Scottish Government actions to address the ‘prohibitive expense’ of taking environmental cases to court have been branded ‘truly woeful’ by campaigners, after a report submitted to the UN’s Aarhus Compliance Committee (ACCC) revealed no concrete progress to make access to justice affordable.
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.
ERCS has since written to Siobhian Brown MSP, the Minister for Victims and Community Safety, challenging the Scottish Government to provide a clear timetable for reforming legal aid reform, court fees, retrospective planning permission, and the time limits for judicial review.
Crucially, their letter highlights the ongoing failure of the Scottish Civil Justice Council (SCJC) to undertake a public consultation on its review of court rules, known as Protective Expenses Orders, which currently leave litigants liable to pay thousands in legal fees even if they win their case. This deters individuals and organisations taking legal action to protect the environment, even if they have a strong case to do so. Scotland’s own action plan said the review of PEO rules would be completed by March 2023 but there is no explanation for the missed deadline.
Shivali Fifield, Chief Officer at ERCS, said:
‘Scotland’s progress in removing barriers to access to justice is truly woeful – and the clock is ticking. The persistent failure to address any of the Aarhus Committee’s recommendations is untenable, and the government must act swiftly to address the lack of transparency and lax attitude to deadlines that has plagued their approach thus far.
ERCS asked Environmental Standards Scotland in August of last year to investigate the systemic barriers to access to justice and they said they would wait to see the outcome of the review of PEO rules – but they now need to hold the SCJC to account over their missed deadline and complete lack of transparency. The government has committed to enshrine the right to a healthy environment in the Scottish Human Rights Bill, but this will only be tokenistic without affordable, accessible, timely and effective access to justice.’
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. We call on all the UK administrations to propose properly-considered options for reform before Christmas so that the 1 October 2024 deadline for compliance with the Aarhus Convention can be met.’
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] Draft decision VII/8s the 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 follow similar findings of non-compliance in 2011, 2014 and 2017. The decision is available at: https://unece.org/sites/default/files/2021-10/ECE_MP.PP_2021_42_E.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 SCJC’s review of court rules:
- 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
[9] RSPB is the UK’s largest nature conservation charity, inspiring everyone to give nature a home. RSPB protects threatened birds and wildlife so our towns, coast and countryside will teem with life once again. We play a leading role in BirdLife International, a worldwide partnership of nature conservation organisations. https://www.rspb.org.uk/
[10] Friends of the Earth England, Wales and Northern Ireland are the UK’s largest grassroots network. From campaigners and lawyers to local groups and supporters, they push for change on causes that matter, like:
- Protecting local areas and making them more climate friendly.
- Taking the government to court over projects that harm the environment.
- Fighting for environmental and social justice globally.
