Scotland is still breaching your right to environmental justice
A UN Commission has found that Scotland remains in breach of your right to environmental justice. Here is why having adequate means of upholding your rights is as important as the rights themselves.
Image Credit: Tim van der Kuip, Unsplash
Who do you phone if your rights have been breached?
Who goes to jail for breaching them?
These are questions that are far more serious than most of us realise. Without adequate justice when your rights are breached, you cannot prevent them from being breached again.
A report by the UN’s Economic Commission for Europe has found that for the last fifteen years, Scotland has breached our rights to accessible economic justice – rights protected by the Aarhus Convention. You can read the full report here.
What this means is that if your right to a clean and safe environment is breached then Scotland is failing in its duty to ensure that your right to challenge the perpetrator in court and to receive “fair, equitable, timely and not prohibitively expensive” justice has been diminished. In particular, while the report does mention that Scotland has complied with the Convention in certain areas (such as by accepting a reasonable definition of the term “prohibitively expensive” and in protecting claimants against onerously inflating legal costs, especially during appeals), there are still areas lacking compliance such as complications around how court fees can inflate overall costs above reasonable limits and how legal aid is often inadequate for funding complex environmental legal cases which restricts who can argue for their rights only to those who can afford it.
This all may seem like it’s a step removed from the actual breach of your right to a clean environment but it’s not really. The two are effectively one and the same. If you cannot take someone to court and receive justice if they breach your environmental rights then they can breach those rights without fear of any consequences. Which almost certainly means that they will have a strong incentive to breach those rights. This will be particularly important if the Ecocide Bill currently moving through Parliament does not pass before the end of the session in late March and is allowed to fall as it would signal to polluters that Scotland will quite happily allow the worst of them to commit the worst kinds of environmental harm and there would be little that we could do to take them to court.
The report found that Scotland was failing in several areas to restore our rights to justice which is a strong indictment against a Government that once held itself up as one of the world leaders in tackling the climate emergency (before, of course, cancelling its legally binding climate targets as a means of avoiding breaking the law and possibly facing the kinds of justice that the Aarhus Convention is supposed to protect access to).
The Scottish Government also dropped its Human Rights Bill which would have fully brought the right to a healthy environment into Scots Law. Part of the reason why it failed was that as a devolved nation, Scotland cannot formally sign up to international treaties. We can, however, legislate Scots Law so that we “act as if” we are members of those treaties and simply align our domestic law to them whether we’ve signed them or not. However, it was found that the Scottish Government cannot use devolved law to compel the UK Government to “act as if” it has aligned with a treaty that it has not signed. In effect, devolution means that the Scottish Government cannot use Scots Law to prevent the UK Government from breaching human rights in Scotland that the Scottish Government thinks you should have but the UK Government thinks that you should not have.
It gets worse at a UK level however. Where the Scottish Government is “merely” failing in its legal duties to protect our access to environmental justice, the UK Government is actively holding those rights in contempt and is threatening to withdraw from Aarhus altogether precisely to avoid legal challenges to policies and decisions that would harm the environment. In this, it joins a worryingly large club of countries who stood together a decade ago to declare a climate emergency but who have since backslid into climate denial and attempts to accelerate the destruction of our biosphere while claiming that doing so would “bring energy bills down” when, in fact, it will do the precise opposite.
We’ve encountered the fight for rights to mean something before. During our long and ultimately unsuccessful campaign to bring about a Scottish National Care Service we argued against the Scottish Government’s approach which was to simply declare that everyone had a right to care. Their rights-based approach, we argued, was not doomed because the rights they sought to grant were bad – we steadfastly campaigned for Anne’s Law and the right for folk in care homes to receive essential visitors – but because the approach itself was flawed.
“In short, who do you call when someone breaches your human rights? ”
Instead, we argued for the “Four R’s” of rights, responsibilities, resources and relationships.
First, we needed to define the right that was being granted or was being deemed worthy of protection. In this we agreed with the Scottish Government.
But next we need to see who is responsible for delivering or protecting those rights and who is responsible when those rights are breached – in short, who goes to jail if your right to acceptable care is broken? The carer who harmed or neglected you? The private care agency that didn’t train them properly as a means of creaming off a bit more profit? The Local Authority that hired the agency instead of delivering care as a publicly-owned service? Or the Scottish Government Minister who cut Local Authority budgets and forced them to pick a cheaper option?
That last question ties in with resources. Not just the resources to prevent your rights from being broken but also the resources required to restore them when they are or to seek justice to ensure that your broken rights can be repaired.
And finally, relationships. This is particularly acute in care where it is too often delivered almost like a faceless and decidedly uncaring procedure – A rotating list of carers visiting for 15 minutes a day, checking tasks off a list, leaving, then a different person coming the following day. But when it comes to rights it also means ensuring that you understand your relationship to your rights, that you know when they have been broken or someone is threatening to break them and that you know what to do in response. In short, who do you call when someone breaches your human rights?
Now apply those principles to your right to a healthy environment and your right to environmental justice. You can quickly see how, in Scotland, we fall short of the standards of the Aarhus Convention especially given that so many of the critiques of Scotland’s shortcomings were focused on things like inadequate resourcing of legal aid.
The Scottish Government must double down its efforts to comply with international environmental justice law just as it must do so with the fights for environmental justice themselves. They must also take the fight to Westminster to prevent the UK Government from breaching our rights. In an era where we are seeing climate justice being eroded almost as fast as the climate itself, we must protect hard-won rights no matter who tries to breach them. Once they’re gone, they won’t come back and we might even be actively prevented from fighting for their return.
