The Scottish government has ‘abjectly failed’ over ordinary people’s access to justice

Environmental charities including the RSPB and the Environmental Rights Centre for Scotland (ERCS) have called out the Scottish government’s ‘abject failure’ to meet the access to justice requirements of the UN Aarhus Convention.

Scottish government is failing over access to justice

In 2021, the Convention’s compliance committee gave Scotland six recommendations to remove barriers that are preventing people from taking environmental cases to court. The UK’s final progress report confirms none of the recommendations have been met and it remains ‘prohibitively expensive’ to access justice.

Scotland, as part of the UK, is a signatory to the Aarhus Convention, a UN treaty that guarantees people’s rights to access information, participate in decision-making and access justice in environmental matters.

Following the most recent ruling of non-compliance by the Convention’s governing bodies in 2021, the Scottish government was required to make access to justice affordable, reform time limits for judicial review and reform planning permissions by the deadline of 1 October 2024.

Yet the UK’s Final Progress Report to the Aarhus Convention Compliance Committee (ACCC) confirmed that Scotland has made only minor modifications to legal expenses and no concrete commitments for future reform.

Comments on the UK report, submitted jointly by the RSPB, ERCS and Friends of the Earth England, Wales and Northern Ireland, have been scathing in their assessment of government action to date, with signatories remarking that they are ‘deeply concerned and frustrated that, as a whole, the UK has failed to make any tangible progress’.

Allowing corporations to act with impunity

For the past two years, Scottish legal experts have been raising concerns about the Scottish government’s lack of progress in removing barriers to environmental justice. Campaigners held a rally outside the Court of Session to mark the 1 October deadline, with speakers urging the Scottish government to ensure citizens can hold public bodies and polluters to account for environmental harm.

Access to justice remains unaffordable for two main reasons.

First, it is incredibly difficult to access legal aid for environmental cases.

Second, the ‘loser pays’ rule means that litigants are liable to pay their opponents fees if they lose their case which can cost tens of thousands of pounds.

The ACCC has clearly stated that this causes a ‘chilling effect’ – deterring individuals and organisations taking legal action, even if they have a strong case to do so.

Shivali Fifield, Chief Officer at ERCS, said:

Upholding our environmental rights in court is the ultimate guarantee of the rule of law. Without this credible threat, polluters can act with impunity.

Scotland, as part of the UK, has been a signatory to the Aarhus Convention for nearly two decades, but despite repeated warnings from legal experts and campaigners, it has a record of abject failure when it comes to delivering the reforms needed to guarantee access to justice for environmental cases. After years of broken promises, it would be easy to think that the government is threatened by adhering to international law and making access to justice affordable. If they truly believe in community empowerment and a just transition to net zero, they must make our legal system work for people and planet.

Aedán Smith, Head of Policy & Advocacy at RSPB Scotland, said:

Scotland is one of the most nature depleted countries in the world and we are continuing to lose nature, with 1 in 9 species at risk of national extinction. Yet, despite welcome progress to improve some legal protections for nature over recent years, it remains extremely difficult for individuals and community groups to challenge poor decisions. The Scottish Government must urgently address this to ensure the laws it has introduced can be implemented effectively and as intended.

Featured image via the Canary