Environmental governance arrangements: report

4. Is the law in Scotland on access to justice on environmental matters effective and sufficient?

This chapter discusses the second of the three matters specified in section 41. We will first describe some of the concerns that have been raised about access to justice on environmental matters, including by the Aarhus Convention Compliance Committee (ACCC)^[18]. We shall then describe a number of measures that are being taken by the Scottish Government to increase access to justice on environmental matters. An important proposal is for the recognition and inclusion of the right to a healthy environment as part of an ambitious human rights framework. Finally, we shall present some conclusions on the effectiveness and sufficiency of access to justice on environmental matters, taking account of the measures that are already in development.

The Scottish Government previously consulted on environmental justice in 2016. The consultation sought views on developments in environmental justice in Scotland^[19].

4.1 Concerns about access to justice on environmental matters

We are aware that many stakeholders consider that the biggest barrier to access justice on environmental matters is legal costs that prevent individuals, community groups and NGOs from taking action. Stakeholders have indicated that concerns over costs remain despite the protective expenses order (PEO) regime offering some protection in relation to legal costs in judicial review hearings. Judicial reviews are heard in the Court of Session and can be both complex and costly.

In addition, we are aware of stakeholder concerns about the lack of a specialist environmental court or tribunal. Some stakeholders have expressed the view that a specialist environmental court would allow for the development of specialist expertise in the field. There are existing initiatives to improve standards of expert witness in Scotland, such as a scheme ran by the University of Aberdeen^[20].

4.2 Aarhus Convention Compliance Committee

The issue of legal costs has been raised by the ACCC^[21]. The ACCC has found that Scotland has not achieved full compliance with the requirement under Article 9(4) of the Aarhus Convention for access to justice in environmental matters not to be 'prohibitively expensive'.

The Scottish Government is committed to ensuring that there is effective access to justice on environmental matters in Scotland. We are aware of our obligations under the Aarhus Convention and work is in progress in relation to the areas of concern raised by the ACCC in order to ensure Scotland's compliance with the requirements of the Aarhus Convention. Current work ongoing to aid access to justice, includes:

• the recognition and inclusion of the human right to healthy environment and proposals to enhance both non-judicial and judicial routes to remedy in the Human Rights Bill, which will improve access to forms of redress for rights holders;
• the review of the Protective Expenses Order (PEO) regime currently being undertaken by the Scottish Civil Justice Council;
• the introduction, in July 2022, of an exemption from court fees for Aarhus cases^[22] in the Court of Session;
• legal aid reform, which will consider extending legal aid availability to "legal persons", such as NGOs, and also facilitate more targeted provision of legal aid services (by area of law and/or by geographical location);
• we continue to explore means to provide further expert support to prosecutors and the judiciary on environmental matters, such as through further training opportunities.

4.3 Environmental Standards Scotland

The introduction of ESS, discussed in the previous chapter, can be understood in itself as an additional route for individual and groups to seek environmental justice. ESS's role to scrutinise, investigate and secure improvements in public authorities' compliance with environmental law, the effectiveness of environmental law, and the way environmental law is being implemented and applied in Scotland will help to ensure that environmental justice is effective and sufficient. ESS is also providing advice and information on how individuals and groups can make representations, and working with individuals and groups as they develop and submit representations. Since the establishment of ESS, there have been several investigations launched following representations that have been made by individuals and groups, and there is a general acknowledgement that ESS is more accessible and responsive than previous arrangements.

4.4 Human Right to a Healthy Environment

The proposed recognition and inclusion of the human right to a healthy environment in the Human Rights Bill^[23] is intended to provide additional methods in which groups and individuals can hold public authorities to account for their actions which impact the environment. This is widely appreciated as a means to enhance access to justice, and will help deliver environmental justice and hold public authorities to account.

We have committed to introducing a new Human Rights Bill which will strengthen domestic legal protection of international human rights by making them enforceable in Scots law. The Bill is intending to incorporate rights from four international human rights treaties, and will also recognise and include the human right to a healthy environment. The right has been recognised and introduced in some form in more than 100 countries, primarily via their constitutions, and was recognised by the UN General Assembly in July 2022^[24].

In countries where a right to a healthy environment has been recognised in law, it is generally agreed that this has helped to raise awareness of the interconnected and mutually reinforcing nature of realising people's human rights and ensuring a healthy environment in which to live, work and play. This has helped raise the profile and importance of environmental protection and provided a basis for the enactment of stronger environmental laws. Evidence suggests that where, a right to a healthy environment is recognised in law, enforcement of that right through the courts has helped to provide a safety net to protect groups and in some cases individuals against gaps in statutory law or poor environmental practice and has created opportunities for better access to justice^[25].

A human right to a healthy environment will help to build on already existing goals in Scotland to promote a healthy and sustainable environment for everyone. The right is understood as inherently linked to the realisation of other rights, such as the right to health and the right to an adequate standard of living, to be incorporated in the Human Rights Bill. Our development of the right will be guided by the underpinning international framework including the UN Framework Principles on Human Rights and the Environment, the Aarhus Convention, and other guiding materials provided at the international level.

4.5 Exempting Aarhus cases from court fees in the Court of Session

In response to some of the concerns raised about legal costs, in July 2022, following a public consultation, environmental cases within the definition of an "Aarhus case" are exempt from court fees in the Court of Session^[26].

4.6 Protective Expenses Orders regime

A system of Protective Expenses Orders ("PEOs") is available for environmental appeals and judicial reviews in the Court of Session. An applicant can apply for a PEO, which the court can grant if satisfied that the individual has a sufficient interest in the issue, and the proceedings would otherwise be 'prohibitively expensive'. If a PEO is granted, cost caps will apply, restricting the applicant's liability in expenses to the respondent to £5,000 and the respondent's liability to the applicant to the sum of £30,000. Both of those caps can be altered if the court is persuaded that it is appropriate to do so. Since their introduction in environmental cases in 2013, a relatively small number of PEOs has been applied for.

The Scottish Civil Justice Council, a statutory body independent of the Scottish Government, is carrying out a review of the Court Rules governing the PEO regime.

4.7 Commitment to introduce legislation to reform legal aid

The Scottish Government has committed to working towards Scottish Legal Aid reform which will consider extending legal aid availability to "legal persons", such as NGOs, and also facilitate more targeted provision of legal aid services by area of law and/or by geographical location. It is intended that legislative reform be brought forward during this Parliament. The Scottish Government has committed to retain a demand-led legal aid fund.

4.8 Other initiatives for environmental cases

There are a number of initiatives that have been introduced and are being introduced to improve the consideration of environmental cases including:

• establishing the environmental crime taskforce, which brings together experts to support delivery of our commitment to tackling environmental crime.
• improving standards of expert witness evidence in Scotland. In September 2020, Aberdeen University launched a programme for expert witnesses to give them the qualifications and experience to enable them to give expert evidence and the skills needed to be an expert witness.

4.9 Third party right of appeal in planning

We are aware that some stakeholders take the view there are inequalities in the right of appeal in planning and other consenting regimes because of the disparity of rights between applicants for planning or other permission and members of the public. In particular, they have called for the introduction of a third party right of appeal in the planning process to give members of the public the right of challenge over planning decisions and create what they consider would be a fairer process.

The Scottish planning system is already inclusive, engaging all interests as early and effectively as possible. The planning system allows the public to input into and influence the process and decisions, including new and enhanced opportunities introduced recently, but it also needs to balance such representations with other issues and views of other stakeholders. All parties also have recourse to the Courts to challenge a point of law. Local authorities and Scottish Ministers are also ultimately accountable for the decisions they make in relation to planning decisions.

Third party rights of appeal were also considered by the Scottish Parliament during the passage of the Planning (Scotland) Act 2019^[27]. The amendments seeking to introduce third party rights of appeal were considered by parliament, but were not passed. Our position is that an administrative third party right of appeal is not required in the planning system for compliance with the Aarhus Convention.

4.10 Conclusion

As set out in chapter 2, the Scottish Government does not see any strong argument for major reforms to the system of justice on environmental matters. We do, however, believe that it is possible to enhance access to justice within the current arrangements, including in response to concerns raised about compliance with the requirements of the Aarhus Convention. This chapter has described a number of measures that are already under development, and we shall continue to seek ways to enhance access to justice.

The proposed recognition and inclusion of the human right to a healthy environment presents an opportunity for an important change in our understanding and protection of the environment for individuals and communities. The intention is that the Scottish Government, and other public authorities exercising devolved public functions, will have to demonstrate that they are protecting, respecting and fulfilling the right in their policies and regulatory schemes, and individuals will gain new routes to seek redress.