The SNP is abandoning the human rights agenda it once championed, with its commitment to enshrine the legal right to a healthy environment hanging in the balance, writes Benjamin Brown.
It comes as news to no-one that we stand on an environmental precipice. Every day, the triple planetary crisis of climate breakdown, biodiversity loss, and the widespread pollution of our air, land and water becomes more apparent, with cascading impacts to our economy, health and wellbeing. And while some countries are more exposed to these harms than others, Scotland is not immune.
The distinct features of Scotland’s post-industrial legacy, rural geography, and skewed patterns of land ownership are manifested in the persistent forms of environmental harm to which communities are exposed, and the seeming inability of our political system to resolve longstanding environmental grievances. Waters polluted with pesticides, sewage, and microplastics; air pollution from road traffic, incinerators, and muirburn; and treasured community greenspace sacrificed on the altar of industrial development – these are just some of the substantive environmental problems that blight communities across Scotland.
People living in areas of high disadvantage, children, older people, disabled people, and people with health conditions are often disproportionately affected by environmental problems and are often least responsible for causing environmental damage. They also often have fewer resources to challenge these environmental burdens. This contributes to systemic discrimination.
The lobbying power of groups such as Scottish Land & Estates and the National Farmers Unions (which predominantly represents not the interests of agricultural workers, but large landowners and agribusiness), alongside the pernicious influence of corporate interests (such as Scottish & Southern Energy, pushing hard for a new gas-fired power station at Peterhead) prevent the realisation of a transformative environmental justice agenda, whatever ‘just transition’ rhetoric is peddled by Scottish Government Ministers. And even within the current governance regime, there is a woeful failure of regulators to effectively monitor pollution, enforce existing environmental laws, or prosecute polluters for environmental offences.
Scotland’s human rights journey
What is the relevance of human rights to all of this? In 2016, then First Minister Nicola Sturgeon announced her intention to introduce a Scottish Human Rights Bill that would enshrine economic, social and cultural rights and UN equalities treaties alongside, for the first time, a legal right to a healthy environment. This followed a landmark resolution adopted by in the UN General Assembly in July 2022, which declared a clean, healthy, and sustainable environment to be a universal human right.
The new Bill was supposed to respect, protect and realise all our human rights. For the first time, Scots would have their substantive right to a healthy environment enshrined in law: the right to clean air; a safe climate; clean water and sanitation; healthy and sustainably produced food; non-toxic environments in which to live, work, study and play; and healthy biodiversity and ecosystems. And if these rights were violated, they could be challenged in court.
This appeared to herald a new era, where individuals and communities would be empowered to enforce their rights against public bodies and polluters, government would become more responsive and accountable, and legal remedies would be more readily available in instances of environmental harm. Increased access to justice and the removal of unaffordable legal expenses – as mandated under the UN Aarhus Convention – would ensure the full realisation of our procedural environmental rights.
Yet almost a decade on, after years of consultation and input from academic experts, civil society, and people with lived experience of poverty and discrimination, the Bill has now been effectively ditched by the SNP. In September, the new First Minister John Swinney provoked a furious backlash by reneging on his party’s promise to legislate for a Scottish Human Rights Bill in the current parliamentary session, and there is no guarantee it will be resurrected after Holyrood elections in 2026.
Scotland the not-so-brave
There are several reasons for the Scottish Government’s about-turn on the Human Rights Bill. Officially, these include the desire to consult more fully with Disabled People’s Organisations, to revisit their approach in dialogue with the new Labour government in Westminster, and to develop the Bill further in response to the UK Supreme Court ruling on the UN Convention on the Rights of the Child Bill, which posed implementation challenges for the Scottish Government as a devolved administration.
Yet none of these reasons present a truly convincing explanation for abandoning this flagship Bill, which was due to be signed off by Scottish Ministers in June 2024 – until the shock resignation of First Minister Humza Yousaf. The collapse of the Bute House Agreement, which bound the SNP and the Greens to a common legislative agenda, triggered a seemingly rightward shift in government, with a pivot away from a rights and equalities agenda towards John Swinney’s ‘four priorities’, among them an unflinching emphasis on economic growth.
The abandonment of this Bill was met with dismay across Scottish civil society, and harkens to a litany of deferred promises from the Scottish Government in recent years. To highlight just two examples: Scottish Ministers defended excluding the right to food from the Good Food Nation Act 2022 and their failure to improve access to justice in our legal system, on the basis that both would be addressed through the – now defunct – Human Rights Bill.
On the right to a healthy environment specifically, it is alleged that the Scottish Government – haunted by the spectre of NIMBYism – feared that it could face an increased threat of litigation, delaying the rollout of new infrastructure. None of these fears are truly substantiated, and speak to general risk aversion, timidity, and political cowardice on the part of public authorities. As data from the Environmental Rights Centre for Scotland (ERCS)’s advice service has shown, the vast majority of environmental objections are not ‘vexatious complaints’ but are motivated by well-founded concerns about increased pollution, habitat destruction, and the loss of community access to greenspace. We need meaningful community participation in environmental decisions as a fundamental part of the democratic process which can support the government to make better, more informed policy decisions.
The Emerging Environmental Rights Agenda
Despite recent setbacks in Scotland, internationally there is growing momentum towards the recognition of environmental rights. The right to a healthy environment is now legally recognised by 164 out of 193 UN member states, and since the landmark UN resolution in 2022, an active campaign has developed targeting the Council of Europe, with the aim of securing an additional protocol to the European Convention on Human Rights recognising the right to a healthy environment.
Recognising the right to a healthy environment has the potential to galvanise real and effective environmental policy. To drive meaningful change, the right to a healthy environment must be enforceable: it must have ‘teeth’ that compel duty bearers to respect it, even when it may be inconvenient for them to do so. Yet evidence compiled by former UN Special Rapporteur on Human Rights and the Environment Prof. David Boyd has shown how the right can also act as a carrot as well as a stick, creating a ‘shield’ for governments who might otherwise be cowed from pursuing robust environmental regulation due to the threat of litigation from big business.
States have invoked their duty to uphold the right when defending themselves against industry lawsuits for introducing environmental policies – and courts have embraced this argument in cases involving industry challenges against plastic bag regulations (in Kenya, Mexico and Uganda), regulations governing the cement industry (Nepal), a law protecting glaciers (Argentina) and restrictions on the import of heavily polluting vehicles (Peru). In the UK, incorporation of the right to a healthy environment could influence the outcome of high-profile legal cases such as the current court action to prevent exploitation of the Rosebank oilfield.
Towards The Rights of Nature
The emancipatory promise of human rights, at their core, is their universalism, their inalienability, and their fundamental commitment to the inherent worth and dignity of human life. They are not to be bestowed from above but claimed from below, and it is down to all of us to translate them into real material improvement in our lives.
There is, nonetheless, an issue that the purported anthropocentrism of the ‘human right to a healthy environment’ maintains a framework which only considers nature in terms of its utility to human society. Indeed, the discourse of individual rights can often feel at odds with the holistic response necessitated by systemic, multi-fronted ecological crises. In the Western legal tradition, nature has historically been treated as a disposable commodity, a resource to be extracted or property to be owned. This, in turn, has shaped how environmental laws have developed to authorise and regulate human use of the environment. In contrast, the emerging Rights of Nature movement – drawing inspiration from various Indigenous traditions – seeks to protects nature as a living legal entity, endowing ecosystems or species with inherent rights to exist and flourish.
Real world examples are multiplying, from the granting of legal rights to rivers in Aotearoa/New Zealand and India, to enshrining the constitutional rights of nature in countries such Ecuador, Bolivia, and closer to home, potentially also in Ireland. Since legal personhood has previously only been afforded to people and corporations, this framework offers a distinct break with existing legal precedent.
Nevertheless, it remains to be seen whether this emerging field of ‘Earth jurisprudence’ can effectively recalibrate our relationship with the natural world. While the validity and significance of these legal developments should not be diminished, the right to a healthy environment provides an immediate practical tool that not only has the power to protect and restore nature, but do so in a framework that recognises the interconnections between this and other socio-economic inequalities.
What the Future Holds
The growing convergence between environmental and human rights groups in Scotland is a cause for hope, building an increasingly intersectional agenda for community empowerment and environmental protection, as two sides of the same coin. While Scotland’s political malaise may not change much in the short term, a determined social movement will ensure that the Human Rights Bill is not sidelined in the next Parliament.
Equalities organisations, environmental groups, and community campaigners are already mobilising for a march on Human Rights Day to ‘bring back the Bill’. This legislation promised to extend legal protections for people and nature, delivering a major step forward towards the realisation of social and environmental justice. It is the culmination of years of work, shaped and informed by legal experts, human rights campaigners, and the input of people with lived experience of discrimination. Their voices will not go silent. It’s time for the government to listen.
Benjamin Brown is policy & advocacy officer at the Environmental Rights Centre for Scotland (ERCS). The views expressed here are his own.