Good better best? Human rights impact assessment in crisis lawmaking

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.

KEYWORDS:

• Human rights impact assessment
• treaty bodies
• crisis lawmaking
• equalities
• non-discrimination
• CRIA

Introduction

Crisis lawmaking in the dawn of the COVID-19 pandemic in spring 2020 spurred human rights 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. In particular, the treaty bodies were concerned that individuals identifying with one or more historically marginalised groups, such as women, children or the disabled community as well as other particularly vulnerable groups including migrants, asylum seekers, homeless people and people deprived of their liberty, might be disadvantaged to a greater extent than others.¹ Experience demonstrated that individuals identifying with groups entitled to special protection in international human rights law as a result of historic discrimination or disadvantage tended to suffer greater interference with their rights in times of crisis.² In this context, ‘crisis lawmaking’ refers to laws and policies (collectively, ‘emergency measures’) adopted in order to avert or respond to crisis or emergency situations, whether economic, social, environmental or otherwise. As the Covid-19 pandemic continued, the growing impact of laws adopted without assessment of the potential human rights impacts on individuals in light of non-discrimination protections came into sharp relief.

Governments have long conducted economic, environmental and disaster impact assessment, as well as varying forms of social or equality impact assessment.³ As a result of growing attention to transparent governance and human rights monitoring, human rights impact assessment (HRIA) has become a fast-growing field of study and practice. It is used as a tool both to predict human rights impacts of new law and policy (ex ante HRIA) and to measure the gaps between human rights standards and the lived experiences of those to whom human rights are intended to support (ex post HRIA).⁴ NGOs, civil society organisations, corporate actors and governments use HRIA with mixed aims and objectives. Throughout this article, HRIA conducted by or at the direction of a government or sub-state entity, such as a provincial or local authority, in relation to proposed changes to law or policy will be identified under the broad umbrella as ‘government HRIA’. Government HRIA warrants attention because despite the growing use of HRIA by governments, the potential of HRIA to shape or increase the responsiveness of future law and policy is not consistently realised.⁵ There is increasing pressure to invest time and resources into developing government HRIA practice from human rights treaty bodies.⁶ Human rights experts have criticised states for ineffective HRIA and the barriers to delivering human rights presented by ineffective HRIA – barriers that have been exacerbated by crisis lawmaking in response to the COVID-19 pandemic.⁷ In light of the extensive human rights disruptions caused by the pandemic, it is timely to consider the merits of HRIA as a tool of governance and how this tool might shape stronger human rights entrenchment and serve as an indispensable resource when states face crises.

The first clarification in such an enquiry requires that we consider the implications of including human rights in impact assessment processes. Harrison explains that ‘HRIAs include assessment of activities which directly and intentionally aim at changing a human rights situation … or activities which may have unintended human rights consequences.’⁸ With this understanding, it is safe to suggest that almost every decision taken by a state has the potential to impact one or more human right across the broad range of civil, political, economic, social and cultural rights. Drawing on extensive impact assessment scholarship and situating the term in the context of government HRIA, as employed here, HRIA refers to a systematic process, grounded in international human rights law, used to investigate the potential impact of laws, policies, programs, projects, and interventions on the human rights of individuals, population groups or general society.⁹ However, in addition to the prospective value of ex ante HRIA, this analysis asserts that ex post HRIA, recognised both in the ‘monitoring and review’ step of government HRIA and as stand-alone HRIA, is an underutilised extension of government HRIA that could support government decision making in times of crisis.

The analysis presented here aims to demonstrate why effective HRIA is an important tool for embedding human rights, particularly when government is proposing significant changes to law or policy. In this context, ‘effectiveness’ of HRIA is measured based on the success of the assessment in developing a clear account of the potential (ex ante) or realised (ex post) impacts on human rights. Effectiveness, therefore, is dependent on each HRIA being tailored to the specific proposal and clearly linking the proposal to identifiable human rights. There is no shortage of examples from which effective HRIA practice can be drawn. Some practice is good. Some is better. Some is best. A clear understanding of ‘why’ HRIA is being conducted underpins best practice. The UK and Scotland, in its devolved capacity, offer extensive examples demonstrating poor to best practice and inform much of the analysis below. In terms of government HRIA, practices may vary in the multi-stage process of legislative change. Ensuring the ‘how’ is part of the methodological tailoring process as is aligning with the best practices that have emerged in relation to the different elements of the process. Understanding the ‘why’ ensures a constant opportunity for reflection on human rights implementation and drives transformative change. The ‘how’ aids in establishing a state’s compliance with its international human rights obligations while the ‘why’ supports the implementation of human rights at the national level, such as participation rights. This article asserts that if government HRIA is effective, not only will decision-makers have a deeper understanding about the potential impacts of their policy choices on the implementation of the state’s human rights obligations and rights-holders lived experiences of rights, they will also have an evidence basis upon which to reflect on the state’s realisation of human rights and drive future change. In turn, this reflective capacity can assist in promoting human rights in times of crisis.

This article consists of three sections. First, the tension between human rights and crisis lawmaking is briefly introduced. Second, the focus on ‘government HRIA’ is explained and justified as a discreet field of practice. Third, the article traces the core features of HRIAs – the ‘how’ – and develops why effective delivery of each step presents the opportunity to reinforce human rights. The purpose of this article is to consider how effective ex ante and ex post government HRIA practices can support human rights in the development and implementation of emergency measures. The analysis considers how the failure of government HRIA to get to grips with the ‘why’ question exacerbates inequalities when a government moves into crisis lawmaking. 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. Using pre-pandemic and pandemic era HRIA examples, the analysis demonstrates that HRIA could be used more effectively in the development of emergency measures during times of crisis and contributes to the growing body of literature examining HRIA and the legal responses to the Covid-19 pandemic.

COVID-19, crisis lawmaking and human rights

It has long been maintained the human rights obligations continue even in the face of emergencies.¹⁰ However, in crisis situations, human rights law, both at the international level and in many national constitutions, recognise that human rights may be limited ‘provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination’.¹¹ The lack of transparency in states’ COVID-19 decision-making processes and the potential of these measures to further entrench and exacerbate inequalities experienced by children, women, disabled people and other vulnerable groups has been an ongoing focus of the human rights community.¹² Early in the pandemic, treaty bodies reiterated to states that ‘Only by including all people in COVID-19 strategies can the pandemic be combatted’.¹³ This reminder was aimed at ensuring states considered all people in all aspects of decision-making, including immediate health and economic protections, mid-range crisis management and long-range recovery planning. While most states paid lip service to the idea that decisions were being made to protect human rights, such as the rights to life and health, previous crisis response analysis demonstrates that human rights are rarely a central concern for governments in crisis.¹⁴ As a result, treaty bodies issued guidance to states on how to ensure non-discrimination and integrate human rights into emergency responses and recovery planning. The Committee (CRC) that oversees the UN Convention on the Rights of the Child¹⁵ (UNCRC), for example, came out quickly in the pandemic to warn of the specific, long-term impacts that emergency legislation passed without regard to the impact on children’s rights would lead to ‘grave physical, emotional and psychological effect[s]’ and offered 11 focal points for states to take forward as they addressed the crisis.¹⁶ Treaty body warnings came too late for the many states that had already pushed through initial measures. As a result, space opened up for discussing how decisions were made, how to resuscitate human rights in the aftermath of emergency measures and how to ensure human rights in future crisis lawmaking.

Situating government human rights impact assessment (HRIA)

Because both government and non-government actors engage in policy HRIA, it is necessary to clarify that the focus here is HRIA conducted by or at the direction of a state or sub-state entity, such as central, provincial, regional or local authority, and such assessment will be identified under the broad umbrella as ‘government HRIA’. For further clarity, as used here ‘state’ refers to the political entity recognised as having international legal obligations while ‘government’ is used to refer to the political and administrative organs across all levels within a state, including sub-state all entities, that implement those obligations. The majority of the impact assessments discussed in the following sections were conducted in the UK or in Scotland, a devolved nation within the UK, and offer useful reference points when examining the varying HRIA practices across different government levels and organs.

Government HRIA is a useful stocktaking exercise in terms of assessing the realisation of specific or general human rights and is intended to help decision-makers understand where barriers to engaging human rights already exist or where gaps in implementation of proposed policies are likely to occur. De Beco’s 2009 analysis separates HRIA into two typologies.¹⁷ The first type measures a state’s compliance with its international human rights obligations. Under this typology he includes the UK Human Rights Act 1998 section 19(1)(a), which requires a statement of compatibility with the European Convention on Human Rights to accompany each bill presented in parliament. In the UK, this is often an exercise of minimal engagement with common HRIA methodology.¹⁸ The second type of HRIA is designed to assess the potential links between policies and the enjoyment of human rights without a link to the international obligation, what will be referred to as the ‘lived experience’ dimension of HRIA. Here there are many different examples from which to choose. The UK’s equality impact assessment (EqIA) is one such tool used by government agencies to assess the potential impact of policies on individuals with ‘protected characteristics’ identified in section 149 of the Equality Act 2010, but it is not the only way.¹⁹ Children’s rights impact assessment (CRIA) is a sub-set of HRIA and the other primary tool utilised in the UK when a policy has a potential impact on children’s rights.²⁰ The next section examines why bringing these two HRIA typologies together strengthens HRIA for use as lawmaking tool, particularly in times of crisis.

Core features of HRIA and crisis lawmaking

Broadly considered, HRIA may include two dimensions: assessment of potential impacts of a proposed change to law or policy (ex ante) or assessment of the actual impacts of the change (ex post). The former is a preventative tool that aids decision-makers in developing law and policy while the latter can confirm whether the aims of the reform were achieved.²¹ The introduction of the core HRIA features or steps warrants an acknowledgement that there are different modes or vehicles for carrying out HRIA. At a minimum, the core features should be identifiable before a particular form of assessment is classified as HRIA.²² However, the bulk of the government HRIA examined here is inconsistent in delivering each core feature. This speaks to the UK-based examples where government HRIA is focused on equalities, rather than human rights, with the exception of CRIA and other integrated equalities and human rights models.

Under each of the features presented below there are practices that sit along the spectrum from ‘good’ to ‘best’. Similar to the oft-repeated observation that human rights treaties are intended to be a floor, rather than a ceiling, good HRIA practice represents a minimum floor and is not intended to prevent more context-specific tools from being engaged. Best practices reinforce how each feature of government HRIA offers an opportunity to embed human rights. The point is that effective HRIA optimises the state’s ability to demonstrate compliance with international obligations, to contextualise the ways in which its policy shapes peoples’ lived experiences of human rights by identifying opportunities to adjust proposed law and policy changes prior to implementation and to develop a repository of information demonstrating tensions between law and the lived experiences of rights for the full spectrum of rights-holders.

In a 2010 report for the Scottish Human Rights Commission, Harrison and Stephenson identified the most common features or steps in ex ante HRIA. They include:

• Screening

• Scoping

• Evidence gathering

• Consultation

• Analysis

• Conclusions and recommendations

• Publication²³

Reflecting the potential to improve HRIA, in addition to the seven ex ante HRIA features their methodology also included monitoring and review, which in practice more closely tracks ex post HRIA. The 2010 study provides one of the most comprehensive yet succinct examinations of these features and documents a range of examples to support the analysis.

A key reflection about government HRIA is that it is typically part of a planning process and is used to evidence why the impacts on human rights should be duly considered in law and policy development. But when there is no scope for long-range planning and decisions must be made quickly, to what extent does or could HRIA feature in crisis lawmaking? When emergency measures are adopted key considerations include questions of temporality, scope, proportionality and legal certainty.²⁴ This reinforces the absolute necessity for ex post HRIA of laws and policies adopted in response to crisis. It also opens up opportunities for previously developed ex ante HRIA data, analysis and recommendations to be considered as a means of diminishing the potential negative impacts resulting from crisis lawmaking. The Scottish approach to HRIA, including CRIA, during COVID-19 reflects some practice that is distinguishable from broader UK practice and should be instructive for other governments as well as identifying practice that could be improved.

In the UK, the Coronavirus Bill 2020 was introduced in Parliament on 19 March 2020 and on 25 March 2020, following four days of parliamentary discussion, the Bill was passed and received Royal Assent. The resultant COVID-19 measures spurred numerous debates and criticism about the ‘sweeping and draconian’ restrictions to personal liberty passing through the UK Parliament without proper scrutiny.²⁵ As a devolved nation within the UK, Scotland’s emergency measures found their basis in both UK and Scotland-specific legislation. The present analysis utilises the Scottish experience to highlight how each step of HRIA opens up a greater opportunity to deliver human rights responsive emergency measures. The HRIA examined here predominantly includes CRIA or EqIA, as these are the most common impact assessments engaging human rights-related issues in the UK. Despite this limitation, the narrative offered here neatly showcases why every stage of robust HRIA can support states in crisis to comply with their human rights obligations and pursue human rights-based approaches to crisis management.

Screening

Screening requires a brief explanation of the proposed change and narrows down which elements of that change are likely to have an identifiable human rights impact as a means of determining whether a full HRIA is necessary.²⁶ Best practice outlines relevant treaty obligations from the outset so that both the potential impacts on a state’s compliance with its obligations and on rights-holders’ lives can be tracked throughout the entire HRIA process. The Coronavirus (Scotland) Act 2020 was introduced on 31 March 2020 and passed the following day; yet, despite the time constraints, an initial CRIA was completed on 30 March 2020 (Coronavirus CRIA I).²⁷ In comparison, the UK Coronavirus Bill 2020 ‘Summary of Impacts’ noted that a ‘formal impact assessment [was] not required’ due to the temporary, emergency nature of the Bill.²⁸ While the Summary of Impacts did not track HRIA methodology, the document combined screening and conclusions into one, noting the potential for positive or negative human rights impacts in three of the 230 paragraphs.²⁹ The EqIA that followed the Summary in July 2020 (UK Coronavirus EqIA) similarly did not follow standard HRIA methodology in that the screening and conclusions were rolled into one with sporadic references to ECHR rights.³⁰ While these impact assessments were not focused on human rights, the failure to be more expansive in the consideration of potential human rights impacts suggests that human rights were not the UK government’s primary, or even tertiary, concern in the development of emergency measures.

The rapid response Coronavirus CRIA I stands in marked contrast to the Summary of Impacts accompanying the UK Coronavirus Bill 2020. The Coronavirus CRIA I screening highlighted how each of over 30 proposed Scottish measures might impact children generally and in relation to specific groups. For example, the Coronavirus CRIA I noted that dispensing with the need for personal appearances at children’s hearings will have variable impacts across children, families and personnel but no specific rights were suggested.³¹ It was not until the scoping stage that the Coronavirus CRIA I engaged the UNCRC in relation to the proposals which was nominally the same practice followed in the second CRIA on the Coronavirus (Scotland) (No. 2) Bill (Coronavirus CRIA II) (May 2020).³² The Coronavirus CRIA II connected one proposed measure on extending the specified period for payment of a confiscation order directly to UNCRC article 9 (children’s rights in relation to being separated from parents), but otherwise followed the practice of the previous CRIA.³³ Similarly, the July 2020 Closure and Reopening of Schools CRIA³⁴ (Schools CRIA) and the September 2020 Stage 3 Coronavirus CRIA (Coronavirus CRIA III) identified the potential ‘impact of all areas of the policy on all children and young people in Scotland’ but without linking into a particular rights framework at the screening stage.³⁵

Scoping

Once the screening process confirms that HRIA is necessary, the scoping process should: explain the planned change to law or policy and why it is proposed; clarify who will undertake the assessment; explain who is anticipated to be affected by the change; identify possible human rights impacts and means of measuring the impacts; outline the evidence basis for the assessment and how further evidence will be gathered; and set out the timescale for assessment.³⁶ Understanding the scope of the proposed change will be important to determine the next steps. The scoping stage of the Coronavirus CRIA I lists UNCRC articles 1–42 as rights relevant to the proposed measures. However, in detailing how the measures will impact children’s rights, the Coronavirus CRIA I links the proposed measures mainly to UNCRC article 3 (best interests of the child) while in a few instances it links to article 20 (children deprived of family), article 27 (adequate standard of living), article 39 (recovery and rehabilitation of child victims) and article 40 (juvenile justice). Better practice would have seen more comprehensive links between the proposed measures and other rights in addition to the best interests of the child. Coronavirus CRIA II and the Schools CRIA improved on the first Scottish pandemic HRIA example - Coronavirus CRIA I - by focusing on how each measure potentially impacted specific UNCRC rights.³⁷ As the scoping process can aid in demonstrating the state’s efforts to comply with its human rights obligations and connect these obligations to rights-holders lived experiences, the more contextualised link between the proposed measures and the specific rights can shape a fuller appreciation of what evidence must be gathered on distinct issues. Unfortunately, many UK examples suggest that the more local the level of government, the less connection to identifiable human rights obligations.³⁸ ‘[A] requirement on public officials to carry out a HRIA with only a basic framework of advice, inadequate support and no training in what human rights principles mean in practice, may lead to decisions which do not meet human rights standards.’³⁹

Evidence gathering

Evidence gathering should be tailored clearly to the aims of the assessment and respond to the relevant human rights framework,⁴⁰ recognising that there may be overlapping human rights frameworks or reference points, such as across different treaty obligations or national laws. Evidence collection requires a multifaceted approach and should combine both quantitative and qualitative methods. In terms of quantitative data, this is often available through pre-existing sources, such as demographic and health data that is collected by different government agencies. Over and above general statistical data, the role of collecting disaggregated data is frequently highlighted as essential to ensuring that all relevant rights-holders have been considered.⁴¹ This is necessary to ascertain potential impacts on potentially marginalised groups.

Though a policy may not discriminate as written, this does not guard against discrimination nor does it necessarily protect human rights. UK austerity measures introduced following the 2007 economic crisis demonstrate how anticipated impacts for certain population groups based on existing quantitative data without a qualitative narrative had unanticipated cumulative impacts alongside other policy changes that resulted in higher burdens on specific groups, including disabled people. As a result, reductions to housing assistance and the institution of a blanket ‘bedroom tax’ led to claims that the blanket tax had a disproportionate impact on disabled people and their families or carers and breached their rights to private and family life as well as their rights to be free from discrimination.⁴² The Committee on Economic, Social and Cultural Rights (CESCR) continues to reiterate that governments conducting HRIA should seek a greater understanding of where gaps between formal and substantive equality exist and, as a result, gain a better understanding of how different members of society are, or are not, able to exercise or engage their human rights.⁴³ Effective gathering of quantitative and qualitative data contributes to understanding these gaps and why simply treating all individuals the same – formal equality – is not enough to deliver substantive equality as envisioned by human rights, equality that transforms the lived experiences of individuals.⁴⁴

In addition to the bottom-up collection of data, top-down analysis of different human rights implementation is important. The Equally Safe Strategy CRIA demonstrates good practice in terms of utilising existing statistical data, extensive consultative data, NGO reports and treaty body recommendations.⁴⁵ Amalgamating the various forms of evidence can deliver both the compliance and lived experience dimensions of HRIA. Analysis developed on such a wide-ranging evidence basis may also serve as a useful repository of human rights narrative that could be used again.

Coronavirus CRIAs I and II utilised some quantitative data, such as data collected during the 2011 census, though not fully disaggregated and not specifically regarding children or different groups of children.⁴⁶ This suggests a gap in the evidence gathering process that diminishes the rigour of the analytical conclusions. Collecting all available quantitative data is the minimum standard required in HRIA and previous CRIA, including the Equally Safe Strategy CRIA mentioned above, demonstrates that this practice is not unknown. Better practice couples stronger, disaggregated quantitative data with qualitative data gathered through consultations such as focus groups or questionnaires but can also include interviews with relevant experts or data gathered from other sources, such as NGO reports or academic literature.⁴⁷ Coronavirus CRIA III analysed a broader range of quantitative and qualitative data alongside CRC guidance and an independent, expert-led CRIA commissioned by the Children and Young People’s Commissioner for Scotland (CYPCS).⁴⁸ Combining pre-existing data, treaty body guidance and the independent CRIA opened up a more comprehensive array of evidence to inform the ultimate recommendations and demonstrates the opportunity to cross-reference across previously gathered evidence when there is little time to develop new data. The Schools CRIA also threaded evidence throughout, such as linking into the May 2020 Vulnerable Children Report.⁴⁹ In these latterly conducted CRIAs, narratives of lived experience assisted in contextualising pre-existing data in light of the challenges posed by the pandemic. Nestled within evidence gathering is consultation and it is through consultation that these narratives take shape. The consultation dimension of evidence gathering generates more than mere data for analysis, which is why it is treated as an essential, standalone feature of HRIA and is addressed next.

Consultation

Consultation is both an opportunity for individuals likely to be impacted by policy changes to have their views heard and an evidence gathering process. Though the approaches to consultation are multifaceted and vary across different HRIA, direct consultation, or participation, across the range of relevant stakeholders is arguably key to effective consultation.⁵⁰ Direct consultation supports multiple objectives in a democratic society and is integral to a human rights based approach to policy development.⁵¹ First, it enables right-holders to engage in their right to take part in the conduct of public affairs, an opportunity that should be provided without distinction.⁵² Second, it improves accountability because stakeholders are able to voice their concerns about proposed policies. Finally, consultation empowers individuals by providing a level of ownership in the policies.⁵³ This is particularly important for vulnerable groups such as children who ‘are often invisible in policy development’.⁵⁴ In short, consultation is the means for fulfilling the participation dimension of civil and political rights.

Guarding against barriers to participation requires ensuring that the consultation process itself is dynamic and not discriminatory.⁵⁵ A multifaceted and flexible programme of consultation also opens up space for greater responsiveness from decision-makers. For example, the EqIA report on the Gender Representation on Public Boards (Scotland) Bill demonstrates continuous consultation with the general public and civil society stakeholders throughout its progression through parliament. Government responses to the EqIA recommendations and subsequent amendments to the bill provides transparent evidence of how the government considered recommendations by the UK Equality and Human Rights Committee based on various consultation processes.⁵⁶ This responsive dimension to HRIA has been highlighted by the Human Rights Committee (HRC) in its review of states’ periodic reports, noting that ‘time for the meaningful review and proper debate of legislative proposals and amendments’ can guard against negative impacts of new legislation.⁵⁷

Due to the pandemic circumstances, Coronavirus CRIAs I and II justified the absence of child consultation in light of the ‘unprecedented circumstances presented by the coronavirus outbreak and the need to react quickly to protect all in society’.⁵⁸ Both CRIAs I and II consulted local representative organisations rather than children, including the CYPCS, Children 1st and Clan Child Law.⁵⁹ This stand-in representation is recognised as good practice where relevant groups are unable to be consulted, ⁶⁰ which was deemed a significant challenge at the outset of the pandemic. With Coronavirus CRIA III, there was a demonstrable attempt to consult children and other relevant stakeholders more broadly using a variety of online surveys directed toward different groups between April and July 2020, thus aligning more closely with best practice.⁶¹ While online surveys offered the bulk of the qualitative data gathered directly from children, Coronavirus CRIA III and the Schools CRIA highlight the value of analysing qualitative data in conjunction with existing disaggregated data and other evidence sources to develop a picture of potential impacts that would not be as clear without any form of consultation.

Effective consultation not only ensures that relevant rights-holders are part of the process, it also empowers them and may encourage individuals to engage their rights. A participatory process that opens space for deliberation is a baseline good practice recognised across all forms of impact assessment.⁶² In crisis lawmaking situations, any means of ensuring consultation can guard against potentially negative impacts thus government assessors must use all available tools to engage rights-holders.

Analysis

This step in the HRIA process requires a determination of whether the proposed change will have a positive, neutral or negative impact on the relevant stakeholders identified in the scoping phase. Harris and Stephenson stress that ‘analysis’ means going beyond tick-box exercises by using more substantive questions or indicators to determine whether a specific right or group of rights might be violated.⁶³ This is the opportunity for deep reflection on the relationship between a state’s human rights obligations and the lived experience of individuals based on the evidence gathered and the relevant treaties or interpretive materials. It takes time to ensure that the policies ultimately adopted actually support both dimensions. While extended time may not be available in a crisis situation, well documented, in-depth analysis of certain issues or human rights barriers experienced by certain groups in previous HRIA can provide a useful stand-in when a crisis arises.

The strongest HRIA practice ensures that the analysis draws together the opinions of human rights experts, civil society and the work of national human rights institutions, where they exist.⁶⁴ Of the four 2020 pandemic-related CRIAs examined here, the Coronavirus CRIA III and the Schools CRIA offer the most comprehensive synthesis of quantitative and qualitative evidence, tapping in to pre-existing statistics, ongoing monitoring reports and qualitative data developed by organisations such as the Scottish Youth Parliament and Children’s Parliament. Effective analysis will be evident in the conclusions and recommendations, which should integrate the evidence gathered into this penultimate ex ante HRIA step.

Conclusions and recommendations

This step is where the potential positive and negative impacts should be identified and conclusions should be drawn about how the proposed change will impact human rights. It is one step in the assessment process that would benefit from stronger reflection and more connection between the evidence analysed and recommendations.⁶⁵ For example, Coronavirus CRIA I provided both a quantitative and qualitative evidentiary basis for the conclusions drawn. Better practice would have linked directly to the underpinning data so that interested stakeholders could examine the basis of the evidence summary, particularly as the consultation was limited to representative organisations, rather than children. In all instances the assessor found the measures necessary and proportional to the exigent circumstances and no alternative recommendations were offered, suggesting the CRIA was more of a tick-box response to the Scottish Government’s statutory duty to promote the UNCRC pursuant to the Children and Young People (Scotland) Act 2014.

Best practice for ex ante HRIA envisions assessors offering multiple recommendation options in order to permit space for discussion and to allow decision-makers to reflect on the potential impacts, the recommendations and the political dimensions of the policy. Assessors should construct recommendations to mitigate any negative impacts that are anticipated.⁶⁶ The Schools CRIA reflects better practice as the assessors concluded overwhelming that the reopening of schools would have a positive impact for most children but acknowledged that in the ongoing pandemic, full reopening might not be possible and thus identified alternatives to full reopening and potential negative impacts (ex ante assessment) resulting from a blended learning model.⁶⁷ At all points the conclusions and recommendations link in to UNCRC rights and different evidence sources. This demonstrates that developing clear conclusions and recommendations enables a greater ability to explain potential negative impacts in specific relation to different rights and improve planning opportunities.⁶⁸

Publication

Communication of decisions and actions taken in response to HRIA aids those across the spectrum of stakeholders in opening a forum for mediating between different views and understanding why particular decisions were, or were not, ultimately taken.⁶⁹ The CRC, in particular, asserts the importance of publishing HRIA.⁷⁰ When this information is not published, rights-holders are deprived of their voices in the process.⁷¹ Numerous British judicial opinions point out that while impact assessments are not necessary, they provide strong evidence of compliance with their legal obligations against non-discrimination.⁷² If publicly available, rights holders have the opportunity to understand how decisions were made and evaluate whether the right balance was struck in relation to the evidence available. The evidentiary value of publicly available HRIA can also offset claims that government has failed to consider the interests of different rights-holders, a point the Committee on the Rights of Persons with Disabilities acknowledges.⁷³ Both Coronavirus CRIA III and the Schools CRIA offer good examples of a useful published HRIA, including links to evidence sources and summaries of the analysis. In short, publication is crucial because it delivers a level of transparency and accountability in the course of decision-making processes and also reinforces the empowerment of rights-holders as they engage the right to participation. It facilitates an ‘institutional memory’ of the methodology, data, and insight into how the conclusions and recommendations were used in decision-making processes.

Monitoring and review

In the context of government HRIA, the previous seven steps naturally align with ex ante assessment. The monitoring and review feature is typically either absent from government HRIA or inadequate in its execution. Attention to the details of future monitoring ensures a steady feed of human rights assessment and extended period of review for any positive or negative impacts. NGOs frequently reiterate the need for explicit monitoring processes and reporting requirements when new policies are implemented in order to ensure that the intended objectives are achieved without unanticipated effects.⁷⁴ The CESCR has observed that ongoing monitoring following the initial impact assessment also ensures the progressive realisation of human rights and outlined policy objectives.⁷⁵

The effectiveness of this feature will depend on the clarity with which monitoring cycles and responsibilities have been assigned (and executed) and the robustness of the evidence originally collected (and collected as part of the monitoring process).⁷⁶ The Coronavirus CRIA I and UK Coronavirus EqIA indicated that the impact of the changes would be monitored but offered little information on the monitoring process.⁷⁷ Notably, unlike Coronavirus CRIAs I and II, Coronavirus CRIA III was an ex post assessment considering the impacts of the Health Protection (Coronavirus) (Restrictions and Requirements) (Scotland) Regulations 2020 on children. Coronavirus CRIA III demonstrates how monitoring, presented as an independent, ex post HRIA enabled review of the actual impacts of Scotland’s emergency measures. With more time to amass information about the impacts of the measures, better practice was demonstrated with the conclusions linking directly into the consultation surveys conducted during the evidence gathering stage but after the implementation of the emergency measures. For example, an online survey of 12–17 year-olds conducted May – June 2020 indicated a three-fold increase in loneliness and anxiety, with some disaggregated data highlighting higher rates among 15–17 year-olds and girls.⁷⁸ Reflecting the survey responses, restrictions imposed by emergency measures were ultimately adjusted to recognise children’s ‘rights to leisure and play and freedom of association ([UNCRC] articles 31 and 15) and the benefit to wellbeing of maintaining as much social interaction and engagement with friends as possible, whilst balancing the increased risks of transmission.’⁷⁹ The continued exemptions to Coronavirus measures for children were recommended based on the evidence amassed through the CRIA in conjunction with the scientific advice available at the time. The distinctions between the evidence basis in the ex ante HRIA realised in Coronavirus CRIAs I and II and ex post HRIA charted in Coronavirus CRIA III demonstrate why clear monitoring processes serve as a backstop to negative human rights impacts resulting from crisis lawmaking.

Improving HRIA practice in crisis lawmaking

The following highlights the positive influence that better HRIA practice could have during crisis lawmaking. The four Scottish CRIA examples introduced above demonstrate how government HRIA practice can improve even during a pandemic. Coronavirus CRIA II reflected a more comprehensive evaluation of UNCRC rights and a stronger evidence base than Coronavirus CRIA I. The Coronavirus CRIA II evidenced a more inclusive consultation and deeper analytical consideration of the underpinning data. Alone this does not deliver best practice as there was still a lack of critical engagement with marginalised groups, but it is a marked improvement over Coronavirus CRIA I. The Scottish Government’s second bi-monthly reflective report on emergency measures, published in August 2020, relied upon an even broader evidence base and recognised the two previous Coronavirus CRIAs as well as various EqIAs conducted in relation to the Scottish Coronavirus Acts.⁸⁰ Coronavirus CRIA III linked into the Scottish Government’s bi-monthly reports, the Scottish response to the CRC’s COVID-19 Statement,⁸¹ and an independent CRIA conducted by the Observatory of Children’s Human Rights Scotland which also responded to the 11 areas for concern identified by the CRC.⁸² The Coronavirus CRIA III demonstrates more effective scoping, comprehensive data collection ranging across various sources of quantitative data and qualitative data (including from local civil society) and international interpretation of the UNCRC. While a stronger link to the underpinning data would be welcomed as part of the published CRIA, as would more nuanced conclusions and alternative recommendations on the more controversial elements, the point is that this example demonstrates how states could mine existing HRIA data and analysis to better inform crisis lawmaking. This type of cross-utilisation of existing HRIA should aid in minimising the negative human rights impacts of emergency measures and enable states to ensure human rights as they move forward with recovery plans.

The most innovative HRIA analysed here in the context of the pandemic, however, was the July 2020 Schools CRIA. The Schools CRIA was a combined ex ante and ex post assessment of emergency measures that closed schools in Scotland at the outset of the pandemic and contemplated the potential impact of reopening schools on children. The CRIA noted:

Due to the need for schools to close quickly it was not possible to proactively assess impact. This retrospective assessment is therefore to ensure completeness of understanding in relation to the impact, and to inform any future decision making should a similar event occur.⁸³

The Schools CRIA developed its ex ante assessment of different options for schools reopening based on the ex post review of the emergency measures, particularly considering children’s rights to education and social life.⁸⁴ Weaving together both ex ante and ex post reviews for an extended form of HRIA presented a stronger assessment process based on clearly defined human right markers, a broad evidence base and enhanced transparency for the subsequent decision-making process in relation to the reopening of schools. The Schools CRIA demonstrates that by incorporating both types of HRIA into government HRIA and maintaining a link to human rights throughout, assessors are better able to identify anticipated and unanticipated impacts therefore simplifying the monitoring process. In this sense, monitoring relies on baseline data, benchmarks and indicators established during the screening process as reference points for systematic and balanced examination of the effects of a policy during its implementation.⁸⁵ As the groundwork in terms of scoping, evidence gathering and engagement will have already been laid, conducting subsequent HRIA using the same parameters should be less resource intensive and will reinforce the implementation of any recommendations and monitoring of any unforeseen impacts. If delivered effectively in future government HRIA, this interweaving of ex ante and ex post HRIA could provide ready evidence of human rights compliance, comprehensive analysis and alternative recommendations that could shape future related policies in crisis situations or otherwise.

Conclusion

As the COVID-19 pandemic wears on states must not become complacent with the idea that crisis excuses comprehensive human rights protection. At its most elemental level, HRIA is about shaping how the state meets its human rights obligations and that those obligations improve every individual’s lived experience. The analysis offered here focused predominantly on UK-based HRIA examples developed during the first year of the Covid-19 pandemic. The purpose was to demonstrate how conducting effective HRIA in line with the widely recognised ex ante and ex post features identified here can: evidence a state’s compliance with its international human rights obligations; develop a better picture of rights-holders’ lived experiences of human rights in a national context; and develop a repository of information demonstrating tensions between law and the lived experiences of rights for the full spectrum of rights-holders upon which decision-makers can reflect before finalising or implementing policies.

This article examined the ways in which human rights have been considered in UK and Scottish crisis lawmaking responses to COVID-19. Ongoing emergency measures and recovery processes will no doubt offer further examples from which better government HRIA practice can be developed. In particular, the Scottish pandemic-era CRIAs presented here demonstrate how effective engagement with the core features of HRIA could reinforce human rights in crisis lawmaking and recovery planning. Whether responding to the current health pandemic or future proofing against potential environmental crises posed by climate change, the individual components of HRIA both separately and collectively play an important role in human rights-based policy development. There are many good and best practice examples that exist to assist states in maximising the opportunities offered by HRIA. In developing better HRIA practice, states can both track compliance with their human rights obligations and develop a better picture of rights-holders’ lived experiences of human rights. In the end, the message for states and their use of HRIA is one repeated throughout my school days: Good better best never let it rest, ‘til the good is better and the better best. In progressing better HRIA practice, states can further entrench and secure human rights for all people regardless of what the future holds.

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).

Additional information

Notes on contributors

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.

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.