With consultations on environmental governance and the Human Rights Bill, as well as our first climate litigation case, life has been busy at ERCS. What are the key takeaways?
The right to a healthy environment is now within reach
After what feels like an eternity of dither and delay, June marked the arrival (finally) of the Scottish Government’s consultation on the new Human Rights Bill, and with it, a commitment to enshrine the right to a healthy environment in law for the first time.
Overall, the proposals for the right to a healthy environment are promising, with both substantive and procedural elements recognised along with acknowledging Scotland’s ongoing breach of the Aarhus Convention’s access to justice requirements.
We worked closely with Human Rights Consortium Scotland, Scottish Environment LINK, and our supporters to maximise responses to the consultation, and demand that the new rights ‘have teeth’ so that people in Scotland can effectively hold public bodies and polluters to account. We delivered multiple workshops and produced a range of new resources, including our Report on the substantive features of the right to a healthy environment, template consultation response, and explainer animation to help organisations and individuals get to grips with what’s at stake.
The next stage is to scrutinise the revised proposals before legislation is passed in Parliament, and ERCS will continue to advocate for fully comprehensive, enforceable rights.
The Scottish Government appears determined to fail on access to justice
The consultation on the Scottish Government’s review of environmental governance also opened in June, shedding some light on their thinking on the matter. Spoiler alert: it’s not good news.
Their review and report on ‘the effectiveness of environmental governance arrangements’ was deeply disappointing: superficial in its analysis, narrow in scope, and pre-determined in its conclusions. Despite the loss of EU environmental laws and institutions post-Brexit, the report was essentially an argument for the status quo, and rejected the proposal for a dedicated environmental court out of hand.
ERCS believes that the Scottish Government’s review was unlawful in failing to meet its statutory duty under the Continuity Act to consider ‘whether the establishment of an environment court could enhance [environmental] governance arrangements.’ This view is backed by senior Counsel, but the prohibitive cost of legal expenses means that we are unable to bring forward a judicial review. Instead, we dedicated our energy to preparing a robust, evidenced based template consultation response, submitting evidence to the Net Zero, Energy and Transport Committee, and raising the issue directly with the Minister for Transport, Net Zero and Just Transition.
More disappointment came in the form of a progress report on actions to achieve compliance with the access to justice requirements of the Aarhus Convention. The Government seems all set to miss the October 2024 deadline for getting its house in order, with no transparency on the review of Protective Expenses Orders, and no date to to reform legal aid so that taking court action for the environment is affordable.
The Scottish Government has also spent nearly £8,000 on mounting a legal objection to our Aarhus complaint on equal rights of appeal on planning.
While all this may seem disheartening, there is cause for hope. Over the past few months, Labour, Tory and Green MSPs have all raised parliamentary questions on our behalf. We know there is unity across Scotland’s environmental sector, and widespread support for access to justice reforms from politicians of all parties, legal and environmental experts, and from Environmental Standards Scotland. Our task now is to harness this energy and ramp up the pressure, until our voices become impossible to ignore.
The law remains a powerful tool to hold government to account
When asking nicely fails, the credible threat of legal action can succeed in bringing policy change. In August, we brought forward a joint legal challenge with Good Law Project over the failure of the Scottish Government to assess the climate impact of its Infrastructure Investment Plan.
ERCS originally raised the issue with Scottish Ministers in February 2023, only for the government to dismiss our case. Yet when faced with the threat of judicial review and a media storm (over 20 stories in publications including the Scotsman, the Herald, i news, and the National), Ministers were forced to recognise that they were indeed at fault and have promised to remedy the situation.
We now await further details of how they plan to rectify the breach in a timely manner and will not hesitate to proceed with judicial review if they fail to stick to their word. Stay tuned.
Our movement is growing, and collective action gets results
September marked our first ever environmental rights summit, with over 130 people assembling in Edinburgh for workshops, skill shares, and discussions on everything from understanding the planning system, to freedom of information, and the Rights of Nature, as well as vital contributions from our ‘Voices for Justice’ panel, and a keynote address from UN Special Rapporteur on Human Rights and the Environment Prof. David Boyd. You can find out more in our Summit Review.
We are also on the brink of handing in our petition for an enforceable right to a healthy environment and a dedicated environmental court, with over 1800 individual signatories and 65 organisations including NGOs, charities, thinktanks, and trade unions. This marks the end of our first chapter campaigning on these issues, while opening the door to even bolder action in 2024. The momentum for change is now unstoppable, and we are excited for what the future brings.
Benji Brown, Policy & Advocacy Officer, October 2023
