Terms of reference

Based on evidence from stakeholders (including people with protected characteristics), the report on the research on Strengthening and Advancing Equality and Human Rights in Wales (SAEHR) concluded that in Wales there is:

• a strong desire for (further) incorporation of human rights in Wales through Welsh Law
• a need for stronger accountability (across all public functions) for human rights in Wales (including but not restricted to legal accountability for compliance with human rights)

The SAEHR report includes detailed evidence from stakeholders on the perceived benefits of incorporation and enhanced accountability and sets out 2 recommendations in these areas: recommendations 1 and 25. The Welsh Government has accepted these recommendations in principle.

The Working Group is established to advise on progress under ‘Action Area A: preparatory Legislative Work’, as outlined in the Welsh Government’s response to the SAEHR report.

The primary objective of the Working Group is to advise the Welsh Government on next steps to progress recommendations 1 and 25 as set out in the SAEHR report. 

The Working Group will deliver such advice or recommendations to the Welsh Government as it believes necessary in order to meet its primary objective. The Working Group will report to Welsh Ministers and the Human Rights Advisory Group.

The SAEHR took into account the potential for regression from human rights protections as a consequence of the UK’s withdrawal from the European Union (Brexit). For reasons of timing, the SAEHR research was unable to take full account of recent proposals from the UK Government to reform the Human Rights Act 1998 (HRA). The consensus amongst civil society organisations and the Welsh Government is that these proposals have potential to weaken human rights protections in the UK and in Wales.

The Working Group should bear in mind the potential for Brexit and HRA reform to lead to human rights regression in the UK and in Wales; and should take into account the Welsh Government’s commitment to take steps within the framework of devolution to mitigate any human rights regression resulting from the policies of the UK Government, and where possible, to use devolved powers to continue to progress the better realisation of human rights in Wales.

The Working Group should avoid re-examining issues dealt with during the research for the report on SAEHR which took a participatory approach to establish stakeholder views on incorporation and accountability. As necessary the Working Group should refer to the SAEHR report to inform its work.

The Working Group will advise on incorporation of human rights generally but should bear in mind that the Welsh Government has indicated a commitment to incorporate CEDAW and the CRPD into Welsh Law. Ministers have also indicated that they would welcome an inclusive approach, going beyond these 2 UN Conventions to include consideration of older people’s rights, the UN Convention on Elimination of All Forms of Racial Discrimination (ICERD), LGBTQ+ people’s rights and extending children’s rights.

Where appropriate (as determined by the Working Group) the Working Group will consider whether adoption of any non-legislative measure as set out in the recommendations made in the SAEHR report would be more effective to meet the objective of embedding human rights as a framework for the exercise of devolved functions by Welsh Ministers and Welsh public authorities; and, and of ensuring that Welsh Ministers and Welsh public authorities are properly accountable for their decisions and actions which have an impact on the human rights of people in Wales.

In order to achieve its primary objective the Working Group will:

• Develop and implement a programme of activities to ensure that the Working Group is appropriately informed about the priorities for incorporation of human rights in Wales, and in particular:
  • whether, and if so, which human rights currently binding on the UK in international law should be incorporated into Welsh Law
  • whether it would be appropriate to develop bespoke human rights not currently found in international law to be introduced into Welsh Law
  • the extent to which any legislation to make human rights part of Welsh Law should extend to Welsh public authorities other than the Welsh Ministers
• Address the issue of how legislation on incorporation can empower rights-holders to know, understand and assert their incorporated human rights.
• Address the issue of how legislation might promote a culture of human rights compliance amongst public authority duty bearers, in particular to encourage actions which help public authorities to avoid breach of any human rights incorporated into Welsh Law.
• Address the issue of how human rights duty-bearers might be held accountable for meeting any human rights obligations arising in Welsh Law, including but not limited to:
  • legal accountability enforced via courts or tribunals
  • alternatives to court-based enforcement (for example, community resolution, alternative dispute resolution, mediation)

The Working Group shall determine its own working methods. If it is thought appropriate the Working Group will invite experts so that members are appropriately informed about issues arising in relation to 1 to 4 above, including the likely impact of any actions which the Working Group is contemplating as advice to Welsh Ministers.

The research on SAEHR takes full account of the current statutory frameworks relevant to equality, human rights and well-being in Wales. The Working Group shall continue this approach to take full account of the likely impact of any advice it provides to Welsh Ministers on current statutory frameworks (as well as any associated guidance).

Ultimately, it will be a matter for Welsh Ministers, acting on their own legal advice, to determine whether any actions advised by the Working Group to meet SAEHR recommendations 1 and 25 are within devolved competence. However, the Working Group should bear in mind that its advice should, insofar as the Working Group is able to determine, be capable of being achieved within the framework of devolution.

The work will be supported by the Welsh Government Human Rights Team. This team will provide the secretariat for the Working Group. The Working Group will also be supported by Welsh Government Legal Services.

The non-staff budget for this work is limited to incidental expenses and small-scale preparatory work. Any proposal for more substantial expenditure will need to be developed by the Working Group and presented to Ministers for their consideration.