Human Rights Bill for Scotland: discussion paper

2.5 Right to a Healthy Environment

2.5.1 Overall approach

The Bill proposes to recognise and include the right to a healthy environment. It is intended that recognising the right will reinforce the importance of the environment, recognising the right as indivisible from other fundamental human rights which depend on it.

Consideration of the international development of the right, which has been informed by the work of the UN Special Rapporteur (UNSR) on the human right to a healthy environment, alongside a developing understanding of the domestic environmental context have led to the proposed recognition of the right within the Bill. The precise mechanics of how the right is recognised and included remain subject to further work, noting the right remains subject to ongoing deliberation and development at the international level.

2.5.2 The content and definition of the right to a healthy environment

We propose to include the substantive content of the right, as determined by the UNSR on the human right to a healthy environment, on the face of the Bill. Substantive elements include clean air; safe climate; healthy ecosystems and biodiversity; access to safe and sufficient water; healthy and sustainably produced food; and non-toxic environments in which to live, work and play. The intention is for each of these elements to be treated with equal importance with no hierarchy between them and for these elements to comprise the content of the right. We want to ensure that the right is as accessible as possible for duty-bearers as well as aligned with international understanding.

Procedural elements of the right, derived from the work of the UNSR, include access to environmental information; public participation in environmental decision-making; access to justice; access to suitable policies, planning and action; awareness-raising, promoting education and capacity building; and equality and non-discrimination. Some of the procedural elements are already provided for in legislation more comprehensively, and so adding these to the definition may cause significant and unnecessary complexity, leading to potential challenges for duty-bearers in interpreting what they are intended to have regard to. We are continuing to work through how the Bill best makes provision for these elements. In particular, we are assessing the extent to which these elements are advanced by the Human Rights Scheme within the Bill, which it is proposed will require Ministers to set out how they intended to raise awareness and promote rights, support and increase public participation and work to improve access to justice. In our view, these align with the procedural elements in the right in relation to public participation, access to justice, awareness-raising, and promoting education. We are also exploring the extent to which the link to procedural elements can be strengthened by guidance that can provide a framework for how Scottish Ministers and public authorities act upon and report on the procedural elements.

The Bill proposes to have a clear definition of the right to the substantive elements outlined above. As indicated, we envisage that there would be non-statutory guidance to support domestic understanding and application of the right and the substantive elements, that details examples of best practice and recommendations on how to implement the duty and understand the substantive/procedural elements set out by the UNSR.

2.5.3 Strength, scope and coverage of duty attached to the right

We are reflecting carefully on the appropriate strength, scope and application of the duty. In doing so, we are mindful of the need to deliver something that provides coherence in terms of delivering on our human rights objectives and our ambition to ensure that Scotland continues to be an attractive place to invest in and meets its net zero ambitions. Given the right applies in a broad range of circumstances, we need to establish the optimal approach which will be workable in practice, particularly in relation to how the right interacts with areas such as planning and consenting regimes where there are often a multitude of factors being balanced. We also consider that there may be challenges given the balance of devolved and reserved functions, particularly in the marine environment and with respect to energy policy. There is a need to better understand and unpack these challenges. Taking all that into account, alongside that relative lack of clarity internationally on the detailed normative content of the right (given there is no treaty text to draw from or international guidance in the more influential form of General Comments and Concluding Observations) this may make it more challenging for duty-bearers to implement the right effectively alongside the more developed rights in the treaties. Given these complexities, we are therefore not minded to propose that a duty to comply is attached to the right. We are instead giving consideration to a procedural duty, referred to here as a Healthy Environment Duty, which could require duty-bearers to proactively consider the right to a healthy environment in their decision-making processes.

2.5.4 Alternative approaches

2.5.4.1 Definition

We considered including a definition of the environment on the face of the Bill that was based on the definition in the UK Withdrawal from the European Union Continuity (Scotland) Act 2021, to provide an exhaustive list of what the environment encompasses in the context of the right. Analysis of the practical implications proved that the definition would not provide the degree of clarity which duty-bearers require, and that there is a potential for confusion and difficulty in interpreting a definition of environment (that provides for environmental protection) in conjunction with the substantive elements (that supports the human right to a healthy environment). Feedback from civil society and public bodies also indicated that there was a general consensus on what constitutes a healthy environment, but that duty-bearers would require support to define what the right itself means. We have therefore proposed to define the right as meaning to the substantive elements, which constitute a healthy environment.

2.5.4.2 Approach to sanitation

We are now reverting language on the substantive element on water from the consultation wording “safe water and adequate sanitation” to “safe and sufficient water”. This is to align with international framing. Whilst consultation responses called for an explicit mention of sanitation, we note that international thinking (as defined by the UNSR) includes access to sanitation as a key component of the substantive element and this will be reflected in the guidance we produce.

2.5.5 Further considerations

As noted above, we are continuing to develop our thinking on attaching a procedural duty to the right, and we will engage with a range of stakeholders on this. As part of those considerations, we will explore how a procedural duty could work in relation to existing policies, legislation and obligations, including the extent to which these already support the delivery of the right.

We will also continue to explore how we best reflect the procedural aspects of the right within the Bill, as well as continue to monitor international developments including the development of a possible instrument to recognise the right at the Council of Europe, which should further illuminate the practical application of the content of the right and further aid policy development in the coming period.