March was a busy month! The Scottish Government’s National Taskforce for Human Rights Leadership issued its report of recommendations on human rights, and the Scottish Parliament debated the human right to a healthy environment. These promising steps provide further motivation for the next Scottish Parliament to really get to work on environmental rights.
In our last blog we summarised why Scotland needs a human right to a healthy environment. Here, we pull out the headlines from the Taskforce’s report, and highlight key extracts from the Parliamentary debate. We also set out our next steps to ensure that this momentum translates into progress towards a new Human Rights (Scotland) Act, the establishment of an environmental court, and reform of legal aid.
The National Taskforce on Human Rights Leadership Report
The National Taskforce on Human Rights Leadership was set up in 2019 by the Scottish Government to make detailed proposals for a statutory framework for human rights in Scotland.
On 12 March it published its Report consisting of thirty recommendations for a broad range of human rights to be incorporated in Scots law. These include:
- Civil and political rights already enshrined in the Human Rights Act
- The United Nations International Covenant on Economic, Social and Cultural Rights
- The human right to a healthy environment
- The United Nations Convention on the Elimination of All Forms of Discrimination against Women
- The United Nations Convention on the Elimination of All Forms of Racial Discrimination
- The United Nations Convention on the Rights of Persons with Disabilities
- A right of older people to a life of dignity and independence
- Equality rights for LGBTI people.
ERCS particularly welcomes Recommendation 2: ‘[i]nclude the right to a healthy environment with substantive and procedural elements in the statutory framework’.
We also want to see a comprehensive process for incorporation. The report suggests this is likely to include a pre-legislative consultation, preparation of legislation and policy and explanatory memoranda, the parliamentary legislative process and a public participatory process, development of statutory and non-statutory guidance, capacity-building and development of training and good practice.
Read our press response to the recommendations that we issued jointly with Scottish Environment LINK and Friends of the Earth Scotland.
Parliamentary debate on the human right to a healthy environment: key extracts
Supporters of ERCS will already know that we asked Ruth Maguire MSP to lodge a motion on the human right to a healthy environment which was debated in Parliament on 17 March. At the debate, there was strong support to carry forward the Taskforce’s recommendations and begin progressing new legislation as soon as possible in the next Parliament.
Current failures to comply with the Aarhus Convention, the need for an environmental court and reform of legal aid were also cited.
Whilst all contributors to the debate raised very moving points on why a healthy environment matters to them and their constituencies (which you can read via this Parliamentary Report), here we simply pull out the stated level of ambition by those present.
Ruth Maguire MSP (Cunninghame South, SNP) said:
‘[I]f re-elected, a Scottish National Party Government will introduce a new Scottish Human Rights Act that will include a right to a healthy environment for everyone. [T]aking a human rights-based approach to policies and decisions … will improve the lives of the people of Scotland. I hope that that can happen as soon as possible following the election.’
Maurice Golden MSP (West Scotland, Scottish Conservatives) said:
‘There is little point in declaring that people have the right to a healthy environment if it cannot be enforced…. we have the opportunity to address that through the establishment of a new environmental court that will specifically handle environmental cases, widen access to justice and speed up proceedings.’
Sarah Boyack MSP (Lothian, Scottish Labour) said:
‘World-leading legislation will mean very little to people who are living in poor conditions and needing to engage in legal battles if they do not have access to legal aid. Therefore, we need the legislation, the policy implementation and the funding to ensure that people have recourse to legal support.’
Mark Ruskell MSP (Mid Scotland and Fife, Green) said:
‘The cost of securing legal representation is a great burden for many communities, which is why, in the next session of Parliament, my party will be pushing further the case for environmental courts’.
In response and speaking for the Scottish Government, the Minister for Rural Affairs and the Natural Environment Ben Macpherson MSP closed the debate and said:
‘Our ambition is that a future Scottish Parliament will agree to a new world-leading Human Rights Act in the coming session…. We are hopeful that all parties will work to deliver that ambition’.
‘The Scottish Government has committed to … introducing a bill on legal aid reform, which will include consideration of court fees for Aarhus cases’.
‘[T]he Continuity Act commits Scottish ministers to reviewing the efficacy of the new governance arrangements, including consideration of whether the law on access to justice in environmental matters is effective and sufficient’.
‘[T]here is more that can, and must, be done. It is vital that we are not complacent, and that we continue to push ourselves.’
Our next steps
The potential for new human rights laws in Scotland, which would include for the first time a substantive human right to a healthy environment, cannot be overstated. Our task is now to work with other rights organisations to advocate for concrete progress towards a new Human Rights (Scotland) Bill early in the next Parliament, starting with a pre-legislative consultation.
However, we must not rely on the new statutory framework alone to pursue reform. As outlined in our previous blog, the procedural human right to a healthy environment should already be part of Scots law by virtue of the Aarhus Convention. However, Scotland is in breach because judicial review procedures remain prohibitively expensive. In our view, it is also in breach because courts do not fully review the substance of environmental cases at judicial review.
Therefore, we will ramp up our efforts to push for the establishment of a specialist environmental court to develop expertise, reduce costs, and increase the speed of dispute resolution. The Continuity Act makes provision for a consultation on this next year. We will also continue to advocate for reform of legal aid so that it is available for applicants seeking to pursue environmental cases.
The Scottish Parliamentary elections are scheduled for 6 May 2021. It is vital that the momentum on the human right to a healthy environment continues in the next Government and Parliament, and we look forward to meeting with key decision-makers and law-makers to progress this work.
Advocacy Officer, ERCS.