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Rights of Children and Young Persons (Wales) Measure 2011

Section 1 – Duty to have due regard to the Convention on the Rights of the Child

10.This section places the Welsh Ministers under a duty to have due regard to the requirements of –

(a)

Part 1 of the Convention,

(b)

articles 1 to 7, excluding article 6(2), of the Optional Protocol to the Convention on the involvement of children in armed conflict, and

(c)

articles 1 to 10 of the Optional Protocol to the Convention on the sale of children, child prostitution and child pornography.

11.In these notes, this duty is referred to as “the due regard duty”, and (a), (b) and (c) above are referred to as “Part I of the Convention and the Protocols”.

12.The due regard duty applies from 1 May 2012. From 1 May 2012, up to and including 30 April 2014, the due regard duty applies only to decisions of the Welsh Ministers falling within certain categories. The categories are listed in subsection (3). Then, from 1 May 2014, the due regard duty applies to all exercises by the Welsh Ministers of their functions.

13.The due regard duty requires the Welsh Ministers to give the weight that is appropriate in all the circumstances of the case to Part I of the Convention and the Protocols, balancing them against all the other factors that are relevant to the decision in question.

14.Section 8 of the Measure and the Schedule to the Measure should be referred to in order to find the provisions of Part I of the Convention and the Protocols to which the Welsh Ministers must have due regard.

15.Subsection (1) – The effect of this is that, from 1 May 2014, the Welsh Ministers are subject to the due regard duty when exercising any of their functions.

16.Subsection (2) – The effect of this is that, from 1 May 2012 up to and including 30 April 2014, the Welsh Ministers are subject to the due regard duty when making any decision which falls within the categories of decision which are listed in subsection (3).

17.Subsection (3) - This lists the categories of decision to which the due regard duty applies from 1 May 2012 up to and including 30 April 2014. Therefore, the due regard duty applies to any decision by the Welsh Ministers about –

(a)

provision proposed to be included in an enactment;

(b)

formulation of a new policy;

(c)

a review of or change to an existing policy.

18.Paragraph (a) covers not only provision which the Welsh Ministers are proposing to include in an enactment, but also provision which someone else is proposing to include in an enactment. “Enactment” is defined in section 9 and covers Acts of the United Kingdom Parliament, Assembly Measures and Assembly Acts and subordinate legislation made under any of those. Therefore, for example, if the Welsh Ministers were deciding what view to express to the United Kingdom Government about a provision which the latter was proposing to include in a United Kingdom Parliament Bill, the Welsh Ministers would be required to have due regard to the UNCRC in deciding what their view was.

19.Similarly, paragraphs (b) and (c) not only cover Welsh Ministers’ policies, but also those of others. Therefore, for example, if the Welsh Ministers were deciding what view to express to the United Kingdom Government about a proposed new policy of the latter, the Welsh Ministers would be required to have due regard to the UNCRC in deciding what their view was.

20.Subsection (4) – The effect of this is that references in the Measure to the Welsh Ministers’ duty under section 1 mean –

  • in respect of the period 1 May 2012 to 30 April 2014,  the due regard duty in subsection (2) and

  • from 1 May 2014, the due regard duty in subsection (1).

21.Subsection (5) – This makes the First Minister when acting in that sole capacity subject to the same due regard duty as the Welsh Ministers.

22.Under the Government of Wales Act 2006, the First Minister counts as one of the Welsh Ministers and may carry out any function which has been conferred on the Welsh Ministers. When the First Minster is acting as one of the Welsh Ministers he is subject to the Welsh Ministers’ due regard duty. However, some functions are conferred on the First Minister alone. The effect of subsection (5) is that the First Minister is subject to the same due regard duty as the Welsh Ministers when he acts in that sole capacity.

23.Therefore, for example, if in June 2012 the UK Government was complying with a statutory obligation to consult the First Minister about a piece of subordinate legislation which it proposed to make, the First Minister’s decision about how to respond would be subject to the due regard duty. This is because the First Minister would be subject to the same duty as the Welsh Ministers, as set out in subsection (2), to have due regard to Part I of the Convention and the Protocols when making decisions about provision which it is proposed to include in an enactment.

24.Subsection (4) requires references in the Measure to the due regard duty to be read to reflect the fact that the First Minister is subject to the same due regard duty as the Welsh Ministers.

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Explanatory Notes

Text created by the Welsh Assembly Government department responsible for the subject matter of the Measure to explain what the Measure sets out to achieve and to make the Measure accessible to readers who are not legally qualified. Explanatory Notes accompany all Measures of the National Assembly for Wales.

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