Developments in environmental justice in Scotland: analysis and response

Analysis

Response overview

7. There were 22 responses to the published consultation. The respondees can classified as in table 1 below.

Table 1

Respondee type	Number
legal organisation	2
environmental lawyer	1
environmental non-governmental organisation (ngo)	5
wildlife ngo	1
planning ngo	1
energy company	2
public utility	1
animal charity	1
community group	1
Landowners' association	1
government organisation	1
individual	5

Two of the respondents stated that as well as the comments they had made, they agreed with everything in the Friends of the Earth Scotland response, and we have taken account of that in this analysis.

8. In addition, an environmental non-governmental organisation ( NGO) organised an email campaign. The campaign email was addressed to the Cabinet Secretary for Justice asking him "to take steps to establish a specialist environmental court or tribunal … for Scotland within the first year of this new Government" and requesting that each be regarded as a response to the consultation. There were 205 such emails including 14 from English addresses, 1 from a Welsh address, and 1 from a German address. 9 duplicates are not included in these figures nor are campaign emails received after 21 June 2016.

Preliminary issues

9. A number of respondents provided a general introduction before going on to consider the consultation questions. Some of these raised issues about the consultation. These fall into two categories―dissatisfaction that the consultation was not the options paper promised in the SNP manifesto and dissatisfaction with the scope of the paper.

10. Some respondents, in particular the Law Society of Scotland, Professor Reid, the UK Environmental Law Association ( UKELA), and the Scottish Environment LINK, were concerned about the scope of the paper. In particular, the concern was that whereas the paper only considered court reform, environmental justice is much wider than the cases which come to court. They considered that the paper needed to address the wider system of environmental justice in Scotland.

11. The Law Society stated: "In our view, therefore, the paper is too narrow in its scope and does not embrace the range of ways in which environmental justice can be sought." UKELA commented: "The consultation paper is very disappointing in that it addresses only a narrow range of the environmental matters within the 'justice system'. In particular, by expressly excluding first instance decision-making and administrative appeals outside the court system (and in particular by expressly excluding the planning system), an important element that needs to be considered is overlooked and a very large area of activity is omitted."

12. Professor Reid, UKELA, and the Scottish Environment LINK were particularly concerned by the omission of a consideration of first instance decision-making and appeals to ministers and other non-judicial bodies. They considered that this was a very significant area of environmental justice which was omitted, affecting the resolution of conflicts and disputes as well as enforcement measures. Professor Reid went on to state that this "in effect excludes from consideration large areas of activity where environmental disputes arise, most notably the town and country planning system; not only does this skew the nature of the environmental cases being considered, but it affects the assessment of issues such as the amount of business to be covered with consequential effects for structural decisions (if - for argument's sake - an environmental tribunal were contemplated, the amount of business it would handle would be greatly affected if all planning appeals were directed to it whereas without this large stream of work its viability looks very different)".

13. Three respondents (Professor Reid, UKELA, and Ian Cowan) considered that the consultation was not the options paper promised in the SNP manifesto. For example, Ian Cowan states: "Before answering any questions, I have to say that the consultation is a massive disappointment, compared to what it could have been. It is supposed to fulfil the 2011 SNP manifesto commitment to 'publish an options paper as the basis for a wider engagement' on the proposal to create 'an Environmental Court in Scotland, potentially building on Scotland's current Land Court', but the reader has to look carefully to find any discussion of options for an environmental court or tribunal in the 16 pages of substantive text."

14. The SSE response also concentrated on the consultation's focus: "The term 'environmental' is potentially very wide – it can encompass any case that concerns protection of the environment. For the purposes of this consultation response, our own interests are predominantly in relation to judicial review applications where a challenge is made to the consent for an energy development. Where the underlying legal basis for the challenge concerns an allegation that there has been a failure to protect an identified environmental receptor, or, more generally, to respect the public interest in protecting the environment, in our view that is sufficient to make the case of an 'environmental' nature."

Question 1

What types of case, both civil and criminal, do you consider fall within the term "environmental"? Please give specific examples. Which processes are currently used to deal with those cases you have identified? Do you consider those processes are sufficient? Please provide reasons for your response.

Types of environmental cases

15. 18 of the 22 responses provided an answer to this question. Many of the answers noted that there was a wide range of types of case. As the Law Society of Scotland wrote:

"We believe that the term 'environmental', covers a huge range of both civil and criminal matters and it would therefore be difficult to provide a coherent list."

16. The respondents had different approaches to answering the first question. Some used a classification based on types of case, some simply gave examples of cases, and others classified environmental cases in terms of legislation and/or regulating body.

17. The Law Society of Scotland suggested that cases could be classified under three headings:

• administrative decision making and judicial review;
• civil matters; and
• criminal prosecutions.

18. It is possible to classify the suggestions and examples as to what constitutes an environmental justice issue given by other respondents under these three headings:

• Administrative decision making and judicial review
  • town and country planning cases
  • maritime cases
  • energy consent decisions
• Civil matters
  • some taxation issues where the scope of tax or duty liabilities, or reliefs and exemptions, are based on environmental criteria (or have significant environmental consequences);
  • nuisance actions;
  • damages actions arising out of environmental issues;
  • issuing nature conservation orders;
  • regulation of activities in Sites of Special Scientific Interest;
  • prevention of harm from invasive non-native species; and
  • restrictions on use of land.
• Criminal prosecutions
  • pollution prevention and control;
  • wildlife crime including:
    • the deliberate damage to species at a population scale (illegal killing, e.g., the deliberate and systematic removal of pine marten across Scotland); and
    • the illegal releases of species such as the release of beaver into the Tay catchment;
  • environmental crime including:
    • the deliberate or foreseeable and unsustainable or irrecoverable degradation of scheduled areas ( e.g. ploughing and re-sowing protected Machair grassland habitats); and
    • pollution of water, soil and air ( e.g., burying toxic waste and contaminating ground water) prosecutions; and
  • dog fouling.

19. Scottish Natural Heritage ( SNH) was one of the respondents who chose to use a classification based on legislation and European Directives. The legislation listed by those who chose this method of defining environmental cases included:

• Conservation (Natural Habitats, &c.) Regulations 1994 (as amended);
• intentionally or recklessly damaging any feature of a sites designated in compliance with the European Union ( EU) Birds and Habitats Directives;.
• Deer (Scotland) Act 1996 (as amended);
• Environmental Liabilities (Scotland) Regulations 2009 (as amended);
• Environmental Impact Assessment Regulations (various);
• Hill Farming Act 1946 (as amended)
• Offences concerning the timing and conduct of the muirburn code and non-compliance with a muirburn licence issued by SNH.
• Nature Conservation (Scotland) Act 2004 (as amended);
• Prohibition of Keeping or Release of Live Fish (Specified Species) (Scotland) Order 2003;
• Protection of Badgers Act 1992 (as amended);
• Salmon and Freshwater Fisheries (Consolidation) (Scotland) Act 2003;
• Town and Country Planning (Scotland) Act 1997; and
• Wildlife and Countryside Act 1981 (as amended).

20. A further way to define environmental cases was by regulating body. This was the approach of ScottishPower which defined such cases as "protection of air, land, water and wildlife should be considered as falling within the terms of 'environmental'. "In our view this will also include any cases which fall within the jurisdiction of SEPA and SNH." ScottishPower went on to state: "It is important that the definition of what cases are 'environmental' must be considered carefully in order to avoid these becoming an unwieldy burden for a new court. Any non-compliance with this environmental legislation should be considered as an 'environmental' case and treated as such."

Processes

21. Most respondents did not give details on which processes they used for environmental cases. However, SNH gave information that it seeks alternative means by which to resolve cases before seeking criminal proceedings, through discussion and occasionally arbitration. As to issues with criminal proceedings it stated that it did "have some concern that the Crown Office and Procurator Fiscal Service's ( COPFS's) decisions over the disposal of wildlife crime cases may be influenced by a lack of certainty over the public interest to be served by prosecution". Scottish Water also report alleged offences to COPFS for possible prosecution through the criminal justice system.

Summary

22. As will be noted from the above, "environmental justice" is a very wide-ranging term. It has a foot in civil justice, in criminal justice, and in administrative justice. The definitions given by the respondents sometimes tried to take in the whole spectrum, whilst other respondents focussed on definitions within their own sphere of interest. Based on the responses, it is difficult to come to a definitive answer to the question as to what constitutes an environmental issue in relation to justice. As the Law Society of Scotland stated: "We believe that the term 'environmental', covers a huge range of both civil and criminal matters and it would be difficult to provide a coherent list."

23. The consultation paper focussed on court-based issues as it was issued in response to the manifesto commitment to publish an options paper on the question of whether there should be an environmental court in Scotland in the context of wildlife and environmental crime. However, the Scottish Government recognised that there were calls for an environmental court to deal with civil issues and therefore widened the consultation, some respondents considered that further issues should be addressed, in particular, administrative justice. As noted in paragraphs 10 and 11 above, the Law Society of Scotland and UKELA were concerned that environmental justice encompasses a much wider spectrum of issues than just the court processes."

Question 2

This paper outlines the improvements to the justice system that this Government has delivered in relation to environmental justice. Do you agree that these changes have improved how environmental cases, both civil and criminal, are dealt with in Scotland? If you do not agree, please explain why.

24. 20 of the respondents provided an answer and or comment on this question. The answers are summarised in Table 2 below.

Table 2

	Content with present system	Agree but with reservations about the current system	No comment on improvements – reservations about current system
legal organisation		2
Environmental lawyer		1
Environmental ngo		4	1
Wildlife ngo		1
Planning ngo		1
Energy company		2
Public utility	1
Animal charity	1
Landowners' association	1
Community group		1
Government organisation		1
Individual		2	1
Totals	3	15	2

25. The statistics in this table do not tell the full story. Some respondents considered the wide spectrum of environmental justice whereas others focused on one aspect and one organisation drew its conclusion from its experience in a single case in the Court of Session.

26. Many of the respondents welcomed the improvements to the justice system that the government has delivered in relation to environmental justice system. In particular the changes to standing in judicial review, the expansion of PEOs to environmental cases, and the introduction of specialist prosecutors in criminal cases. For example, UKELA stated: "The position has improved markedly in recent years in some areas, but there is still a lack of coherence in the system. Notable improvements to be welcomed are the expansion of standing for judicial review actions, the introduction of Protective Expenses Orders and the establishment (albeit over 10 years ago) of specialist prosecutors." Friends of the Earth Scotland also appreciated some of the changes: "We welcome a number of changes made in recent years, in particular the new test of 'sufficient interest' in judicial review and statutory appeal cases, and the introduction and amendment of PEOs, which cap petitioners' liability in Aarhus cases before the Court of Session."

27. Scottish Land and Estates considered that it is too early to comment on the effectiveness of the changes that have taken place in the justice system which have a bearing on environmental justice.

Civil environmental justice

28. One of the environmental NGOs was not content with the changes in standing. The response was based on a case in the Court of Session where it had had the standing to bring the case but that it did not have sufficient title and interest to justify the remedy which had been given in the judicial review.

29. One of the main concerns of the environmental NGOs and of some other respondents centred on judicial review and statutory appeals of decisions made by authorities. Their concerns centred on two areas: the processes in the courts and PEOs.

• Court processes

30. These respondents considered that the system in the Court of Session is too slow and that the time limits for applications (3 months for judicial review or 6 weeks for planning statutory appeal) are too short and this means there is often insufficient time to locate a pro bono legal team to undertake the work.

31. There was also particular concern regarding the scope of judicial review and statutory appeal are not able to look at the merits of a decision and are being confined to a challenge on a point of law ( i.e., that the decision was illegal or made by an authority that was not empowered to make the decision). The point was made that members of the public and some small groups are unaware when considering judicial review or statutory appeal. The John Muir Trust was one of the NGOs that commented on what it considered to be the flaw in judicial review as a remedy: "Judicial review can usually only be applied for if there is a fault in the process as the substance of the decision cannot generally be challenged. This is the 'Wednesbury unreasonableness' test ^[2] . This is one of the main reasons that judicial review is a very unsatisfactory and partial remedy, and why [judicial review] does not comply with the Aarhus Convention."

32. In addition, one of the environmental NGOs pointed out that PEOs only apply in the Court of Session and cannot be made in environmental cases in the sheriff court.

• Protective Expenses Orders ( PEOs)

33. These respondents consider that despite the possibility of a PEO, the system is too expensive and this means that it is not affordable for many individuals or groups. They also believe there are a number of flaws in the system:

• firstly, an applicant must provide sufficient financial information to demonstrate that they would find the proceedings prohibitively expensive. This may deter applications for fear that personal financial details would be in the public domain;
• RSPB argued that in judicial review, the Court may decline to make a PEO if it considers that the applicant has no real prospect of success, and that this delay in costs protection until permission to proceed has been granted does not comply with the requirements of the PPD and the Aarhus Convention;
• although court rules provide that applications for PEOs must be made quickly after the case is raised, this is often impracticable given the level of detail expected in a PEO application and the short time period for raising challenges.

34. ScottishPower, whilst supporting the access to environmental justice delivered through PEOs was concerned about what it considered to be the current lack of clarity in interpretation around application of PEOs.

35. Both the RSPB and Professor Colin Reid acknowledged progress in environmental justice with the introduction of PEOs and other changes. Firstly, RSPB stated: " RSPB welcomes recent amendments to the current regime regarding standing and eligibility for Protective Expenses Orders ( PEOs) as highlighted in the consultation paper. However, this response explains why further amendments are necessary to ensure full compliance with international and EU law (principally the access to justice provisions of the EC Public Participation Directive and the Aarhus Convention)." Professor Colin Reid's comment was: "There have been significant improvements in recent years ( e.g. widening of legal standing, protective expenses orders, specialist prosecutors) but there remains the need to do more to ensure that environmental cases are handled in a way that ensures expertise at all levels. Specific legal matters, such as ensuring that all environmental cases are covered by expenses rules that meet the Aarhus Convention requirements, can be addressed but equally significant is ensuring that there are the resources available to enable the improved structures, such as dedicated prosecutors, to deliver real changes in how effectively environmental matters are dealt with."

36. WWF-Scotland, whilst agreeing that PEOs do not go far enough in providing access to justice, was also concerned about legal aid. It disagreed with the Scottish Government view that no change was needed to the legal aid rules taking the view that the legal aid test should be that in Article 9 of the Aarhus Convention. The response states that this means access to the legal process for challenges to environmental decision-making is "fair, equitable, timely and not prohibitively expensive".

37. RSPB was also concerned about legal aid and in particular Regulation 15 of the Civil Legal Aid (Scotland) Regulations 2002. It considers that Regulation 15 has an "overbearing influence" on the ability of applicants to receive legal aid in cases with an environmental impact. It goes on to state that "above problems with regard to legal aid are compounded by the introduction of a cap on the expenses of a [judicial review] to be covered by legal aid (including Counsel's fees, solicitors' fees and outlays) of £7,000" which it considers to be an entirely unrealistic figure to run a complex environmental judicial review case.

38. A different view of PEOs was taken by SSE. It considered that the court rules are in need of further attention. It's concern is that the "Rule of Court makes no distinction between individuals and NGOs with a cap of £5,000 on the applicant's liability in expenses for both". It suggested that the cap on expenses for NGOs should be raised with perhaps £30,000 as a more suitable figure.

39. Planning Democracy was concerned that, in the light of the planning review publication of 31st May 2016, ^[3] there was an inequality of arms when it comes to planning decisions and its implications for environmental justice. They argue that environmental justice and the public interest is served through public engagement in planning decisions and that this is in the spirit of the Aarhus Convention.

40. The NGOs and the other respondents who raised these issues argue that as a result of these issues, Scotland is not complying with the access to justice pillar of the Aarhus Convention, especially with regard to the issues of costs, standing, and the availability of merits review.

Wildlife and environmental crime

41. Other respondents were more focussed on wildlife and environmental crime. For example, the Game and Wildlife Conservation Trust were concerned about shortcomings in the recording of wildlife crime in that statistics do not always differentiate between reported crimes and successful prosecuted crimes, the statistics are limited by the types of crimes and the level of detail recorded, and there is no assessment of the impact of crime or civil breaches on the environment or species affected.

42. ScottishPower stated that it "has yet to see any substantial improvement as to how environmental cases are dealt with. However as the Regulatory Reform process has yet to implement several key changes, such as changes to SEPA's enforcement powers, we believe such key changes should bring about improvements". It was concerned in particular about the current lack of enforcement options for SEPA (to be resolved by the regulatory reform proposals) and what it sees as a lack of understanding of the issues by the courts. The Avich and Kilchrenan Community Council was also concerned about the lack of effective options for SEPA suggesting that there is a "need for some environmental enforcement cases to be heard in a criminal court in order to provide a deterrent for the most serious offences".

The environmental justice system

43. Three of the respondents were concerned about what they described as the "fragmented" nature of the environmental justice system. Ian Cowan, an environmental lawyer responding as an individual, stated: "If anything this review demonstrates just how fragmented, tangled and incoherent the 'environmental justice system' of Scotland is, and exactly why a proper analysis of what needs to change in order to deliver environmental justice (even in the narrow sense of the term used in the document) is required, followed by a detailed appraisal of the available models."

44. UKELA and Professor Reid agreed with the above about the "fragmented" system pointing to what they see as various inconsistences:

• some appeals go to Ministers and some to the courts;
• some ministerial decisions are appealed to the sheriff court and others only in the Court of Session; and
• some decisions are subject to an appeal looking at the full merits of a case whilst others are only subject to a review of the decision-making process.

Both respondents considered, like Ian Cowan, that a full review was necessary. Professor Reid felt that it is necessary "to rationalise and streamline the many different decision-making and appeal mechanisms which exist in different areas of environmental regulation".

Summary

45. As will be noted from the above, though the reforms to justice 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 PEOs and legal aid.

46. There was less comment 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 SEPA.

Question 3

Given the extensive changes that have already been delivered to the justice

system (as outlined in this paper) and the need to ensure that any further changes are proportionate, cost-effective, and compatible with legal requirements, are there any additional ways in which the justice system should deal with both civil and criminal environmental cases? If so, please detail these. In particular, do you consider that there should be a specialist forum to hear environmental cases? If so, what form should that take ( e.g. a court or tribunal)? Please provide reasons for your response.

47. 21 of the respondents provided an answer to this question. The spread of answers in relation to the question about whether there should be an environmental court or tribunal are set out in the table below.

Table 3

Yes – there should be an environmental court/tribunal	There should a wide-ranging review of environmental justice before deciding on an environmental court/tribunal	No – there is no need for an environmental court/tribunal at present	There should not be an environmental court/ tribunal but a review of environmental justice
6 environmental NGOs 1 planning NGO 1 community group 2 energy company 1 public utility 1 government organisation 4 individuals	1 individual 1 environmental legal organisation	1 wildlife NGO 1 landowners and business association	1 legal organisation
16	2	2	1

48. As this table indicates, 16 were in favour of an environmental court or tribunal. Most did not state a preference for one or the other. Of those that supported such a forum, most were strongly in favour, but a few thought that environmental justice "might" benefit by the introduction of a specialist court or tribunal. 9 of the 16 were in favour of the introduction of a specialised lower cost forum particularly to deal with civil matters but 2 advocated a specialised court within the Court of Session.

49. One of the respondents, whilst critical of some of the procedures, especially in civil justice, was hesitant about advocating the creation of an environmental court or tribunal and instead suggested that there needs to be a wide-ranging review of environmental justice. In addition, of the 14 that supported an environmental court or tribunal, five were also in favour of a review of environmental justice.

50. On the other hand, 3 respondents did not consider that there was any need for such a court/tribunal. 2 of these three have welcomed the changes that have taken place and that these need time to bed in. The Law Society of Scotland thought that "given the diversity of environmental matters and the relatively small number of cases which end up being pursued in the civil courts or prosecuted in the criminal courts" it would not be "either effective or would provide value for money to establish a separate court to deal with environmental matters". However, it did consider that a review would be beneficial and could result in greater specialisation.

Options

An environmental court or tribunal

51. One of the options put forward was an extension of the Scottish Land Court. Professor Reid suggested that "to the extent that a higher court is desirable, continuing the current practice of conferring jurisdiction on the Scottish Land Court seems sensible". Other respondents also thought that the Land Court should be considered. Friends of the Earth Scotland also saw this as a possibility, though its preference was for a tribunal: "However, the Scottish Land Court, which has many of the strengths identified in ECTs [ i.e. environmental courts and tribunals], already functions as a de facto ECT in certain appeals, including those from SEPA's new civil penalty powers. It may be that extending the jurisdiction – and resourcing – of the Land Court is a more cost effective approach to Aarhus compliant access to justice." RSPB stated: "Extending the scope and powers of the Land Court as a forum for Judicial Review. While this may provide a suitable forum for many cases, complex, high public interest and/or constitutionally important cases may still need to be heard in the Outer House of the Court of Session."

52. As stated above, Friends of the Earth Scotland's preferred option would be for a tribunal set up under the Tribunals (Scotland) Act 2014. It saw this as "the most obvious place to start afresh and create an accessible, flexible, efficient and affordable ECT".

53. Another supporter of the tribunal was Hilary Patrick who drew on her experience of mental health law to advocate a specialist tribunal with specialist knowledge, which she considered could offer "a more sensitive and tailored solution or resolution to issues". She saw another advantage as being the informality of the tribunal system meant that legal representation was not necessary and that would lead to savings to the public purse.

54. UKELA and Professor Colin Reid favoured that instead of just changing the court structures by introducing an environmental court, a holistic approach to a review of environmental justice was needed looking beyond the cases that come to court to consider the wide range of environmental issues both civil and criminal. UKELA argued: "The route to an improved system to secure environmental justice does not lie simply in transferring some business to a new court or tribunal, but requires a holistic review and enhancement of the decision-making and participatory procedures from start to finish." Professor Reid stated: "Expertise is a central issue and widening the scope of jurisdiction to provide sufficient business to justify establishing specialist structures may risk diluting too far the expertise which is the justification for such an approach in the first." He went on to say: "A case can be made for an environmental court or tribunal in Scotland, but it requires a much deeper and more far-ranging reconfiguration of the handling of environmental matters than is contemplated here."

55. After a wide-ranging resumé of the history of various considerations of whether there should be an environmental court or tribunal in both England and Wales and in Scotland, RSPB did not take a view on whether there should be such a forum. Instead it agreed with others that suggested a review advocating that the Scottish Government should set up an "Expert Working Group" including environmental NGO representatives to carry out a full appraisal of the various options for environmental justice.

56. Some respondents pointed to other jurisdictions such as Australia, Canada and New Zealand. World Wildlife Fund-Scotland ( WWF) referenced India's National Green Tribunal which was set up in 2010 as a specialised court for environmental matters. WWF states: "Since its establishment it has become the primary authority on environmental jurisprudence in India and has created a field of judicial activism of its own. Importantly, the Tribunal is a court of law with original and appellate jurisdiction. It is able to review both the factual aspects of environmental cases as well as the substantive legal issues of cases – an important issue from the environmental aspect."

• Jurisdiction of a specialist court or tribunal

57. Whilst many of the respondents saw the replacement of judicial review and statutory review by a specialist environmental court outside the Court of Session as offering a more affordable tool for those who wished to challenge the decisions of authorities and also offering benefits to the public purse, Ian Cowan considered that, were such a court to be set up, there should be a "one-way shifting of costs (qualified or unqualified) to the public purse in order to increase access for public interest litigants". RSPB took a similar view stating that there should be further consideration of the availability of public funding for environmental cases.

58. SSE was content that judicial review and statutory appeals under the Town and Country Planning Act should remain in the Court of Session. It did consider that there would be benefits in creating a specialist panel of judges within the Court of Session to hear environmental, planning, and infrastructure cases with the facility to sit locally where that was expedient, rather than in Edinburgh.

59. Scottish Water considered that there would be benefits in creating a "specialised forum to hear environmental cases" but was concerned that such a forum might delay criminal cases being heard in line with the requirements of Article 6 of the European Convention of Human Rights. It thought that other avenues of dealing with environmental cases should also be explored including alternative dispute resolution for both civil and criminal cases, greater use of fiscal fines, and broader application of civil penalties.

60. The Game and Wildlife Conservation Trust favoured specialisation in criminal environmental justice owing to the complexity of criminal environmental law. It did not consider that there would be enough cases to warrant an environmental court but considered that it might be worth exploring the possibility of "peer to peer tribunals".

61. SNH was also concerned with wildlife and environmental crime. Its view was that whilst the majority of crimes would still be heard in the sheriff court, there might be benefit in the more complex environmental crimes being heard in a specialist court or tribunal.

62. There were other views expressed on changes needed. Pat Spence was concerned about planning issues and advocated a legal requirement for compensation to be paid when lives and properties were affected by planning and energy consent cases.

Email campaign

63. Towards the end of the consultation period, one of the environmental NGOs ran an email campaign urging the Cabinet Secretary for Justice "to take steps to establish a specialist environmental court or tribunal for Scotland within the first year of this new Government". There were 205 identical emails (excluding duplicates) and one similar email which included text stating that, contrary to the text in the consultation, Scotland was in breach of the Aarhus Convention. This latter email has been included a separate substantial response to the consultation.

64. The email stated that the "Scottish Government has an opportunity to create a world class [environmental court or tribunal] that provides for affordable access to justice, reduces costs to the public, speeds up decisions and provides a more level playing field for developers". It went on to say that the Aarhus Convention should be at the heart of any thinking about such a court or tribunal and that it would lead to "improved engagement and decision making from developers and public authorities". The email claimed that the benefits claimed would be "specialism, strong case management, an inquisitorial approach, and powers to prioritise urgent cases would result in greater efficiency and speedier decision-making, lower costs to the public purse, and avoid lengthy delays to high value and high public interest cases".

65. Although each campaign email asked that it be regarded as a response to the consultation, there was little in the email that addressed the questions asked in the consultation document. There was a clear implication in it that those who responded by using the campaign email considered that planning, and possibly energy consent, issues should be dealt with by a specialist environmental court or tribunal.

Summary

66. 18 (78%) of the respondents to the consultation proper would welcome an environmental court or tribunal although 2 (9%) of those thought there should first be a review. Only 1 respondent (4%) specified that the specialist forum should be a tribunal, although a further 4 (17%) thought a tribunal should be considered as a possible way forward. Though a few saw an advantage of such a forum for criminal cases, 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.

67. 42% 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.