Climate Manifesto:
Policies to deliver action and justice

Recognise a human right to a healthy environment

Create a statutory right to a healthy environment in a Scottish Human Rights Act.

The Scottish Government has committed to pass a Human Rights (Scotland) Act in this term of Parliament.  However a Bill is not proposed in the 2024-5 Programme for Government,³¹ which says only that “we remain committed to legislation to incorporate international treaties into Scots law, developing proposals and engaging with stakeholders” and “we will consult on and publish a framework to embed equality and human rights across the Scottish Government and the wider public sector.“

The government’s National Taskforce for Human Rights Leadership recommended including a human right to a healthy environment with both substantive and procedural elements.  A ‘safe climate’ should be included as a key substantive feature.

Following a recent high-level conference, the Council of Europe is looking at how to include the right to a ‘clean, healthy and sustainable environment’ as an additional protocol of the European Convention on Human Rights or as a separate convention.³²  The Scottish Government has recently launched proposals for a Scottish Human Rights Bill – positively, this includes the intention to include a right to a healthy environment.³³

However, new rights must ‘have teeth’ – they must be clearly defined, and enforceable to the highest environmental standards.

The human right to a healthy environment has two dimensions: substantive and procedural.  The National Taskforce for Human Rights Leadership recommended inclusion of both dimensions of the right in future human rights laws in order for that right to be fully realised.

The substantive elements of human right to a healthy environment have been articulated by the UN Special Rapporteur on human rights and the environment and include ‘the right to clean air, safe climate, access to safe water and adequate sanitation, healthy and sustainably produced food, non-toxic environments in which to live, work study and play, and a healthy biodiversity and ecosystem.’³⁴ This is currently not protected by human rights laws in Scotland.

The procedural elements of the human right to a healthy environment are enshrined in the UN Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (the Aarhus Convention) and comprise of: (i) access to environmental information; (ii) public participation in environmental decision-making; (iii) environmental and socio-cultural assessments; (iv) and access to justice in environmental matters and effective remedies.³⁵

The UK’s ratification of the Aarhus Convention means that Scotland is obliged to implement the procedural elements of the human right to a healthy environment.  However, Scotland has not properly implemented it.  The Convention’s decision-making bodies have repeatedly found the Scottish legal system, and judicial review in particular, to be prohibitively expensive, violating the Convention’s provisions on access to justice.³⁶ A communication currently under review by the Aarhus Convention’s Compliance Committee alleges a further breach in relation to the lack of substantive review of environmental laws in Scottish courts.³⁷

The recognition and realisation of a human right to a healthy environment, defined according to best practice, would support and underpin other environmental objectives, enabling better decision-making for the environment, with litigation only being used as a last resort.

For further information: 

Open letter to the First Minister on the right to a healthy environment, July 2024, https://www.ercs.scot/wp/wp-content/uploads/2024/07/Open-letter-to-FM-on-the-right-to-healthy-environment_July24-1.pdf

The Substantive Right to a Healthy Environment: A review of definitions, standards and enforcement mechanisms, Environmental Rights Centre Scotland, July 2023, https://www.ercs.scot/wp/wp-content/uploads/2023/07/The-Substantive-Right-to-a-Healthy-Environment_June-23_online.pdf

A Human Right to a Healthy Environment must be included in a new Human Rights (Scotland) Act, Environmental Rights Centre Scotland, 2021, https://www.ercs.scot/wp/wp-content/uploads/2021/04/March-21-HRHE-Briefing-Summary-ERCS-LINK.pdf 

Human Rights (Scotland) Bill, Environmental Rights Centre Scotland, 2023, https://www.ercs.scot/our-work/human-right-healthy-environment/ 

Human right to a healthy environment, Environmental Rights Centre Scotland, 2023,  https://www.ercs.scot/our-work/