Implementing the Coronavirus Act 2020 ~ has Wales jumped the gun?
The Impact Assessment for the Coronavirus Bill published on the 19 March by the Department of Health and Social Care gives the English Government’s reasons for enacting the social care provisions in the Coronavirus Act 2020 (for an overview of the Act click here). It stated (at para 95) that the changes to the ‘Care Act 2014 would only be triggered if the spread of coronavirus was such that the Secretary of State considered LAs to be at imminent risk of failing to fulfil their duties under the Care Act 2014’ and that ‘during the operation of these changes, LAs would still be expected to continue meeting all of their duties under the Act if they are able to do so.’
It is not always easy to find Welsh Government policy documents or to discern its intentions – but there does not appear to have been a formal statement from the Welsh Government as to why it was seeking the sweeping powers to amend social are legislation. In the absence of such a statement – the best one can do is to look to the English Impact Assessment – ie that the new ‘social care’ powers will only be triggered if the Government considers LAs to be at imminent risk of failing to fulfil their social care duties.
The Coronavirus Act 2020 (Commencement No. 1) (Wales) Regulations 2020 suggest that the Welsh Government (unlike the English Government) has decided to implement that Mental Health Act 1983 changes with immediate effect and also to downgrade the social care duties from this Wednesday (1st April).
Although action of this kind would not appear to constitute a derogation from the UKs international commitments under the European Convention on Human Rights (ECHR) or the Internal Covenant on Civil and Political Rights (ICCPR) – in relation to liberty or the right to private and family life – it does diminish the socio-economic rights of carers as well as those of elderly, ill and disabled people. This impacts not only on rights under Article 8 ECHR and Article 17 ICCPR – but also specifically in relation to the socio-economic obligations the UK has signed up to, contained in treaties such as the UN Convention on the Rights of Persons with Disabilities and the International Covenant on Economic, Social and Cultural Rights.
Since the action by the Welsh Government is discriminatory and impacts on rights under the ECHR and the ICCPR, it might technically be necessary for a formal derogation to be filed with both the Council of Europe and the UN. However of most concern is the impact of the regulations on socio-economic rights in Wales. There is a principle of non-regression and this requires that before states take action of this kind, they also provide compelling evidence and reasons for the action that is proposed to be taken. So far as we are aware, there has been no formal statement filed explaining why Wales has decided to act in a way that offends the non-regression principle.
There are a variety of explanations as to what has happened in Wales, including of course, that we may have misinterpreted The Coronavirus Act 2020 (Commencement No. 1) (Wales) Regulations 2020. However if the Welsh Government has decided to implement these measures and (importantly) if it is of the view that Local Authorities in Wales have already reached a stage where they are unable to fulfill their duties under the 2014 Act then it begs the question – “Where is the Welsh Government’s impact assessment and (at the very least) where is the formal statement explaining why it (unlike the English Government) has had to take action contrary to its non-regression obligations?”
Photograph of ‘Foryd’ by Richard Jones -@lluniaurich