Environmental Governance and Rights in Scotland

Two significant consultations on environmental governance and rights have been launched in Scotland. One reflects on the present position and proposes no changes. The other continues moves towards the major step of incorporating a range of social and economic human rights into the law, including the right to a healthy environment.

Review of Environmental Governance

The first publication is a direct consequence of Brexit since the UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021 required a review of the effectiveness and appropriateness of governance relating to the environment, with particular regard to access to justice and whether the establishment of an environmental court could enhance the position. The Report on the Effectiveness of Governance Arrangements has now been published and concludes that with the creation of Environmental Standards Scotland (ESS), the major gap created by the loss of the oversight provided by the EU institutions has been closed and that the overall position is satisfactory.

The report has come as a deep disappointment to many who do not share that sense of satisfaction. It considers the system at a high level of generality and does not engage in detailed analysis, even in areas where there has been considerable criticism of the position for a long time. The Government considers the broad pattern of governance to be doing its job and ensuring proper democratic accountability, with different institutions having clear roles. The Parliament makes the law, the Government is responsible for policy and some key decisions subject to parliamentary scrutiny, regulatory agencies are accountable through Ministers to Parliament, the courts ensure that all parties act lawfully and ESS provides further oversight, filling the gap left by the loss of the EU institutions. There is thought to be no need for either courts or ESS to have a stronger role in relation to the merits of individual decisions; indeed such a step would only increase complexity and uncertainty.

On access to justice, reference is made to several initiatives which should improve the position for members of the public: the review of Protective Expenses Orders by the Scottish Civil Justice Council and the exemption from court fees for some environmental cases. Reforms to legal aid will consider extending support to some NGOs and support and training on environmental matters for prosecutors and judges on training are also mentioned, as well as the proposals for a new human rights framework.

There are long-standing calls for the introduction of a third party right of appeal in planning and related cases and although this issue is recognised, it is noted that it was considered and rejected in the debates on the Planning (Scotland) Act 2019. It is stated that an administrative third party right of appeal is not necessary to comply with the Aarhus Convention, without any explanation of how this view is compatible with the findings of the Aarhus Convention Compliance Committee that the similar position in Northern Ireland is in breach of the Convention.

After dismissing calls for the courts to be given a wider role in examining the merits as opposed to the narrow legality of decisions, the potential for a specialist environmental court is given little attention. The report simply states that the Government does not see any strong argument for the creation of such a court, but does not engage with the carefully argued case that has been made for such a development by bodies such as the Environmental Rights Centre for Scotland nor with the experience of such courts in many other jurisdictions.

Human Rights for Scotland

Whereas the governance review looks at the present position, A Human Rights Bill for Scotland: Consultation looks forward. The proposal is to incorporate within Scots law major international human rights treaties and also to introduce a right to a healthy environment.

The internationally recognised rights which will form part of the new human rights framework are those set out in:
• the International Covenant on Economic, Social and Cultural Rights
• the Convention on the Elimination of All Forms of Discrimination Against Women
• the Convention on the Rights of Persons with Disabilities, and
• the International Convention on the Elimination of all Forms of Racial Discrimination.
Existing attempts to incorporate the United Nations Convention on the Rights of the Child have led to legislation being passed by the Scottish Parliament but successfully challenged by the UK Government in the Supreme Court. This shows the difficulty of framing legislation that gives effect to such human rights whilst remaining within the limits of devolved competence, but the Government is determined to press ahead.

Although the right to a healthy environment is not yet included in any international treaties, it has gained wide support, including in a resolution of the United Nations General Assembly. Some international measures, including the Aarhus Convention, do support such a right and this is one of the sources that the Government says it will draw on in defining and developing the right. There is thus still a lack of detail as to what the right would contain and views are expressly sought on whether access to healthy and sustainable food should be included.

In terms of implementing these new rights, the consultation is stronger on identifying areas of continuing work rather than making detailed proposals, but it is encouraging that these address the need to embed respect for rights throughout policy- and decision-making processes and that securing redress is recognised as involving more than just what courts can do. Access to justice, is however, identified as a key element, including potentially moving away from the high hurdle of “Wednesbury unreasonableness” when decisions affecting rights are challenged in the courts.

Where does this leave us?

Brexit posed a significant challenge to environmental governance and justice, but the novel gap created by the loss of EU oversight was not the only issue calling out for attention. Even if the creation of ESS has gone a long way to fill that gap, long-standing complaints over the cost of and delays in access to the courts, the limited grounds for challenging regulators’ decisions and the imbalances in and fragmentation of the decision-making and appeal processes remain unanswered.

There are a lot of detailed matters requiring attention in order to satisfy the calls for environmental justice and the comparatively brief and general governance report does not address these, concentrating just on the broad relationships between different bodies. One can expect the responses to the review to argue strongly that more needs to be done if Scotland is to have a truly “effective and appropriate” system of environmental governance. The “efforts to meet the recommendations of the Aarhus Convention Compliance Committee” oddly seem to have more prominence in relation to the human rights framework than environmental governance.

Some reliance is placed in the governance review on the improvements to be provided by the new human rights framework, including the right to a healthy environment. This will indeed be an exciting innovation but it is a long way off still and any high-level framework is no substitute for detailed attention to the nuts and bolts of how decisions are made, how the public’s views can be heard and how grievances can be resolved without a sense of injustice. However attractive an idea in theory, environmental rights are neither a panacea nor a quick fix for the problems being faced today.

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