Scottish Government accused of misconduct over Scottish environmental protection



The main way to challenge decisions, developments or policies that may contravene environmental law is to bring judicial review proceedings in the Court of Parliament.

But even today, conservation charities still have to think long and hard, considering the significant financial risks, as environmental litigation is generally not covered by legal aid.

Read more: Scotland fails to meet 11 targets to prevent species extinction by 2020, despite ministers’ claims they are ‘on track’

Scotland has been found not to have complied with Article 9 of the Aarhus Convention, the binding international law guaranteeing the right to a healthy environment, since 2011. In particular, Scotland and the United Kingdom, which adopted the Convention in 1998, remain unfulfilled in their legal responsibility to seek to “remove or reduce economic barriers to access to justice”.

Groups including ERCS also argue that members of the public should have the same rights of appeal as those applying for planning permission (usually developers).

ERCS has expressed concern that the Scottish Government is still in breach of its legal obligations despite a review into the effectiveness of its environmental governance.It is precisely these “exorbitant” legal costs that ERCS is states that this precludes seeking judicial review through the courts on this issue. That failure.

ERCS chief executive Dr Shivali Fifield told ministers there were grounds for a judicial review over what she described as “deep concerns” about the quality and content of the review.

The ERCS will establish a dedicated environmental court to increase access to justice and “address the current fragmentation in redress avenues and develop judicial expertise to increase effectiveness and efficiency.” argues that it should.

But they told ministers they had failed in their legal duty to properly consider the possibility of establishing it.


The Scottish Government’s review relates to its legal obligations under section 41 of the UK Withdrawal from the European Union (Continuance) (Scotland) Act 2021 to consult on whether access to justice legislation on environmental matters is effective and sufficient. It was announced. and whether specialized courts will enforce it.

ERCS sought a senior lawyer’s opinion on ministers’ handling of the review, but John Campbell KC said it was “neither appropriate nor sufficient” and did not answer the question of whether a special tribunal would strengthen governance. , he said.

This comes from an analysis backed by Nature Conservation Scotland which found that wildlife north of the border is ‘at risk’, with one in nine plants and animals at risk of extinction. It was announced in response.

An analysis of the state of nature in Scotland, supported by Scottish government agency NatureScot and published by a partnership of more than 50 conservation organizations, found that the risk of extinction for some groups, such as vertebrates, is much higher than a third (36.5%). It warns that the price is high. ).

The most notable decline was in familiar bird species such as swifts, great sandpipers, and lapwings, which declined by more than 60%. Kestrels have declined by more than 70%.

Herald: Kestrel found in a box at Wisbech warehouse.

Between 1986 and 2019, populations of the 11 Scottish breeding seabird species monitored each year declined by 49%.

Dr Fifield said the Scottish Government’s review “does not include analysis of the range of deep-seated environmental governance issues that exist in Scotland”.

She said these issues include “lack of enforcement of environmental laws, lack of access to justice in environmental matters, and lack of scrutiny of enforcement of environmental laws.”

He assumes that the establishment of the Scottish government’s monitoring group Scottish Environmental Standards has closed the “environmental governance gap” left after Brexit, but he is unable to analyze its efforts in detail. said.

Campbell says the existence of this system, coupled with the idea that no one should pursue litigation in court, does not guarantee compliance with the Aarhus Convention guaranteeing access to justice.

And ERCS says its investigation has not yielded any recommendations to correct Aarhus’ continued violations.

The Convention, which entered into force in 2001 and was ratified by the United Kingdom four years later, is the world’s most far-reaching treaty on environmental rights.

The law guarantees the public’s right to access environmental information, provides for public involvement in environmental decision-making, and by requiring the establishment of procedures that allow the public to contest environmental decisions. , which aims to foster greater transparency and accountability among government agencies.

ERCS says the Scottish Government should now set up a special committee or working group to properly consider the pros and cons of establishing an Environment Court.

A spokesperson said: [review] The report includes an analysis of a range of deep-rooted problems with environmental governance in Scotland, including a lack of enforcement of environmental laws, a lack of access to justice in environmental matters, and limited oversight of the enforcement of environmental laws. Not included.

“This document does not include an assessment of the environmental issues facing Scotland, such as water and air pollution, biodiversity and the climate crisis.”

The charity says it has not been able to identify “a clear causal link between environmental governance issues and environmental degradation”.

Last month, the Scottish Government admitted it was “falling short” of its climate change laws, failing to clarify how its ambitious emissions reduction targets would be compatible with major infrastructure investment.

Ministers were threatened with legal action by ERCS and the Good Law Project for possible breaches of the Climate Change (Scotland) Act 2009.

The bill states that when announcing major infrastructure investments, ministers must publish an assessment of how they will impact greenhouse gas emissions reduction targets.

However, lawyers for both organizations pointed out that no such assessment had been published of the Scottish Government’s infrastructure investment plans, more than two years after they were announced in February 2021.

In a written response, Scottish Government lawyers said ministers “now accept that the documents published to date do not meet the requirements of the Climate Change Act”.

The letter added: “Urgent work is underway on a remedy so that the mission can be fully fulfilled as soon as possible.”


He also called on organizations to refrain from filing judicial reviews until the situation is resolved, saying it was “premature”.

Ministers have been asked for further details by October 12 to clarify what they intend to publish and when. It is not yet clear whether there was any compliance.

A survey by Planning Democracy last year of 228 people, including 175 local councilors across Scotland, found that people felt they had little influence over planning decisions.

Approximately 65% ​​said they lacked opportunities to participate in planning decisions.

More than half (56%) feel generally negative about their ability to influence decisions. A third reported feeling like they had no influence over them.

Approximately 79% said that consulting and being heard by planners (the people who make important decisions about neighborhood development) is an important or very important issue.

A Scottish Government spokesperson said: “The Scottish Government is determined to protect and enhance the environment and to maintain and improve environmental standards. We recognize that there are a variety of ways to achieve that and have recently We held a consultation on the matter, which concluded on 13 October.We will publish our response after we have had sufficient time to consider the views raised through the consultation.

“The Scottish Government fully meets the requirements of the Continuance Act.”

It comes after an official analysis by Nature Conservancy found that progress in creating better conditions for flora and fauna in Scotland’s conservation areas is being reversed.

NatureScot has found that climate change, invasive species and overgrazing are hampering efforts to restore nature in protected areas.

The summer study warned that since 2016 there has been a “slow decline” in the number of environmental features that are in a “favorable state” or are recovering towards a “favorable state”.

These include not only geological features such as fossil beds and caves, but also habitats, species of plants and animals.

As of 31 March this year, more than three-quarters (76.4%) of nature in Scotland’s protected areas had recovered or was in good condition.

This is down from 77.9% in 2022 and down 4 percentage points from 2016, when it peaked at 80.4%.

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Two of the biggest causes of unfavorable conditions are overgrazing, especially by wild deer, and the introduction of non-native species such as rhododendrons that kill forests.

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