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Right to a Healthy Environment (Human Rights Bill) Consultation

Summary

Agency board report number: SEPA 44/23 - September 2023

This briefing outlines the Right to a Healthy Environment. The Scottish Government is proposing that the Right is included in the Human Rights Bill for Scotland – a Bill that will embed international human rights into domestic law in Scotland and places accountability at the heart of the framework to ensure human rights are respected, protected and fulfilled.

Introduction

The Scottish Government is currently consulting on the Human Rights Bill for Scotland – a Bill that will embed international human rights into domestic law in Scotland with the aim of providing a clear, robust and accessible legal framework that ensures (i) all right-holders in Scotland can understand and claim international human rights domestically; and (ii) all duty-bearers will better implement rights in practice, respond appropriately to rights issues as they arise, and be held to account when things go wrong.

It is proposed that the Bill recognises and includes the Right to a Healthy Environment.

Background

The Right to a Healthy Environment is yet to be enshrined within an international treaty, albeit more than 100 countries have enacted legislation which includes a right to a healthy environment in some form. It was also formally recognised by the UN General Assembly as a human right in July 2022.

Whilst Scotland currently has strong legal protections and policy initiatives for environmental protection, it is hoped that the inclusion of the right to a healthy environment will build on existing environmental standards and regulatory systems in Scotland as well as deliver a stronger framework from which to take further action and strengthen accountability.

For the purposes of the Bill framework, the Scottish Government is considering whether to draw on the definition included in the Aarhus Convention with reference to the biosphere and ecosystems.

Within the consultation, it is proposed that both substantive and procedural aspects are applied to the Right to a Healthy Environment:

Substantive

• Clean air
• Safe & sufficient water
• Non-toxic environments (in which to live, work, study and play)
• Healthy ecosystems and biodiversity
• Safe climate

Procedural

• Awareness raising
• Promoting education and capacity building
• Access to information
• Public participation in decision-making
• Ensuring effective, affordable and timely remedies
• Suitable policies, planning and action.

Views are also being sought as to whether sustainable food and safety and sufficient water be included as substantive aspects.

To put this Right into context, a practical example of what the right could achieve was realised in the state of Montana were a district court judge found the state's approval process for fossil fuel permits as unconstitutional, as it did not evaluate the effects of greenhouse gas emissions. This case was brought to the court by young people saying that the state had violated their right to a ‘clean and healthy environment’.

Duties will be placed upon bodies carrying out devolved public functions:

• Initial procedural duty (active consideration of the right)
• Duty to comply (progressive realisation and minimum core obligations)
• Reporting

Initial Procedural Duty requires duty-bearers to show how they have built human rights into the decisions they make and delivering services. It is meant to ensure new laws, policies, plans and budgets set by duty-bearers take account of people’s human rights.

Duty to comply aims to ensure the need for specific rights respecting outcomes to be fulfilled, going beyond a duty focused on the process of decision-making to a duty focused on compliance with the right. It introduces- minimum core obligations (a minimum threshold which must be always upheld by a country irrespective of resources) and progressive realisation (the right to an adequate standard of living can be continuously improved over time and in line with a country’s resources).

Access to justice forms a core component of the Bill with the consultation setting out proposal for improving access to justice (both non-court and court) for all right-holders who are seeking a remedy for when things go wrong in relation to the rights and duties contained in the Bill. The consultation indicates the plan to build on and strengthen the existing infrastructure of devolved public services (for example complaints procedure), scrutiny bodies, independent complaints mechanisms, human rights bodies, and the courts, to strengthen access to justice.

The issues

The Right to a Healthy Environment is yet to be fully defined; it is proposed that the Bill adopts a direct treaty text approach which takes a tailored approach in relation to the equality treaties. However, the Right to a Healthy Environment is yet to be enshrined in an international treaty.

In respect of the Right to a Health Environment, the consultation asks the following questions:

• Do you agree or disagree with the proposed basis for defining the environment?
• If you disagree, please explain why.
• What are your views on the proposed formulation of the substantive and procedural aspects of the right to a health environment?
• Do you agree or disagree with the proposed approach to the protection of healthy and sustainable food as part of the incorporation of the right to adequate food in ICESCR, rather than inclusion as a substantive aspect of the right to a healthy environment?
• Do you agree or disagree with our proposed approach to including safe and sufficient water as a substantive aspect of the right to healthy environment?
• Are there any other substantive or procedural elements you think should be understood as aspects of the right?

SEPA will be a duty-bearer and will be required to demonstrate the actions it is taking and intends to take to ensure the rights in the Bill are being advanced and built into decision making.

Recommendations

The Board is asked to actively discuss the Right to a Healthy Environment.