Developments in environmental justice in Scotland: analysis and response

Acknowledgements

The Scottish Government would like to thank all individuals and organisations who took the time to consider and respond to the proposals contained in the consultation paper "Developments in Environmental Justice in Scotland".

Executive summary

The consultation sought the views of interested parties on what constitutes an environmental court case, whether recent changes to the legal system in Scotland have improved how environmental cases, both civil and criminal, are dealt with, and whether further changes are necessary, in particular whether there is a need for an environmental court or tribunal. The consultation was a response to the SNP 2011 Manifesto commitment, made in the context of wildlife and environmental crime, to publish an options paper on an environmental court or tribunal, but widened in scope as the Scottish Government recognised that there were calls for an environmental court or tribunal to deal with civil environmental justice.

The consultation response indicated that "environmental justice" is a very wide-ranging term, covering aspects of civil justice, criminal justice, and administrative justice. The responses showed the difficulty in coming to a definitive view as to what constitutes an environmental justice issue. Although the consultation paper focussed on court-based issues, two of the respondents considered that environmental justice encompasses a much wider spectrum of issues than just the court processes.

Though the justice reforms that have a bearing on environmental matters have been welcomed by respondents, most did not think that they have gone far enough. This is particularly the case in relation to civil environmental justice with perceived deficiencies in the judicial review and statutory appeals being highlighted by many of the respondents including criticism of Protective Expenses Orders ( PEOs) and legal aid. There were fewer comments on problems within the criminal environmental justice system with the main criticism being concerned not with the court processes but with the enforcement powers of Scottish Environment Protection Agency ( SEPA).

A substantial majority of the respondents favoured the introduction of an environmental court or tribunal. The majority envisaged a specialised court or tribunal as a means to reducing costs and improving access to justice in civil environmental matters. However, there was no clear consensus on whether such a court or tribunal should deal with criminal or civil cases, whether it should be a specialised sheriff court, a specialist tribunal, or a specialised court within the Court of Session, and within each of those jurisdictions, what types of "environmental" cases should be considered.

Just under half of the respondents also considered that a wide ranging review of environmental justice was necessary, looking beyond the court system to encompass other means of resolving environmental disputes and also considering administrative environmental justice.

The Scottish Government has considered the issue carefully and is fully mindful of the views of the respondents to the consultation. The variety of views on what sort of cases an environmental court or tribunal should hear combined with the uncertainty of the environmental justice landscape caused by Brexit lead Ministers to the view that it is not appropriate to set up an specialised environmental court or tribunal at present. The Government will, however, remain committed to environmental justice and will keep the issue of whether there should be an environmental court or tribunal or even a review of environmental justice under review.