Campaigners have criticised the Scottish Civil Justice Council (SCJC), for its lack of transparency in undertaking a review of legal expenses after Scotland and the rest of the UK breached the UN’s so-called “Aarhus Convention” rules on this. Sadly, there’s barely been a murmur in the corporate media on this.
The Aarhus Convention: breaches in the UK
In July 2022, the SCJC, with oversight of Scotland’s civil justice system, was tasked by the Scottish Government to review legal expenses (court rules). This is required because Scotland is in breach of the UN Aarhus Convention’s access to justice requirements. Scotland must meet the recommendations set by the governing bodies so that legal expenses are ‘not prohibitively expensive’ by 1 October 2024.
The Aarhus Convention enshrines citizens’ rights to defend the environment in a court of law. Article 9 of the Convention requires that access to the courts is fair, equitable, timely and not prohibitively expensive. The United Kingdom ratified the UNECE Aarhus Convention in 2005.
However, the UK is in breach of the Aarhus Convention’s access to justice requirements and only has one year left to meet the recommendations set by the governing bodies, so that citizens can uphold their right to a healthy environment and use legal mechanisms to hold public bodies and polluters to account.
The UK Progress Report on its Action Plan published on 1 July 2022, was supposed to outline progress towards achieving full compliance by the deadline of 1 October 2024. Yet environmental campaigners from the RSPB, Friends of the Earth, and the Environmental Rights Centre for Scotland (ERCS) criticised the lack of progress and only vague commitments.
Aedán Smith, Head of Policy & Advocacy at RSPB Scotland, said:
The UK’s first progress report confirms that the Scottish Government and other UK administrations have made negligible progress on making legal action more affordable for people and environmental NGOs following the Committee’s findings in 2010. In fact, in England and Wales there have even been targeted efforts to make the process of Judicial Review less accessible for those wanting to rely on it as a measure of last resort.
Scotland: action is needed
Scotland itself is obliged to ensure that its legal system is compliant with the Convention, due to devolution.
But this is only possible if access to justice is accessible and affordable, and under Scotland’s current court costs regime, legal expenses can often run into tens of thousands of pounds.
Campaigners have argued that the current system of Protective Expenses Orders (PEOs) remains unaffordable and unfair and requires radical overhaul, but fear that without wider input and public scrutiny, reforms will be weak and inadequate.
The Environmental Rights Centre for Scotland (ERCS) previously submitted a freedom of information request seeking details of the review of court rules, and was informed that there would be a consultation on the revised rules ‘later in 2023’. Last month ERCS followed up with another freedom of information request seeking details of the public consultation.
The SCJC have responded that there will be no consultation for new PEO rules for the Court of Session ‘to avoid undue resource impacts for potential respondents’, but new rules will be enacted in Spring 2024.
A further breach likely
ERCS has now written to the SCJC asking them to reconsider producing new rules without a consultation. ERCS believes that this will breach Article 8 of the Aarhus Convention’s public participation requirements, and it will consider a formal complaint to the Convention’s governing body.
Ben Christman, in-house Solicitor at ERCS, said:
The SCJC is tasked with making court rules compliant with the Aarhus Convention. Article 8 of the Convention requires effective public participation in the preparation of those rules. The SCJC has decided to exclude the public from participating in its review. The process intended to resolve non-compliance instead looks likely to result in a further breach of the Aarhus Convention. We are concerned that the SCJC is planning to worsen Scotland’s already poor compliance record.
Featured image via Wikimedia
