Revealed: How Scots ministers have been breaching international law for ten years

The Herald can reveal that Scotland has since 2011, been found to be non-complaint with Article 9 of the Aarhus Convention, which is a binding piece of international law that guarantees the right to a healthy environment.

The UN council which adopted the convention in 1998 is being told that the Scottish Government is still failing to meet its legal responsibility which requires it “to remove or reduce financial barriers to access to justice”.

The main way to challenge decisions, developments or policies which may breach environmental laws is by raising judicial review proceedings in the Court of Session.

But presently it still incurs a huge financial risk which conservation charities have to think and long and hard over as environment cases generally do not qualify for legal aid.

It comes as environmental groups continue to raise concern that the nation is not doing enough to protect nature in Scotland.

READ MORE: COP26: Scots 'healthy environment' human rights bid — as targets missed to stop species extinction

Official analysis by Scotland's nature agency shows that Scotland has also failed to meet 11 of 20 agreed UN targets to protect the environment while one in five animals and plants deemed important to the nation by ministers are under threat.

The statutory Scottish Biodiversity List reveals threats to many of the 2105 land animal, plant and marine species deemed of principal importance by the Scottish Government.

A NatureScot analysis found that 441 (21%) were classed as threatened, and 222 (11%) as near threatened.

Emilia Hanna, advocacy officer for the Environmental Rights Centre for Scotland said: "The last decade has been a lost decade, with the Scottish Government claiming compliance with its Aarhus obligations yet failing to ensure access to justice in the eyes of the Aarhus Convention’s governing institutions.

"Scotland’s legal system has repeatedly been found to be non-complaint with Article 9 of the Aarhus Convention, which is a binding piece of international law that guarantees the right to a healthy environment.

"Article 9 makes provision for Access to Justice, which means the ability to go before a low-cost court or tribunal to challenge decisions, developments or policies which may breach laws or rights.

"It is a crucial part of the rule of law because laws can only make a difference if they can be enforced and allow for accountability. "Exorbitant judicial expenses are preventing people from taking action to use the law to protect the environment.

"Everyone in Scotland deserves to live in a healthy environment. Nature needs us to be able to use the law to defend it, and we must have the ability to go to court to hold public bodies to account where necessary. Faced with the climate and nature emergencies this is more important than ever and we have already wasted too much time. The environment is in trouble and the rule of law needs to step up to the mark."

Conservation charity John Muir Trust has spoken out of its concerns about the rights to environmental justice after its attempt to challenge a windfarm development four years ago led to it facing a near £700,000 bill, although this was eventually negotiated down to £275,000.

The Trust settled out of court with the Perth-based energy company SSE and the Scottish government after its attempt to block a wind farm through a judicial review near Loch Ness failed.

The dispute was over a wind farm at Stronelairg, which is in wild land in the Monadhliath mountains near Loch Ness. Consisting of 67 wind turbines, it was proposed by SSE in 2012 and granted by the Scottish government in June 2014.

Ministers are under new pressure to create a new one-stop-shop Environmental Court for Scotland.

Mike Daniels, head of policy and land management at the John Muir Trust said their case highlighted the fundamental issues there were in challenging environmental issues using the Scottish justice system.

"The ‘David versus Goliath’ nature of charities taking on multinational corporations and the associated financial risks is a major disincentive against taking legal action on environmental grounds and therefore a potential injustice that an environmental court should right. Justice should be available to all regardless of financial ability," he said.

The Trust and other environmental charities are also calling for an Equal Right of Appeal.

Currently, only applicants have the ability to appeal refusals of planning permission.

An Equal Right of Appeal would give charities and local communities the opportunity to appeal planning approvals.

The Scottish Environment LINK (SEL) of more than 30 conservation groups says its recent survey conducted by ScotPulse showed that people of Scotland believe that better environmental protections would make the nation a better place to live, benefit the economy and help protect the country from the effects of climate change.

It said last month that while the SNP-Greens deal includes a commitment to legally binding nature recovery targets - there needed to be more urgency in taking action.

Two years ago, the Scottish Government countryside agency, then known as the Scottish Natural Heritage (SNH), said it was failing to meet 13 of the 20 targets - now it is 11.

READ MORE: Revealed: the rare Scots wildlife at risk of extinction

A host of environmental groups then contacted MSPs and the Scottish Government to express their disappointment at the failure to meet most targets describing it as a "wake-up call". They also criticised the positive spin being put on progress.

The then environment minister, Roseanna Cunningham MSP, at that point insisted that Scotland was “leading the way” in its work to protect and increase biodiversity and was “on track” to meet 2020 targets.

The 'on track' line was repeated in in January, last year, when conservation groups warned some of Scotland’s most famous wildlife, including Atlantic salmon, the capercaillie and the freshwater pearl mussel, could be at risk from climate change.

Ann Coleman, resident of Greengairs and ERCS supporter who has been fighting environmental injustice for over twenty years said: “We’re not equal partners in the process of what happens to us and the local environment. We have no accountability."

She said they had considered to judicial review to fight plans for proposed incinerator when it was going through planning but campaigners were put off by cost implications.

The controverisal £250 million incinerator and waste recycling plant at Greengairs, North Lanarkshire was originally granted by planners in 2009 after permission was given despite receiving more than 1000 objections on health, environment and transport grounds.

“We’ve been living with the largest capacity landfill site on our doorstep in Europe for decades, along with opencast coal mining," she said.

“We have no voice. We have no right. We cannot protect ourselves.

“An environmental court for Scotland is essential. We need to have the right to access justice. The environmental court needs to be affordable, easy for the public to approach for help, advice, and to take action.

"It must be affordable because at the moment the system is so geared against us that it’s impossible to get justice. The environmental court or tribunal needs to have an independent panel, “The public need an environmental court because it will give us the power to draw harmful developments to the attention of the government in a way that they will have to listen.”

“People were terrified about the potential cost implications of taking a judicial review. These were ordinary working people who have not got huge incomes and were not limited companies so stood everything to lose.”

A Scottish Government spokesman said: “The Scottish Government’s commitment to addressing the twin challenges of biodiversity loss and climate change is unwavering.

“To maintain high environmental standards we have put in place arrangements to establish Environmental Standards Scotland as the new governance body which has the ability to keep under review the implementation of international obligations relating to environmental protection legislation and advise the Government accordingly.

“Scotland was the only jurisdiction in UK to avoid a governance gap when role of EU Commission ended at EU Exit and are the first to place our new standards body on a statutory footing.”