Many people in Scotland suffer from a polluted environment, particularly those in poorer communities, and, across Scotland, environmental crises of climate change, biodiversity loss, toxic air and plastic pollution are becoming ever more pressing. There is a growing and increasingly complex body of environmental law in Scots law – some of it world-leading – and at the EU and international level that attempts to address aspects of these problems.
However, the Scottish legal system makes it extremely difficult for citizens and NGOs to hold government and private bodies to account over harm to the environment. Scotland has a distinct and separate legal system from the rest of the UK and has lagged behind England and Wales in developing a public law culture that enables people and NGOs to access justice and pursue public interest litigation in general and specifically in relation to the environment. What is more, to date the Scottish Government has taken a half-hearted, piecemeal approach to implementing the UNECE Aarhus Convention’s requirements on access to justice, resulting in repeated rulings of non-compliance from the Convention’s Compliance Committee.
In March 2018, Scottish Environment LINK commissioned a feasibility report , which found evidence that, in Scotland, people and communities struggle to identify their legal rights and how to exercise them. Ten detailed case studies demonstrate a breadth of issues relating to unenforced planning and environmental law, and the barriers people faced in trying to access justice for their communities and the environment. These include communities blighted by opencast mining; landfill sites; incinerators; loss of greenbelt and public amenity; air and water pollution. The playing field is very far from level when it comes to engaging in the planning system – the route by which people generally encounter environmental law – with the resources and experience developers can rely on far outweighing what communities can hope to access.
Significant barriers of cost, uncertainty and technicalities exist for professional environmental NGOs as well as communities and individual citizens in terms of exercising legal rights. Even environmental NGOs in Scotland have very limited legal capacity, with inhouse lawyers almost unheard of in the sector.
This is why Scottish Environment LINK is working to establish an Environmental Rights Centre for Scotland, as a means of tackling these interlinked, systemic problems. In July 2019, LINK was delighted to be awarded funding from the Joseph Rowntree Charitable Trust to set one up. This is funding to kick start the initiative over the next 3 years, and fundraising is underway to meet the funding gap in future years.
The work is overseen by LINK Legal Strategy Group who worked with LINK staff to appoint two new staff members: Shivali Fifield, ERCS Development Manager and Ian Cowan, ERCS Programme Manager. Both staff start in their new roles on 20 January 2019.
The purpose of this new centre is to:
• deliver public legal education enabling individuals, communities and eNGOs to understand better and access their legal rights and responsibilities in relation to the environment;
• offer advice and assistance on planning and environmental law to individuals, communities and eNGOs;
• advocate for reform for a legal system that is fit for purpose, including compliance with the UNECE Aarhus Convention, as environmental law becomes increasingly complex and environmental problems such as climate change, biodiversity loss and air pollution become increasingly pressing; and
• pursue strategic litigation where necessary to secure progress on key environmental issues.
In working to achieve this long term purpose, our short term plan is to establish a stand-alone SCIO (a form of Scottish charity) with its own Board of Trustees to oversee the work of the Centre. When this is up and running, management of the Centre will transfer from LINK to the new body.
At the same time, Shivali and Ian will focus on developing and agreeing a strategy for the Centre’s development, including its phased establishment and growth. It is clear that our purpose will not be achieved on day one! This strategy will also address the recruitment of Trustees and fundraising for the medium and longer-term.
Why do we need an Environmental Rights Centre in Scotland?
Environmental democracy in Scotland
There is a gap in access to affordable legal services in public interest environmental law in Scotland and this is one of the issues that leaves Scotland in breach of the Aarhus Convention. The Aarhus Convention aims to protect the human right to a clean and healthy environment. It recognises this right, and a corresponding duty for people “to protect and improve the environment”. Successive Scottish Governments have failed to address this is in a comprehensive or adequate manner.
Central to this is that affordability of advice and representation is the major barrier to access to environmental justice in Scotland. LINK’s Governance Matters report noted how the costs of environmental litigation have meant that most citizens or non-governmental organisations simply could not afford to take cases challenging the Government’s application of the law to the Court of Session – especially where taking such a case was likely to result in the need for an onwards appeal. For example, the John Muir Trust’s unsuccessful judicial review of the Stronelairg windfarm development led to the Trust owing £539,000 to the Scottish Government and developer SSE. This was eventually negotiated to £125,000.
Current problems with the planning system in Scotland also limit environmental democracy in Scotland: evidence collated in LINK’s Rhetoric to reality report show that communities feel excluded; the planning system is seen as biased in favour of developers; planning authorities take decisions contrary to their plan and their planners’ advice. Planning appeal rights in Scotland exist only for those making applications for planning permission. Applicants can appeal refusals of planning permission, whereas communities, who may be directly affected by planning decisions, cannot appeal permissions. The only route for communities to challenge planning decisions is through judicial review, which is unaffordable for all but a wealthy few. What’s more, judicial review is a largely procedural process which focusses on legality and does not address the substance of a decision. LINK member, Planning Democracy, argues for an ‘equal right of appeal’ – whereby communities should also have the right to appeal decisions which affect them.
There is also a looming environmental governance gap as we face Brexit and with it the loss of oversight of EU institutions such as the European Court. Given the unaffordability of and lack of environmental specialism in the Scottish Courts this poses a real risk. An Environmental Rights Centre can help advocate for robust environmental disputes mechanisms, including the option for a new Environmental Court for Scotland.
Promoting environmental protection and sustainability
Systemic substantive environmental problems persist in Scotland, particularly in relation to air and water pollution, wildlife crime and biodiversity. The 2019 State of Nature report reflects the scale of the issue in Scotland, to which an urgent response is required. In addition, there are a number of ongoing and impending constitutional developments, which require expertise and advocacy to protect and improve environmental law. These include devolution and the development of ‘Scottish environmental law’, the threats of lower environmental standards and a ‘governance gap’ after Brexit and the need for new fora to hear environmental disputes in Scotland.
While environmental law centres exist in England and Wales, Environmental law in Scotland is different. The unique legal situation in Scotland requires legal specialism – and effective law reform or campaigning work requires an understanding of the Scottish political context.
The UK Law Centre Network has contracted several research projects on the economic benefits of law centres. The 2014 ‘Funding for Law Centres’ report found that law centres in England, Wales and Northern Ireland deliver several positive economic outcomes. Their use of early intervention and advice avoids costs in the justice system by preventing court actions, and their use of negotiated solutions for clients helps to avoid the social costs associated with outcomes such as evictions, bankruptcy and forced deportations. It found that the pure fiscal benefits of law centres amount to at least twice the amount for which they are funded. In addition to this, it found that Law Centres create a number of non-quantifiable wider economic benefits to society.
Our aim in launching the new ERCS in January is to build a sustainable mechanism to address these issues at a time of crucial importance for the environment, not just in Scotland but across the world.
To find out more about the ERCS, click here.
Contributors to this article: Mary Church (Friends of the Earth Scotland), Dr Deborah Long (Scottish Environment LINK), and Lloyd Austin (LINK Honorary Fellow)