Dr Ben Christman

In October 2021, the governing institutions of the Convention required the Scottish government to act “as a matter of urgency” to ensure access to justice is no longer “prohibitively expensive” and address its breach of the Convention’s Article 9 Access to Justice requirements.

In response, the Scottish government asked the SCJC to review rules on legal expenses called protective expenses orders.

In its formal complaint to the Aarhus Convention Compliance Committee, ERCS argues that the SCJC’s review has breached Article 8 of the Convention, which requires public bodies to consult the public when making certain laws that can significantly affect the environment.

Following correspondence with ERCS, the SCJC initially agreed to hold a public consultation in 2023. However, it later said that the consultation had been cancelled to “avoid undue resource impacts for potential respondents”.

Ben Christman, ERCS legal director, said: “We have submitted this complaint to the Compliance Committee today to hold the Scottish Civil Justice Council to account and to draw attention to the continued failure of the state to respect Aarhus rights.

“The rules on protective expenses orders (PEOs) are a tool used to ensure that it is affordable to go to court over the environment. The flaws of the PEO rules are well-known – they need overhauled. The Scottish Civil Justice Council was tasked with reviewing them.

“Despite initially telling us that they would consult the public, the Scottish Civil Justice Council carried out their review behind closed doors. This appears to be a clear breach of Article 8 of the Aarhus Convention, which requires ‘effective public participation’ during law-making processes such as this. This was not effective public participation – there was no public participation.

“In addition to the issues raised in our complaint today, we expect the Compliance Committee will find the content of the newly revised PEO rules to be non-compliant later this year. Carrying out the review behind closed doors failed to produce Aarhus-compliant rules – this demonstrates the need for public scrutiny.”

Dan Paris, director of policy & engagement at Scottish Environment LINK, said: “The Scottish Civil Justice Council’s failure to consult the public is a disappointing development which further damages accountability and the quality of environmental decision-making in Scotland.

“Scotland is in breach of the Aarhus Convention’s access to justice requirements and this was a critical opportunity to review protective expenses orders to make them affordable.

“Organisations like Scottish Environment LINK regularly participate in public consultations and have decades of experience to support decision-making – we are disappointed that the Scottish Civil Justice Council chose not to give organisations like ours the opportunity to input this expertise and improve environmental democracy.”