senedd would play an important scrutiny role too and MSs would arguably set the overall tone for where rights go through their own personal behaviour and attitudes, as well as those of their respective political parties.