sou · GZB329 · 2011-04-11 00:00:00 — Comments and recommendations from international bodies should be integrated in the continual development of the action plan Various international monitoring bodies regularly submit comments and recommendations to the Government on how is meeting its obligations under international human rights law. There is currently no fixed, coherent structure within the Government Offices for dealing with and following up on these comments more systematically, which I find to be a distinct flaw. Efforts to establish such a structure should be integrated into the Governments future systematic work on human rights and hence with the development of a national human rights action plan. This will enable the Government to analyse how the problems defined and measures chosen in the action plan relate to the recommendations from international monitoring bodies and what type or types of supplementary measures should be taken. Instances where the Government does not agree with the assessment of the monitoring bodies should be identified and the reasons for such differences in opinion should be clearly stated. The design and content of the national action plan While it is worth emphasising that the 135 so-called measures contained in the National Action Plan for Human Rights 20062009 represent a significant commitment by the Government, it is my overall conclusion that the plan has not played the role in the 43 Summary SOU 2011:29 Governments systematic work for human rights that was originally intended. One problem with the design of the plan has been that it does not make sufficiently clear how the measures chosen relate to the description of the human rights situation in (i.e. the base-line study) that is included as part II of the plan. The measures vary considerably in scope and level of ambition, and it is not immediately apparent which priorities and other considerations have formed the basis for the selection and design of the measures, nor how any such considerations relate to the results of the base-line study. At the same time, the absence of clear impact goals puts into question whether the plan during its period of implementation fully has been able to function as a guide, or roadmap, for the Governments work on human rights. Another problem is that it is difficult to see how the content of the action plan relates to other more specialised action plans, strategies and programmes adopted by the Government in a number of different areas and which are clearly relevant to the Governments long-term objective of achieving full respect for human rights in . A clearer presentation of the Governments own analysis of the human rights situation in To be able to characterize the work to achieve full respect for human rights as systematic, a fundamental requirement is that the measures implemented are the result of conscious considerations based on a comprehensive study of the current national human rights situation. The very idea of an action plan is to come to grips with certain unsatisfactory conditions, or at least to improve a given situation. A significant weakness in the 2005 base-line study that was included as part of the plan, is that it does not contain a clear analysis of and conclusions on a) the areas in which , in the Governments opinion, is having difficulties fulfilling its obligations on human rights, and b) which of the flaws detected are the most serious. In its future systematic work on human rights, the Government should give a detailed presentation of the main problems it has identified, what possible alternative solutions have been con44 SOU 2011:29 Summary sidered, and the considerations that have ultimately determined the choice of measures to be undertaken. The undertakings in the action plan should be clearly forward-looking The action plan contains several measures that do not imply any forward-looking undertakings. In my contacts with representatives of different parts of the Government Offices, it has also emerged that the design of the measures in the action plan has mainly been guided by activities or initiatives that – independent of the results of the base-line study – were already ongoing or had already been planned at various ministries when the plan was being developed. As part of the background description to the measures in an action plan, it may be natural to present different types of initiatives that have already been decided on or that are ongoing at the time the action plan is adopted. In order, however, to ensure that the action plan itself becomes a tool that creates tangible added value, it should focus on undertakings that are clearly forward-looking, and in principle not contain measures that have already been decided on or are ongoing. The action plan should contain impact goals A review of the content of the action plan reveals that none of the 135 measures included in the plan has been formulated as an undertaking to attempt to achieve a certain result or impact, expressed in reasonably precise terms, during the action plans implementation period, i.e. The overall picture that emerges from my consultations with representatives for the Government Offices is that no support for including this type of measure was forthcoming when the content of the action plan was being developed. In its future systematic work on human rights, the Government should identify a number of areas that are of special significance and for each of these formulate the concrete improvement of the situation in the form of a certain impact or result that it undertakes to attempt to achieve during the implementation period of the action plan. The of these types of goals and targets would, in my opinion, transfer focus from the implementation of individual 45 Summary SOU 2011:29 activities to the extent to which a measure has actually had some kind of positive impact. Constructing the action plan around this type of undertaking would create a clearer incentive to monitor results more effectively during the implementation period of the action plan and, where necessary, to take decisions on additional measures in order to achieve the established goals. A more clearly integrated gender equality perspective The action plan contains a number of measures aimed at improving equality between women and men, but the extent to which these measures have actually been implemented varies somewhat. The apparent lack of a clearly integrated gender equality perspective in the action plan as a whole is a much more important issue, however, and one that was also discussed during my consultations. The most common view was that the gender perspective was not given much prominence during the development of the action plan. Some have even said that there was direct opposition to explicitly including gender equality issues in the development of the action plan; the view being that such issues should instead be dealt with separately. Future systematic work on human rights should not, however, be hampered by this type of territorial or hierarchical competing. The issue of equality between women and men is an inherent part of the work to protect and promote human rights in all areas of society. The gender equality perspective should therefore be more clearly integrated into the development of a future action plan for human rights in . A more strategic action plan In my view, the Governments future systematic work on human rights should be based on a document that is formulated as more of a strategic tool on an overarching level than the 2006-2009 action plan. Of course, any important reforms that the Government intends to implement during the relevant time-period in order to safeguard human rights at the national level, e.g. by amending legislation or implementing special initiatives in the field of human rights education and awareness raising, should be presented in the action plan. To the greater part, however, the emphasis of the ac46 SOU 2011:29 Summary tion plan should, in my opinion, be on strategic command and control rather than on specific individual measures to be undertaken. In the action plan, the Government should thus establish goals, delegate areas of responsibility, identify relevant actors and announce tasks that they will be given within their own remits to implement measures to achieve the established goals, or to draw up proposals for further initiatives. These tasks should be linked to clear time frames and reporting requirements. When appropriate, the Government could also as part of the plan include commitments to develop specialised programmes within a certain area, in order to fulfil goals and targets established by the human rights action plan. This will create greater clarity with regard to how such more specific programmes of measures, strategies and similar instruments within different policy areas relate to the Governments over-all systematic work to achieve the long-term objective – full respect for human rights in . Governance and coordination of national human rights work While the Government must take action to ensure that meets its obligations under international human rights law, the objective of full respect for human rights is in practice something that ultimately must be realised not just by the Government but also by other actors, i.e. in the day-to-day activities of government agencies and other public-sector bodies. How these activities are governed and coordinated is therefore important if the Governments work on human rights is to be systematic in the true sense of the word. An improved and enhanced human rights work within the Government Offices For the governance and coordination of work on human rights to be more effective, the Government Offices organisation for dealing with human rights issues at the national level must be strengthened. In this section of the report, I propose the initiation of a project within the Government Offices aimed at bringing about an human rights-integrated budget process. Greater attention should 47 Summary SOU 2011:29 also be paid to obligations under international human rights law in the Government Offices internal consultations procedures. In addition, a special human rights unit should be established with the task of coordinating and improving the Government Offices work on human rights issues. I further recommend that the overall planning, coordination and development of human rights issues at the national level should be led by a state secretary who is given this task as his or her principal area of responsibility. Both junior and senior staff at the Government Offices should also be provided with significantly increased levels of training in order to ensure they have the skills required to work effectively and systematically to protect and promote human rights at the national level. A greater clarity concerning what the Government expects from the public administration in the field of human rights In my contacts with agencies that have received special government assignments within the framework of the national human rights action plan, or whose instructions have included references to human rights, a certain amount of uncertainty has emerged as regards what the Government ultimately has wished to achieve by these assignments. It has also been stated that the dialogue with the Government Offices as regards the Governments intentions in this respect could have been better. I therefore recommend that in its future systematic work on human rights, the Government should communicate what it expects to achieve more clearly. Particularly, it should be made clearer to all parts of the public administration as well as the judiciary that they are under an obligation to apply the principle of statutory interpretation in accordance with existing treaties. According to this principle, Swedish internal law shall be interpreted in a which is consistent with treaty obligations, provided that such an interpretation is compatible with the express wording of the relevant statutory provision. SOU 2011:29 Summary A review of human rights assignments given to agencies A review should be performed of how the responsibilities of certain agencies are formulated as regards the implementation of obligations under international human rights law. This review should aim to achieve a more carefully considered wording of such tasks and duties imposed on agencies, and better coordination with other so-called cross-sector assignments. The review should also include statutory agency instructions, appropriation directions and tasks given to agencies as a result of special government decisions. The Government Offices dialogue with the agencies regarding their responsibility for protecting and promoting human rights should improve so that uncertainties about the Governments intentions can be avoided. In connection with the review, the Government should consider which other agencies should be given a special responsibility for protecting and promoting human rights. One of the starting-points should be that agencies that already have or have had such a special responsibility should continue to have one. Priority should also be given to agencies whose remits and powers carry with them an inherent risk of encroaching upon individuals human rights, as well as to agencies with widespread contacts with the general public. For agencies that have a supervisory role, the requirements regarding their responsibility for human rights should be comprehensively worded so that they explicitly incorporate also their supervision activities. The legal instruments governing the activities of the Parliamentary Ombudsman and the Chancellor of should be clarified so that it is clear that their supervision also includes how those who exercise public authority fulfil their duties in relation to obligations under international human rights law. Statutory agency instructions as the principal policy instrument Fundamental requirements as regards the responsibilities of agencies for the implementation of treaty obligations in the field of human rights should be regulated in government ordinances containing agency instructions, not in appropriation directions or in special assignments. Where appropriate, this ordinanceregulated responsibility should be supplemented with tasks in the 49 Summary SOU 2011:29 appropriation directions or in special government decisions, e.g. to analyse more closely the way in which human rights issues are brought to the fore in the agencys own activities, and to develop methods and tools to help it to fulfil its tasks in accordance with the statutory agency instructions. The obligation to promote and protect human rights should be clarified in a coherent chain of statutes In order to create the necessary conditions for a truly systematic work on human rights at the national level, the obligation of the different parts of the public administration to promote and protect human rights should be clearly established in a coherent chain of statutes. This chain should include the regulatory framework for public and administrative law that governs the activities of agencies in more general terms, such as the Administrative Procedure Act (1986:223), the Ordinance (2007:515) and the Local Government Act (1991:900). It should also include certain substantive statutes in areas where there is a more obvious risk of violation of human rights, or where individuals are otherwise in a vulnerable situation. In the latter case, it is primarily a question of statutes and provisions that provide the legal basis for different types of detention decisions, but also the Health and Act (1982:763), the Act (2001:453), the Planning and Act (2010:900), the Elections Act (2005:837), certain statutes in the area of education governing pupils with special needs, as well as certain other statutes aimed at increasing participation in society on equal terms for people with disabilities should be included here. The statutory requirements for administrative agencies and courts to specify the reasons for their decisions should be made clearer, especially regarding how an agency or a court has assessed assertions or objections based upon or supported by fundamental human rights instruments. SOU 2011:29 Summary A clearer focus on human rights in the legislative process A provision should be included in the Committees Ordinance (1998:1474) stating that committees and special investigators must pay particular attention to and analyse how their assignment and considerations relate to obligations under international human rights law. In addition, the proposals submitted by committees and investigators must be formulated so that they respect and, where necessary, strengthen the protection of human rights in accordance with these obligations. In its referrals to its bills and communications to parliament, the Government should always include an assessment of how the content of such a document relates to international human rights obligations. It should be considered how the role and tasks of can be made clearer as regards how legislative proposals relate to obligations under international human rights law. Human rights work at the local and regional level In its future work on human rights, the Government should give priority to a more systematic cooperation with the municipalities and county councils on their role in safeguarding the implementation of international obligations on human rights. When drawing up any future action plan for human rights, the municipalities and county councils should also be actively involved in the process at the earliest possible stage. The Government should try to reach a formal agreement with the Authorities and Regions (SALAR) on cooperation between central government and the municipal and regional levels as regards a systematic work on human rights. Within the framework of such an agreement, the Government and SALAR should try to identify the main difficulties in implementing national human rights obligations at the local and regional levels and then together attempt to find ways of addressing them. Such cooperation between the Government and SALAR should also involve the county administrative boards (CABs), who can 51 Summary SOU 2011:29 play a key role both in their supervision of and support to the municipalities in their work on human rights. The Government should also initiate an , systematic and continuous dialogue with the CABs on how their own work can be more effective as regards integrating the implementation of human rights obligations into their day-to-day operations, including their supervisory activities. This dialogue should aim to strengthen cooperation among the CABs and establish closer consultation between them as a group and the Government Offices when it comes to human rights issues. A strengthened infrastructure for human rights Under this heading in the report, I deal with a number of issues of a methodological and institutional nature that I consider to be of importance in order to achieve the Governments long-term objective of full respect for human rights. monitoring of the human rights situation in In the 2006–2009 action plan, the Government undertook both to identify monitorable national targets for human rights and to develop indicators in order to be able to evaluate and monitor developments towards them. No coordinated targets of this nature have been proposed, however, and implementation of the action plan has only made a very limited contribution to the development of such an indicator-based monitoring system. As part of its future systematic work on human rights, the Government should therefore initiate a structured project aimed at establishing an indicator-based system to monitor the human rights situation in . A fundamental prerequisite for the success of such a project is the by the Government of national targets that are to be achieved for a number of specific human rights. The Government should evaluate the work already carried out to develop indicators specifically to gauge the effects of measures taken to implement the United Nations Convention on the Rights of the Child and to monitor domestic childrens policies, in order to draw conclusions that can be used to develop an indicator-based 52 SOU 2011:29 Summary monitoring system for the Governments systematic work on human rights. There is currently a lack of disaggregated statistical data with respect to the different prohibited grounds of discrimination (e.g. ethnicity, religion or belief and sexual orientation). This lack of data constitutes an obstacle in the development of an indicatorbased monitoring system, and should be addressed by the Government in its future systematic work on human rights. Incorporation of human rights conventions into Swedish law At present only one international human rights treaty – Convention on Human Rights and Fundamental Freedoms – has been incorporated into Swedish law, meaning that the Convention itself constitutes directly applicable law as part of the national legal order. In the report I recommend that an inquiry be appointed with the remit to investigate whether additional human rights treaties should be incorporated into Swedish law. Such an inquiry should analyse the benefits and disadvantages of incorporation, determine whether such an incorporation should take place and if so, which human rights treaties would be appropriate to incorporate and to what extent these should also take precedence over other laws. The inquiry should also analyze to what extent and how the judiciary relies on international human rights obligations in its jurisprudence. A national institution for human rights In the report, I recommend the Government to start working towards the of an independent national institution charged with protecting and promoting human rights in , in accordance with the Principles relating to the Status of National Institutions, known in short as the Principles. In my view, such an institution should be established as a new agency, for example in the form of a Human Rights Commission. The mandate of this new Commission should be regulated by law, preferably by the . Summary SOU 2011:29 should be established as a public agency under the Swedish Parliament, the Riksdag. The Commissions main task should be to investigate and report on how human rights are being respected in and to propose measures to improve the situation. It should also put forward legislative amendments or other measures needed to ensure fulfilment of international human rights obligations, maintain contacts with international organisations and also in other respects take part in international cooperation on issues relating to human rights. Its tasks should also include promoting education and training, research and professional development, information and increased awareness of human rights in . Increased knowledge and awareness of human rights An important part of achieving the objective of full respect for human rights is to increase knowledge and awareness of human rights. Furthermore, information and education measures to ensure the implementation of human rights obligations form, as such, a part of these obligations. In order to properly carry out their tasks, Swedish public sector professionals must have sufficient knowledge of human rights to be able to identify situations where convention-based rights have to be taken into account, and in particular when applying provisions that allow public authorities a of appreciation. In order to safeguard the realisation of human rights in , it is therefore also of crucial importance that a wide range of professional education programmes clearly contain tailored training, as well as examination requirements dealing with international human rights obligations.