Cynulliad Cenedlaethol Cymru

Yn ôl i Chwilio

Y Pwyllgor Materion Allanol a Deddfwriaeth Ychwanegol

External Affairs and Additional Legislation Committee

26/02/2018

Aelodau'r Pwyllgor a oedd yn bresennol

Committee Members in Attendance

David Rees AC Cadeirydd y Pwyllgor
Committee Chair
Jack Sargeant AC
Jane Hutt AC
Mark Isherwood AC
Suzy Davies AC

Y rhai eraill a oedd yn bresennol

Others in Attendance

Andrew White Stonewall Cymru
Stonewall Cymru
Dr Gideon Calder Equality Trust
Equality Trust
Dr Koldo Casla Just Fair
Just Fair
Dr Panos Kapotas Prifysgol Portsmouth
University of Portsmouth
Dr Simon Hoffman Prifysgol Abertawe
Swansea University
Nicola Williams Equality and Human Rights Commission in Wales
Equality and Human Rights Commission in Wales
Rhian Davies Anabledd Cymru
Disability Wales
Uzo Iwobi OBE Cyngor Hiliaeth Cymru
Race Council Cymru

Swyddogion Cynulliad Cenedlaethol Cymru a oedd yn bresennol

National Assembly for Wales Officials in Attendance

Gemma Gifford Dirprwy Glerc
Deputy Clerk
Hannah Johnson Ymchwilydd
Researcher
Rhys Morgan Ail Glerc
Second Clerk

Cofnodir y trafodion yn yr iaith y llefarwyd hwy ynddi yn y pwyllgor. Yn ogystal, cynhwysir trawsgrifiad o’r cyfieithu ar y pryd. Lle mae cyfranwyr wedi darparu cywiriadau i’w tystiolaeth, nodir y rheini yn y trawsgrifiad.

The proceedings are reported in the language in which they were spoken in the committee. In addition, a transcription of the simultaneous interpretation is included. Where contributors have supplied corrections to their evidence, these are noted in the transcript.

Dechreuodd y cyfarfod am 14:05.

The meeting began at 14:05.

1. Cyflwyniad, ymddiheuriadau, dirprwyon a datgan buddiannau
1. Introductions, apologies, substitutions and declarations of interest

Good afternoon. Can I welcome Members and the public to this afternoon's session of the External Affairs and Additional Legislation Committee? Before we start, can I remind Members of the traditional housekeeping? The meeting is bilingual, therefore if you require translation from Welsh to English simultaneously, that's available on the headphones, channel 1. If you require amplification, that's available on the headphones, channel 0. Please—in fact, in this case, not just turn your mobile phones off, but can you actually put them on airplane mode, because they do interfere with the microphones. So, if you have any mobile phones or iPads, please put them on airplane mode, or switch them off. There is no scheduled fire alarm today, so if one does occur, follow the directions of the ushers, please, to ensure that you leave the building safely.

Can I welcome Jack Sargeant to his first meeting of the committee? Welcome. I'm sure you'll have some interesting times and discussions ahead on issues of Brexit and the implications for your constituency in particular. But on the record, can I also thank Dawn Bowden for her time on the committee and the work she put in? It's been very much appreciated during that time.

We've received apologies from Steffan Lewis, Jenny Rathbone and Michelle Brown, and no substitutions have been identified. Before I also go into session, can I inform Members that, unfortunately, our clerk Alun's father passed away last week. On behalf of the committee I'm sure you would like us to send condolences to Alun and his family on his loss. Can I also on behalf of the committee give our condolences to Mark, who lost his father also last week?

2. Cydraddoldeb a Gadael yr Undeb Ewropeaidd: sesiwn dystiolaeth 1
2. Equalities and Brexit: evidence session 1

We now need to move into our evidence session today, and this afternoon we are looking at the implications for equalities in relation to Brexit. Can I remind Members this is a scene-setting-type session, so we can get a feel of the issues that would arise? And this afternoon can I welcome to the first session Nicola Williams from the Equality and Human Rights Commission in Wales, Gideon Calder, Equality Trust, and Dr Koldo Casla, Just Fair? We've received apologies from George Wilson of Liberty—unfortunately he's unable to join us this afternoon.

Perhaps before we go into questions, if I give you—and I'm going to limit you to a couple of minutes each—perhaps an area of where your interests, and your organisation's interests, lie in relation to this matter and the consequences of Brexit—. We'll explore some more details in the questions, but if I therefore go ladies first, right to left, just a couple of minutes, please. Nicola.

Thank you, Chair. On behalf of the Equality and Human Rights Commission, I wanted to thank the committee for the opportunity to be here today. The commission very much welcomes the committee's focus on equalities in its examination of Brexit, and particularly the opportunity to speak about equality issues in the context of Brexit.

I think the first point by way of background: it's very important that I should note that the UK will remain a member of the Council of Europe following Brexit, so that the European convention on human rights will continue to apply, and obviously that's enshrined in UK legislation through the Human Rights Act 1998. I think that's a point that's been quite misunderstood.

However, the commission does have concerns about the effect on equalities of Brexit, and in particular the loss of the European social fund, which is part of the £370 million, through the European structural and investment funds, that Wales has benefited from in the past. In particular, the social fund has benefited a lot of academic research into equalities issues. It has sought to place disabled people into employment and find employment opportunities and also funded projects such as Agile Nation 2, which is a Chwarae Teg programme for career development for women and promoting gender equality, so there will be some quite direct impacts of the loss of that funding.

The other area that I wanted to focus on concerns the European Union (Withdrawal) Bill. Although that seeks to retain in domestic legislation EU law that is in place as at the date when the UK leaves the European Union, it explicitly states that the fundamental charter on human rights will cease to apply in the UK, and the Government's right-by-right analysis has sought to show how the rights that are set out in that charter are replicated elsewhere in domestic legislation. However, there are important aspects of the charter that don't appear anywhere else. It's an important mechanism for the enforcement of rights and for protecting equalities issues, particularly in areas such as a free-standing right to non-discrimination; the protection of children's best interests, which is enshrined in the charter; the right to human dignity; the justiciable right to prohibit discrimination on grounds of sexual orientation; and, for disabled people, the right to independence, integration and participation in their community. So, there are lots of very positive rights that appear in there in a stronger form than they do elsewhere, either in the Human Rights Act 1998 or in other aspects of legislation, and those rights have been used, for example, in outlawing gender discrimination in relation to insurance premiums, in equal pay cases and also in the labelling of tobacco—the charter has been cited in those cases.

The commission, because of the concerns around equality, has come up with a five-point plan that it would like Government to take into account in response to Brexit. That advocates things such as protecting Parliament's role in scrutinising legislation, retaining the UK's equality and human rights legal framework and ensuring that the UK remains a global leader in terms of human rights. In Wales, we think that there are particular opportunities to do things differently. We already have a 2011 Measure that incorporates the UN treaty on the rights of the child into Welsh legislation, and the equality Minister, Julie James, wrote to the Chair of the Equality, Local Government and Communities Committee to explicitly state that there should be no loss or dilution in human rights for Wales as a result of Brexit.

So, the commission advocates that there should be a domestic equality right that really embeds into legislation as far as possible the human rights and equalities agenda, and one way of doing that would be to further incorporate treaty rights such as the principles for older people, the rights of persons with disabilities, the elimination of racial discrimination and the convention on the elimination of all forms of discrimination against women. These treaty rights are really very fundamental and would take forward the equalities and human rights agenda in Wales.

14:10

Thank you, and I'm sure we'll explore some of those points during the questions. Gideon.

Thank you. Like Nicola, I'd like to express my thanks for being invited and for the opportunity to represent the Equality Trust and also to recognise the value of this particular kind of conversation about inequality and Brexit. We regard it as being a crucial one to have. The Equality Trust's work seeks to build on the evidence that shows that more unequal societies are generally worse places to live and our particular sense of inequality there is that of inequalities of income and wealth. There's a great deal of evidence that suggests that societies with greater or increasing inequalities of income and wealth suffer various kinds of social ill effects way beyond those normally associated with income, and everything from crime to mental health to how much people trust each other is adversely affected by increasing inequality.

We recognise that although we didn't take a stance in terms of whether to leave or remain, we recognise that many people have interpreted the Brexit vote as being partly about those kinds of inequality. They reflect a divided country ill at ease with itself and, however inarticulately, the vote seemed to be a kind of expression of that kind of unease. What we are now particularly bothered about is not so much interpreting the reasons for why people voted as they did but for considering the likely impacts and especially looking at all of the evidence that has accumulated since June 2016 that suggests that those hardest hit by Brexit are likely to be those already most economically disadvantaged. So, independently of how they voted or anything else, it's the areas of the country—and within those, for example, the people with the lowest earnings who it seems are most likely to be hardest hit. So, if there's a bigger picture there, I think in Wales, alongside that, we've got to consider all the very particular streams of funding that obviously will go—the European structural funds, the European regional development fund, the Objective 1 funding and all that stuff, which was often directly, however imperfectly, channelled towards areas of highest deprivation. So, that's one immediate concern.

Another one is particularly to do with workers' rights, because a lot of our work has shown that societies with weaker worker representation tend to fare worse in terms of all those indicators I've mentioned and that, even amongst the advanced economies, the models of worker representation that are strongest tend to go along with the more cohesive and more equal societies, places like Germany and Japan and so forth.

So, we are particularly concerned that a risk of certain versions of Brexit is that certain kinds of workers' rights are put under direct threat. So, it's a priority for us, not just in terms of the outcomes of this or that negotiation over wages, but just that the general principle of worker representation is robust after Brexit. I think in Wales we have the scope to pursue that independently of what happens at Westminster.

A third area that I'd like to highlight—and I'd like to highlight this partly because I don't know whether it's anybody else's brief to do this—is the environmental impacts of Brexit, which are significant. A great deal of environmental legislation comes from the European Union. Again, for better or worse, however well it's working, one of the major areas in which we will expect to see change is there, because we will either replace those commitments in other forums or we won't.

There's a great deal of evidence that, for example, the ways in which things like the emissions trading system and the renewable energy directive work—they work not just in terms of the specific focus on this or that aspect of environmental factors, but when they don't work, in other words where environmental degradation takes place, it tends also to hit the worst off the hardest, and so those who are otherwise best protected tend to be able to avoid those effects the easiest. So, we'd really like to see a robust response from the Welsh Government to the prospect of any kind of depletion in our commitment to those areas of environmental concern.

We regard it as a great asset. This is something the London office of the Equality Trust wouldn't talk about much, but here in Wales I think we really should focus on it. We regard the Well-being of Future Generations (Wales) Act 2015 as a great asset in this respect, but as in many other senses, a great deal depends on how it's interpreted and what it ends up meaning, because I think we're in this period at the moment where we're not entirely sure how much difference it will make and exactly what kind of—. At it's most ambitious, it will transform a great many things about how we do things in Wales.

We regard it as a potentially really crucial implement because one of the seven well-being goals is specifically a more equal Wales, and because it sits alongside all of those other factors that we regard as being really tightly tied up within equalities. We think the conversation where you're talking about the cultural and environmental and all the other factors alongside inequality is exactly the right conversation to have because we regard things as linked up in exactly that kind of way. So, we think there's a great deal of potential in that specific Act to tackle many of the potential ill effects of Brexit. 

14:15

Thank you, Chair. Thank you for the invitation. Brexit matters greatly to equality and human rights. Whatever the reasons why 17 million people voted to leave the European Union, I think it's safe to say that the reason wasn't really to lower the standards of equality and human rights. We believe in Just Fair that social rights have been a part of Britain's tradition at least since 1217 and the Charter of the Forest. Social rights matter and Brexit matters not only in terms of what sort of country we want to live in but also from an economic perspective. As the two speakers have pointed out, European social fund funds are going to be severely affected by Brexit. The equality and diversity forum is presenting a report tomorrow that shows that the spend of the three ESF, European social fund, objectives that focus the most on equalities is about £4.5 billion in England and about £1.4 billion in Wales, Scotland and Northern Ireland. It's not only about who we want to be or what sort of country we want to become, but it's also about money. 

We have serious concerns about the implications that the EU withdrawal Bill is going to have for our level of protection of economic and social rights in the UK, as it is currently written. We support the five priority issues identified by the Equality and Human Rights Commission. As it is now, the Bill leaves a hole in our human rights system. Firstly, it is absolutely important from a human rights perspective, from a social rights perspective, to preserve the EU charter of fundamental rights. Education in article 14 of the charter goes way beyond the protection of education in the Human Rights Act 1998, which is the one in the European convention on human rights. Also, from the perspective of the right to health, as mentioned by Nicola from the Equality and Human Rights Commission, the Philip Morris case made explicit reference to the charter in relation to the right to health. And also the charter includes the right to justice, to access to justice and remedy, in article 47 that was used in the Sudanese embassy case only a few months ago, and that will now not happen if we lose the EU charter of fundamental rights after Brexit. 

It is also very important to provide legal certainty about the enforceability of the principle of reparation for breach of EU principles. Without it, Mr Walker wouldn't be protected in a case similar to the Supreme Court case last summer that ensured that, because of his sexual orientation, he shouldn't be prevented from having pension rights. Likewise, in the Unison case about employment tribunal fees. 

Thirdly, it is very important to prevent the use of delegated powers to weaken social rights and standards, including on environmental matters and workers' rights, and, fourthly, it is essential to use this opportunity to constitutionalise, to recognise, equality as a fundamental right on its own, as a freestanding fundamental right in our legal system, as does the EU charter of fundamental rights in articles 21 and 22.  

But there is something that Wales can do irrespective of Brexit. Irrespective of the future constitutional arrangement in this country and irrespective of the UK's relationship with the rest of the EU after Brexit, Wales can do something that can set an example for the rest of the United Kingdom, and that is to implement the socioeconomic duty through section 45 of the Wales Act 2017. That would give public authorities in Wales the responsibility to have due regard to the desirability of reducing inequalities based on socioeconomic status in Wales. In other words, that will consider the socioeconomic status—so, in other words, inequality based on income and wealth are due consideration similar to the other grounds for protection of the Equality Act 2010. That is very important, particularly in Wales. Wales has the highest—. As you know better than I do, Wales has the highest poverty rate of the UK. Child poverty now is higher than 10 years ago, and it reaches 30 per cent for children. The Welsh Government said in this house in December 2016 that they were not going to be able to meet the child poverty targets by 2020, and that was attributed to the UK Government's tax and social security cuts.

We are happy to see that 65 Members of Parliament from five different parties have called for the implementation of the socioeconomic duty at the UK level, but also in Wales. These 65 Members of Parliament come, as I said, from different parties; we have three Plaid Cymru MPs there, we have 44 Labour MPs, two Lib Dems, the one Green MP and 15 Scottish National Party MPs. We are also happy to see that, even though the socioeconomic duty hasn't been implemented at the UK level, some councils are doing it, are implementing the duty, voluntarily, and there are good examples also across the political divide. So, we have Newcastle with a Labour council, we have York with a coalition of the Conservatives and the Liberal Democrats, and in London we have Newham and Islington. 

As I said, Wales has the power now through section 45 of the Wales Act to set an example for the rest of the UK about how to implement and take socioeconomic inequalities seriously. I am aware that Wales has this very original and innovative piece of law, which is the Well-being of Future Generations (Wales) Act 2015, and, to some extent, the duties imposed by this Act are similar to the socioeconomic duty. However, that's also the case in Scotland. Scotland, according to the consultation document from September—. Scotland is going to implement the duty on 1 April. According to the consultation document, there were at least 20 other duties that were related somehow to the socioeconomic duty relating to health inequalities, land use strategy, climate change or social security. But the Scottish Government—in our opinion, rightly—pointed out that the socioeconomic duty offers an opportunity to—I am quoting—

'join activity and planning up across duties and community planning partners'

and it is also an opportunity to develop strategies, plans and monitoring frameworks jointly.

Let me finish for now by saying that there is a material argument—a fundamental argument—to implement the duty. There is also, if I may, a patriotic argument to do so: Wales can set an example to the rest of the UK and, in fact, the UK can set an example for the world as a whole. The socioeconomic duty is a very original duty worldwide. You may have noticed by now that I am not really from this country. I wasn't born in this country, and in my home country and in many others—in Spain and in many others—people are looking at the socioeconomic duty as a model to take socioeconomic status seriously in equality legislation. So, I implore you, really, to set an example to the rest of the world. Thank you.

14:25

Thank you very much, and I admire your passion on that, but we are looking at, particularly, the implications of Brexit and not what you highlighted towards the end, which was something perhaps our Equality, Local Government and Communities Committee in its analysis will be looking at very carefully—how it uses the current positions available to it within Wales, separate from Brexit. So, I need to separate the two aspects, but I understand totally what you're saying about how we can actually take the lead in certain areas. Perhaps we want to see how Brexit may impact upon that as well—it would be an interesting question.

Thank you for those points, and you've already highlighted a couple of issues I want to ask and start talking about. You talked about the charter of fundamental rights—two of you have already—and, clearly, what my understanding is, because we come under EU law at this point in time and it's not within our constitution, is that provides the backbone available to us to implement the charter of fundamental rights, and, therefore, leaving the EU removes that backstop, basically, for us. What I suppose I want to try and find out is: is that going to be a major concern for your organisations, based upon the fact that the UK Government has indicated it will deliver these anyway, within its own positions, its own legislation, and it has its own commitments? How crucial is the loss of that backstop to you?

I think, from the commission's perspective, it is a very important mechanism, and the fact that it's been cited so many times in Supreme Court cases quite recently—. We've talked about the tobacco case on the packaging of tobacco, where the duty to promote health was raised, and the Walker case, which Koldo mentioned, which, again, was a justiciable right not to be discriminated against on the grounds of sexual orientation. There are—. The right-by-right analysis that UK Government has carried out has shown that it's actually quite difficult to trace these rights in other legislation, and the point about the charter is that all of those rights are in one place and they are a freestanding right to non-discrimination, which, as you say, is the backbone, really, to ensuring equality. I think it would be a serious backwards step if we were searching around in other pieces of legislation to try and put those rights back together.

Clearly, you'll have heard the arguments in the debates on the committee stage of the EU withdrawal Bill as to why the amendment that was put forward to reflect this was not accepted. Did that give you any confidence that you would still be able to rely upon the rights that currently exist instead of that fundamental charter?

The commission has sought its own legal advice on this from Jason Coppel QC, which actually highlights that the statements that were made that actually these rights are reproduced elsewhere are not entirely accurate. And I think, actually, looking at the case law shows the number of times that the charter has been relied upon. So, no, I think we remain very concerned about the fact that the Bill, as it stands, would remove the charter from UK law.

If I may, Chair—. In spite of the name of the Bill, the Bill is not really about withdrawing from the—. It is, of course, about withdrawing from the EU, but it's also about a massive retention of EU law that is going to become domestic law. That EU law, currently, the way it has to be implemented in the UK—before Brexit day, it has to comply with the UE charter. After Brexit day, the EU charter— unless we change clause 5(4) of the Bill, the EU charter will no longer apply. But we are not really—. We will incorporate a massive amount of legislation, the acquis communautaire, and we will lose a fundamental normative framework that currently applies. There are many examples in which the charter has been applied and has made a difference: the Philip Morris case, the Walker case, the Unison case. Those cases wouldn't be resolved in the same way if we didn't have the charter after Brexit, and that's a significant loss. I guess the Government could have a point about the unnecessary duplication of the charter if, voluntarily, they were going to incorporate the whole of international human rights law at the UK level. So, if they said, 'We'll ignore the charter, but we'll bring in the whole of the international human rights law' then they could take the argument that the charter is unnecessary. But, unfortunately, the vast majority of international human rights law is not domesticated, with the exception of the European convention on human rights. So, we will lose significant protection of human rights if we don't have the charter.

14:30

Yes. I just wondered if you are aware of the fact that the Wales Council for Voluntary Action has called for the Welsh Government to find ways to adopt the EU Charter into Welsh legislation, and whether you support that call. Whether it's feasible, practicable, possible, but that's—. The Wales Council for Voluntary Action are on record calling for that.

I think that's an excellent proposal, which the commission would support. I suppose it's worth adding to what Koldo has said that there are some aspects of the charter that, clearly, shouldn't apply. I think the one that stands out is the right to stand and vote in European elections, which, clearly, after Brexit, wouldn't be appropriate. But the vast majority of the charter would be extremely useful and valuable to incorporate into Welsh law.

Okay. You also mentioned case law. Now, clearly, the European Court of Justice has been a very central piece of the discussions ongoing and still is a central piece of discussions ongoing. What's your view about the situation of case law post Brexit? Because the argument is that case law may be taken into consideration, but really doesn't—. It depends upon the courts as to whether they wish to consider it or not and whether it's a factor or not. Should the ECJ's case law become—particularly in areas of human rights and rights—a more important aspect, or—?

My understanding is that, as you say, the role of the ECJ would be as a court that our courts could have regard to, but which they would not be bound by, and there are some legal issues that follow from that. Because we are freezing in time EU legislation in our domestic law at the moment that the EU withdrawal Bill takes effect, we would be without the benefit of the continued exposition and development of that through European case law, and there's also a particular oddity about the disapplication of the charter on human rights, because it can be used to strike down EU legislation that is deemed not compatible with human rights, but, because we wouldn't have that as part of our own legislation, having incorporated the vast majority of the rest of EU law as at the date of implementation, we would lose the ability to interpret our legislation in the same way. So, I think, as a lawyer, that's a very problematic situation.

I could give two examples, if I may, of the laws. There are a couple of cases where we can see clearly the difference that this will make. One is the Google v. Spanish data protection agency case, where the European Court of Justice interpreted, through the right to private and family life, that we are all entitled to a right to be forgotten online. That was a jurisprudential innovation that wasn't really foreseen in the charter as such, but was interpreted by the court. We wouldn't be entitled to that sort of innovative interpretation once we leave the European Union, because we wouldn't be bound by ECJ rulings or case law.

A second example is the Kušionová case, where the court interpreted that the right to home plus the European directive on consumer rights of 1993 together provide some sort of protection of the right to housing for everyone. That doesn't necessarily apply—as far as I know, there's no case in the UK where that case has been used as a reference. It has been used in other countries, for example in my own country, in Spain. So, these are just two examples of innovative jurisprudence that we wouldn't be benefiting from after Brexit.

Essentially, yes. Obviously, we heard—I think it was last week or the week before—the Mad Max dystopia comment that there wouldn't be a race to the bottom, and I believe, although I haven't read it full, that David Lidington's made a similar comment this morning in a speech at Airbus. You mentioned you've taken legal advice at EHRC level. Given the mood music that's coming from Westminster departments and the advice you've received, are you hearing anything different in discussions or committees in Westminster in this context?

14:35

In terms of the future intention?

Well, you're expressing concern that, with the withdrawal Bill, the fundamental charter of human rights will cease to apply and that will weaken protections. You've taken legal advice in this respect, and you've all referred to concern that, as currently drafted, the withdrawal Bill would weaken protections in the areas you've identified. We've also heard statements from UK Ministers over recent days and weeks that amount to a commitment to not water down rights and equalities, but are you hearing anything different behind the scenes, and what sort of responses are you getting when you—if you've had the opportunity yet to do so—raise matters such as the legal advice you've received?

I'm not aware personally of any different view being expressed, but I think that the concerns that the commission have are to enshrine these rights and this positive move towards greater equality into our legislation, which becomes part of the culture of the way that we develop as a nation in the future. I think one of the five points that the commission has in its response to Brexit is around retaining our role as a global leader, and I think the loss of these rights, the fundamental charter, and the potential for the race to the bottom in terms of things like workers' rights, for example, and the potential increase in inequality that Gideon's outlined—it's really as a result of not having those protections in our legislation that everybody can see are there to rely on.

Can I put the question slightly differently before I bring Jane in? UK Ministers have basically said they don't want to go to the bottom. They've given assurances that rights will be protected. If that's the case, is there any reason why they can't change the Bill to actually incorporate the fundamental rights?

As far as I'm aware, there is no reason. As I've said, there are aspects of the charter that wouldn't apply, but fundamentally, you could work around that through the drafting. You could incorporate the main body of the charter and simply disapply those articles that clearly wouldn't make sense following Brexit. 

Are there any precedents that you can point us to, either in EEA countries, or in Switzerland as the EFTA country, or in other agreements, particularly trade agreements, between the EU and other parts of the world?

Examples where the EU charter does not apply, perhaps, or—?

Where, in order to establish agreement with EEA/EFTA but also with non-EEA/EFTA countries, the the EU has negotiated trade agreements and therefore regulatory agreements with other parts of the world—are there precedents you could point us to that might address some of the concerns you're highlighting?

Not as far as I know. It's not my area of expertise, I'm afraid.

There is something very specific about Brexit, isn't there, which is that, to be in this position, you have to have been party to various kinds of arrangements that are then thrown up in the air in this way, and I think by definition there probably isn't that kind of precedent. In terms of employment rights, there are lots of equivalent kinds of issues where things are covered both by the Equality Act 2010 but also have been reinforced subsequently by EU measures of various kinds. So there's a kind of grey area as to whether they now need to be back-filled by further UK legislation, and if they're not, I think often the public can't necessarily see the connection between certain kinds of legislation like that and the EU, because they also exist in parallel in bits and pieces of UK law. So, I think the general case here is to proactively try to fill in the gaps wherever possible so that we are anticipating any lapses or lacunae there instead of waiting for them to emerge through painful cases.

14:40

Yes, I just want to follow up on the issues around workers' rights. I think, Gideon, you referred to this earlier on. If you could clarify the concerns that you have about how equality protections for workers would be transposed into UK law. I mean, clearly, rights like the protection of pregnant workers, parental leave and equal rights for part-time workers are crucial in terms of those protections, but we've got to—it's the transposition into UK law that we don't know about in terms of those EU rights.

Well, I would disagree with what you've just said. We don't know, and it's really important. What we're not seeing at the moment with the withdrawal Bill in its current form is—. We're not seeing any clear indications that any of that will be systematically removed, that somehow we will actually, as it were, deliberately strip away those rights, but neither are we seeing a guarantee that they will necessarily be reinforced. So, I agree with my two colleagues: I think that in cases where existing legislation, such as uncommenced bits of the Equality Act 2010 can do the work to fill that gap, I think that is the ideal way in which to do it, because in that very particular case we already have something on the statute books that, were it actually fully enacted, would address a large part of these concerns, and I suspect that that's the case. Of course, Britain was actually quite ahead of the game with most employment equality legislation, actually, right from equal pay in the early 1970s onwards. It's not that we don't have the history and the apparatus with which to deal with this stuff, but it's a commitment, a positive commitment to ensure that we will that is the vital element of all this. I think that wherever it's possible to ensure that in Wales, we should.

So, that goes back to the point that was made earlier about socio-economic duty: that if we progress that, it could have some—the Equality Act could have some some impact. There is an issue about our future relationship with the EU if the UK diverges particularly on equality issues following Brexit. What do you think the consequences would be in terms of that relationship?

I think a lot of this in terms of our wider relationship hinges on the form that Brexit eventually takes. So, for example, if we were to have a customs union then that would be dependent on some taking on board of some bits of key legislation—that's my understanding. But we've only got the Scandinavian model, and I think the point that Gideon made earlier is that we don't have a precedent for a country that has had the body of EU legislation and had those rights and actually then opted out of those to know exactly how that would fall and what might be negotiated.

Is it fair to say that your biggest concern is not that the rights will not be there, because we have a history of delivering them, but that there is no guarantee to ensure that those rights remain in the long term?

Yes. And to put it at its most generous, there are so many jobs to do as all of this unfolds that it would be difficult to ensure that all of these things are equally addressed all at once, because it's in the nature—. You're replacing an awful lot of different kinds of bits of legislation.

Yes, I'm sure you are.

Can I then move on to funding and the loss of the ESF? Jack's going to lead on that.

Thank you, Chair. I'd just like to bring up the European social fund. You all mentioned that in your brief statements at the start, but I'd like to link that to apprenticeships, certainly in Wales. As a former apprentice myself working in Alyn and Deeside in my constituency, I'd just like to know the panel's views on the equality requirements of the European social fund and, post Brexit, what can be done to ensure greater equality in apprenticeships and other European social fund initiatives.

It's quite a big set of issues here, because the way in which apprenticeships sit in the economy is partly to do, actually, with the way in which we handle things like education, so it's not simply a matter of employment law or this or that set of economic priorities. I think there is a big set of issues there, connected with how we regard the contribution made by different kinds of knowledge and skills to our economy, and how we remunerate that and how we incentivise pursuing those kinds of goals—both on the part of would-be apprentices and people offering apprenticeships. I'm not aware enough of the way in which the specifics of EU policy work on apprenticeships to have anything very helpful to say there, except that I think a crucial part of how we avoid a race to the bottom is to think exactly about the different levels of impact on different forms of work and also ways and routes into work as we move forward. Because there is a version of the deregulated kind of Mad Max, if you will, version of Brexit, which I think would be the very worst of all possible worlds in terms of things like apprenticeships, which precisely require a great deal of proactive forward planning and coherent engineering of the economy so that things are in alignment in the right kind of way. There could be an easy casualty of the most laissez-faire version of Brexit, which we could see in prospect if we think that the answer is to just start from scratch and renegotiate our trade deals with the world on whichever terms are most favourable.

14:45

I think it's a really good example of how important it will be for equalities and human rights issues to be at the forefront of Ministers' minds in defining policy post Brexit. And the commission has been working with Welsh Government to look at how apprenticeships can be used and how employers can be encouraged to open up apprenticeships, for example, to guarantee interviews to disabled individuals, to try to help widen the scope of employment opportunities. One of the areas of the five-point plan that the commission has is looking at the 2006 duty on Welsh Ministers to comply with the human rights Act and to have that at the forefront of policy making.

Okay. Obviously, the loss of the ESF is going to be a big blow, and because of the European charter of fundamental rights and the requirement to ensure equality, ESF is going to be featured very heavily in that. Have you heard of any sort of replacement for ESF? We know of the shared prosperity fund, but we don't know what it means yet. Have you, perhaps, got hints about what it means? Will this requirement of equality be within funding arrangements for a replacement for ESF?

I wish I had some positive information on that. I don't, I'm afraid.

Do you have any views, therefore, on where a replacement for ESF funding should sit? Should it sit at UK level? Should it sit with the devolved Government administrations? And how should the policies that guide the decisions on the spending under that fund be made?

I think, given the Welsh Government's particular priorities in terms of policy making, it would certainly make sense for any replacement funds to sit with the devolved administrations. I think one of the issues that is yet to be resolved is that the EU withdrawal Bill will bring powers for legislating back. As things stand, those will sit at Westminster and there is no plan, as I understand it, for them to be devolved out.

Can I just add to that? Rightly or wrongly, if there's a perception that part of the reasons for people's motivation to vote 'leave' was precisely the remoteness of a lot of this decision making, I think this is one area where the case is especially strong for it to be brought, really, down to as local a level as possible.

And what—? Pardon me, if I may—then I'll shut up. What role do you believe, or what engagement, should the third sector, and possibly academia, play in that, given that most of the programmes being delivered on the front line are actually being delivered through third sector programmes?

Personally, I think if you look at the implications of the future generations Act and other directions of Welsh policy, all of the movement there would be in the direction of as much involvement between those different partners as possible, and joining up the process rather than it being a more centralised one.

Okay, thank you. Now the last set of questions. I'm conscious of our time, and we're coming to the end of—well, we've actually exceeded it, but we started late, so we'll go on a little bit. Jane.

14:50

This is just about where you feel that we in Wales—we've touched on this a lot, and you have, in your opening remarks—can best protect equality, not only the measures that we've got, the prospects of the Well-being of Future Generations (Wales) Act 2015, but how we can also advance equality under our current devolution settlement following Brexit. I think protection and safeguard is the first question, and where can we go from that?

The metaphor that I use is the hole. I think the withdrawal Bill as it's currently written leaves a hole in our equality and human rights system. But the fact that there is a hole doesn't mean that we are necessarily going to fall down through it. I, of course, want to stop the hole from existing and I want to ensure that the withdrawal Bill is amended in the right way to protect equality and human rights legislation adequately through it in Westminster. Even if there was a hole, in the worst-case scenario, there are a number of things that the Welsh authorities could do. One of them, let me stress, is the socioeconomic duty. I understand the Chair's point that this maybe belongs to a different committee ,but I really think it's relevant here because if the hole remains in the Bill—hopefully not—Welsh authorities will have to do something to prevent the worst consequences of that. I see the socioeconomic duty as a fantastic tool for Welsh authorities to really take into account the socioeconomic status as a protected characteristic, or sort of protected characteristic, in the Equality Act.

I don't want to steal what you've just said but I would just echo everything that was just said there, specifically about the socioeconomic duty. It is the answer to a lot of what we're talking about.  

We got the message. I'll just perhaps follow up, in terms of other opportunities, you know, there are things that we could do, for example, in terms of public procurement as well, in terms of post Brexit, to advance equality, but that's a whole other topic to discuss.

I'm going to tick equalities off for the last question. We haven't discussed the Trade Bill. You focused on the EU withdrawal Bill, but of course the Trade Bill has some concerns, I would assume, for possibilities of changes because of deals arranged. Do you have a very short view upon—and I say 'short' because we are short on time—on similar concerns on the Trade Bill and how that may affect equalities, workers' rights and the rights of individuals as the Bill stands at this moment in time, because, again, that's going through Parliament? Gideon, do you want to—? We've looked at this and we had some issues relating to the possibilities of Ministers having powers, in the negative process, rather than coming back to the institution for agreement, and Henry VIII and here we go again. Do you have concerns relating to that—in relation to equalities and rights?

I would reiterate that I think that the more those decisions are made unaccountably, centrally in Westminster, with less sensitivity to the nations and regions of the UK, the worse it will be in this respect as in others. I think that a great deal of the inequalities as they're experienced in people's everyday lives are very much to do with much more local factors, which would be much better dealt with more locally. I think there's a certain expediency about dealing with things quickly and centrally for which we will pay a great deal of a price actually. Unfortunately, I think we can predict that. 

I think some of those—the Welsh Government, Henry VIII powers, were—[Inaudible.]

Yes. I think part of the danger of doing things quickly and doing things centrally is the degree of uncertainty. A lot of what the three of us have been advocating is around greater certainty about positive rights, which leaves individuals in a position where they can have confidence in the underpinning of those rights. 

Well, thank you very much for that. We leave with a point on uncertainty, which is a good point on which to leave. Can I thank you for your attendence this afternoon? You will all receive a copy of the transcript. Any innacuracies—can you please let the clerking team know as soon as possible so we can correct it. So, thank you for being with us this afternoon.

Members, I don't intend to take a break. I intend to go straight on because of time. 

3. Cydraddoldeb a Gadael yr Undeb Ewropeaidd: sesiwn dystiolaeth 2
3. Equalities and Brexit: evidence session 2

I appreciate that. 

Can I welcome to the next evidence session Dr Panos Kapotas from the University of Plymouth and Dr Simon Hoffman from Swansea University? I will also indicate we've received apologies from Dr Rachel Minto from Cardiff University. I'll give you the opportunity this afternoon to open up the session with perhaps a short session on where you see the issues relating to equality and Brexit are. When I say 'short', three or four minutes at the most, please. So, Professor Hoffman, would you like to go first?

14:55

Thank you, Chair. I had the good fortune of sitting in on the last evidence session, and if I could begin by saying that I agree with and wholly adopt everything that was said by in particular the Equality and Human Rights Commission Wand Just Fair, I'll cut my opening down quite significantly. My interest is in human rights and equalities and it seems to me that human rights and, by implication, equalities and non-discrimination are the bedrock of advanced nations, and by that I mean not only nation states but also devolved nations. The implication of that for Government is that there is a need to respect and promote human rights, equality and non-discrimination. In my view, the Welsh Government and the National Assembly for Wales have signalled very clearly in policy and legislation that they take these responsibilities very seriously indeed.

My concern in relation to EU withdrawal is that Wales should be alert to the possibility of a risk of diminution in human rights protection as the United Kingdom exits the European Union. In this respect, I have two concerns. First is the removal of the EU framework protections for human rights, including the EU charter of fundamental rights, which has been mentioned already in the previous session. But, equally, I'd make the point that European Union law, directives and regulations take account of human rights as human rights are part of the European Union constitutional framework. There's no guarantee that this is going to remain the case for new legislation in areas previously governed and regulated by the EU when that responsibility transfers to the United Kingdom, or that the body of law that is transferred will not be amended in ways that diminish human rights protections. That's my first concern.

My second concern relates to European structural funds. Again, they've already been mentioned. For me, there are two aspects to this. There's the loss of the money that the European structural fund provides to Wales to support priorities in Wales around things like child poverty, poverty generally and things like youth unemployment. The question is whether or not that will be adequately replaced. Then, another aspect of my concern around the European social fund is how any replacement money is going to be prioritised. Again, I know that that was mentioned earlier on. There'll be this so-called UK prosperity fund, and that will be used to meet certain priorities, but again there's no real clarity about what those priorities will be or whether the priorities will be determined by the UK Government or by the Welsh Government. My preference would be obviously that it would be determined in Wales, for reasons that I can elaborate on in due course.

How to deal with this? How to deal with the potential risk of loss of EU protections of human rights and protections for equality and non-discrimination in Wales as we exit the European Union? Again, my preferred solution would be to deal with it within Wales, making creative use of legislation, in particular constitutional legislation, to introduce human rights protections through Welsh legislation.

Thank you. Dr Kapotas. You haven't got to touch it; it'll automatically be done.

Okay. Thank you very much for the invitation. Let me preface this by saying that I'm a senior lecturer in Portsmouth law school and much of what I'll discuss today is premised on work that I'm doing together with Dr James Hand, a colleague in the school. I'm not sure, since I just arrived, whether anyone else has already attempted to draw an analogy between Brexit and the weather. If that hasn't been done, let me very quickly explain what is my main concern here. We know that something pretty bad is coming. We know that it is fairly impossible to fully map the consequences and how they are going to play out. We are also, I think, clear on the fact that this will, to a large extent, test our resilience, the resilience and strength of our infrastructures, and I'm obviously talking about normative infrastructures, legal infrastructures.

I also think that we can all agree, regardless of where everyone stands on Brexit, that if there are negative consequences insofar as equality law is concerned, the likelihood is that these negative consequences will not be evenly distributed. The likelihood is that there are particular social groups, or particular areas, within the United Kingdom, that will suffer the brunt of those consequences. Now, if we take all of this into account, what I'm about to say might sound a bit counterintuitive, and I will echo very much everything that Professor Hoffman has already said, but my starting point is different. I believe that there is nothing automatic about regression in equality protection, or dilution of equality rights, stemming from Brexit. The fact that EU equality legislation has been integrated into our domestic legal order—and the Equality Act of 2010 is in fact the encapsulation of these decades of integration—means that the responsibility lies squarely with Parliament: Parliament in Westminster and in the devolved nations.

Now, what I mean by this is that it is not inevitable, it is not necessary, and it is not automatic that levelling down regression of equality protection will take place. But my two main concerns are, (a) that there is nothing so far—at least insofar as the EU withdrawal Bill is concerned—to ring-fence existing equality rights, or equality-related rights, insofar as the future, the post-Brexit state of affairs, is concerned. And I believe that this is what we need, and I believe that this would be one of the focal points of discussion: how can we do that? Professor Hoffman has already alluded to that. And the second main concern is that we are in a position of complete convergence—this is our starting point, at the moment of departure from the EU, but there is, again, nothing so far to ensure that there will be at least a significant degree of convergence remaining in the post-Brexit era. There are ways of doing that, but the complete disengagement of the EU system and the complete disengagement from the court of justice's mandate obviously send different messages, and I'm happy to discuss this further and explain in a bit more detail what I mean.

15:00

Thank you for that. We have some questions, which probably will allow you to do just that. And I will highlight the fact that, whereas some people may consider that we are heading into something pretty bad, there will be others who do not agree with that statement as well, because, obviously, various people voted to leave and various people voted to stay.

I'll start off. In relation to the EU charter of fundamental rights, which you've both mentioned—and I know that the amendment to that EU withdrawal Bill was defeated to put that into place—is there any legal reason you can see, perhaps, as to why that cannot take place, and why those—? Because, in the UK, we don't have that in our constitution. Other countries have constitutional rights in place to protect it; we've depended very much on the EU law and the charter as part of that for us to protect those rights. Is there any reason as to why we couldn't put that into legislation to ensure that those protections become part of our law?

15:05

I can't see any reason why the EU charter can't be incorporated into UK law. We've done something similar with the Human Rights Act 1988 and the European convention on human rights. The European charter of fundamental rights is a document of human rights and I see no reason why it couldn't be incorporated, subject to any necessary amendments, as was suggested by the Equality and Human Rights Commission this morning, to make it relevant to the UK post Brexit.

I would only add to that that the interpretation of legal norms including, obviously, human rights norms is not static, which means, again, that, for an incorporation of the EU charter of fundamental rights into a domestic legal Order to make a difference, to make sense, what we also need is some sort of tying up of the ongoing interpretation of the key legal principles contained in the charter, as this takes place, as this develops, through the case law of the court of justice to domestic development, to domestic interpretive developments in courts.

So, I'm thinking of the equivalent of a duty that domestic courts are under at the moment insofar as the Human Rights Act is concerned, to take account of the case law of the European Court of Human Rights when deciding cases domestically. In the absence of that, any incorporation would very much only safeguard the protection of rights for a limited period of time.

So, your view is that the case law emanating from the ECJ should be part of the consideration of any district courts within the UK following—

Absolutely. At least in the form of persuasive precedent, even if not directly applicable.

Can I just pick up? Thank you, you've answered the question I was going to ask, really, which was about the status of any case law coming from the ECJ. But just to go back to the convention on human rights, which I appreciate articulates rights in a sort of high-level, principled way, do you have any concerns that the interpretation of those principles will look different post Brexit, because there's no obligation to look at them through the spectrum of the ECJ as well? I'm just trying to quantify the risk a little bit here.

I agree with Panos about the status of judgments from the European Court of Justice—that they should be taken into account and they should be considered to be persuasive. Whether or not the interpretation by, for example, the higher courts in the United Kingdom of the EU charter of fundamental rights if it were to be incorporated would look any different if that were not the case, I simply do not know. What—

Sorry, I was thinking the convention on human rights rather than the charter, because, obviously, that has to be taken into account.

Sorry. Yes. Again, I'm not sure whether it would look any different if the case law arrangements and what had to be taken into account were different. All I can say is that the European Court of Human Rights has made some significant advances in the understanding of human rights at the European level, so I think that jurisprudence in the UK would be diminished if that were not part of its jurisprudence.

But we are not withdrawing from the European Court of Human Rights.

Yes, and we're not withdrawing from the European Court of Human Rights.

Well, that was my point, really. If the ECHR is going to be influenced by the charter anyway, the chances are that when the UK is looking at the ECHR from a different angle, it's going to get that influence vicariously, if I can put it like that.

Yes, there is the potential for that, but there's also, of course, the potential for something to be lost in translation along the way.

If I may very briefly. I think that's an excellent point, an excellent question, and I do also believe that the role of the convention will become absolutely crucial post Brexit, because the two systems of protection of rights are, to an extent, intertwined, and it is the position of both European courts that, on matters of interpretation of rules or principles that are common across the two systems, the two courts will strive to ensure that the interpretation is compatible.

Now, having said that, we need to bear in mind that the EU charter of fundamental rights is a much more comprehensive instrument, including social and economic rights—the convention is very much only about civil and political rights. And, for our purposes, when discussing equality legislation and the impact of Brexit, we also need to remember that very much of the nitty-gritty of the equality-related rights are, in fact, located in the workplace within the normative confines of employment law. Now, I'm saying that because there are ways into employment law that the Strasbourg court—the European Court of Human Rights—has taken. Perhaps through article 8, the protection of the right to private life, it has extended into the workplace, but this is not a direct legal basis for the European Court of Human Rights to look at. So, anything related to employment may or may not be the subject of a future decision of the European Court of Human Rights. If it is, then I stand with Professor Hoffman—he is absolutely right—but this is what he was alluding to as well: that there is always the possibility of divergence, exactly because the scope of the two systems of protection may differ.

15:10

I think that just—you're saying, Panos, there's nothing automatic about the weather and about Brexit, but I think the issues about—. And you also said it's going to be up to parliaments, not just the Parliament in Westminster, but here we need to look at what power and opportunity we have. You probably didn't hear the previous session, but I think, Simon, you might have heard this, about what we could do, through the Welsh Government, for example, in terms of looking at exploring ways that we could adopt the EU charter on fundamental rights. Earlier, witnesses mentioned the socioeconomic duty that we could implement in terms of the Equality Act. We've got our Well-being of Future Generations (Wales) Act 2015, which you may not be aware of. Hopefully, you've learnt about that today, Panos. But I think it is how we can use those opportunities because clearly, so far, the UK Government has rejected all attempts to ring-fence, in the EU withdrawal Bill, the equality and human rights issues.

As you say, I had the opportunity of listening to the panel earlier, and I entirely agree that one opportunity to protect and enhance equality protections in Wales is by implementing the socioeconomic duty in Wales. That was, of course, mooted some time ago prior to the introduction of the well-being of future generations legislation. The well-being of future generations legislation does cover a lot of socioeconomic areas, if you like. My preference would be to take a slightly different approach.

My preference would be to look at what we do on human rights, broadly speaking. So, as I said, by implication of equalities and non-discrimination. And what we do in Wales already—and what we do very well—is legislation to protect rights, and I'm thinking in particular of the Rights of Children and Young Persons (Wales) Measure 2011, where we've used a due regard formula that is, in fact, borrowed from equalities enactments to require Ministers to have due regard to the convention on the rights of the child. But also, now, that's having a drip-down effect from the social services legislation and the additional learning needs legislation to require public authorities to have due regard to children's rights.

In my view—and I've done some research on this—due regard is very respectful of the contours of devolution, of the contours of state sovereignty and devolved sovereignty, and is a very effective and efficient formula for drawing down international law into the devolved context and, if you like, side-stepping the nation state on this one. I think we could do that by looking at international law, deciding for ourselves in Wales, as a constitutionally advanced and developing country, which human rights we think are most applicable in Wales, and then using the due regard formula to draw them down via a human rights Act in Wales. I should add there the caveat that I'm not talking about moving away from the Human Rights Act 1998. I would see the Human Rights Act 1998 as being the backstop, if you like, the non-violation provision, whereas a due regard model for a human rights Act in Wales would be much more about the positive promotion of human rights within Wales.

I think, again, I will echo much of what Professor Hoffman is saying, but in a slightly different way or from a slightly different direction. I'm not in a position to answer how to negotiate with the Government in terms of including amendments to the EU withdrawal Bill. What I can say, however, is that from a legal, technical point of view, there are relatively straightforward ways of ensuring what you're asking. One would be, for instance, to include a non-regression clause to suggest that any post-Brexit legislation that affects equality rights, protection of rights related to, one way or another, the Equality Act cannot be interpreted in a way that diminishes or dilutes this protection, unless this is the express intent of Parliament. So, I'm very much talking about a clause that will effectively operate as a presumption and allocate the burden of proof in pending cases to the Government to prove that the intent of Parliament with some post-Brexit instrument was specifically to lower the protection.

Now this is something that I assume would be relatively easy from the point of view of law making. I'm making a very big presumption here, obviously. It would be designed effectively to ring-fence, to safeguard against, post-Brexit turbulence, rather than ensure that nothing will change, which I'm assuming will assuage the concerns of those who voted in favour of Brexit and are very much looking forward to the disengagement. So, what I'm suggesting with a non-regression clause, for instance, would perhaps be nothing more than a way of allocating the burden of proof in discrimination cases.

And if I may offer another straightforward suggestion, it would be possible to think of the equivalent of a favourability clause for post-Brexit equality legislation, whereby any higher level of protection in Wales compared to the rest of the UK should remain in principle higher in order to safeguard against the possibility of levelling down. I know, for instance, that the public sector equality duty in Wales is much stronger, much more robust, compared to the rest of the UK, and if that is to remain the case in a post-Brexit horizon, normative horizon, a favourability clause whereby the more favourable local, as it were, devolved provision rule would trump the national rule would be a way out, would be a solution. 

15:15

Thank you very much for that, that's very interesting. Jack, do you want to lead on to your question? You have both talked about ESF funding—the loss of it—and we have some questions on that.

Yes, I'd just like to bring that up and ask really how effective you think the European social fund has been in reducing inequality in Wales and, moving forward, post Brexit, how we should change the type of funding to ensure a greater reduction in inequality in Wales.

That's a very difficult question to answer. I'm not sure I'm qualified to answer it because I'm not completely familiar with the evidence on the impact of ESF funding. What I do know is that ESF funding has certain priorities around tackling social inequalities that align very nicely with the equalities of the Welsh Government and policy in Wales, and it provides a substantial fund to draw on to support those priorities. The other thing I'm also aware of is that the allocation of ESF funds within Wales takes place as a matter of prioritisation within Wales, and what I'm concerned about is that if that prioritisation doesn't remain in Wales—for example, if the prosperity fund is not prioritised from within Wales—then there won't be any allocation consistent with Welsh policy objectives—or they're less likely to be consistent with Welsh policy objectives. As to the efficiency of those allocations, I make no comment on that.

15:20

Can I particularly expand a little bit further, in the sense that we understand that no-one knows what the shared prosperity fund is, or how it's going to work, or whether it will be based upon allocations to Wales, or a block for Wales then to decide how it wants to—? But Dr Casla mentioned earlier these social and economic duties—if it is to be allocated as a block, is it therefore important that we then use the Government of Wales Act to enact those social and economical duties upon public bodies so that when we are allocated that money it then becomes better to tackle inequalities?

My response would be 'yes'. I think that any framework legislation that gives guidance to public authorities from Welsh Ministers downwards is, I think, helpful. We've got, of course, an example of that within Wales at the moment. In my written evidence, I said that one of the reasons I would prefer that allocations from any shared prosperity fund within Wales take place—the prioritisation takes place within Wales is in relation to children, for example. So, any funds that are going to be dedicated to services that relate to children within Wales, Welsh Ministers will have to think about their due regard duty and due regard to the CRC when allocating those funds. That's not something that applies at the UK level. And if you had a similar socioeconomic duty in Wales, again, that would be something that would apply within Wales but not at a UK level.

So, there are already frameworks in place, certainly in relation to children's rights. It might take something similar in relation to the well-being of future generations legislation, that this framework legislation in Wales that guides the allocation of funds, let's say, from the prosperity fund, and the priorities that it should be used for—. And from what I read about the prosperity fund—and there is no lack of clarity from what I have read—the one thing that I have read is that it's there to meet the priorities of an industrial strategy and that was it as far as I read in the Government's documents. It seems to me that an industrial strategy should sit alongside a social strategy, a strategy for children and young people, an equality strategy. And from my perspective, to come back to your question, I think if Wales can introduce frameworks that will guide any allocation of funds from the prosperity fund, or any other fund, then I think that's an advance in Wales.

On the general question of—[Inaudible.]—more specific: we're talking about equality and human rights almost as if it's a single thing and conflating the two, when arguably they're not, and the EHRC is the EHRC because there are two issues although there are cross-cutting factors. So, how do you believe we should address that—as a single issue or as a dual issue? So, equality and removing barriers to access and inclusion for all as opposed to universal rights that every person is entitled to.

The second question, back to the ESF, and you've indicated the need for policy decision making around the funding to be taken at a devolved level. Have third sector bodies and academia been sufficiently engaged with the Welsh Government in their negotiations with UK Government over Brexit in these and other areas, especially given that most of the programmes at ESF, for example, as funded, have been delivered on the front line through third sector bodies, often in partnership with academic institutions, hopefully moving towards a different approach that is less top-down, more bottom-up, doing things with people and communities rather than to them?

Shall I make a very brief comment on the first question? There is, I think, a structural, technical issue here that relates to the fact that the protection from discrimination enshrined in article 14 of the European convention on human rights is very much a protection of the enjoyment of the rights included in the convention, and this, obviously, cascades down to the Human Rights Act at the other national level. That means that the symbiotic relationship between equality and human rights is part of the normative framework, at least insofar as the Human Rights Act is concerned and the ECHR system.

Now, I think that you've already suggested that the two are intertwined in many ways, and I'm not entirely certain what purpose the decoupling of the two in a post-Brexit scenario would aid, as it were.

15:25

I remember once having a very interesting discussion with a former senior person in EHRC who was helping me to understand the differences. Whereas one is a legally enforceable statement of the rights that every human being is or should be entitled to, the equalities agenda is more focused on working with equality strands to identify and then remove the barriers that they might face. So, it's a co-productive approach. It's seeing the world through the eyes of people who are suffering barriers that others might not realise are there, or that others have intentionally put there, but others are not helping to remove. So, it's how we don't lose the recognition that although there's huge interconnectedness and interdependence, there are differences too.

For me, personally, that's about recognising the concept that human rights encapsulates equality and non-discrimination and that they are intertwined but they may well lead to different agendas in practice. So, when you start to implement human rights on the ground or to look at equalities issues on the ground, you may need to adopt a different focus, and I think that's possibly where—I don't know who you spoke to—that individual was coming from—that they may require different strategic approaches to implementation. It seems to me that human rights are, if you like, a higher level aspiration for governance, whereas actual rights, single rights, and equalities within that are part of the implementation of human rights, equality and non-discrimination as an intertwined and indistinguishable whole. 

In terms of your other question, again, I'm having some difficulty answering that, because I tend to work primarily in the children's rights sector. And in that sector, we have attempted to engage with the negotiations at the UK level around Brexit. First of all, we've done a lot of work within Wales on the impact of Brexit on children's rights and what should be the priorities for Brexit negotiations, post-Brexit Wales and post-Brexit UK. We've linked up with academic and non-governmental organisation partners in Scotland, Northern Ireland and England on this, to the point where we have submitted amendments to the withdrawal Bill, specifically focusing on children's rights, which I think are being considered in the House of Lords. So, we do—. Academia has a role to play, but I can't speak for academia in other contexts outside of my own context.

So, that's direct rather than with the Welsh Government. The question was more focused on engagement with Welsh Government in terms of their approach.

The work that's being done within Wales has engaged directly with the Welsh Government as well, and it's notable, I think, that the Welsh Government has given a commitment to engage with children and young people on Brexit, which has not been given at the UK level. And there are opportunities, I think, within Wales, to influence maybe not necessarily the negotiations, because that's under the control of the UK Government, but what a post-Brexit Wales might look like for children and young people. So, the work that we've done within Wales has included recommendations to the Welsh Government in relation to Wales, but also has engaged external to Wales with some recommendations for the UK Government.

I think you've talked quite a bit about threats but also opportunities in terms of Wales and what we've done already and how we can safeguard that. I think it's—. Your view about using our due regard record is very helpful for us to think about, and also your view on the socioeconomic duties, although this doesn't encompass the whole of equality and human rights. Is there anything else you want to say to us about what we could be doing, or what you think the Welsh Government should be doing in terms of safeguarding equality and human rights post Brexit?

As I said, I think there are risks from Brexit, but I also think, in many ways, there are opportunities. Perhaps not necessarily opportunities from Brexit but opportunities from developing devolution and in particular the Wales Act 2017. In my view, the Wales Act confirms and enlarges the opportunities for human rights legislation in Wales.

I'm fully aware that the Welsh Government cannot enter into the field of international relations or foreign affairs. It cannot, for example, sign the UK up to or withdraw from human rights instruments. But what it can do is it can work to implement and give effect to human rights in Wales. Actually, that's confirmed by the Wales Act, because the Wales Act expressly says that giving effect to the UK's international human rights obligations is not a reserved matter. So, it opens the door, if you like, to human rights legislation in Wales.

In the past, the Welsh Government and National Assembly for Wales has had to look rather creatively at its powers to see what they can do in relation to human rights and they did it very well with the due regard duty and the child rights Measure. Now it has a real opportunity to, if you like, show how Welsh devolution is constitutionally advancing because human rights are part of a constitutional framework, which brings me back to where I started, a constitutional framework in advanced nations. If Wales wants to be an advanced nation, it should look at what it can do constitutionally to protect the human rights of all people in Wales.

15:30

To my mind, it would. The due regard model is inherently flexible. You can have due regard to the charter of fundamental rights. You can have due regard to the international covenant on economic, social and cultural rights. We have due regard to the convention on the rights of the child. What we need to do in Wales is to be confident enough to say, 'We are going to look at what human rights mean in Wales, what the local human rights needs are of the people in Wales, and we're going to introduce legislation and make sure that our public administrations take full account of human rights.' 

I believe that it's very much linked to the previous question regarding the relationship between equality and human rights in more than one way. Let me start by very briefly explaining that there is a fundamental dichotomy in human rights law between negative and positive obligations. The negative obligation is the obligation of the state to respect the right. Now, the negative obligation is pretty much an obligation of state neutrality. The positive obligation, the obligation to protect and promote the right, is where the state is required by law, by statute, to take active steps towards facilitating or achieving a right.

I'm saying that to preface a point regarding the connection between equality and human rights, which is, effectively in this regard, that equality is at once a principle, an ideal, a value, a foundational value and an individual right. What you've been suggesting is very much about looking at equality, at non-discrimination at the level of protecting and promoting—at the level of doing more than the mere abstaining from violating the right. So, what you're thinking is that equality legislation as it stands, through the cross-fertilisation with European norms, now protects not just from direct discrimination but also from various other types of discrimination. This is perhaps a step from the bottom negative obligation to the more rich positive obligations.

The same normative journey is true about all human rights protected under the convention system, the European convention on human rights, all as a matter of EU law. This is a very significant similarity for our purposes: that the way we treat equality and the way we treat human rights—and by treat I mean normatively, at the national level—is very similar in that respect. The obligations of the Welsh Government and of the UK Government, insofar as the protection of rights and the protection of equality are concerned, are very similar.

In terms of what the Welsh Government can do specifically—and I assume that this perhaps means even when proposals are defeated at the UK level—the answer, I guess, is political rather than legal. So, I'm not sure that I can contribute much more to this kind of discussion, other than what I've already said about a non-regression clause or a favourability clause.

15:35

I think it will be both political and legal, because we may be challenged in the Supreme Court if it's not acceptable. Thank you very much for your time. I'm going to ask one final question. 

Right, okay. Thank you. I quite like the way that this engagement has gone today. It's about looking for different ways to skin this particular cat—whatever that saying is. Obviously, there's been a lot in the news recently about alignment or convergence, post Brexit, with the EU rules and regulations. How likely do you think it is that, for there to be a trade agreement between the UK and the EU as a whole, the EU is going to insist on certain human rights, equalities or social and economic conditions before it says 'yes' to such a trade agreement? It's a speculative question—I won't hold you to it.

It seems to me that if, as an institution, you embed constitutionally human rights principles in everything that you do, then that will include negotiating trade agreements. It seems to me—I'm no expert on trade agreements, but I have read a little around this—that the priorities for the EU when negotiating trade agreements are, first of all, to promote free trade and, secondly, to promote human rights. So, I would think it would be highly likely that any trade agreement with the UK would prioritise human rights. Having said that, there are obviously no guarantees. Trade agreements are negotiated by two parties and it may well be that—

I would be absolutely gobsmacked if it wasn't a priority for the European Union in negotiating trade agreements. 

That's what I would have thought as well. Would you agree with that?

I would. There is one proviso that, insofar as citizenship as a protected characteristic is concerned, we're not simply talking about non-discrimination as a fundamental right, as a human right, but we're taking about non-discrimination as an existential principle of EU law. So, equality in the treatment of citizens of other EU member states is part of the backbone of the EU common market, it's part of the four fundamental freedoms insofar as workers are concerned, and this is very much an issue that will be at the forefront of any such trade agreement, unless we're talking about a bespoke customs unions that will somehow imagine a common market without the labour element as part and parcel of that market, which is not something that I can imagine, for one. So, we are talking here about two slightly different things. I'm 100 per cent in agreement with what Dr Hoffman has said insofar as the human rights element is concerned, but equality of treatment on grounds of citizenship is a different beast insofar as EU law is concerned.

Can I just clarify—? Because my question would have been something similar on the trade Bill. We've talked about the EU withdrawal Bill, but there's a second Bill that requires our consent as an Assembly, and that's the trade Bill, where there are similar concerns as to what the longer term possibilities are without the guarantee. Is it your view that you could actually have a weakening of rights, but, because you're doing trade with certain countries, one trade agreement may be different to a different trade agreement that requires different—[Inaudible.] It could be possible that that exists, because I wouldn't have thought a trade agreement would actually require us to impose a law upon rights in that sense. 

I think my fear for trade agreements is that, in the scramble, post Brexit, for the UK to enter into trade agreements, human rights will become a secondary consideration. Obviously, we don't know, because we don't know what those trade agreements are going to look like, but certainly there has been—I hesitate to use the phrase 'developments' because that's too concrete, but there's certainly been worrying signs recently about where the UK may go in terms of its trade agreements with countries that have a less than commendable record in relation to human rights. Perhaps if I leave it at that.

15:40

Well, let me ask the last question then. Has the EU done a trade agreement with countries that have a less than reputable human rights history, and, as a consequence, we've not seen those countries change that?

That's not my area. I appreciate I'm dodging the question. I have to say I think it's a really good and interesting question, and I'm certainly going to go away, think about it, and look at it, yes.

Okay, thank you. Well, time has come to an end. So, can I thank you both for attending? Can I also apologise for saying the wrong university at the start? It's the University of Portsmouth. You will receive a copy of the transcript; if there are any factual inaccuracies, please let the clerking team know so that we can get them corrected as soon as possible. So, once again, thank you for your evidence this afternoon.

I now propose we have a five-minute break, so we can just get our thoughts together, and we'll reconvene in five minutes. Are Members happy? And, for the public, I do apologise—that means we're going to have a five-minute recess.

Gohiriwyd y cyfarfod rhwng 15:41 a 15:51.

The meeting adjourned between 15:41 and 15:51.

15:50
4. Cydraddoldeb a Gadael yr Undeb Ewropeaidd: sesiwn dystiolaeth 3
4. Equalities and Brexit: evidence session 3

Can I welcome Members back to this afternoon's session, where we're doing our third and final session this afternoon on evidence relating to equalities and implications following Brexit? Can I welcome Rhian Davies from Disability Wales, Andrew White from Stonewall and Uzo Iwobi from the Race Council Cymru? Welcome. We've received apologies from Catherine Fookes from the Women's Equality Network. Unfortunately, she's had a family bereavement. Perhaps we can start with you giving—and there's three of you, so I'll restrict you to three minutes each—but perhaps you'd like to give your main areas of interest in relation to equality and the implications around Brexit particularly. And we've got some questions we'll want to move into then, if that's okay with yourselves. So, we'll start with Rhian and then we'll go left to right, from my position, across. 

Thank you. Prynhawn da. Thanks for the opportunity to address the committee. Disability Wales is the national association of disabled people's organisations, striving to achieve the rights and equality and opportunity for independent living for all disabled people. We've got a number of areas of concerns where we would want to ensure that, post leaving the European Union, the rights of disabled people continue to be addressed.

Some of the particular areas that we've been involved in identifying—and I can speak more in detail later—include: ensuring that all EU-based disability rights that currently exist, at the time the UK leaves the EU, will be maintained, particularly those in relation to air and ship travel, web accessibility, accessible goods and services, public procurement and manufactured goods; the maintenance of existing disability rights, which are incorporated in domestic law, at the time of exit; that the UK Government continues to be ahead of the curve on disability rights, and remains fully committed to implementing standards equivalent to the new European accessibility Act; and that EU funding is at least matched in terms of disabled people's organisations and disability rights.

We also have issues around Government plans for freedom of movement, and how those relate to a range of different individuals, in particular how it might impact on the workforce amongst personal assistants and general health and social care workers. Also, continued mutual recognition of initiatives useful to disabled people, for example the blue badge scheme, which is available across the EU, and also the health card, E111. Also that the UN convention on the rights of disabled people should have heightened status in domestic UK law—this is a particular issue that we are keen to see Welsh Government addressing—and that there's continued commitment to the European convention on human rights. 

Prynhawn da. I'm Andrew White, representing Stonewall Cymru here. Our main field is the area of lesbian, gay, bi and trans—which, from now on, I'll call LGBT—equality and human rights here in Wales. We work with the employers of around a third of the Welsh workforce. We work with schools right around Wales, training teachers, and reaching, hopefully, thousands of young people, and we work with communities at a more local level right across the country.  

With regard to today's meeting, in recent decades Britain has, of course, benefited greatly from EU membership, which has improved and strengthened much of our equalities legislation and, of course, case law. It's vital from our perspective that the exit from the EU doesn't result in LGBT people in Wales losing some of these rights, or in some way having them diluted or less protected in law. 

We welcome the commitment outlined by Welsh Government and Plaid Cymru in 'Securing Wales' Future' that the guiding principle in leaving the EU is that it should in no way reduce focus on promoting equalities and challenging discrimination wherever it exists. We also agree with this committee's last report that there should be no weakening of equalities legislation and employment protections when we leave the European Union. 

We are, however, concerned that this is not the course we're on track for, and this is for three key reasons. Firstly, the UK Government has pledged to retain equalities protections on leaving the EU. However, the European Union (Withdrawal) Bill, as it currently stands, contains no such guarantee. It gives UK Ministers delegated powers to change equalities legislation without real scrutiny or challenge in Parliament. 

The Bill, as it stands, states explicitly that the charter of fundamental rights will not be part of UK law on and after Brexit day. Although Britain's current equalities legislative framework exceeds some of the provisions in the charter, we are deeply concerned that, without those minimum standards of rights outlined currently in EU law, there's a risk that protections provided by the Equality Act currently will be open to erosion. 

And, finally, we are greatly concerned that the Bill will remove the ability to bring action to the domestic courts under the general principles of EU law. We're also concerned about delegated powers—the Henry VIII issues.

We don't take a position as an organisation on Brexit. Brexit is Brexit, and we want to ensure that the withdrawal Bill is amended to ensure that neither the Bill nor the powers it currently provides unpicks our existing LGBT equalities and human rights frameworks.   

15:55

Thank you, committee, for the opportunity. I represent Race Council Cymru, which is an organisation established by ethnic minority communities across Wales in 2010 to represent them and voice matters that concern them. We also sit as the black minority ethnic representative on the third sector partnership council, which is funded by Welsh Government.

Our concerns around Brexit are slightly more pointed, I guess, because, post Brexit, the panel and the committee will know that Victim Support Cymru, which is the national organisation that leads and collects information on hate crime and racist incidents, marked and noted a 76 per cent rise in racially aggravated incidents. The reporting also rose not just in Wales but across the UK. 

We were particularly concerned that organisations that had previously never reported racism and racist hate incidents, such as children in primary schools as young as six and seven, were beginning to report racist statements, racist incidents, in their schools against people of diverse ethnic backgrounds. The most current groups that were targeted specifically post Brexit were eastern Europeans. It's continued to rise steadily, and we've reported this to Welsh Government. Our concern is that, in any Brexit negotiations, the rights of individuals who are visibly different from diverse ethnic backgrounds and also who are not visibly different but are, on the basis of their nationality, should be protected and preserved.

This year, we're working with the UK Parliament on recognising the fiftieth year of the passing of the Race Relations Act of 1968, and we ask ourselves: 50 years on, what has actually changed? We are still noting extreme racism, especially around the Brexit agenda. For us, the concern of our grass-roots ethnic minority communities in Wales is that the Welsh Government should represent us strongly in any negotiations with regard to Brexit (1) that employment rights for all people from diverse ethnic backgrounds are protected, and for a more cohesive, more impactive good race relations Act, which was part of the previous Race Relations Act of 1976, as amended in 2000, but not part of the current Equality Act of 2010 specifically. If there is any way to introduce measures in the new Brexit package that ensure the fair treatment of all peoples, irrespective of their ethnicity, language or background, that is something that we would urge the panel to work hard on on behalf of Wales's communities.

Finally, just to summarise, the use of the race charter mark we thought would be a particularly helpful measure, but Runnymede Trust, which implemented it over a series of years, were not convinced that even the organisations that have signed up to the charter mark have made a significant difference. So, we would propose to the committee to seriously consider including black history education in the Welsh curriculum, because we have evidence that we can produce in writing that, where this was implemented by the late Mrs Elizabeth Campbell in Mount Stuart Primary School, the students, the pupils, who went through that education are now lecturers, some of them at the Cardiff Metropolitan University, and have written extensively about the impact such early education has had on their development and their understanding and their tolerance. That is a positive story that we can tell about the power of black history and the positive work that we have in Wales going on. So, to ensure that, as we broach the Brexit conversation, we have something that we can actually say: 'This has worked, and we want more of this, because we want to know that that is what success looks like when children are brought up with a very inclusive and dynamic curriculum'. Thank you.

16:00

Okay, thank you all. You've highlighted some points there and we've got some questions; perhaps we can expand upon those points a little bit. I'll open the questions. Clearly, you've all stressed the importance of the rights of the various aspects, and the European charter of fundamental rights has been the backbone of EU law, effectively. The EU withdrawal Bill at this point in time has been amended to incorporate any consideration of the EU charter of fundamental rights, and we don't have it in our constitutional arrangements, as other countries have. So, how do you see the implications of the removal of that backbone, effectively? Do you see, in the discussions you're hearing from UK Government, that these rights will be protected long term? As many of you pointed out, we talked about at the point of exit—what goes beyond that? So, is your view that there needs to be further action and perhaps Wales needs to take individual action on looking at how we can work with the EU charter of fundamental rights and how we can incorporate the relevant elements, preferably in the UK, because it covers everybody, but definitely in Wales? Rhian, perhaps the first one for you.

Okay. Certainly, obviously, it would be greatly concerning if there was any rolling back of anybody's rights when we leave the European Union. One of the things that I know many of us would like to see, working in the equality and human rights field, is a strong vision coming from all political parties about what the future could look like, and how people's and citizens' rights—equality and human rights—would be protected. But I would say that there is a clear role for Welsh Government. I know this has long been a debate, should equality be devolved to Welsh Government, and of course we've seen the benefit under the Equality Act; Welsh Government I think managed to squeeze in the specific equality duties and, talking to my colleagues in England, Scotland and Northern Ireland, they're quite envious of those specific Welsh duties in Wales, because they are more robust. So, I think there's a precedent there. That's also why, in the disability rights sector, we're very keen that the UN convention on the rights of disabled people has greater status in Wales than it currently has, because I think that could be an important way forward to protect certainly the rights of disabled people, because the UN convention is a cross-cutting instrument and I think that could have great effect. I'm sure colleagues would be saying similar things in relation to the other UN conventions as well.

16:05

Yes. I think we are very keen to stress that the removal of the charter, or the removal of the UK's responsibilities under the charter, or answerability to it, leaves us in a worrying situation where there is no supranational standard as such, that, even though, currently, our equality laws go further, there is no standard beyond whichever party is in power in Westminster, whichever particular political whim is driving the narrative of the day—. And we've seen, over recent years, across the world, some rather dangerous, from an LGBT rights perspective, narratives gaining ground, most notably, perhaps, in Indonesia and in the United States in recent weeks.

In terms of the devolution of equality, I'm conflicted greatly on this issue, because, actually, there is no single equality agenda as such, and equality is already devolved in many ways here in Wales, so, when we talk about education, which is devolved, the responsibility for equality to be implemented in that education sector is already devolved, to all intents and purposes. Employment law is not, save for one exception in the new Wales Act, devolved, so we couldn't therefore legislate on employment rights from an equalities perspective. So, the entire devolution of equality is, in my opinion, quite problematic. Does that mean that Welsh Government and the National Assembly should do nothing and sit on their hands and say, 'Not our job'? Absolutely not. And, throughout the whole remit of the Assembly's business and the Welsh Government's business, there should be a fundamental underpinning of that in equalities and human rights.

Thank you, Chair. On behalf of Race Council Cymru, our grass-roots communities voice concerns consistently about the lack of inclusion and the difficulties in what they term 'everyday racism', and that is blighting the lives of ordinary citizens. We would definitely urge the Welsh Government—and I agree with my colleagues and surely what Rhian said—to have a cross-party position on what is expected for the citizens of Wales. The UK wider effort is noted and may end with the exit from Europe. However, I think, in Wales, we have been standard bearers on equality and we have gone the extra mile on the specific duties under the Equality Act, much further than any other Irish, Scottish or UK Government—I mean England—have gone.

I think we have a position here that is maintainable and justifiable, and in the interest of our communities. The rise in Wales was spectacular—a 76 per cent rise in the reporting of racist incidents. And, actually, the Home Office stated that, from their own records, upwards of more than 2,000 incidents were recorded by police forces in the south Wales area. So, we have quite a few statistics that are startling and concerning, and I do think that, in the best interests of the citizens of Wales, the committee would be absolutely supported by our organisation, and I'm sure my colleagues', in pulling together a very robust position paper that would hopefully add to your thoughts on the way forward. I do think that we do have no choice but to protect children who are blighted by racism and sexism and disability, discrimination and LGB-related hatred.

16:10

We've been talking to other witnesses this afternoon about ways in which we could—or the Welsh Government could—explore ways in which we could have new legislation in Wales to implement the EU charter of fundamental rights. I think you mentioned the Equality Act 2010 and the fact that we've got a stronger public sector duty. It's been mentioned this afternoon that perhaps we should implement the socioeconomic duty. I don't know if you've got any comments on that, but, obviously, the fact of the charter for disabled—the UN charter—one of the lawyers, Professor Hoffman, was talking about we should be looking to due regard for human rights because that's  been very important for the children's rights Measure. WCVA, of course, on behalf of the third sector, has called for us to look at this. Do you agree with those points?

Yes. I think the specific point about the socioeconomic duty, because I think that one just fel—. It's in the equality Act but it didn't get through at the time of—. There was a change of UK Government in 2010, wasn't there, and it fell. It's on the statute, but I think the reality is that inequality does generally go hand in hand with a person's economic status. Speaking from the perspective of disabled people, high levels of disabled people face poverty. In Wales, there's a 36 per cent employment gap between disabled people and non-disabled people. We've got the highest claimant rate of benefits like DLA and PIP anywhere in the UK, so it is vital that you tackle both issues hand in hand.

For a number of years, I was on the Welsh Government's tackling poverty external advisory group, and I often argued for the fact that often, because initiatives like Communities First tended to be place based, they didn't necessarily recognise the particular protected characteristics. If you're a disabled person, you don't necessarily live in the poorest areas because of the way housing allocation is carried out, for example. So, I think it's vital that both issues—inequality and socioeconomic factors—are tackled hand in hand, definitely.

Yes, absolutely. The delegation—I don't know whether it's the non-reserving now—of the socioeconomic duty that now comes directly under the competence of the Assembly in the new Act is absolutely vital. Some would argue, and I might agree, that our duty on tackling poverty, on addressing socioeconomic inequality is already in the competence of our national Parliament here in Wales.

If we talk about health inequalities, for instance, if we talk about housing and homelessness, child poverty, we have all sorts of things to consider as responsibilities of socioeconomic inequality. Of course, many already marginalised groups find themselves further marginalised if they are poor. So, if you are struggling coming out as gay or lesbian and wanting to leave home, you could end up in a homeless situation, for instance, or, on your gender identity, where to wait two or three years to see a consultant in London, all the money that then incurs with trying to realise your own gender identity—. We're not a unique case within the LGBT communities in Wales. In fact, it's far too common that people are doubly disadvantaged by socioeconomic inequality.

16:15

Thank you, Jane. I recognised a lot of the work that you did as equalities Minister at the time to push some of these strands through. I do agree that there has to be a real focus on the socioeconomic duty, which we recognise, but, for us, to think also about the fact that Wales is an ever evolving country. We've always had rich and vibrant diverse ethnic communities, and the progression in intolerance is a concern, especially with the issues that are facing kids as little as six who are refusing to go to school because they're targeted. For us, some of those kids live in disadvantaged parts of Wales, and the more you live in a poorer environment, the more likely you are to face added pressure. So, in these times, for us, of global anti-immigration, anti-Muslim, anti-racial environments, I think that Wales's long-standing multicultural history that has always set it apart from the rest of the UK needs to be celebrated and protected, and also ensuring that people who live on the margins of society, people who come from across the nine protected characteristics, are properly protected. So, 'yes' to all the questions you ask, Jane, but we need to be more—I'm thinking of the word—more robust—

—vigorous in protecting especially those people who have no voice.

Thank you. I just want to pin you down a little bit, if I can. We sort of started with other witnesses on the basis that there's no intention, by the sounds of it, for any government, whether it's here or in the UK, to reduce human rights, but the risk is there, obviously, for the reasons you've said before. We've also heard from witnesses, as Jane mentioned, about the possibility of Wales using the powers it already has to implement due regard of virtually anything it wants to. We've heard that there's a possibility for Wales, with its current competences to introduce a favourability clause so that if you've got two sets of legislation dealing with the same issue, then it's the one that's the most favourable that should be the one that gets followed. Bearing in mind that we're all worried about what the UK Government's going to do with its legislation, shall we just get on with it  ourselves here—this particular issue?

Absolutely. I think we should lead this and be a standard-bearer, as we've always been. Because, the time is now, as you say. We could hesitate and we could wait to see what comes, but I don't think we're going to get anything better than what we currently have. So, to continue to be a champion for change, and to demonstrate to Welsh citizens that our Government care for us and hear our voices, is powerful, absolutely. I would say due regard on all the key areas of equality—due regard even, as Jane said, to introduce the socioeconomic element. Why not?

So, there's no real reason for having—[Inaudible.]—I'm trying to establish.

Can I ask a question? Obviously, before Suzy has to go, I know—

At the moment we have been talking about the EU withdrawal Bill and the fact that the amendment that was put forward on the charter was defeated, but there is a continuity Bill within Wales that's under consideration. Would you expect such a continuity Bill, which is about converting EU law in devolved areas as far as Wales is concerned, to actually reflect the discussion that's already been looking for, actually, separate legislation to address this?

I think a continuity Bill for Wales absolutely has to address it. That is the responsibility of this Parliament. What we've been asking for is the cut and paste, if you like. Not to denigrate that, but let's migrate all our European responsibilities—current EU membership responsibilities—into a withdrawal Act  rather than getting rid of some—. So, withdrawal from the charter, for instance. Let's have it there. That principle has been accepted by the Westminster Government to an extent on the European convention on human rights. So, that will remain in place until the end of this Parliament. So, that principle is already there, and what we would say is, 'Okay, if we want to come and look at equality legislation in the future and what's fit and right for Wales or the UK, let's not throw the baby out with the bath water in the process. Let's not let equality, or human rights for that matter, get lost in the noise and confusion around the migration towards exit day.' So, absolutely, Wales should have a continuity Bill that does indeed incorporate some of these pertinent matters.

16:20

And if it doesn't have a full continuity Bill—sorry, if I can finish off—this bit could be done separately anyway, surely.

Well, particularly in areas of current competence—health, education, housing, domestic violence, agriculture, culture. All these things could already come under a continuity Bill and come under real action that could happen now. It doesn't have to wait for the EU withdrawal Bill.

We are aware that we haven't seen a continuity Bill, and therefore we don't know what is in it, and there could be amendments to that as well, so I'm sure you will be as interested in the Bill, once we see it, as we are.

Yes, I just want to come in. I think we probably all feel that we should be doing what we're doing, that we should do more with our powers with regard to what's happening with the EU withdrawal Bill. Even with the continuity Bill, we want to build on what we've done. But there are some real threats, particularly I think, Rhian, you mentioned the European Accessibility Act, and future EU accessibility legislation is what we could lose out on. So, I think for us as a committee we have got to have a view—hopefully express a view as a result of your evidence—that there are things that we haven't even thought about yet in terms of such things as—. I don't know much about the European Accessibility Act, but we could lose out even if we don't transpose through a continuity Bill or get amendments through. So, we should be building on those kinds of developments, would you say, in the EU?

Yes. Certainly, again, from a disability perspective, the EU has been very progressive around disability. There's been a range of measures. I think it's something like the 2006 passenger regulations or something, and that's about ensuring that if you travel by plane, train, coach or whatever as a disabled person you get assistance. Things like that aren't covered by the Equality Act. We get that through EU directives, so it's important that things like that—. Web accessibility is vital. The EU accessibility Act is about trying to bring together the design standards around things like smart devices, ATMs, that sort of thing. That's an area where there's a danger of individual nations going down their own route in terms of the regulations. So, the EU Accessibility Act is about trying to co-ordinate that and make sure, again, that there's a level playing field across the EU. I think that given that the UK, including Wales, has been a driver for technology and applying that, it would be a tragedy if we lost sight of that.

There's a danger of this debate being just about holding on to what we have. I think it's also important to recognise the progressive role that the EU has played. How do we keep ahead of the curve and not just regress?

Thank you, Chair. I just wanted to touch a bit on funding, really, and the European funding that we receive. We haven't talked about it with this panel. I'd just like to know your views specifically on the European social fund and the equality requirements behind that. Going forward, post Brexit, what can we do to ensure that it is better for equality matters and how should we replace it or change it if needed?

16:25

Yes, it's a big concern. As we all know, Wales has been a net beneficiary of EU funding in its various guises, and, again, the EU has had a progressive influence in ensuring that the way that EU funding is distributed took into account equality characteristics, and, certainly, a number of the economic development programmes in Wales, the beneficiaries have included disabled people. To be honest, I would like to have seen much more emphasis on that because disabled people do feature so highly in issues around poverty and economic inactivity and unemployment. One of the things that we, along with our sister organisations across the UK, are calling for is that match funding that replaces EU funding should be at least as generous as we currently get through the EU and that has to be a basic requirement.

For us, within the race sector, the difficulties, as we know, were multiplied post the impact of AWEMA, and a number of grass-roots and umbrella bodies have suffered significantly from not being able to access EU funding as a result of the impact of that. In Nigeria we have a saying that when two elephants fight, the grass suffers. So, our grass-roots communities have felt the pain and many of them have actually shot because they are not able to continue to deliver services, and that's put additional pressure on organisations. For example, the African community centre that I helped establish is now providing services to 170 women from Pakistan, Sri Lanka and Afghanistan, because they have no facilities. The Bangladeshi society's shot. So, European social funding paused post AWEMA and we're still feeling the pain and the difficulty of having to justify our personal integrity as organisations to even access any funding.

The race sector is very poorly funded anyway, and I do think that it would be a wonderful thing for the panel, especially in the light of the rise in racist hate incidents, for this to be a priority area for funding, and whatever fund is put in place to replace the EU funding that we currently get, there should be an opportunity to review again the strength and governance of current organisations like ourselves to deliver effectively, because we feel that we're still being punished for AWEMA. It's probably not happening, but that is how the grass roots feel and that is how many of us feel. This lack of trust is in the air, and how do we shift that? So, it's a very difficult environment to do painstaking work on a voluntary basis.

Okay. Can I, obviously, ask the question: in relation to replacement funding, which clearly is important to Wales, particularly, as you all highlighted, for the most hardest hit areas, the deprivation areas of Wales—because you have the poverty issues as well as the challenges you face—are you aware, any further than we are aware, of the shared prosperity fund that is being talked about? That is, has anyone on a national level had discussions as to how that might work to support communities? I'm just trying to find out information.

It's a 'no' from me, as they say on the outside.

As far as your organisations are concerned as well, it's still a black hole as far as your organisations are concerned?

One point I would like to raise is the importance—. Because I think it is interesting that despite all the billions of pounds that Wales got from the EU, obviously, there is still a sense in Wales that people feel left out, people feel marginalised and, you know, maybe there's been a sense that the money's gone into roads and buildings rather than actual change in individual people's lives. I suppose a point I'd like to raise is that, in terms of any new funds that become available, replacement funds, that they are targeted at organisations that directly represent different groups. So, obviously, in our case, we'd be talking about disabled people's organisations and on the basis of 'nothing about us without us'. In terms of designing programmes that tackle disabled people's unemployment, disabled people's organisations should be key to what's needed, how resources should be allocated, and what actually works: things like peer support and peer mentoring—those kinds of initiatives that are specifically targeted at the particular needs of individuals. So, that would be quite a strong point that I'd want to make today to see taken forward.

16:30

So, your view is that whatever comes as a replacement should also have the socioeconomic responsibilities and we want to see equalities being improved upon as a consequence of that, and that should be driving the priorities rather than being on the periphery to the priorities.

Yes. It has in a way felt that it's been a bit of a tick-box, that you tick the equality boxes rather than—again, in the case of disabled people—actually being fundamental to the way in which programmes are designed and implemented.

I would say, from my perspective, the narrative needs to change on the whole funding issue. So, what we've seen in Wales during the run-up to the Brexit vote, and the result, arguably, is people whose communities have received billions of pounds in EU funding and, during the debate, there was a lot of talk about the amount of money that was invested here or invested there, what this road cost, what this community centre cost, and there wasn't, in my view, enough talk about the impact that was having on real lives. Going forward, this is an opportunity to be steered not by specific amounts, but by very specific impacts, which I know is easy for me to say, and it's easier said than done. But if we're going to achieve long-lasting and sustainable change to communities, then that narrative needs to develop with that.

I think it's got to be the lesson, hasn't it? It's got to be the lesson that we all take.

And I think, Chair, something that Rhian said echoes very strongly with ethnic minority groups across Wales. They're very much stating that lessons need to be learnt from what happened with AWEMA, because it's not a question of policy makers deciding which are the organisations they hear about. It's about grass-roots ethnic minority communities being canvassed for their opinions on what works, because these are their lives; it affects them. And decisions are regularly made without consulting with the grass roots who are actually impacted, and I do agree with what Andrew said. It's got to move from, 'Okay, here's a tick-box situation where we're just agreeing we've done race, we've done religion.' What is the outcome? What does success look like for people at the grass roots? What will make that little girl, sitting next to a black girl at six years, stop the rhetoric or feel better to interact in a more positive framework? What are the ideas parents at those levels have? These are the key questions that should drive funding. Who is actually going to be able to deliver the work that makes a difference to grass roots?

I don't think so. I think we've covered a lot of really excellent ground. Thank you.

I want to ask you a question. We've covered it quite a lot, but the Trade Bill, clearly, has a slightly different dimension on the whole picture because whilst the EU withdrawal Bill's about retaining EU law—and whether the charter of fundamental rights comes into that is one issue—the Trade Bill talks about then having Henry VIII powers to change things, particularly in relation to what is known as international trade agreements, and we still don't know what that is. But if you have views on that, they would be welcome. I'm conscious that we have time against us now, but if you have some views on that, if you wish to write into the committee, we'd be very interested in that. 

Thank you for coming this afternoon and for giving your evidence. You will receive a copy of the transcript. If there are any factual inaccuracies, please let the clerking teams know as soon as possible so that we can get them corrected. Once again, thank you very much for your time.

5. Papurau i'w nodi
5. Papers to note

For committee members, I'd like to move on to the next item on the agenda, which is item 5, papers to note. We have several papers to note. I'll go through them: the letter from the Chair of the Constitutional and Legislative Affairs Committee to the Secretary of State for Wales regarding the European Union (Withdrawal) Bill; the letter from the Minister for Housing and Regeneration regarding the Regulation of Registered Social Landlords (Wales) Bill, and our report on Stage 1 and the recommendations; similarly, a letter from the Minister for Housing and Regeneration to the Chair of the Constitutional and Legislative Affairs Committee regarding their Stage 1 report on the Bill; and, similarly, a letter to the Finance Committee regarding their report on the Bill.

I wish to remind Members that this Bill will be coming before us at Stage 2; therefore, I hope that everyone will make detailed notes on the contents of the Bill and the responses to the recommendations on the Bill before we progress to Stage 2.

Also, a paper to note is a letter from the Chair of the Health, Social Care and Sport Committee to the Cabinet Secretary for Finance regarding how the Welsh Government is preparing for Brexit. Are Members content to note those letters? 

16:35
6. Cynnig o dan Reol Sefydlog 17.42(vi) i benderfynu gwahardd y cyhoedd o weddill y cyfarfod heddiw
6. Motion under Standing Order 17.42(vi) to resolve to exclude the public from the remainder of today's meeting

Cynnig:

bod y pwyllgor yn penderfynu gwahardd y cyhoedd o weddill y cyfarfod yn unol â Rheol Sefydlog 17.42(vi).

Motion:

that the committee resolves to exclude the public from the remainder of the meeting in accordance with Standing Order 17.42(vi).

Cynigiwyd y cynnig.

Motion moved.

Under Standing Order 17.42(vi), I now propose that we move into private for the remainder of this meeting. Are Members content?

I take it that they are; therefore, we now move into private session.

Derbyniwyd y cynnig.

Daeth rhan gyhoeddus y cyfarfod i ben am 16:36.

Motion agreed.

The public part of the meeting ended at 16:36.

Archwilio Cynulliad Cenedlaethol Cymru