By Benjamin Brown, Policy & Advocacy Officer at Environmental Rights Centre for Scotland
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.
We face a triple planetary emergency of climate breakdown, biodiversity loss, and the pollution of our air, land and water. It’s a sadly familiar story and one that LINK members encounter every day.
Yet if all goes well, something might be about to shift.
Recognising our right to a healthy environment
For the first time, the right to a healthy environment will be enshrined in Scots law as part of the new 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 Scotland.
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 are set to be recognised as fundamental 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 all members of LINK to respond to Part 5 of the Human Rights Bill consultation: Recognising the right to a healthy environment. It’s imperative that Scotland’s green movement speaks with one voice, demanding not only that the right to a healthy environment is recognised, but that both the substantive and procedural elements are comprehensive, enforceable, and consistent with international best practice and the environmental 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 standard 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 uphold access to justice.
Image credit: Cailean Hall Gardiner
What about enforcement?
This is a real opportunity for people to take back control – and exercise their rights to challenge profit-hungry developers, polluting industries, and complacent public bodies. Yet the Human Rights Bill is only half the story. For environmental democracy to really take hold, we need a justice system that allows people to effectively enforce their rights.
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 are now required to set out reforms they will enact 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 (e.g. Pring’s 2009 report on Greening Justice, LINK’s response to the 2016 environmental justice consultation, ERCS’s 2021 report on why Scotland needs an environmental court or tribunal, and Gemmell’s 2023 report on the clear and urgent case for a Scottish Environment Court), in favour of retaining the status quo.
For many years LINK members have been campaigning to reduce the barriers to access to justice on the environment. As Scotland’s nature 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 case for a dedicated environment court and an improved environmental governance regime. We need comprehensive reforms to legal expenses and dedicated legal institutions, so that we can effectively stand up for the environment in a court of law.
Image credit: Kris Frampton
Conclusion
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, and for our own health and wellbeing, with mounting evidence highlighting how environmental harms compound other forms of social and economic inequality.
LINK has 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.
Scotland’s environmental movement must once again, speak up loud and clear to demand better.
For more information contact:
Benjamin Brown, Policy & Advocacy Officer
Environmental Rights Centre for Scotland
bbrown@ercs.scot, 07856 407479
Top image credit: Emma Donaldson