ScotGov to miss deadline to stop breaking environmental laws

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.

READ MORE: ‘Woefully inadequate’: Experts savage Scots Gov environmental masterplan to stop breaching international law

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 ERCS says that the Scottish Civil Justice Council which makes draft rules for procedure in courts has created amendments over costs which fail to comply with Aarhus requirements.

(Image: NTS)

They had previously said that the move by the Scottish Government to request the SCJC to review the court rules governing legal costs was a positive step forward but has been mired in controversy over a lack of transparency.

Protective Expenses Orders (PEO) are the main mechanism which has been used in an attempt to make Scotland’s civil justice system compliant with Aarhus so that access to justice in environmental matters must be "not prohibitively expensive".

They are court orders which limit parties’ liability in expenses in certain types of environmental litigation. They are intended to address the imbalance of resources between parties.

But the CRCS say the amendments fail to address issues over affordability The upper limit of the amount of money that litigants would be liable to is set at £5000 but it remains subject to a caveat of "or such other sum as may be justified on cause shown".

The Aarhus Convention Compliance Committee has said that that "vague term" introduced "legal uncertainty and could have a chilling effect".

Also the scope of the PEO rules remains limited to public law litigation in the Court of Session only.

Dr Ben Christman, legal director at ERCS, said: "Going to court over the environment costs well into the high tens of thousands of pounds in Scotland, which is unaffordable for most people. This shields public bodies and polluters from being held to account when they break environmental laws.

"The SCJC was trusted with fixing court rules to address Scotland's longstanding non-compliance with the Aarhus Convention. The new court rules are not Aarhus-compliant because they fail to implement critical recommendations from the Aarhus Convention Compliance Committee. This is the third set of non-compliant rules produced by the SCJC.

"Scotland will not meet the October 1 deadline for fixing access to justice. This is the latest sorry development in Scotland’s longstanding and embarrassing non-compliance."

"The SCJC and the Scottish Government have stubbornly refused to meet their international legal obligations for many years. Members of the public do not enjoy the basic human right to access justice because of the failures of the SCJC and the Scottish Government."

Conservation charity John Muir Trust has previously spoken out of its concerns about the rights to environmental justice after its attempt to challenge a windfarm development seven years ago led to it facing a near £700,000 bill, although this was eventually negotiated down to £275,000.

The Trust settled out of court with the Perth-based energy company SSE and the Scottish government after its attempt to block a wind farm through a judicial review near Loch Ness failed.

(Image: SSE)

The dispute was over a wind farm at Stronelairg, which is in wild land in the Monadhliath mountains near Loch Ness. Consisting of 67 wind turbines, it was proposed by SSE in 2012 and granted by the Scottish government in June 2014.

There has also been criticism that the process for the SCJC's review was not transparent and there was no opportunity for public participation, which ERCS also believes breaches Aarhus which aims to promote 'environmental democracy'.

ERCS first wrote to the SCJC in November 2021 to request that it commit to hold a public consultation to inform its review of the PEO rules.

They say they were told by the SCJC that a public consultation would be held in late 2023. That position was subsequently reversed.

The group said that public consultation would have brought "more scrutiny and accountability" to the SCJC, and would have forced it to confront the "deficiencies" of their proposals before finalising the amendments.

It said carrying out the review "behind closed doors was contrary to the spirit and letter of the Aarhus Convention and has resulted in a predictably poor outcome".

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.

The ERCS 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 has condemned the Scottish Government’s failure in a legal duty to consider the establishment of an environmental court which they believe would enhance governance.

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

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 spokesperson said: “The Aarhus Convention Compliance Committee has previously welcomed ‘significant progress’ in Scotland.  We are hopeful that in their next review they will welcome further steps forward such as the recent independent review of court rules and the removal of court fees for environmental cases in the Court of Session.”

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%.