Chapter 2.1.2 Climate-friendly Governance

Establish an environmental court or tribunal

Establish a specialist environmental court or tribunal in Scotland to ensure public access to justice in environmental matters.

Scottish Govt
Local Authorities
International
UK Govt
Emissions reduction
Behaviour change

Scotland needs a dedicated environment court or tribunal (ECT) 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 an ECT is needed:

  • environmental litigation is unaffordable – a situation which is in contravention of the Aarhus Convention.  An ECT 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.  An ECT 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.33 A single ECT 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.  An ECT 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 ECT could fit into the existing Scottish Courts and Tribunals Structure:

  1. a new independent court
  2. extension of jurisdiction of existing court (e.g.  Scottish Land Court)
  3. introduction of an Environment First Tier Tribunal

At the time of writing the Scottish Government is consulting on environmental governance arrangements, including on the idea of an environmental court or tribunal.  Without actually citing any evidence, they state that there is no case for an ECT.34  This conclusion is being robustly challenged by NGOs and others.

For further information:

33

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.

34

Report into the Effectiveness of Governance Arrangements, as required by section 41 of The Environment Strategy for Scotland: (Continuity) (Scotland) Act 2021 the UK Withdrawal from the European Union Progress Report to the Parliament, Scottish Government, May 2023, https://www.gov.scot/publications/report-effectiveness-environmental-governance-arrangements/

Version 1.0: September 2023

The contents of this document will be updated on a regular basis.