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Developments in environmental justice in Scotland - analysis and response

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Introduction

Purpose

1. The purpose of this analysis is to provide a summary of the key themes emerging from the responses and the argument behind these. The Scottish Government is considering the main issues raised by the respondents and its response is contained at the end of this document.

Background to consultation

2. The issue of environmental justice has been under consideration by the Scottish Government for some time. In 2006, it issued a consultation paper "Strengthening and streamlining: the way forward for the enforcement of environmental law in Scotland". This was a consultation on a wide-ranging discussion paper looks at how the Scottish environment could be improved by enforcing existing laws better. It examined ways in which the system could be more effective, including greater promotion of environmental management systems, the possible introduction of administrative penalties by regulators for those breaches which are unlikely to lead to court prosecutions, and whether environmental cases would be pursued more effectively if there was an environmental courts system established in Scotland.

3. Although the above consultation concentrated mainly on criminal issues, the Scottish Government has also be mindful of civil environmental justice matters. The United Kingdom is a signatory to the Aarhus convention – an international environmental agreement concerned with environmental protection and individuals' rights in relation to environmental decision-making. The Scottish Government has been aware of its obligations under the three "pillars" of the Convention:

  • the right of access to information;
  • public participation in decision-making; and
  • access to justice.

4. The consultation paper "Developments in Environmental Justice in Scotland"[1] was published on the Scottish Government Citizen's Space on 18 March 2016. It was drafted to fulfil a commitment made in the 2011 manifesto:

"We have received representations calling for the creation of an Environmental Court in Scotland, potentially building on Scotland's current Land Court. We are open-minded about this, but wish to seek wider views. We will, therefore, publish an options paper as the basis for a wider engagement on this proposal.

5. Although the manifesto commitment was made in the context of environmental and wildlife crime, it was expanded to seek opinions also on civil environmental justice and it demonstrated the changes that the Scottish Government has made to ensure that it is Aarhus compliant.

6. The consultation asked for views on three issues.

  • What types of case, both civil and criminal, do you consider fall within the term "environmental"? Please give specific examples. Which processes are currently used to deal with those cases you have identified? Do you consider those processes are sufficient?
  • This paper outlines the improvements to the justice system that this Government has delivered in relation to environmental justice. Do you agree that these changes have improved how environmental cases, both civil and criminal, are dealt with in Scotland? If you do not agree, please explain why.
  • Given the extensive changes that have already been delivered to the justice system (as outlined in this paper) and the need to ensure that any further changes are proportionate, cost-effective, and compatible with legal requirements, are there any additional ways in which the justice system should deal with both civil and criminal environmental cases? If so, please detail these. In particular, do you consider that there should be a specialist forum to hear environmental cases? If so, what form should that take (e.g. a court or tribunal)? Please provide reasons for your response

The 12-week consultation period ended on 10 June 2016 although extensions were granted until 21 June 2016.