Hannah Johnson is a GPG Associate and Senior Researcher at the National Assembly for Wales. Below, she explains us how the IPU put together a practical toolkit for parliaments gathering several parliaments’ responses to the pandemic.
Modern human rights standards were born out of war, and can provide a ‘roadmap’ for times of crisis.
Governments around the world responded to the pandemic by making some of the most sweeping restrictions on civil liberties in recent times. Many human rights (like the rights to liberty and privacy, and the freedoms of assembly and expression) can be restricted to protect public health. But there are very clear criteria that have to be met to make sure governments don’t overreach.
Human rights can often feel far removed from the practical realities of decision making, especially when choices have to be made at speed. So what practical steps can parliaments take to make sure human rights standards are upheld during the pandemic?
The Inter-Parliamentary Union (IPU) is comprehensively collating the responses of parliaments to the pandemic, and it has also provided high level guidance for parliaments on human rights standards.
This is a practical guide for parliamentarians and officials to help make these principles a reality.
What do parliaments need?
- A clear understanding of human rights obligations and commitments: parliamentarians need to know what international, regional, and national human rights legal obligations and commitments they are measuring their governments against. This means knowing which treaties have been ratified by their country, including international UN treaties and regional instruments like the European Convention on Human Rights or African Charter on Human and Peoples’ Rights. They also need to know what human rights exist in constitutions and domestic law.
Governments may have human rights actions plans or ethical frameworks that contain commitments or objectives. Parliamentarians also need to know if their state has derogated (opted out) or made any reservations to any obligations, or if a state of emergency affects its obligations.
- Expertise: parliamentarians need the support of non-political researchers and lawyers with expertise in human rights who can provide advice and information, summarise evidence and highlight areas of concern with legislation and policy. Where this expertise doesn’t exist internally, parliaments could consider commissioning non-political expert advisers.
- A dedicated committee: ideally, a parliament would use a dedicated human rights committee to scrutinise and monitor the government’s response to the pandemic. As noted by GPG’s recent post on committees, they are in a unique position to offer detailed, cross-party scrutiny and provide recommendations or legislative amendments. GPG’s guide to human rights and parliaments provides an overview of the operation of human rights committees, and the UN’s draft principles for parliaments and human rights also touch on this. Where a human rights committee doesn’t exist, committees could use their powers to meet jointly or be enlarged by members of other committees to conduct joint scrutiny of human rights implications.
- Good relationships: committees and parliamentarians need good links to national human rights institutions (NHRIs), NGOs, academics and people with lived experience. These sources offer unique insights into the human rights situation on the ground, beyond what the government reports. Their views can be collected in many ways including traditional inquiries and calls for evidence, but also through more innovative citizen engagement techniques.
It’s also important for parliamentarians, particularly committee chairs, to have good relationships with Ministers, as outlined in GPG’s guide to committees and oversight.
Seven things to consider
During the pandemic parliamentarians are being asked to pass emergency laws and monitor a vast range of legislative and executive actions, and approve huge financial commitments with long-lasting implications. This is on top of supporting their constituents, caring for their own family and friends, and – in some countries – campaigning for elections.
These are the seven key things that can help to include a human rights perspective when making laws and holding governments to account during this period:
First of all, is there a system in place for parliaments to consistently monitor and scrutinise the government’s response to the pandemic? Is the parliament sitting at all, and are committees operating? Does parliament have the opportunity to consider and suggest alternatives to legislation or policies? Is parliament involved in any decision to derogate from human rights obligations?
Parliaments around the world are quickly adapting to virtual democracy, and technology shouldn’t be used as an excuse for governments to avoid scrutiny and accountability. The depth of scrutiny is also important – plenary sessions serve a very different purpose to committees.
Existing procedures and structure may not immediately appear to lend themselves to the current crisis. But necessity can be the mother of invention, and many rules are flexible enough to allow for agile and creative responses to unexpected situations.
For example, the New Zealand Parliament set up a single Epidemic Response Committee, and in the Egyptian parliament committee chairs are collating citizens’ concerns and submitting weekly reports and recommendations to the Speaker.
Parliamentary rules may allow Members to substitute for colleagues, which means those with special interests could participate in the work of a committee on which they wouldn’t usually sit. Rapporteurs can be instructed or sub-committees can be established to focus on specific areas of concern. Evidence can be gathered and considered in video or picture format.
2. Proportionality and necessity
One of the most important principles for parliamentarians when assessing action to tackle the virus is proportionality. This means making sure that any measures to restrict people’s human rights (for example, their freedom of association or rights to liberty or privacy) do not do more than is absolutely necessary to achieve their aim. In other words – they shouldn’t use a sledgehammer to crack a nut.
Governments might use the protection of public health to justify broad restrictions to rights. But parliaments are critical in collating expertise and ideas to suggest alternative (and potentially less restrictive) methods of achieving the same aim. Governments should see parliaments as a ‘critical friend’ in these situations, and understand that the state doesn’t have the monopoly on good ideas.
Also, the impact of measures may be proportionate for some people, but disproportionate for others. For example, a law that restricts people from leaving their house may be a disproportionate restriction for people with disabilities. Measures may need exceptions for people in particular circumstances.
The Council of Europe’s Venice Commission underlined that in emergency situations, state security and public safety can only be effectively guaranteed in a democracy which fully respects the rule of law.
When assessing emergency legislation and executive action, parliaments should have a clear understanding of which law powers are being made under (like civil contingencies or public health acts) to assess if they are ultra vires (which means going beyond the scope or in excess of legal power or authority). Powers should also be constitutional, and in line with international law.
In the current situation, the protection of public health should be the primary aim of any government actions that restrict human rights. But the approach taken and the extent of these actions need to be clearly linked to evidence.
The Council of Europe’s guidelines on respecting democracy and human rights during the pandemic emphasise the importance of public access to official information. This could include publication of scientific and public health evidence upon which governments’ decisions are being made. Any restriction of access to information must be exceptional, and proportionate to the aim of protecting public health.
The UN’s principles of good governance and human rights also emphasise transparency and accountability, but also responsiveness to the needs of the people.
5. Time limits
The exceptional nature of the current situation should be reflected by clear time limits on emergency powers or changes to duties or safeguards. Parliamentarians should closely guard their citizens’ human rights to make sure they are not restricted for a moment longer than is necessary.This means that measures should have clear timescales and dates for review, and any extension should be linked to public health and scientific evidence.
The insertion of sunset clauses into legislation is one way of ensuring powers are time limited. Such clauses provide that the law will cease to have effect after a specific date, unless further legislative action is taken to extend it.
6. Positive obligations
Many human rights instruments include positive (or proactive) obligations to protect the right to life. This clearly includes protecting citizens from a life-threatening virus.
But it also arguably places an obligation on governments to take steps to protect the lives of those most vulnerable to the virus. This could mean the provision of personal protective equipment (PPE) to health and care staff, or adequate services for people at increased risk of domestic abuse during lockdowns.
Many human rights instruments also place a proactive obligation on states to prohibit torture, inhuman or degrading treatment. In situations where officials have the power to detain potentially infectious people, there are steps that should be taken to make sure such rights are not violated. The Council of Europe has set out clear principles for protecting rights in detention.
Parliamentarians should be aware of positive obligations to protect citizens’ rights, and hold governments to account on what steps are being taken to do so.
7. Equality and non-discrimination
The principles of equality and non-discrimination are the foundations of the rule of law. Parliaments should make absolutely sure that any measures taken by governments during the pandemic do not discriminate or unfairly target certain people, whether intentionally or unintentionally. For example, clinical guidelines that require doctors to assess which people would benefit from critical care should not discriminate against people because of their disability.
Finally, and importantly, the health, social and economic effects of the response to the virus will have a very different impact on women and men, which makes it even more important to include a gender perspective in parliamentary scrutiny. This might involve taking evidence from people with different lived experiences and specialist organisations, asking governments for data broken down by sex, and having a clear understanding of the existing inequalities between men and women to ensure the response to the pandemic does not widen them.
The IPU has published a separate guidance note for parliaments on gender issues during the pandemic.
Ways to highlight human rights concerns
Parliamentarians or committees with concerns about their government’s response to the virus and the impact on human rights could raise them in various ways, including:
- Writing short, focused letters to Ministers, which are a quick and effective way of highlighting concerns, publicly or privately;
- Publishing detailed reports that summarise and analyse evidence gathered by a committee or cross party group;
- Making public statements, which can be posted online or in the media;
- Helping citizens to understand their rights and how to use them by providing accessible information about human rights;
- Suggesting legislative amendments or recommendations to policy changes;
- Using oral and written questions to find out more information about the government’s approach and its consideration of the impact on human rights, and
- Raising issues with national human rights institutions, UN human rights treaty bodies, the UN High Commissioner for Human Rights or other commissioners at a regional or national level.
Get more help
GPG can provide parliaments with unrivalled expertise from its network of associates to help navigate the human rights implications of the current pandemic.