http://orcid.org/0000-0003-2041-9776
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ABSTRACT
Despite decentralisation being a ubiquitous feature of human rights governance globally, the UN Committee on the Rights of the Child focuses primarily on the State as the locus for implementation of the UN Convention on the Rights of the Child (CRC). State control and a regulative approach prioritising justiciability of the CRC at national level are the Committee’s dominant responses to decentralisation. This paper introduces decentralisation, including the risks and potential gains for CRC implementation. It is contended that a regulative approach may prove particularly challenging in the context of decentralisation. It is suggested that a normative approach, in which legislation is used to promote compliance through cultural acceptance of the CRC, and to support localisation of rights, may be better suited to the contours of decentralised governance. Taking the example of Wales, a devolved territory in the United Kingdom, it will be shown how a primarily normative approach to legal integration can help mainstream international norms in policy, enhance accountability for rights, and provide opportunities for policy advocacy at local level. The paper is a contribution to the literature on the instrumental value of legislation to support the realisation of human rights, applicable to decentralised systems of governance.
Disclosure statement
No potential conflict of interest was reported by the author.
Notes on contributor
Simon Hoffman joined Swansea University in 2006 having previously worked in the NGO sector and as a barrister. He is a Coordinator of the Observatory on Human Rights of Children. Simon’s research is on social and economic rights, and the rights of children and young people. He is particularly interested in processes for transmission of international human rights from the international to the local, and implementation, especially in the context of multilevel, decentralised and devolved government. Simon works closely with the Welsh Government, the human rights commission in Wales, and stakeholder NGOs to support activities that improve access to human rights. He is member of the NGO led Wales UNCRC Monitoring Group, and the Welsh Government’s Children’s Rights Advisory Group, and recently set up a Wales civil society Human Rights Stakeholder Group.
ORCID
Simon Hoffman http://orcid.org/0000-0003-2041-9776
Notes
1 UN Committee, General Comment No.5, General Measures of Implementation of the CRC (2003), 10.
2 In this paper ‘policy’ refers to any government proposal or course of action, including but not limited to: legislation, action plans, programmes, and budgets. The terminology used to describe States territories varies: this paper will use ‘regional’ or ‘local’ throughout. Decentralisation is distinguished from deconcentration whereby State government departments are located in regional offices.
3 ‘In the real world … national governments rarely exercise direct power over the issues that are of most immediate concern to vast majority of the world’s people. Local, municipal or regional governments often matter more’: International Council on Human Rights Policy (ICHRP), Local Rule: Decentralisation and Human Rights (2002), 1.
4 UN Committee, General Comment No.5. Mirroring the approach of other UN Treaty Bodies, for example: Human Rights Committee, General Comment No. 31, The Nature of Legal Obligations Imposed on States Parties (2004), 2; Committee on Economic Social and Cultural Rights (CESCR), Substantive Issues Arising in the Implementation of the CESCR (1998), 2.
5 James Manor, The Political Economy of Democratic Decentralisation (Washington, DC: World Bank, 1999), 5.
6 ICHRP, Local Rule, 6.
7 Children and young people’s exclusion from the franchise and marginalisation within democratic political systems can lead to their interest being overlooked. For discussion of children and democracy, see Aoife Nolan, Children’s Socio Economic Rights Democracy and the Courts (Oxford: Hart Publishing, 2011), chapter 2.
8 ICHRP, Local Rule, 24–8. See also Jane Williams, ‘Multi-level Governance and CRC Implementation’, in The Human Rights of Children: From Vision to Implementation, ed. Antonella Invernizzi and Jane Williams (Farnham: Ashgate Publishing, 2011), 239–61, 248.
9 Lundy et al., The UN Convention on the Rights of the Child: A study of legal implementation in 12 countries (London: UNICEF UK, 2012). Available here
https://www.unicef.org.uk/publications/child-rights-convention-2012-report/
10 UN Committee, General Comment No.5, 10.
11 Ibid., 2, 6–10.
12 ICHRP, Local Rule. On devolution in Wales: Welsh Office, A Voice for Wales (Cardiff: Welsh Office, 1997), Cm. 3718.
13 ICHRP, Local Rule.
14 Ibid.
15 Manor, Political Economy, 118–20. See Newcastle University and London School of Economics, Decentralisation Outcomes: A Review of Evidence and Analysis of International data (2011).
16 UN Committee, General Comment No.5, 1. Children and young people may be better able to take advantage of opportunities for participation in systems of decentralised governance: Philip Veerman and Hephzibah Levine, ‘Implementing Children’s Rights on a Local Level, Narrowing the Gap Between Geneva and the Grassroots’, International Journal of Children’s Rights 8 (2001): 373–84.
17 Gerd Oberleitner, ‘Does Enforcement Matter?’, in Human Rights Law, ed. Conor Gearty and Costas Douzinas (Cambridge: Cambridge University Press, 2012), 249–68, 254; Oona N. Hathaway, ‘Do Human Rights Treaties Make a Difference?’, Yale Law School Faculty Scholarship Series (2002), Paper 839.
18 UN Committee, General Comment No.7, the Committee sets out a range of mechanisms to promote implementation of the CRC, including administrative measures, as well as structures for monitoring and review as contributions to enforcement. Although these may be distinguished from enforcement in a ‘narrow sense’ as pre-emptive or compliance control devices, or because they lack remedial measures that accompany judicial enforcement. See Oberleitner, ‘Does Enforcement Matter’, 250–2.
19 See, for example, Conor Gearty, ‘Against Judicial Enforcement’, in Debating Social Rights, ed. Conor Gearty and Virginia Mantouvalou (Oxford: Hart, 2010), 1–79.
20 Jane Williams, ‘England and Wales’, in Litigating the Rights of the Child, ed. Ton Liefaard and Jaap E. Doek (London: Springer, 2015), 53–70.
21 [2014] EWCA Civ 156. Lord Kerr and Lady Hale, in the minority, deal with the impact of the reform on children and young people.
22 For example, Gerladine Van Bueren, ‘Including the Excluded: The Case for an Economic Social and Cultural Human Rights Act’, Public Law (2002): 456–72. For objections, see Gearty, ‘Against Judicial Enforcement’.
23 Julinda Beqiraj and Lawrence McNamara, Children and Access to Justice: National Practices, International Challenges (Bingham Centre for the Rule of Law, 2016).
24 Ibid.; UN Committee, General Comment No.5, 7.
25 Jane Williams, ‘General Legislative Measures of Implementation: Individual Claims, ‘Public Officer’s Law’ and a Case Study on the UNCRC in Wales’, International Journal of Children’s Rights 20 (2012): 224–40, 227.
26 Ibid.
27 Decentralisation has been described as a manifestation of the subsidiarity principle, a ‘structural principle of international human rights law’: Paolo G. Carozza, ‘Subsidiarity as a Structural Principle of International Human Rights Law’, American Journal of International Law 97 (2003): 38–79, fn.99.
28 Chris Himsworth, ‘Rights Versus Devolution’, in Sceptical Essays on Human Rights, ed. Tom Campbell, K.D. Ewing and Adam Tomkins (Oxford: Oxford University Press, 2001), 145–62, 146. In contrast, State autonomy is a manifestation of sovereignty over human rights: Carozza, Subsidiarity, 63.
29 Discussing divergence with reference to the case of R (Horvarth) v Secretary of State for Environment, Food and Rural Affairs (2009) ECJ Case C 248/07: Williams, ‘Multi Level Governance’, p. 253.
30 Himsworth urges caution as the definition of rights will always be contested (with the possible exception of absolute rights): Himsworth, ‘Rights Versus Devolution’, 148.
31 Williams, ‘Multi-level Governance’, 240.
32 Nolan observes that this is desirable so that human rights may be generally applicable to ‘different contexts over time’: Nolan, Children’s Socio Economic Rights, 31.
33 This is not a challenge to human rights universalism, but an example of human rights pluralism: Samantha Besson, ‘Justifications’, in International Human Rights Law, ed. Daniel Moeckli, Sangeeta Shah and Sandesh Sivakumaran (Oxford: Oxford University Press, 2014), 22–40, 29; Keon de Feyter, Localising Human Rights (Antwerp: Institute of Development Policy and Management, 2006), 9.
34 Drawing on: Martti Koskenniemi, ‘The Effects of Rights on Political Culture’, in The EU and Human Rights, ed. Philip Alston (Oxford: Oxford University Press, 1999), 99–116, 99.
35 Ibid., 114.
36 Hathaway, Human Rights Treaties, 1955.
37 Wade M. Cole ‘Human Rights as Myth and Ceremony? Reevaluating the Effectiveness of Human Rights Treaties 1981-2007’, American Journal of Sociology 17, no. 4 (2012): 1136.
38 Abram Chayes and Antonia Handler Chayes, ‘On Compliance’, International Organization 47, no. 2 (1993): 175–205, 205.
39 Hathaway, Human Rights Treaties, 1957.
40 De Feyter, Localising Human Rights, 5.
41 Ibid.
42 George Ulrich, ‘Epilogue: Widening the Perspective on the Local Relevance of Human Rights’, in The Local Relevance of Human Rights, ed. Koen De Feyter et al. (Cambridge: Cambridge University Press, 2011), 337–61, 337.
43 Oomen makes this point in the context of human rights cities: Barbara Oomen, ‘Rights and the City: Does the Localization of Human Rights Contribute to Equality?’, in Equality and Human Rights: Nothing but Trouble? Liber amirocrum Titia Leoneb, ed. M. van den Bink, S. Burri and J. Goldschmidt (Utrecht: University Utrecht, 2015), 401–10, 404.
44 Koen De Feyter, ‘Sites of Rights Resistance’ in Local Relevance, ed. De Feyter et al., 11–39, 15, 20.
45 Ulrich, ‘Epilogue’, 343.
46 Wouter Vandenhole, ‘Localizing the Human Rights of Children’, in Children’s Rights from Below, ed. Manfred Liebel (Basingstoke: Palgrave Macmillan, 2012), 80–93, 81.
47 Alice Ely Yamin and J. Jaime Miranda, ‘Building Rights-based Health Movements: Lessons from the Peruvian Experience’, in Local Relevance, ed. De Feyter et al., 176–207, 199.
48 Ulrich, ‘Epilogue’, 337.
49 Adopting Tobin’s communitarian model: John Tobin, ‘Seeking to Persuade: A Constructive Approach to Human Rights Treaty Interpretation’, Harvard Human Rights Journal 23 (2010): 1–50.
50 These will be more persuasive if they take account of all relevant factors: ibid., 11.
51 Felipe Gomez Isa, ‘Freedom from Want Revisited from a Local Perspective: Evolution and Challenges Ahead’, in Local Relevance, ed. De Feyter et al., 40–81, 59.
52 Veerman and Levine, ‘Implementing Children’s Rights’, 373.
53 In relation to human rights generally: De Feyter, ‘Sites of Rights Resistance’, 23.
54 Oomen, ‘Rights and the City’, 407.
55 Discussing deliberative engagement: Williams, ‘General Legislative Measures’, 229.
56 Douglas Cassel, ‘Does International Human Rights Law Make a Difference’, Chicago Journal of International Law 2, no. 1, Article 8 (2001): 121–35. Cassel’s commentary is relevant to several points on the function of legislation in this section.
57 Ibid., 126–7.
58 Williams refers to rules which govern the conduct of public officials as ‘public officers law’ Williams, ‘General Legislative Measures’, 228–9 (drawing on: T. Daintith and A. Page, The Executive in the Constitution (Oxford: Oxford University press, 1999)).
59 Cole, ‘Myth or Ceremony’, 1131. Cole draws on seminal work on the functioning of institutions: John W. Meyer and Brian Rowan, ‘Institutional Organisation: Formal Structure as Myth and Ceremony’, American Journal of Sociology 83 (1977), 340–63.
60 The Committee’s textual output may be used by government as the basis for policy-making: Ursula Kilkelly and Laura Lundy, ‘Children’s Rights in Action: Using the Convention on the Rights of the Child as an Auditing Tool’, Child and Family Law Quarterly 18, no. 3 (2006): 331–50.
61 Cole, ‘Myth or Ceremony’, 1132.
62 Criticism in the public domain is likely to be perceived as damaging by the institutions concerned: ibid., 1137.
63 Williams, ‘General Legislative Measures’, 225.
64 Schedule 7, Government of Wales Act 2006 (subject to change: schedule 7A to be substituted by Wales Act 2017).
65 Part 2, GWA 2006. Welsh Government budget 2017-18: £15 billion.
66 S.94, GWA 2006; s.29, Scotland Act 1998; s.6, Northern Ireland Act 1998.
67 S.4, HRA 1998: a Higher Court may declare UK legislation incompatible with the ECHR (as set out in the statute), but this does not affect its validity or continuing effect.
68 For an overview of policy: in Wales, see, Ian Butler and Mark Drakeford, Children’s Rights as Policy Framework in Wales, in The Rights of the Child in Wales, ed. Jane Williams 9–20; in Scotland, see, NGO Report, Implementation of the UNCRC, Scotland (UK) (Edinburgh: Together Scotland, 2015); in Northern Ireland, see, NGO Report, Submission to the UN Committee on the Rights of the Child (Belfast: Children’s Law Centre and Save the Children NI, 2015). NGO reports available on the Committee webpage: http://tbinternet.ohchr.org/_layouts/TreatyBodyExternal/Countries.aspx?CountryCode=GBR&Lang=EN
69 Butler and Drakeford, Children’s Rights.
70 Lundy et al., A Study of Legal Implementation. UN Committee, General Comment No.5, para. 41.
71 UN Committee, Concluding Observations on the UK (2008), concluding observation 12; UN Committee, Concluding Observations on the UK (2016), concluding observation 11.
72 See for example, UN Committee, Concluding Observations on Belgium (2010), concluding observation 13; UN Committee, Concluding Observations on Germany (2014), concluding observation 13; and, UN Committee, Concluding Observations on Spain (2018), concluding observation 7.
73 UN Committee, Concluding Observations UK, concluding observations UK 14, 15.
74 UN Committee, Concluding Observations UK, concluding observations 11, 13, 15.
75 The Measure was brought into effect in two stages to allow Welsh Government officials to prepare.
76 On the development of the Measure: Jane Williams, ‘The Rights of Children and Young Persons (Wales) Measure 2011 in the Context of the International Obligations of the UK’, in Williams, Rights of the Child in Wales, 49–64.
77 S.1 of the Measure requires the Welsh Minsters, when exercising any of their functions, to have due regard to: Part 1 of the CRC; articles 1 to 7 of the Optional Protocol to the CRC on the involvement of children in armed conflict, except article 6(2); and, articles 1 to 10 of the Optional Protocol to the CRC on the sale of children, child prostitution and child pornography.
78 Welsh Government, Explanatory Memorandum to the Measure (Cardiff: Welsh Government: 2010), 11.
79 Ibid.; The Measure includes a power, under s.6, for Ministers to amend existing legislation which is inconsistent with the CRC (if this is within the scope of devolved competences). To date this provision has not been used, possibly because the Welsh Government has been proactive in introducing new policy in areas impacting on children and young people.
80 S.2.
81 S.2 and s.3.
82 S.3. Building on the requirement that government in Wales is to be conducted in an ‘inclusive’ manner: ss.72-9, GWA 2006.
83 Osian Rees, ‘Holding Government to Account’: The Role of the Children’s Commissioner for Wales’, in Williams, Rights of the Child in Wales, 181–95, 190. Policy here being the substantive content of the Scheme.
84 S.4.
85 Ibid.
86 Welsh Government, Children’s Scheme (Cardiff: Welsh Government, 2014), 3.
87 For example: HRA 1998.
88 For example: the End Child Poverty Network: http://www.childreninwales.org.uk/our-work/poverty/end-child-poverty-network-cymru/
89 For developments in litigation, see contributions in: Liefaard and Doek, Litigating the Rights of the Child.
90 For a full discussion of accountability mechanisms under the Measure, see Simon Hoffman and Jane Williams, ‘Accountability’, in Williams, The Rights of the Child in Wales, 167–180.
91 Currently the Equalities Act 2010.
92 The leading case is: R (Brown) v Secretary of State for Work and Pensions [2008] EWHC 3158.
93 S.8.
94 Michael Imperato, Watkins and Gunn Solicitors, Legal Wales Conference, Swansea University, ‘Embedding Rights in Public Services: What it Means for Litigators’, 15 September 2017 (speaking notes: author’s collection).
95 Re P-S (children) [2013] EWCA Civ.223 per the Rt Hon. Sir Alan Ward at paragraph 35.
96 Based on the author’s research. See, for example, the CYPEC scrutiny of the First Minister on 27 October 2017. Transcript available at http://senedd.assembly.wales/documents/s68146/27%20October%202017.pdf
97 As under s.7, Social Services and Well-Being (Wales) Act 2014, which places a duty on relevant authorities to have due regard to the CRC.
98 CYPEC, Report on the Additional Learning Needs and Educational Tribunal (Wales) Bill (2017). Available here http://www.assembly.wales/laid%20documents/cr-ld11055/cr-ld11055-e.pdf
99 See: ss.7 and 8, Additional Learning Needs and Educational Tribunal (Wales) Bill, (Royal Assent: 24 January 2018). However, Ministers refused to agree that individuals exercising functions under the Act should also be under a due regard duty.
100 For example: CCfW and Children in Wales consultation responses during scrutiny of the additional learning needs legislation (note 92). Available here http://senedd.assembly.wales/mgConsultationDisplay.aspx?id=245&RPID=1508796674&cp=yes
101 Cabinet Secretary for Finance and Local Government setting out Ministerial priorities for EU Withdrawal during conference held at Swansea University, 25 November 2016 (author’s contemporaneous note).
102 An example of a local ‘intrepretive community’.
103 Children’s Rights Advisory Group standing members: CCfW, UNICEF, Children in Wales, and the Observatory on the Human Rights of Children. The Welsh Government’s influence is limited to matters that fall within devolved competence. Significantly, a number of key Brexit issues affecting children and young people (e.g. immigration and residence; replacement of EU funding; European child protection measures), are matters under the control of the UK Government.
104 Welsh Government and Plaid Cymru, Securing Wales’ Future (Cardiff: Welsh Government 2017); Minister’s response to questions from the CYPEC on Brexit: http://senedd.assembly.wales/documents/s70516/The%20First%20Ministers%20Response.pdf
105 For further discussion of CRIA’s, see article by Payne (this issue).
106 Welsh Government, Children’s Scheme (Cardiff: Welsh Government, 2012 and 2014).
107 UN Committee, General Comment No.5, 11.
108 Compliance report 2013–2015 (Cardiff: Welsh Government, 2015), 9–11.
109 Ibid, 11. Welsh Government, Compliance Report 2015–2018 (Cardiff: Welsh Government, 2018), 10.
110 Welsh Government, Compliance Report 2013-15, 9–13, 17.
111 S.37, Well-being of Future Generations (Wales) Act 2015.
112 An Active Travel Action Plan for Wales, guidance issued under the Active Travel (Wales) Act 2013.
113 Welsh Government, Compliance Report 2015–2018 (Cardiff: Welsh Government, 2018), 10–13.
114 Simon Hoffman (Rhian Morse RA), Evaluation of the Welsh Government’s Child Rights Impact Assessment (2015), https://cronfa.swan.ac.uk/record/cronfa30963
115 Ibid. Echoing concerns about lack of participation in policy processes raised by the Committee in 2008: UN Committee, Concluding Observations, 20, 32, 33.
116 Welsh Government, Compliance Report 2018, 14.
117 S.5.
118 Information on Young Wales: http://youngwales.wales/index.php/young-wales-cafe/about-us
119 See, for example, on Brexit: https://beta.gov.wales/sites/default/files/2017-04/170424-securing-wales-future-yf-en.pdf
120 Welsh Government, Compliance Report 2018, 15.
121 Information about MEIC (Welsh for microphone): https://www.meiccymru.org/
122 Welsh Government, Compliance Report 2018, 28–9.
123 Young Wales, Report to the UN Committee (Cardiff: Children in Wales undated), 26–30. Rhian Croke and Jane Williams (eds.), Wales UNCRC Monitoring Group Report to the UN Committee (Swansea: Swansea University, 2015), 21. Hannah Bussicott and Jane Williams, The Desert: Public Legal Education in Wales, Research Report (forthcoming, 2018).
124 Funky Dragon, the Youth Parliament for Wales. Ceased to operate in October 2014. Information here: https://funkydragon.org/history/
125 For example, the City and County of Swansea has embedded a duty to have due regard to the CRC into the Council’s policy framework: https://www.swansea.gov.uk/childrensrightsscheme