The Scottish Government has consulted on a draft Human Rights Bill to go before the Scottish Parliament1, aiming to incorporate international human rights standards already signed and ratified by the UK into domestic law in Scotland. The main part of this is somewhat off-topic for me, but the proposals include formal recognition of the right to a healthy environment. It is intended not only that this will help to ensure a healthy and sustainable environment in Scotland, but also to provide a platform to tackle issues related to the environment and human rights so that they are realised together.
As the establishment of Environmental Standards Scotland is showing, there are flaws in our governance arrangements which a Right along these lines might help to correct. For example, Scotland is said to be non-compliant with key aspects of the UN Aarhus Convention, covering access to information, public participation in decision-making and access to environmental justice2. However, there’s also an elephant-sized question about the extent to which our devolved administration is empowered to make legislation of this kind. For what it’s worth, here’s my response to the relevant part of the proposal:
Part 5: Recognising the Right to a Healthy Environment
This part of the consultation sets out our proposed approach to including the right to a healthy environment in the Bill.
6. Do you agree or disagree with our proposed basis for defining the environment?
7. If you disagree, please explain why
8. What are your views on the proposed formulation of the substantive and procedural aspects of the right to a healthy environment?
These proposals are a sound starting point for consultation, but are capable of improvement.
The list of **substantive** aspects of the right are all valid, but incomplete. They must be recognised as interdependent, as well as having standalone aspects. The standards set out in the recommendations of the UN Framework Principles on Human Rights and the Environment and the Aarhus Convention should be adopted.
The right to safe and sufficient water must make clear that adequate sanitation is part and parcel, given the problems we have with sewage pollution and wastewater treatment in Scotland impacting, for example, on the quality of bathing waters.
The proposal to exclude the right to healthy and sustainably produced food (on the grounds this is included elsewhere in the Bill) seems anomalous given its interdependence with the rest of the list of substantive aspects. As a minimum this must be cross-referenced.
As for the **procedural** aspects of the right, recognising the Scottish Government’s acknowledgment that we are currently in breach of Article 9(4) of the Aarhus Convention, we require a clear path to meeting the recommendations of the Aarhus Convention Compliance Committee (ACCC) by the stated deadline of 1 October 2024.
9. Do you agree or disagree with our proposed approach to the protection of healthy and sustainable food as part of the incorporation of the right to adequate food in International Covenant on Economic, Social and Cultural Rights (ICESCR), rather than inclusion as a substantive aspect of the right to a healthy environment?
Please provide your reasons why
The proposed approach is inadequate because it risks emphasising availability and access to food while neglecting the increasingly acute damage caused by the global food system to nature, climate and health. This includes biodiversity loss caused by farm management (including harmful applications of pesticides and fertilisers) on habitats and species, impacts on the quantity and quality of freshwaters, impacts from food processing & distribution (including ‘food miles’) and especially the farming contribution to carbon emissions. Hence an integral part of the right to a healthy environment is the right to healthy sustainable food and vice versa; they are not distinct. Noting that a right to food was previous excluded from the Good Food Nation Act, on the grounds that it would be incorporated in this Human Rights Bill; this must now be put right in a way which recognises the interdependence of these factors.
10. Do you agree or disagree with our proposed approach to including safe and sufficient water as a substantive aspect of the right to a healthy environment?
Please give us your views
The right to safe and sufficient water is welcome but risks being too vague and hence unenforceable. For example, the definition must make clear that adequate sanitation is part and parcel, given the problems we have with sewage pollution and wastewater treatment in Scotland.
To give this right meaning, the aim must be to restore and maintain the ecosystem health of Scotland’s waterways, rivers and lochs. It must address wastewater and pollution from sewage, agricultural discharge, and other sources, the impacts of climate change on water availability (eg flood resilience), and measures for enhanced water monitoring, testing, and enforcement.
11. Are there any other substantive or procedural elements you think should be understood as aspects of the right?
If yes, please specify what substantive or procedural elements and explain how this could be achieved
While the distinction drawn between substantive and procedural elements is welcomed, the proposal for a right to a healthy environment remains high level and aspirational in the absence of clear timetables and commitments to implementation. While these will not be detailed in the Bill, a requirement to publish plans and periodic monitoring reports will help to evidence and demonstrate progress towards ‘progressive realisation’ (as proposed at Q23 and Q24 of the consultation).
The right to a healthy environment should be set in context of the five environmental principles at S13 of the UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021.
For the procedural element to be fulfilled, rights must be enforceable in a court of law, with appropriate mechanisms in place to effectively hold public bodies and polluters to account. Full compliance with Aarhus Convention including access to justice requires a more joined-up approach than currently proposed. Establishment of a dedicated Scottish Environment Court will increase access to justice, address the current fragmentation in routes to remedy, and develop judicial expertise to improve effectiveness and efficiency.