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While some European Union (EU) Member States have developed comprehensive guidelines for lawmakers on impact assessments that take into account the impact on human rights – with some of these procedural tools even referring to EU fundamental rights and the European Union Charter of Fundamental Rights (the Charter) – in many Member States human rights do not necessarily play a prominent role in impact assessments. Only rarely do impact assessments at the national level explicitly and systematically address human rights concerns. When human rights considerations come into play, impact assessments are often focused on specific areas such as equality, gender, data protection or the environment, and they do not consider the whole spectrum of possible human rights impacts. There is a considerable diversity of approaches and procedures even within the respective Member States depending on the ministry responsible and the policy area concerned.
Only a third of Member States have issued guidelines to assess impacts on human rights when transposing or implementing EU law, and only six Member States have guidelines in place that explicitly refer to the Charter (Cyprus, Denmark, Germany, Greece, Finland and Netherlands). Legal scrutiny procedures, which are separate or part of the impact assessment, check the legal compliance of a legislative proposal with human rights law. However, only in a very few Member States do the procedures explicitly remind the legislator of the need to check the legislative proposals against EU fundamental rights law as well, including the Charter. Moreover, expert interviews in some Member States and North Macedonia indicated that government officials drafting laws lack human rights knowledge, especially of the Charter.
This lack of reference to the Charter in national lawmaking is surprising given the fact that much of national law and policymaking is directly or indirectly influenced by EU legislation and therefore is likely to fall within the scope of EU law. The lack of consideration of the Charter is problematic as it may lead to overlooking compliance with EU fundamental rights law in the lawmaking process at the national level. This may lead to gaps in the protection offered by legislation in cases where the Charter offers added value in terms of the substantial scope of its provisions compared to other human rights sources, such as the European Convention on Human Rights (ECHR) or the national constitutional rights catalogues.
In contrast to national practice, at the EU level, the better regulation system of the European Commission (the Commission) requires that every EU legislative initiative be checked against the Charter. Moreover, the Charter is considered in impact assessments. The 2010 Strategy to strengthen the application of the Charter introduced a fundamental rights checklist designed to make it easier for staff working on legislative proposals to understand the methodology for addressing questions on EU fundamental rights, which should be used by all Commission departments. However, fundamental rights impact assessments are not carried out for all legislative files where they are needed. Moreover, fundamental rights impact assessments are often superficial. Just as at the national level, fundamental rights impact assessments require specialised fundamental rights expertise which is not sufficiently available across all directorates of the Commission. Furthermore, the Regulatory Scrutiny Board, which provides quality control and support for the Commission’s impact assessments and evaluations at early stages of the legislative process, does not include fundamental rights experts.
Independent expert advice improves the evidence base for assessing the human rights impacts of legislation. Of special relevance in this regard are specialised bodies such as national human rights institutions, equality bodies or ombuds institutions. Additionally, civil society organisations (CSOs) active in the field of human rights can bring first-hand experience on the practical implementation and potential impacts on the ground. To ensure that external expert advice reaches the lawmaking process at the right moment, consultation procedures are key.
Inclusive and accessible public consultations should be systematically integrated into the human rights impact assessment process, ensuring meaningful opportunities for all relevant stakeholders – including those directly affected – to contribute at this stage of the policy- and lawmaking process. While at the national level there are procedures in place for consulting CSOs and human rights expert bodies to improve the quality of the laws and the assessment of human rights implications, expert interviews also revealed that in practice, consultations are often considered untimely, inaccessible, not sufficiently meaningful and ineffective.
The Commission makes efforts to consistently carry out public consultations in the context of law and policymaking at the EU level. In addition to public consultation, it also carries out targeted stakeholder consultation focused on specific groups of stakeholders and experts. The experiences, data and views shared with legislator through exercises like these can contribute much needed evidence to the impact assessment. However, the internal legal assessment within the EU institutions is not open to the public.
Ex post evaluations of laws are very rarely carried out at the national level and, when done, human rights indicators are not used. Just as is the case for ex ante impact assessments, the decision to conduct an evaluation is often seen as a political consideration, rather than a requirement. This constitutes a missed opportunity to evaluate human rights impacts of the laws as they are implemented in practice.
At the EU level, ex post evaluations are far more frequently carried out. Moreover, these evaluations at the EU level are considered transparent and accessible. However, the back-to-back procedures (where the impact assessments and evaluations are conducted simultaneously) is problematic if they reveal that the impact assessments of the European Commission do not sufficiently take into account the findings of the evaluation.
Against the background of these findings, this report provides some ‘ways forward’ to the Member States, the European Union Agency for Fundamental Rights (FRA) observer countries and the EU institutions to ensure effective human rights impact assessments and evaluations.