(Non)-developments in environmental justice in Scotland

An options paper without any options

The ‘options paper’ on the creation of a Scottish environmental court was eagerly awaited. Yet when it arrived, in March 2016, the ‘Developments in environmental justice in Scotland’ ⁵ consultation document had no options. Certain topics traditionally thought of as key to ‘environmental justice’ – such as land use planning – were absent. What it contained instead was a list of the Scottish Government’s achievements in environmental governance, followed by three questions which concluded by asking if there should be a specialist environmental court or tribunal.

On environmental crime, for example, it listed the developments in this area. Some are laudable, such as the development of a specialist wildlife and environmental crime unit by the Crown Office and Procurator Fiscal Service. Having read this consultation document, those unfamiliar with the topic would be forgiven for thinking that Scotland had reached a state of environmental justice nirvana. There was no analysis of the remaining problems in this area, but significant challenges remain. In 2015, Tingay found a consistent under-reporting of wildlife crime, a failure of the police to investigate a significant minority of incidents reported to them, low rates of prosecution and conviction and a lack of confidence in the judiciary to impose meaningful deterrent sentences. ⁶

The result of this limited consultation was that a number of responses were critical of the 2016 document itself. ⁷ In September 2017, the ‘analysis and response’ from the Scottish Government rejected the case for creating an environmental court in Scotland. ⁸ I have explained its poverty of reasoning elsewhere. ⁹

Chief amongst the reasons given for rejecting an environmental court were two claims: (a) that there would not be enough cases to justify it; and (b) the uncertainty surrounding Brexit. A specialist court’s case load would depend on a number of factors, for example, provisions for its jurisdiction and accessibility –the Scottish Government does not hold figures on the number of environmental cases lodged annually. ¹⁰ In the absence of any options for the court or information on existing numbers of cases, the conclusion that there would not be enough cases is unfounded. The uncertainty surrounding the constitutional arrangements that will emerge when the smoke clears from the Brexit negotiations and the obvious threats posed by Brexit to environmental governance ¹¹ seem strong reasons for strengthening domestic arrangements in the interim.

The formal consultation motions were carried out; yet the topic and the consultation responses were given little consideration. It seemed a mechanical, pre-determined exercise with little buy-in from government.

Aarhus denialism

The most striking feature of this exercise was less immediately obvious, and concerned Scotland’s compliance with the access to justice provisions of the Aarhus Convention.

The convention gives teeth to the human right to live in a clean and healthy environment by recognising citizens’ procedural rights to access information, participate in decision making, and access justice in environmental matters. Article 9 requires that NGOs and members of the public must be able to challenge situations where their convention rights are denied or national environmental laws are broken.

Scotland’s compliance with Article 9 is under scrutiny. The convention’s 2014 Meeting of the Parties found that Scotland did not comply with the Article 9(4) requirement that environmental litigation is ‘not prohibitively expensive’, or the Article 9(5) obligation to consider the establishment of appropriate assistance mechanisms to remove or reduce financial and other barriers to access to justice. ¹² The Aarhus Convention Compliance Committee (the ACCC) then issued two progress reviews in 2015 and early 2017 – finding that Scotland remained non-compliant. ¹³ The September 2017 Meeting of the Parties largely repeated its 2014 conclusion. ¹⁴

Securing Article 9 rights should have been central to this consultation. However, despite the clear and repeated findings of non-compliance, the 2016 consultation demonstrated no recognition of Scotland’s Aarhus problem. Conversely, it made passing mention of Scotland’s ‘ongoing compliance’ ¹⁵ with the Convention. This phrasing implies compliance pre- and post-consultation. It suggests that the Scottish Government took no account of the two decisions of the Meeting of the Parties and the two progress reviews of the Compliance Committee.

This indifference then intensified in 2017, as the Scottish Government’s ‘analysis and response’ went further. The ‘Scotland is Aarhus Convention-compliant’ position was largely repeated. ¹⁶ A new tactic was then attempted, as the analysis and response stated:

The Aarhus Convention required the treaty parties to establish “optional arrangements of a non-confrontational, non-judicial and consultative nature for reviewing compliance with the provisions of the Convention”. In order to meet this obligation, the Aarhus Convention Compliance Committee (ACCC) was established. The ACCC is not a judicial body and its findings do not equate to court findings… ¹⁷

This approach neglects that the ACCC is a critical part of the convention’s architecture of accountability. ¹⁹ As stated in Decision I/7 of the Meeting of the Parties, the ACCC was established ‘for the review of compliance by the Parties with their obligations under the Convention’. ²⁰ Members of the public can send it ‘communications’ when their rights are not being upheld. It takes evidence from both sides, deliberates and then produces written findings on whether there has been non-compliance.

Its nine members are expert environmental lawyers from across the United Nations Economic Commission for Europe. They include senior legal practitioners, academics and three professors. ²¹ The ACCC is well-respected – Pirker notes that its decisions have produced ‘a considerable and growing body of non-binding, but solid legal reasoning on access to information, public participation and access to justice in environmental matters’. ²²

International law inconsistency

A brief comparison to another area of international human rights protection is useful to illustrate the Scottish Government’s inconsistent approach to international law. The UN Convention on the Rights of Persons with Disabilities 1995 has an equivalent committee – the Committee on the Rights of Persons with Disabilities – also tasked with monitoring implementation of its parent convention. In 2016, following an inquiry into UK welfare reforms since 2010, it rebuked the UK Government for adopting policies which led to ‘grave or systematic violations of the rights of persons with disabilities’. ²³ The Scottish Government recognised these findings, added its own criticisms of the UK Government’s welfare reforms and has since developed remedial policies including an ongoing process to design a new human rights-based social security system. ²⁴

It is difficult to reconcile the Scottish Government’s support for the findings of the UN-CRPD, with its neglect of those of the ACCC. Neither are judicial bodies whose findings equate to those of courts. The reasons for dismissing one, while approving the comments of the other, lie in political expediency. Resolving the problem of Aarhus compliance lies within the remit of the Scottish Parliament’s devolved powers; whereas violations of the rights of disabled people can be laid at Westminster’s door (social security powers were only devolved to Scotland in 2016). ²⁵

The dismissal of Scotland’s problem with the Aarhus Convention and those who draw attention to it reveals an erratic commitment to human rights and the rule of law. Developments in environmental justice in Scotland and its counterpart analysis and response document contained no options as per the SNP’s manifesto commitment and there was no serious consideration of any of the problems of environmental governance in Scotland or the reasons for reform. A recognition of non-compliance and a deep examination of the structural problems of the civil justice system are needed to meet the demands of international law.