Scottish Environment LINK, a coalition of 35 Scottish environmental charities, has welcomed the much-awaited Scottish Government consultation on environmental principles and governance in Scotland. At a time of great ecological crisis, the charities believe that the prospect of Brexit threatens to unravel critical environmental protections, and are urging members of the public to respond to the consultation through an online petition calling for a Scottish Environment Act.
Charles Dundas, Chair of Scottish Environment LINK, said: “We are pleased that the Scottish Government has taken this critical first step to consult on how to protect our environment from the risks of Brexit if and when this happens, but also on how to ensure future policies deliver on our shared goals of protecting and enhancing our natural environment.
“The Government has reconfirmed its existing commitments, but now we urgently need new concrete proposals to protect our right to a healthy environment. These must lock in and build on the full spectrum of EU protections. Through the Scottish Government’s consultation, we have the opportunity to take heed of the dangers affecting our natural environment and to push for a world-class Scottish Environment Act. Only when we have that commitment do we have a fighting chance of preventing further environmental degradation and unprecedented levels of species decline.”
LINK members are confident that responses to the consultation will reveal the need for Scotland to have its own Environment Act. This is why through the joint campaign Fight for Scotland’s Nature, the charities are urging Scottish Government to put forward a Scottish Environment Act that:
Embeds EU and international environmental principles in Scots law,
Creates an independent and well-resourced watchdog to enforce environmental law in the same way that the European Commission and European Court of Justice do today, and
Sets clear and ambitious targets for environmental protection alongside adequate financial resources.
Jeremy Wates, Secretary General of the European Environmental Bureau, said: “Environmental issues such as biodiversity loss, climate change and air pollution don’t stop at borders. Whatever the outcome of the Brexit discussions, Europe’s environmental organisations want to see high standards for the environment, and for citizens’ rights on environmental matters, maintained across Scotland, the rest of the UK, and the EU. Scottish Government commitments are welcome but now is time for real action.”
Joyce McMillan, President of Scottish Environment LINK, said: “This consultation will determine the strength of our environmental protections during the vital decade ahead, and will therefore play a key role in shaping the future of Scotland’s natural environment, so essential to all of us, our future, and our well-being. It will also help define the role we are able to play in ever-more-crucial international efforts to protect our planet from the threat of environmental degradation and climate breakdown.
“Every one of us must therefore send a clear message to the Scottish Government and the First Minister that the need to protect our environment is not an option, but an absolute necessity for a healthy and sustainable future for Scotland and its people. I urge everyone to sign our petition, and join the fight for Scotland’s nature. With 1 in 11 species in Scotland at risk of extinction, we cannot afford to see any reduction in environmental standards. On the contrary, we need to take radical steps to strengthen the protections that will ensure a long-term future for the rich and wonderful natural eco-systems on which all of us, and the plants and animals we care for, finally depend.”
The Scottish Government consultation on the future of Scotland’s environment is open for consultation until 11 May and the Fight for Scotland’s Nature petition on this can be found at www.fightforscotlandsnature.scot/action/.
For media enquiries and interview requests please contact: Azra Wyart at: mediaandeventsscotland@gmail.com
Notes to Editors(s) (1) Scottish Environment LINK is the forum for Scotland’s voluntary environment community, with over 35 member bodies representing a broad spectrum of environmental interests with the common goal of contributing to a more environmentally sustainable society.
LINK is a Scottish Charity (SC000296) and a Scottish Company Limited by guarantee (SC250899). LINK is core funded by Membership Subscriptions and by grants from Scottish Natural Heritage, Scottish Government and Charitable Trusts.
www.scotlink.org www.savescottishseas.org
(2) For more information about Scottish Environment LINK’s campaign, Fight for Scotland’s Nature, visit www.fightforscotlandsnature.scot.
(3) The European Environmental Bureau (EEB) is the largest network of environmental citizens’ organisations in Europe. It currently consists of around 150 member organisations in more than 30 countries (all EU Member States plus some accession and neighbouring countries), including a growing number of European networks, and representing some 30 million individual members and supporters. For more information, please visit: https://eeb.org/.
(4) On 16 February 2019, the Scottish Government issued a consultation on environmental principles and governance. The consultation document can be accessed here: https://consult.gov.scot/environment-forestry/environmental-principles-and-governance/.
(5) To support the Fight for Scotland’s Nature petition, please visit www.fightforscotlandsnature.scot/action/.
(6) Scottish Environment LINK members wrote to the Cabinet Secretary for Environment, Climate Change and Land Reform Roseanna Cunningham to ask her to support a Scottish Environment Act. The letter is available here: https://www.fightforscotlandsnature.scot/news/environmental-charities-call-for-scottish-environment-act/.
From schoolchildren to businesses and anyone in-between, politicians are being told loud and clear that we need to urgently tackle climate change. Our natural world is already in decline with global warming being considered as the greatest cause of species extinctions this century. The Intergovernmental Panel on Climate Change (IPCC) has said that a 1.5°C average temperature rise may put 20-30% of species at risk of extinction. If the planet warms by more than 2°C, most ecosystems will struggle.
And it is not just tigers and polar bears that will struggle. The recently published “Scotland’s Nature on Red Alert” report demonstrates that the future is looking bleak for many Scottish species and habitats. Commissioned on behalf of Scottish Environment LINK, a network of over 35 environmental charities in Scotland, and WWF Scotland, the report draws together existing evidence of climate change impacts on Scotland’s biodiversity.
In Scotland, climate change is changing the habitats of many species to such an extent that they can no longer live there. Species such as the Snow bunting is already a conservation concern as its mountaintop habitats are under threat, due to higher temperatures leading to less snow cover. Scotland’s globally significant machair habitat, only found in northern Scotland and north-west Ireland, is under threat from rising sea levels. Machair holds a variety of plants and insects which attract birds such as the Corncrake and the Corn bunting; it is also the last UK stronghold of the Great yellow bumblebee.
Climate change is warming our rivers and seas. Forecasts indicate that Scotland may lose its White beaked dolphin population, as it is already at the edge of its range and is being pushed further north with warming seas. Some of our most well-known fish species, such as Atlantic salmon and Arctic charr, prefer colder waters but as water temperatures rise, this will threaten the survival and growth of their eggs. Whilst Scotland is regarded as a stronghold for the Arctic charr, a recent study showed that 10 out of the 11 UK populations of Arctic charr studied have declined in abundance since 1990.
Warmer waters are also affecting the availability of food for many of our seabirds. For example, Kittiwakes, which have declined by approximately 60% since 1986, rely on sandeels. Sandeels feed on zooplankton, including the copepod Calanus finmarchicus which does not do well in warmer waters. So as our waters get warmer, sandeel populations decline which then affects seabirds such as the Kittiwake.
Climate change is also affecting food sources of other species such as the Golden plover and the Capercaillie. Changing climate conditions upset the availability of food on which chicks rely on. Specifically, a wet June reduces the Capercaillie chick’s ability to forage for insects, with those chicks that eat less have a reduced chance of survival. For the Golden plover there is now a mismatch between the annual breeding time and the annual emergence of the chicks’ critical food source, craneflies.
In Scotland, climate change impacts on biodiversity will be further compounded due to our geography. With Scotland located at the western edge of the European continent, many species will simply have nowhere to go as the Atlantic Ocean is a natural barrier to their movement.
These species losses are potentially devastating, and not just in terms of our environment’s natural and cultural value but also because of the ecosystem services our species and habitats provide. We rely on those services for our own wellbeing and to mitigate the impacts of climate change. If our peatlands dry out, they can no longer store as much carbon for us and our rivers may no longer protect us from flooding if rainfall levels rise.
To stem the tide of species decline in Scotland, we need to drastically cut greenhouse gas emissions by 2030 and reach net zero emissions by 2050 at the latest. However, emissions will go down faster if we have a healthy environment that can sequester carbon, while continuing to provide important ecosystem services such as pollination, clean water and air. In other words, ambitious climate targets will only really deliver if we restore the health of our nature and improve its resilience to climate change.
Therefore, the Scottish Parliament must ensure that the new Scottish Climate Bill fully reflects the ambition of the Paris Agreement to limit the temperature increase to 1.5°C by introducing ambitious targets ending Scotland’s contribution to climate change, and back these up with action to secure the future of Scotland’s wildlife. Anything less compromises Scotland’s already fragile biodiversity.
Craig Macadam, Vice Chair of Scottish Environment LINK. A version of this article was featured in the Friends of the Scotsman on 8 February here.
The need to focus on overall consumption reduction, improve our metrics, be mindful of the importance of biodiversity, and introduce a circular economy bill to drive radical and systemic change, were some of the findings of a recent seminar.
An OECD report published last year finds that the world’s consumption of raw materials is set to double by 2060 and we know that in Scotland we consume more than our fair share. Much of the environmental and social impact of our consumption falls beyond our borders and there is a massive moral imperative to reduce our consumption of raw materials. Scottish Environment LINK’s project, A Circular Economy for a Fairer Footprint, aims to garner support for legislation and policies to increase circularity of the Scottish economy.
LINK recently held a seminar to discuss pathways to a more resource efficient and circular economy in Scotland. Participants came from the public, private and third sectors and we heard about progress to date, experience from other parts of the UK, and areas of policy development. It was a thoroughly stimulating morning and there were a number of points which struck me.
First, there was widespread support amongst participants for our emphasis on a fairer footprint and agreement that we should be pushing for a circular economy which goes beyond increased efficiencies to one with an overall reduction in consumption of raw materials.
Second, that radical change is needed. Scotland has rightly been commended for the leadership shown in taking forward a number of projects and areas of work to support increased circularity. However, much of what has been done has involved working with the ‘interested and willing’ and to really make a difference we need more radical and systemic change. The seminar heard about a recently completed study in Finland which looked at how fiscal reform could incentivise the shift to circularity. In the UK the proposed tax on plastic bottles which contain less than 30% recyclate is a start.
Third, although the circular economy is often presented in terms of economic opportunities, the shift required represents a real challenge to business. Often the changes needed can not be achieved by tweaks to existing models. Clear policy horizons and level playing fields are good for business and the lack of the former is one of the reasons that private investment in the circular economy is low.
Fourth, for many Scottish Environment LINK members, the absence of biodiversity in the discourse about a more circular economy is a concern. We know that biodiversity provides us with many life support functions, and we need to co-exist with biodiversity, allowing it to flourish alongside us. Biodiversity not only suffers at the hand of our current economic activities, it also offers some of the solutions; in particular playing an integral part of more circular land-use practices where natural recycling and predator systems can replace the need for artificial inputs.
Fifth, the development of metrics to enable us to assess the quantities of materials being consumed and the impact that is having on our planet is very important. Work is under way which will provide basic data for Scotland soon and this is a hugely important step which will inform policy development and allow us to monitor progress. However, material flow and consumption data is based on weight and, although this can be complemented with information on carbon, it still falls short of giving us the full picture in terms of environmental impact.
Sixth, extended producer responsibility (EPR), currently applied narrowly and widely felt ineffectively, theoretically has enormous scope. It could be applied, for example, to the production of white goods or furniture. Westminster are soon to consult on reform of EPR and we need to think about its potential.
Finally, the seminar discussed a circular economy bill for Scotland. This was promised in the 2016 SNP manifesto but has not yet been brought forward. Such a bill could demonstrate intent and provide the clear policy signal that we need. The next step for the Circular Economy for a Fairer Footprint project will be to develop a call for a circular economy bill, drawing on the expertise of others and bringing together a coalition of organisations.
Phoebe Cochrane is Scottish Environment LINK’s Sustainable Economics Policy Officer and leads the Circular Economy for a Fairer Footprint project.
The need to focus on overall consumption reduction, improve our metrics, be mindful of the importance of biodiversity, and introduce a circular economy bill to drive radical and systemic change, were some of the findings of a recent seminar.
An OECD report published last year finds that the world’s consumption of raw materials is set to double by 2060 and we know that in Scotland we consume more than our fair share. Much of the environmental and social impact of our consumption falls beyond our borders and there is a massive moral imperative to reduce our consumption of raw materials. Scottish Environment LINK’s project, A Circular Economy for a Fairer Footprint, aims to garner support for legislation and policies to increase circularity of the Scottish economy.
LINK recently held a seminar to discuss pathways to a more resource efficient and circular economy in Scotland. Participants came from the public, private and third sectors and we heard about progress to date, experience from other parts of the UK, and areas of policy development. It was a thoroughly stimulating morning and there were a number of points which struck me.
First, there was widespread support amongst participants for our emphasis on a fairer footprint and agreement that we should be pushing for a circular economy which goes beyond increased efficiencies to one with an overall reduction in consumption of raw materials.
Second, that radical change is needed. Scotland has rightly been commended for the leadership shown in taking forward a number of projects and areas of work to support increased circularity. However, much of what has been done has involved working with the ‘interested and willing’ and to really make a difference we need more radical and systemic change. The seminar heard about a recently completed study in Finland which looked at how fiscal reform could incentivise the shift to circularity. In the UK the proposed tax on plastic bottles which contain less than 30% recyclate is a start.
Third, although the circular economy is often presented in terms of economic opportunities, the shift required represents a real challenge to business. Often the changes needed can not be achieved by tweaks to existing models. Clear policy horizons and level playing fields are good for business and the lack of the former is one of the reasons that private investment in the circular economy is low.
Fourth, for many Scottish Environment LINK members, the absence of biodiversity in the discourse about a more circular economy is a concern. We know that biodiversity provides us with many life support functions, and we need to co-exist with biodiversity, allowing it to flourish alongside us. Biodiversity not only suffers at the hand of our current economic activities, it also offers some of the solutions; in particular playing an integral part of more circular land-use practices where natural recycling and predator systems can replace the need for artificial inputs.
Fifth, the development of metrics to enable us to assess the quantities of materials being consumed and the impact that is having on our planet is very important. Work is under way which will provide basic data for Scotland soon and this is a hugely important step which will inform policy development and allow us to monitor progress. However, material flow and consumption data is based on weight and, although this can be complimented with information on carbon, it still falls short of giving us the full picture in terms of environmental impact.
Sixth, extended producer responsibility (EPR), currently applied narrowly and widely felt ineffectively, theoretically has enormous scope. It could be applied, for example, to the production of white goods or furniture. Westminster are soon to consult on reform of EPR and we need to think about its potential.
Finally, the seminar discussed a circular economy bill for Scotland. This was promised in the 2016 SNP manifesto but has not yet been brought forward. Such a bill could demonstrate intent and provide the clear policy signal that we need. The next step for the Circular Economy for a Fairer Footprint project will be to develop a call for a circular economy bill, drawing on the expertise of others and bringing together a coalition of organisations.
By Phoebe Cochrane, Scottish Environment LINK’s Sustainable Economics Policy Officer and lead for the Circular Economy for a Fairer Footprint project which is funded by Friends Provident Foundation.
On Monday 10 December, celebrated across the globe as the International Human Rights Day, the First Minister’s Advisory Group on Human Rights Leadership published its recommendations on “how Scotland can continue to lead by example in the field of human rights”. Entitled “Recommendations for a new human rights framework to improve people’s lives”, the report recommends that an Act of the Scottish parliament is passed to embed economic, social, cultural and environmental rights into Scots law. The First Minister has welcomed the recommendations, and as a first step has announced a taskforce will be established in the new year to progress the plans.
Scottish Environment LINK’s members and Fellows have, during 2018, been pleased to attend meetings of the Advisory Group’s reference group as well as a specific Round Table meeting on the environment. LINK was, therefore, delighted to welcome the report’s recommendation in relation to environmental rights.
The Group have recommended that the new Scottish legislation should include, alongside economic, social and cultural rights a specific right to a healthy environment. It says:
“This overall right will include the right of everyone to benefit from healthy ecosystems which sustain human well-being as well the rights of access to information, participation in decision-making and access to justice. The content of this right will be outlined within a schedule in the Act with reference to international standards, such as the Framework Principles on Human Rights and Environment developed by the UN Special Rapporteur on Human Rights and the Environment, and the Aarhus Convention.”
Scottish Environmental LINK’s Chair, Charles Dundas, responded that:
“This is a hugely important recommendation which recognises the fundamental significance of the environment to our health and wellbeing. We cannot get to a fairer Scotland without a healthy environment.”
LINK’s members therefore welcome this recommendation and look forward to working with the new taskforce and subsequently the Scottish Parliament to implement this proposal. In addition to the general importance of this proposal, it is also important to note that the Advisory group was set up in the context of ‘Brexit’ with the First Minister commenting:
“I wanted to ensure Brexit does not harm human rights in Scotland and that we remain in step with future advances in EU human rights. I also asked for recommendations to ensure Scotland is an international leader in respecting and enhancing human rights”.
Intrinsically, the environment is an international and cross-border issue and 70-80% of our domestic laws relating to the environment originate in Europe. Thus, there can be no doubt that, if or when Brexit happens, the environment – and the laws and policies to protect and enhance our environment – will be severely affected. To meet the First Minister’s ambition of international leadership, therefore, this recommendation must be fully and honestly implemented in parallel with other actions made necessary by Brexit.
A key post-Brexit challenge for all the UK’s governments is the so-called “governance gap”. At present, the various institutions of the EU (notably the European Environment Agency, the European Commission and the European Court of Justice) undertake a range of environmental policy functions. In their absence, these functions will need to pass to existing or new bodies within Scotland and/or the UK. The Scottish Government has recognised this challenge, and sought advice from a sub-group of its Round Table on Environment and Climate Change. A consultation paper on possible ways forward is expected imminently.
These matters interrelate, however, as a key part of any right to a clean and healthy environment is the right for citizens, communities and NGOs to challenge decision-makers in relation to matters that may undermine the enjoyment of that right – or may be contrary to legislation that seeks to give it effect.
At present, the European Commission’s complaint procedure is one affordable and accessible mechanism by which citizens, communities and NGOs can raise concerns. By contrast, domestic procedures such a Judicial Review are costly and usually cannot address the merits of the issue. This underlines the importance of the Advisory Group’s recommendation that the implementation of the right must include access to justice – with reference to international standards such as the Aarhus Convention and the UN Framework Principles on Human Rights and the Environment. Present arrangements have been shown to be contrary to the Aarhus Conventions requirements.
LINK members therefore see the forthcoming Scottish Government consultation on post-Brexit governance and the proposed new environmental right as intrinsically linked. They both contribute to a better Scotland, where our environment is protected and enhanced, and is recognised as underpinning our own health and wellbeing. It is essential also that the engagement, participation and rights of citizens, communities and NGOs in environmental matters is both recognised and enhanced. Unless the latter is delivered, we cannot be the ‘international leaders’ that the First Minister aspires to be.
So, as we enter 2019 (and possibly the likely outcome of the Brexit debates become clearer), where now?
First, LINK members look forward to working with the First Minister’s new taskforce on human rights implementation.
Secondly, we also look forward to seeing and responding to the Scottish Government’s consultation on (post-Brexit) EU environment principles and governance.
Thirdly, however, we must implement these measures with a clear vision of the importance of the environment, clear ambition for its protection and conservation and determination to deliver these outcomes. This is why LINK has welcomed the Scottish Government’s development of a long-term strategy for the environment – and debates relating to post-2020 ambitions for climate change and biodiversity.
But, consultations, discussions and strategies are insufficient. There is a clear need to underpin this all in a Scottish Environment Act – this is the key aim of the LINK members’ campaign to “Fight for Scotland’s Nature”. Such an Act should set clear ambitions, require actions to deliver those ambitions, underpinned by the EU environmental principles and supported by new governance mechanisms – including the implementation of the new environmental rights.
By Lloyd Austin, Convener of LINK’s Governance Group
From the air we breathe to the food we eat, Scotland needs seas full of life. Yet they are struggling. With the tide of ocean plastics awareness, resistance to mechanically stripping pristine kelp forests, community monitoring of scallop dredge damage in Loch Carron, Firth of Lorn and Loch Gairloch and a growing consensus for overhauling aquaculture, more and more people realise this.
Scotland’s seas are home to thousands of species, including commercially important fish and shellfish and charismatic whales, dolphins, seals, seabirds and basking sharks, all supporting livelihoods and coastal communities. Seagrass meadows, kelp forests, cold water coral reefs, rich burrowed sediments, maerl, flameshell, native oyster and horsemussel beds are the engine-room, also storing carbon that would otherwise contribute to climate change. Our seas also provide much needed space to relax, explore and exercise, to swim, snorkel, dive, sail and walk beside.
However, they need help. Climate change, overfishing, unsustainable development, invasive species, noise and litter are pushing them beyond environmental limits. Over the last decade many thousands across Scotland, coastal communities, industry and environment groups alike, have called for better. The watershed Marine (Scotland) Act 2010 overhauled an outdated licensing system and enshrined duties to protect and enhance Scotland’s seas, deliver sustainable development, mitigate and adapt to climate change and establish a National Marine Plan and Marine Protected Area (MPA) network. In 2014, 30 new nature conservation MPAs were created, in 2016 fisheries protection measures introduced in the 16 most vulnerable inshore sites and a large Harbour Porpoise site submitted to EU and in 2017 the Loch Carron emergency MPA established and a Government commitment to scoping a deepwater marine reserve made. In a northeast Atlantic context Scotland is therefore ahead of the curve and must be recognised as such, but progress has slowed. Consultation on fisheries measures for a further 17 inshore sites is expected early next year and measures for 18 offshore sites long-submitted by the Scottish Government still await formal EU approval. Many therefore remain at risk of being “paper parks”.
Known gaps in Scotland’s MPA network also exist, including for marine birds, whales, dolphins and basking sharks, as well as for white-beaked dolphins, spiny lobsters and additional sites for the critically endangered common skate. In January 2018, a Budget deal was secured to ensure four much-needed MPAs would be consulted on, now postponed until early 2019. Whatever the timescale, key to success will be ensuring sites are protected, concerns over which have been raised with reported incursions of scallop dredgers into protected sites, and effective monitoring of seabed health to gauge if measures are working and recovery happening. The Scottish Government is due to report on Scotland’s MPA network to Parliament by the end of the month.
Recovery beyond MPAs is also needed and here the National Marine Plan is crucial. In April 2017, scallop dredging damage to Loch Carron flameshell beds activated a general policy requiring that the national status of Priority Marine features (PMFs) must not be significantly impacted. An emergency MPA, containing what is possibly the world’s largest flameshell bed, was subsequently established and the Scottish Government committed to improve protection for 11 PMFS at greatest risk from fishing outside MPAs, with a consultation due next year. The National Marine Plan also guides regional marine planning, an important mechanism for inshore recovery, and 11 marine regions have been identified. However, only Shetland and the Firth of Clyde are actively developing draft plans, with Orkney anticipated next.
Loch Carron also underlined the recognised need to modernise inshore fishing, with comprehensive vessel monitoring and traceability key to consumer confidence. As pressure from other industries such as aquaculture and marine tourism also grows, the need for a precautionary and ecosystem-based approach to use and enjoy our seas within environmental limits has never been greater.
During this Year of Young People, a survey recorded that 11 to 26 year olds thought our seas should be protected but that more effort was needed. Announcing the results at the Sea Scotland 2018 conference, Jack Dudgeon, Vice Chair and Member of the Scottish Youth Parliament, reminded us that young people care about the environment and that they will live with the implications of today’s decisions for the longest time. As we approach the end of 2018 and near 2020, a target ‘super’ year for many important international commitments, all opportunities to boost the health of Scotland’s seas must be grasped for the benefit of current and future generations.
Calum Duncan Head of Conservation Scotland, Marine Conservation Society Convener, Scottish Environment LINK’s Marine Group
This blog was published in The Scotsman here on 12 December
Scotland is a fantastic place for nature, and plants are a huge part of what’s special about it. From the arctic-alpine wildflowers of our highest summits, to the vibrant, flower-studded machair of the Hebrides, or the Atlantic rainforests of the west coast dripping with lichens, the diversity of our plant life underpins every ecosystem.
But with 1 in 11 species in Scotland at risk from extinction, nature needs all the protection it can get.
Until now, a large part of that protection has come from EU legislation, which accounts for 80% of environmental protections in Scotland. Brexit threatens these protections, and we need to act now to ensure that our habitats and species aren’t lost once we leave the EU.
That’s why Plantlife Scotland was involved in the launch of a new campaign, organised by Scottish Environment LINK. The Fight for Scotland’s Nature campaign sends a clear message that Scotland needs politicians to act now, before it’s too late, to put in place principles to continue the protections we have and to ensure that these are embedded in domestic legislation.
The campaign was launched in November outside the Scottish Parliament, and is supported by 35 environmental charities under the Scottish Environment LINK partnership.
Through the campaign, we will be fighting to ensure that the EU principles of environmental protection are enshrined in new legislation. We will be calling for an independent watchdog to hold governments to account, which is crucial if the new legislation is to have teeth and be implemented. And we will be calling for clear, ambitious environmental targets, and the resources to deliver real environmental protection across the country.
If you have ever taken a walk through Scotland’s spectacular landscapes and enjoyed seeing the wildlife that lives here, chances are you have benefited from the legislation that has protected these habitats and species. Strong environmental legislation will go a long way towards ensuring the survival of our priceless natural heritage, and it’s time for our politicians to act.
The Scottish Government sets itself apart from its UK counterpart in its approach to protecting human rights. The SNP vocally opposed proposals to withdraw the UK from the ECHR and repeal the Human Rights Act. An expert group appointed by the First Minister Nicola Sturgeon will report this year with recommendations on how Scotland “can continue to lead by example in human rights”, and appears to be considering incorporating a range of rights from international human rights law into the Scottish legal system.
In environmental rights however, the lack of progress is conspicuous. As David Hart QC explained, the Aarhus Convention aims to protect the right to live in an environment adequate to health and wellbeing – the foundation on which other human rights are built. It recognises the rights of NGOs and members of the public to access information, participate in decision-making, and access justice. These rights encourage citizens to get involved in environmental decision-making. Article 9 requires that NGOs and members of the public must be able to challenge situations where their Convention rights are denied or national environmental laws are broken. Critically, access to justice must be “not prohibitively expensive”.
2018 brings a new development. New protective expenses orders rules for environmental litigation in Scotland were created last week. This post examines these rules, and argues that they remain out of line with the Convention.
Protective costs/expenses orders Adversarial justice systems are expensive for litigants. The general rule is that the loser pays their opponent’s legal costs – meaning that a litigant can end up liable for two sets of costs.
The UK’s attempt at mitigating this has been to create a system of ‘protective costs orders’ (protective ‘expenses’ orders – or PEOs – in Scotland, because we like to be different). They enable a person or NGO to go to court for an order at the outset of their case to cap their liability for adverse costs orders if they lose. This warms the ‘chilling effect’ of open-ended liability on willingness to litigate.
Three distinct regimes exist in England and Wales, Northern Ireland and Scotland. Statutory PEO rules have existed in Scotland since 2013, covering judicial reviews and statutory appeals in the Court of Session. These were amended in 2015. In 2017, the Scottish Civil Justice Council (SCJC) consulted on further reforming the rules.
The 2018 rules make a number of changes to the PEO system in Scotland. I start with the positive changes and move onto their problematic features.
Positive changes 1. Improved application process The 2018 rules contain two positive developments. First, they improve the application process. Under the pre-existing system, PEO applications were usually decided using contested hearings. This ‘satellite litigation’ created extra costs.
PEO applications are now to be made by motion with the presumption that they will be decided without a hearing. Applications should address a set of prescribed subjects, but the rules stop short of the standard form application process recommended by the Faculty of Advocates.
Additionally, where a court refuses to award a PEO, the applicant’s liability is limited to £500 to the other side for the PEO application. This is an improvement on the pre-existing position, where no such cap existed. Given the purpose of the PEO regime, you might question why a PEO applicant should face any liability at all. The SCJC did not offer any reasoning to support this £500 limit or carry out any assessment of its affordability.
These changes should reduce the costs of applying for a PEO. However, the time-consuming nature of the work involved in applying means that the PEO application process will likely remain unaffordable for most.
2. Defining ‘prohibitively expensive’ PEOs are only awarded if a court determines that the proceedings will be ‘prohibitively expensive’ for the applicant. The second positive change is that the new rules define this term. A mix of objective and subjective factors are used which largely replicate Regulation 6 of the Northern Irish PCO rules (themselves derived from judgments from the CJEU and the UKSC):
(3) Proceedings are to be considered prohibitively expensive for the purpose of this Chapter if the costs and expenses likely to be incurred by the applicant for a protective expenses order— (a) exceed the financial means of the applicant; or (b) are objectively unreasonable having regard to— (i) the situation of the parties; (ii) whether the applicant has reasonable prospects of success; (iii) the importance of what is at stake for the applicant; (iv) the importance of what is at stake for the environment; (v) the complexity of the relevant law and procedure; and (vi) whether the case is frivolous.
Adjudicating where a case is prohibitively expensive should become simpler for courts, because the rules contain clear guidance for the judiciary on the factors to be taken into account. However the criteria are broadly-framed, so it remains to be seen how they will be interpreted in practice.
Detrimental features Before anyone rushes out to celebrate, three concerning features of the rules need unpacked. 1. Uncapped default caps The pre-existing rules contained ‘default caps’ – the default position for a litigant with a PEO was that their liability to the other side was capped at £5,000 if unsuccessful; but they were only able to recover £30,000 from their opponent if successful. The old rules allowed for variations of the default caps in favour of a PEO applicant (i.e. to decrease the £5K cap or increase the 30K cap).
The new PEO rules make it possible to change the default PEO caps in either direction (i.e. potentially increasing the PEO applicant’s liability to their opponent or decreasing the applicant’s ability to recover their expenses if successful).
The test for changing the caps is “on cause shown”. This is a low test. Despite constituting a significant change to the PEO regime, this change was not highlighted in the SCJC’s consultation document to allow proper public consideration of its impacts. It will be attractive for respondents in most cases to seek to use this change in favour of less generous caps for PEO applicants – the likely result being that legitimate claims are deterred from proceeding and uncertainty is added to the system.
2. ‘Carrying over’ PEOs on appeal Under the pre-existing rules, a PEO only covered the proceedings being contemplated at the time of application. This meant that if someone applied for a PEO for proceedings in the Outer House and won their case, but the respondent then appealed – (s)he would have to apply for a new PEO for the appeal in the Inner House.
The new rules create the welcome change that, where a PEO has been granted in the Outer House, its terms will also cover proceedings in the Inner House where the respondent appeals. Where the PEO holder appeals an Outer House decision however, they will have to apply for another PEO to cover the appeal in the Inner House.
The ACCC’s conclusion on this matter is unequivocal. Its 2017 report found that having to reapply for a PEO when filing an appeal: … leads to uncertainty and additional satellite litigation, which itself adds further cost, at the appeal stage and accordingly is not consistent with paragraphs 8 (a), (b) and (d) of decision V/9n.
Additionally, if a PEO remains in place, its caps are static on appeal. So despite the legal costs increasing due to the additional work required of the PEO holder’s legal team to prepare and present their appeal (plus the additional costs of applying for another PEO if necessary), the ability of someone with a PEO to recover their expenses if successful will remain capped at £30K if successful on appeal.
The likely result of the 30K cap remaining static when carrying over on appeal is that the petitioner’s ability to pay for their legal representation will decrease when a PEO is carried over. This perverse outcome further tilts the inequality of arms in these cases.
3. No mandatory publication of PEO decisions It is impossible to establish whether individual decisions are being made according to the rules or assess how the PEO system is working without the systematic publication of PEO application decisions. Yet there is no requirement for this, and the current approach to publication is irregular.
Publication is compulsory under Article 9(4), which requires that: Decisions under this article shall be given or recorded in writing. Decisions of courts, and whenever possible of other bodies, shall be publicly accessible.
The SCJC was invited to address this in the consultation, but failed to make the necessary changes. It is odd that the necessity of transparency is not accepted in 2018.
Scotland’s slow crawl towards compliance The new application process and definition of ‘prohibitively expensive’ are welcome changes. The new rules have made some improvements to the PEO system.
However, the rules are no panacea to Scotland’s longstanding non-compliance. Limited improvements do not excuse numerous deficiencies. The provisions for carrying over PEOs on appeal are manifestly non-compliant. Uncapping the default caps creates unnecessary uncertainty for litigants, a significant detrimental change which was not properly consulted upon. Sunlight is the best disinfectant – but nothing in the new PEO rules guarantees that its operation will be exposed to any curative rays.
Overall, the PEO system remains a limited mechanism to meet the Convention’s requirements. Access to environmental justice is an unaffordable luxury rather than a basic human right in Scotland. The Scottish Government should recognise and address the shortcomings of the Scottish civil justice system.
by Dr Ben Christman, trainee solicitor at the Legal Services Agency (Glasgow)
Scottish Environment LINK, a coalition of Scotland’s leading environmental charities has today launched an urgent campaign, “Fight for Scotland’s Nature”, for Scotland to have its own environment act.
Scotland may be small, but our natural environment is mighty and of global importance.
From the iconic Scots pine of the Caledonian Forest, home to rare species such as the capercaillie, the red squirrel, the pine marten and Scottish wildcat, to the stunning wild flowers of the machair, Scotland’s nature is amazing and something we should be rightly proud of.
Scotland’s breathtaking landscapes contain internationally important habitats. For example, Scotland has 5% of the world’s peatlands and the highest percentage of peatland cover anywhere in Europe, storing 25 times more carbon than all the UK’s vegetation. Often overlooked, peatlands are also a vital resource for native and migrating birds who depend on them to rest and feed – a reminder of the importance of ensuring well cared for natural areas.
It’s not just on land we can see the abundance of life – our marine area accounts for a staggering 60% of UK’s seas and 10% of Europe’s coastline. We are home to one third of all of Europe’s breeding seabirds and 29% of Europe’s seals. Our coral reefs, thought to be around 4,000 years old, support an incredible array of life, including fish, sharks and invertebrates.
Our health and wellbeing rely on a thriving environment that provides us with food and clean water and air. It also delivers economic benefits with 14% of jobs in Scotland supported by our nature.
Sadly, this life supporting system with all its beauty and diversity is in trouble. Historical land use change has led to habitat loss and species declines, making Scottish nature less resilient to the unprecedented environmental pressures we see today. Every day brings new evidence of the global ecological crisis that is underway. The effects of climate change and ecosystem collapse are on our doorstep even here in Scotland – just think back to the Beast from the East in the winter, all the severe storms we have witnessed and the summer droughts.
With around 80% of all our environmental laws in Scotland coming from the EU, it is clear how indispensable this legislation is for the protection of our environment. The legal framework of protections and associated funding that we currently receive from the EU have been pivotal in holding back the tide of further biodiversity declines.
The combination of strong legislation and support for effective implementation has made these environmental laws among the most effective on Earth. Brexit threatens to unravel this set of critically important backing at a time when 1 in 11 species in Scotland is at risk of extinction.
This is why Scotland’s leading environmental charities are calling for a new environmental law, a Scottish Environment Act, that is fit for purpose and able to cater to Scotland’s unique environmental needs.
Scotland needs to continue to develop environmental protections on the basis of the internationally recognised EU environmental principles and have an independent and well-resourced watchdog to ensure environmental legislation is upheld.
Clear targets for environmental ambitions supported by long-term actions and funding to mitigate climate change, create robust ecosystems and push for sustainable use of our natural resources that is good for us and our land and seas are also required.
Strong legislation, in the form of a Scottish Environment Act that builds on existing Scottish Government commitments to retain EU protections would achieve this. It would send a clear message to both EU partners and the world of our unwavering commitment to protecting and enhancing our natural environment. Such a statement would be all the more potent as we approach 2020, a year critical for the culmination of global efforts to halt and reverse biodiversity loss.
Along the words of leading French philosopher Michel Serre, in Scotland too, we must reconsider our relationship with nature and “sign our natural contract” with the planet to bring harmony and mutual respect to the very thing that sustains life.
The trick is to do this before it’s too late. It’s time for us all to fight for Scotland’s nature.
Charles Dundas of Woodland Trust Scotland and Chair of Scottish Environment LINK.
Scottish Environment LINK, a coalition of Scotland’s leading environmental charities will today launch an urgent campaign, “Fight for Scotland’s Nature” at the Scottish Parliament. Together they will call for Scotland to have its own environment act.
Fears sparked by Brexit as well as mounting evidence of the global ecological crisis also heavily impacting Scotland has prompted the charities to join forces and urge the Scottish Government to commit to a dedicated Environment Act for Scotland that protects and enhances Scotland’s nature, now and in the future.
80% of all Scotland’s environmental laws come from the EU. The combination of strong legislation and support for effective implementation has made these laws among the most effective on Earth. Further, Scotland’s nature has been a net beneficiary of the EU’s LIFE Nature fund which alone has supported conservation projects worth well over 25 million Euros to date.
If and when Brexit happens, Scotland (along with the rest of the UK) will lose the unrivalled support and enforcement roles of the European Commission, European Court of Justice and other EU bodies. Alarmingly, with only four and a half months to go, there is uncertainty about what will replace this.
This is why Scottish Environment LINK is pushing the Scottish Government to fight for Scotland’s nature and commit to a world class environment act before it’s too late. Ahead of global 2020 targets on halting biodiversity loss, it is important that Scotland sends a clear message to the world that our environmental protections are not up for grab.
Joined up legislation in the form of a Scottish Environment Act, that is fit for purpose and caters to Scotland’s unique environmental needs is required for this to be meaningful.
Scotland may be small but its natural environment is of world importance. It has 60% of the UK’s seas and 10% of Europe’s coastline. It is home to a staggering one third of all of Europe’s breeding seabirds and 29% of Europe’s seals. Its coral reefs, thought to be around 4,000 years old, support an incredible array of life, including fish, sharks and invertebrates. As for peatlands, Scotland has 5% of the world’s share, which stores 25 times more carbon than all the vegetation of the UK.
Charles Dundas of Woodland Trust Scotland and Chair of Scottish Environment LINKsaid: “Our environment is important not just in terms of its natural and cultural wealth. It is our life support system and we rely on it for food, clean water and air and jobs – 14% of which exist as a result of our nature.
“But this is all under threat. Every day brings new evidence of the global ecological crisis that is underway. Even here in Scotland, with 1 in 11 species currently at risk of extinction, the effects of climate change and ecosystem collapse are apparent. The legal framework of protections and associated funding that we currently receive from the EU have been pivotal in holding back the tide of further biodiversity declines.”
Scottish Environment LINK is stressing the importance of Scotland continuing to develop protections in line with internationally recognised EU environmental principles that have been crucial in safeguarding Scotland’s nature and enabling it to thrive. It also warns of the dangers of inadequate support and funding to effectively implement laws. Further, it is pushing for clear environmental targets supported by long-term actions and funding to mitigate climate change, create robust ecosystems and ensure sustainable use of our natural resources that is good for us and our land and seas.
Joyce McMillan, President of Scottish Environment LINK said: “As guardians of our amazing environment, we have a duty to ensure future environmental legislation is not tokenistic. It must be upheld through an independent and well-resourced watchdog.
“Now more than ever, we need a Scottish Environment Act that builds on existing Scottish Government commitments to retain EU protections. This would send a clear message to UK and EU partners as well as the rest of the world that we are serious about protecting and enhancing our natural environment. We live in a time of increasing environmental crisis and degradation, and it is vital that Scotland remains a dynamic part of the movement towards a more sustainable future, both for our own sakes, and as a reflection of our commitment to wider international efforts to protect and cherish the natural world on which we all depend.”
Ends
For media enquiries and interview requests please contact: Azra Wyart at: mediaandeventsscotland@gmail.com or call: 07788437819.
Notes to Editors (s)
(1) Scottish Environment LINK is the forum for Scotland’s voluntary environment community, with over 35 member bodies representing a broad spectrum of environmental interests with the common goal of contributing to a more environmentally sustainable society.
LINK is a Scottish Charity (SC000296) and a Scottish Company Limited by guarantee (SC250899). LINK is core funded by Membership Subscriptions and by grants from Scottish Natural Heritage, Scottish Government and Charitable Trusts.
(2) For more information about Scottish Environment LINK’s, Fight for Scotland’s Nature Campaign visit www.fightforscotlandsnature.scot.
(3) Scottish Environment LINK members wrote to the Cabinet Secretary for Environment, Climate Change and Land Reform Roseanna Cunningham to ask her to support a Scottish Environment Act. The letter is available here.
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