A Human Rights Bill for Scotland: consultation analysis

4. Views on: Recognising the Right to a Healthy Environment

Question 6: Do you agree or disagree with our proposed basis for defining the environment?

Closed question

There were 205 responses to this question.

Most respondents to this question (69%) agreed with the proposed basis for defining the environment, while a significant minority (31%) expressed disagreement with the proposed basis.

Question 7: Do you agree or disagree with our proposed basis for defining the environment? - If you disagree, please explain why

Open question

There were 155 responses to this question in the consultation.

Agreement with the proposal

The most prevalent theme among respondents to this question was the agreement with the proposal brought forward by the Scottish Government to include a right to a healthy environment in the Human Rights Bill. The majority of respondents raising this theme agreed with using the Aarhus Convention definition of environment as a foundation for the right to a healthy environment in the Human Rights Bill. Among them, a significant minority of respondents made specific reference to the Aarhus Convention Preamble and Articles 1 & 2, suggesting that similar provisions should be included in the Human Rights Bill. Finally, a significant minority of the respondents raising this theme stated that the definition of a healthy environment should make specific mention of ecosystems and the biosphere. This theme was more commonly mentioned by organisational respondents and was particularly common among responses from public sector organisations.

“We welcome the ambition within the Bill for everyone in Scotland to live in a healthy environment and support the use of the Aarhus definition, which makes specific reference to ecosystems and the biosphere. As we face the twin global challenges of climate and ecological emergencies, it is vital that the right to a healthy environment is retained within this Bill.” (Organisation – Public)

Right to a healthy environment should expand to include additional topics

The second most common theme mentioned in the responses to this question was the view that the definition of the right to a healthy environment should be expanded to include more elements and offer specific suggestions. This theme was more common among organisational respondents and particularly civil society organisations. While they agreed with the proposal, a few respondents argued that the definition should have a broader scope and include more types of environmental protection, as well as consider the interconnectedness of environmental rights with other rights. Additionally, a few respondents stated that the Bill should consider the rights of and the impact of the Bill on vulnerable and disadvantaged groups such as disabled people.

A small minority of respondents raising this theme argued that the right to access healthy and safe food should be included in the Bill. A few respondents felt the right to a healthy environment should consider health, mental health and wellbeing, as well as the right of individuals to psychologically safe environments, for example, at the workplace. A few respondents suggested that the right to a healthy environment should include provisions related to housing and the right to healthy housing, for example, including provisions against mould and poor insulation and sanitation.

A large number of suggestions for inclusion in the Bill were made, each by a small number of respondents. Examples included: (i) that the Bill should ensure that global environmental sustainability is considered in meeting the duties under the right to a healthy environment, (ii) that the new laws should include mechanisms promoting increased accountability, (iii) that the right to a healthy environment should make specific reference to the right to safe water, including sanitation and sewage, (iv) measures related to city life including air quality noise pollution, and the right to environmentally sustainable travel including safe walk and cycle, and finally (v) that the right to a healthy environment should include provisions for the right of access to green and blue spaces.

“[…] Access to healthy and sustainable food, and built environments which actively promote and facilitate health, are also important and should be included in any definition of the environment. Food is not currently mentioned in the information on page 21 of the consultation document where this is discussed, which is a significant omission. […]” (Organisation – Other)

“[…] We would like to additionally recognise the impact of the social determinants of health on an individual’s environment. Other aspects of the Bill, like the Right to Health in ICESCR, acknowledge the wider factors of health, such as housing, poverty, education, social support, and community. However, the recognition of these factors under the environment could provide an additional level of importance since these factors have a large impact on the conditions of individuals' lives. […]” (Organisation – other)

More detail needed

The next most prevalent theme among respondents to this question was wider comments regarding the Bill, and most argued that more detail as to what will be included is needed. More information about this theme can be found in Chapter 9, ‘General themes of the consultation responses’.

Summary of other emerging themes

A significant minority of respondents posed criticisms to the proposal to include the right to a healthy environment in the Human Rights Bill. The most common concern raised was that environmental protection does not fall in the same category as human rights, as the right to a healthy environment is not an individual right. In that sense, those respondents felt that it would not be appropriate to include the right to a healthy environment in the Human Rights Bill, as some disagreed with mixing social and environmental principles. A small number of respondents felt that defining a right to a healthy environment as an individual right could pose democratic concerns as it could be used to drive policy that does not necessarily represent the views of the majority.

Question 8: What are your views on the proposed formulation of the substantive and procedural aspects of the right to a healthy environment?

Open question

There were 208 responses to this question in the consultation.

Agreement with the proposed formulation

The most prevalent theme among responses to this question was general agreement with the Scottish Government’s proposed formulation of the right to a healthy environment. This theme was most commonly mentioned among organisational respondents rather than individual respondents, and particularly among public sector organisations. The majority of respondents who mentioned this theme agreed with the proposed definitions to the right. A significant minority emphasised their agreement with the substantive elements proposed for inclusion, such as the right to clean air. Additionally, a significant minority agreed that the right to a healthy environment should include both substantive and procedural elements. A small minority of respondents noted the potential positive health outcomes derived from the right to a healthy environment. Finally, a few respondents expressed their support for adopting UN and international standards in defining the right to a healthy environment.

“We agree with the inclusion of clear and tangible environmental rights in the proposed human rights bill. The experience of individuals, families and communities supported by our members makes clear that these rights are interconnected and a significant influencing factor in overall health and wellbeing.” (Coalition of Care and Support Providers in Scotland)

“We agree with the proposed formulation of the substantive aspects of the right. These aspects, including clean air, a safe climate, safe and sufficient water, non-toxic environments, and healthy biodiversity and ecosystems, are essential components of a comprehensive right to a healthy environment. […]” (Human Rights Consortium Scotland)

Criticisms of proposal and comments for improvement

The next most prevalent theme among responses to this question was criticisms of the proposal, and comments for improving the formulation of the right to a healthy environment. This theme was most common among respondents representing civil society organisations. A significant minority of respondents who mentioned this theme expressed concerns regarding the feasibility of enforcing the proposed provisions of the right. Respondents who held this view often stated that the right should be defined in a way that makes it enforceable. On a similar note, a significant minority of respondents who mentioned this theme noted that the language used in the proposal is too vague and is not actionable. For example, a few respondents suggested that the terms ‘environment’ and ‘safe climate’ should be clearly defined.

A significant minority of respondents highlighted the importance of recognising that while the substantive elements of the right to a healthy environment are interdependent, they should be considered as standalone rights with necessary provisions for their safeguarding. Additionally , a significant minority of respondents suggested that implementing the right as proposed would require government investment in infrastructure, local capacity building and assets, and the development of relevant policy. A few respondents added that the Bill should include clear guidance for its implementation. Finally, a few respondents proposed that the Scottish Government should consider and potentially align with more international frameworks in developing and defining the right to a healthy environment. Examples of guidance and conventions mentioned by respondents include: (i) the UN Committee on the Rights of the Child’s General Comment 26 on children’s rights and the environment, and (ii) the UN Special Rapporteur on human rights and the “Promoting Environmental Democracy: Procedural elements of the human right to a clean, healthy and sustainable environment” report.

“[…] It is important to identify and recognise these six substantive features as both interdependent, and in need of standalone protections. We must see these protections robustly outlined in the bill. […]” (Friends of the Earth Scotland)

Right to a healthy environment should include additional components

The third most commonly raised theme among the responses to this question was the view that the right to a healthy environment should include additional components. This theme was raised more frequently by organisations than individuals, and particularly among civil society organisations. A significant minority of respondents mentioning this theme particularly disagreed with the decision to exclude the element of healthy and sustainable food, as well as the element of adequate sanitation as part of safe and sufficient water. A few respondents added that the definition of a right to a healthy environment needs to be broader and consider social and cultural factors for achieving a healthy environment. A few other respondents noted the importance of access to green spaces, particularly for younger people and children, and stated that a right to access green spaces should be included in the right. Finally, a few respondents noted that the definition of the right to a healthy environment should include a commitment to addressing pollution, protecting the environment and achieving climate and Net Zero targets.

“I question the exclusion of adequate sanitation under safe & sufficient water, given the systemic problems of sewage pollution and wastewater treatment in Scotland. I also disagree with the exclusion of the right to healthy and sustainably produced food because I believe it is a core feature of the substantive right to a healthy environment.” (Individual)

Summary of other emerging themes

A significant minority of respondents to this question emphasised the importance of improving accessibility to environmental justice, reducing the legal costs that an individual seeking justice would have to face, and ensuring that those breaching the right to the environment are held accountable and, where warranted, award compensation for rights violations. Respondents raising this theme noted that Scotland is currently in breach of Article 9c of the Aarhus Convention and that the procedural element of the right should include action to address this. A significant minority of respondents stressed the importance of incorporating a right to a healthy environment and noted that this right is essential for the future livelihood and life quality of children, young people and future generations. Another significant minority of respondents agreed with the draft Bill’s emphasis on public participation and discussed the importance of engaging with a wide range of stakeholders and local communities. A small minority of respondents expressed their agreement with the inclusion of awareness raising and education as procedural elements of the right. Finally, a small minority of respondents stressed the importance of upholding the rights of individuals who are disadvantaged, vulnerable or have protected characteristics and hence are more likely to be negatively impacted by a breach of their right to a healthy environment.

Question 9: Do you agree or disagree with our 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?

Closed question

There were 195 responses to this question.

The majority of respondents, 56%, disagreed with the proposed approach for the protection of healthy and sustainable food. A significant minority, 44% of respondents, agreed with the proposal to protect healthy and sustainable food through the incorporation of the right to adequate food in the ICESCR, instead of including the right to food as a substantive aspect of the right to a healthy environment.

Open question

There were 180 responses to this question in the consultation.

Food should be a part of the right to a healthy environment

The most prevalent theme among the responses to this question was the view that the protection of healthy and sustainable food should be part of a right to a healthy environment. This theme was most common among organisations, and particularly respondents representing civil society organisations. A large minority of respondents who answered this question disagreed with the exclusion of food from the right to a healthy environment. They argued that food production and agriculture have a significant effect on environmental sustainability and the climate, and thus are an essential component of making the Bill effective. Specifically, respondents who held this view often pointed out that food production produces significant greenhouse gas emissions, hence is a key contributor to climate change, and expressed environmental concerns related to food production, such as soil erosion, as well as phosphate and nitrate run-off.

Respondents often felt that food and the environment are interconnected concepts and should be protected under the same right. These respondents advocated adopting a holistic food systems approach to protecting healthy and sustainable food in the context of the right to a healthy environment. A small minority of respondents felt that the ICESCR definition of the right to food is lacking, particularly in terms of covering food sustainability and health quality, and hence favoured protecting healthy and sustainable food as part of the right to a healthy environment. Finally, a small number of respondents stated that the non-inclusion of food limits the scope of the right to a healthy environment.

“The right to adequate food and right to healthy and sustainable food whilst similar aren’t the same. The right to healthy and sustainable food could carry greater weight if it was incorporated as a substantive aspect of the right to a healthy environment, this would further encourage changes to food production practices and supply chains to ensure the food is both healthy and sustainably produced. […]” (Organisation – other)

“International Covenant on Economic, Social and Cultural Rights (ICESCR) does not provide adequate environmental perspective on food production. It appears to cover rights to food and efficient development of food resources, it does not relate to the damage that current industrial food systems inflict on our environment. A substantive right focused on the right to food, combined with the right to a healthy environment, is an essential catalyst needed to tackle our unsustainable food systems and degraded ecosystems that impact our right to enjoy a healthy environment.” (Planning Democracy)

Support of inclusion of food in both ICESCR and in the right to a healthy environment

The second most frequently raised theme was support for safeguarding the element of healthy and sustainable food through both the provisions in the Bill incorporating the ICESCR and as a substantive aspect of the recognition of the right to a healthy environment. This theme was more common among respondents representing organisations, and particularly among civil society organisations. A significant minority of respondents felt that there are various complementary aspects of food rights protection that should be considered, covering economic, social, health, and environmental considerations. Respondents felt that it is important to highlight the distinct economic and social rights related to food. It was argued that the best way to achieve that would be to incorporate both the right to adequate food as defined in ICESCR, and the element of healthy and sustainable food as part of the right to a healthy environment.

“[…] The right to food must be recognised as a standalone feature, that underpins and interacts with other substantive features of the right. It is important to distinguish between the economic/social right to food as it relates to nutrition, access/affordability, adequacy, and culture, and the right to healthy and sustainably produced food as a constituent part of broader environmental health. Both interpretations are necessary but distinct elements of the right to food, and since the consultation report has recognised the merit in defining the right to water under both ICESCR and the right to a healthy environment, it is inconsistent to then exclude the right to food. Both are essential to a healthy environment.” (Individual)

Importance of affordability and accessibility of food

The next most common theme identified in responses to this question was the importance of food affordability and accessibility to all. This theme was most commonly mentioned among organisations, and particularly among civil society organisations. Respondents stressed that given the current cost of living crisis, high quality and sustainable food is not always accessible to many people. The majority of respondents who mentioned this theme expressed the view that all people should have the right to access good quality food at affordable prices. A significant minority of respondents who mentioned this theme discussed issues related to food poverty and the challenges faced by financially disadvantaged households in relation to the right to adequate food. A few respondents noted that some households are unable to afford healthy and sustainable options, causing them to choose unhealthy food options. Additionally, a few respondents expressed concerns about the nationwide diet and nourishment trends in Scotland.

“[…] The right to access healthy and sustainable food must be made clear as its own component, as people continue to suffer due to rising costs and the Cost of Living crisis. There are a number of aspects that must be taken into consideration on top of the economic impact, for example, nutrition, access to healthy food, and increasing affordability for low-income families. […]” (Fife Centre for Equalities)

“While access to adequate food is an area of concern for many of the children, young people, and families we work with at [Organisation name], this issue extends further than simply the availability of produce - encompassing a range of factors such as the quality of available food, sustainability of agricultural practices, and affordability of groceries which can be considered healthy or sustainable. During internal consultation, colleagues told us that many of the families they work with rely on bulk buying, often ultra-processed, produce which is cheap and able to be stored for long periods of time. While often necessary on a restricted budget, this food is simply not able to provide the balanced and nutritious diet that children and young people need to develop and thrive. […]” (Barnardo's Scotland)

Summary of other emerging themes

A significant minority of respondents to this question agreed with the Scottish Government’s proposed approach to the protection of healthy and sustainable food through incorporating the right to adequate food in the ICESCR. Another significant minority of respondents did not comment on their preferred approach to safeguarding the right to food but emphasised the importance of food rights and improving food quality as well as ensuring people have access to healthy food choices. A small minority of respondents discussed the importance of food sustainability and its relation to the environment. Another small minority of respondents discussed the importance of considering contextual aspects when defining a right to food. These respondents discussed a range of socioeconomic, geographical, and cultural aspects, as well as the likely effect of different protected characteristics, arguing that the personal experiences and circumstances of various groups should be considered. A few respondents felt that there were aspects of the proposal that were not clear, including what the implementation would include and how accountability would be established. To that end, a small number of respondents elaborated that the ICESCR does not clearly define what “adequate” food means. Finally, a small minority of respondents disagreed with the need to incorporate a right to food.

Question 10: Do you agree or disagree with our proposed approach to including safe and sufficient water as a substantive aspect of the right to a healthy environment?

Closed question

There were 191 responses to this question in the online consultation.

The overwhelming majority of respondents (82%) agreed with the proposed approach to including safe and sufficient water as a substantive aspect of the right to a healthy environment. A significant minority of respondents (18%) answered that they disagreed with the Scottish Government’s proposed approach.

Open question

There were 165 responses to this question in the consultation.

Agreement with the Scottish Government’s proposed approach

The most prevalent theme identified among responses to this question was agreement with the Scottish Government’s proposal to include the right to safe and sufficient water as a substantive aspect of the right to a healthy environment. The majority of respondents who mentioned this theme expressed general agreement that water should be part of the right to a healthy environment without elaborating on specific reasons behind their view. A minority of respondents who mentioned this theme argued that protecting the right to water is crucial to ensuring the right to a healthy environment.

A significant minority of respondents agreed that rights related to water should be protected by the rights incorporated from the ICESCR and by the right to a healthy environment, as both provide different protections related to the right to water. Additionally, a significant minority of respondents commented that they agreed with the distinction made in the consultation between water for consumption and water in the context of a healthy environment. Another minority of respondents suggested that protecting both of the above aspects of the right to water would protect the people’s standard of living and is essential for the health and wellbeing of citizens. Finally, a few respondents felt that it is important to recognise access to water as a human right.

“We agree that, in addition to incorporating the human right to water through ICESR, including ‘safe and sufficient water’ as an integral component of the right to a healthy environment is essential. This approach rightly recognises both the right to water for human consumption and the broader concept of safe and sufficient water as a critical element of environmental health. It aligns with the need to address both the human right to water and the environmental imperative for clean and adequate water sources. […]” (Organisation – Other)

Include sanitation in the right to safe and sufficient water

The second most commonly raised theme identified among responses to this question was the view that adequate sanitation should be included as part of the substantive element related to water in the right to a healthy environment. Respondents who mentioned this theme criticised the Scottish Government for not proposing to include sanitation as part of the substantive element of safe and sufficient water, as they felt sanitation is an essential element in realising the objectives of the right to a healthy environment. Respondents who raised this theme felt the right to adequate sanitation would assist in addressing issues related to sewage pollution. They felt sanitation is crucial in ensuring the provision of safe and potable water. Finally, respondents argued that sanitation will continue to be a key element in achieving the right to a healthy environment due to challenges stemming from climate change.

“I agree with the need to include safe and sufficient water but believe this feature should also refer to the right to adequate sanitation given the widespread and persistent issues of sewage pollution in Scotland. ‘Safe and sufficient’ must be conceived of in broad terms, with the aim of restoring the ecosystem health of Scotland’s inland waterways, rivers, and lochs. It must address wastewater and pollution from sewage, agricultural discharge, and other sources, the impacts of climate change on water availability, and measures for enhanced water monitoring, testing, and enforcement against polluters. […]” (Individual)

“[…] In this instance, it was suggested that ‘safe and sufficient water’ should be included to incorporate prevention of the likes of nutrient pollution so habitats and communities can be effectively supported. However, the exclusion of sanitation as part of the substantive aspects covering water was noted as a potential negative, in addition to insufficient protection for wildlife. In particular, it was felt that including these could help tackle the ongoing pollution of our waterways by private water companies. Furthermore, the risk of increased pollution and lack of accountability by those responsible were also highlighted as an implication of not including the right to adequate sanitation. […]” (2050 Climate Group)

Concerns about the current situation

The third most frequently mentioned theme was concerns regarding sewage pollution and its impact on water spaces in Scotland. Most respondents emphasised the need to address existing sewage issues, as they felt this would be crucial in delivering a right to safe and sufficient water. Respondents who raised this theme expressed their concern for water pollution, sewage problems, and dumping on beaches as current issues related to water which should be addressed. A few respondents mentioned that all these issues lead to a reduction in the number of environmentally safe waterways. A few other respondents felt that existing legislation regulating water pollution is not appropriately enforced and stated that this should be addressed. It was mentioned that the current situation limits the respondents’ trust that the newly proposed right will be upheld. Finally, a small number of respondents were concerned about the use of fluoride, as they felt it would lead to adverse health effects.

“[…] As we have seen in Scotland, there are persistent issues of sewage pollution, which impact the quality and availability of water that humans come in contact with, not to mention the effects this has on local and wider ecosystems. […]” (Organisation – Other)

Summary of other emerging themes

A theme commonly observed among responses to this question was suggestions for action to protect water sources in Scotland. Respondents who mentioned this theme highlighted the importance of accountability, stating that polluters should be held accountable. They held the view that the government should not procure firms that do not conduct human rights and environmental due diligence. Additionally, respondents who mentioned this theme emphasised the need for improved water monitoring. A minority of respondents commented that the proposal needs more clarity regarding its contents, implementation, feasibility of the proposal, and proposed mechanisms of accountability.

Another theme that was frequently raised in consultation responses was the importance of safe and sufficient water. A few respondents, in particular, highlighted the importance of safe and sufficient water for a healthy environment. A minority of respondents who agreed with the proposed approach for the right to safe and sufficient water, proposed that a similar approach should be followed for food, incorporating it as a right both in the rights incorporated from the ICESCR, and in the right to a healthy environment.

Question 11: Are there any other substantive or procedural elements you think should be understood as aspects of the right?

Closed question

There were 157 responses to this question.

The majority of respondents (55%) answered that there are additional elements that should be understood as aspects of the right. On the other hand, a significant minority of respondents (45%) did not think there were other substantive or procedural elements that should be part of the right to a healthy environment.

Open question

There were 128 responses to this question in the consultation.

Clarity in the Bill on enforcement, accountability, and access to justice

The most prevalent theme among responses to this question was a call for clarity in the Bill on various areas, including enforcement, accountability and access to justice, thus focusing mostly on procedural elements of the right. This theme was more commonly raised by organisational respondents, both from civil society and public sector organisations.

Regarding accountability, a significant minority of respondents highlighted the importance of ensuring improved access to justice, including reducing legal costs for individuals seeking justice, while a few mentioned the need for establishing a specialised environmental court and providing additional training to the judiciary on the provisions of the new Bill. Finally, a few respondents mentioned the importance of ensuring access to information for citizens to allow effective public participation. Finally, a few respondents emphasised that there should be standalone protections for each of the substantive features of the right.

“To make this right a reality, the Scottish Government must create dedicated reforms with clear timelines to make the Right to a Healthy Environment fully enforceable. Each part of this right must be defined according to expert guidance and international best practice, and adhere to the highest standards, with appropriate and effective enforcement mechanisms to ensure compliance. […]” (Children in Scotland)

“[…] Rights must be enforceable in a court of law, with appropriate mechanisms in place to effectively hold public bodies and polluters to account. A dedicated environmental court would give people a formal route through which they could enforce rights to a healthy environment and request remedies. At present, anyone seeking a remedy for environmental pollution or harm has to navigate a web of different public bodies and procedures to establish accountability. This is inefficient and a significant barrier for anyone who wants to act to protect the environment, human health and Scotland’s wild places.” (John Muir Trust)

Further information about the requests for clarity can be found in Chapter 9, ‘General themes of the consultation responses’.

Right to an environmentally healthy life

The second most common theme identified in the responses to this question was a discussion around substantive aspects relating to an environmentally healthy life. This theme was similarly common among individual and organisational respondents. Respondents who mentioned this theme noted the importance of considering the interaction of the environment with conditions of human life, such as culture and striving for healthy human environments (e.g. neighbourhoods, cities, public spaces, and housing). Under this theme, respondents presented various examples of potential substantive elements that fall within this category. These included: (i) access to green spaces, as well as play spaces, (ii) healthy and adequate housing, free from mould, dampness and parasites, and (iii) protection from noise pollution in cities. Finally, a few respondents called for reform in the transport system, supporting the provision of sustainable public transport, as well as emphasising the need to encourage more walking and cycling.

“We believe that The Right to a Healthy Environment within Scots Law must encompass the whole of the environment that people live in that can affect their enjoyment of a healthy life. We believe that this right should be broadly interpreted to include – domestic living conditions and neighbourhood, sanitation and safety, and conditions that can allow for human flourishing - as well as, for example, the more widely understood rights to clean water, clean air, and access to healthy natural ecologies. […]” (Equality Network)

General disagreement with the Human Rights Bill

The third most frequently raised theme among responses to this question was wider disagreement and criticisms of the Human Rights Bill. More information about this theme can be found in Chapter 9, ‘General themes of the consultation responses’.

Summary of other emerging themes

Another theme frequently raised was the need for a broader understanding of the environment. Respondents who mentioned this theme called for a ‘whole environment’ approach to defining the environment and suggested that the substantive elements of the right should include the right to a healthy biodiversity and protected wildlife.

Finally, the last common theme in the responses to this question was discussions surrounding inequalities related to the right to a healthy environment. Respondents noted that it is important to consider that some groups (e.g. vulnerable, disadvantaged, people with protected characteristics) are more likely to be impacted by environmental factors. It was felt that the right to a healthy environment may be more accessible and easier to safeguard for some people than others. Thus, respondents emphasised that in delivering the right to a healthy environment, the government’s approach should be mindful of the different circumstances related to these inequalities.