Human Rights Screening and Impact Assessment
NICS policies and proposals are subject to a number of screening exercises and impact assessments including for human rights.
Questions that screen for any potential human rights impact are often included as part of a department's equality screening tool rather than in a standalone document. However, if this initial screening exercise indicates that the policy could engage any of the rights in the Human Rights Act then a full Human Rights Impact Assessment (HRIA) form should be completed by the appropriate person.
What is a HRIA?
The HRIA is a proforma which can help identify whether the policy or proposal may engage or interfere with one of the rights contained in the Human Rights Act. It also provides advice on how to proceed if such an impact is identified.
The tool can be found in The Policy Toolkit.
The below is a guide to help navigate the HRIA:
The 9 points below require a working knowledge of how absolute, limited and qualified rights work in practice and the legal criteria which must be met when rights are interfered with. The HRIA also requires that policy makers consult the former OFMDFM guidance on the Human Rights Act ‘Get in on the Act; a practical guide to the Human Rights Act for public authorities in Northern Ireland” in order to use the tool effectively.
1) Policy title and aims
Space provided to briefly state the title and objectives of the policy or proposal
2) Rights which the policy / proposal engage
This section lists all of the substantive rights in the Human Rights Act and asks the user to consider which are engaged. It is important to remember that rights can be engaged in a positive way as the policy may contribute to enhancing the rights of certain individuals or communities. Furthermore, many policies engage human rights even if they don’t directly interfere with them. It is also important to record in this section all rights that could be engaged by the policy or proposal.
3) Rights which the policy / proposal interfere with or limit
Further to identifying any rights that are engaged, the user is asked to comment on those which the policy directly interferes with or limits. Whilst the remainder of the tool helps users to establish whether or not this interference might be justified, it is important to remember that there can be no justification for interfering with absolute rights. Any user who identifies an interference with these rights should seek legal advice immediately.
4) Those affected by the interference / limitation
This question requires the user to consider who are the rights holders that will be affected by the policy. Determining which groups of people are most likely to have the rights interfered with should also prompt the user to confirm that the views of these rights holders have been taken into account during stakeholder engagement.
5) Legal basis for the interference / limitation
This questions marks the first step in making an assessment of whether or not the interference is justifiable. Any action that interferes with a human right must have a basis in law. Therefore, the user must identify the legal framework that enables this policy to interfere with rights or what proposed legislation is accompanying the policy in order to provide this.
6) Purpose of the policy / proposal
This question seeks to establish whether or not the interference with human rights will satisfy the requirement that such interference must pursue a legitimate aim. Users should note that for qualified rights the acceptable aims are listed in the text of the article in the Human Rights Act and the purpose of the policy must fit with one of these. However, for limited rights the article will provide a list of exceptions, or specific circumstances in which the right can be limited. If the purpose of the policy is not connected directly to one of these exceptions, then the interference will not be justifiable and you should seek legal advice.
7) Necessary in a democratic society
This question is also connected to the purpose of the policy and what it aims to achieve. It asks the user to consider whether or not the impact on human rights can be balanced against a pressing social need.
The principle of proportionality helps to ensure that any necessary interference with human rights is kept to a minimum. In order to explain why the interference resulting from the policy is proportionate, it is important to outline alternative approaches that were considered and why this approach provides the least restrictive options. In assessing the proportionality of a policy’s impact on human rights it is also necessary to consult with individuals or groups whose rights will be affected.
9) Article 14 equality issues
This question provides an opportunity to check that there are no adverse impacts on any particular group of people defined by the characteristics set out in Article 14. It is important to become familiar with the scope of Article 14 and in particular to be aware that it includes a broader range of protected characteristics than other instruments protection against discrimination such as Section 75 of the Northern Ireland Act.