Establish a dedicated Scottish Environment Court
Establish a dedicated Scottish Environment Court in Scotland to ensure public access to justice in environmental matters.
Scotland needs a dedicated Scottish Environment Court (SEC) to offer an appropriate judicial route to a remedy for environmental matters. Such a one stop shop would address the gaps existing in environmental governance in Scotland, both pre-existing and now evident following the UK’s exit from the European Union (EU), separation from the EU institutions, and the loss both of oversight by the EU Commission and access to the determination of the European Court of Justice. It would also help to address Scotland’s failure to comply with its duties under the Aarhus Convention (see policy on ‘Human right to a healthy environment’).
The four main reasons why a SEC is needed:
- environmental litigation is unaffordable – a situation which is in contravention of the Aarhus Convention. A SEC could be designed to ensure litigation is affordable and to improve access to justice. This is particularly necessary for marginalised communities. For example, ethnic minorities are more likely to live in poverty and be on lower incomes but are also more likely to live in urban areas where there is increased potential for infringement of environmental rights, for example, polluted air or noise pollution from motorways
- certain types of environmental litigation do not allow the courts to consider whether the substance of a law has been violated. This is the subject of an outstanding ‘communication’ being considered by the Aarhus Convention Compliance Committee and it is questionable whether this situation is compliant with the Aarhus Convention. A SEC could be given the power to carry out reviews based on the merits of a case
- environmental litigation is carried out in several different courts and tribunals in Scotland, resulting in a system which is fragmented and inefficient.1 A single SEC could achieve efficiency benefits by reducing the risk of having multiple legal proceedings arising out of the same environmental dispute by having multiple legal issues heard in the same forum, providing administrative costs savings and increasing convenience for the parties
- effectively resolving environmental disputes requires legal and scientific expertise. Judges in Scotland may not be exposed to environmental disputes on a regular enough basis to allow them to develop a specialism in this area. A SEC could appoint technical or scientific members to sit alongside judges – and would allow for judges to develop specialist expertise
There are various ways in which the SEC could fit into the existing Scottish Courts and Tribunals Structure:
- a new independent court
- extension of jurisdiction of existing court (e.g. Scottish Land Court)
- introduction of an Environment First Tier Tribunal
Following the Scottish Government’s flawed review of environmental governance arrangements, NGOs and independent experts have called on Ministers to establish a special committee or working group to revisit evidence for a dedicated SEC. The review of environmental governance was scrutinised by the Net Zero, Energy & Transport Committee in the Spring of 2024 and a government response to all the feedback received is still awaited at the time of writing.
For further information:
The clear and urgent case for a Scottish Environment Court, Environmental Rights Centre Scotland, 2023, https://www.ercs.scot/wp/wp-content/uploads/2023/03/Case-for-a-Scottish-Environment-Court_Gemmell_March-2023.pdf
Why Scotland needs an environmental court or tribunal, Environmental Rights Centre Scotland, 2021, https://www.ercs.scot/wp/wp-content/uploads/2023/03/Why-Scotland-needs-an-ECT-Oct-2021.pdf
Lunchtime 101: Scottish Environment Court, 2024 https://www.youtube.com/watch?v=iiROGcj2hcM
Forums include the Court of Session, Sheriff Courts, Scottish Land Court, the Department for Planning and Environmental Appeals, Lands Tribunal for Scotland and the Scottish Information Commissioner.
