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

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

The UN council which adopted the convention in 1998 was told last year that the Scottish Government is still failing to meet its legal responsibility which requires it “to remove or reduce financial barriers to access to justice”.

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 conservation charities have to think and long and hard over as environment cases generally do not qualify for legal aid.

In October the Aarhus Convention Compliance Committee called for reform "as a matter of urgency" with "a plan of action, including a time schedule" to be submitted to it by 2022.

It wants action to ensure that the cost of court procedures to deal with environmental problems is "fair and equitable and not prohibitively expensive".

Now a coalition of environmental non-governmental organisations have branded Scottish action plan on compliance contained within a UK-wide response as "woefully inadequate".

They say a Scottish Government acknowledgement of non-compliance has "not been matched with concrete reforms".

The Scottish Government had till July to come up with the action plan and have till October, 2024 to comply.

But the Environmental Rights Centre for Scotland (ERCS), Friends of the Earth Scotland and RSPB Scotland analysis of plan in a written submission to the UN body reveals that the Scottish Government’s contributions "failed to commit to any concrete measures to ensure access to justice".

The groups have written to the UN body to express their concern that there remains a lack of concrete commitments to reform the legal system to help people defend the environment.

The action plan was requested by the complaince committee which has repeatedly found the UK and Scotland to be in breach of the convention’s access to justice requirements.

Environmental campaigners are calling for the Scottish Government to commit to fully implementing the UN's recommendations by the deadline of October 2024.

Shivali Fifield, chief officer at ERCS, said what is in place now would not meet the October, 2024 deadline.

"We welcome the Scottish Government’s acknowledgement that access to justice on environmental matters is prohibitively expensive. Yet this is not matched with concrete legal and policy reforms," she said.

"We believe that fundamental changes to the legislative framework are required and the government must now stop dragging its feet and fully implement the committee’s recommendations."

The Scottish Government in response to the committee said there would be a review by the Scottish Civil Justice Council over the court rules governing Protective Expenses Orders - which regulates the scope of a party's liability in expenses in certain types of environmental litigation But ministers said it could not commit to a timeframe on behalf of the third party.

While the action plan states that it "looks forward to receiving further input from stakeholders", ERCS said it had not been notified on any planned engagement and the ERCS said there needs to be "clear action" to increase awareness and transparency on the planned activities.

ERCS said it had made multiple attempts to engage with the SCJC review, without success and said: "It is imperative that this review of court rules is a transparent and participative process".

Mary Church, head of campaigns at Friends of the Earth Scotland, said: "This is a woefully inadequate response to a decade of rulings that the Scottish Government is in breach of international law for its failure to ensure access to justice for the environment. With no concrete commitments to actually reform the system and make legal action more affordable this is an action plan in name only.

"As we face the unprecedented challenges of the climate and nature emergency, it’s more important than ever that people act to protect the environment including going to court where necessary, and they should not have to face impossible costs in doing so. The Government’s pledge to enshrine the right to a healthy and safe environment in Scots law will be meaningless if it is not possible for individuals, communities and NGOs [non-governmental organisations] to enforce these rights in court. "An overhaul of the courts to remove barriers to public interest litigation, and ensure Aarhus Convention-compliant standards of access to justice for the environment, is long overdue."

Last year, official analysis by Scotland's nature agency shows that Scotland has also failed to meet 11 of 20 agreed UN targets to protect the environment while one in five animals and plants deemed important to the nation by ministers are under threat.

The statutory Scottish Biodiversity List revealed threats to many of the 2105 land animal, plant and marine species deemed of principal importance by the Scottish Government.

A NatureScot analysis found that 441 (21%) were classed as threatened, and 222 (11%) as near threatened.

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 five 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.

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.

Aedán Smith, head of policy and advocacy at RSPB Scotland, said: "We continue to lose nature in Scotland and around the world and Scotland is already one of the world’s most nature-depleted countries. The Scottish Government has taken some welcome steps to improve matters and have committed to reverse biodiversity loss and create a 'nature-positive' world by 2030.

"However, to ensure this commitment becomes more than just warm words it is essential that concerned citizens are not prevented from challenging potential illegality in the courts. The Scottish Government must take urgent action to address this failing."

A Scottish Government Spokesperson said: “We have contributed to a UK Action Plan to address the gaps in compliance which have been identified by the Aarhus Convention Compliance Committee recommendations which, specifically for Scotland, relate to the costs of access to justice on environmental matters.

“We are committed to introducing a new Human Right to a Healthy Environment as part of a Human Rights Bill, which will be a step change in the recognition of environmental rights in Scotland.

“Recommendations made in relation to planning apply across the UK and we are currently considering, along with the four other nations, the options that are available to these.”