Simon Hoffman
Background
During the Covid pandemic the Welsh Government allocated funds to provide some (not all) children from low-income households in Wales with free school meals during the school holidays, or to provide their parents/carers with cash or vouchers in lieu (the ‘FSM scheme’). Until recently the FSM scheme meant that about 85,000 children were able to benefit from rights guaranteed under the UN Convention on the Rights of the Child (UNCRC), including the right to adequate food (article 27), the right to benefit from social security (article 26), and health rights (article 24). Unfortunately, and abruptly, in June 2023 the Welsh Government withdrew funding for the FSM scheme.
For those children who had been eligible for support the effect of ending the FSM scheme is twofold: first, they will be denied fundamental rights in the future (see examples above); and there will be a step backwards (or regression) in the fulfilment of those rights which they experienced while the FSM scheme was operational. This is particularly significant for children from economically vulnerable households in Wales. Given these considerations, it might have been anticipated that Welsh Ministers would have taken full account of the impact of ending the FSM scheme before withdrawing funding. This is what is required by Welsh law which places a duty on Welsh Ministers to have due regard to the UNCRC in the exercise of their functions (Rights of Children and Young Persons (Wales) Measure 2011(the ‘2011 Measure’). It might also have been anticipated that Welsh Ministers would have carried out a rigorous Children’s Rights Impact Assessment (‘CRIA’) of the proposal to withdraw funding. This is what is required by the Welsh Government’s Children’s Rights Scheme: a requirement which Welsh Ministers have imposed on themselves.
Unlawful decision-making revisited
The Public Law Project (‘PLP’) brought a case (the ‘FSM case’) on behalf of two families challenging the decision, in June 2023, to end the FSM scheme (the ‘first decision’). The challenge was based on a claim that the Welsh Government had not taken proper account of the impact on children’s rights in reaching the first decision.
Before the FSM case came to trial the Welsh Government conceded that it had not carried out a proper CRIA, and it had not complied with its duty to have due regard to the UNCRC when making the first decision. It also conceded that it had failed to properly assess the discriminatory impact of the first decision on children with protected characteristics (under the Equality Act 2010). Accordingly, by consent, the High Court made a Declaration on 27th February 2024 (the ‘Declaration’) that the first decision was unlawful.
In advance of the FSM case coming to court, and clearly aware that it was in breach of Welsh law and its own procedures, the Welsh Government carried out an Integrated Impact Assessment (‘IIA’): a procedure to predict the impact of a policy proposal on different groups. This IIA included a CRIA as well as an Equality Impact Assessment. Following the IIA, in October 2023 the Welsh Government decided it would not reinstate the FSM scheme (the ‘second decision’), despite the IIA predicting a negative impact on children with protected characteristics.
The PLP (and others such as myself and colleagues at the Observatory on Human Rights of Children) see no further ground to challenge the Welsh Government’s second decision. Documentation accompanying the Declaration notes that prior to making the second decision Welsh Ministers considered a ‘detailed’ IIA and a ‘detailed ministerial advice’ from which they formed the view that ‘budgetary pressures’ meant there was no funding for the FSM scheme and it could not be continued without ‘compromising other educational priorities’. The more rigorous consideration given to children’s rights in the detailed CRIA is sufficient evidence that Welsh Ministers discharged their duty to have due regard to the UNCRC in arriving at the second decision.
A hollow victory?
Children who benefited from the FSM scheme will already have experienced regression in the fulfilment of their rights. With this in mind, those children, their families or other interested stakeholders might ask: What was the point of the FSM case?
The Bevan Foundation, in a blog on the FSM case succinctly sums up the frustration of many at the outcome. It notes that the Welsh Government would have been fully aware of the negative impact of the second decision, yet it carried on ‘regardless’.
My colleague, Dr Croke in her blog on the case articulates another problem: namely, that the FSM case focuses on a failure to carry out CRIA on the FSM scheme. She points out that in wider context there is an ongoing failure to apply CRIA to the Welsh Government budget to analyse the extent to which it supports – or not – the better realisation of children’s rights in Wales. A CRIA of the Welsh Government budget is something which children’s rights advocates in Wales have been demanding for many years (see Rhian’s blog). The FSM case may have resulted in a detailed CRIA of the proposal to withdraw the FSM scheme, but it does not extend to mandating the same in relation to the Welsh Government budget.
An initial assessment of the case brought by PLP might therefore suggest that at best it represents something of a hollow victory. But is this a fair assessment?
A different perspective
A comment from Matthew Court, the PLP solicitor who represented the families in the FSM case suggests a reason to be more optimistic about the outcome. He expresses the hope that:
‘… the decision means that Welsh Ministers will take their legal obligations towards children and disadvantaged people in Wales more seriously when making decisions which affect them.’
We should also pay attention to the view of one of the parents represented by the PLP, Mark (not his real name), who said:
‘I’m glad the Welsh Government has acknowledged that they acted unlawfully. … I hope the Government has learned a lesson. If they’re making changes like this, they need to think them through before-hand and give people enough notice to adjust.’
Mark’s words offer an insight into why the outcome of the FSM case is significant.
There is value in transparency, in requiring decision-makers to acknowledge their mistakes and to think again and more carefully about their decisions. These insights are entirely consistent with research which confirms the benefits of legislation that ‘frames’ or guides decision-making so that it takes account of human rights and which promotes transparency and accountability.
Research also confirms that CRIA is a procedure which can – if properly carried out – guide decision-making so that children’s rights become embedded and are taken properly into consideration. While CRIA is meant to be part of Welsh Government policy decision-making, concerns about the quality and application of CRIA by Welsh Government officials have been ever-present since it was introduced as part of a Children’s Rights Scheme in 2014 (Welsh Minsters are required to publish a scheme showing how they will have due regard to the UNCRC). Until quite recently there has been limited capacity to raise these concerns by way of legal challenge: however, an extension of the work of the PLP in Wales, and the development of a Strategic Litigation Project (based at the Children’s Legal Centre Wales and led by Dr Rhian Croke) means Welsh Ministers are increasingly likely to face legal action if they fail to carry our proper CRIA on policy proposals.
It is to be hoped that the outcome of the FSM case will promote improvement in the practice and application of CRIA by Welsh Government officials.
The place of current rights-based legislation in Wales
While I am generally buoyed by the outcome of the FSM case, this is tempered by the fact that the Welsh Government has withdrawn the FSM scheme. It might reasonably be suggested that despite closer attention to children’s rights when the Welsh Government made its second decision (i.e. not to re-instate the FSM scheme), neither the outcome of the detailed CRIA nor the duty to have due regard to the UNCRC were enough to require the continuation of the FSM scheme.
This raises a number of questions: What is the point of the due regard duty? Should we give less attention to rights in legislation, and instead focus on policy to achieve change?
These questions echo concerns raised by the Bevan Foundation in its blog on the FSM case. Quite rightly, the blog warns against putting ‘values and principles into legislation, arguably at the expense of more direct policy change’. I share their concerns. However, in the field of children’s rights in Wales research confirms that rights-based legislation (i.e. the 2011 Measure) has provided a firm platform for policy advocacy and has underpinned both law and policy to promote better acknowledgment and realisation of children’s rights in Wales. The importance of legislation in this respect is also confirmed by looking at other jurisdictions where the UNCRC has been made part of national law.
The FSM case and human rights in Wales
Research in 2021 for the Welsh Government on how to strengthen and advance human rights and equality in Wales (‘SAEHR’) confirms that civil society stakeholders (including those representative or people with protected characteristics) are keen to see additional legislation in Wales to give effect to international human rights law. This appetite is reflected in the recommendation in the SAEHR report for a Human Rights Bill to be introduced in Wales. But, similar to the Bevan Foundation in its blog on the FSM case, research participants also drew attention to the importance of moving from idealism encapsulated in legislation to achieving change through policy and practice.
The SAEHR report recognises that we cannot expect legislation to carry full responsibility to achieve progress on human rights. The report therefore makes numerous recommendations to bring about meaningful change to promote better human rights outcomes through policy decision-making by government at all levels in Wales, and to enhance accountability.
Of course, much depends on whether the Welsh Government is able to see progressive legislation (such as a Human Rights Bill) as a spur to progressive policies, rather than as a substitute for the actual realisation of human rights. In this respect the FSM case is a timely reminder to Welsh Ministers that they have a responsibility to conduct policy decision-making within a human (children’s) rights framework established by Welsh law.
The Welsh Government’s response to the SAEHR recommendations has been positive; with work underway to implement those recommendations aimed directly at Welsh Ministers. This gives cause to be optimistic that any future Welsh Human Rights Bill will be more than a ‘paper-tiger’ of an enactment, and instead will prove to be a strong underpinning for proactive policy to address human rights challenges in Wales.
Final reflections
It would be unwise to discuss the FSM case without recognising that for the beneficiaries of the FSM scheme the situation is worse now than it was before June 2023. And despite what I have said so far, it should anger them, as it angers me and countless others in Wales, that poverty continues to blight their lives and restrict their access to fundamental rights. But I remain convinced that those who are outraged by the mere fact of poverty in a wealthy nation such as the UK (again I include myself), should continue to look to human rights as a platform on which to build policies to tackle poverty in Wales.
On child poverty, the Welsh Government has decided that it cannot fund the FSM scheme without an adverse impact on other education priorities. As a result of the FSM case the decision and the reasons for it have been put transparently into the public domain. This gives opportunity for debate about the correctness of the decision and the reasoning behind it. It also gives opportunity to promote alternative options to support disadvantaged households to meet the needs of children, bearing in mind the different demands on the public purse in Wales. Mark, a parent in the FSM case (also quoted above), sums up the challenge that lies ahead:
‘I fully respect that public bodies need to find money to pay doctors and nurses, but stopping the holiday free school meal payments altogether doesn’t have to be the way. I really hope the Welsh Government can come back to this afresh and look hard to see if there is any way of supporting families like mine who were badly affected by the decision.’
A report on a Child Poverty Summit held in Swansea in November 2023* sets out numerous recommendations to tackle child poverty in Wales based on contributions from stakeholder participants. These will be presented to the Welsh Government to inform work to implement its Child Poverty Strategy. The summit report expressly links its recommendations to children’s rights.
It is to be hoped that the FSM case will help ensure that the impact of any Welsh Government policy decision, including on budget allocation, which is likely to have an effect on children living in poverty in Wales will be subject to a rigorous CRIA; and, as part of that procedure Welsh Ministers will take account of the recommendations in the summit report.
*This report will be published on the website of the Children’s Legal Centre Wales in the near future.
Simon Hoffman is Professor of Human Rights at Swansea University.