1. Procedure
to date
1. The Committee on Legal Affairs and Human Rights suggested
“National parliaments: guarantors of human rights in Europe” as
the main topic for the debate on the state of human rights in Europe
scheduled for the June 2011 part-session, in line with the priorities
defined in
Resolution
1547 (2007) and
Recommendation 1791
(2007) on the state of human rights and democracy in
Europe. The Parliamentary Assembly’s Bureau accepted this proposal
at its meeting on 8 October 2010. The Committee on Legal Affairs
and Human Rights appointed me as rapporteur on this topic on 17
November 2010.
2. At its meeting on 14 April 2011, the committee held a hearing
with the following experts:
- Mr
Martin Kuijer, Senior counsel on human rights of the Minister of
Security and Justice, The Netherlands;
- Ms Almut Wittling-Vogel, Agent for Human Rights at the
German Federal Ministry of Justice;
- Mr Alexey Ivanovich Aleksandrov, Chairperson of the Committee
on Constitutional Legislation of the Council of the Federation,
Russia;
- Mr Murray Hunt, Legal Adviser, Parliamentary Joint Committee
on Human Rights, United Kingdom.
3. A questionnaire on “parliamentary scrutiny of European human
rights norms”
was sent out in English, French, German
and Russian to the parliaments of all 47 Council of Europe member
states on 30 November 2010. This questionnaire asked which parliamentary
structures existed at the national level to ensure the regular monitoring
and assessment of the implementation of international human rights
norms:
- Which parliamentary
structures exist to ensure the regular monitoring and assessment
of the implementation of international human rights norms? Are there
special (sub-)committees to ensure this regular monitoring and assessment?
If such structures do not exist, what steps are being taken to establish
such structures?
- Do informal parliamentary groups exist in your parliamentary
structure? If so, please specify, including also ad hoc arrangements
with non-governmental organisations (NGOs) and national human rights institution.
- What special training is provided for parliamentarians
and/or their staff members regarding human rights? Are parliamentarians
and their staff supported by independent legal expertise in human
rights? Please specify.
4. Thirty-six member states replied to the questionnaire. The
main findings are presented in this report.
2. Purpose
of the present report
5. Respect for human rights is the prerequisite of effective
democracy,
and vice versa; this would seem
to require parliaments to play an important role in human rights
matters.
6. However, despite their central role in any democracy, parliaments
are often overlooked in human rights debates. Indeed, it is the
judiciary which, day in, day out, has to remedy human rights violations,
which is most often named as the guardian of those rights. Moreover,
even civil society, through various NGOs and the media, often seems
to be more concerned with protecting human rights than parliaments.
7. Upon closer examination, parliaments and their members should
be and are indeed placed at the heart of human rights protection.
Parliaments, as the representation of the people, set out the legislative
framework in which societies operate. This framework must comply
with national and international standards on human rights and the
rule of law. Laws can serve to guarantee human rights, but they
can also be sources of human rights violations. As parliaments pass
the laws that are subsequently executed by the administration and interpreted
by the courts, they should also control their application by the
executive.
8. Parliaments and their members embody the link between the
people as subjects of human rights, and the state authorities. Parliaments
have the authority to play a major part in protecting human rights
in a democratic society.
9. This report examines the various possibilities at the disposal
of parliaments in protecting human rights and stresses their role
in this field.
10. The report deals with European national parliaments. However,
in view of the unique role of the European Parliament, which has
an increasing impact on human rights policy within the European
Union’s member states, as well as the forthcoming accession of the
European Union to the European Convention on Human Rights ("the
Convention"), some reference to the mechanisms and practice of the
European Parliament will also be made.
11. With the exception of the Council of Europe’s Parliamentary
Assembly, the report will not address international parliamentary
bodies such as the Commonwealth Parliamentary Association or the
Parliamentary Assembly of the Organization for Security and Co-operation
in Europe (OSCE).
12. In the European human rights protection system, the case law
of the European Court of Human Rights ("the Court") is of overriding
importance. The primary responsibility for the supervision of the
implementation of the judgments of the Strasbourg Court lies with
the Committee of Ministers.
However,
the Assembly has made important contributions since 2000.
13. Less attention has been devoted to the role of national parliaments
in the implementation of Court judgments. In my last report on the
implementation of judgments of the Court, I stressed the importance
of national parliamentary involvement in the implementation of the
Court judgments.
This report further explores this thesis.
14. Most national parliaments do not yet exercise regular and
effective control over the implementation of the Court’s judgments.
This report identifies examples of good practice in some states
which could serve as a model for others.
3. Definition and
function
3.1. Definition of parliament
15. A parliament is a gathering of individuals who represent
their people. Deriving from the Latin term parliamentum and,
derived from this, the French term parlement,
it describes the act of speaking. It is therefore an assembly of
people who speak about and discuss the matters concerning the state.
16. According to the Inter-Parliamentary Union (IPU), a parliament
founded on democratic principles needs to fulfil the following characteristics:
(1) it needs to be socially and politically representative of the
diversity of the people and ensure equal opportunities and protection
for all its members (representativity); (2) it needs to be open
to the nation through different media, and transparent in the conduct
of its business (transparency); (3) it has to be accessible to the
public, which includes the involvement of associations and movements
of civil society (accessibility); (4) members of parliament must
be accountable to the electorate for their performance in office
and integrity of conduct, which is guaranteed through parliamentary
procedure and periodic elections (accountability); and (5) the parliament
has to have an effective organisation of business in accordance
with democratic values, and the performance of parliament’s legislative
and oversight functions in a manner that serves the whole population
(effectiveness).
17. Article 3 of the First Protocol of the European Convention
on Human Rights stipulates that the high contracting parties undertake
to hold free elections at reasonable intervals by secret ballot,
under conditions which will ensure the free expression of the opinion
of the people in the choice of the legislature.
3.2. Functions of parliament
18. Following the doctrine of the separation of powers,
power in a state shall be exercised by three separate institutions
independent of one another, in order to avoid a concentration of
powers with a single individual or an institution. Under this doctrine,
legislative power is exercised by parliament, executive power is
exercised by a government responsible for formulating and implementing
policies for the common good of society; and judicial power is exercised
by the courts, which ensure that laws are implemented properly and
that any misconduct is punished appropriately.
19. Parliaments balance executive and judicial powers by debating,
adopting and monitoring legislation. It is parliaments which define
the framework of the executive’s and judiciary’s action, not least
by approving the state budget.
20. It follows that the functions of parliaments are the following.
First and foremost, they legislate, meaning they adopt laws that
govern society. This includes ratifying or authorising the ratification
of international treaties and ensuring that norms set forth in those
treaties are translated into national law and implemented. Secondly, they
approve the budget and set national policy priorities. Here, they
must ensure that sufficient funds are provided for human rights
implementation and that these funds are used appropriately. Thirdly,
they oversee the action of the executive and keep it under scrutiny,
to ensure that the government, administration and other state bodies
comply with human rights obligations. Fourthly, members of parliament
are opinion leaders and can help to contribute to a human rights
culture in their country.
21. I will now examine how human rights policy can be translated
into parliamentary structures, having due regard to the functions
just outlined.
4. Embedding human
rights policy in parliamentary structures
4.1. Freedom of expression
and information for parliamentarians
22. To ensure a high-quality debate, which is parliaments’
main instrument, freedom of expression and assembly of parliamentarians
must be guaranteed. Members of parliament must also be free to seek,
receive and report information, as well as to express ideas without
fear of reprisal, within the limits of their accountability before
the electorate. Their independent and autonomous status, which allows
them to act free from any pressure, bar internal party arrangements,
must be protected. In this respect, parliamentary privileges and immunities
are vital. Parliamentarians are only accountable to the electorate.
Moreover, parliamentarians must be inviolable. During their active
time, they can only be arrested, detained and subject to (criminal
or, rarely, civil) proceedings with the consent of the parliament.
Obviously, there are limits to
this principle. Inviolability is not the same as impunity. It only
entitles parliament to verify that proceedings brought against its
members are legally founded.
Immunities
must therefore under no circumstances be allowed to prevent effective, independent
and impartial investigations into serious human rights violations.
4.2. Parliamentary management
structures
23. National constitutions identify the basic features
of the powers and organisation of parliament, and mostly give parliaments
the competence to organise their work and proceedings as they deem
appropriate.
24. There is, generally, a two-tier management structure to parliaments.
The political
structure is responsible for taking decisions on the political issues
before the parliament. This structure is representative of the political
configuration of the parliament, meaning that both governing and
opposition parties are represented. It is headed by a speaker, president
or chairperson. The administrative structure supports the political
decision-making process. This function is normally performed by
a secretariat that works under the authority of the speaker/president/chairperson
and provides administrative and other backup services to the members
of parliament. The secretariat is normally staffed by persons recruited
on their merits and remunerated by parliament. They are independent
of the political authorities and are required to provide services
irrespective of the political affiliations of the members concerned.
25. Parliaments perform their work mainly through committees.
These are organs of the house. They fulfil legislative and oversight
functions, prepare the work of the plenary, and scrutinise proposed
legislative texts and submit recommendations. There are standing
(permanent) and ad hoc (non-permanent) committees. The former, which
operate on a continuing basis from one parliamentary term to the
next, carry out the bulk of parliamentary business, whereas the
latter are created to inquire into and report on a particular matter.
Parliaments
composed of two houses often establish joint committees to study
and report on questions of joint interest.
4.3. Legislation: human
rights committees, cross-cutting or specialised
26. In principle, parliaments are free to legislate according
to the ideas of their constituent members. This is, as has been
pointed out above, one of their main functions. They shape the ways
in which societies operate and set out the legislative framework.
However, being part of a state, they must also comply with the constitution
as well as with supranational and international obligations. Human
rights pertain to all these sectors. The question is, therefore,
how parliaments can organise their structures so as to ensure that
national, supranational and international human rights obligations
are taken into account in the legislative process.
27. There are, broadly speaking, two ways in which to deal with
human rights within parliamentary structures and how to deal with
them through parliamentary committees.
28. In the first model, human rights are seen as a horizontal
cross-cutting issue that should be taken into account (“mainstreamed”)
in the work of all parliamentary committees. Every parliamentary
committee is thus considered a “human rights committee”. This is
the solution adopted in Andorra,
Austria,
Belgium,
Denmark,
Estonia,
the European Union,
Finland, France, Iceland, the
Netherlands, Norway, the Russian Federation, the Slovak Republic,
Slovenia,
Spain,
Sweden and Switzerland.
29. The second model implies setting up a parliamentary committee
with a specific human rights mandate, or adding such a human rights
mandate to an existing committee’s remit. Such a committee often
has the task of ensuring that all other parliamentary committees
act in accordance with human rights. The following countries have
such committees: Bosnia and Herzegovina, Croatia,
Cyprus,
the Czech
Republic,
Georgia,
Germany,
Greece, Hungary,
Ireland, Italy,
Latvia,
Lithuania, Luxembourg,
‘”the
former Yugoslav Republic of Macedonia”, Moldova,
Poland,
Romania, Serbia,
Turkey,
and the United Kingdom.
30. On the basis of the information gathered and of past experience,
the second model, in my view, has clear advantages. It pools competences
and provides direction. I shall come back to this point in detail
in my specific proposals below.
4.4. Ratification of
human rights treaties
31. International human rights treaties are normally
negotiated and signed by representatives of the executive of the
contracting parties. In order for them to become valid in a given
legal order, they must subsequently be ratified in accordance with
the specific constitutional requirements of the respective legal orders.
For most states this entails an involvement of their parliament.
Against the background that members of national parliaments are
generally not directly involved in drafting international agreements
or in the related decision-making processes,
the
IPU has called for greater involvement of members of national parliaments in
negotiating international human rights instruments, since they must
eventually enact relevant legislation and ensure its implementation.
They should intervene long before the ratification stage and participate,
along with government representatives, in the drafting of new instruments
within international deliberative bodies.
32. I cannot but agree with this call and would also like to address
it to the member states of the Council of Europe. An inspiration
for member states could be a procedure aligned on that set forth
in Protocol No. 1 to the Treaty of Lisbon on the role of national
parliaments in the European Union,
which
establishes a mechanism to report to national parliaments on legislative
texts under preparation by EU institutions.
33. The drafting process of the Council of Europe Convention on
preventing and combating violence against women and domestic violence
(CETS No. 210) provides an excellent example of early parliamentary involvement
in the elaboration of an international treaty. Here, already the
Vienna Declaration of 2008, which requests the Council of Europe
to provide a first draft, calls for the involvement of parliaments.
In
this context, the Ad hoc Committee on preventing and combating violence
against women and domestic violence (CAHVIO) regularly took into
account contributions from national parliaments via the Assembly's
Committee on Equal Opportunities for Women and Men. A specific campaign
entitled “Stop violence against women (2006-2008)” included an informal
and efficient structure. Contact parliamentarians were nominated
with respect to each parliament. This campaign subsequently grew
into the Parliamentary Assembly network of contact parliamentarians
committed to combating violence against women, the aim of which
is to lobby, within their respective parliaments, for the signature
and ratification of the convention.
34. Furthermore, this convention is the first international instrument
to establish parliamentary involvement in the monitoring procedure.
This involvement is twofold: at national level, parliaments will
participate in monitoring the measures taken to implement the convention;
at the European level, the Parliamentary Assembly will be invited
to regularly take stock of the convention.
35. A similar project is the network of contact parliamentarians
in the context of the Council of Europe Convention on the Protection
of Children against Sexual Exploitation and Sexual Abuse (CETS No.
201). Here too, the Assembly has created a network of contact parliamentarians
to associate national parliamentarians with the parliamentary dimension
of the Council of Europe “One in Five Campaign to stop sexual violence against
children”, to co-ordinate national, European, and international
parliamentary action to combat sexual violence against children,
to facilitate the exchange of best practices on the legislative
and political action implemented in each member state and to promote
the signature and ratification of the convention.
36. Such examples should be followed in the future.
4.5. Overseeing action
of the executive
37. Parliaments are responsible for holding the executive
to account by overseeing its work and making sure that it does not
infringe on the rights of citizens. This can be done by receiving
regular reports from the executive on its activities, asking ministers
questions, setting up special committees and organising field visits to
carry out enquiries into executive conduct and propose remedial
action.
38. Such activities are ongoing and require constant vigilance.
A recent example in the Swiss parliament is outstanding in this
respect: concerning the United Nations Security Council practice
of blacklisting, the Swiss Parliament passed a motion, against the
advice of the government, requiring Switzerland to no longer apply the
relevant sanctions if, after a three-year period, the individual
concerned has not been brought before a judicial authority or has
not been able to appeal to an independent authority. The motion
was approved unanimously by the Council of States (Senate), and
by a large majority by the lower chamber. The Swiss government was
therefore obliged to notify the United Nations Security Council
of the decision.
4.6. Litigation
39. In some legal orders, national parliaments can contribute
to the protection of human rights by way of litigation. For instance,
under German law, the Federal constitutional court has jurisdiction
to rule, on the application of one fourth of the members of the
Bundestag, in the event of disagreements
or doubts concerning the formal or substantive compatibility of
federal law or
Land law with
the constitution, or the compatibility of
Land law
with other federal laws.
Such
an application often concerns fundamental rights as set forth in
the constitution.
40. Parliaments should make use of such procedural possibilities
to defend the cause of human rights.
4.7. Liaison with national
human rights institutions
41. A number of countries have established independent
national human rights institutions,
based
on the “Paris Principles”. These principles,
which
have been endorsed by the United Nations Commission on Human Rights
and the United Nations General
Assembly,
have become
the internationally accepted benchmark setting core minimum standards
for the role and functioning of national human rights institutions. They
require a national human rights institution to have a clearly defined
and broad-based mandate, based on universal human rights standards;
independence guaranteed by legislation or the constitution; autonomy
from government; pluralism, including membership that broadly reflects
the society; adequate powers of investigation; and sufficient resources.
42. Relationships with such institutions should be further explored
as they have great potential for human rights protection at the
national level. In this context, I would like to draw the Assembly’s
attention to the “Abuja guidelines” for strengthening co-operation
between national human rights institutions and parliaments, drawn up
in Abuja (Nigeria) in 2004.
4.8. Training for parliamentarians
and their staff
43. Human rights can only sufficiently be protected where
their existence and scope is known and understood by parliamentarians
and their support staff. As parliamentarians are opinion leaders
whose examples matter, the development of a parliamentary human
rights culture to effectively integrate human rights concerns in
all aspects of parliamentary work is of utmost importance. Few parliaments
provide such training: those of Bosnia and Herzegovina, Denmark,
Estonia,
the European Union,
Finland,
Georgia
and
“the former Yugoslav Republic of Macedonia”.
For
example, in Bosnia and Herzegovina, the German Konrad Adenauer Foundation
organises, for both parliamentarians and staff, a series of seminars
on human rights, including the implementation of judgments of the
European Court of Human Rights.
44. Parliaments should provide more training for both parliamentarians
and staff, along the lines of Bosnia and Herzegovina. In addition,
new parliamentarians and staff members should be provided with handbooks
on human rights.
45. In this respect, the double mandate of members of the Assembly
– as both members of the Assembly and of their national parliaments
– is of particular importance for raising the awareness of their
colleagues for human rights issues. I consider it the duty of all
of us to contribute to such a process at every possible level. We
have a special responsibility here.
4.9. Fostering a human
rights culture
46. Embedding human rights policy in parliamentary structures
can take many other forms.
47. Informal groups which transcend political party affiliation
in order to pursue common interests are very useful. While they
do not have the powers of formal committees, their informal nature
often enables them to be more outspoken, which allows them to act
as influential operators in protecting human rights issues. The
data collected in the questionnaire is meagre in this respect. It
seems that very few parliaments foresee such informal groups. They
can be found in the European Union,
Poland,
Serbia,
Sweden,
Switzerland,
Turkey
and the United
Kingdom
.
48. Informal groups are a good tool for fostering an understanding
for human rights. They provide parliamentarians with specific information
around a common theme. Often, they transcend party-political divisions.
I would hope that more such groups will see the light of day in
our respective parliaments.
49. Parliamentarians can have a strong impact on human rights
awareness due to their status and the public nature of their function.
In the political environment, the United Kingdom “early-day motions”
are an effective means of drawing the media’s attention to an issue
by tabling it in the order of the day.
By
including human rights in their party manifestos, parliamentarians
oblige themselves to work towards a stronger human rights culture.
Joint motions of the leading party or leading coalition together
with the opposition demonstrate the importance of the matter to
the general public, who are thus able to see that all politicians
work hand in hand towards the protection and promotion of human
rights. At the same time, the public perception of parliamentarians
can also benefit from their human rights activities, which provide
manifold opportunities to demonstrate a politician’s principled,
humanist stance.
50. Finally, the award of human rights prizes considerably increases
awareness for human rights. Since 1988, the European Union has awarded
the
Sakharov Prize for Freedom of Thought to
personalities or organisations for their outstanding dedication
to the fight for human rights. The prize is awarded by the European
Parliament whose members have the power to turn the spotlight on
human rights by nominating and discussing possible recipients.
Similar
prizes are awarded by national parliaments such as the French, Dutch or
Portuguese parliament. And, last but not least, the Parliamentary
Assembly’s own Human Rights Prize rewards outstanding civil society
action in the defence of human rights in Europe.
5. The supervision
of human rights obligations
5.1. The role of the
Assembly at the European level
51. In the European human rights protection system, the
crown jewel is undeniably the European Convention on Human Rights,
as interpreted by the Strasbourg Court. Its case law fleshes out
and adds life to the concise articles of the Convention. The careful,
vigilant and conscientious execution of judgments by member states
is a precondition for allowing people to benefit from the Court’s
action.
52. Although the supervision of execution of the Court’s judgments
is primarily the responsibility of the Committee of Ministers under
Article 46, paragraph 2, of the Convention, the Assembly has contributed
for several years to the effective implementation of the Court judgments,
by bringing political pressure to bear on governments where particularly
long delays in complying with judgments have arisen. This is a way
for the Assembly to show that it takes seriously its responsibility
for protecting the values upheld by the Council of Europe and ensuring
member states’ compliance with the Convention standards.
53. Without going into detail, I should like to point out that
the Assembly, since 2000, has adopted seven resolutions and six
recommendations aimed at helping states to overcome structural deficiencies
and at accelerating the process of fully complying with the Court’s
judgments.
5.2. The crucial role
of national parliaments
54. Less attention has, however, been paid to national
parliaments, whose vital role in this area must not be overlooked.
55. National authorities are under an obligation to guarantee
the rights and freedoms enshrined in the European Convention on
Human Rights and its Protocols. Article 1 of the Convention expressly
states that “[t]he High Contracting Parties shall secure to everyone
within their jurisdiction the rights and freedoms defined in Section
I of this Convention”. It is therefore the responsibility of all
state bodies – executive, judicial and legislative – to prevent
or remedy human rights violations at the national level.
56. National parliamentarians, as democratically elected representatives
of the people, are well placed to scrutinise the actions of government
so as to ensure the swift and effective implementation of the Court’s judgments.
They should ensure that the competent authorities adopt the required
measures to execute an adverse judgment of the Court and then scrutinise
the actual content of these measures.
57. In my last report on the implementation of judgments of the
European Court of Human Rights, in January 2011, having noted that
in states with strong implementation records parliamentary actors
are strongly involved in the implementation process,
I
stressed that national parliamentary involvement is a vital tool
in the implementation of the Court judgments.
I also regretted that at present very
few states actively engage in this process.
58. Similarly, the Interlaken Declaration of 19 February 2010
calls
for a strengthening of the principle of subsidiarity and for enhancing
the efficiency of the system of supervising the execution of the
Court’s judgments. In its preamble, it explicitly refers to the
role of [national] parliaments in guaranteeing and protecting human
rights at the national level. The specific reference to parliaments
was added to the Declaration just before the conference took place
and it can be said with a fair degree of certainty that this is
due to the work of the Assembly’s Committee on Legal Affairs and
Human rights under the chairmanship of my predecessor, Ms Herta
Däubler-Gmelin.
My colleague, Ms Marie-Louise Bemelmans-Videc,
has equally regretted “the somewhat puzzling feature of the documents
adopted in Interlaken which make no mention of the Assembly and
contain scarcely a word on the role of national parliaments”.
59. In particular, it is disappointing to see that the current
debate on the future of the Convention system does not seem to take
into account the role played by national parliaments in the supervision
of the execution of Court judgments. To this effect, the declaration
adopted at the end of the last conference on this subject, held
in Izmir on 26 and 27 April 2011,
addresses
the supervision of the execution of judgments, albeit only with
respect to the role of the Committee of Ministers.
60. Progress in establishing pertinent parliamentary structures
is slow. Nevertheless, there is some ground for hope, as I would
like to illustrate with the few examples of good practices that
exist.
5.3. Examples of good
practices
5.3.1. The United Kingdom
61. In the United Kingdom Parliament the main mechanism
for parliamentary oversight is the Joint Committee on Human Rights
(JCHR), a Select Committee of 12 members, six from the House of
Commons and six from the House of Lords.
Its
remit is widely defined: it is empowered “to consider matters relating
to human rights in the UK” (but not individual cases). Its secretariat
includes two independent experts in human rights law. Other parliamentary
committees occasionally consider human rights issues when they are
relevant to their remit, but human rights are not the focus of their
oversight and they do not have the assistance of independent human
rights experts.
62. Since being established in 2001, the JCHR has developed a
number of different methods of assisting parliament to supervise
the implementation of human rights norms in the United Kingdom.
The most important have been: systematically scrutinising all government
legislation for compatibility with the United Kingdom's human rights
obligations, including the European Convention on Human Rights;
regularly monitoring the government’s response to court judgments
concerning human rights, both from the European Court of Human Rights
and from the United Kingdom courts; conducting thematic inquiries
into particular human rights issues (for example deaths in custody,
business and human rights, the right of disabled people to independent
living); following up the recommendations of international human
rights monitoring bodies, such as the United Nations compliance
committees.
63. In the new parliament following the 2010 elections the new
Committee has continued most of this work, although its capacity
to do so has been reduced by a cut in its resources.
64. The JCHR’s approach to monitoring the United Kingdom Government’s
response to human rights judgments is set out in the Committee’s
Guidance for Departments on Responding to Court
Judgments on Human Rights, published by the previous
JCHR in March 2010 but adopted by the current Committee.
The JCHR expects a swift and full
response by the government to judgments finding United Kingdom law
or policy to be incompatible with human rights. It has established
a target timetable for remedial action and expects to be given reasons
for any departure from that timetable. In particular:
- The JCHR expects to be notified
promptly by the government of all relevant judgments.
- Within four months of the judgment, the Committee expects
to be informed of the government’s detailed plans for responding
to the judgment, including the proposed general measures, if any,
and an indicative timetable.
- Within six months of the judgment, the Committee expects
the government to have made a final decision about how to remedy
the incompatibility. It scrutinises the government’s reasons for
not respecting the target timetable.
- The Committee may call for evidence on the government’s
proposed response to the judgment, write to the government about
it, question the minister orally, and report to parliament on the
substance of the remedial measure in question, including whether
it remedies the incompatibility in question and any other concerns
about the way in which the law or policy has been changed in response
to the judgment. The Committee may hear oral evidence on the issues
raised by particular judgments.
- The government responds in relation to particular queries
and has now agreed to report annually in July of each year.
- The JCHR reports about once a year to parliament on the
government’s response to its queries.
- The Committee may propose amendments to legislation to
give effect to judgments.
65. The main way in which the JCHR oversees the implementation
of international human rights norms, including the European Convention
on Human Rights, is by scrutinising government legislation for human rights
compatibility. All government bills are scrutinised and the Committee
aims to report early enough in a bill’s passage through parliament
to inform debates about the bill’s possible amendment to meet any
human rights concerns. The Committee has become increasingly proactive
in its legislative scrutiny work. The Committee identifies the bills
likely to raise human rights issues and puts out calls for evidence
in advance of the bill’s publication. Where possible, the Committee’s
human rights experts meet the government officials preparing the
bill to identify the human rights issues likely to be raised by
the bill’s subject-matter. Departments now frequently provide a
detailed “Human Rights Memorandum” to the Committee, setting out
in detail the government’s reasoned justification for its view that
the bill is compatible with the United Kingdom's human rights obligations.
The Committee writes to the government asking for more information
or for clarification of the explanation, or querying the legal basis
of the government’s view. The Committee reports to parliament in the
light of the government’s response and its exchange of correspondence
with the government is published to inform the debate. The Committee’s
reports may recommend amendments to the bill in order to give effect to
the Committee’s recommendations. Members of the Committee may table
the amendments in their own name (the Committee itself is not empowered
to move amendments to bills).
5.3.2. The Netherlands
66. The Netherlands – like most other member states of
the Council of Europe – does not have a specific parliamentary procedure
for the verification of compatibility of draft laws with the European
Convention on Human Rights. However, civil servants drafting legislation
have to consider specific “Instructions” on legislation which oblige
them to specify why draft legislation is deemed compatible with
international human rights norms. This often leads to the human
rights section of the Ministry of Justice checking compatibility
with the Convention.
67. Furthermore, when parliament expresses doubts concerning the
human rights compatibility of draft legislation, an evaluation clause
is added, by means of which the legislation has to be evaluated
after a number of years.
68. Concerning the supervision of the execution of judgments of
the European Court of Human Rights, the government agent before
the Court presents an annual report to parliament concerning the
Court judgments delivered against the Netherlands. Following a request
from the Senate in 2006, this report now includes information concerning
measures adopted to implement adverse Court judgments. Moreover,
the report contains judgments against other state parties which
could have a direct or indirect effect on the Dutch legal system.
69. The results of this practice are tangible: there are numerous
examples where judgments of the Court in cases in which Dutch legislation
or its implementation was at issue have led to changes to national
legislation or policy. For example, there have been major changes
to various sections of the criminal code and the law on criminal
procedure, administrative law and administrative procedural law,
aliens law, family law, social security law, the law on civil procedure,
military disciplinary law and the law on committal to psychiatric
hospitals.
70. Furthermore, Court judgments against other High Contracting
Parties may also lead to changes in national legislation. To give
just one recent example: following the
Salduz judgment,
the necessary changes to Dutch law were
initiated following a debate within parliament immediately after
the date of the Court’s judgment.
5.3.3. Germany
71. The German
Bundestag has
several useful reporting mechanisms. Firstly, since 2007, as a direct
result of the work of the Assembly,
the
Ministry of Justice provides annual written reports to parliament
on judgments and decisions of the European Court of Human Rights
and their implementation in Germany. Since last year, another report
presents relevant cases against states other than Germany. Secondly,
the Committee on Human Rights and Humanitarian Aid is involved in
drawing up reports to various United Nations bodies.
Thirdly,
the government submits a general human rights report to parliament
every two years and submits an action plan for improvement.
Lastly,
the government often submits, on an ad hoc basis, oral and written reports
on human rights issues to the parliamentary Committee on Human Rights
and Humanitarian Aid.
72. The two annual reports on the case law of the Strasbourg Court
deal with three aspects: (1) all judgments and decisions in a given
year in proceedings against Germany; (2) the measures undertaken
to implement the judgments against Germany; and (3) judgments and
decisions in proceedings against other states that could potentially
be of significance for Germany. These reports are sent not only
to parliament, but also to other interested offices and individuals.
They are published on the website of the Federal Ministry of Justice.
73. It should be noted that these are fairly recent developments.
While reports on judgments and decisions in proceedings against
Germany had been prepared since 2004, it was only in 2007 that measures
to implement the Court's judgments were included, at the parliament's
request.
74. These reports are particularly important when a judgment finds
a German statute incompatible with the European Convention for Human
Rights. In such cases, a legislative amendment is normally necessary.
This is where the responsibility taken on by the parliament in monitoring
implementation of judgments by the government, and the responsibility
for legislation, which is the core of parliamentary work, come together.
75. Last year Germany began to report on the Court’s case law
with respect to human rights in cases against states other than
Germany. This report, produced by a University institute, is funded
by the Federal Ministry of Justice and published on the ministry’s
website.
76. Furthermore, the Federal Ministry of Justice assesses all
draft bills’ compatibility with human rights, European Union law
and the existing German constitutional order. When significant human
rights issues are involved, the results of the assessment are stated
in the official rationale/explanatory memorandum, which is submitted
to parliament along with the draft bill. The Federal Government
must report about that assessment during the deliberations on the
drafts in the respective parliamentary committees, and answer parliamentarians’
questions.
77. I particularly welcome the reporting system concerning Court
judgments, including findings of violations concerning other states,
but which could have a bearing on the national legal order. Such
a practice correctly recognises the interpretative authority (
res interpretata) of Court judgments.
I already advocated such a practice at the Conference on the Principle
of Subsidiarity in Skopje on 1 and 2 October 2010.
Such
reports are extremely useful, given that judgments finding violations
in one state can be of major help in preventing new human rights
violations, which would give rise to a large number of new applications
to the Court from other states.
5.3.4. Finland
78. In Finland, the Constitutional Law Committee issues
a statement on the constitutionality of legislative proposals and
other matters brought to its consideration, as well as on their
relation to international human rights treaties, the Convention
being the most central international document against which legislative
acts are judged. In addition to this, once a year, the government
submits a report to parliament on human rights policy in Finland.
In this context, the Foreign Affairs Committee hears experts from
different organisations and NGOs and prepares a committee report
to the plenary.
5.3.5. Romania
79. There are also promising developments in Romania.
Here, following an impetus from the Assembly,
the
Romanian Chamber of Deputies set up in 2007 a sub-committee of its
Legal Affairs Committee specifically mandated to monitor the implementation
of Court judgments. This sub-committee is made up of seven members
of parliament representing all political groups. At a meeting of
the Assembly's Committee on Legal Affairs and Human Rights held
in April 2011, Mr Tudor Panţiru – elected Chair of the new sub-committee
and a former judge on the European Court of Human Rights – indicated
that the sub-committee had started its work, holding hearings with
respect to specific questions.
5.3.6. “The former Yugoslav
Republic of Macedonia”
80. According to written information received by the
secretariat in the context of the preparation of this report, the
parliament of “the former Yugoslav Republic of Macedonia” has a
standing inquiry committee for the protection of civil rights and
freedoms, which checks, ex officio,
the compliance of legislation with international law, including
the Convention. Furthermore, the government agent before the Strasbourg
Court reports to this Committee on an annual basis.
5.3.7. Italy
81. In Italy, the “Azzolini law”
of
2006 created a legislative basis for a special procedure for supervision
of the implementation of judgments by the government and parliament.
Here, the Prime Minister is under an obligation to immediately communicate
judgments of the European Court of Human Rights in respect of Italy to
the houses of parliament so that they can be examined by the competent
parliamentary standing committees, and submit an annual report to
parliament on the position as regards the execution of such judgments.
In addition, the presidents of the houses of parliament issued circulars
insisting on the importance of systematic verification of the compatibility
of draft laws with the Convention, with a view to anticipating and more
effectively preventing violations.
5.3.8. Ukraine
82. During a visit to Ukraine in the context of the preparation
of a previous report, a memorandum of understanding on Ukraine’s
Performance with regard to Final Judgments of the European Court
of Human Rights was signed on 9 July 2009 between myself and Mr
Kivalov, Chairperson of the Committee on Justice of the Verkhovna
Rada and a member of the Assembly’s Committee on Legal Affairs and
Human Rights. This document states that it is desirable that the
Committee on Justice and any of its sub-committees monitor the enforcement
of the Court’s judgments concerning Ukraine, as well as any other
relevant case law of the Court. More specifically, Mr Kivalov indicated
that the Committee’s new sub-committee on the implementation of international
standards will soon undertake a thorough overview of the state of
implementation of Court judgments in Ukraine.
83. Although this appears to be encouraging, I have not as yet
been informed of any subsequent developments.
5.3.9. Other good practices
84. In the Belgian Chamber of Representatives, the Commission
on Justice has been entrusted by the Conference of presidents with
the implementation of judgments of the European Court of Human Rights.
In Bosnia and Herzegovina, the Constitutional and Legal Committee
systematically checks the constitutionality of laws. This includes
compatibility with the European Convention on Human Rights, given
the Convention’s constitutional status there.
85. In Greece, compatibility of draft legislation with the Convention
is examined by the scientific service of parliament which drafts
a non-binding report that is distributed to members of parliament
before a debate on the bill.
86. In Lithuania, the Committee on Legal Affairs checks the constitutionality
of draft laws and their compliance with international treaties,
among them the European Convention on Human Rights.
87. In the Russian Federation, the Council of the Federation has
set up a law monitoring centre in order to minimise infringements
with respect to human rights. The Committee on Constitutional Legislation
of the Council of the Federation carries out monitoring of Russian
constitutional court decisions which have not been implemented.
I would expect that this monitoring will be extended to the supervision
of the execution of judgments of the European Court of Human Rights.
88. Mention should also be made of Norway, where an informal committee,
established in 2009, has been mandated to propose a revision of
the constitution with a view to strengthening the position of human
rights therein.
I
hope that these reflections will include parliamentary supervisory
mechanisms.
89. In Ireland, a Human Rights Commission, charged with promoting
and protecting human rights in law, policy and practice, reviews
draft legislation, publishes policy statements on human rights issues
and makes recommendations to the government. However, it is linked
to a government department and not to parliament. This regrettably
reduces parliament’s influence in shaping policy in accordance with
human rights norms.
6. Conclusion and
proposals
90. The good practices just described show that when
it comes to establishing, within national parliaments, specific
procedures to supervise human rights obligations some progress has
been made in recent years, in particular as regards supervisory
mechanisms for the implementation of judgments of the European Court
of Human Rights. They reflect a positive trend and give ground for
hope.
91. Nevertheless, the situation is still far from satisfactory.
Most national parliaments are far from exploiting their full potential
in this process. There is an urgent need to build national parliaments’
capacity to provide effective oversight of human rights implementation.
92. Bolder steps must be taken for national parliaments to become
genuine guarantors of human rights. It is time to co-ordinate efforts
and to establish clear and guiding principles. We have witnessed
the impact of the “Paris principles” on the emergence and streamlining
of independent national human rights institutions. A set of basic
principles comparable to these should be established. I therefore
suggest the adoption of such basic principles:
Basic principles for parliamentary
supervision of international human rights standards
1. Appropriate framework and responsibilitiesNational parliaments
shall establish appropriate parliamentary structures to ensure rigorous
and regular monitoring of compliance with and supervision of international
human rights obligations. These structures should, where possible,
be dedicated human rights committees, or appropriate analogous structures,
whose remits shall be clearly defined and enshrined in law. They
should include, inter alia :
- the systematic verification
of the compatibility of draft legislation with international human
rights obligations;
- the requirement for governments to regularly submit reports
on relevant judgments of the European Court of Human Rights and
their implementation;
- the initiation of legislative proposals and amendments
to laws;
- subpoena powers over witnesses and documents concerning
their remit.
Such committees shall have the responsibility to ensure that
parliaments are properly advised and informed on human rights issues.
Human rights training should also be provided for parliamentarians
and their staff.
2. Independent advice
Human rights committees, or appropriate analogous structures,
shall have access to independent expertise in human rights law.
Adequate resources shall also be made available to provide
specialised secretariat support.
3. Co-operation with other institutions and civil society
Co-operation and regular dialogue shall be maintained, as
appropriate, with relevant national (for example national human
rights institutions, parliamentary commissioners), and international
bodies (for example the Parliamentary Assembly, the Council of Europe
Commissioner for Human Rights, European and other international
human rights monitoring bodies), as well as with representatives
of well-established non-governmental organisations which have significant
and relevant experience.
93. I would like to encourage all of us to work towards
the implementation of such basic principles in order for our parliaments
to become genuine guarantors of human rights in Europe.