Campaigners have criticised the Scottish Civil Justice Council (SCJC), for its lack of transparency in undertaking a review of legal expenses.
In July 2022, the SCJC, who have 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. 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. They 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.
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.’
ENDS
For more information contact
Benji Brown, Policy & Advocacy Officer
Environmental Rights Centre for Scotland
bbrown@ercs.scot, 07856 407479
NOTES TO EDITORS
[1] The UNECE Aarhus Convention guarantees the right to go to court to challenge decisions, acts and omissions that break environmental 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. Scotland is obliged to ensure that its legal system is compliant with the Convention. https://unece.org/fileadmin/DAM/env/pp/documents/cep43e.pdf
[2] Decision VII/8s concerning compliance by the United Kingdom of Great Britain and Northern Ireland with its obligations under the Convention was adopted by the 7th Meeting of the Parties to the Aarhus Convention in Geneva, October 2021, and followed similar findings of non-compliance in 2011, 2014 and 2017. The decision made a set of recommendations and requested an Action Plan to achieve compliance by 1 October 2024 and is available at: https://unece.org/sites/default/files/2022-01/Decision_VII.8s_eng.pdf (Paragraphs 1(b), 2 (a-d), 9)
[3] The Action Plan as submitted to the Aarhus Convention Compliance Committee by the UK Government is available here: https://unece.org/sites/default/files/2022-07/frPartyVII.8s_01.07.2022_plan_action.pdf
[4] The October 2023 UK Progress Report is available here: https://unece.org/sites/default/files/2023-10/frPartyVII.8s_13.10.2023_report_1.pdf
[5] The Aarhus Convention Secretariat invited responses to the UK Government Progress Report by 13 November 2023. RSPB, Friends of the Earth England Wales and Northern Ireland, and the Environmental Rights Centre for Scotland’s joint formal response is available here: https://www.e{rcs.scot/wp/wp-content/uploads/2023/11/221110_Joint-RSPB_FoE_ERCS_Response-to-UKs-First-Progress-Report_Nov-2023.pdf
[6] Environmental Rights Centre for Scotland’s full evaluation of the Scottish Government’s contribution to the UK Action Plan is available here: https://www.ercs.scot/wp/wp-content/uploads/2022/08/Evaluation-of-Scotlands-action-plan-on-access-to-environmental-justice_July22.pdf
[7] ERCS has published two briefings on the inadequacy of the PEO regime:
- Protective Expenses Orders: Access to information remains a barrier to justice (Nov 2022)
- Protective Expenses Orders: Investigation reveals why legal expenses regime needs reform (Nov 2023)
[8] The Environmental Rights Centre for Scotland (ERCS) was established in January 2020. We assist the public and civil society to understand and exercise their rights in environmental law and to protect the environment. We carry out advocacy in policy and law reform to improve environmental rights, and full compliance with the Aarhus Convention on access to information, public participation in decision-making, and access to justice on environmental matters. https://www.ercs.scot