So why is access to justice so unaffordable, asks Benjamin Brown
On 1 October 2024, environmental and human rights campaigners rallied outside the Court of Session, Scotland’s top civil court, to mark Scotland’s failure to meet the Aarhus Convention’s deadline to make access to justice affordable.
We called on the Scottish Government to step up, and remove the financial barriers that prevent people from taking environmental cases to court.
This matters, because without the credible threat of legal challenge, polluters can act with impunity. Upholding our environmental rights in a court is the ultimate guarantee of the rule of law, and access to legal justice remains vital if we are to hold public bodies and polluters to account for environmental damage. Yet legal costs for environmental litigation can amount to tens or hundreds of thousands of pounds.
We are facing a triple planetary crisis of climate breakdown, biodiversity loss and the widespread pollution of our air, land and water. Yet in just the past few months, we have seen how easily environmental protections can be cast aside. The ditching of 2030 climate targets, the diversion of funds set aside for nature restoration, and the failure to properly calculate emissions arising from infrastructure spending plans all harken to how, when push comes to shove, the health of our planet loses out.
More than ever, we need to empower communities to stand up for their right to a healthy environment. Yet the Scottish Government has repeatedly failed to keep its promises on access to justice and meet its obligations under the Aarhus Convention, a UN treaty that protects our rights to information, public participation in decision-making and access to justice in environmental matters.
In October 2021, the Convention’s governing bodies adopted Decision VII/8s - requiring Scotland, as part of the UK, to meet, ‘as a matter of urgency’, six recommendations to make access to justice ‘fair, equitable, timely and not prohibitively expensive’ by 1 October 2024.
At the Environmental Rights Centre for Scotland (ERCS), we have been tracking Scotland’s progress on meeting the six recommendations and although some changes have been made - removing fees from the Court of Session and making minor amendments to court rules - they do not go nearly far enough. And last month, two critical pieces of legislation - the Human Rights Bill and Legal Aid Reform Bill , both of which would have improved access to justice – were dropped from the first minister’s Programme for Government.
Ongoing financial barriers have prevented communities and organisations from taking environmental cases to court. ERCS has worked with many communities who have tried to enforce environmental regulations with little success. And due to unaffordable legal expenses, they are unable to take cases further and hold public bodies to account on the environment.
Legal costs for environmental litigation can amount to tens or hundreds of thousands of pounds. When the environmental charity Open Seas took successful court action against the Scottish Government over failure to consider the environmental harm caused by scallop dredging, its legal expenses were equivalent to the annual cost of nearly three members of staff. Its costs were exacerbated by the government’s appeal, which was weak and sought only to re-litigate the same arguments.
It is no longer tenable that Scotland retains the unfair ‘loser pays rule’, which means you have to pay not only your own legal costs, but also the costs of your opponent if you lose a court case. Although there are some caps to how much this might be, this is not guaranteed, and its mere presence causes a ‘chilling effect’ whereby the prospect of such exorbitant costs deters people from taking environmental cases to court.
In 2021, the Scottish Government committed to incorporating the right to a healthy environment in a new Scottish Human Rights Bill. If it wants to live up to its bold rhetoric on human rights and the environment, it must take immediate action to reduce legal expenses, extend legal aid and fully comply with its legal obligations under the Aarhus Convention’s access to justice requirements.
We need an accessible and affordable route to access to justice, so that everyone in Scotland is empowered to challenge bad environmental decisions, hold polluters to account, and make our legal system work for people and planet.
Benjamin Brown is policy and advocacy Officer, Environmental Rights Centre for Scotland (ERCS).
