A Human Rights Bill for Scotland: consultation

Part 5: Recognising the Right to a Healthy Environment

This part of the consultation sets out our proposed approach to including the right to a healthy environment in the Bill.

"Everyone has a right to an environment that is not harmful to their health and wellbeing. And in today's world, looking at air pollution and lots of different issues around environment, it's a very challenging situation and it's not really surprising that that there is a connection with human rights. Maybe it's actually a good direction to handle the problem…if we actually sit down and look around, it's actually more connected than we think." - Member of Lived Experience Board

"[What difference would it make for children and young people if Scotland put extra rights into Scottish law, so everyone has the right to a healthy environment?]

It would make a huge difference to people's mental health, especially children and young people, creating happier and more comfortable children in Scotland." - Member of Lived Experience Board

Human Rights Taskforce Recommendation 2

Include the right to a healthy environment with substantive and procedural elements in the statutory framework.

We want to recognise and include the right to a healthy environment in the Bill. This will help to ensure a healthy and sustainable environment in Scotland and provide a platform to tackle issues related to the environment and human rights so that they are realised together. How we approach defining the right will be a key part of ensuring it is an effective and transformative human right for the people of Scotland. For the purposes of the Bill framework, we are considering our approach including whether to draw on the definition used within the Aarhus Convention,^[18] which includes specific reference to ecosystems and the biosphere.

The right to a healthy environment is yet to be enshrined within an international treaty. Despite this, more than 100 countries have enacted legislation which includes the right to a healthy environment in some form and it was formally recognised by the UN General Assembly as a human right in July 2022.^[19] While Scotland currently has strong legal protections and policy initiatives for environmental protection, recognising the right to a healthy environment as a human right of everyone in Scotland will deliver a stronger framework from which to take further action and strengthen accountability. The Taskforce recognised that the right to a healthy environment is linked to the realisation of other rights to be incorporated in the Bill, and they looked at standards such as the UN Framework Principles on Human Rights and the Environment,^[20] and the Aarhus Convention, as guiding frameworks for the development of this right within the Bill.

Based on those international standards and following engagement with stakeholders, we think the right should be understood as having both substantive aspects and elements which set out a course of action (procedural aspects). Substantive aspects should be understood as including clean air; safe and sufficient water; non-toxic environments (in which to live, work, study and play); healthy ecosystems and biodiversity; and safe climate. Procedural aspects should be understood as including awareness-raising, promoting education and capacity building; access to information; public participation in decision-making; ensuring effective, affordable and timely remedies; and suitable policies, planning and action. Including these procedural aspects in the framework of the Bill would support our efforts to meet the recommendations of the Aarhus Convention Compliance Committee – in particular to establish a clear, transparent and consistent framework to implement Article 9(4) of the Aarhus Convention (the right to remedies that are fair, equitable, timely and not prohibitively expensive).

After engaging with stakeholders, we are also reflecting on whether healthy and sustainable food should be understood as a substantive aspect of the right to a healthy environment as protected by the Bill. Internationally, healthy and sustainable food is recognised as a substantive aspect of the right. However, the right to adequate food is also captured as a social right under the right to an adequate standard of living in ICESCR^[21] – which the Bill will incorporate. Our current view is that the aspect of healthy and sustainable food can be better respected, protected and fulfilled via incorporation of the right to adequate food as provided for by ICESCR and that sustainability makes up a key element of the right to adequate food. Given that human rights are indivisible, interrelated, and interdependent, and should not be viewed in isolation of one another, incorporation of the right to adequate food should provide adequate protection for the environmental aspects of food production.

In relation to safe and sufficient water, while this is also understood as a social right under the ICESCR right to an adequate standard of living, our current view is that this should also be understood as a substantive aspect of the right to a healthy environment. This is because it enables us to draw out a key distinction between ensuring there is safe and sufficient drinking water for human consumption and safe and sufficient water essential for the health of the wider environment. While overlaps exist, our approach aims to provide an adequate distinction between protection for water in both contexts.

Questions

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

7. If you disagree please explain why.

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

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? Please give reasons for your answer.

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? Please give reasons for your answer.

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