The complaint
In March 2025, ERCS submitted a formal complaint to the Aarhus Convention Compliance Committee (ACCC) on the Scottish Civil Justice Council’s (SCJC) failure to publicly consult on proposed changes to rules governing the use of Protective Expenses Orders (PEOs), which are intended to cap costs for environmental litigation.
In June 2025, the ACCC decided that the complaint was admissible and in November notified the UK government that they were obliged to respond to our communication by 17 April 2026.
In their response to the complaint, the UK government dispute having breached Article 8, stating:
- There was public participation prior to the 2024 PEO rules, mainly via a consultation held in 2017.
- Judicial review is available to deal with our communication and we should have used that domestic remedy instead of complaining to the ACCC.
- Article 8 is not framed in mandatory terms.
Due to resource constraints and their large caseload, a long delay is expecting before the ACCC decides how to progress the communication (e.g. they could ask for more information from the parties or arrange a hearing).
Visit our legal action page to see how the case unfolded.
Why we challenged the SCJC
In 2022, the Scottish Government had asked the SCJC, a public body with responsibility for Scotland’s civil legal system, to review rules around legal expenses in environmental cases.
The SCJC initially agreed to hold a public consultation on their review but then cancelled it. We argued that this constituted a breach of Article 8 of the Aarhus Convention, which requires public bodies to consult the public when making certain laws that can significantly affect the environment.
Signs of positive progress
Following our complaint, in November 2025, the SCJC carried out a public consultation on extending the availability of PEOs, and in January 2026, announced plans for a final consultation on new court rules proposed for introduction in January 2027. If enacted, such changes should significantly strengthen cost protection for litigants. ERCS welcomed this change as a significant step forward towards compliance with the Aarhus Convention’s access to justice requirements, and a departure from the SCJC’s previous position.
Nonetheless, ERCS will continue to advocate for the introduction of qualified one-way costs shifting (QOCS) to replace the ‘loser pays’ rule and associated PEO regime. QOCS is already successfully used for personal injury claims, and a proven route to addressing the prohibitive cost of access to justice in Scotland.
Upholding our environmental rights in a court is the ultimate guarantee of the rule of law, and if we wish to see robust legal protection for Scotland’s natural environment, then our justice system must be accessible to all.
Thumbnail image credit: Stephencdickson – Own work, CC BY-SA 4.0,
