The role played by parliaments in adopting legislation is crucial for building a rights-based system of justice. Through the ratification process, parliaments take positions on international, including European, human rights conventions.
Law-making and ratifications must inter-relate so that national laws reflect international agreements on human rights. The fact that the European Convention on Human Rights has been incorporated into domestic law in all member states of the Council of Europe has been of great importance to ensure this link.
New law proposals should be analysed by parliaments to ensure that they comply with the European Convention on Human Rights1. The emerging case-law of the European Court of Human Rights should be followed at the national level in order to make sure that existing domestic laws are in conformity with the Court’s jurisprudence.
The Parliamentary Assembly of the Council of Europe has on numerous occasions underlined the importance of the role of national parliaments in monitoring the execution of judgments of the Strasbourg Court2. Unfortunately, some countries are extremely late in responding to Court rulings, not least when it comes to the general measures required to prevent further violations of a similar natures in the future.
Law-making is not the only aspect of parliamentary work with relevance to human rights. The adoption of a state’s budget has also far-reaching implications for the rights of the individual.
The UN Convention on the Rights of the Child stipulates that states should undertake measures “to the maximum extent of their available resources” for the realisation of rights defined in that treaty. The UN Covenant on Economic, Social and Cultural Rights has a similar provision. The purpose is to signal that the rights specified in these conventions should be given priority when decisions are made about the allocation of resources. Ideally, Parliament should analyse the rights-dimension of the annual budget proposal before the final decision is taken.
The promotion and protection of almost all human rights requires financial resources. For instance, ensuring the right to education and adequate health-care are major undertakings and weigh heavily on the state budget.
A human rights approach to budget analysis should include a particular scrutiny of the effect on vulnerable groups in society, such as children in difficult circumstances, the elderly and persons with disabilities. Human rights principles require that conditions for these and other disadvantaged groups should be seen as a collective responsibility, and not dependent on charity.
Several national parliaments in Europe adopt specific action plans in the field of human rights. Some of these plans are requested or inspired by international treaties or conferences, for instance those on children’s rights, gender equality, action against human trafficking or the rights of persons with disabilities.
Within the Council of Europe there have been suggestions about a comprehensive national plan for systematic implementation of human rights. A conference on this very approach was held in Stockholm in November and the report will be published this week.3
When parliaments adopt action plans on human rights they must also request progress reports from the executive in order to check implementation.
In addition, parliaments should see that a system is built which makes it possible for individuals to complain and have a response. One possibility is to appoint an independent Ombudsman, Public Defender or Commission (the titles differ between countries) who would receive complaints and seek solutions to the concrete problems raised.
All member states of the Council of Europe have now some structure of this kind, though their mandates differ somewhat. In some countries the office holders are appointed by the government, in others they are elected by parliament. My own view is that it is preferable that the parliaments take an active interest in these structures, that they are involved in the recruitment of the key office-holders and that they also receive and discuss their reports.
A somewhat different approach is taken by the elected assemblies in Germany, both at the federal and land level, where special parliamentary committees are set up to receive individual complaints from the public. Complaints are then followed-up by putting the complainant in contact with a relevant authority or through a motion or another parliamentary initiative.
One positive effect of this process is that the involved politicians become more deeply acquainted with current concerns among the public. The reports from the committees can give an indication of structural problems among the authorities.
Several parliaments have established a political human rights committee. One of the most powerful is probably the UK’s Joint Committee on Human Rights which consists of 12 members from both the House of Commons and the House of Lords. The Committee undertakes thematic inquiries on human rights issues and reports its findings and recommendations to Parliament. It scrutinises all Government Bills and picks out those with significant human rights implications for further examination. It also analyses government action in response to judgments of the Strasbourg Court.
In some European parliaments the human rights committee is of an informal and consultative nature. Discussions leading to decisions on human rights issues tend to take place in standing committees such as those dealing with legal or social affairs.
In Italy, the Senate recently established a committee on human rights while the other chamber discusses human rights in a sub-committee to the foreign affairs committee.
By having active discussions at the parliamentary level we underline that human rights relate to politics and, indeed, are about important political issues. Sometimes, of course, party politicisation of human rights matters can distort reality. It can happen that parliamentarians from the majority party argue more in defence of the government, rather than in support of human rights principles.
A great number of European parliaments include individuals who act as human rights defenders. Typically, many are also members of the Council of Europe’s Parliamentary Assembly. Indeed, their dual role as domestic and European Parliamentarians is an important factor in helping to promote human rights, the rule of law and democracy at the local level4. Others have their roots in minority communities and represent their diverse interests.
The importance of such voices in the parliamentary debate cannot be under-estimated. For this reason, rules which protect the immunity of those elected should not easily be waived. By way of example, I felt that the decision last year of the Armenian parliament to lift the immunity of four of its members was not sufficiently justified.. After all, parliamentarians have a popular mandate.
In a parliamentary democracy, governments must ensure that they have the support of parliament. However, this dependency does not work the other way round - parliaments do not need the blessing of the executive. As an elected body they have their own separate role and can establish their own approach. In fact, every government needs a parliament which watches that human rights pledges are not forgotten.
Thomas Hammarberg
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Notes:
1. In accordance also with Recommendation Rec (2004) 5 of the Committee of Ministers to member States on the verification of the compatibility of draft laws, existing laws and administrative practice with the standards laid down in the European Convention on Human Rights.
2. See, for example, Resolution 1516 (2006); see also the speech by Ms Marie-Louise Bemelmans-Videc, Member of the Parliamentary Assembly of the Council of Europe, “The effectiveness of the European Convention on Human Rights at national level: the parliamentary dimension”, Colloquy "Towards stronger implementation of the European Convention on Human Rights at national level", organised under the Swedish chairmanship of the Committee of Ministers of the Council of Europe, Stockholm, 9-10 June 2008. For the latest work of the Parliamentary Assembly on this issue, see the Introductory Memorandum by Rapporteur Pourgourides on the Implementation of Judgments of the European Court of Human Rights dated 24 May 2008: ttp://assembly.coe.int/CommitteeDocs/2008/20080526_ajdoc24_2008.pdf
3. "Rights Work", International Conference on Systematic Work for Human Rights Implementation, Stockholm, 6-7 November 2008. For the report see: http://www.sweden.gov.se/rightswork.
4. Resolution 1640 (2008) of the Parliamentary Assembly of the Council of Europe.