SNP ministers have been urged to create a specialist environmental court for Scotland after the country’s legal system was found to be breaking international human rights and environmental law.
In July, findings from a UN body revealed that Scotland’s legal system was in breach of international environmental and human rights law due to the extremely high costs of taking legal action.
The decision from the UNECE Aarhus Convention Compliance Committee confirmed a lack of progress in meeting the requirements of the Aarhus Convention, which guarantees everyone in Scotland the right to go to court to defend the environment.
Scotland’s legal system has repeatedly been found in breach of the convention because of the high cost of taking legal action, with judicial reviews often running into the tens or hundreds of thousands of pounds.
The UN committee noted that the vagueness of the rules relating to costs “introduces legal uncertainty and could have a chilling effect” and called for law reform “as a matter of urgency” with “a plan of action, including a time schedule” to be submitted to it by 2022.
Article 9 of the convention requires that access to court is fair, equitable, timely and not prohibitively expensive.
A new report published by the Environmental Rights Centre for Scotland (ERCS) has called for a low-cost environmental court to be set up in Scotland – claiming the move would improve accessibility, reduce costs and plug what the organisation deemed a gap in accountability over the environment.
Author of the report and ERCS solicitor, Ben Christman, said: “Everyone in Scotland has the right to live in a healthy environment.
“As the law stands it is near impossible for ordinary people to use the legal system to stand up for the environment. It is eye-wateringly expensive and intimidating to go to court to challenge harmful environmental developments or policies.
“A low-cost, accessible environmental court or tribunal is urgently needed to ensure accountability over the environment.”
Dr Christman added: “An environmental court or tribunal would be a comprehensive way of bringing Scotland’s legal system into compliance with its obligations on environmental and human rights law.
“There has been a recent explosion in environmental courts, with nearly 1,500 worldwide.
“The Scottish Government will consult about an environmental court before Spring 2023 and it should look to establish the kind of court of tribunal which will deliver the best outcome for people and the environment.”
The SNP-Greens Programme for Government, published last month commits to “ensure a review of environmental justice, and the case for an environmental court, is undertaken during this parliamentary session – commencing by spring 2023.”
Ann Coleman, a Greengairs-based local campaigner for environmental justice since the late 1990s, has warned activists cannot afford to take action.
She said: “I’ve been dealing with environmental injustice in Greengairs for 24 years. We’ve been living with the largest capacity landfill site in Europe on our doorstep, along with open cast coal mining and now a planned new incinerator.
“The environment is never considered relevant to our health. We have no voice. We have no rights. We cannot protect ourselves.”
Ms Coleman added: “An environmental court is essential to give us the right of access to justice. It needs to be affordable, and easy for the public to approach.
“At the moment the system is so geared up against us that it is impossible to get justice.“
Scottish Labour’s justice spokesperson, Pauline McNeill, said: “It shouldn’t take breaching international law to force the SNP into action.
“Justice must be accessible to all – and that is all the more crucial when it comes to environmental justice.
“If our environmental laws aren’t enforceable in practice, they are hardly worth the paper they’re written on. We need to fix this issue if we are serious about tackling the climate emergency we face.
“Specialist courts have the scope to help us build a fairer and more equitable legal system. The SNP should be looking seriously at where they could work across the board, instead of this piecemeal reactionary approach.”
A Scottish Government spokesperson said: “The Scottish Government’s commitment to addressing the twin challenges of biodiversity loss and climate change is unwavering.
“To maintain high environmental standards we have put in place arrangements to establish Environmental Standards Scotland as the new governance body which has the ability to keep under review the implementation of international obligations relating to environmental protection legislation and advise the government accordingly.
“Scotland was the only jurisdiction in UK to avoid a governance gap when role of EU Commission ended at EU Exit and are the first to vest our new standards body on a statutory footing.”