Scottish Land Rights and Responsibilities Statement 2022: advisory notes

Annex A: Human Rights Considerations

Human Rights Treaties and International Principles relevant to the Scottish Land Rights and Responsibilities Statement

Scotland is committed to implementing international treaties signed and ratified by the United Kingdom. These treaty obligations are directly relevant to the way modern Scottish society functions. Some of the most important commitments deal with human rights and with themes such as equality, dignity and social justice. This annex outlines how key human rights instruments and international goals are relevant to the way land is used, owned and managed in Scotland, and the associated rights and responsibilities. This annex was developed as part of the considerations for the first Land Rights and Responsibilities Statement in 2017 and has been updated to reflect the current human rights context.

Human rights in relation to land include both core civil and political rights (e.g. the protection of private property) and wider economic, social, cultural and environmental rights.

The Land Reform Act (Scotland) 2016 (the 2016 Act) defines relevant human rights as such human rights as the Scottish Ministers consider to be relevant to the preparation of the Statement. More specifically, it defines human rights as including the European Convention on Human Rights (within the meaning of section 1 of the Human Rights Act 1998), and other human rights contained in any international convention, treaty or other international instrument ratified by the United Kingdom, including the International Covenant on Economic, Social and Cultural Rights (ICESCR).

The 2016 Act also requires Scottish Ministers to have regard to the desirability of promoting respect for such internationally accepted principles and standards for responsible practices in relation to land as the Scottish Ministers consider to be relevant. This is to include the UN Voluntary Guidelines on the Responsible Governance of Tenure (VGGTs).

Having given consideration to various international human rights treaties and to international principles, the Scottish Government has decided that there are relevant human rights, for the purpose of the present Statement, within the European Convention on Human Rights (ECHR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).

In terms of international principles, the Scottish Government considers that UN VGGTs and the UN Sustainable Development Goals are relevant.

European Convention on Human Rights (ECHR)

Important human rights identified in the ECHR are an integral part of the law of Scotland. The Scotland Act 1998 requires that all legislation of the Scottish Parliament and all actions of the Scottish Ministers are compatible with rights contained in the ECHR ("Convention rights"). In addition, the Human Rights Act 1998 requires every public authority in Scotland to act compatibly with the Convention rights and enables human rights cases to be heard in domestic courts.

The Scottish Government reviewed the Convention rights, and in preparing the Statement, took the decision that the following Convention rights were relevant:

Article 1 of Protocol 1 (A1P1)

A1P1 protects the right of persons to enjoy their property peacefully.

In general the Scottish Government wants to use the Statement to promote a Scotland in which more people, including as home owners, are able to own and enjoy land and buildings, as forms of property, peacefully. This provides a sense of security for individuals and confidence for business, and informs Principle 1 of the Statement, which emphasises fairness and social justice, and Principle 2 of the Statement, which promotes more diversity of ownership.

A1P1 rights are not, however, absolute rights. Interference with this right can be permitted in certain circumstances if certain conditions are met, including that the interference is proportionate and in the public interest.

Article 14, Protection from Discrimination

This parallels the requirement under section 1(3)(c) of the 2016 Act to have regard to the desirability of encouraging equal opportunities (within the meaning of Section L2 of Part 2 of schedule 5 of the Scotland Act 1998). As can be seen from Principle 1 of the Statement, one of its key aims is to promote fairness and social justice.

International Covenant on Economic, Social and Cultural Rights (ICESCR)

Economic, social and cultural rights are fundamental to a life of dignity and to the fulfilment of a wide spectrum of other fundamental human rights.

The Scottish Government has committed to the introduction of a Human Rights Bill within this Parliamentary session (2021-26). The Human Rights Bill will incorporate ICESCR into Scots law, as far as it is currently possible within the limits of devolved competence. One of the principal practical effects will be that the rights identified in ICESCR will be enforceable in Scots law.

The Scottish Government took the decision that the following human rights in ICESCR are of particular relevance and should be taken into account in the Statement:

Articles 1, 2 and 3

These three articles deal with fundamental human rights including the rights to self-determination, non-discrimination and equality. They parallel Article 1 of the Universal Declaration of Human Rights (which is not in itself legally binding). Article 2 also requires states to take steps, to the maximum of their available resources, to implement the articles of ICESCR.

Articles 1, 2 and 3 are relevant for the Statement, insofar as land is an enabling resource to support individual and social development. In particular these three articles support Principle 1 of the Statement, which emphasises fairness and social justice.

Article 6 – The Right to Work

This is defined as the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts. The state should take appropriate steps to safeguard this right. The steps to be taken by a state party to the present Covenant to achieve the full realization of this right shall include technical and vocational guidance and training programmes, policies and techniques to achieve steady economic, social and cultural development and full and productive employment under conditions safeguarding fundamental political and economic freedoms to the individual.

Article 6 is relevant to the Statement insofar as land is a key enabling resource, and decisions about land can block or unblock economic opportunities, including the opportunity to work.

Article 11 – Standard of Living

11.1 recognises the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions.

11.2 recognises the fundamental right of everyone to be free from hunger, and requires states to take, individually and through international co-operation, the measures, including specific programmes, which are needed:

(a) To improve methods of production, conservation and distribution of food by making full use of technical and scientific knowledge, by disseminating knowledge of the principles of nutrition and by developing or reforming agrarian systems in such a way as to achieve the most efficient development and utilization of natural resources;

(b) Taking into account the problems of both food-importing and food-exporting countries, to ensure an equitable distribution of world food supplies in relation to need.

Article 11 is important for the Statement because it relates directly to issues that land can have a bearing on, such as standard of living, food, clothing, housing and living conditions. In addition, land is a key resource in relation to how Scotland manages its food production systems, both internally and on the international stage.

Article 12 The Right to Health

Article 12.1 is relevant. "The State Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health." It is the Scottish Government's view that Article 12.1 is relevant because a high quality environment and the way land is used can have an impact on both individual health and wider public health goals. The availability and responsible management of land can, for example, help provide good housing, sustainable local food production, recreational opportunities, clean water, biodiversity and a healthy environment, together with many other important public goods. All of these can have a significant direct and indirect influence in achieving positive health outcomes.

Article 13 – The Right to Education

Article 13 is relevant insofar as the way land is owned, used and managed can enable or restrict everything from the ability to build schools to opportunities to acquire vocational experience. Education should also be understood to encompass more than simply formal instruction in the classroom. Access to, and enjoyment of, Scotland's land and natural environment is also part of the way in which every member of society can take advantage of opportunities to develop and flourish by acquiring new knowledge, understanding, experiences and skills.

Article 15 – Cultural life and enjoyment of Scientific Benefits

In particular the Scottish Government is of the view that Article 15.1(a) and (b) are relevant in the Statement context. 15.1 requires that State Parties to the covenant recognize the right of everyone:

(a) To take part in cultural life;

(b) To enjoy the benefits of scientific progress and its applications;

(c) To benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

Article 15.1 (a) and (b) are particularly relevant to the Statement because land is a necessary ingredient in cultural life. This is not only for practical reasons, relating to provision of land for sports fields, outdoor recreation, community facilities, religious centres, local food production or opportunities for cultural enjoyment of the natural world. Land in Scotland also carries its own cultural significance both in a national context and for local communities. Land can, for instance, be central to our sense of identity as individuals, communities, and as a nation. For some communities in particular, land (including particular places) may be a key defining feature of their history, cultural life and long-term sense of cultural and community identity.

Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW)

The Human Rights Bill (as outlined above) will incorporate CEDAW into Scots law, as far as is currently possible within the limits of devolved competence.

Article 14 – Makes specific reference to ending discrimination against women in rural areas. Article 14 includes specific acknowledgement of women's role in the non-monetised aspects of the economy, ensuring women benefit equally with men from any rural development programmes, and, among other things, that women have access to agricultural credit and loans, marketing facilities, appropriate technology and equal treatment in land and agrarian reforms as well as in land resettlement schemes.

The Scottish Government took the view that Article 14 of CEDAW is important for the purposes of promotion via the Statement because of the need to ensure that women play a full social and economic role in rural life, and benefit from any government supported rural programmes. This approach is also consistent with the overall emphasis on equality and non-discrimination which is central to all international human rights treaties and to domestic human rights legislation.

United Nations Sustainable Development Goals (SDGs)

Scotland was one of the first nations in the World to sign up to the United Nations Sustainable Development Goals (SDGs), and make a dual commitment to tackle poverty and inequality in Scotland, and to help developing countries to grow in a fair and sustainable manner.

The SDGs are not legal obligations and do not impose requirements on Scotland in the same way as the ECHR or formal international treaties. The Scottish Government will however work to implement the SDGs domestically through the National Performance Framework and through targeted, policy-specific action.

The 17 SDGs goals aim to tackle key barriers to sustainable development such as inequality, unsustainable consumption and production patterns, inadequate infrastructure and lack of adequate employment. These issues are also reflected in the Scottish Land Rights and Responsibilities Statement.

National Performance Framework (NPF)

Scotland's National Performance Framework establishes National Outcomes which guide the work of all public authorities and provide a range of National Indicators which allow performance to be tracked at a national level. Both the Outcomes and Indicators reflect Scotland's international human rights obligations (including treaties such as ICESCR) and the SDGs.

All of the National Outcomes are of relevance in the context of the Statement (for example in relation to health, education, the economy, fair work and culture). The NPF include specific outcomes relating to human rights, communities and the environment.

"We respect, protect and fulfil human rights and live free from discrimination".

"We live in communities that are inclusive, empowered, resilient and safe."

"We value, enjoy, protect and enhance our environment"

United Nations' Voluntary Guidelines on the Responsible Governance of Tenure (VGGTs)

The interrelation of property and tenure rights with wider human rights underpins the Food and Agriculture Organisation of the United Nations' Voluntary Guidelines on the Responsible Governance of Tenure (VGGTs). The goal of the VGGTs is to support the progressive realisation of the right to adequate food and national food security. Within this context they promote secure tenure rights and equitable access to land, fisheries and forests, as a means of eradicating hunger and poverty, supporting sustainable development and enhancing the environment. The VGGTs are voluntary guidelines and do not have any legal force. It is also important to note that national implementation will be guided by national circumstances. The VGGTs contain the principle of "responsible investment." They state that responsible investments "should do no harm," and are defined as recognising wider policy objectives around providing benefit to the country and its people; responsible investments should be acknowledged by Government and non-government bodies.

United Nations' Guiding Principles on Business and Human Rights

Both the rural and urban activities of business enterprises can have impacts on human rights. The UN Guiding Principles on Business and Human Rights reach beyond the existing obligations of public authorities to respect, protect and fulfil human rights and recognise the important contribution which the private sector can also make.

Businesses need to comply with applicable laws and to act in ways that respect human rights. They also need to ensure that they have internal management systems which are effective in preventing potential abuses, and where problems do arise they should act promptly and effectively to resolve issues and provide a remedy.

Please see the following web link for more detail: Protect, Respect and Remedy Framework for Business and Human Rights

Scotland is currently working towards the creation of an implementation plan for the UN Guiding Principles.

Further Notes

It should be noted that, in addition to human rights there are further rights related to land under Scots law.

For example, individuals have the right to responsible access to land, communities can apply for a pre-emptive right-to-buy, and a right-to-buy for the purposes of sustainable development under Part 5 of the Land Reform (Scotland) Act 2016, or request asset transfer from public sector bodies. Rights can also be granted by contracts, such as under tenancy or loan agreements and these may have a significant bearing on how land is used. These rights can interact in complex ways. For instance landlords and tenants have A1P1 property rights and a community group may have rights both as a tenant, and through a pre-emptive right to buy.

This is not a comprehensive list and the Statement does not seek to provide detailed guidance on the balance of rights or how land rights and responsibilities might be interpreted in any particular case.