SCOTLAND and the UK has come under fire from a key member of a UN body tasked with upholding international law over an 11-year failure to provide a public right of challenge over decisions that would damage the nation’s precious environment, landscape and wildlife.
A coalition of campaign groups from Planning Democracy, Environmental Rights Centre for Scotland, Friends of the Earth Scotland and RSPB Scotland, have already submitted a formal complaint about the Scottish Government to the Aarhus Convention Compliance Committee (ACCC), the United Nations body tasked with upholding environmental rights saying there is a breach of international law.
Scotland and the UK has since 2011, been found to be non-complaint with Article 9 of the Aarhus Convention, which is a binding piece of international law that guarantees the right to a healthy environment.
They say that the Scottish and UK Government is in breach of the Aarhus Convention – an international agreement that sets out an obligation to ensure public consultation on decisions by the government or public sector that will impact on the environment.
The Compliance Committee will consider whether the Scottish Government is in breach of international law. It has the power to issue cautions if there is non-compliance.
The concern is that the Scottish and UK government is still failing to meet its legal responsibility which requires it “to remove or reduce financial barriers to access to justice”.
The main way to challenge decisions, developments or policies which may breach environmental laws is by raising judicial review proceedings in the Court of Session.
But presently it still incurs a huge financial risk which conservation charities have to think and long and hard over as environment cases generally do not qualify for legal aid.
It comes as environmental groups continue to raise concern that the nation is not doing enough to protect nature in Scotland.
Official analysis by Scotland’s nature agency showed that Scotland has also failed to meet 11 of 20 agreed UN targets to protect the environment while one in five animals and plants deemed important to the nation by ministers are under threat.
It has emerged that Eleanor Sharpston KC, curator for the UK on the committee has launched what campaigners say is a “blistering tirade” on the failures of compliance in the UK and Scotland.
Environmental Rights Centre for Scotland said that the criticism should be a “wake-up call”.
In a discussion in mid-December, Ms Sharpston condemned failures saying it was “beginning to sound like an old-fashioned gramophone when the needle has gotten stuck in a particular groove”.
She said: “This is the latest step in a very long chain… with a dateline going back to 2011.
“As far as the committee records have helped me on this, Turkmenistan and the United Kingdom share the unhappy distinction of being the oldest follow up procedures before the committee.”
Ms Sharpston, who was Advocate General to the Court of Justice of the European Union four four years to September, 2020 and was elected to the committee in 2021, said there had been “little forward progress, and there are some instances of backsliding”.
The UN body, which adopted the convention in 1998, was told last year that the Scottish Government is still failing to meet its legal responsibility which requires it “to remove or reduce financial barriers to access to justice”.
They say currently developers enjoy statutory appeal rights if planning permission for a development is refused.
But members of the public do not enjoy equivalent rights to appeal if a development is approved, even if it negatively impacts their health and environment, or if the decision-making process was flawed.
The only way to challenge decisions, developments or policies is by raising judicial review proceedings in the Court of Session which the Convention’s governing bodies have already ruled is “prohibitively expensive”.
Cases involving major developments that could affect the environment generally do not qualify for legal aid.
In October the Aarhus Convention Compliance Committee called for reform “as a matter of urgency” with “a plan of action, including a time schedule” to be submitted to it by 2022.
But campaigners say there has been no concrete reforms.
And Ms Sharpston said that plan was not even meant to be an end in itself.
She said: “It was meant to be a planning tool and it was meant to contain enough granular detail to get to grips with how each party concerned in each case proposes to move from the current situation to where they need to be to be in order to be in compliance and to do that by October 1, 2024.”
The groups in their complaint say the rights of challenge have been “ignored” by the Scottish Government.
They point to a 2021 ruling by the ACCC in Northern Ireland concluding that a lack of equal rights was in breach of the convention, and argue that similar recommendations must now be applied to Scotland.
Benjamin Brown, policy and advocacty officer for ERCS said: “The committee’s scathing criticism of the UK Action Plan – of which Scotland’s is a part – should be a wake-up call.
“Access to justice for environmental cases remains prohibitively expensive, and the Scottish government’s proposed reforms to address this are wholly inadequate.
“There is no longer any doubt: to deliver justice and achieve full compliance with the Aarhus Convention, fundamental changes to the legislative framework in Scotland are required.
“The government must now stop dragging its feet and fully implement the Committee’s recommendations.”
A Scottish Government spokesman said: “We have contributed to a UK Action Plan to address the gaps in compliance which have been identified the Aarhus Convention Compliance Committee recommendations which, specifically for Scotland, relate to the costs of access to justice on environmental matters.
“We are committed to introducing a new Human Right to a Healthy Environment as part of a Human Rights Bill, which will be a step change in the recognition of environmental rights in Scotland.
“Recommendations made in relation to planning apply across the UK and we are currently considering, along with the four other nations, the options that are available to these.”