Recognise a human right to a healthy environment
Create a statutory right to a healthy environment in the proposed Scottish Human Rights Act.
The Scottish Government has committed to pass a Human Rights (Scotland) Act in this term of Parliament. The government’s National Taskforce for Human Rights Leadership recommended including a human right to a healthy environment. A ‘safe climate’ should be included as a key substantial element.
Following a recent high-level conference, the Council of Europe is looking at how to include the right to a ‘clean, healthy and sustainable environment’ as an additional protocol of the European Convention on Human Rights or as a separate convention.27 The Scottish Government has recently launched proposals for a Scottish Human Rights Bill – positively, this includes the intention to include a right to a healthy environment.28
The human right to a healthy environment has two dimensions: substantive and procedural. The National Taskforce for Human Rights Leadership recommended inclusion of both dimensions of the right in future human rights laws in order for that right to be fully realised.
The substantive elements of human right to a healthy environment have been articulated by the UN Special Rapporteur on human rights and the environment and include ‘the right to clean air, safe climate, access to safe water and adequate sanitation, healthy and sustainably produced food, non-toxic environments in which to live, work study and play, and a healthy biodiversity and ecosystem.’ 29 This is currently not protected by human rights laws in Scotland.
The procedural elements of the human right to a healthy environment are enshrined in the UN Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (the Aarhus Convention) and comprise of: (i) access to environmental information; (ii) public participation in environmental decision-making; (iii) environmental and socio-cultural assessments; (iv) and access to justice in environmental matters and effective remedies.30
The UK’s ratification of the Aarhus Convention means that Scotland is obliged to implement the procedural elements of the human right to a healthy environment. However, Scotland has not properly implemented it. The Convention’s decision-making bodies have repeatedly found the Scottish legal system, and judicial review in particular, to be prohibitively expensive, violating the Convention’s provisions on access to justice.31 A communication currently under review by the Aarhus Convention’s Compliance Committee alleges a further breach in relation to the lack of substantive review of environmental laws in Scottish courts.32
The recognition and realisation of a human right to a healthy environment, defined according to best practice, would support and underpin other environmental objectives, enabling better decision-making for the environment, with litigation only being used as a last resort.
For further information:
- The Substantive Right to a Healthy Environment: A review of definitions, standards and enforcement mechanisms, Environmental Rights Centre, July 2023, https://www.ercs.scot/wp/wp-content/uploads/2023/07/The-Substantive-Right-to-a-Healthy-Environment_June-23_online.pdf
- A Human Right to a Healthy Environment must be included in a new Human Rights (Scotland) Act, Environmental Rights Centre Scotland, 2021, https://www.ercs.scot/wp/wp-content/uploads/2021/04/March-21-HRHE-Briefing-Summary-ERCS-LINK.pdf
- Human Rights (Scotland) Bill, Environmental Rights Centre Scotland, 2023, https://www.ercs.scot/our-work/human-right-healthy-environment/
- Human right to a healthy environment, Environmental Rights Centre Scotland, 2023, https://www.ercs.scot/our-work/
Advancing the right to a clean, healthy and sustainable environment in Europe, Council of Europe, May 2023, https://www.coe.int/en/web/portal/-/advancing-the-right-to-a-clean-healthy-and-sustainable-environment-in-europe
A Human Rights Bill for Scotland: Consultation, Scottish Government, June 2023, https://www.gov.scot/binaries/content/documents/govscot/publications/consultation-paper/2023/06/human-rights-bill-scotland-consultation/documents/human-rights-bill-scotland-consultation-june/human-rights-bill-scotland-consultation-june/govscot%3Adocument/human-rights-bill-scotland-consultation-june.pdf
Right to a healthy environment: Good practice, UNHRSP/UNEP/Boyd, May 2020, https://wedocs.unep.org/handle/20.500.11822/32450
Note that the UK has tried to opt out of the third of these: “environmental and socio-cultural assessments”
Access to justice on the environment, and whether Scotland is providing it, Environmental Rights Centre Scotland, 2021, https://www.ercs.scot/wp/wp-content/uploads/2021/10/Access_to_environmental_justice_Sept21-v4.pdf
Complaint to the Aarhus Convention Compliance Committee, 2017, https://unece.org/fileadmin/DAM/env/pp/compliance/C2018-156/Communication_UK_RSPB_07.12.2017.pdf