We now move on to item 6, which is 'Equalities and Brexit—Joint findings by the Equality, Local Government and Communities Committee and the External Affairs and Additional Legislation Committee'. So, I call on the Chair of the Equality, Local Government and Communities Committee to move the motion—John Griffiths.

Motion NDM6848 John Griffiths

To propose that the National Assembly for Wales:

Notes the joint findings by the Equality, Local Government and Communities Committee and the External Affairs and Additional Legislation Committee on 'Equalities and Brexit' which was laid in the Table Office on 25 October 2018.

Motion moved.

Diolch, Dirprwy Lywydd. I am pleased to open this debate on behalf of both the Equality, Local Government and Communities Committee and the External Affairs and Additional Legislation Committee. I believe this is the first time that such a joint committee debate has taken place. I think that indicates the importance of the issues we are here to discuss. It is important that we continue to set the bar high in Wales for protecting human rights and reducing inequalities. Before going further, I would like to thank all those who contributed to both committees on these important matters.

I think it is worth setting this debate in the broader context. In Wales, we have a proud history of protecting equality and human rights in innovative ways, such as passing the Rights of Children and Young Persons (Wales) Measure 2011, a piece of legislation that leads the way across the UK and, indeed, the world. Our committees have been considering the impact of Brexit on equalities and human rights over the past 18 months. This culminated in our joint letter to the First Minister earlier this year, in which we called for the protection of rights under the EU charter of fundamental rights to continue after Brexit; the proposed UK shared prosperity fund to be administered by the Welsh Government to help take account of local needs and inequalities; greater clarity as to whether the socioeconomic duty under the Equalities Act 2010 will be commenced by the Welsh Government; existing rights to be protected, and a commitment to no regression in rights; for Wales to remain a world leader in human rights and equalities—in particular, our committee has repeatedly called for a formal mechanism to track future human rights and equalities developments to ensure this happens—and that the community cohesion plan is updated before summer 2018, which, obviously, has now gone, to take account of recent issues in hate crime.

I will now turn to each of these issues in more detail. The EU charter of fundamental rights incorporates rights beyond those in domestic legislation, such as the Human Rights Act 1998, in particular in relation to social and economic rights, which currently are not well-recognised in UK law. The Welsh Government’s Law Derived from the European Union (Wales) Bill included a requirement for EU-derived Welsh law to be interpreted in line with charter rights. This would have provided some limited protection for charter rights in Wales. However, the Welsh Government has now committed to take steps to repeal this legislation. We are unconvinced by the UK Government’s analysis that charter rights are already protected by domestic law. Our view was shaped by the Equality and Human Rights Commission’s legal advice that stated the charter rights went beyond protections currently provided for in UK law. 

In responding to our letter, the First Minister stated that discussions were under way with the UK Government about a political agreement that would endorse the existing framework of equal treatment legislation in force across the constituent parts of the UK. The First Minister also told us that they would continue to work with the UK Government to seek assurances on individual rights. Today, I would appreciate an update on these discussions from the Welsh Government—what further steps they intend to take to ensure that charter rights continue to be in force once we leave the European Union and for more detail on the political agreement cited in the First Minister’s response.

We heard evidence from a number of stakeholders raising concerns about the loss of EU funding targeted at human rights and equalities issues. Wales currently receives £370 million a year from the EU. We recommended that the shared prosperity fund should be administered by the Welsh Government to enable it to be sensitive to local needs and inequalities. We also called for the fund to be targeted at tackling inequality and socioeconomic disadvantage. We welcome the Welsh Government’s support for this call, and, today, I would ask for an update on how discussions with the UK Government are progressing on this important matter.

An important part of our work was understanding what more could be done in Wales to ensure that we stay ahead of the curve in relation to human rights and equalities. Stakeholders called for the socioeconomic duty in the Equality Act 2010 to be enacted in Wales. We note that this duty has now been enacted in Scotland, and we have the powers to do the same in Wales. In the recent report, 'Is Wales Fairer? (2018)', the Equality and Human Rights Commission have recommended that this duty is brought into force as a matter of priority. 

We called for clarity from the Welsh Government as to whether they would be seeking to enact this duty. We note that in the response, the Welsh Government places a great deal of emphasis on the Well-Being of Future Generations (Wales) Act 2015. This, of course, is an important piece of legislation, but it does not deliver the same effect as enacting the socioeconomic duty. The Government also stated that they would be reviewing their position in light of the rapid review into gender equality, and the Scottish Government’s experience of implementing the duty. So, can the leader of the house outline when she expects the Welsh Government to make a decision on whether this duty should be enacted in Wales? 

Dirprwy Lywydd, another way of protecting human rights within Wales would be the incorporation of international human rights treaties into Welsh law. We note that, in responding to our recommendation calling for further consideration to this suggestion, the Government emphasises the well-being of future generations Act once more as the primary legislative framework for this. While acknowledging that, we would highlight again that this Act does not provide for any legal challenge if rights are not being upheld. It's an important piece of legislation, but it is not one that can sufficiently ensure human rights protections.

We also heard concerns that, once we leave the European Union, human rights protections will be freeze framed. Disability organisations, in particular, highlighted a number of pieces of future UK legislation that they were concerned the UK would not benefit from. This is why we have called for a mechanism to monitor future human rights developments to ensure that Welsh citizens continue to receive the same protections as those within the European Union.

In responding to this recommendation, the First Minister highlighted that Welsh Government would continue to work with the Equality and Human Rights Commission to monitor human rights progress. Can the leader of the house now provide greater detail as to how this will happen?

Our final area of concern was around the perceived increase in hate crime following the EU referendum. We called for the community cohesion plan to be updated before summer 2018. In responding, the Welsh Government committed to publishing this, but did not state when that would happen. In July, the leader of the house stated that they would be consulting on the revised community cohesion plan in the autumn. Today, will the leader of the house outline exactly when this consultation will happen and when she envisages the new community cohesion plan will come into force? Dirprwy Lywydd, I now look forward to hearing contributions from across the Chamber.

This is a useful debate and report, and these are important matters that require very careful reflection. I think I will start with this controversy over the EU charter of human rights, which—. My understanding is that that actually catalogues the rights that exist under EU law, and as it is not a foundational document as such, but draws together those rights in existing EU legislation, it doesn't seem to me a very secure device for securing rights post Brexit—certainly not in the longer term—and it is the UK Government's view that those rights are protected in other pillars. So, I think it would be quite useful, if the Welsh Government genuinely feels there are some existing rights that are now threatened by withdrawal from the EU, that you actually make those explicit and then we can run the test, because at the moment it seems that our foundational document is the European convention on human rights and the way that's been interpreted—obviously, it's a living document—and the Human Rights Act 1998, which, of course, establishes it in UK law and makes it actionable in a much more practical way. So, I think those two pillars do ensure that we will not get regression. However, if there are genuine anxieties, and people can advance cogent reasons why there may be some diminution because of the fact the EU charter is not going to apply anymore, because it will be redundant, really, in terms of UK law—.

I do note the role of the well-being of future generations Act in embedding equality, and I think the Act is very useful in that sense of, again, allowing it to be a declaratory living document, and it allows us to work through these issues and see how they could be practically fulfilled. It has been the Welsh Government's position that that Act is so secure that other sources of embedding equality, through the equality duty, for instance, are not necessarily required. So, there are approaches that—. Now, that's somewhat analogous to the UK Government's position on the EU charter of human rights, one could argue—that because those rights exist and are embedded elsewhere, we don't need to be overanxious about one approach not being available.

I think the issues relating to UK governance, and this refers to the various frameworks that will now emerge, some of which will be highly relevant to questions of equality—they do need careful treatment, and of course, on this side of the Assembly, we've always been keen to emphasise the need for shared governance, and for the strengthening of UK institutions in terms of the joint ministerial council, for instance. So, there, we will continue to be very supportive and constructive, and I think that will help us navigate some of the very pressing concerns that people have around the future for regional investment and how that will be governed, and that is something, I think, that is a relevant interest to everyone here.

Can I conclude by talking about community cohesion? I think it is unfortunate, with various developments round the world, that some of our wonderful minority traditions feel under some pressure. They've only got to feel it. The objective reality of that is sometimes not as direct as people fear, but, it is, I think, really important to remember if people feel under some threat because of various developments, then it is for us to reassure people, just as, after Brexit, I think a lot of reassurance was required because of the way that some people feared that that might be a harbinger of some sort of rolling back from a multicultural society—and it isn't, and it doesn't require any reduction in that world-view at all. It is important for us to work through some of the other changes that are happening around the world. We've heard some of them being raised, in terms of international conflict and the generation of refugees. All these things are creating a level of debate in some quarters that is full of asperity and aggression, and that has, I think, reflected very badly and has led to a certain threat in terms of how various minority traditions feel. So, we need to be mindful of that and of ensuring that we are strengthening the networks and the consultations that we have with them, and valuing them in a very explicit way. That's the best way to counter those who are engaging in various forms of hate speech and hate crime. Thank you, Deputy Presiding Officer.  

I'm pleased to be able to speak in this debate. In many ways, it's a continuation of yesterday's discussion on equalities and human rights. Let's make no mistake: despite the words we will hear later about remembering the sacrifice of those who fought the Nazis, these rights are under threat. It wasn't the EU's smooth arrangements for the transportation of medical isotopes that annoyed the wealthy people who funded UKIP and the 'Leave' campaign. It was the EU's protections for workers' rights, for women, minority rights and so on that really motivated them.

The EU is seen as an obstacle towards creating a neoliberal, Thatcherite, low-tax, low-regulation and low-worker-protection UK. Indeed, that's why there's been so much enthusiasm for a 'no deal' Brexit, because it would create the conditions of chaos that are necessary for privatising the NHS, for example, that they wish to impose.

The Llywydd took the Chair.

So, we've been consistent in calling for these rights to be protected. These joint committee report findings on the impact of Brexit on human rights also support many of our concerns. The initial letter to the First Minister notes, for example, that unlike in many other states, the right to equality in the UK is not protected by a constitutional bill of rights that would limit the extent to which equality could be eroded or removed by parliamentary legislation. EU law currently performs this backstop function.

What has concerned us the most is the implications of the deal made between the UK and Welsh Governments to repeal the Law Derived from the European Union (Wales) Act 2018. As you'll be aware, the UK Government's European Union (Withdrawal) Act 2018 does not include the inclusion of the European charter of fundamental rights in UK law, despite an attempt to amend that Act to include it. This has led to the reasonable question, raised by the committee, as to how the Welsh Government intends to protect those rights. The response is underwhelming to say the least. I quote:

'These are matters which require careful consideration. We will work with the UK Government to seek assurances on individual rights in the coming months.'

Well, that'll tell them, won't it?

It's further disappointing that, when asked how it can ensure existing rights are not eroded, the Welsh Government fell back on citing the Human Rights Act 1998. More bizarre still, they cited their Government's commitment to rights by noting the incorporation of the United Nations principles for older persons into the Social Services and Well-being (Wales) Act 2014. Really? This was only in that Act because one of their group pressed the wrong button and voted for an amendment to incorporate that. It was never in the Act because the Welsh Government wanted it to be in there. So, it's clear to us that much more needs to be done, and we need to make sure that the Welsh Government is doing everything possible to protect the rights of people in Wales post Brexit. That means no selling out to a UK Government held hostage by the fundamentalists of the DUP and Rees-Mogg. And it also means that we need a Welsh bill of rights. That’s not the purpose of today’s debate, but it is something that I will be returning to another time.

The Chairs of the Equality, Local Government and Communities Committee and the External Affairs and Additional Legislation Committee stated in their joint letter to the First Minister earlier this year that Wales has a proud history of protecting equality and human rights in world-leading and innovative ways, noting that the Assembly, of course, became the first legislative body in the world to achieve gender parity. I want us to safeguard and make provision to support that proud history.

In the EHRC debate yesterday, I spoke of the importance of our joint committees’ support for the adoption of the socioeconomic duty in Wales, and I’m glad that the Chair of the Equality, Local Government and Communities Committee today has given his support again to this key objective. I do believe this is a vital duty, and the Welsh Government must now take responsibility to enable us to use this new power. It will play a part in counteracting adverse impacts of Brexit on equality and human rights. Scotland has done it, and we must do it too.

John Griffiths also drew attention to the threats to EU funding and the prospects for the UK’s shared prosperity fund. We made it clear that we share the views of our witnesses—and both committees had witnesses to our reviews and inquiries—that the UK shared prosperity fund proposed by the UK Government should be administered by the Welsh Government in relation to Wales to ensure that it’s sensitive to local needs and inequalities. We also made it clear that the fund should be targeted to tackling inequality and socioeconomic disadvantage. Our committees have identified the EU funds that relate directly to equality and human rights, with around 60 per cent of ESF-funded projects targeting people with one or more protected characteristics. I’m sure the leader of the house will endorse the committee recommendations on this point.

Can I also welcome the work of the recently established Wales civil society forum on Brexit? With over 40 third sector organisations, it is a formidable forum for evidence, backed by the Cardiff University Wales Governance Centre. The forum states that the UK’s withdrawal from the EU charter of fundamental rights presents a serious risk to human rights and equality. I welcome the call to secure domestic legal status for the EU charter through specific Wales-only legislation, giving due regard to the instrument across public policy, if this is feasible. And we need a response to that call. The civil society forum also states that the Welsh Government should seek to ensure that the UK keeps pace with the EU where there are advances in human rights or equality protections. The Welsh Government should seek to implement in Wales any new advances made by the EU. The Women’s Equality Network, for example, points out that the EU is currently considering new legislation regarding parental leave, flexible working and breastfeeding in work. In our letter as AMs to the First Minister, we asked the Welsh Government to set out how it will ensure that the charter rights continue to apply in Wales, and I look forward to the response from the leader of the house, and I hope that the evidence being developed by the Wales civil society forum will be followed up and taken forward.

I have, on many occasions in this Chamber, drawn attention to the Women’s Equality Network manifesto published earlier this year. They draw attention to the threats to equalities and human rights legislation post Brexit. They’re concerned that the impact of leaving the EU will result in the rolling back of legal rights for women, reducing the funding for women’s organisations and putting pressure on specific services.

Llywydd, I chair the women in Europe Wales network to promote women’s rights and gender equality in the context of Brexit. The network is concerned that women should have a stronger voice in the Brexit inquiries and negotiations. These networks are looking at this debate today; they very much welcome it and will expect the committees of the Assembly, as well as the Welsh Government, to take this forward for further exploration and monitoring. In a former role as a county councillor, I accessed the first tranche of ESF funding for the pioneering women's workshop opened in 1984 in Cardiff, training thousands of women over 30 years in information technology and electronics. Those women are now contributing to the local economy. This is now all at risk as a result of Brexit. As Leanne Wood said—bad for equality and bad for the economy. So, much is at risk as a result of Brexit, with equalities at the forefront of our concerns.

I thank the committees for their consideration of these issues and the First Minister for his response, and hope this debate will signal to the women of Wales, black, Asian, minority ethnic people, disabled people, and communities that we are standing up for their human rights in this Assembly.

I call on the leader of the house, Julie James.

Diolch, Llywydd. I apologise to colleagues because I'm struggling a little bit with my voice. 

So, I just want to start off by thanking the committee for their joint report and to all the Members who have contributed to the debate. I think there really is a distinctive approach to equality that is woven into the Welsh devolution mindset from the outset and built into the DNA of the Welsh Government. The commitment gives us a solid platform in Wales to create strong and inclusive policies and legislation. It's clear from what everybody has said in their contribution that we accept that we're heading into an unprecedented and uncertain period for Wales as we leave the EU, in terms of the discussions on whether a 'deal' or 'no deal' scenario has different implications for protections of human rights that we all wish to see protected. And I think there was agreement from every speaker that those rights need to be protected.

We've been very consistent in what we want to see by way of our priorities for leaving the EU and part of the Brexit talks, and one of those has been a fundamental maintenance of the human rights position for Welsh citizens and their place in the world. And, of course, that would also include a continuing commitment to ensure that no falling back happens as a result of our leaving the EU. So, some measure of checking what the human rights position of other leading countries around the world is and ensuring that we stay in lockstep with that must be done. And David Melding, I think, in particular, mentioned that it's not just the EU that we should be monitoring for that, and that's certainly our view as well, and we need to make sure that Wales stays in lockstep with the very best of practice around the work.

However, the continuing uncertainty makes it very difficult to evaluate the future of the landscape and to have very specific courses of action at the moment, until we see what that landscape might look like. David Melding also pointed out, for example, the public debate about the distinction between the EU charter of fundamental rights and the European convention on human rights deriving from the European Council, and the confusion in people's mind about what's incorporated where and so on. So, I think one of the things we are very keen to do is to look to see what we can do in terms of Welsh legislation, to enshrine in the laws of Wales, so that we protect those fundamental freedoms in a very straightforward way. And, actually, as a result of a conversation that was initiated in this Chamber, Llywydd, with Helen Mary Jones on her legislative proposal for incorporation of the UN convention on the rights of disabled people, we have commissioned a piece of research to show us how, in Wales, the interlocking pieces of legislation best fit together.

Many Members—Jane Hutt, John Griffiths and other Members—have mentioned the socioeconomic duty under the Equalities Act, for example, and whether we should bring that into force. We very much want to do that. But we want to ensure that we do that in a way that is completely compatible with, for example, our groundbreaking well-being of future generations Act, and that it doesn't cut across it in a any way or undermine that Act. So, we've commissioned a piece of research to see how that jigsaw best fits together and to give us a route-map to getting to a place that everybody in the Chamber outlined, which is a place where, very simply, we set out what those fundamental rights are in Welsh legislation and we don't have a layered effect. In conversation with the commissioner for the future generations Act, for example, she talked about the difficulty of ensuring that we don't slip back—we've passed the well-being of future generations Act, which has some things to say with regard to socioeconomic factors in decision making in Wales—and we don't put the socioeconomic duty on the next layer, so that people go there first, but we actually ensure that they interlock. So, one of the issues around just copying Scotland is that Scotland doesn't have a well-being of future generations Act, so we want to make sure that they meld together.

So, I want to assure everybody in the Chamber that what we want to do is ensure that we have the best, most cutting-edge protection for these human rights in Wales, in a way that's uniquely Welsh, in a way that blends our legislation together with the various conventions, and in a way that enshrines individual rights, as John Griffiths, I think, pointed out in his speech. One of the very important things to look at when we look at convention rights and the enacting of the various duties and so on is that individuals have a means by which they can enforce their own rights and fight against any infringement of that. So, I'm very happy, Llywydd, to say to the Chamber that we will come back as soon as we have that research with a route-map for getting to where we want to be and that that's independent of the EU debate, because we want to see what our legislation should look like anyway. And then, as that's informed by what the withdrawal Act looks like in its final form, and whether there's a deal or not, we can make sure that that's incorporated into that conversation.

So, various other Members—excuse me, sorry, I'm really struggling with my throat today, unfortunately—have also raised other concerning issues around this. I'd just like to reference a few of those as I end my contribution. One is the rise in hate crime and the 71 per cent rise in referrals. This is really shocking for us. Wales has a long history of welcoming people from all over the world. As the First Minister often says, we are all migrants, it just depends how far back in your family you want to go. None of us came from here originally. We very much want to see a welcoming, positive and tolerant country, and one of the things we'll be looking at in our research is to see whether the legislation gives us a platform in Wales to make sure that we enforce the cultural outward-looking country that we want to be by allowing people to have recourse to law if those rights are infringed. So, that's one of the things we're very interested in doing. We're also looking to see the Welsh public sector working collaboratively to develop shared equality objectives that can be targeted at tackling both inequality and socioeconomic disadvantage as part of a piece around hate crime. Many of the people who experience hate crime experience it for a specific protected characteristic, but, actually, there's intersectionality. Often, they have a number of those characteristics, which we want to see given the strength of the protection of the law as much as we can.

So, Llywydd, we want to walk the fine line between being very careful about imposing additional burdens on our public services and being very clear about what their obligations and duties are in terms of delivering services to the people of Wales. I'm very grateful to the two committees for their work in bringing this debate forward. I'm very happy to confirm that we are doing the research necessary to incorporate all of those pieces of legislation in the best possible pattern, and I look forward to working with both committees in the future to bring that forward. Diolch.

I call on the Chair of the external affairs committee to reply to the debate, David Rees. 

Diolch, Llywydd. Can I thank Members for their contribution to today's debate? I think it's perhaps the first time we've got a joint report coming before the Assembly of committees in this Assembly. It also shows, perhaps, the way in which we're working is evolving as we move on. Can I also put on record both committee's thanks to their staff, the committee clerks and their teams, and the witnesses who came forward? Without those, it would make our job very much more difficult. 

These findings are crucial for us, and Brexit has just perhaps highlighted something. I have a couple of points from what the Members spoke about. David Melding, on the charter of fundamental rights, I want to highlight the fact that it isn't law, I agree, but it's within the framework of the European law, and therefore it exists within that framework. As we leave the EU, that European law framework in which it operates disappears. Therefore, the rights that were in there are not necessarily protected by law within the UK because we don't have the same European laws. That is the issue we are trying to highlight. That's why our committee in particular was pleased to see that reference in the law derived from the EU Bill to ensure that Welsh Government would continue, as part of its continuity Bill—. But, of course, it was not continued in the EU withdrawal Bill—Act, as it is now. The Lords put it in as an amendment, but it was defeated in the Commons in the ping-pong section. But it is important that we have it because there are rights we need to protect, rights we've all benefited from. I think what's important is that no-one anticipates those rights to be eroded within day one of leaving the EU, but without legislation to underpin those rights, we're leaving ourselves open to opportunity in years down the line for other Governments to come in and undermine those rights. That's what the issue was about—ensuring that legislation is there.

I totally agree with you that the future of regional investment is a concern that's shared by all across this Chamber—we've often heard that—and shared governance is one—. We need to look at how we're going to manage that, and that comes with the shared prosperity fund. This isn't about the shared prosperity fund, but it highlights examples and concerns we currently have as to how we manage that fund and how we ensure the priorities for Wales will be delivered by the Welsh Assembly and the Welsh Government and not dictated to us by Westminster—something Brexiteers seem to want to do—to reflect the same arguments about Brussels. 

Leanne highlighted that rights are under threat, and that's why we identified it. They are under threat unless they are underpinned by law. And you highlighted some, perhaps, right-wing people who have that view that leaving, Brexit, is an opportunity. The reality is there are people in positions who have that view. That's the reality. And what we wanted to ensure was, as the EU took the opportunity to put legislation in place to protect people, that we also do the same here in the UK once we leave the EU, so the laws are there to protect the rights of individuals. Whether we get a Welsh Bill of human rights—I'm sure that might be something she'll be putting forward as a Member's, backbencher's, Bill.

Jane highlighted, again, the socioeconomic duty, and that's crucial here. Now, I've read the letters from the First Minister clearly saying that the Well-being of Future Generations (Wales) Act 2015 is going to cover everything, and I understand the leader of the house's comments about ensuring that they work together, they knit together, they knit well. I totally understand that, but I think it's crucial. We have the powers to do this—let's just do it. Let's not make sure we're 10 months, two years, three years, maybe an Assembly down the road before we do that. Now is the time to take the opportunity. I appreciate you saying you've got research going into that. You didn't indicate a timescale; you said you'd come back to us as soon as possible. Timescales would be great if we knew—six months; some kind of time factor. 

February.

February. Thank you. That's good, because at least we've got a—. We now have an indication it's actually before we leave the EU. That's very important for us. 

Jane also highlighted that it's important that rights come to the fore, and particularly that we note the rights that come to the fore during the transition period, if there is one, because we'll be operating under those until we end that transition period. How do we ensure those are also within UK law and protected when we leave that transition period? So, it's a critical aspect; we intend to look at that. 

Leader of the house, you talked about the lockstep. I very much appreciate that. You talked about Welsh legislation. It is important that we don't simply keep on saying, 'We've got this unique Bill, the well-being of future generations Act, which delivers on this.' We can do more, and we should do more, with the powers we have.

Llywydd, the decision to leave the European Union will have profound constitutional, legal and political ramifications for the people of Wales in the years to come. There's no question about that. I hope that, in shining a light on the human rights and equalities issue, which was something people didn't want to talk about very much during the last two years, the two committees have actually reminded people that Wales has a proud history of leading the way in these fields, and our aim is to ensure that proud history continues. We need certainty that those rights will continue to apply in Wales after Brexit. We need to ensure that non-regression occurs so we do not see any erosion of those rights. And, looking ahead, we'll continue to keep an eye on this, we'll continue to keep an eye on what happens, hopefully, during transition, and I commend this joint report to the National Assembly for Wales.

The Deputy Presiding Officer took the Chair.

Thank you very much. The proposal is to note the committee's report. Does any Member object? No. Therefore, in accordance with Standing Order 12.36, the motion is agreed. 

Motion agreed in accordance with Standing Order 12.36.