We all depend on nature. A healthy environment is fundamental to the right to life, and is integral to addressing the root causes of food and fuel insecurity, health inequalities, and the cost-of-living crisis.
And yet, from the sewage spilling into Scotland’s rivers and seas, to the toxic chemicals entering our food, our right to a healthy environment is being violated. It’s a sadly familiar story, and one that we encounter every day. We are facing a triple planetary emergency of climate breakdown, biodiversity loss, and the pollution of our air, land and water.
However, if all goes well, something might be about to shift.
Recognising our right to a healthy environment
For the first time, our right to a healthy environment will be enshrined in law as part of the statutory framework for human rights in Scotland. The Scottish Government is set to incorporate the right to a healthy environment as part of its Human Rights Bill, delivering a package of new rights to empower people across the country.
The right to a healthy environment includes both substantive and procedural elements. The substantive element of the right includes six interdependent features: clean air, a safe climate, clean water and adequate sanitation, healthy and sustainably produced food, non-toxic environments in which to live, work, and play, and healthy biodiversity and ecosystems. These should be recognised as standalone rights for the first time. The procedural element relates to the Aarhus Convention on access to information, public participation in decision-making, and access to justice.
The right to a healthy environment could be transformative for communities and campaigners fighting for a fairer and greener future – but only if new rights have ‘teeth’ and are enforceable against public bodies and polluters.
To this end, ERCS is urging our allies and supporters to respond to Part 5 of the Human Rights Bill consultation: Recognising the right to a healthy environment. It is crucial that Scotland’s civil society speaks with one voice, demanding not only that the right to a healthy environment is recognised, but that the substantive and procedural elements are comprehensive, enforceable, and embed the access to justice principles enshrined in the Aarhus Convention.
A recent LINK/ERCS report explains how the substantive features of the right can translate into meaningful change, through defining each feature according to the highest standards and applying enforcement mechanisms which keep pace with international best practice. A strong and unified response can ensure the government listens and puts robust enforcement mechanisms in place that protect our substantive right to a healthy environment.
What about enforcement?
When all else fails, we must be able to take legal action against irresponsible developers, polluting industries, and negligent public bodies. This is fundamental to the procedural element of the right to a healthy environment. There are promising, if limited, access to justice reforms in the proposed Human Rights Bill – but this is only half the story. For environmental democracy to really take hold, we need a justice system that allows us to effectively enforce our rights in a court of law.
This is where the picture sours.
The Aarhus Convention has repeatedly ruled that Scotland is in breach of the Convention’s access to justice requirements. Article 9(4) states that access to justice must be ‘fair, equitable, timely, and not prohibitively expensive.’ The Scottish Government is now required to set out reforms to achieve compliance by October 2024, and these will be key to ensuring the procedural elements of the right to a healthy environment.
However, rather than progressing on these issues, the Government risks backsliding.
A report to Parliament, triggered by Section 41 of the Continuity Act 2021, was supposed to consider ‘(a) whether the law in Scotland on access to justice on environmental matters is effective and sufficient, and (b) whether and, if so, how the establishment of an environmental court could enhance the governance arrangements.’
Its conclusions are deeply disappointing. We urgently need a dedicated Scottish Environment Court with comprehensive jurisdiction to increase access to justice, address the current fragmentation in routes to remedy, and develop judicial expertise in environmental matters. Such a court would reduce costs, increase efficiency, and speed up the process for resolving environmental governance disputes.
Yet despite the loss of the European Court of Justice and other oversight measures since Brexit, the report dismisses the need for reform, and rejects proposals for an environmental court out of hand. Ultimately, it fails to consider the vast tracts of evidence in favour of retaining the status quo. (For details, see our report on why Scotland needs an environmental court or tribunal, and Professor Gemmell’s report on the clear and urgent case for a Scottish Environment Court).
As Scotland’s natural environment continues to deteriorate, it is vital that we push back against the erroneous arguments of the environmental governance report through forceful engagement in the subsequent consultation – restating the need for comprehensive reforms to legal expenses, dedicated legal institutions and an improved environmental governance regime. Importantly, we need a dedicated environment court, so that we can effectively stand up for the environment in a court of law.
Scotland is at the crossroads. Despite the promise of new environmental rights on the horizon, we risk squandering a once in a generation opportunity to transform Scotland’s environmental governance landscape. This is bad news for the natural world, for our health, and for everyone working to tackle social and economic inequalities.
Campaigners have fought long and hard to reform Scotland’s antiquated and fragmented legal system so that it better serves people and the environment. Now is the critical moment to break down the barriers which prevent access to justice and leave our right to a healthy environment unprotected. Across Scotland, together, we must all demand better.
Find out more – read our right to a healthy environment FAQ.
The Environmental Rights Centre for Scotland (ERCS) assist the public and civil society to understand and exercise their rights in environmental law and to protect the environment. We carry out advocacy in policy and law reform to improve environmental rights and compliance with the Aarhus Convention on access to information, public participation in decision-making, and access to justice on environmental matters. For more information, visit ercs.scot or follow @ERCScot
Benjamin Brown is policy & advocacy officer for Environmental Rights Centre for Scotland (ERCS)