Scotland needs a wider debate over environmental justice

Forest - credit: PA

“Justice in the UK is open to all, like the Ritz Hotel” – Tom Bingham’s aphorism perfectly captures the position concerning access to the courts to enforce environmental laws in Scotland. Pocket depth is key. Developments in the judicial system have been made to address this (with more on the way), but they have been too few and lacking in ambition. The contrast between the experiences of Donald Trump and his opponents in the courts illuminates this failure to provide access to environmental justice.

Perturbed by the prospect of a wind farm spoiling the view from his Aberdeenshire golf course, the famously litigious Trump ‘lawyered-up’. His challenge failed in the UK Supreme Court in late 2015 (following two unsuccessful hearings in the Scottish courts), prompting Alex Salmond’s charming jibe that Trump was a “three time loser”.

The cost was more than reputational. Judicial review – the main mechanism for making environmental legal challenges in Scotland – is raised in the Court of Session, requiring expensive advocates and court fees.

Additionally, the general rule is that the loser pays the winner’s costs. The peculiarities of the Scottish Legal Aid Regulations mean that public funding is unavailable for most environmental cases. This blend of uncertainty and unaffordability (costs can run into six figures) makes recourse to the courts unpalatable for most.

Small change for the Trump Organisation, which was able to pursue the challenge to exhaustion. Not so for his opponent. In 2010, Menie resident Molly Forbes went to court to have work suspended on the golf course, claiming that she had not been given the opportunity to participate in the Environmental Impact Assessment (as required by law).

Forbes was unsuccessful at her first hearing, and was left liable for her own legal costs and her opponents’ – reported to be up to £50,000. As a single pensioner in Scotland her appeal ended there. Unenticed by Mrs Forbes’ offer to pay at a rate of 1p per week, the Trump Organisation eventually agreed not to seek costs.

So what? She sought the use of the courts of her own free will. Her claim failed, would it not be unfair to force her opponents to pay? Unless access is carefully rationed, do we risk flooding the courts with ‘NIMBYs’ who will clog developments and strangle economic growth?

As Lord Neuberger (President of the Supreme Court) explains, “unless… a right to protection against abuses or excesses of the state, or a right against another citizen, is enforceable, it might as well not exist”.

Access to justice is crucial for citizens to realise their rights. Accessible courts allow the public to ensure that state and private actors act lawfully, and ensure that environmental laws are upheld in the face of commercial and short-term pressures. Without people being able to give the environment a voice, it dies in silence. Litigation can also assist the development of environmental law by clarifying ambiguities and gaining publicity for environmental problems to assist political remedies.

Notwithstanding these arguments, the Aarhus Convention commits Scotland to provide access to environmental justice. Human rights are at the heart of this text, which protects the right to live in a decent environment. It promotes participatory, environmental citizenship – requiring states to ensure that members of the public are able to access procedures to challenge acts and omissions which breach national environmental laws, and that such procedures are not “prohibitively expensive”.

In recognition of Aarhus, Scotland has created a system of ‘Protective Expenses Orders’ (PEOs). Successful applicants have liability for their opponent’s costs capped to a maximum of £5,000; a reciprocal ‘cross-cap’ is also created where the opponent faces only £30,000 of liability for the applicant’s costs if the applicant wins.

A PEO does not necessarily make litigation affordable, but allows a litigant to budget - an improvement on the pre-existing position. It insulates from the ‘chilling effect’ of open liability for opponents’ legal costs. Scotland also stands in stark contrast to the rest of the UK in terms of executive attitudes to PEOs – the legislator’s axe hangs over similar protective costs mechanisms following consultations to restrict equivalent schemes in England, Wales and Northern Ireland.

Yet costs remain a barrier in Scotland. The Aarhus Convention Compliance Committee (tasked with policing implementation) found that Scotland was in breach of the not ‘prohibitively expensive’ requirement in October 2015.

Recent developments give cause for cautious optimism. The Scottish Government recently held an environmental justice consultation, designed to meet the SNP’s 2011 manifesto commitment to publish an options paper on the creation of an environmental court.

An odd document, and not an options paper by traditional definition. As one respondent (Ian Cowan) noted, the document is self-congratulatory and lacks options. It details several developments in the justice system made since 2011, and ends by essentially asking, ‘after all we’ve done, do you really think Scotland needs an environmental court?’

Concerningly, it mentions Scotland’s “ongoing compliance” with the Aarhus Convention - a curious conclusion given the clarity of the Compliance Committee’s findings. This is not (just) pedantry: a finding of non-compliance is a strong argument for change, and vice-versa.

Many countries have specialist environmental courts (Australia, Canada, USA and several EU states), they are nothing new. If carefully designed, such a development could catalyse access to environmental justice in Scotland. Faster, more efficient courts can reduce costs; and courts can be given powers to adopt cost rules which improve access.

Access to justice will never be sexy. Its quiet importance to a flourishing democracy and a healthy environment is easily overlooked – but this topic needs a serious public debate. The limitations of the status quo need recognition (they extend beyond the issue of costs) and demand sustained political attention towards devising solutions.

Holyrood’s Securing Access to Environmental Justice event could not come at a better time.

Ben Christman is finishing a PhD in fuel poverty law and energy justice at Queen's University Belfast and doing a Diploma in Professional Legal Practice at the University of Edinburgh​