Land rights and responsibilities statement: consultation analysis

4. Views on the Statement’s Human Rights Based Approach

Background

The Scottish Government proposes a human rights based approach to the Statement. Such an approach is seen as putting people and their fundamental human rights at the centre of policies. The Scottish Human Rights Commission sets out values for what this means in practice:

Participation – involving people in decisions affecting their rights.

Accountability – monitoring of how people’s rights are being affected and remedies when things go wrong.

Non-discrimination – prohibiting, preventing and eliminating any forms of discrimination.

Empowerment – people understanding their rights and are fully supported to take part in developing policy and practices which affect their lives.

Legality – approaches to be grounded in the legal rights that are set out in domestic and international laws.

Question 2a: Do you agree with the Scottish Government’s proposed “human rights based approach” to the Land Rights and Responsibilities Statement?

Question 2b: Please give any further thoughts on the best way to ensure that the Statement is based on human rights or gives full consideration to human rights.

4.1 51 (82%) respondents answered Question 2a. Of these, 42 agreed with the Scottish Government’s proposed “human rights based approach”; nine respondents did not agree. Table 4.1 overleaf summarises views by category of respondent.

4.2 All but one organisation agreed with the proposed approach; eight of the 17 individuals who provide a view disagreed.

4.3 30 respondents provided further relevant commentary in response to Question 2b, and their views are summarised below.

Views on the benefits of a human rights based approach to the Statement

4.4 Several respondents welcomed the proposed human rights based approach as reflecting current perceptions and expectations of land as a resource to be used in the public interest; as consistent with obligations to adhere to various Conventions and Covenants on human rights; and as a way of safeguarding owners’ enjoyment of their property, whilst making clear that private interests are secondary to justified public interest. The approach was viewed as taking account of the human rights concerns raised during the progress of the Land Reform (Scotland) Act 2016.

Table 4.1 Views on the proposed “human rights based approach” to the Statement

Category	Agree	Disagree	No. of respondents providing a view
National NGOs	14	0	14
Private Sector and Professional Bodies	4	0	4
Community Organisations and their Representative Bodies	5	1	6
Government and NDPBs	1	0	1
Academic	1	0	1
Total Organisations	25	1	26
Total Individuals	17	8	25
Grand total	42	9	51

4.5 This approach was perceived to be in contrast to what one individual described as the “normal top-down approach of government”; with another individual perceiving it to be “refreshingly enlightened”.

4.6 Two respondents, one a community body, the other a National NGO, considered that the human rights based approach would provide a basis for decision-making when balancing competing rights over land.

Views on ensuring that the Statement is based on human rights or gives full consideration to human rights

4.7 A repeated view across several sectors of respondent was that the Statement should mention the human rights based approach explicitly. Others went further to suggest that the Statement should also refer to the International Covenant on Economic, Social and Cultural Rights and the links between these and human rights. A few of the National NGOs requested mention of relevant specific rights, for example, to housing, food, employment, health, work, and so on.

4.8 A few respondents considered that the legal standing of the Statement should be clarified and further regulations be put in place, where necessary, to ensure the Statement can be legally enforced.

4.9 One individual suggested that providing greater historical context in terms of land ownership could help to enhance the effectiveness of the Statement.

4.10 Another individual requested greater clarity on the applicability of the Statement across all communities, right down to the smallest hamlets and settlements, to make the human rights grounding appear real and not just an aspiration.

4.11 A National NGO envisaged that the Statement will need to be supported with awareness-raising campaigns to build capacity and to raise awareness of the human rights based approach.

Views on omissions from the Statement in relation to a human rights based approach

4.12 A recurring view, particularly amongst National NGOs, was that alongside human rights come responsibilities, and these should be made clear. Current concerns such as sheep worrying, fly tipping and poaching were highlighted as examples of lack of responsibility.

4.13 Two National NGOs raised the role of a healthy environment as an aspect of securing land rights and suggested that this be included in the Statement. Three individuals considered that equal rights measures should pertain to wildlife and other natural environments such as flora, fauna and landscapes.

4.14 A community organisation and several National NGOs highlighted issues of accountability and remedies if rights are infringed, as aspects of a human rights based approach which they considered should be covered by the Statement.

Views on challenges to the Statement promoting human rights

4.15 A few respondents perceived the Statement to lack clarity on how existing human rights based legislation would support the implementation of the Statement’s vision and principles in practice.

4.16 A National NGO and an individual respondent shared the view that the wording of the Statement could be more precise and should use plainer language.

4.17 One National NGO suggested that a challenge may be tailoring the human rights based Statement for Scottish circumstances.

4.18 Another considered that the challenge lay in ensuring participation, particularly community participation, is meaningful and mutually beneficial.

Views of respondents opposed to a human rights based approach to the Statement

4.19 The view of several individuals was that human rights are not central to land rights and responsibilities and other factors should take precedence.

4.20 Two respondents, a National NGO and an individual, considered that the values underpinning a human rights based approach are well founded, but describing the Statement as adopting a human rights based approach goes too far. Instead, it was suggested that a focus on “duty of care” or duty of stewardship of the land, may be more appropriate.