Developments in environmental justice in Scotland: analysis and response

The Scottish Government response

68. The Scottish Government notes that there were only 22 responses to the consultation and that there was a variety of interests represented within this relatively low response with some respondents interested in criminal issues, some in civil issues, and others in both.

Further developments in environmental justice in Scotland

69. Since the consultation ended, there have been further developments with some relevance to environmental justice in Scotland and matters raised through this consultation. Some of these are aimed particularly at environmental justice whilst other developments have a more general application which includes environmental justice. The latest developments are outlined below.

Protective expenses orders

70. The Scottish Civil Justice Council ( SCJC) consulted on rules for PEOs from 28 May to 23 June 2017. The SCJC stated: "The draft rules seek to ensure that, where applicable, the rules regulating applications for PEOs in environmental proceedings operate so as to give proper effect to the requirement, under the Aarhus Convention and EU Law, that proceedings should be 'not prohibitively expensive'." ^[4] Following the closing date, all responses will be analysed and considered along with any other available evidence to help the SCJC reach a view on draft rules for protective expenses orders.

71. The main areas that the consultation sought views on were:

• how 'prohibitively expensive' should be defined so as better to reflect how it has been interpreted by the Court of Justice of the European Union ( CJEU) and the Supreme Court;
• whether the procedure for the determination of PEO applications should be simplified to avoid protracted and expensive hearings;
• whether an applicant's liability in expenses in an unsuccessful application should be capped at £500 unless the court is satisfied that there are grounds for removing that cap;
• whether a PEO granted in a first instance case should be extended to an appeal, and if so, the circumstances in which this should happen; and
• whether reclaiming motions to the Inner House should have a presumption that there will be no hearing and that the appeal will be determined in chambers based on consideration of the papers in order to speed up the process and reduce expenses.

The aim of the SCJC proposals is to streamline that application process for PEOs and to reduce expenses. If adopted, it would strengthen arrangements to support cases requiring access to environmental justice.

Simple procedure

72. From 28 November 2016, simple procedure replaced the current small claims procedure and part of the summary cause procedure. Simple procedure is a court process designed to provide a speedy, inexpensive and informal way to resolve disputes, including environmental disputes, where the monetary value does not exceed £5,000.

73. The new simple procedure rules were prepared by the SCJC and the Chair, the Rt. Hon. Lord Carloway, stated: "The simple procedure has been designed with the party litigant in mind, using accessible language and incorporating user-friendly guidance into the rules."

Review of the Scottish Planning System

74. The Scottish Government has committed to bring forward a Planning Bill during this parliamentary session. In January 2017, the Scottish Government published a consultation paper "Places, People and Planning", proposing 20 key changes to the planning system within 4 themes covering (i) plans, (ii) people, (iii) housing and infrastructure and (iv) leadership and resourcing. Over 470 responses to the consultation were made, from people, businesses and organisations across Scotland.

75. In June 2017, the Scottish Government published an analysis of responses, along with a position statement describing the key changes which Scottish Ministers are considering taking forward through the Planning Bill, secondary legislation and other, non-statutory approaches. Shared priorities of inclusive growth and community empowerment underpin this programme of planning reform. Proposals include strengthening development planning, more closely aligning community planning and spatial planning, giving people a new right to plan their own place and keeping planning decisions local by allowing more review decisions to be made by local authorities.

Energy

76. In developing the new Scottish Energy Strategy, the Scottish Government is committed to drawing on views from a wide range of representatives from industrial, environmental and academic communities. It consulted on its draft Energy Strategy between 24 January and 30 May 2017. The consultation included proposals to develop new approaches to public engagement and participation in order to raise awareness of the 2050 vision for Scotland's energy system and enhance the delivery of the final Energy Strategy.

77. The Scottish Government has been greatly encouraged by the response to the Energy Strategy Consultation. 256 responses have been received, giving a very rich set of views on the Scottish Government's 2050 vision that we put forward through our draft Energy Strategy consultation. The consultation has been extremely valuable in gathering the views of engaged citizens, energy professionals and key Scottish businesses. In combination with the linked consultations on Scotland's Energy Efficiency Programme, Local Heat and Energy Efficiency Strategies, District Heating Regulation and Onshore wind, the Scottish Government has had a total of more than 500 responses.

78. These responses will be analysed by an independent research company and the findings, alongside recommendations from the Economy, Jobs And Fair Work Parliamentary Committee and advice from the Scottish Energy Advisory Board, will help form the evidence base. This information will inform the development of the final version of the Scottish Government's Energy Strategy. This strategy will be set out in a paper on the "Future of Energy in Scotland" which is expected to be published before the end of 2017.

• The Civil Litigation (Expenses and Group Proceedings) Scotland Bill

79. The Civil Litigation (Expenses and Group Proceedings) Scotland Bill was introduced into Parliament on 1 June 2017. Although not specifically concerned with environmental justice, it does aim to make expenses in civil justice more predictable and if passed by Parliament, it will make group proceedings ^[5] possible in Scotland.

The Scottish Government view on environmental justice

80. The Scottish Government is a strong supporter of environmental justice. It is aware of its obligations under the Aarhus Convention and it is continually updating the appropriate structures to ensure compliance and to protect the environment and to enable the best decisions to be made in respect of it.

81. The Scottish Government notes that there is support for an environmental court/tribunal. However, it also notes that there was no unanimity amongst those consultees who supported such a forum. It considers that it is important to distinguish between criminal wildlife and environmental justice and civil environmental justice. The two strands require different specialisms amongst both the judiciary and the legal profession.

• Wildlife and environmental crime

82. Wildlife and environmental crime are sometimes considered together and it was in the context of this grouping that the manifesto commitment for an options paper on an environmental court was made in 2011. However, within this broad heading there are very disparate elements. For example,

• wildlife crime can involve the killing or disturbing of protected species, damaging their breeding or resting places or illegally releasing species into the wild; and
• environmental crime has at one end of the spectrum littering, smoking in public places, and dog fouling and at the other end, pollution of the environment, the deliberate degradation of scheduled areas, and sea fisheries offences.

83. There are two factors that the Scottish Government considers important in relation to wildlife and environmental crime.

• Most cases are best heard in a local sheriff court rather than a centralised specialist court.
• The numbers of wildlife and environmental crime cases prosecuted in the courts is relatively small compared to crimes such as theft or drug offences ^[6] . It is not considered that the number of wildlife or environmental crime cases would sustain a specialist criminal environmental court or tribunal.
• The Scottish Government has brought in a number of measures to tackle wildlife crime in recent years. These include a programme to encourage the surrender of illegal poisons and new restrictions on licences on land where wildlife crime is suspected of taking place. The Scottish Government is also committed to bringing in legislation to increase penalties for wildlife crime and to working with Police Scotland to increase police resources available to tackle wildlife crime.

Civil environmental justice

Aarhus Convention and European environmental law

84. The Scottish Government takes seriously its compliance with EU law and with other international obligations. There are a range of statutory frameworks in place to ensure Scotland is fully compliant with all aspects of the Aarhus Convention.

85. The Aarhus Convention required the treaty parties to establish "optional arrangements of a non-confrontational, non-judicial and consultative nature for reviewing compliance with the provisions of the Convention". In order to meet this obligation, the Aarhus Convention Compliance Committee ( ACCC) was established. The ACCC is not a judicial body and its findings do not equate to court findings. The Scottish Government contributes to the UK's annual reports to the ACCC and has informed the ACCC of updates to PEO rules and to judicial review.

86. The Scottish Government's approach to public participation in its renewables policies and consenting processes were considered by the ACCC in a 2012/13 case (C68). There was no adverse finding against the Scottish Government in any of the four complaints made against it. (The single complaint against the UK Government was upheld.)

87. The Scottish Government does not consider that an environmental court/tribunal is necessary at present to comply with the Aarhus Convention. The consultation gave details of developments in environmental justice in Scotland which had taken place to comply with the Convention. This response has highlighted further developments that have taken place since the consultation. The Scottish Government will continue to look at ways in which it can improve access to environmental information and public participation and access to justice in environmental matters.

88. Given the plethora of types of civil environmental cases identified in the consultation, careful consideration would be required as to the definition of an environmental case and whether the same court/tribunal should hear, for example, nuisance cases and statutory appeals in planning cases. Clearly, it is not appropriate for nuisance actions to be heard in a centralised specialist environmental court. Such cases should be heard at a local court. The Scottish Government considers that it is only those cases where there is a public interest would be suitable for a hearing at a centralised specialist court, for example, cases that at present are heard as statutory appeal or judicial review hearings in the Court of Session.

• An environmental tribunal

89. As far as setting up an environmental tribunal is concerned, it has been suggested that the Lands Tribunal for Scotland might be a suitable forum. However, the tribunals landscape in Scotland is currently undergoing reform. The Tribunals (Scotland) Act 2014 creates a simple two-tier structure and introduces a common system of appointments, practices and procedures, bringing judicial leadership under the Lord President. There is a programme of work to transfer the currently devolved tribunals into the Scottish Tribunals in a phased process which commenced in December 2016. In addition, the Scotland Act 2016 proposed that all powers over the management and operation of 19 reserved tribunals be devolved to the Scottish Parliament.

90. In view of the above, the Scottish Government does not consider it appropriate at present to either confer the functions of an environmental tribunal onto the First-tier Tribunal for Scotland or to designate the Lands Tribunal for Scotland as an environmental tribunal.

• An environmental court

91. Most respondents favoured an environmental court. The same issues in relation to what types of cases should be heard in an environmental tribunal apply to an environmental court. There are a number of options which could be used to set up an environmental court.

• As noted in the consultation, the Lord President and the sheriffs principal could act to designate a sheriff court and specialist sheriffs under a combination of sections 34 to 36 of the Courts Reform Act (Scotland) 2014.
• Secondly, the Scottish Ministers have the power with the agreement of the Lord President to introduce a specialist all-Scotland civil environmental court under section 41 of the Courts Reform Act.
• Thirdly, it may be possible to expand the Scottish Land Court to be a specialist environmental court.

92. Some respondents argue that the introduction of a specialist environmental court at sheriff court level to hear cases which are now heard as judicial reviews or statutory appeals in the Court of Session will lower the costs of environmental justice. The Scottish Government believes that there are a number of issues related to this. Firstly, it is undeniable that such a move would reduce court costs in the first instance. However, in many cases, judicial expenses are only a small proportion of the expense of going to court as legal expenses are the main cost. If parties continue to use counsel in such actions, the cost of taking a case to court might not be as dramatically reduced as might at first seem.

In addition, it is noted that often such cases are appealed sometimes as far as the UK Supreme Court. The introduction of a lower court of first instance has the potential to add two further appeal stages, firstly to the Sheriff Appeal Court and secondly, to the Inner House of the Court of Session. If decisions go through all the appeal stages possible, the total cost of challenging a decision by an authority is likely to be much increased.

93. The Scottish Government considers that there would be relatively few cases that would fall to be heard in a specialist environmental court. The Law Society of Scotland stated the situation succinctly:

"In all the circumstances, 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, we do not believe that it would be either effective or would provide value for money to establish a separate court to deal with environmental matters."

• Brexit

94. The result on the UK referendum on membership of the EU brings into question Scotland's commitments under the Aarhus Convention and other EU law. The EU provides for most of the environmental protections in the UK and for 40 years it has acted as a monitoring body and enforcer.

95. One of the most important functions of the EU has been to supervise how member states implement their obligations. Although these processes apply to all areas of law, the majority of cases have been brought in the environmental sector.

96. At present, there is considerable uncertainty as the UK Government begins negotiations on withdrawal from the Union. Scottish policies are heavily influenced by EU legislation with Scotland Europa suggesting that more than 80% of all environmental legislation passed by the Scottish Parliament originates at EU level.

97. The Scottish Government's longstanding policy and commitment has been to membership of the EU. The Scottish Government's view has consistently been that any outcome must include retaining membership of the single market in all its aspects – trade, movement of people and protection of rights – and continued close co-operation with EU partners on issues such as justice, research and environmental protection.

98. The Scottish Government and its agencies will continue to monitor and enforce environmental legislation, regardless of the UK's future relationship with Europe. As part of its preparations for the UK's exit from the EU, the Scottish Government is carefully considering whether any gaps could arise in existing domestic monitoring and enforcement powers that would need to be addressed to ensure Scotland maintains high standards of environmental protection and access to environmental justice.

Conclusion

99. As a result of the various reasons outlined above, the Scottish Government does not consider it appropriate to set up an specialised environmental court or tribunal at present.

100. This should not be read as a downgrading of the importance to the Government of environmental justice. It is committed to improving access to justice in this field as elsewhere in the justice system and will keep the issue of whether there should be an environmental court or tribunal or even a review of environmental justice under review.