By Emilia Hanna
EARLIER this month, draft findings from a UN body highlighted that Scotland’s legal system is breaking international environmental and human rights law, due to the extremely high costs of legal action. The UN body, the Aarhus Convention Compliance Committee (ACCC), called for law reform "as a matter of urgency". The ACCC is expected to finalise its findings any day now.
Scotland’s legal system is supposed to allow the public to challenge breaches of environmental laws and decisions before a court or independent body in a way that is affordable and accessible. This concept of "access to justice" is a crucial part of our democracy. It forms part of our human right to a healthy environment, guaranteed by the Aarhus Convention.
Costs to litigants going to court over the environment come from various sources, including expenses to cover their own legal team and court fees, and liability for the other side’s expenses if they lose. These costs can and often do run into the tens or hundreds of thousands of pounds, pointing to the need for a complete overhaul of the system.
Friends of the Earth Scotland has been sounding the alarm bell on Aarhus compliance since 2010. The ACCC first made its findings that Scotland was breaking environmental law in 2014 and has repeatedly made similar findings since. The last decade has been a lost decade, with the Scottish Government claiming compliance with its Aarhus obligations yet failing to make sufficient progress towards in the eyes of the ACCC.
The Government is now showing signs of shoring up its ambition on human and environmental rights. This March it welcomed recommendations to introduce new human rights laws which will enshrine the human right to a healthy environment, including the rights already guaranteed by the Aarhus Convention, into Scots law. This is good news; that being said, it is vital that the Government act on the findings of the ACCC now and not allow the new process of bill writing to stall the overdue need for reform. The Scottish Government has also promised to consult on the establishment of an environmental court, expected towards the end of 2022. These opportunities for environmental law reform are mutually reinforcing.
The Environmental Rights Centre for Scotland believes that the best way to enforce the human right to a healthy environment is via the establishment of a new specialist environmental court or tribunal. In addition to being low-cost and accessible, the hearing of environmental cases in one place would allow judges and to develop expertise in interpreting environmental law. Specialist technical members could also be appointed to offer additional expertise. Scotland would not be alone in this: there has been a recent explosion in environmental courts, with nearly 1500 worldwide.
At a time when we are exceeding our planetary limits, the need for an effective human right to a healthy environment, and a court system and a court system which enables the public to stand up for and protect the environment, is more pressing than ever.
Emilia Hanna is Advocacy Officer for the Environmental Rights Centre for Scotland. www.ercs.scot
Why are you making commenting on The Herald only available to subscribers?
It should have been a safe space for informed debate, somewhere for readers to discuss issues around the biggest stories of the day, but all too often the below the line comments on most websites have become bogged down by off-topic discussions and abuse.
heraldscotland.com is tackling this problem by allowing only subscribers to comment.
We are doing this to improve the experience for our loyal readers and we believe it will reduce the ability of trolls and troublemakers, who occasionally find their way onto our site, to abuse our journalists and readers. We also hope it will help the comments section fulfil its promise as a part of Scotland's conversation with itself.
We are lucky at The Herald. We are read by an informed, educated readership who can add their knowledge and insights to our stories.
That is invaluable.
We are making the subscriber-only change to support our valued readers, who tell us they don't want the site cluttered up with irrelevant comments, untruths and abuse.
In the past, the journalist’s job was to collect and distribute information to the audience. Technology means that readers can shape a discussion. We look forward to hearing from you on heraldscotland.com
Comments & Moderation
Readers’ comments: You are personally liable for the content of any comments you upload to this website, so please act responsibly. We do not pre-moderate or monitor readers’ comments appearing on our websites, but we do post-moderate in response to complaints we receive or otherwise when a potential problem comes to our attention. You can make a complaint by using the ‘report this post’ link . We may then apply our discretion under the user terms to amend or delete comments.
Post moderation is undertaken full-time 9am-6pm on weekdays, and on a part-time basis outwith those hours.
Read the rules here