Dr Rhian Croke, Child Rights Strategic Litigation and Policy Advocacy Lead, Children’s Legal Centre Wales and Member of Wales UNCRC Monitoring Group
When a State, like the UK, signs and then ratifies the UN Convention on the Rights of the Child (UNCRC), it takes on obligations under international law to implement the rights that the UNCRC guarantees to children (aged under 18 years) and to establish effective structures and mechanisms to implement those rights. Implementation means that States are required to take different actions to ensure the realisation of all rights in the UNCRC for all children in their jurisdiction or, in other words, to ensure that all children are able to experience their rights guaranteed by the UNCRC (see article 4 of the UNCRC). These actions are referred to as General Measures of Implementation of the UNCRC. There is a wide range of measures, including full incorporation of the UNCRC into domestic law, the development of special structures for monitoring, coordination, training etc., and ensuring that children’s rights are integrated into all decisions – of government, parliament and the judiciary.
The Committee on the Rights of the Child’s General Comment No. 5 is an explanation of the General Measures of Implementation. I recently presented on these Measures on behalf of the Wales UNCRC Monitoring Group at the State of Children’s Rights Webinar. [i] This blog focuses on my reflections in relation to General Measures of Implementation in the Welsh context.
Indirect incorporation of the UNCRC and legislative change on children’s rights in Wales
It is important to acknowledge that Wales has led the way in the UK in incorporating the UNCRC, within the limits of the powers given to the Senedd (Welsh Parliament) through devolution. This has been achieved through the Rights of Children and Young Persons (Wales) Measure 2011 (‘Rights Measure’) which places a legal obligation on all Welsh Government Ministers to have due regard to the UNCRC in all of their functions. The Welsh Government has also, as part of its ‘Children’s Scheme’, made a commitment to conduct children’s rights impact assessments on all proposed policy and legislation.
We have also seen the duty of due regard to the UNCRC introduced in sectoral legislation in the Social Services and Well-being (Wales) Act 2014 and the Additional Learning Needs Education and Tribunal (Wales) Act 2018 which have introduced due regard to the UNCRC duty on decision-makers working in the fields of social care and additional learning needs education. Welsh legislation also places a duty on governing bodies and headteachers to promote knowledge and understanding of the UNCRC and the UN Convention on the Rights of Persons with Disabilities via the Curriculum and Assessment (Wales) Act 2021.
It is also very welcome that, after years of dedicated campaigning, Welsh legislation has removed the defence of ‘reasonable chastisement’ which permits parents and other carers to commit common assault on children under the guise of punishment. These are all clear wins in the promotion of children’s rights in our small nation. These wins are to be celebrated and are evidence of a clear divergence in the approach to children’s rights between the government in Wales and the UK Government.
UK Government’s approach to human rights
Divergence in children’s rights is reflected in the different approaches between the Welsh Government and UK Government regarding human rights more broadly. The Welsh Government has been consistent in expressing its concerns regarding the UK Government’s proposal to reform the Human Rights Act 1998 (HRA 1998). The Wales UNCRC Monitoring Group, alongside other UK children’s rights organisations, has also been vociferous in its opposition to the reform of the Human Rights Act, communicating – amongst other concerns – that the UK Bill of Rights proposed by the UK Government will undermine the universality of human rights and will weaken people’s (including children’s) ability to enforce their rights under the HRA 1998.
We have also seen clear concerns regarding regression on human rights expressed in relation to the UK Nationality and Borders Act 2022, and the continuation of the hostile environment towards asylum seekers. The Welsh Government was opposed to the many provisions in the Borders Act, acknowledging that they breached international conventions. There is also alarm both domestically and internationally at the recent announcement of the UK Illegal Immigration Bill which even the UK Government Home Secretary acknowledges, on the face of the Bill, will be incompatible with the European Convention on Human Rights. [ii]
Also, the UK Police, Crime, Sentencing and Courts Act 2022 has created new criminal offences and strengthened the police’s powers of arrest in ways that clamp down on protest rights and which discriminate against Gypsy Travellers’ way of life. These provisions in the legislation were opposed by the Welsh Government.
Furthermore, in relation to youth justice, there is continued resistance to raising the age of criminal responsibility from 10 years, which is one of the lowest in Western Europe. There is also continued resistance to ending physical punishment of children. Overall, in my view, the UK Government’s policy consistently goes against the grain of human rights and children’s rights.
Welsh Government’s commitment to human rights
Research into strengthening and advancing human rights and equalities, carried out by Swansea and Bangor universities for the Welsh Government in 2021, made over 40 recommendations to enhance and strengthen human rights and equalities in the Welsh context. One of the recommendations was to introduce a Human Rights Bill for Wales, to directly incorporate more human rights treaties into Welsh law.
The Welsh Government seems to have been motivated in part by the UK Government’s position on the reform of the HRA 1998 and announced a commitment to consider legislative options for a Human Rights Bill for Wales. A Legislative Options Working Group has been asked to consider the best approach to incorporating international human rights treaties. This is very welcome, as is the continuing strength of support for human rights demonstrated by the Welsh Government.
Evidence of innovation on UNCRC General Measures of Implementation – but still need for further progress in Wales
- Due regard and a children’s rights approach
The ‘due regard’ duty, under the ‘Rights Measure’ and other legislation, has certainly demonstrated the potential to support embedding children’s rights in policy development by requiring relevant decision-makers to pay attention to the UNCRC. In addition, the Children’s Rights Approach for public bodies, developed by the Observatory on Human Rights of Children, and adopted by the Children’s Commissioner and Welsh Government, offers principled guidance for public bodies on how to translate children’s rights into practice. The UN Committee on the Rights of the Child was very interested in learning more about the innovative approach to children’s rights in Wales when they met with the NGO delegation in Geneva recently (as a prelude to the examination of the UK).
- Children’s rights impact assessments
As an example of innovation, the UN Committee on the Rights of the Child was also very interested in the use of Children’s Rights Impact Assessments (CRIA) in Wales as part of the Welsh Government’s Children’s Scheme. CRIA is key to embedding the UNCRC as part of a Children’s Rights Approach to policy development. There are, however, weaknesses in how CRIA is applied, including: its application being too late in the policy process to make any difference to policy output; lack of relevant expertise on children’s rights by officials undertaking CRIA, and; a failure to properly apply CRIA to some critical policies affecting children. This has also included the failure to undertake a CRIA on the Welsh Government draft budget: a concern that has been consistently raised by NGO stakeholders and echoed by the Senedd Children Young People and Education Committee, but recently rejected by Welsh Government.
With my colleagues in the Wales UNCRC Monitoring Group, we would like to see a detailed CRIA on the Welsh Government’s annual budget, which is published, and includes an assessment of the resources available to implement policy in line with the UNCRC. We also recommend that CRIA is a mandatory legal requirement on all branches of the Welsh Government (rather than being required by a Children’s Scheme) and that sufficient resources and expertise are made available to carry out an effective CRIA. This is because research has confirmed that, where CRIA is properly applied, it results in closer attention to the UNCRC in policy and better outcomes that reflect children’s rights.
- Making children a priority & transparent monitoring and accountability
Again, we are concerned that the Welsh Government-appointed Minister with oversight for children rights is not named the Minister for Children, and I am dismayed that there is only a relatively small Welsh Government team responsible for UNCRC implementation. This has an impact on the visibility and the prioritisation of children and children’s rights in policy making. Furthermore, with respect to coordination, although we have a Welsh Government national action plan for children, there is a lack of relevant child rights indicators or clear commitment to deliver legal rights as set out in the UNCRC. There is also a lack of relevant data on children’s rights outcomes, or costed budgets to support the plan, and there is little evidence of involvement of children in the development of delivery plans.
The Wales UNCRC Monitoring Group has communicated to the Welsh Government a request for a national action plan that addresses the recommendations made in the forthcoming Concluding Observations from the UN Committee on the Rights of the Child. What we also want to see in Wales is transparent monitoring and accountability. For example, we very much welcome developments such as that, under the Curriculum and Assessment (Wales) Act 2021, there is a duty on governing bodies and headteachers to promote knowledge and understanding of the UNCRC, and also that Welsh Government has published a UNCRC awareness raising strategy. However, we would like governing bodies and the Welsh Government to regularly report on progress on these requirements and strategies so that we can monitor impact and push for further progress for children.
- Full and direct incorporation of the UNCRC
Finally, the Wales UNCRC Monitoring Group and other stakeholders in Wales have been clear in our demands for effective recognition of children’s rights in Welsh Law. In this respect, we acknowledge that due regard to the UNCRC has helped to progress a commitment to embedding of children’s rights in Wales…BUT, as an example of indirect incorporation, it has done little to enhance legal accountability for children’s rights, as the UNCRC is not directly enforceable in courts of law and does not confer a legal remedy on a child who is a victim of any breach of the UNCRC by relevant authorities. Consequently, we have asked the Welsh Government to prioritise and expedite steps to give further effect to the UNCRC into Welsh Law, including by making it enforceable by a court or tribunal.
[i] To access the Wales UNCRC Monitoring Group Report please go here.
[ii] For a detailed briefing by the Immigration Law Practitioners’ Association on the Second Reading of the Illegal Immigration Bill, please go here.