Scotland remains in breach of international law in relation to the high cost of legal action in environmental cases, states are expected to agree as the 5th Meeting of Parties to the UNECE Aarhus Convention draws to a close in Maastricht today.
The new decision against the UK requires Scotland to review its cost regime in relation to environmental cases. The Aarhus Convention recognises that it is essential that individuals and NGOs are able to take legal action to protect the environment and that it must not be ‘prohibitively expensive’ to do so.
The cost of taking a judicial review in Scotland remains extremely expensive, despite the introduction of new rules limiting the amount litigants would be liable for should they lose in certain cases taken under the Convention. Under the current regime an individual going to court in the public interest to protect the environment could be liable for more than £35,000.
Frances McCartney, a Scottish solicitor attending the conference, said:
“It is welcome that this decision against the UK has been upheld as it is clear that access to justice in environmental cases is severely hindered by the issue of excessive costs. Several of my clients have been unable to access justice on issues affecting their home and immediate environment.
“However, it is important to note that the decision does not fully reflect the key problem areas specific to Scotland, such as the particular difficulties in obtaining legal aid in environmental cases. The Government must reform not only legal aid, but also look again at liability for expenses and court fees.”
Mary Church, Friends of the Earth Scotland head of campaigns, also at the event, said:
“It is essential that the public and NGOs are properly engaged in decision making that impacts on our environment as a counterbalance to short-termism and big business interests. The Aarhus Convention understands that and requires that parties put fair, accessible and affordable regimes in place to enable individuals and NGOs to defend the environment in court.
“We urge the Scottish Government to undertake a comprehensive review of its obligations under the Aarhus Convention, and bring our legal regime into the 21st century at last.”
1. The Compliance Committee of the Aarhus Convention found that the UK had not taken sufficient action to comply with the requirement that access to justice must not be prohibitively expensive despite the introduction in all UK jurisdictions of new rules of court limiting the amount litigants would be liable for in certain environmental cases.
2. The draft decision against the UK (V/9o) is available at http://www.unece.org/fileadmin/DAM/env/pp/mop5/Documents/Category_I_docu...
The decision has been discussed and agreed at the 5th Meeting of the Parties in Maastricht, and will be formally adopted in the High Level Segment this afternoon.
3. The decision recommends:
“In adopting this decision, the 5th Meeting of the Parties to the Aarhus Convention recommends the UK to take urgent action to:
(a) Further review its system for allocating costs in all court procedures subject to article 9, and undertake practical and legislative measures to ensure that the allocation of costs in all such cases is fair and equitable and not prohibitively expensive;
(b) Further consider the establishment of appropriate assistance mechanisms to remove or reduce financial barriers to access to justice;
(c) Further review its rules regarding the time frame for the bringing of applications for judicial review to ensure that the legislative measures involved are fair and equitable and amount to a clear and transparent framework;
(d) Put in place the necessary legislative, regulatory and other measures to establish a clear, transparent and consistent framework to implement article 9, paragraph 4, of the Convention”
4. For more information on the Aarhus Convention see: http://www.unece.org/env/pp/introduction.html
5. The Scottish rules of court on Protective Expense Orders came into force in March 2013, and enable certain groups to apply for an order to have their liability for the other sides’ costs capped. The rules are limited to cases falling under the Public Participation Directive (PPD) and do not apply to all environmental cases. The presumptive cap of £5,000 is much too high: while the rules allow for the level to be reduced on appeal to the courts, this remains untested. The sum of the cap cannot be taken in isolation, as a litigant who loses will also be responsible for their own courts fees and lawyers costs which can mount to tens of thousands of pounds in a complex environmental case. Further, the rules apply only to individuals and NGOs promoting environmental protection; and specifically preclude ‘persons who are acting as a representative of an unincorporated body or in a special capacity such as trustee’. There is considerable judicial discretion written into the rules in terms of awarding a PEO even if a case falls under the PPD and in terms of appeals. See https://www.scotcourts.gov.uk/docs/default-source/equality/chapter58a-nb...
6. When deciding whether to grant legal aid, under Regulation 15 of the Civil Legal Aid (Scotland) Regulations 2002, the Scottish Legal Aid Board (SLAB) looks at whether ‘other persons’ might have a joint interest with the applicant. If this is found to be the case SLAB must not grant legal aid if it would be reasonable for those other persons to help fund the case. Further, the test states that the applicant must be ‘seriously prejudiced in his or her own right’ without legal aid, in order to qualify. These criteria strongly imply that a private interest is not only necessary to qualify for legal aid, but that a wider public interest will effectively disqualify the applicant. This has a particularly adverse effect in relation to Aarhus cases; environmental issues by their very nature tend to affect a large number of people: http://www.legislation.gov.uk/ssi/2002/494/regulation/15/made
7. Recent changes to court fees by the Scottish Government mean the hourly court fee has more than doubled in judicial review cases since 2012. For a complex environmental review this means that court fees could amount to more than £10,000, payable in addition to lawyers fees and other legal costs. See http://www.scotland.gov.uk/Publications/2012/05/7547/6
8. Friends of the Earth Scotland is