The next item of business is a joint committee debate on the Aarhus convention and access to environmental justice. I invite members who wish to participate in the debate to press their request-to-speak buttons now or as soon as possible.
I call Karen Adam to open the debate on behalf of the Equalities, Human Rights and Civil Justice Committee.
15:59
I am pleased to have the opportunity to speak on the issue of Scotland’s compliance with the Aarhus convention, particularly in relation to access to justice on environmental matters. The Equalities, Human Rights and Civil Justice Committee recently took evidence on that important issue, and I want to set out some of the key findings and themes that emerged during those discussions.
The Aarhus convention is an international treaty that was ratified by the United Kingdom in 2005. It establishes fundamental rights for the public in relation to environmental governance and guarantees access to environmental information, public participation in environmental decision making and access to justice on environmental matters.
Although environmental law is devolved, which means that the Scottish Government is responsible for compliance in Scotland, the Aarhus convention’s access to justice requirements have not been fully incorporated into domestic law. That means that individuals and organisations in Scotland cannot rely on them directly in our courts. Since 2011, the Aarhus convention compliance committee, which monitors adherence to the treaty, has found that the UK—and, specifically, Scotland—has not been compliant with its access to justice provisions. The main issue that has been raised in relation to Scotland is the fact that it remains prohibitively expensive for individuals, community groups and non-governmental organisations to bring legal challenges against environmental decisions. The evidence that the committee heard during its recent session reinforced that point.
The Aarhus convention compliance committee has repeatedly found Scotland to be non-compliant in relation to access to justice on environmental matters. I will be keen to hear the minister set out what specific steps the Scottish Government is taking to address those findings.
A striking example of the barriers that exist to environmental justice that was provided to the committee was that of the John Muir Trust’s judicial review challenge against the Stronelairg wind farm, in which the trust was ultimately unsuccessful. The financial consequences of pursuing the challenge were severe. The Scottish Government and the energy company SSE sought legal costs of £539,000 from the trust. Although that sum was later negotiated down to £125,000, that is still a significant sum of money. Such sums pose a substantial barrier to justice. For most organisations, and certainly for members of the public, such costs are simply unaffordable. The reality is that the financial risks involved in environmental litigation deter many people from bringing cases at all. That raises serious concerns about access to justice and compliance with the requirements of the Aarhus convention.
Three key potential solutions that would address those concerns were suggested in evidence to the committee. The first would involve repealing the joint interest test in relation to legal aid for environmental cases. At present, that test makes it extremely difficult for individuals to obtain legal aid for environmental matters, and community groups and NGOs are not eligible at all.
The second potential reform would involve the introduction of qualified one-way costs shifting, which is already in place for personal injury cases in Scotland, in environmental cases. That would mean that individuals and organisations that took environmental cases would not be exposed to the risk of paying the other party’s legal costs if they lost.
The third proposal would involve the establishment of a specialist environmental court, as exists in many other countries, to provide a more accessible forum for environmental cases. Regulation 15 of the Civil Legal Aid (Scotland) Regulations 2002 has been cited as a barrier to obtaining legal aid for environmental cases. I would be keen to hear from the minister whether the Government is planning to review or amend that regulation to broaden the scope of legal aid and improve access to legal aid on environmental matters.
Another key point that was raised during the committee session was about the availability of legal representation. Even when individuals or organisations are willing to pursue environmental litigation, they often struggle to find a solicitor to take on their case. The specialist nature of environmental law, combined with the relatively small number of practitioners in Scotland who focus on that area, creates significant difficulties. In some circumstances, potential claimants are unable to secure legal representation at all. In effect, that renders access to justice impossible.
The barriers that are faced by community groups were also highlighted during our evidence session. Unlike developers, which have the time, the financial resources and the expertise to navigate complex planning and environmental processes, communities often find themselves at a disadvantage.
Many groups lack the technical knowledge required to engage effectively with environmental decision making at an early stage. Witnesses stressed that although meaningful public participation is a fundamental principle of the Aarhus convention, many people feel disenfranchised by the system. Community groups often face challenges in engaging with complex planning and environmental processes, so I hope that the minister can share with us how the Scottish Government can support such groups to participate effectively in environmental decision making.
A key theme that emerged from the committee’s discussions was the importance of public awareness of and education about environmental rights. Effective access to justice is not only about the ability to go to court; it requires access to information, legal advice, and expert support at an early stage. Witnesses emphasised the importance of ensuring that individuals and communities are equipped with the knowledge and resources needed to participate fully in environmental decision-making processes.
Organisations such as the Environmental Rights Centre for Scotland have highlighted that Scotland remains one of the more expensive jurisdictions in Europe for environmental litigation. They have drawn attention to the financial barriers that exist and have contributed to discussions about potential reforms that could improve access to justice in this area. Their work, along with contributions from other stakeholders, has been valuable in shaping the wider debate and I thank them for that.
I would welcome an indication from the minister of how the Government can collaborate with organisations and stakeholders to promote awareness of environmental rights and ensure that people in Scotland are equipped to engage in environmental decision-making processes.
Looking ahead, there are clear opportunities for Scotland to strengthen its approach to environmental justice. The potential reforms outlined during evidence to the committee, which included changes to the legal aid rules, cost-protection mechanisms and the establishment of a dedicated environmental court, all merit further consideration. Ensuring that environmental justice is accessible to all is not only a legal obligation under the Aarhus convention but a fundamental principle of a fair and democratic society.
The committee will continue scrutinising the issue and engaging with stakeholders to explore how best to address the continuing barriers to justice. The committee will imminently hold sessions on legal aid reform and this issue will form part of that consideration. I look forward to hearing the rest of the debate and, in particular, the minister’s reflections on the issues that the committee highlighted.
16:07
I welcome this committee debate on the Aarhus convention.
Scotland has a strong history of leading the response to environmental change and responding to the requirements of the Aarhus convention. Although I acknowledge that the Aarhus convention compliance committee—the ACCC—has never found the United Kingdom or Scotland to be fully compliant with the convention since it came into force in 2001, meaningful advances towards full compliance have taken place during the lifetime of this Government and that advancement was recognised by the compliance committee when it said, in 2017, that it welcomed the significant progress towards compliance. That progress has continued.
The Government is clear that the Aarhus convention is an international treaty and that compliance is not optional. However, what compliance looks like is complex and involves careful consideration of an array of statutes, policy areas and mechanisms that interact with each other.
Can the minister say when Scotland will be compliant with the Aarhus convention?
I am not able to give an absolute date during this debate. I apologise for that, but we will do everything that we can to become compliant.
For example, any change in how planning law works must be considered alongside consideration of how a change to court rules would affect judicial oversight, and conclusions on environmental governance interact with how legal aid may support challenges. That complexity is reflected in the convention itself, which says that the parties shall
“establish, on a consensus basis, optional arrangements of a non-confrontational, non-judicial and consultative nature for reviewing compliance with the provisions of this Convention”.
It is a review process in which we work collaboratively towards compliance. Issues are identified and we respond.
Will compliance with the convention mean that groups across Scotland that are campaigning against pylons will have greater support through legal aid, for example, to oppose some of the power generation companies that are forcing things through?
I will come to legal aid and access to justice later in my speech.
The ACCC issued a decision in October 2021 that found that Scotland and the UK were not compliant with the requirements of the convention in relation to access to justice. That was the latest in a series of findings of non-compliance. As a result, the UK was required to submit an action plan in 2022 followed by a progress report in October 2023 and a final progress report in October 2024. The UK Government submitted that report, which incorporated a contribution from Scotland, and we await the response from the ACCC. We believe that there is much to be welcomed in both the concrete actions that have been taken and the commitments for the future.
One action that the Scottish Government has provided is that court fees will no longer be payable for Aarhus cases in the Court of Session. A second change is that the Scottish Civil Justice Council has made a number of technical changes to the system of protective expenses orders that support those who raise Aarhus cases in the courts. Those changes support confidentiality, protection from interveners costs and the treatment of appeals.
The Scottish Civil Justice Council has also made a commitment to consult on the more fundamental proposals to expand the protective expenses order regime into the sheriff court and private nuisance claims. The consultation features in its work programme for 2025-26, and I hope that many of the environmental non-governmental organisations that follow the topic closely will participate. There is also proposed action on legal aid reform.
We recognise that reform is needed in our legal aid system to ensure that it is responsive and user-centred and that it works effectively towards the delivery of agreed outcomes in a way that would be expected of a public service, with transparency and accountability for public funding being embedded in the process. “The Vision for Justice in Scotland: Three Year Delivery Plan 2023/24 to 2025/26” contains an action to
“Engage with key stakeholders to inform and shape future legislative proposals”
in relation to the reform of legal aid. In February, I published a legal aid reform discussion paper, which sets out the areas of work that we will undertake to improve legal aid in the short-to-medium and the long terms. I will bring regulations by the end of 2025 to simplify the regulatory framework that governs the eligibility for legal assistance and to improve the application process.
Will the minister take an intervention on that point?
I will.
The intention is to bring those regulations by the end of 2025. Is the minister absolutely definitive about that?
I can give you the time back for the interventions, minister.
Thank you, Deputy Presiding Officer.
Yes. I know that we cannot do the primary legislation in the current session, but we can put secondary legislation in place. The reason why the discussion paper was delayed slightly is that I wanted to make sure that we could achieve what we want to achieve in 2025.
I will bring forward regulations by the end of 2025 to simplify the regulatory framework that governs the eligibility for legal assistance and to improve the application process, reducing the burden on both solicitors and those who need legal services and ensuring that funding is provided as quickly and easily as possible.
We will also resume work to conduct research on legal aid fees and implement changes that are informed by that research. Both of those areas of work will make it easier for solicitors to work with legal aid funding and for those who need help to obtain it. In the longer term, we will take forward a review of the whole system to ensure that it is adaptable, flexible, affordable and sustainable for the future.
One part of the reform work is looking specifically at diversifying funding and delivery models. My vision is that the delivery of legal aid in all its possible forms is shaped by an evidence-informed approach to assessing need, embedding the user voice and designing services to focus on the effective delivery of outcomes.
I will carry out a series of engagements to hear views from all those across the justice system on areas of reform, and we will work with the private sector, the third sector and users of legal assistance services, as well as the environmental sector, to develop that system and identify what primary legislation would be required to deliver it.
I hope that that gives a flavour of the actions that we are taking forward towards compliance with the Aarhus convention and our absolute commitment to maintaining progress towards achieving that goal.
Before calling the next speaker, I advise members that we have a bit of time in hand, so members who take interventions will get that time back.
16:15
The Aarhus convention is an important document that gives power to local communities to have a say on what happens in their locality. It has been ignored for too long, and more should and must be done to ensure that its central tenets are incorporated into law in Scotland.
The issue has been raised time and again in Parliament. Indeed, back in 2022, my committee colleague Monica Lennon questioned the then Cabinet Secretary for Justice and Veterans, Keith Brown, on the matter. In 2023, there was a consultation and a report from the Scottish Government. In 2024, there was committee work on the topic, yet we still have little or no action—a phrase that cuts right to the heart of this devolved Scottish National Party Government. Quite frankly, it is a disgrace and a shambles, and it is letting down rural Scotland, our communities and all the groups that work so hard to ensure that our countryside is protected.
Campaigners in Dumfries and Galloway spent almost £26,000 unsuccessfully opposing pylons in their areas. Those costs are terrifying to groups such as Save Our Mearns, which face similar disruption and destruction of the countryside in their areas, with hundreds of kilometres of pylons being planned across Scotland. SSEN plans to build 500km of pylons across the north of Scotland. Local groups are left wondering how on earth they can oppose the plans of those large companies.
At the Citizen Participation and Petitions Committee last year, I spoke about the David versus Goliath battle that many communities face. Many communities feel that they are being priced out of trying to protect the countryside, while energy companies have deep pockets to spend on getting what they want.
Crowdfunders can get campaigners only so far. Many are being priced out of defending their local countryside from overindustrialisation up and down the country, and that cannot be right. I fear that it will get harder, not easier, for community groups to defend the countryside. The changes to the planning system, which are supported by both Labour and the Scottish National Party, look to take away local councils’ right to a public inquiry and erode local democracy in order to railroad pylons, batteries and substations across our countryside.
Communities feel ignored. They feel that their human rights are under attack, and they feel that they are being priced out of defending their homes. There needs to be a better way of allowing those groups to defend themselves. The changes that are required to bring us into line with the convention would mean that those groups could either access legal aid to combat the plans or, as the ERCS supports, the loser pays rule would be replaced with qualified one-way cost shifting. That would allow community groups much greater access to justice, and would be a relatively easy way to bring us into line with the Aarhus principles, which we are a long way from meeting.
In fact, of the six recommendations made by the United Nations Economic Commission for Europe, the Scottish Government has failed to act on four. Progress has been made on the other two, but they have not yet been met. For the past two years, promises have been made on our obligations by the Scottish Government, whether through the human rights bill or legal aid reform, but neither has been followed through. This left-wing, central-belt-focused SNP Government is once again talking the talk but failing to act on behalf of our rural communities.
I thank the organisations that gave evidence to the committee for their work on the issue. They are clearly exasperated by the lack of action on the matter, and many have expressed their dismay at the slow pace of progress. I hope that we will today hear from the cabinet secretary that progress will be made, along with timescales and targets, so that we can all have the transparency that is required in this area.
One call that came through strongly in many of the representations that we received was on the need for an environmental court to be established in Scotland, which would be in line with many other countries. That was ruled out by the Scottish Government without the due consideration that should have been given to it. An environmental court could increase access to justice, reduce the many fragmented paths to justice that currently exist, and allow Scotland’s legal industry to develop expertise in the area. It could also cut costs for those who are pursuing or defending cases. The cabinet secretary should listen to the groups that are calling for such a court to be established and not dismiss their suggestions out of hand. We should carefully consider the proposal for an environmental court and decide whether it is best for Scotland.
The issue is complex and important. It is about access to justice for our community groups who are seeking to protect our countryside, heritage and environment. Their concerns cannot, and must not, fall on deaf ears. I welcome the fact that two parliamentary committees have now looked at the issue, and I urge the Scottish Government to listen to the concerns that members express in the debate. To ignore those concerns is to ignore the fundamental right of community groups to access justice in Scotland. It ignores the voices of our rural communities and the Government’s legal obligations under the convention. It is vital that the Government acts and stops faffing about. This has gone on for far too long. Action must be taken to ensure that justice can be served.
16:21
First, I thank the Net Zero, Energy and Transport Committee and the Equalities, Human Rights and Civil Justice Committee for their work on the issue. I also thank the Environmental Rights Centre for Scotland for its excellent briefing. I share the disappointment and frustration of those who gave evidence to the committees that action to deliver the Aarhus convention was not included in the Scottish programme for government, even though it had been promised.
People have been let down. They have a right to live in a positive and healthy environment, breathing clean air, drinking safe water and interacting with nature. The UN treaty—the 1998 Aarhus convention—made that a law, and Scotland has breached it. People have the right to seek justice when their access to vital resources is limited, but that right is currently unavailable. Those who are seeking environmental justice face major delays. Their endeavours are simply too expensive and too time consuming and, ultimately, the process is inaccessible. A massive 40 per cent of Scots believe that the quality of their green space has reduced in the past five years. If the barriers that prevent people from taking environmental cases to court continue to exist, that is not good for our constituents.
The Aarhus convention emphasises the negative impacts of environmental degradation on people’s morale. A healthy environment should not be a luxury, which is why the convention entrenches people’s right to access environmental justice. Green spaces and water sources have been proven to significantly improve mental health in urban areas, according to the European Centre for Environment and Human Health and several mental health organisations. Given that mental health conditions are placing huge pressure on our national health service, we should be acting now to ensure that people have access to green spaces.
It is good that the member recognises the mental health issues that are caused by these sorts of things happening in communities. Why is the Labour Party so strongly in favour of having pylons right across our country? They will have a huge impact on people’s lives.
It is for energy security. We need to keep the lights on and ensure that people, especially those in rural communities, do not lose their power. Members may remember that, just a couple of months ago, people lost power and had no way to heat or power their homes. That is unacceptable.
One hundred and sixty countries now uphold the right to a healthy environment in law, through entrenched legislation that gives the public the power to fight for environmental justice and to hold local and national bodies accountable for providing healthy green spaces. Unfortunately, we are not one of those countries. The Scottish Government scrapped its proposed deadline to comply with the convention by 2024. The Environmental Rights Centre for Scotland has called the Scottish Government’s lack of progress “an abject failure” to protect access to environmental justice.
None of the six recommendations that were given to the Scottish Government by the convention’s compliance committee in 2021 has been met, while the October 2024 deadline has passed. The Government is now under investigation for its failure to comply and for its long-standing breach of article 9 of the convention. We have less than a year left in this session of the Parliament. The Scottish Government should have done far more to action those recommendations, because current public access to environmental justice is clearly insufficient.
Since the Scottish Government has failed on previous commitments, it has a responsibility to facilitate the requirements that are laid out in the Aarhus convention by entrenching an enforceable right to a healthy environment in Scottish human rights legislation. We should be investing in our green spaces, identifying the shared benefits of environmental improvement and raising standards of living in a way that contributes to Scotland’s green, renewable future. Where members of the public are denied the right to a healthy environment, they should have quick, accessible recourse to justice through the courts.
I know that protective expenses orders have been introduced, but the Environmental Rights Centre for Scotland points out that they are insufficient to reduce the cost of litigation. Although an exemption for court fees for Aarhus cases was introduced, I would like to hear from the Government, in its closing speech, whether the Scottish Government will now extend the exemption to sheriff courts. That is critical to delivering justice.
It is clear that the Scottish Government needs to do more to combat pollution, provide access to green space and ensure that people who are denied those rights have recourse to justice. Our Scottish citizens should be at the forefront of environmental decisions.
What is Labour’s position on a dedicated environmental court facilitating access to justice?
That is one of the things that is raised regularly by campaigners, but it involves consideration of the structure of our legal system. Without other changes, we will need that kind of focus.
It is clear that we need change. Our citizens should be able to have the power to influence or reject changes to their environment, but the measures that are currently in place make that difficult, if not impossible. One thing that we could do is resource our planners in local authorities, because we do not have the scale of resource to deliver on time. That is a frustration that communities—urban and rural—raise with us. We must do everything in our power to see measures delivered to entrench people’s rights because, as the Aarhus convention has clearly established, environmental rights are human rights.
I have a member’s bill in front of the Parliament that would mean that the principles of sustainable development and wellbeing would be addressed by public sector organisations. However, we need action. It is on the Scottish Government to take that action, and it needs to act now.
16:27
I welcome the Parliament’s focus this afternoon on environmental justice. The loss of our right to a healthy environment as European Union citizens was a Brexit betrayal and, if the SNP Government still has the desire to rejoin Europe, it should enshrine the right to a healthy environment in law without any further delay.
The reality is that the UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021, which was passed in the previous session of Parliament in an attempt to deal with the results of Brexit, ended up as a scrabble to save four decades of environmental rights that we won through working within the European Union. Those were hard-fought-for rights that were forged from the campaigning efforts of citizens movements that had been fighting pollution and destruction over many years in the European Union.
The establishment, through the 2021 act, of Environmental Standards Scotland was critically important, and the body has shown its effectiveness. ESS has stepped in where the European Commission left off, by holding the Government and its agencies to account on issues from air quality to water quality and many more besides. However, in truth, even before Brexit, the Scottish and UK Governments were allowing the environmental governance gap to widen and were failing to commit to reforms, including the establishment of an environmental court. On its own, ESS does not deliver environmental justice for citizens. It cannot even consider individual cases and, even if it could, it could not perform the critically important role of an environmental court.
The Aarhus convention, if upheld, ensures a route for citizens to legally challenge decisions. However, rather than upholding the principles of the convention, the Scottish Government has consistently been non-compliant with and in breach of article 9 for the past decade. When the Acting Cabinet Secretary for Net Zero and Energy came to the Net Zero, Energy and Transport Committee recently, she was unable to commit to a date or even a time horizon for full compliance. We have heard a similar lack of commitment today from the minister.
It is the consistent breach of article 9 that is partly linked to the significant legal costs for environmental cases. As Richard Dixon of ESS highlighted in committee, a judicial review can cost between £30,000 and £40,000 a day. That is an eye-watering amount of money that is in direct contravention of the convention, which requires legal procedures not to be prohibitively expensive.
As we have heard from a number of members, corporate interests have deep pockets, but individuals struggle to secure legal aid for environmental cases, and, of course, legal aid is not available to charitable organisations. In addition, the loser pays rule means that litigants who lose their case are liable for their opponents’ expenses, which, as the Environmental Rights Centre for Scotland notes, can end up costing tens if not hundreds of thousands of pounds. In fact, the centre noted that, on a number of occasions, it has decided not to pursue legal challenges because of the direct financial risk to it.
However, even if all the costs were removed, the Government would still be non-compliant with the Aarhus convention, because it considers only judicial reviews and not merit-based ones, despite both being required under the convention. Legal challenges can be made only on whether the decision-making process was followed properly, so there is no scope to consider substantive issues, including whether a decision was made with full consideration of the evidence.
As we saw with the climate-wrecking decisions of the Tory Government to prove the case for the Rosebank oil and gas field, when evidence is ignored, the Supreme Court can step in, but only after a sustained and very costly legal challenge from multiple parties that again focuses primarily on process. The Rosebank decision was focused on the process. It touched on the merits, but we need full merit-based challenges.
There are other actions that the Scottish Government can take. As we have heard, it can reform legal aid to make it more accessible for environmental cases, remove the loser pays rule and extend the exemption from court fees for Aarhus cases to the sheriff courts, as well as establishing an environmental court and increasing access to justice and judicial expertise on environmental cases.
Failure to comply with the Aarhus convention is a political choice that the Scottish Government has made over and over again.
[Made a request to intervene.]
If I have time, I will take Mr Lumsden’s intervention.
I can give you the time back.
Will Mark Ruskell clarify the Green Party’s position on pylons, given that their installation is destroying large parts of our countryside? It seems unusual that the Green Party would be in favour of the destruction of our countryside. Community groups are struggling to defend themselves because of the large costs that are involved in doing that.
It is disappointing that Douglas Lumsden is trying to boil it all down to one particular decision and one particular issue. I respect the fact that there will be communities that want to challenge the pylon lines. It was the same with the Beauly to Denny case. There will also be communities that want to challenge other forms of development, such as fracking, Mr Lumsden, fossil-fuel power stations at Peterhead and wind farms. They should all have the right to challenge such developments, but the justice system needs to respond quickly and proportionately.
The planning system is also hugely important. It deals with where renewable energy development should take place—and where battery storage should be, because we need more of that, Mr Lumsden—and the role of communities in that system is absolutely critical. That is the same for pylon lines, for renewable energy, for the dualling of the A96 and for all the other developments that many people feel are necessary and which, in some cases, the Government wishes to support. They need to be adequately planned before things get to the point of judicial review.
The climate and nature crises are only worsening, so we need to deliver environmental justice, and we cannot wait another decade for the principles of the Aarhus convention to be fully enshrined in Scots law.
Thank you, Mr Ruskell. This is a reminder that comments should always be made through the chair. We move to the open debate.
16:33
I speak as a member of the Equalities, Human Rights and Civil Justice Committee. I thank the many organisations for the helpful briefings that they provided.
It was a welcome opportunity for the committee to take evidence from environmental and legal professionals and from the Minister for Victims and Community Safety. As has been mentioned, the Aarhus convention is a UN treaty that requires states to provide access to justice to allow challenges in court of breaches of environmental law. The convention consists of three pillars: access to environmental information for any citizen, the right to public participation in decision making and access to justice in environmental matters. Progress has been made, but we all recognise that much more needs to be done to ensure that Scotland and the rest of the UK are compliant with the convention.
The minister noted that the Aarhus convention compliance committee previously welcomed Scotland’s significant progress in 2018, and that work is on-going to strengthen compliance in the areas of concern that the ACCC identified in its most recent decision. One point of concern relates to whether the Scottish Government will repeal regulation 15 of the Civil Legal Aid (Scotland) Regulations 2002, in particular because the joint interest test that is specified under the regulation makes it difficult to obtain legal aid for environmental cases, given that such cases usually impact more than one person. However, as recognised by Denise Swanson, Scottish Government head of civil courts and inquiries, regulation 15
“is a necessary control mechanism for the proper and consistent use of the legal aid fund. Repealing it in its entirety could well have consequences across other elements of legal aid provision.”
It was acknowledged that
“There is a problem to do with the juxtaposition of how the legal aid system, including regulation 15, operates at the moment, and how we meet the needs of environmental issues and environmental actions.”—[Official Report, Equalities, Human Rights and Civil Justice Committee, 12 November 2024; c 25, 26.]
However, there needs to be greater discussion about the correct way forward.
The Scottish Government recognises that reform is needed, and it is welcome to note that action has already been taken to address some of the concerns that were noted in the report.
Although we rightly acknowledge today that more can be done, it is important to speak about the significant steps that the Scottish Government has taken in relation to climate change, nature restoration and reaching net zero. In the 2025-26 budget, it is investing more than £90 million to protect, maintain and increase woodlands and peatlands. Additionally, by deploying capital funding of £150 million to continue to anchor our offshore wind supply chain in Scotland, we support jobs and push closer towards our net zero goals.
The Scottish Government is also building on the Circular Economy (Scotland) Act 2024 by delivering £39.6 million to help Scotland’s transition to a circular economy, reduce waste and promote sustainable consumption. That includes funding for the banning of single-use vapes and funding for Zero Waste Scotland.
The member mentioned progress on the circular economy. When does she think that the SNP’s target to recycle 50 per cent of household waste by 2013 will be met?
I can give Marie McNair the time back.
That is maybe something that the minister can cover later; I do not have that figure to hand. I am sorry about that—the member is laughing, but I do not have it.
The environmental challenges that we face are urgent—there is no denying that. That was made very clear to me this week, when the Kilpatrick hills in my constituency saw a second wildfire in two weeks, and the Scottish Fire and Rescue Service issued its third wildfire warning this year due to dry weather.
The damage that such fires can cause is significant, and they can harm wildlife, impact farms and pose a risk to the public. Those issues are, naturally, very worrying, so we must push for more action and ensure that we have strong legal protections and frameworks.
This is an extremely important matter, and we must work together to ensure that all levers are available to protect our environment.
16:38
I thought that I was hearing an SNP party-political broadcast from the previous speaker, but it is good to know that the SNP is concerned about the environment.
Scotland has failed to comply with the Aarhus convention—that is clear. In failing to comply, the SNP has betrayed the principles of environmental justice. That matters, because plans are being rolled out to industrialise the north-east of Scotland with huge substations, a proliferation of battery storage, monster pylons and hundreds of kilometres of overhead lines. In the affected communities, that sprawling energy infrastructure is already having a devastating impact on hundreds of families.
Constituents from Angus to Aberdeenshire and beyond see the industrialisation of their homeland. Their land and their livelihoods are about to be destroyed, and they feel absolutely powerless to do anything about it. They also have valid concerns about the health implications of the infrastructure, which have not been explored and allayed because full independent environmental impact assessments have not been done. Wildlife, wheat fields and carrot and potato fields are about to be decimated. Communities are about to be disempowered by the very people they hoped would represent them. The SNP is numb to their plight.
Campaigners from Save Our Mearns, Angus Pylon Action Group, Deeside Against Pylons, the Leylodge against industrialisation group, the Stop Tealing Industrialisation Group, the Echt and Dunecht against pylons group, the Buchan and Formartine opposed to big energy group, Kyle of Sutherland, Dunbeath and Berriedale groups, Communities B4 Power Companies and other groups have mobilised to fight the plans. However, their monopoly provider, which has a contract to deliver, is bulldozing ahead. [Interruption.]
Presiding Officer, there are conversations going on in the chamber. I know that SNP members do not want to hear this, but I say to them that they should please listen. It is also disrespectful to talk when somebody else is speaking.
Giving evidence to the Equalities, Human Rights and Civil Justice Committee, the Law Society of Scotland laid bare what non-compliance with the Aarhus convention means in practice:
“Developers may be well funded and there will be Government representation, but community groups or individuals may appear on their own or may have a solicitor appear for them. There is often a mismatch in what you might call the equality of arms.”—[Official Report, Equalities, Human Rights and Civil Justice Committee, 12 November 2024; c 13.]
This is inequality of arms. Communities are powerless to do anything as their homeland is destroyed.
I would like members to hear the voice of one of my constituents, who said this morning:
“The Scottish Government has ignored the Aarhus convention for over a decade ... What is happening now is nothing short of criminal, causing mental health issues and environmental vandalism.
That is what it is—environmental vandalism.
As my colleague has said, campaigners in Galloway raised more than £26,000 towards the costs of a lawyer and an energy expert to unsuccessfully challenge pylon plans. I think that Labour said today that it would like to have more local planning, but the problem is that the Scottish Government is overriding local planning decisions. Communities should not need to crowdfund just to have their voices heard. It is like David and Goliath, and it is clear which side the SNP Government has taken. The SNP in Holyrood and the Labour Government in Westminster want to remove the right to a public inquiry.
Does Tess White agree that it is disgraceful that no Scottish ministers or cabinet secretaries will meet the campaign groups, even though they are totally happy to meet companies such as SSEN?
It is absolutely disgraceful. All the groups that I have mentioned are watching this debate to hear the defence of the SNP Government. They are looking to see who is in the chamber today. It is disgraceful.
Will the member take an intervention?
Will I get the time back, Presiding Officer?
I can give you the time back, Ms White.
I am grateful to Tess White for taking the intervention. Can she tell members why her party opposed an equal right of appeal that would have given communities the same rights as developers?
I am not sure what Monica Lennon is referring to. We are talking about the Aarhus convention, the human rights of individuals and access to justice.
The communities have not been consulted properly on the different options. It is a case of the wrong kit in the wrong place. The move would leave local democracy in tatters and the affected communities, in effect, disenfranchised from decision making on such projects. They are being drowned in jargon, overwhelmed by costs and, in effect, blocked from challenging decisions that could have irreversible impacts on their local environment and quality of life. That is not what the Aarhus convention promises.
Finally, and in response to Monica Lennon’s question, I point out that that is why the Scottish Conservatives would guarantee that local communities would be able to halt electricity infrastructure projects if they would not meet local needs. We need to press pause. There is still time to do the right thing in line with the principles of the Aarhus convention.
16:45
Like colleagues, I welcome the debate and the considered way—which predates my joining the Net Zero, Energy and Transport Committee—in which the committees have scrutinised our lack of compliance with the Aarhus convention. Of course, the convention applies across the whole of the UK, which has not been in compliance with it for more than a decade. I welcome the fact that, despite having been in government for a considerable part of that time, the Conservatives now appear to be enthusiastic about ensuring that we are compliant with the convention in the years to come.
It is also worth reflecting on the fact that a balanced report has been produced, recognising that progress has been made in some areas but that there is deficiency in a number of others. For example, corrective action has been taken on cost protection and appeals, protective expenses orders, the types of claims that can be raised and the level of the cost cap. Those issues have all been addressed, and those are important steps—it is good progress. Nevertheless, more progress needs to be made.
I will pick up on the principle of access to justice, which we all, to some degree, take for granted and expect in any modern democracy. It is wrong to frame trying to pursue environmental rights as being a rural issue or an urban issue. Pursuing environmental rights in an urban setting is equally valuable and important as doing so in rural communities. It is not one or the other. My constituency has the Grangemouth refinery and petrochemical facility on its doorstep. At times, as there have been in the past, there are environmental concerns and issues in that regard. They are just as important as environmental concerns are for any rural area. It is fundamentally wrong to try to frame the issue as being urban or rural, and it does constituents a disservice if we try to present it in that way.
Even if we were to follow Douglas Lumsden’s desire to take us down the pylon line in relation to why we must now comply with the Aarhus convention, it would have to apply across the whole of the UK. There is no point in individuals in Dumfries and Galloway raising money to pursue action against a pylon going from Scotland into England if the only place that we can exercise that power is in Scotland and people who live in England are not able to pursue the matter through environmental law. It is in all of our interests to ensure that the UK as a whole is compliant with the Aarhus principle as soon as possible.
One thing that is interesting in this debate, as in previous renewables debates, is community ownership and the need for communities to benefit from developments in their area rather than have them imposed. Do you think that we need a more nuanced conversation on that?
Speak through the chair.
There is an issue in that regard. I am strongly in favour of much more of a community wealth building principle for some assets to ensure that we move beyond the often superficial approach to community benefit. Community ownership can be part of community wealth building, but there are other models that could be developed and taken forward. Community Land Scotland recently produced an interesting paper on community wealth building in the energy sector, which has a lot of merit in it and is worth further debate and consideration.
I return to the issue of access to justice. Often, the factors that inhibit the ability to pursue an issue under environmental law are the same as those that inhibit people from taking action through civil law. Civil law is a difficult and expensive environment for anyone to access, and the principles around environmental litigation are similar to those for other areas of civil litigation.
The key way in which we can make progress in that area is through reform of our legal aid system to ensure that it is much more responsive and user centred, and that it supports compliance with the Aarhus convention. I recognise that the Government is undertaking work on improvement of the civil legal aid system. Given that that will involve a demand-led budget, if we are to expand the scope of civil legal aid to comply with the Aarhus convention, we must ensure that the resources follow that. We cannot have an expansion of the matters for which civil legal aid can be provided without a corresponding uplift in the funding to support it.
My final point is that we should be careful about going down the route of creating specialist courts. There is great merit in having a judiciary that has a broad spectrum of skills and ability. Justice is often delivered through the ability of judges and sheriffs to preside over a range of proceedings. We lose some of that facility when we go down the specialist court route. I am much more in favour of ensuring that we improve access to environmental justice rather than taking the narrower route of creating a court to deal specifically with environmental matters. Although it will be for members in the next session to consider the human rights bill that is planned, the Parliament will have the opportunity to ensure that we make progress towards enshrining environmental laws and complying with the convention. I hope that the incoming Government will achieve those aims.
16:51
We are here because Scotland is clearly in breach of the Aarhus convention, which is denying Scots access to environmental justice.
I believe that this is a vital debate. Scotland is one of the most nature-depleted countries in the world, and we are simply not doing enough to tackle climate breakdown. The pollution of our air, land and water is not a rural or an urban problem—it is an everywhere problem. I therefore agree with Michael Matheson’s point that we should not try to split our communities. Decisions about the use of land and how we treat the environment are taken in systems that benefit the wealthy and the powerful—often to the detriment of the people and communities who have the fewest resources.
The Scottish Government’s persistent failure to comply with the Aarhus convention is not simply embarrassing; it is endangering the human rights of my constituents and all the people of Scotland. I pay tribute to the Environmental Rights Centre for Scotland, Planning Democracy, Friends of the Earth Scotland, RSPB Scotland and everyone else who is fighting for environmental justice and the right to a healthy environment.
Monica Lennon talked about the importance of air, land and water quality. Does she agree that it is difficult to see how we can plan, and start to implement, an infrastructure or a project without a proper, thorough and independent environmental impact assessment?
I can give you time back, Ms Lennon.
It is important that we have robust environmental impact assessments. Tess White might know that, in a previous life, I was a chartered town planner, so I will be happy to have a longer discussion with her on that aspect. I am glad that she has intervened on me, because it allows me to underline the point that I made in my intervention on her earlier, about the imbalance in our planning system. We do not have a level playing field, which is why my question to her on equalising the right of appeal goes to the heart of the debate. My colleague Sarah Boyack, who is nodding from the Labour front bench, is a fellow former town planner—perhaps we are responsible for the current shortfall in practising planners in this country. These are critical debates, and it is absolutely up to the Government to get this issue right. If it will not lead on that, in the next parliamentary session we will need a Government that will do so.
Deputy Presiding Officer, I do not know whether I am getting time back or not, so I will have to race through the rest of my contribution.
It is great that two of the Parliament’s committees are focusing on the issue. Last week, at the Net Zero, Energy and Transport Committee, I was able to put questions to Dr Richard Dixon from Environmental Standards Scotland. I was concerned to hear Dr Dixon, whom I am sure the Government respects, say that
“the Government produced a really shoddy secondary paper that went into environmental courts and why it does not want one, but it was still not very convincing.”
He said that creating an environmental court is one way that the Government could accelerate towards Aarhus compliance but that the Government seemed
“desperate not to do that.”
To me, that is inexplicable. He said that
“The original consultation on the governance review hardly mentioned an environmental court and dismissed the idea without any evidence.”—[Official Report, Net Zero, Energy and Transport Committee, 25 March 2025; c 47.]
I would love to hear the reason for that.
This issue matters to my local community. We have had to fight against speculative applications for incinerators, so I pay tribute to the Dovesdale action group and to my constituents in Whitehill.
I also thank members who have supported my call for an ecocide law in Scotland, because we need system change. It is not about picking out individual locations and types of application.
We need to make sure that our systems work for people and the planet, and Aarhus compliance should be at the heart of that. Reputationally, this is damaging to the Government, but it is also damaging to Scotland, and we need urgency from the Government. The Government will get backing from the chamber, but it needs to come up with something that is credible.
I advise the chamber that the time that we had in hand has just about been exhausted. I call the final speaker, Ben Macpherson. You have around four minutes.
16:56
Like colleagues, I welcome the debate on the Aarhus convention and the right to a clean environment. I think back to the discussions that I was able to listen to and partake in when I was a part of the Net Zero, Energy and Transport Committee, particularly the evidence that we heard on 16 January 2024. I commend both committees on the work that they have done and the document that we are discussing today.
During that period, and in my capacity as a constituency MSP for Edinburgh Northern and Leith, I have had great engagement with the Environmental Rights Centre for Scotland. I fully appreciate the demands that it and others have made for thinking collectively not only about how we comply with the international convention—particularly after Brexit, as has been referenced—but about the rights of communities that should be enhanced or refined and how those rights are realised. I welcome the Government’s statements about legal aid and how we make sure that people are able to access justice.
There has been discussion today about whether we need new legislation, and there is a consensus that there should be a new human rights bill in the years ahead. That will be a particularly important piece of legislation to get right, because it needs to be not just about how we protect human rights—although that issue requires UK-wide action, which could potentially be dovetailed with European-wide action to make it as effective as possible, and I would envisage the discussion about ecocide coming into that debate—but about how we discuss those rights, how our society protects them and how realisable they are. For me, that gets to the heart of what today’s discussion is about: it is about how communities and individual people are able to exercise their right to a clean environment.
Multiple examples have been given, but the one that always comes to mind for me is from Leith, in my constituency. The port of Leith was privatised in the 1990s by the then Conservative Government. It included four basins at The Shore, which colleagues will be familiar with, as it is the iconic vision of Leith. Those four basins were then sold by the Port Authority to another private company, which then split the ownership between itself and another private company. The basins connect to the rest of the Water of Leith, which is publicly owned. That means that there is a very complex arrangement of different stakeholders for dealing with any environmental issues that occur in the Water of Leith basins, from silting to sewage water overflows, detritus collection and the operation of businesses.
The reason why I list those is that the way that we have managed them in recent times is by collaboration and negotiation; by me or the council using our convening powers; and, to an extent, by the benevolence of local business stakeholders who, thankfully, want to be part of the upkeep.
Unfortunately, there have been times when the upkeep and other issues have not been satisfactory, which is why my constituents have reached out to me and the Environmental Rights Centre for Scotland to try to improve the situation and to realise a clean environment. I cite that example because it is demonstrative of how, if we had a significant and environmentally concerning scenario in the Water of Leith, the available legal avenues would not be as accessible as they should be to my constituents. The situation will be the same in other constituencies.
An area that we could look at that might allow us to make improvements in the shorter term is in our use of the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018. Could we undertake more group proceedings that might help in this scenario?
17:01
There has been 14 years of non-compliance, of missed deadlines, of failures to act, of opportunities missed, of procedural deficits still unaddressed and of individuals and communities waiting for promised legal aid reforms. In short, there has been 14 years of individuals and communities being denied environmental justice.
In environmental justice, both of the words matter. This is about environmental degradation, which, in most cases, is irreversible. It is the degradation and pollution of the places where we live and that we rely on for our food and water, for the air that we breathe and for our physical and mental health and wellbeing. It is also about justice and human rights for those who need them most. It is about not only justice for communities now but justice for future generations. I am grateful to Sarah Boyack for the work that she is doing to keep this important issue on our agenda.
Communities are struggling now—communities such as Torry in Aberdeen, which faces the loss of its last remaining public green space to private profiteering. Decades ago, Torry had to deal with the loss of old Torry to oil and gas infrastructure development. More recently, it lost its beach at Nigg Bay to the Aberdeen south harbour development. It is home to an incinerator, which overlooks the school, and to sewage works, which deal with all the waste from the city and beyond. Torry has to deal with all of that while life expectancy remains stubbornly low—more than 10 years lower than in more affluent areas of Aberdeen. There are families with children living near the at-risk park, and there are older people with health conditions created or exacerbated—often fatally—by air pollution. Like other communities across Scotland, Torry needs the Scottish Government to act and to ensure compliance with the Aarhus convention.
As other members have said, the right to a healthy environment should never be just a luxury add-on. It should never be available only to those with very deep pockets. It is an essential means of ensuring rights to life, health and a family life.
Environmental degradation does not fit neatly into political boundaries. The consequences of pollution, of the systematic destruction of green spaces and of modern forms of the enclosure of common land and shared resources extend beyond the boundaries of constituencies and states. We see that only too clearly with a climate crisis that will affect us all, regardless of where the emission of climate-changing gases occurs.
More than that, the mechanisms of environmental degradation are weapons of oppression that are used against communities with the least privilege and power and for whom resistance costs dearly. As Monica Lennon has pointed out, the protections that we would get by complying with the Aarhus convention would be good for us all. Environmental protection is the protection of workers, communities and our futures. However, it is also protection by communities—communities of place, communities of concern and communities of care. Communities have a vital role to play in filling the gaps and addressing issues missed by Governments, public agencies and authorities. Communities must be supported and enabled to do that important work.
If we are serious about enabling a better, fairer, cleaner and more sustainable Scotland in which human rights are respected and nature is cherished, environmental activists and the Government are not on opposite sides—indeed, they cannot be, because no agency will always make the right decisions.
[Made a request to intervene.]
Ms Chapman is winding up.
I cannot give way—sorry, Mr Macpherson.
When the decisions that are made are not the best ones, it is in the interests of a good Government and good governance that communities are able to challenge them swiftly and inexpensively, using their evidence, expertise and lived experience to complement and enrich official decision making.
As my colleague Mark Ruskell said, non-compliance with the Aarhus convention is a political choice. We must grasp the opportunity to make a different political choice. It will be overdue, but I hope that it will not be too late.
17:05
I am pleased to close on behalf of the Scottish Labour Party in this debate on the Aarhus convention. It has been an important and wide-ranging debate in which people have brought different perspectives from across Scotland and have helped to put on the agenda the importance of the Aarhus convention and our desire to see faster progress on compliance with it.
My colleague Sarah Boyack put things in context when she spoke about the rights that we should all enjoy in Scotland: rights to clean water, open space and access to nature. Our nature is envied around the world—we live in a country that has so much potential.
We also heard about some of the significant challenges that we have experienced in Scotland. My colleague Monica Lennon spoke about nature depletion and the concerns about what is happening to our natural environment. Several other colleagues touched on that as well.
We heard about the frustration and disappointment of so many people at our failure to comply with the convention. I pay tribute to the two committees that raised the debate: the evidence that we have heard in those committees has been overwhelming. It has included the frustration and anger that I spoke about, the challenges that exist, and how much more we have to do to protect our natural environment and to give communities and individuals the rights to protect that environment and access to it. I pay tribute to the conveners, Karen Adam and Edward Mountain.
Does the member agree that, to realise those rights, we must hold both private interests and private landowners to account? Although there is a need for accountability and for access to justice in relation to public agencies, given the amount of private landownership in Scotland, it is also about holding private companies to account.
I recognise the need to hold those private interests to account. I commend Mr Macpherson for his speech and for his championing of the port of Leith and the community interests in relation to it. I recognise such interests in my region, on the west coast, as well.
Access to justice is at the core of the matter, which is why the work of the committees is so important. We heard compelling evidence that, when people are denied that justice, there is a real detriment to communities and to their sense of place.
The lack of action is frustrating. In his contribution, Douglas Lumsden referred to the Government as “letting down rural Scotland”. That is correct, but we heard from Michael Matheson and others that it is not just rural Scotland that is being let down; it is our urban communities as well. People are encountering significant problems, such as with poor health and wellbeing, because they cannot access nature and green space in their community.
We know—and we have rehearsed the arguments this afternoon—about the failure over many years to achieve compliance with the convention and about the many missed deadlines. Over the years, there have been lots of advisory groups and support for the Government on human rights—the First Minister’s advisory group on human rights leadership in 2018, the national task force for human rights leadership in 2021 and the environmental improvement plan in 2023—all of which pointed out the real and significant challenges that exist. However, very little action has come from that.
In fact, in many respects, what we have seen is a move backwards. All of us would recognise that the stalling of the proposed human rights bill and action in that space represents a significant challenge, which is to be long-grassed into the next session of Parliament. Every time the Equalities, Human Rights and Civil Justice Committee takes evidence, that is pointed to as a significant challenge.
Fundamentally, this afternoon’s debate has been about ensuring that people have access to justice. A number of important comments have been made about the review of legal aid and the need to make legal aid more available and accessible. I appreciate that the Government is doing work on that—I am sure that the minister will have something to say about that in his winding-up speech—but the Equalities, Human Rights and Civil Justice Committee is working on the issue, too. The issue of environmental courts is one of many that I will not have time to get into, but it is clear that we need to have a wider debate on it.
I am grateful to have had the opportunity to take part in this afternoon’s debate. It is clear that more action is needed. The Government needs to hear that message, and it needs to respond accordingly.
17:10
I am pleased that this debate is taking place, because environmental justice has an impact on ordinary people and communities across the country.
We have heard about some of those issues today, and I welcome the minister’s commitment to introduce regulations to meet the requirements of the Aarhus convention. However, Douglas Lumsden described it as
“a disgrace and a shambles”
that such little progress has been made to date. Tess White made a strong argument for communities’ voices to be heard and described some of what she has seen as “environmental vandalism”. Sarah Boyack expressed her concern about the fact that a deadline to implement recommendations by 1 October 2024 had not been met. Mark Ruskell highlighted the issue of financial cost restricting access to justice.
Of course, there is a wider policy consideration—that of the codification and application of environmental law in a devolved context. We know that the Scottish Government has a policy position of aligning with EU law, even though there is no obligation on it to do so, but its policy with regard to international law—to which, from a legal perspective, there is a stronger case for adherence—is not clear.
I believe that there must be a level playing field when it comes to accessing environmental justice. We know that that is not the case at the moment. Pursuing action through the courts can cost eye-watering sums of money. That situation has put Scotland in breach of the Aarhus convention for a number of years. One community group in Maryhill in Glasgow had to resort to a loophole to secure legal aid. Even larger organisations find it tough. In one case, the John Muir Trust faced legal bills of almost £700,000.
The key point in all of this is not about giving one side an advantage over the other on any given issue. It is not about making it easier to challenge projects or, indeed, to steamroll decisions through. However, a review of legal aid in such cases should be looked at. I urge the Scottish Government to consider the Environmental Rights Centre for Scotland’s proposal that the exemption from court fees for Aarhus cases be extended to sheriff courts. That is a relatively minor change, but it would show that ministers are serious about making progress.
It is important to build trust, because—I am sad to say—the Scottish Government has a relatively poor record of living up to its environmental and international obligations. On the Aarhus convention, there is not really any sign that the Government has a clear strategy to make changes, especially given that its proposed human rights bill appears to be missing in action. The Government also missed more than half of the Aichi biodiversity targets. Meanwhile, it failed to meet the domestic emissions targets in nine years out of 13, and its response has been to abolish the targets.
I have spoken about this before, but those repeated failures, coupled, it would seem, with a lack of repercussions, damage public trust in climate change and climate action. Without that trust, it becomes extremely difficult to deliver the changes that we need to make in our economy to deliver sustainable growth.
That brings me to the subject of having an environmental court. At a high level, it would be a means of holding the Government to account over the kind of failures that I have just outlined, in turn helping to strengthen public trust in our climate policies. I also note that the Environmental Rights Centre for Scotland has outlined the potential for a number of practical benefits, such as reducing the current fragmentation whereby environmental litigation is carried out in multiple settings, or helping to reduce costs by reducing the risk of multiple legal proceedings stemming from one dispute.
Perhaps most importantly, a dedicated court would offer the possibility of easier and faster resolutions by, for example, employing mediation, which would reduce time and costs for all parties while building up greater technical expertise within the legal profession. The benefits seem obvious, so the question is: why is the Scottish Government not taking that seriously?
17:16
I thank colleagues from across the chamber for their valuable contributions to today’s debate on the Aarhus convention and the important matter of environmental justice.
As Mr Golden and many others have pointed out, access to justice in environmental matters is vital for both urban and rural communities. As members will appreciate, access to justice does not, and cannot, mean that all parties will always achieve the outcomes that they desire from every decision, but we should, as the Government does, seek to ensure that the rules are fair.
Siobhian Brown set out with great clarity the position in respect to compliance with the Aarhus convention, and it is important that we keep that issue in perspective, as she and many other speakers did. The Aarhus convention includes a wide range of obligations regarding environmental information, consultation and access to justice. We are currently working to address concerns raised by the compliance committee regarding one area that I accept is important: the cost of seeking judicial review of a decision. That is not a challenge to our overall approach to environmental information approvals or permitting, so I do not accept that the Scottish Government has, as some speakers suggested, been ignoring the convention.
There is clearly much that the Scottish Government can do and is doing to make progress on the outstanding issues. As was said earlier, action has been taken on protective expenses orders and a rule change has been enacted prompting a petitioner to request confidentiality when lodging a motion requesting a PEO, so that any hearing would be heard in chambers. That is progress, as is a rule change enacted in June last year that clarifies that a potential litigant’s exposure to an intervener’s costs is likely to be nil, provided that the litigant acts reasonably.
I accept that there is much more to do, but I will pick up on more areas of progress. A number of speakers referred to the specific point about reform of the system as it applies to sheriff courts. It is for the next court fees consultation, which is due to take place in the coming year, to look at that issue, but the Government certainly hopes that there will be progress.
It was good to hear the First Minister speaking today about the importance of the rule of law. Does the minister agree that access to justice is the ultimate guarantee of the rule of law and that, rather than just progress on the Aarhus convention, we need full compliance?
I do not dispute the need for compliance, although the member will understand that compliance without progress would be difficult, which is why we are making progress.
I will pick up on a number of other points that were made by other speakers, including some points about legal aid, which, as members have identified, is available for individuals but not for groups or NGOs. Regulation 15 of the Civil Legal Aid (Scotland) Regulations 2002 is a necessary control mechanism for the proper and consistent use of the legal aid fund. There is, however, scope to look at a different funding model that is about pursuing strategic litigation and is about the issue rather than the individual. The legal aid reform discussion paper commits the Scottish Government to exploring and testing
“how the full range of currently available funding tools can help achieve emerging government and justice priorities, support different methods of delivery, and tackle evidenced problems effectively.”
It is important that, where the Scottish Government or another public authority fails to follow appropriate law and procedures, its decisions can be challenged in a judicial review. However, we do not accept that, as was perhaps suggested at points in today’s debate, people should be able to judicially challenge decisions on an issue simply because they did not like the outcome—or, to put it more formally, because they wanted to enter into issues of merit. Parliament has repeatedly considered third-party appeal for planning decisions and decided against introducing that change.
I accept that, in all of this, there is a difficult balance to be struck. There is an intuitive appeal to the idea that people should be able to challenge decisions that they do not like and that the costs to them of doing that should be low. However, those costs would be shouldered elsewhere through the costs of courts and lawyers, delays to development and uncertainty about investment. Siobhian Brown explained the complexity of the systems that interact to ensure that there is balanced decision making and that people’s rights are upheld.
Does the minister recognise that referring to communities as the “third party” in decision making is really at the root of the problem? The campaign for equal rights of appeal is about treating communities as equal partners. Does the minister recognise why I say that?
Please conclude, minister.
I recognise that the term that is used in law is “third party”, but I absolutely accept the point that the member makes about treating communities with respect.
I conclude by pointing out that our planning system in Scotland is plan led, with a focus on involving all interests as early and as effectively as possible. Scotland remains committed to the principles of the Aarhus convention and we are working closely with the other devolved Administrations and the UK Government to consider the Aarhus convention compliance committee recommendations and all the potential solutions that are available.
I invite Edward Mountain to wind up on behalf of the Net Zero, Energy and Transport Committee. Please take us to 5.30 if you can, Mr Mountain.
17:22
I may struggle, Presiding Officer, but I will do my best.
I am pleased to close the debate on behalf of the Net Zero, Energy and Transport Committee. I thank members of both committees and the other speakers for their contributions.
As we have heard, the Aarhus convention is an important international agreement to protect environmental rights, and a key pillar of the convention is access to justice in environmental matters. Let us be honest that, as we have heard, Scotland has been found to be lacking in that respect. We are just not compliant with the convention, as access to environmental justice in Scotland is prohibitively expensive.
I am aware of the availability of legal aid in the area. The Scottish Government has committed to reviewing that, and the Equalities, Human Rights and Civil Justice Committee has been considering the matter. However, to address our non-compliance with the Aarhus convention, a more fundamental suggestion that has been raised with my committee is to create an environmental court. Many members have spoken about the potential benefits of such a court. Stakeholders have suggested that it could result in greater efficiency, quicker decision making and, ultimately, lower costs. It is considered that there is something of a gap in expertise in environmental cases, which can be very complex. A specialist court might reduce the time that is needed to establish and understand the facts in a case and thus, in turn, reduce the cost.
At the moment, the only route for an environmental case is a judicial review in the Court of Session. Let us be clear that that is complex and, indeed, very costly. We have heard concerns that a judicial review does not adequately allow the merits of an action to be assessed—only the process that was followed in reaching a decision. Thus, the creation of an environmental court was raised with the Net Zero, Energy and Transport Committee when we looked at the Scottish Government’s review of environmental governance arrangements.
The Government’s review accepted that there was a need for improvement to access to justice, but stakeholders were highly critical that it did not sufficiently engage with the question of creating an environmental court. A separate briefing paper on the topic was later produced, but it did little, as far as I can see, to alleviate stakeholders’ concerns. Having been described by Dr Richard Dixon, the chair of Environmental Standards Scotland, as “shoddy”, stakeholders thought overall that the Government’s review was a missed opportunity to look at the new environmental governance arrangements in Scotland that had been established post-Brexit.
The Scottish Government’s review highlighted its proposed human rights bill as a fix for the lack of access to justice. We were told that that would include recognition of a human right to a healthy environment. We were also told that that would be underpinned by international frameworks such as the Aarhus convention. We were told that it could strengthen routes to seek redress, and could potentially develop both judicial and non-judicial routes. Where is that bill? That commitment has, sadly, fallen by the wayside, leaving stakeholders frustrated at the continued lack of action to strengthen those rights.
There is now continued non-compliance with the Aarhus convention, without any clear plan to correct that. The Scottish Government has suggested that Environmental Standards Scotland is the answer to those problems. In the Government’s statement following its review, it asked ESS to consider the role that it might play in investigating individual cases.
Dr Richard Dixon, when he recently gave evidence to the committee, described the Government passing a “poisoned chalice” to ESS, as it gives the impression that ESS is going to fix the problem of the lack of access to justice. The Scottish Government is trying to pass to ESS the challenge, and therefore people’s expectations, which Dr Dixon said was unsatisfactory.
Although ESS fills an important role in environmental governance in Scotland, its functions are limited to what this Parliament authorised when we passed the UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021. ESS cannot give itself powers that the Parliament did not grant. We did not give ESS the power to investigate individual cases. Indeed, that was not an oversight, because amendments were debated at stages 2 and 3 that would have given ESS those broader powers, but the Parliament did not agree to those amendments.
The issues in this area go beyond what ESS has power to address; those are issues for the Scottish Government. It must be for the Scottish Government to reflect on our continued non-compliance with Aarhus. It is the Scottish Government that must act to ensure that environmental rights are meaningfully protected in a way that provides a clear and accessible route to justice.
In closing, I urge ministers to reflect on the issues that have been raised in this important debate and to establish a route forward to ensure that everyone in this country with a legitimate case to raise has access to environmental justice. We have heard a lot about such people in the debate, including groups relating to the development of pylon lines and groups in urban areas. I believe that the Government has a lot of work to do on the issue, and I urge it to take time to consider what has been heard in the debate.
I thank Mr Mountain for his contribution as convener of the Net Zero, Energy and Transport committee.
That concludes the debate on the Aarhus convention and access to environmental justice.
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