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Human Rights: Accountability and Enforcement

February 11th 2019

Leading on from last week’s article on incorporation of human rights into Welsh legislation, today Simon Hoffman talks us through how incorporation supports accountability for, and enforcement of human rights.

Last week, Associate Professor at Swansea University, Simon Hoffman, discussed incorporation of international human rights treaties, and why this should be an objective in Wales. Today, in this article and the accompanying briefing, Simon explains how incorporation supports accountability for, and enforcement of human rights.

Attention to human rights

Giving effect to human rights means government must respect, protect and fulfil rights. When it comes to policy in areas such as housing, health and social care, and education human rights establish achievement targets for government. While Ministers are permitted discretion to determine how these targets are best met through public policy, and they may be achieved progressively over time, a human rights approach demands that public resources are effectively used to prioritise the needs of the most disadvantaged individuals. It also means government is obliged to devise policy to ensure a basic level of provision for all, so that no individual suffers a loss of dignity through destitution or lack of resources.

In Wales the fulfilment or realisation of many social rights is influenced by Welsh Government policy. Incorporation would make attention to human rights a condition of legitimacy of policy decision-making and help ensure that Welsh Ministers are accountable for the way policies impact on human rights. It would do so by providing an underpinning for civil society, human rights commissioners, and the National Assembly for Wales to scrutinise and hold Welsh Ministers to account against clear and legitimate standards as part of the legal framework in Wales.

Accountability and enforcement

Incorporation in Wales could also provide for court-based accountability and enforcement. Although legislation to incorporate human rights needs to respect the legitimate role of the Welsh Government to make policy, incorporation could give the courts powers to ensure that Ministers have proper regard to human rights. This is what is achieved by the Rights of Children and Young Persons (Wales) Measure 2011 which incorporates the Convention on the Rights of the Child in Welsh law. The Measure permits Welsh Ministers flexibility to determine how children’s interests are prioritised alongside other policy concerns, but judges may interfere with policy decisions where due regard is not given to children’s rights. For the UK as a whole, the Human Rights Act 1998 gives judges the power to hold public authorities to account by human rights standards but stops short of permitting the judiciary to interfere with the will of Parliament expressed through statute. The Measure and the Human Rights Act, in different ways, strike a balance between judicial oversight and democratic legitimacy.

Leading the way

The Child Rights Measure is an example of Wales leading the way on human rights incorporation in the UK. Further incorporation of international human rights in Wales would result in higher legal standards of human rights protection than in the UK, and discrete mechanisms to safeguard rights. This is the opportunity presented by devolution, and the Welsh Government should seize the chance to make Wales a more progressive country when it comes to protection of human rights.

Throughout February the Bevan Foundation will publish three articles, each accompanied by a more in-depth briefing. The final article and briefing will focus on how incorporation of human rights might fit with the Welsh equality and well-being agendas.

Dr Simon Hoffman is Associate Professor at Swansea University. Simon will be delivering a workshop on human rights on 14th May which you can book here

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