Guidelines for NHRIs Seeking to Engage in the Legislative Review Process

The sooner NHRIs become involved in dialogue with government on the issue of legislative review, the easier it will be to influence positive outcomes. Government officials will have invested time and effort towards a certain end: this is time and effort that they might be unwilling to see go wasted if extensive critiques are delivered too late in the process. Often, proposals for legislative action start in Ministries responsible for the particular subject. By the time they reach the Ministry of Justice, which generally has responsibility to prepare the legal draft and review its constitutionality, all the hard thinking as to the content of the legislation will have been completed. Entering into discussions at this point may be too late.

Getting access to draft legislation:

To ensure that NHRIs can comment on proposals, and do so early in their development, an institution should develop and maintain regular and substantive contact, at the staff level, with those who are responsible for preparing initial drafts of legislation, regulations, policy and procedures. More senior NHRI officials should maintain contacts, through regular courtesy visits, with more senior officials. Establishing these working relationships helps ensure that the institution is aware of planned initiatives early in their life cycle and is positioned to influence change as necessary.

Influencing change

Although an NHRI should seek to influence change at the earliest possible stage, an institution must be aware and take advantage of the opportunities that present themselves. A Parliamentary Committee may examine draft legislation. Institutions should take the initiative to put their views of proposed legislation on the record at this stage and, where necessary, use publicity and lobbying to influence positive change.

Steps in reviewing legislation The following steps are generally used for NHRIs that review proposed legislation and/or policy. UNCTs should be aware of these steps and provide advice on them, if asked, and as appropriate in the circumstances.

• Identify legislative drafts or policy initiatives with human rights content or with human rights implications. These may include, inter alia, proposed laws or policies relating to crime and the administration of justice, emergency or security regulations, matters regarding the family (divorce, maintenance, custody), labour standards, immigration, elections reform, nationality and citizenship laws, and social welfare legislation;
• Ascertain the degree to which the draft law or proposed policy complies with the State's international and domestic human rights obligations; NRHI should focus on the technical legal aspects: with references to relevant international law, constitutional texts, practice, etc. so that its engagement is seen not as political, but as juridical. Similarly, policy oriented comments should be grounded in references to applicable instruments;
• Assess the potential human rights implications of the draft law or proposed policy;
• Submit a report based on the previous two steps to the executive, to a parliamentary drafting group or to any other relevant body; and
• Submit a report based on the previous two steps to the executive, to a parliamentary drafting group or to any other relevant body.

Advising governments on the degree to which legislative proposals meet national and international human rights standards is an important function for NHRIs. There are difficulties involved in this, however, especially if the Institution does not have significant resources to expend on the effort.