It’s been a whirlwind few months for anyone concerned about access to justice on the environment – with the Aarhus Convention’s governing body reiterating Scotland’s breach of the Convention’s access to justice requirements and requiring an action plan to address the unfairness and prohibitive expense of Scotland’s court system. Despite this, persistent and systemic barriers continue to prevent citizens from exercising their legal rights on environmental matters, and the Scottish Government must do more.
Back in July 2022, we produced an evaluation of the UK Action Plan explaining why the Scottish Government’s response was inadequate. In particular we were worried about the lack of transparency in the Scottish Civil Justice Council’s (SCJC) review of court rules to make them affordable. Overall, we argued that the measures proposed were too vague and would not fulfil Scotland’s Aarhus obligations by the October 2024 deadline.
In December, the UK government was summoned to the 77th Open Session of the Aarhus Convention Compliance Committee in Geneva, where Eleanor Sharpston KC (curator for the Committee) delivered scathing criticism of the UK and devolved government’s record to date and described the situation as ‘untenable’. The Committee also decided that ERCS’s joint complaint with Planning Democracy, RSPB Scotland and Friends of the Earth Scotland about a lack of equal appeal rights for communities challenging bad planning decisions in Scotland met the test for ‘preliminary admissibility’. The UK government objected to the complaint, but its arguments were dismissed as without substance.
In January, we wrote again to the Minister for Community Safety, outlining our concerns. Her response reiterated the claim that the Scottish Government could not interfere with the activities of the SCJC, a statutorily independent body.
Nevertheless, we secured a big win earlier this month. After doggedly submitting FOI requests, the SCJC wrote to ERCS saying it is now committed to a public consultation as part of its review of court rules, and ‘will seek views on a revised Protective Expenses Order (PEO) instrument’ later this year. This is a major step forward when it comes to transparency and accountability, but there is no room for complacency. The priority now is to scrutinise the contents of the review, and make the case for replacing the ‘loser pays’ PEO regime with a system of Qualified One-Way Cost Shifting (QOCS). Without such reforms, exorbitant expenses will continue to price most people out of Scotland’s justice system.
But affordability is not the only problem with the legal system. To achieve full access to justice, we need a dedicated Scottish Environment Court which is affordable, accessible, timely and effective. The option of an environment court will be the subject of a consultation on environmental governance which the Scottish Government must publish by the end of May.
This is the same time as we’re expecting a consultation on the Human Rights (Scotland) Bill including the procedural and substantive right to a healthy environment. We believe an environmental court is essential to achieving the procedural right to a healthy environment, and we’re also working with environmental colleagues to achieve the substantive right to a healthy environment.
If you haven’t already done so, please sign and circulate our petition for an enforceable right to a healthy environment which we will be handing in when the consultations are published.
Matters of environmental justice are set to move to the centre stage of Scottish politics over the next few months. The task now is to ensure that this window of opportunity is not lost, and delivers lasting change.