You can view the request for consultation here
You can find the associated documentation here
Part 4: Incorporating the Treaty Rights
1 What are your views on our proposal to allow for dignity to be considered by courts in interpreting the rights in the Bill?
Not Answered
Please give us your views:
No comment
2 What are your views on our proposal to allow for dignity to be a key threshold for defining the content of minimum core obligation (MCOs)?
Not Answered
Please give us your views:
No comment
3 What are your views on the types of international law, materials and mechanisms to be included within the proposed interpretative provision?
If so, please identify these, explain why and how this could be achieved.:
No comment
4 What are your views on the proposed model of incorporation?
Please give us your views.:
The planning system is integral to delivering many of the rights proposed to be included in the Model of Incorporation set out in the consultation document, including the right to a healthy environment.
The new purpose of planning introduced by the Planning (Scotland) Act 2019 is to "manage the development and use of land in the long-term public interest". Central to achieving this aim are the cross-cutting outcomes of NPF4 to reduce our greenhouse gas emissions, improve biodiversity, implement the planning system in a fair and inclusive manner, provide homes that meet our diverse needs, promote lifelong health and wellbeing, and to revitalise our rural areas. All of these cross-cutting outcomes have human rights implications in relation to access to a healthy environment, and access to adequate food, water and housing etc. as set out in the consultation document.
Any future human rights legislation should have full regard to the current duties on local planning authorities to achieve the purpose of planning under the Town and Country Planning (Scotland) Act 1997 as amended, and the outcomes and associated policies set out in NPF4. There are clear interlinkages between the duties of local planning authorities under the current planning system (which has only recently undergone reform) and the proposals set out in this consultation document. These interlinkages need to be recognised so that any future human rights legislation works with and in support of the planning system and does not unduly place additional burdens on local planning authorities.
5 Are there any rights in the equality treaties which you think should be treated differently?
Not Answered
If so, please identify these, explain why and how this could be achieved:
No comment
Part 5: Recognising the Right to a Healthy Environment
6 Do you agree or disagree with our proposed basis for defining the environment?
Disagree
7. If you disagree, please explain why:
We agree there should be alignment with the Aarhus Convention, but note that the Convention does not include a definition of either "environment" or "healthy environment", only "environmental information" which is not the same thing. It is our understanding that the intention of the Aarhus Convention is for the scope of "environment" to be interpreted as broadly as possible.
With the above in mind, the right to a "healthy environment" could include both access to and the quality of both built and natural environmental resources and assets. Therefore, how the planning system provides and protects these built and natural resources and assets in both an urban and rural context (i.e. by way of development planning and development management) could have implications on local planning authorities' compliance with any future human rights legislation.
Whilst we broadly support the intention expressed in the consultation document of tackling environmental and human rights issues together, it will be
important to recognise the critical role that planning already plays in delivering healthy, sustainable, equitable and inclusive environments in line with the
intentions set out this consultation document.
8 What are your views on the proposed formulation of the substantive and procedural aspects of the right to a healthy environment?
Please give us your views:
Any future Bill should have regard to what public bodies are already undertaking to comply with their current duties under existing legislation and policies, and that any additional obligations placed upon them in any future Bill are deliverable in practice having particular regard to their resource implications. Any future Human Rights Bill should be accompanied by a Financial Memorandum that clearly sets out the financial and resourcing implications of the Bill. In addition, it is essential that Royal Assent of any future Human Rights legislation be accompanied by clear and transparent guidance to ensure public bodies (including local planning authorities) are equipped and prepared to satisfy their duties.
9 Do you agree or disagree with our proposed approach to the protection of healthy and sustainable food as part of the incorporation of the
right to adequate food in International Covenant on Economic, Social and Cultural Rights (ICESCR), rather than inclusion as a substantive
aspect of the right to a healthy environment?
Agree
Please provide your reasons why:
No comment
10 Do you agree or disagree with our proposed approach to including safe and sufficient water as a substantive aspect of the right to a
healthy environment?
Agree
Please give us your views:
No comment
11 Are there any other substantive or procedural elements you think should be understood as aspects of the right?
No
If yes, please specify what substantive or procedural elements and explain how this could be achieved :
No comment
Part 6: Incorporating Further Rights and Embedding Equality
12 Given that the Human Rights Act 1998 is protected from modification under the Scotland Act 1998, how do you think we can best signal
that the Human Rights Act (and civil and political rights) form a core pillar of human rights law in Scotland?
Please give us your views:
No comment
13 How can we best embed participation in the framework of the Bill?
Please give us your views:
One aim of the recent planning reforms was to improve community involvement in the planning system. Measures to strengthen participation in the planning process were introduced in the Planning (Scotland) Act 2019, including:
- Regulations and guidance for preparing Local Place Plans
- Local Development Planning Guidance
- Guidance on effective community engagement in local development planning
In addition to the above, NPF4 includes a cross-cutting outcome for a fair and inclusive planning system which expects “everyone involved in planning to take steps to ensure that a wide range of people are involved in shaping their future places”. Some of the mechanisms used to achieve this aim include:
- The Public Sector Equality Duty Assessment
- Equality Impact Assessments
- Fairer Scotland Duty Assessments
- Island Communities Impact Assessments (where applicable)
Should the proposed Bill place additional duties on public bodies, it will be vital that there is a clear understanding of how the obligations under the Bill will interact with and affect what public bodies are already doing to satisfy their obligations under the Town and Country Planning (Scotland) Act 1997 as amended and the policies of NPF4. The preparation of clear guidance will be vital in this regard. It will also be vital that the Financial Memorandum accompanying the Bill sets out clearly the financial implications on local planning authorities.
14 What are your views on the proposed approach to including an equality provision to ensure everyone is able to access rights, in the Bill?
Please give us your views:
No comments
15 How do you think we should define the groups to be protected by the equality provision?
Please give us your views :
No comment
16 Do you agree or disagree that the use of ‘other status’ in the equality provision would sufficiently protect the rights of LGBTI and older
people?
Not Answered
17. If you disagree, please provide comments to support your answer.:
No comment
18 Do you think the Bill Framework needs to do anything additionally for LGBTI or older people?
Not Answered
Please give us your views:
No comment
Part 7: The Duties
19 What is your view on who the duties in the Bill should apply to?
Please give us your views:
We broadly agree with the approach. However, any future Bill should have regard to its interaction with existing duties already being undertaken by public bodies in accordance with existing legislation and policies. This will be vital to ensure that public bodies aren’t unduly burdened. Any future Human Rights Bill should be accompanied by a Financial Memorandum that clearly sets out the financial and resourcing implications. In addition, it is essential that Royal Assent of any future Human Rights legislation be accompanied by clear and transparent guidance to ensure public bodies (including local planning authorities) are equipped and prepared to satisfy their duties.
In the above regard, we would like to draw your attention to recent RTPI Scotland research[1] which reveals that:
- The planning service is the one of the most severely affected of all local government services in terms of budgets with a reduction of 38% since 2010;
- A quarter of planning department staff have been cut since 2009;
- Planning application fees do not cover the costs of processing planning applications;
- The new Planning Act has introduced 49 unfunded duties to local authorities which could cost between £12.1m and £59.1m over 10 years to implement;
- It is estimated that over the next 10 to 15 years the planning sector will have demand for an additional 680 - 730 entrants into the sector; and
- The planning workforce has both demographic and succession challenges in the short, medium and long term.
Any future human rights legislation and associated guidance should have proper regard to the current resourcing pressures currently experienced by public bodies (including local planning authorities), to ensure that the duties proposed to be introduced are deliverable in practice.
20 What is your view on the proposed initial procedural duty intended to embed rights in decision making?
Please give us your views:
We reiterate our previous comments that clear guidance should be provided to ensure public bodies (including local planning authorities) are equipped to comply with any initial procedural duty imposed upon them under any future human rights legislation. This guidance should have due regard to the existing duties already being undertaken by public bodies in accordance with existing legislation and policies as well as the current resourcing pressures that public bodies are facing.
21 What is your view on the proposed duty to comply?
Please give us your views:
As previously stated, any future Bill should be accompanied by clearly stated guidance to enable public bodies to comply with this duty. This guidance should have regard to existing duties under other legislation and policy that have human rights implications. For example, central to the planning system are the cross-cutting outcomes of NPF4 to reduce our greenhouse gas emissions, improve biodiversity, implement the planning system in a fair and inclusive manner, provide homes that meet our diverse needs, promote lifelong health and wellbeing, and to revitalise our rural areas. All of these cross-cutting outcomes have human rights implications. Consequently, the planning system is already a key delivery mechanism for the human rights objectives set out in this consultation document.
Any future Bill and associated guidance should consider its interaction with the planning system and the duties already placed on local planning authorities, as well as the current resourcing pressures that public bodies are facing.
22 Do you think certain public authorities should be required to report on what actions they are planning to take, and what actions they have
taken, to meet the duties set out in the Bill?
Please give us your views:
Reporting will be vital to ensure the objectives of any future Bill are realised. However, we are mindful that public bodies should not be overburdened. Any reporting requirements should, therefore, have regard to current reporting obligations already placed on public bodies. The Planning (Scotland) Act 2019 has made annual performance reporting a statutory requirement, and “Ministers may make further provision about the form and content of performance reports in regulations.” Planning Performance Frameworks (introduced in 2012 by Heads of Planning Scotland) are a key tool used currently to measure the planning system’s performance across Scotland's planning authorities. The framework provides a set of indicators (qualitative and quantitative) to measure planning performance and to promote continuous improvement.
As previously stated, the planning system, including the work of local planning authorities, is integral to delivering many of the rights proposed to be included in the Model of Incorporation set out in the consultation document, including the right to a healthy environment. Consequently, the performance reporting required by planning authorities is likely also to address many of the human rights objectives set out in the consultation document. The Planning (Scotland) Act 2019 also included Ministerial powers to appoint a National Planning Improvement Champion (NPIC) to monitor the performance of local planning authorities and to provide advice on how performance could be improved. This appointment has now been made, with the NPIC now in post. It is anticipated that part of the NPIC's role will influence the way planning authorities assess and report on the performance of their functions.
It will be important that any reporting obligations introduced in any future Human Rights legislation have due regard to the reporting and performance enhancement work already being undertaken in accordance with the Planning (Scotland) Act.
23 How could the proposed duty to report best align with existing reporting obligations on public authorities?
Please give us your views:
As previously stated, we believe there is scope for any duty to report under proposed human rights legislation to be aligned with the current reporting obligations of local planning authorities under the Town and Country Planning (Scotland) Act 1997 as amended.
24 What are your views on the need to demonstrate compliance with economic, social and cultural rights, as well as the right to a healthy
environment, via minimum core obligations (MCOs) and progressive realisation?
Please give us your views:
No comment
25 What are your views on the right to a healthy environment falling under the same duties as economic, social and cultural rights?
Please give us your views:
No comment
26 What is your view on the proposed duty to publish a Human Rights Scheme?
Please give us your views:
No comment
Part 8: Ensuring Access to Justice for Rights-Holders
27 What are your views on the most effective ways of supporting advocacy and/or advice services to help rights-holders realise their rights
under the Bill?
Please give us your views on advocacy:
No comment
Please give us your views on legal aid:
No comment
28 What are your views on our proposals in relation to front-line complaints handling mechanisms of public bodies?
Please give us your views:
No comment
29 What are your views in relation to our proposed changes to the Scottish Public Services Ombudsman’s remit?
Please give us your views:
No comment
30 What are your views on our proposals in relation to scrutiny bodies?
Please give us your views:
No comment
31 What are your views on additional powers for the Scottish Human Rights Commission?
Please give us your views:
No comment
32 What are your views on potentially mirroring these powers for the Children and Young People’s Commissioner Scotland where needed?
Please give us your views:
No comment
33 What are your views on our proposed approach to ‘standing’ under the Human Rights Bill?
Please give us your views:
No comment
34 What should the approach be to assessing ‘reasonableness’ under the Human Rights Bill?
Please give us your views:
No comment
35 Do you agree or disagree that existing judicial remedies are sufficient in delivering effective remedy for rights-holders?
Not Answered
36. If you do not agree that existing judicial remedies are sufficient in delivering effective remedy for rightsholders, what additional remedies would help to do this?:
No comment
37 What are your views on the most appropriate remedy in the event a court finds legislation is incompatible with the rights in the Bill?
Please let us know your views. :
No comment
Part 9: Implementing the New Scottish Human Rights Act
38 What are your views on our proposals for bringing the legislation into force?
Please give us your views:
We agree that clear and transparent guidance will be critical to ensure that public bodies (including local planning authorities) are equipped and prepared to discharge their duties under the Bill following its Royal Assent.
39 What are your views on our proposals to establish minimum core obligations (MCOs) through a participatory process?
Please give us your views:
No comment
40 What are your views on our proposals for a Human Rights Scheme?
Please give us your views:
No comment
41 What are your views on enhancing the assessment and scrutiny of legislation introduced to the Scottish Parliament in relation to the rights in the Human Rights Bill?
Please give us your views:
No comment
42 How can the Scottish Government and partners effectively build capacity across the public sector to ensure the rights in the Bill are
delivered?
Please give us your views:
We agree that clear and transparent guidance will be critical to ensure that public bodies (including local planning authorities) are equipped and prepared to discharge their duties under the Bill following its Royal Assent.
It will be important that the Financial Memorandum accompanying the Bill set out clearly the financial and resourcing implications of the Bill on public bodies, having regard to what will be required to comply with their duties under the Bill.
43 How can the Scottish Government and partners provide effective information and raise awareness of the rights for rights-holders?
Please give us your views:
No comment
44 What are your views on monitoring and reporting?
Please give us your views:
No comment
