The Environmental Rights Centre for Scotland (ERCS) has raised concerns regarding alleged breaches in the law protecting Scotland’s landscape, environment, and wildlife by senior Scottish judges. The complaint centers around a lack of public consultation before crucial decisions on court costs in environmental cases, which have been deemed unaffordable and in violation of international law.
Since 2011, Scotland has been deemed non-compliant with Article 9 of the Aarhus Convention, an international agreement ensuring the right to a healthy environment and the ability of citizens to defend it in court. The United Nations had set a deadline of October 1, 2024, for the Scottish Government to develop a plan to reduce financial barriers to accessing justice in legal cases that can incur significant costs.
The ERCS argues that the existing financial barriers make access to justice unattainable, particularly in environmental cases where the ‘loser pays’ rule can burden litigants with their opponent’s legal fees if they lose. Despite the Scottish Civil Justice Council (SCJC) being tasked to review court cost rules, the ERCS asserts that the required changes to make justice more accessible have not been implemented, leading to continued violations of the Aarhus Convention.
ERCS Appeals to the UN
In a formal complaint to the UN’s Aarhus Convention Compliance Committee, the ERCS contends that the SCJC’s failure to consult the public during its review process violates Article 8 of the Convention, which mandates public participation in key decision-making processes that impact the environment. Despite requests for transparency and consultation, the SCJC conducted its review without public input, prompting the ERCS to escalate the matter to the UN.
Former co-convener of the Scottish Greens, Maggie Chapman, criticized the Scottish Government for its lack of action in addressing these breaches, highlighting the need for accountability and adherence to international law. The ERCS has been diligent in seeking information through Freedom of Information requests to shed light on the SCJC’s process and proposed court cost rules.
Environmental Impact and Conservation Concerns
The ERCS underscores the critical role of protective expenses orders (PEOs) in making environmental justice affordable and accessible. Legal director Ben Christman emphasizes the need for transparent and inclusive processes to ensure compliance with the Aarhus Convention, as financial barriers can deter individuals and organizations from pursuing legal action to protect the environment.
Environmental charities, including the ERCS and the RSPB, have voiced disappointment over the lack of reforms to address Scotland’s non-compliance with international law. The Scottish Government’s failure to deliver actionable changes to ensure access to justice has drawn criticism from conservation organizations, highlighting the urgency of reform to protect Scotland’s natural landscape and wildlife.
An analysis supported by Scotland’s NatureScot agency reveals alarming declines in wildlife populations, with one in nine species at risk of extinction in 2023. The State of Nature Scotland report underscores the need for robust conservation efforts and legal mechanisms to safeguard biodiversity and prevent further environmental degradation.
In response to inquiries, an SCJC spokesperson acknowledged ongoing efforts to review PEO rules and improve access to environmental justice. The council plans to conduct public consultations on extending PEOs to the sheriff court, aiming to address Aarhus compliance concerns and enhance support for environmental actions.
A Scottish Government representative affirmed the commitment to ensuring effective access to justice in environmental matters, citing recent reviews of court rules and fee waivers for environmental cases in the Court of Session. Progress continues to be made to address compliance issues and strengthen environmental democracy in Scotland.
As stakeholders advocate for transparency, accountability, and accessibility in legal processes concerning the environment, the ERCS’s appeal to the UN underscores the importance of upholding international standards to protect Scotland’s natural heritage for future generations.
