In this consultation response on the Human Rights Bill for Scotland APRS welcome the inclusion of a Right to a Healthy Environment as part of the proposed Human Rights Bill for Scotland.

Background

This consultation response draws heavily on the work of the Environmental Rights Centre Scotland (ERCS) and supports their response to the Bill. For a full explanation on the Bill and its implications please see this very full paper written by ERCS

The Human Rights Bill for Scotland will enshrine the right to a healthy environment in law which could be really transformative. This means that communities will have the opportunity, which they don’t have at present, to challenge unsustainable, polluting and damaging activities and development in their areas.

At present corporations and developers have the right to appeal when they are turned down for planning permission but communities have no such right. APRS have been campaigning with Planning Democracy, for an equal right of appeal for many years without success. We will continue this fight, however the inclusion of a right to a healthy environment in the Human Rights Bill may give another avenue for redress in some cases.

Our Response

We welcome the Scottish Government proposal to use the Aarhus definition of the environment, which makes specific reference to ecosystems and the biosphere and would like to see this reflected in the Bill.

There is proposed to be five procedural features (which are the practical elements) to the right a healthy environment and these are:

• clean air
• safe climate
• safe and sufficient water
• non-toxic environments
• healthy biodiversity and ecosystems

We agree with ERCS that the right to healthy and sustainably produced food should also be included in these features

ERCS and LINK have written further detail on each of the substantive features of a healthy environment, drawing on international science and policy forums.

There are also procedural elements (which set out a course of action) and these are: awareness-raising, capacity building; access to information; public participation in decision-making; ensuring effective, affordable and timely remedies; and suitable policies, planning and action.

We welcome the Scottish Government’s acknowledgment that they are currently in breach of Article 9(4) of the Aarhus Convention which says that access to justice should be “fair, equitable, timely and not prohibitively expensive.” 

This is important because Planning Democracy, along with ERCS, Friends of the Earth Scotland, and RSPB have submitted a complaint to the Aarhus Compliance Commission. This complaint states the Scottish Government’s lack of appeal rights for communities is unfair because judicial review is the only option open to communities, and this is prohibitively expensive.

Scottish Government must now set out a clear timetable for access to justice reforms. These are specified in ERCS’s Action Plan evaluation.

We also agree with ERCS that the procedural element of the right to a healthy environment should meet Aarhus requirements, including access to environmental information, public participation in environmental decision-making, access to justice and effective remedies

Other Elements of our response:

With ERCS, we welcome the proposal to incorporate the right to a healthy environment with a duty to comply for public bodies and private actors delivering public functions  

• Rights must be enforceable in a court of law, with appropriate mechanisms in place to effectively hold public bodies and polluters to account.

• The establishment of a dedicated environmental court with a comprehensive jurisdiction would increase access to justice, address the current fragmentation in routes to remedy, and develop judicial expertise to improve effectiveness and efficiency

• The substantive features of the right are interdependent and require standalone protections.

• Each feature must be defined according to expert guidance and international best practice, and adhere to the highest standards, with appropriate enforcement mechanisms to ensure compliance.

• The Scottish Government must ensure policy coherence and coordination across all Sectors to have due regard to the five features.