September 20, 2017
UN point the finger
A fundamental principle of a civilised society is that everyone is equal under the law and that access to justice should be free. Or, at the very least, help should be freely available so that any financial barriers that do exist can be overcome. Last week, Scotland was ‘called out’ at a United Nations meeting for failing to fulfil some key requirements in this respect around access to environmental justice. Several cases were cited in which community interests have been badly compromised because of the costs involved. Another example of inequity within our planning system?
Scotland, as part of the UK, is bound by the 1998 UN Aarhus Convention on access to environmental justice. This requires governments “to remove or reduce financial barriers to access to justice”.
The convention’s compliance committee is reporting to a meeting of countries in Budva, Montenegro on 11–13 September. In a detailed analysis, its report concludes that Scotland “has not yet fulfilled” key requirements of the convention.
These are to ensure that the allocation of costs in court procedures “is fair and equitable and not prohibitively expensive” and to bring in “appropriate assistance mechanisms to remove or reduce financial barriers to access to justice”.
The reprimand follows a series of court cases in which those opposing controversial developments have been faced with massive legal costs. Last year John Muir Trust, which protects wild land, had to give up on appealing against a 67-turbine wind farm at Stronelairg near Fort Augustus to avoid legal bills of up to £500,000.
A birdwatcher, Marco McGinty, faced legal costs of more than £100,000 in 2013 after trying to stop a coal-fired power station being built at Hunterston in North Ayrshire. In 2010 Donald Trump was reportedly demanding up to £50,000 from pensioner, Molly Forbes, who was trying to protect her home from his golf course at Menie In Aberdeenshire.
For too long taking legal action to protect the environment in Scotland has been a luxury that effectively only the rich can afford
Friends of the Earth Scotland pointed out that the Aarhus Convention had enshrined environmental rights in international law almost 20 years ago, “The Scottish Government has abjectly failed to ensure that some of its most important provisions are incorporated into Scots law,” said head of campaigns, Mary Church.
“There have been a great many missed opportunities over the years to address the issue of access to justice for the environment as the Scottish Government overhauled the civil court system.”
The chances of getting rulings from the Scottish court system that fixed environmental problems were slim, argued Church. “For too long taking legal action to protect the environment in Scotland has been a luxury that effectively only the rich can afford.”
Helen McDade, head of policy at John Muir Trust, argued that the Aarhus reprimand confirmed what many concerned about the environment had found to their cost. “There is precious little access to environmental justice unless you have very deep pockets,” she said.
“The trust took a key case against the Scottish Government and won in the first instance. But having been refused protection against potential legal costs we could not afford to appeal to the Supreme Court.”
According to Clare Symonds from the campaign group, Planning Democracy, the public is effectively excluded from challenging decisions that damage the environment. “The Scottish Government has resisted taking any action to provide communities with substantive rights to appeal planning decisions,” she said.
Ministers had “banned” discussions on equal rights of appeal, she alleged. But giving people the same rights as developers “might restore people’s faith and confidence in the planning system”, she argued.
The Scottish Government pointed out that the Aarhus report welcomed “the significant steps taken to date” in Scotland. “We are committed to protecting environmental justice and welcome further measures to promote this,” said Cabinet Secretary for the Environment, Roseanna Cunningham.
“The Scottish Civil Justice Council has recently concluded a consultation on further enhancements to the regime of protective expenses orders that limits the costs faced by those bringing environmental cases to court.”
The government’s civil litigation bill would make the costs of legal action more predictable, she said. It would “extend the funding options for pursuers, and bring more equality to the funding relationship between pursuers and defenders in personal injury actions.”