Legal costs still prohibitive
Legally contesting developments impacting the environment remains prohibitely expensive and lack transparency say csmapigners.
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.
Now campaigners have criticised the Scottish Civil Justice Council (SCJC), for its lack of transparency in undertaking a review of these legal expenses.
In July 2022, the SCJC, with 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.
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.”
