On Tuesday 18 March, an environmental and legal rights charity called on the UN to intervene against a key arm of the Scottish legal system for breaching the public’s right to participation in environmental decision-making. Crucially, this right is enshrined in the UN Aarhus Convention.
Scottish Civil Justice Council: breaching the UN Aarhus Convention
The Aarhus Convention guarantees people’s rights to access information, participate in decision-making and access justice on environmental matters. The UK ratified this in 2005, so Scotland is legally obliged to comply with it.
In October 2021, the governing institutions of the Convention required the Scottish government to act ‘as a matter of urgency’ to ensure access to justice is no longer ‘prohibitively expensive’. Moreover, it stipulated that the Scottish government would need to address its breach of the Convention’s Article 9 Access to Justice requirements.
In response, the Scottish government asked the SCJC – a public body comprising senior judges responsible for keeping the civil justice system under review – to review rules on legal expenses called Protective Expenses Orders.
Now, the Environmental Rights Centre for Scotland (ECRS) has issued a formal complaint. The ECRS is an environmental law charity. It assists the public and civil society to understand and exercise their rights in environmental law and to protect the environment.
It sent this to the Aarhus Convention Compliance Committee, and argues that the SCJC’s review has breached Article 8 of the Convention. This requires public bodies to consult the public when making certain laws that can significantly affect the environment.
Environmental court cases: unaffordable to most people in Scotland
Following correspondence with ERCS, the SCJC initially agreed to hold a public consultation in 2023. However, it later said that the consultation had been cancelled to “avoid undue resource impacts for potential respondents”, implying that having a say in decision-making is too demanding for the public.
Going to court over the environment remains unaffordable for most people in Scotland. Environmental charities including ERCS and the RSPB have repeatedly called out the Scottish government’s failure to deliver reforms.
The SCJC’s revised rules on Protective Expenses Orders, published in June 2024, are still non-compliant with the Aarhus Convention.
A matter of environmental democracy
Ben Christman, ERCS Legal Director, said:
We have submitted this complaint to the Compliance Committee today to hold the Scottish Civil Justice Council to account and to draw attention to the continued failure of the state to respect Aarhus rights.
The rules on protective expenses orders (PEOs) are a tool used to ensure that it is affordable to go to court over the environment. The flaws of the PEO rules are well-known – they need overhauled. The Scottish Civil Justice Council was tasked with reviewing them.
Despite initially telling us that they would consult the public, the Scottish Civil Justice Council carried out their review behind closed doors. This appears to be a clear breach of Article 8 of the Aarhus Convention, which requires ‘effective public participation’ during law-making processes such as this. This was not effective public participation – there was no public participation.
In addition to the issues raised in our complaint today, we expect the Compliance Committee will find the content of the newly revised PEO rules to be non-compliant later this year. Carrying out the review behind closed doors failed to produce Aarhus-compliant rules – this demonstrates the need for public scrutiny.
Dan Paris, Director of Policy & Engagement at Scottish Environment LINK, said:
The Scottish Civil Justice Council’s failure to consult the public is a disappointing development which further damages accountability and the quality of environmental decision-making in Scotland.
Scotland is in breach of the Aarhus Convention’s access to justice requirements and this was a critical opportunity to review protective expenses orders to make them affordable.
Organisations like Scottish Environment LINK regularly participate in public consultations and have decades of experience to support decision-making – we are disappointed that the Scottish Civil Justice Council chose not to give organisations like ours the opportunity to input this expertise and improve environmental democracy.
Featured image via the Canary
