Ministers are being faced with complaints over a 13-year failure to stop breaches of the law that protects Scotland's precious landscape, environment and wildlife.

Scots environmental justice charity Environmental Rights Centre for Scotland (ERCS) has presented new concerns to the Scottish Government over the nation's 'unaffordable' court system as it emerged campaigners had been forced to find a loophole to ensure that legitimate complaints that should be dealt with in front of a judge are paid for by the taxpayer.

And former co-convener of the Scottish Greens, Maggie Chapman has lodged a motion with the Scottish Parliament seeking cross-party support for action that ensure the nation stops breaching international law.

Scotland has since 2011, been found to be non-compliant with Article 9 of the Aarhus Convention, which is a binding piece of international legislation that guarantees the right to a healthy environment.

In particular, Scotland and the UK which adopted the convention in 1998 is still failing to meet its legal responsibility which requires it “to remove or reduce financial barriers to access to justice”.

ERCS has criticised the long-term lack of success in providing a proper public mechanism to challenge actions that will affect the environment through affordable court action.

The main way to challenge decisions, developments or policies which may breach environmental laws is by raising judicial review proceedings in the Court of Session.

But presently it still incurs a huge financial risk which means conservation charities have to think long and hard over as environment cases generally do not qualify for legal aid.

The Herald can reveal that the "prohibitive" cost of taking cases to the Court of Session meant that campaign group Wyndford Residents Union fighting plans to demolish four 26-storey towers at Wyndford in the Maryhill area of Glasgow used a loophole to bring the action by putting it in the name of a member who was in financial difficulties so that they would qualify for legal aid.

Glasgow City Council is in the midst of a rare judicial review after it rejected an environmental impact assessment on the plans for the demolition which meant it could go ahead without councillors ever considering the wider impacts and whether it should get planning permission.

A group spokesman said: "Access to justice has been severely restricted in recent times. We had to find a way to meet the increasingly difficult criteria to get legal aid, and we found a way by getting an individual within the group who ticked all the right boxes.  It shouldn't be like that."

ERCS has demanded that the Scottish Government-funded Environmental Standards Scotland agency investigate and to issue an Improvement Report, which sets out recommendations that ministers must formally respond to over the issue.

Ms Chapman said she is urging MSPs in her motion to support urgent changes to ensure full compliance with international law is made by a deadline set by the committee of October 1.

Ms Chapman said: "More than ever, people in Scotland need clean water, clean air, safe green spaces to live and play and learn. Where those are unjustly denied, environmental protectors need to be able to access affordable court processes to enforce their rights and those of their communities. The Aarhus Convention, to which the UK is a signatory, gives us those procedural rights.

"Sadly, Scotland remains in breach of that Convention, and our government has failed to act effectively to put things right. This motion, which I hope will receive widespread cross-party support, calls upon the Scottish Government to act, enabling the people of Scotland to protect our natural environment."

Groups including the ERCS also say the general public should also have the same rights of appeal as those who are applying for planning permission, usually developers.

The ERCS which has raised concerns about the Scottish Government remaining in breach of its statutory duties despite a review into its effectiveness of environmental governance, has said it is precisely those "prohibitive" court costs that is preventing them from seeking a judicial review through the courts over its failure.

It says that there should be a dedicated environmental court which would increase access to justice, address the "current fragmentation in routes to remedy and develop judicial expertise to improve effectiveness and efficiency"

It also says that changes should be made to ensure those with a legitimate complaint cannot end up being landed with costs.

CRCS in-house solicitor Ben Christman added: "Despite widespread concern over the climate and nature emergencies, going to court to defend the environment is unaffordable for most people. Legal expenses can amount to tens of thousands of pounds – even six figures is not unheard of. Our current system only supports the rule of law for a wealthy minority, and exorbitant legal costs shield public bodies and polluters from being held to account. Many people we have given legal advice to have had cases with merit, but have been priced out of the legal system.

"The Scottish Government is doing next to nothing to change this dismal state of affairs. It is failing to meet its obligations under the UN Aarhus Convention, [less than four months] before a crucial deadline to remove the barriers to accessing justice, little progress has been made. The Government must take urgent action to make our legal system affordable, and ensure environmental justice is available to all."

An analysis backed by Scotland's nature agency found wildlife is "in crisis" last year with one in nine animals and plants being at risk of becoming extinct north of the border.

A State of Nature Scotland analysis, backed by the Scottish Government agency NatureScot and published by a partnership of over 50 nature and conservation organisations warned the risk of extinction among some groups, such as vertebrates, is much higher at more than a third (36.5%).

The most notable declines were with familiar birds such as swifts, curlews and lapwings which have declined by more than 60%. Kestrels have declined by more than 70%.

(Image: RSPB)

The ERCS has condemned the Scottish Government’s failure to consider whether an environmental court could enhance environmental governance arrangements. They say there has been a failure in a legal duty to properly consider its possible establishment.

It also criticised the Scottish Environment Protection Agency’s failure to maintain a public register containing information about the most polluting industrial sites in Scotland, including the licences it grants and enforcement action taken in relation to that.

The ERCS said the most positive step forward in the Scottish Government was to request the Scottish Civil Justice Council (SCJC) to review the court rules governing legal costs.

ECRS says that the regime is "unfair" and says it needs to be replaced with a Qualified One-way Costs Shifting (QOCS)system that provides that provides that those with a bona fide action do not have to bear the costs of their opponent save for a small set of circumstances.

They say the SCJC process has lacked transparency and ERCS has resorted to a series of Freedom of Information requests on the process and any proposed new court rules.

They say that despite correspondence with ministers and written questions from MSPs, the Scottish Government "repeatedly state" that the SCJC is an independent body and they have no progress update.

In response to an FOI request, the SCJC indicated in January 2023 that they intended to hold a public consultation on the new rules over costs ‘later in 2023’.

But in response to a chaser FOI request in October 2023, the SCJC backtracked on a consultation "to avoid undue resource impacts for potential respondents".

ERCS has previously written to the SCJC to warn that creating new costs rules without any formal public consultation will likely breach the terms of the Aarhus Convention which requires public participation during the preparation of ‘executive regulations'.

The group says that the "prohibitive" cost of legal expenses, including the risk of paying opponent’s legal fees if the case is lost, provides "legal uncertainty and has a chilling effect in deterring organisations from holding public bodies to account in a court of law".

A Scottish Government spokesman said:  "The Scottish Government is working to address the concerns raised by the Aarhus Convention Compliance Committee."