Welsh Commissioners: key issues ahead

John Williams sets out the role of the Commissioners in Wales.

Wales has a reputation for the development of the office of Commissioner.  Wales was first in the United Kingdom to establish a Children’s Commissioner and the first in the world to have an Older People’s Commissioner – a lead followed by other countries.  The Welsh Language Commissioner was appointed in 2012 to promote, and facilitate the use of the Welsh Language. The Well-being of Future Generations (Wales) Bill 2014 implements the White Paper, A Sustainable Wales, proposal that there should be a Sustainable Development Commission headed by a single Commissioner who would provide ‘a clarity and focus to the work of the body’.  At a seminar in Cardiff co-hosted by the Institute of Welsh Politics and the Centre for Welsh Legal Affairs at Aberystwyth University the role of Commissioners and Ombudsmen was debated.

This week on Click on Wales

One of the institutional innovations in post-devolution Wales’ governance arrangements since 1999 has been the establishment of Ombudsman and Commissioner offices.  Academics at Aberystwyth University arranged an inter-disciplinary seminar to critically examine, within a comparative UK and Ireland context, their role in devolved Welsh governance. This series of Click on Wales blogs feature some of the seminars’ key speakers. A policy briefing report on the seminar’s findings and recommendations is available here:  http://www.aber.ac.uk/en/interpol/research/research-centres-and-institutes/iwp/news-events/

The various legislation creating this suite of Commissioners attracted considerable political support.  There is an apparent willingness by political parties to work with Commissioners and to seek their views on current and future legislation.  However, it is unclear whether these initiatives were part of a new approach to accountability, or a series of discreet initiatives.

Commissioners in Wales are similar in many ways.  A key feature is that they are required within their remit to be proactive; they are not restricted to responding to complaints or grievances, but are actively involved in promoting rights and identifying shortcomings in existing arrangements.  In some respects this distinguishes them from ombudsmen. The Welsh Language Commissioner differs in one significant respect in that she has specific enforcement powers through compliance notices.

Commissioners are also similar in that they incorporate international and human rights provisions.  For example, the Children’s Commissioner must have regard to the United Nations Convention on the Rights of the Child and the Older People’s Commissioner must have regard to the United Nations Principles for Older Persons.

The procedures for appointing Commissioners are open and Nolan compliant.  For the Children’s Commissioner the views of ‘relevant children’ must be considered.  Similarly the views of older people must be considered when appointing the Older People’s Commissioner.  For the Welsh Language Commissioner the views of the selection panel, the National Assembly, Assembly Committees, AMs and any others considered appropriate for consultation must be considered.  Sustainable Wales refers to the Sustainable Futures Commissioner being appointed by the ‘tried and tested’ procedure.

However, appointments are made by the First Minister, thus raising questions about Commissioners independence to challenge government.  The Paris Principles for ‘national human rights institutions’ stresses that  such bodies are independent of government.   Is it more appropriate for the National Assembly to appoint, or at least scrutinise appointments?

Commissioners’ terms of office differ in relation to the length of appointment and possibility of renewal.  There is a non-renewable seven year term for the Children’s Commissioner, whereas the Older People’s Commissioner is appointed for four years with the possibility of a further four years.  There is no explicit statement whether the seven year term for the Welsh Language Commissioner is renewable.  The Future Generations Commissioner may be appointed for between 3 – 5 years, with the possibility of renewal for not more that 3 – 5 years.  The rationale for these differences is not easily discernible.  Arguably a single seven year terms is most likely to reassure people that the holder of the office is independent of government.

Commissioners are a twenty first century creation for a new form of governance.  Although similar in many ways, they are also different particularly in relation to the terms of office.  Many questions must be addressed including their relationship with counterparts in the United Kingdom.  Nevertheless, an exciting Welsh initiative.

John Williams is Professor of Law and Head of the Department of Law and Criminology at Aberystwyth University.

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