Better legislation – human rights impact assessments in lawmaking
Lawmakers at the national level are under an obligation to ensure that the adopted legislation respects, protects and fulfils human and fundamental rights, laid down in national constitutions, international human rights treaties, and the EU Charter of Fundamental Rights, when transposing EU legislation. At the EU level, the European Commission requires fundamental rights checks for all legislative proposals. The report by the EU Fundamental Rights Agency (FRA), Better legislation — human rights impact assessments in lawmaking, examines how human rights impact assessments are built into lawmaking across the EU and its Member States.
The report finds that while some EU Member States have developed comprehensive guidelines for lawmakers on human rights impact assessments, even referring to the EU Charter of Fundamental Rights, in many EU countries impact assessments rarely consider the whole spectrum of possible human rights impacts but focus on specific areas such as equality, gender or data protection. Approaches and procedures vary, not only between EU countries but also within the respective country depending on the policy area concerned or the ministry responsible. As noted in the report, the lack of references to the Charter in national lawmaking is surprising given the fact that much of national law and policymaking is influenced by EU legislation and is therefore likely to fall within the scope of EU law. The report urges the EU Member States to develop coherent and comprehensive guidelines that explicitly use the Charter when legislating within the scope of EU law. Member States are also encouraged to ensure high-quality assessments through coordination, consultation and capacity-building and to systematically consider human rights impacts also in ex-post evaluation of legislation.
Regarding human rights impact assessments at the EU level the report finds that the fundamental rights checks for legislative proposals are sometimes superficial or missing altogether. The lack of specialised expertise and limited involvement of independent human rights bodies further weakens the process. The report calls on the EU to ensure systematic and thorough impact assessments and to consider independent external human rights expertise.
FRA’s report draws on extensive desk research, expert consultations as well as fieldwork research conducted in 10 EU Member States, including Finland. Project researcher Kristiina Vainio of the Åbo Akademi University Institute for Human Rights contributed to the report by conducting three expert interviews in Finland. The Institute for Human Rights and the Faculty of Law at the University of Turku are part of FRA’s multidisciplinary research network, FRANET. The national FRANET teams provide, upon request, data and information to FRA on a range of fundamental rights issues to facilitate the Agency’s comparative analyses.
