Human Rights Monitoring and Implementation by unknow

Author:unknow
Language: eng
Format: epub
ISBN: 9780367520694
Google: biFuzQEACAAJ
Goodreads: 52671852
Publisher: Routledge
Published: 2020-06-30T00:00:00+00:00

The impact of the measure

The Measure sits amongst a number of interconnected mechanisms that support children and young people's rights in Wales. These include other statutes;87 international, national and local networks that inform Welsh Government policy;88 the work of the CCfW and EHRC; and developments at international, European and UK levels on integration of the CRC through law.89 It would be extremely difficult to disentangle the causal impact (s) of the Measure from these and other factors influencing policy on children and young people in Wales, requiring a sophisticated methodology beyond the scope of this paper. Instead, discussion will be confined to more general impacts.

An important impact of the Measure has been to enhance legal and parliamentary accountability for children and young people's rights in Wales.90 Legal accountability has been strengthened as compliance with the due regard duty is a public law function, the exercise of which is amenable to challenge by way of judicial review in the Administrative Court. The due regard formula is borrowed from UK equalities enactments and case-law under these enactments gives guidance on the procedural and substantive content of the duty.91 Case law confirms that having due regard means a decision-maker must be properly informed, must attend to the substance of a decision paying attention to any specified objectives, and take account of relevant evidence; the duty must be rigorously exercised and integrated within the discharge of public functions.92 In addition, factors taken into account by the courts on judicial review are: the weight attached to different policy priorities, and the balance struck between competing, or even complementary, interests. Children and young people, and others with sufficient interest will be able to look to the courts to hold the Welsh Ministers to account for compliance with the due regard duty, and how they have taken the CRC into account in policy decision-making. The measure therefore adds a new basis for judicial review of Welsh Government policy on children and young people. Importantly, the Measure draws down the CRC into Welsh law so that judges deciding cases on compliance with the due regard duty may be called on to consider the meaning of rights under the CRC, as an aspect of forming a view on whether due regard has been had to it,93 Through this process it is possible that developed understandings of the rights guaranteed by the CRC will emerge in the context of Wales. While it is not anticipated that judicial review will be a regular occurrence, and there is no reported case where the due regard duty has been relied on, there is some evidence that legal practitioners are considering how it might be used as a basis to challenge Ministers on policy decisions.94 And in Re P-S, a case in which the right of a child or young person to be heard in proceedings was considered, the Court of Appeal acknowledged that in the future the approach taken by the courts to cases in Wales may be different because the CRC has become part of Welsh law.

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