In Wales a very different, values-led conversation on human rights has evolved over the last 15 years, one which exists in stark contrast to debates in England. Legislative initiatives such as the Rights of Children and Young Persons (Wales) Measure 2011 (incorporating the UN Convention on the Rights of the Child (UNCRC) into Welsh law) and the Well-being of Future Generations (Wales) Act 2015 reflect efforts to embed these values within Welsh law and public decision-making.
More recently, attention has turned to whether additional international human rights treaties might be given legal effect in Wales. Although treaty-making remains reserved, the devolution settlement permits the Senedd to legislate to observe and implement international obligations within devolved areas. Against this backdrop, research commissioned by the Welsh Government recommended improving the coherence of existing human rights, equality and well-being frameworks, and advanced the case for a Human Rights (Wales) Act.
A Legislative Options Working Group (LOWG) was later established to examine how human rights ambitions might be translated into further legislation. The Group quickly recognised the unsettled nature of the human rights landscape in the UK and internationally. It approached Welsh legislation as a means for securing “as durable a baseline of protection for rights as is constitutionally possible, so that rights are more relevant and accessible” and less exposed to short-term policy change. LOWG was asked to consider options for incorporating the UN Convention on the Elimination of All Forms of Discrimination Against Women and the UN Convention on the Rights of Persons with Disabilities into Welsh law.
The Group’s report draws on a widely accepted typology for incorporating international human rights into legislation, explaining that incorporation is not a single legislative technique. It examines the constraints of the current devolution settlement in relation to human rights and addresses the various forms that rights incorporation might take in Wales. Alongside legislative models, LOWG also examined how treaty obligations are implemented in practice, how progress is monitored across government, and whether existing routes of redress, such as through institutions of administrative justice(courts, tribunals, ombuds etc), provide effective remedies.
What happens when incorporation meets devolution
The methodology LOWG has developed is a key contribution to a debate which is often overly generalised.
Health is devolved. Education is devolved. Housing is devolved. Viewed from that perspective, the incorporation of, for example, economic and social rights can appear relatively straightforward. However, LOWG adopted a more detailed approach, analysing treaty provisions using a set of templates, tested through pilot exercises and discussed these with legal and policy experts.
The initial phase involved article-by-article analysis of both the UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the UN Convention on the Rights of Persons with Disabilities (CRPD). One template focused on identifying the purpose and required outcomes of each provision, while another examined practical implications for implementation. The Group framed its analysis around key questions: whether treaty provisions relate to matters reserved to the UK Government and Parliament (beyond a loose or consequential connection, which would be permitted); whether exceptions to reservations might apply; and whether treaty provisions could be adapted to fall within devolved competence.
They found the reservation of ‘equal opportunities’, which reserves most law relating to discrimination to the UK Parliament, to be a major obstacle. LOWG’s analysis found that many provisions of both CEDAW and CRPD relate to this reservation because they are concerned with promoting equality and preventing discrimination. There are, however, some relevant exceptions to the reservation.
The Senedd can legislate to require devolved Welsh authorities to have ‘due regard’ to equality considerations when carrying out their functions. It may also be able to impose additional equality-related obligations in devolved areas, provided these obligations build on, rather than modify, the Equality Act 2010. While the Group rejected this ‘due regard’ approach, it was more positive about a second, so-called, ‘going beyond’, exception. Its article-by-article analysis suggested that, while some treaty provisions would remain outside competence, others might be capable of at least partial incorporation where they supplemented existing equality protections in devolved areas without modifying the Equality Act 2010. LOWG expressed regret that it had to reject direct treaty-text incorporation because the extensive competence carve-outs needed would leave only a fragmented version of the treaties in Welsh law, requiring removal of several foundational provisions.
Some examples of the Group’s analysis are illustrative. Article 10 of CEDAW concerns equality in education. Education is devolved, but the article engages the equal opportunities reservation and overlaps with existing protections for education in Article 2 of Protocol 1 of the European Convention on Human Rights (ECHR). It would be beyond the Senedd’s legislative competence to introduce laws which modified either the Equality Act 2010 or the Human Rights Act 1998 (incorporating the ECHR).
Taking another example, Article 19 of the CRPD concerns independent living and inclusion in the community. The article aligns closely with devolved responsibilities for social care and community support but also intersects with UK equality law and aspects of the social security framework that remain reserved.
The UK Supreme Court’s decision in the UNCRC (Incorporation) (Scotland) Bill Reference Case further complicates the situation. The Scottish Bill would have required legislation to be interpreted, so far as possible, consistently with children’s rights under the UNCRC and would have enabled courts to make declarations of incompatibility in relation to legislation that could not be read compatibly. The Supreme Court held that these provisions exceeded competence because they would affect the legal operation of Acts of the UK Parliament, including Acts operating within devolved subject matters.
The Government of Wales Act 2006 contains a similar proviso that devolution does not affect the power of the UK Parliament to make laws for Wales. Westminster legislation therefore remains outside more general overarching devolved human rights compatibility and interpretive duties, although devolved legislatures retain the ability to amend Acts of the UK Parliament (in devolved areas) and to attach rights protections through those amendments. The Supreme Court’s approach to devolved human rights provisions in general seems to favour Westminster, as Stuart Wallace has previously examined on this blog.
Enforcement presents a further difficulty for Wales. Responsibility for most aspects of the justice system remains reserved, as does the single legal jurisdiction of England and Wales. Attempts are therefore being made to strengthen rights protection without possessing full control over many of the institutions through which rights are ordinarily enforced.
Incorporation beyond treaty text
Direct treaty-text incorporation occupies a privileged position within incorporation debates particularly because it is usually coupled with clear routes to judicial enforcement. However, another reason is that directly reproducing treaty text provisions and making these binding on public bodies provides a recognised benchmark against which government action can be assessed. Direct incorporation is usually presented as the preferred model because it gives domestic effect to treaty rights whilst maintaining a close connection with international standards and case law.
The Group, however, has attempted to introduce a further concept of ‘bespoke Welsh rights’, considering whether rights derived from international treaties might be drafted specifically for operation within Welsh law. LOWG’s examination of CEDAW and the CRPD found that competence constraints may require some treaty provisions to be qualified, modified, or excluded entirely. Where this occurs repeatedly across a treaty, the resulting domestic legislation may become unworkable.
For LOWG, the attraction of a bespoke approach is that it may provide a more coherent legislative framework than a heavily redacted version of a treaty. It enables decisions about the scope of rights, duties on public authorities, accountability, and remedies to be addressed directly in legislation rather than emerging gradually through interpretation and litigation. Public authorities may also find it easier to apply rights drafted specifically for operation within Welsh law than a partially incorporated treaty requiring continual reference to qualifications and exclusions.
Welsh legislation is enacted bilingually, with both texts carrying equal authority. Wales is also pursuing a long-term programme of codification intended to improve the coherence and accessibility of Welsh law. As Welsh law develops through subject-based codes, rights protections can be considered as part of that process.
The Supreme Court observed in the Scottish UNCRC Incorporation Bill Reference Case that many of the Scottish Parliament’s objectives could potentially have been achieved through the amendment of Westminster legislation within devolved competence. As a general strategy for incorporation, that would be an enormous undertaking. In Wales, however, the review, consolidation and re-enactment of devolved legislation is already underway. Codification may provide opportunities to incorporate rights protections directly into the developing body of Welsh law.
Bespoke rights, however, derive their authority from domestic legislative choices, creating the possibility that international rights may be narrowed during the drafting process. The relationship between bespoke domestic rights and the treaties from which they are derived would therefore require careful attention. The Group does not regard these concerns as fatal, though. Legislation can specify the relevance of international jurisprudence and clarify the relationship between bespoke rights and the underlying treaties. Bespoke rights may also preserve, clarify or, in some instances, extend existing rights protections. LOWG’s key recommendation is therefore:
enshrining human rights in a Human Rights Bill for Wales, drawing on the guarantees and protections articulated in international treaties rationalised to a bespoke expression of women’s rights and disabled people’s rights which are capable of enactment through Senedd legislation.
Making rights effective
The Legislative Options Working Group is also concerned with implementation beyond legislative incorporation. Its report reviews Welsh Government responses to UN treaty body recommendations and identifies weaknesses in existing implementation and monitoring arrangements. It recommends a stronger focus on implementation across government, including better integration of human rights into policymaking, service delivery and decision-making.
The report also examines access to justice, where rights are unlikely to be effective if individuals cannot enforce them when things go wrong. Alongside discussion of courts and judicial review (both reserved matters), the Group considers the potential contribution of devolved Welsh tribunals (a group of specialised tribunals operating within devolved areas of Welsh law and administration, including education, mental health, Welsh language, and property disputes) and the wider administrative justice system. This reflects the reality that responsibility for many aspects of the justice system remains reserved.
LOWG has focused on the UN Convention on the Elimination of All Forms of Discrimination Against Women and the UN Convention on the Rights of Persons with Disabilities, but it anticipates further work on other treaties. Alongside this the Group may begin a detailed design of any future Human Rights (Wales) Act, and the oversight and accountability arrangements needed to support it. It also hints at a wider constitutional question. Several of the obstacles it identifies arise from the boundaries of the current devolution settlement itself. The Group does not rule out the possibility that further devolution may ultimately be required. Its analysis repeatedly identifies reservations relating to equal opportunities and the administration of justice as barriers to more comprehensive forms of human rights incorporation. Where the debate goes from here remains an open question.
Sarah Nason.
Sarah Nason is Reader in Law at Bangor University. Her research focuses on constitutional and administrative law, judicial review, and administrative justice, with particular expertise in the constitutional development of Wales and questions of access to justice.
The Constitution Society is committed to the promotion of informed debate and is politically impartial. Any views expressed in this article are the personal views of the author and not those of The Constitution Society.