https://orcid.org/0000-0002-1646-3144
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ABSTRACT
Crisis lawmaking in the dawn of the COVID-19 pandemic spurred treaty bodies collectively to caution states that they should regularly gather and assess data both during and following the pandemic in order to ascertain the extent to which individuals were disadvantaged during the pandemic. A methodology for gathering and assessing such data has been well developed in the form of human rights impact assessment (HRIA). There are many examples of HRIA practice, particularly in the area of children’s rights impact assessment (CRIA). Some practice is good. Some is better. Some is best. This article is concerned with how government could use HRIA to: optimise the state’s ability to demonstrate compliance with international human rights obligations; contextualise the ways in which state policies shape peoples’ lived experiences of human rights by identifying opportunities to adjust proposed law and policy changes prior to implementation; and develop a repository of information demonstrating tensions between law and the lived experiences of rights for the full spectrum of rights-holders. Relying predominantly on Scottish examples of Covid-19 pandemic-era HRIA and CRIA, the analysis offers insights on how HRIA could be used more effectively in crisis lawmaking.
Acknowledgements
The author is indebted to Martina Trusgnach, Jessica Robinson and Laura Stelzer for their invaluable research assistance. With many thanks to Fiona Morrison, Katie Reid, Kay Tisdall and the anonymous reviewers for their generous comments on a previous version. All errors remain my own.
Disclosure statement
No potential conflict of interest was reported by the author(s).
Notes
1 OHCHR, ‘Compilation of statements by human rights treaty bodies in the context of COVID-19’ (Geneva, September 2020), 8, 9, 16, 21, 28, etc., https://www.ohchr.org/Documents/HRBodies/TB/COVID19/External_TB_statements_COVID19.pdf.
2 Ibid.
3 James Harrison, ‘Human Rights Measurement: Reflections on the Current Practice and Future Potential of Human Rights Impact Assessment’, Journal of Human Rights Practice 3:2 (2011): 162, 165.
4 Saskia Bakker, Marieke van den Berg, Deniz Düzenli and Marike Radstaake, ‘Human Rights Impact Assessment in Practice: The Case of the Health Rights of Women Assessment Instrument (HeRWIA)’, Journal of Human Rights Practice 1:3 (2009): 436, 438 et seq.; Harrison, ‘Human Rights Measurement’, 165.
5 For example, Human Rights Committee (HRC), Concluding observations on the seventh periodic report of Finland, 23 March 2021, CCPR/C/FIN/CO/7, paras. 6-7.
6 Committee on the Rights of the Child (CRC), Concluding observations on the sixth periodic report of Hungary, 7 February 2020, CRC/C/HUN/CO/6, para. 7; CRC, Concluding observations on the combined fifth and sixth periodic reports of Portugal, 27 September 2019, CRC/C/PRT/CO/5-6, para. 10; Committee on the Rights of Persons with Disabilities (CRPD), Concluding observations on the initial report of Montenegro, 28 August 2017, CRPD/C/MNE/CO/1, para. 7; European Network of Ombudspersons for Children (ENOC), ENOC Synthesis Report: Child Rights Impact Assessment, November 2020, 6, http://enoc.eu/wp-content/uploads/2020/12/ENOC-Synthesis-Report-on-CRIA-FV.pdf.
7 See generally, Observatory of Children’s Human Rights Scotland (Scottish Observatory) and Children and Young Peoples Commissioner for Scotland (CYPCS), Independent CRIA on the Response to Covid-19 in Scotland, July 2020, https://cypcs.org.uk/wpcypcs/wp-content/uploads/2020/07/independent-cria.pdf.
8 Harrison, ‘Human Rights Measurement’, 166.
9 See slightly different framing of HRIA based on variable aims, assessors and target groups in the following: Gauthier de Beco, ‘Human Rights Impact Assessments’, Netherlands Quarterly of Human Rights 27:2 (2009): 139; Bakker, et al., ‘Human Rights Impact Assessment in Practice’, 436; Lisa Payne, ‘Child Rights Impact Assessment as a Policy Improvement Tool’, The International Journal of Human Rights 23 (2019): 408, 409.
10 For example, CEDAW, General recommendation No. 28 on the core obligations of States parties under article 2 of the Convention, 16 December 2010, CEDAW/C/GC/28, para. 11.
11 International Covenant on Civil and Political Rights, 16 December 1966, 999 UNTS 171, entered into force 23 March 1976 (ICCPR), art. 4.
12 For example, Amnesty International, CIVICUS and Transparency International, ‘The G20 Must Put Human Rights and the Public Interest at the Heart of Its Response to the Covid-19 Pandemic’, Joint Statement (20 March 2020), https://www.transparency.org/en/press/joint-statement-amnesty-ti-civicus-g20-coronavirus#.
13 OHCHR, ‘Compilation of COVID-19 statements’, 52.
14 Aoife Nolan, ‘Not Fit For Purpose? Human Rights in Times of Financial and Economic Crisis’, European Human Rights Law Review [2015]: 358.
15 Convention on the Rights of the Child, 20 November 1989, 1577 UNTS 3, entered into force2 September 1990 (UNCRC).
16 OHCHR, ‘Compilation of COVID-19 statements’, 34.
17 de Beco, ‘Human Rights Impact Assessments’, 140.
18 Payne, ‘Child Rights Impact Assessment’, 418.
19 Douglas Pyper, House of Commons Library, Public Sector Equality Duty and Equality Impact Assessments, Briefing Paper No. 06591, 8 July 2020, 24, https://commonslibrary.parliament.uk/research-briefings/sn06591/
20 For a concise explanation of CRIA, see Simon Hoffman, ‘Ex ante Children’s Rights Impact Assessment of Economic Policy’, The International Journal of Human Rights 24:9 (2020): 1333, 1334-
21 Bakker et al., ‘Human Rights Impact Assessment in Practice’, 437.
22 Nina Götzmann, ‘Introduction to the Handbook on Human Rights Impact Assessment’ in Handbook on Human Rights Impact Assessment, ed., Götzmann, 11; Harrison, ‘Human Rights Measurement’, 165.
23 James Harrison and Mary-Ann Stephenson, Human Rights Impact Assessment: Review of Practice and Guidance for Future Assessments (Edinburgh: Scottish Human Rights Commission, 2010), 15.
24 See, European Parliament, ‘States of Emergency in Response to the Coronavirus Crisis: Situation in Certain Member States’, June 2020, 2, https://www.europarl.europa.eu/RegData/etudes/BRIE/2020/649408/EPRS_BRI(2020)649408_EN.pdf.
25 ‘Coronavirus: Ministers “Ruling by Decree” on Virus, Warns Sir Graham Brady’, BBC News, online, 21 September 2020, https://www.bbc.co.uk/news/uk-politics-54232375.
26 Simon Walker, ‘Human Rights Impact Assessments: Emerging Practice and Challenges’ in Economic, Social, and Cultural Rights in International Law, ed., Eibe Riedel, Gilles Giacca and Christophe Golay (Oxford: OUP, 2014), 401.
27 Scottish Government, CRWIA: Coronavirus (Scotland) Bill – Stage 1, 30 March 2020, (Coronavirus CRIA I), https://www.gov.scot/publications/coronavirus-scotland-bill-child-rights-welfare-impact-assessment/documents/.
28 UK Department of Health & Social Care, Coronavirus Bill: Summary of Impacts, 19 March 2020, https://publications.parliament.uk/pa/bills/cbill/58-01/0122/Coronavirus%20Bill%20Impact%20Assessment%20final%20pdf.pdf.
29 Ibid, paras. 66, 95, 230.
30 UK Government, Coronavirus Act 2020: the public sector equalities duty impact assessment, 28 July 2020, paras. 68, 76, 292, 302, https://www.gov.uk/government/publications/coronavirus-act-2020-equality-impact-assessment/coronavirus-act-2020-the-public-sector-equalities-duty-impact-assessment.
31 Coronavirus CRIA I, 7. The children's hearings system is a stand-apart adjudication system in Scotland that takes an integrated and holistic approach to care and justice, in which the child's best interests are the paramount consideration, https://www.gov.scot/policies/child-protection/childrens-hearings/.
32 Scottish Government, CRWIA: Coronavirus (Scotland) (No. 2) Bill, 11 May 2020 (Coronavirus CRIA II), https://www.gov.scot/publications/coronavirus-scotland-no-2-bill-child-rights-welfare-impact-assessment/pages/2/.
33 Ibid, 4.
34 Scottish Government, CRWIA: The closure and reopening of schools as a part of the COVID-19 recovery process in Scotland, July 2020 (Schools CRIA), 3, https://www.gov.scot/publications/childrens-rights-wellbeing-impact-assessment-closure-reopening-schools-part-covid-19-recovery-process-scotland/documents/.
35 Scottish Government, CRWIA: Coronavirus (Covid-19) Impact of restriction son children and young people: CRWIA Stage 3, 25 September 2020 (Coronavirus CRIA III), https://www.gov.scot/publications/crwia-stage-3-impact-covid19-restrictions-children-young-people/documents/.
36 Harrison and Stephenson, Review of Practice and Guidance, 43-7.
37 Coronavirus CRIA II, 8-13; Schools CRIA, 5-7.
38 For example, Aberdeen City Council, Aberdeen EHRIA; Joint East Lothian and Midlothian Councils, Integrated Impact Assessment Form, 2015, https://www.eastlothian.gov.uk/downloads/file/22838/joint_east_and_midlothian_-_impact_assessment_2015. See commentary in Maren Backbier et al., A Children’s Rights Approach: Recommendations to the Scottish Government on Refining Children’s Rights and Wellbeing Impact Assessments in Scotland, May 2019, http://bit.ly/2teQYI6; Ivane Chitashvili et al., Recommendations and Notes on Scottish Children’s Rights and Wellbeing Impact Assessments, May 2019 http://bit.ly/36LOIFQ.
39 Harrison and Stephenson, Review of Practice and Guidance, 58.
40 Walker, ‘Human Rights Impact Assessments’, 402; Bakker et al., ‘Human Rights Impact Assessment in Practice’, 451-2.
41 Committee on Ecnomic, Social and Cultural Rights (CESCR), Concluding Observations on the Third Periodic Report of Benin, 6 March 2020, E/C.12/BEN/CO/3, para. 6; CESCR, Concluding Observations on the Sixth Periodic Report of the Netherlands, 23 June 2017, E/C.12/NLD/CO/6, para. 28. See discussion regarding aggregated data limitations in Nicola Ansell, John Barker and Fiona Smith, ‘UNICEF Child Poverty in Perspective Report: A View from the UK’, Children’s Geographies 5 (2007): 325.
42 The ‘bedroom tax’ is the term used to refer to the reduction to Housing Benefit applied if an person rents a council property and has a spare bedroom. It is also referred to as the ‘under-occupation penalty’. For example, R (Carmichael) v Secretary of State for Work and Pensions [2016] UKSC 58, para. 14; [2016] 1 WLR 4550; R (Rutherford) v Secretary of State for Work and Pensions [2016] EWCA Civ 29; [2016] HLR 8; RR v Secretary of State for Work and Pensions [2019] UKSC 52.
43 CESCR, Concluding Observations on the Initial Report of South Africa, 12 October 2018, E/C.12/ZAF/CO/1, paras. 16-17(c); CESCR, Concluding Observations on the Sixth Periodic Report of Germany, 12 October 2018, E/C.12/DEU/CO/6, paras. 12-13, 15, 17; CESCR, Concluding Observations on the Fourth Periodic Report of New Zealand, 29 March 2018, E/C.12/NZL/CO/4, paras. 9(a), 15.
44 Vibeke Blaker Strand, ‘Non-Discrimination and Equality as the Foundations of Peace’, in Promoting Peace Through International Law, ed. Cecilia Marcela Bailliet and Kjetil Mujezinovic Larsen (Oxford: OUP, 2015), 231.
45 Scottish Government, Equally Safe Child Rights and Well-being Impact Assessment (7 January 2019), https://www.gov.scot/publications/draft-equally-safe-child-rights-well-being-impact-assessment/; Walker, ‘Human Rights Impact Assessments’, 399-400.
46 Coronavirus CRIA I, 33; Coronavirus CRIA II, 19.
47 Walker, ‘Human Rights Impact Assessments’, 399-400.
48 Coronavirus CRIA III, 2-5.
49 Scottish Government, Vulnerable Children Report, 15 May 2020, https://www.gov.scot/publications/vulnerable-children-report-15-2020-scottish-government-solace/pages/impact-of-the-outbreak-on-children-and-families/.
50 Harrison, ‘Human Rights Measurement’, 175-76.
51 Payne, ‘Child Rights Impact Assessment’, 419.
52 ICCPR, art. 25(a).
53 Harrison, ‘Human Rights Measurement’, 167; Walker, ‘Human Rights Impact Assessments’, 406; Götzmann, ‘Introduction’, 8.
54 Hoffman, ‘Ex ante Children’s Rights Impact Assessment of Economic Policy’, 1335.
55 Walker, ‘Human Rights Impact Assessments’, 399; Committee on the Rights of the Child (CRC), General Comment No. 12 (2009) on the Right of the Child to be Heard, 20 July 2009, CRC/C/GC/12, para. 33; CESCR, Concluding Observations on the Sixth Periodic Report of Colombia, 6 October 2017, E/C.12/COL/CO/6, para. 16.
56 Equality and Human Rights Committee, Stage 1 Report on the Gender Representation on Public Boards (Scotland) Bill, (Scottish Parliament 2017), paras. 14, 17, 18, 46; Scottish Government ‘Response to the Equalities and Human Rights Committee's Stage 1 Report’ (27 November 2017), paras. 1, 2, 4.
57 HRC, Concluding observations on the sixth periodic report of Hungary, 29 March 2018, CCPR/C/HUN/CO/6, paras. 7-8; HRC, Concluding observations on the fifth periodic report of the Netherlands, 18 July 2019, CCPR/C/NLD/CO/5, para. 51.
58 Coronavirus CRIA I, 35; Coronavirus CRIA II, 19.
59 Coronavirus CRIA I, 34-5; Coronavirus CRIA II, 6-7. Both Children 1st and Clan Childlaw are highly-visible and engaged non-profit organisations operating in Scotland.
60 See CRPD, General Comment No. 7, paras. 9, 10, 13, 15, 46, etc.; CRPD, Combined Second and Third Reports submitted by Austria, para. 43; Deanna Kemp and Frank Vanclay, ‘Human Rights and Impact Assessment: Clarifying the Connections in Practice’, Impact Assessment and Project Appraisal, 31:2 (2013): 86, 92.
61 Coronavirus CRIA III, 3-5.
62 Ana Maria Esteves, Daniel Franks and Frank Vanclay, ‘Social Impact Assessment: the State of the Art’, Impact Assessment and Project Appraisal 30:1 (2012): 34, 35.
63 Harrison and Stephenson, Review of Practice and Guidance, 53.
64 de Beco, ‘Human Rights Impact Assessments’, 155.
65 Harrison and Stephenson, Review of Practice and Guidance, 55.
66 Walker, ‘Human Rights Impact Assessments’, 401.
67 Schools CRIA, 15-17.
68 Esteves, et al., ‘Social Impact Assessment’, 36.
69 Bakker et al., ‘Human Rights Impact Assessment in Practice’, 451; de Beco, ‘Human Rights Impact Assessments’, 158.
70 CRC, Concluding observations on the sixth periodic report of Hungary, 7 February 2020, CRC/C/HUN/CO/6, para. 7.
71 Backbier et al., A Children’s Rights Approach; Chitashvili et al., Scottish Children’s Rights and Wellbeing Impact Assessments.
72 For example, R (D) v Worcestershire County Council [2013] EWHC 2490; R (JL) v Islington LBC [2009] EWHC 458 (Admin); R (Luton Borough Council and others) v Secretary of State for Education [2011] EWHC 217 (Admin). See discussion in Pyper, Public Sector Equality Duty, 24-6.
73 CRPD, General Comment No. 7 on the Participation of Persons with Disabilities, including Children with Disabilities, through their Representative Organizations, in the Implementation and Monitoring of the Convention, 9 November 2018, CRPD/C/GC/7, paras. 19, 22.
74 See, for example, Engender, Response to Call for Evidence on the Gender Representation on Public Boards (Scotland) Bill (2017), paras. 19-22, https://www.engender.org.uk/content/publications/Engender-response-to-call-for-evidence-on-the-Gender-R; see, also, European Commission, ‘Guidelines on the Analysis of Human Rights Impacts in Impact Assessments for Trade-related Policy Initiatives’ (2015), 13, https://trade.ec.europa.eu/doclib/docs/2015/july/tradoc_153591.pdf.
75 CESCR, General Comment No. 19: The right to social security, 4 February 2008, E/C.12/GC/19, para 74.
76 Harrison and Stephenson, Review of Practice and Guidance, 57.
77 Coronavirus CRIA I, 37-8; UK Coronavirus EqIA, paras. 21, 31, etc.
78 Coronavirus CRIA III, 4-5.
79 Ibid, 6.
80 Scottish Government, Coronavirus Acts: Second Report to Scottish Parliament, Progress Report, 9 June 2020, https://www.gov.scot/binaries/content/documents/govscot/publications/corporate-report/2020/08/coronavirus-acts-second-report-scottish-parliament/documents/coronavirus-acts-second-report-scottish-parliament/coronavirus-acts-second-report-scottish-parliament/govscot%3Adocument/coronavirus-acts-second-report-scottish-parliament.pdf, drawing on Equality Impact Assessment for Release of Prisoners (Coronavirus) (Scotland) Regulations (2020), https://www.legislation.gov.uk/ssi/2020/138/resources; EQIA Health Protection Regulations Amendment No.9, https://www.legislation.gov.uk/ssi/2020/232/resources.
81 Scottish Government, UN Committee on the Rights of the Child: COVID-19 Statement, 6 August 2020, https://www.togetherscotland.org.uk/media/1671/coronavirus-act-scotland-2020-un-committee-on-the-rights-of-the-child-covid-19-statement-06-august-2020.pdf.
82 Scotland Observatory and CYCPS, Independent CRIA.
83 Schools CRIA, 2.
84 Schools CRIA, 12-15.
85 Bård A. Andreassen and Hans-Otto Sano, ‘What's the Goal? What's the Purpose? Observations on Human Rights Impact Assessment’, International Journal of Human Rights, 11: (2007): 275, 286-8; de Beco, ‘Human Rights Impact Assessments’, 158.
Additional information
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Kasey McCall-Smith
Kasey McCall-Smith, Senior Lecturer in Public International Law and Programme Director for the LLM in Human Rights at the University of Edinburgh Law School.