Brexit, the Environment and Human Rights: Turning Risks into Opportunities?
The workshop brought together a range of environmental law and human rights experts from academia, government and NGOs that have been assessing the potential implications of Brexit in Scotland and the UK. The aim was to provide an opportunity to learn about recent initiatives to assess the risks to the environment and human rights arising from Brexit, and to identify opportunities to strengthen both environmental and human rights protection in Scotland and the UK.
The key note speakers included Prof Alan Miller, Chair of the First Minister’s Advisory Group on Human Rights Leadership, and Ian Jardine, National Adviser on Environmental Policy for the Scottish Government. In addition, presentations were given by Prof Elisa Morgera, SCELG Co-Director and Member of the First Minister’s Advisory Group on Human Rights Leadership; Ann Humble, Head of Evidence and Analysis, Welsh Government; Anne Friel, Lawyer at ClientEarth; and Tom West, Law and Policy Researcher at ClientEarth.
Prof Morgera addressed recent international developments regarding the relationship between human rights and the environment. She discussed the different ways in which the procedural and substantive obligations arising from international human rights law can be used to protect against environmental harms, including obligations to regulate private actors and to protect those in particularly vulnerable situations. She drew special attention to the progress made at the international level towards clarifying the interlinkages between the rights of the child and the environment, and called for improved environmental impact assessment practices that sufficiently incorporate ecosystem services and reflect differentiated impacts on vulnerable groups
Ms Humble provided valuable insights into the approach adopted by the Welsh Government in addressing the risks arising from Brexit regarding the protection of human rights and the environment. She highlighted some of the commonalities between Wales and Scotland, including with respect to governance gaps and the potential loss of important devolved competences. She also emphasised the importance of stakeholder engagement, noting that a systems approach is necessary to fully take into account cross-sectoral interactions and the pressures that arise from different points of the supply chain. She concluded by identifying investment in the production of public goods as one of the biggest opportunities post-Brexit.
Ms Friel presented the efforts undertaken by ClientEarth to promote access to justice in environmental matters in Scotland and the UK. She also shared best practices from other EU Member States in the areas of legal standing; the suspensive effect of administrative suits; the standard of judicial review; the provision of effective remedies; and the costs of litigation. Mr West discussed the prospect of establishing an ‘environmental watch-dog’, cautioning that such a mechanism is complementary to – and does not substitute – access to justice for citizens. He suggested that the watch-dog could help address the governance gap arising from the loss of EU oversight institutions. The relevant framework should strive to promote access to deliberative justice; establish a free, accessible and transparent process; and provide support that is relevant, expert and useful.
The discussions that followed stressed the importance of a human rights lens for identifying public goods and managing trade-offs. In this connection, it was noted that natural resources such as land are increasingly seen as national assets that should be used to realise human rights (e.g., in relation to energy and food) and that this is an area where the intersection of human rights and environmental protection is becoming more visible and relevant. Participants also discussed the need for co-designed and co-owned conflict resolution mechanisms that will work effectively in a devolved context. It was, however, emphasised that, in parallel to creating new and improving existing mechanisms to manage and resolve conflicts, it is also necessary to empower people to see themselves as rights-holders so that they can fulfil their role in using legal remedies to enforce human rights and, by extension, promote environmental protection. Moreover, the diverse ways that people relate to the environment and their differentiated views about the relevant risks, challenges and benefits must be taken into account. Finally, participants repeatedly highlighted the need to build lasting partnerships among.
