Exclusive by Rob Edwards
SCOTLAND is facing a reprimand by the United Nations this week for failing
to give communities the power to fight ‘David and Goliath’ battles against
damaging building developments by big companies.
A report to the UN on access to environmental justice criticises the
Scottish Government for breaching commitments to ensure that legal
challenges to property, energy or other developers weren’t “prohibitively
expensive”.
Environmental campaigners have lambasted ministers for missing multiple
opportunities to make the system fairer. The Scottish Government, however,
insists that it has improved access to environmental justice.
Scotland, as part of the UK, is bound by the UN’s 1998 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 September 11-13. 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.
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.
“For too long taking legal action to protect the environment in Scotland
has been a luxury that effectively only the rich can afford. The chances of
getting a ruling from the Scottish court system that actually fixes the
harm is slim.”
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.”
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