The Aarhus Convention is an international treaty that recognizes every person’s right to a healthy environment as well as his or her duty to protect it. It seeks to ensure that every individual lives in an environment adequate for his or her health and well-being. This applies not only to those of us living today, but to future generations as well. The Convention upholds the following rights (the three ‘pillars’) for every person: The right—
1. to be informed and have access to information about the environment;
2. to participate in environmental decision making; and
3. of easy and effective access to justice if the former rights are denied or if national environmental law has been broken, in a way that is fair, equitable, timely, and free or inexpensive.
The last of these three ‘pillars’ enables the public to challenge general breaches of environmental law, even if they have not suffered personal harm. This is crucial in fighting decisions that lead to environmentally damaging developments where the harm is not geographically limited. In addition, the Convention states that access to justice under any of these headings must not be “prohibitively expensive”.
Scotland, as an Aarhus signatory at both UK and EU level, is legally obliged to implement all three pillars. EU directives have been put in place for the first two. For pillar one, the Integrated Pollution Prevention and Control Directive and for pillar two the Environmental Impact Assessment Directive which have been legislated for in Scotland under the Freedom of Information (Scotland) Act 2002 and the Environmental Assessment (Scotland) Act 2005. There is no EU directive, and no specific Scottish legislation, which implements the final pillar, access to justice.
The European Commission and Aarhus Compliance committees have recently found the UK (England and Wales) to be non-compliant with the Aarhus Convention, with respect to access to justice. The main area of non-compliance was around prohibitive costs, an area where the Scottish legal system is even further behind the rest of the UK.
How did England and Wales get to this stage?
In May 2008, a Working Group on Access to Justice published Access to Environmental Justice in England and Wales, examining UK compliance with the access to justice provisions of the Aarhus Convention. Known as the Sullivan report, this concluded that “For the ordinary citizen, neither wealthy nor impecunious, there can be no doubt that the Court’s procedures are prohibitively expensive. If the problems identified in this report are not addressed it will not be long before the UK is taken to task for failing to live up to its obligations under the Aarhus Convention.”
Also in 2008, a wide ranging review of legal costs in civil matters was commissioned by the UK Government and undertaken by Lord Justice Jackson. The Jackson Report deals with environmental judicial reviews at para 4.1. It concludes that: “As our costs rules now stand, on one view England and Wales are not complying with the provisions of the Aarhus Convention to which the UK has voluntarily signed up.”
The UK Government argued that it was compliant on costs because of the combination of (1) the availability of legal aid; (2) the existence of judicial discretion as to whether to award costs (and at what level; and (3) recent legal developments in relation to PCOs.
Given that in Scotland legal aid is not available for community groups or NGOs, nor for public interest cases, and rarely awarded in environmental cases, argument (1) is even less relevant here. In relation to (2), because this decision can only be made at the conclusion of a case, it does not solve the issue of access to justice not being prohibitively expensive. And finally, as mentioned, Scotland has only issued one PCO, the argument presented in point (3), and that was set at arguably a prohibitively high level. Furthermore, the findings of the Compliance Committee (ACCC/C/2008/33) indicate that this argument from the UK Government is inadequate.
Additionally, as far as ‘title and interest’ is concerned, in England and Wales the requirement of demonstrating a 'sufficient interest' provides a much broader and more accessible mechanism for implementing Aarhus' access to justice than the 'title and interest' approach under Scots law.
What might happen next?
Continued non-compliance could result in the UK being taken to the Court of Justice by the Commission, with the associated penalty. If the Court finds that an obligation has not been fulfilled, the Member State concerned must terminate the breach without delay. If, after new proceedings are initiated by the Commission, the Court of Justice finds that the Member State concerned has not complied with its judgment, it may, upon the request of the Commission, impose on the Member State a fixed or a periodic financial penalty. Since the “Scottish Courts follow essentially the same approach in making decisions about expenses as do the other legal jurisdictions of the UK”, Scotland too must change or face the repercussions.
In October 2010, the Department for Environment, Food and Rural Affairs published a report setting out the measures the Government has taken to implement the Aarhus convention and is seeking responses from the public until 17 November. Comments received from the public during this consultation period will be reflected in the final draft of the report to be submitted at the next meeting of the Aarhus Convention parties, which will take place in July next year. The consultation does cover Scotland, so MSPs should be aware of, and able to discuss, the findings.
The Gill Review
The Gill review of civil law recognised issues around costs and standing. It recommended capping the costs of certain legal cases; ensuring competency to issue PCOs in Scottish courts, with somewhat less restrictive criteria than in England; and easing the rules on who could bring a case to court, ensuring that anyone with a clear interest – including communities and campaigning organisations – could initiate legal challenges.
Why access to environmental justice is important
There are a number of case studies that demonstrate the Aarhus-breaching barriers to environmental justice in Scotland. In 2003 William Smith v the Scottish Ministers demonstrated how costs can prove an insurmountable barrier. Being dyslexic, disabled and deaf, and so unable to conduct his own appeal, Smith was twice denied legal aid and didn’t have the financial means to secure representation. His challenge that a new bridge over the Clyde in Glasgow would impede dredging and elevate the risk of flooding, was unable to go ahead.
For the claimant in Mary Buchan Forbes v Aberdeenshire Council & Trump International Golf Links, the restrictive interpretations of title and interest to sue proved a barrier, as Forbes’ standing was questioned by the judge on the basis that although neighbouring the site, her dwelling stands a kilometre from the current environmentally damaging preparatory works. Forbes also failed to demonstrate “sufficient interest” because she had not followed proper procedure by objecting to the planning application in the first place.
In a ground breaking 2010 ruling, the local community group seeking to overturn the late inclusion (without adequate consultation) of a coal fired power station at Hunterston in the National Planning Framework were awarded the first ever PCO in Scotland. Yet, the court capped the applicant's liability for the defendant's costs at £30,000, which, when added to the estimated costs of up to £80,000 he would face in bringing the case (having been denied legal aid), amount to a significant financial barrier to pursuing the case. The principle behind PCOs is to provide early certainty and a reasonable limit on the level of costs the applicant may be expected to pay (in line with Aarhus) yet both the extreme rarity and the very high cost cap set, mean PCOs in Scotland do not yet contribute to removing the financial barrier to environmental justice.
The position of the UK Government that the issue of PCOs and other discretionary means of limiting costs, is a matter for the courts is clearly contradicted by the courts themselves in calling for Aarhus compliance to be secured through “changes to the Rules rather than further development of judge-made law.” Likewise, the position of our government that it is the courts who must act, not the government, cannot be maintained given that too great a dependence on judicial discretion has been judged one of the obstacles to access to justice being ‘fair, equitable, timely, and free or inexpensive’, as Aarhus demands.
What we need in Scotland
We are asking the Public Petitions Committee to look behind the rhetoric and find clear evidence for the Scottish Government’s position that the Scottish legal system is compliant with the Aarhus Convention. We would suggest examining the Compliance Committee’s decision and recommendations to the UK Government and asking whether the same recommendations apply and should be put in place in Scotland. We believe examination of the facts will lead to a conclusion that Scotland is not in compliance with pillar 3 of the Aarhus Convention and therefore that the Scottish Government should introduce legislation to address this non-compliance.
The Scottish Government should:
• Discuss access to justice in environmental matters with DEFRA and seek to share the findings of the recent consultation and the UK Government’s plans to ensure compliance with the recent decision of the Aarhus Compliance Committee.
• Acknowledge that the restrictive access to justice and prohibitive costs which exist in relation to access to justice on environmental matters in Scots law is in breach of the terms of the Aarhus Convention.
• Commission an independent inquiry into the best way to improve access to justice in environmental matters, including examining expenses: considering the usefulness of PCOs, the findings of Jackson and Sullivan in the English and Welsh context and the possibility of qualified one way cost shifting; and examining title and interest: looking at systems in other ECE states, how can Scotland apply the broad access to justice demanded by the Aarhus Convention.
• Introduce legislation enabling individuals, communities and interest groups to access justice in environmental matters without fear of prohibitive cost.
Specific questions:
• What discussions have the Scottish Government had with the UK Government in relation to the recent decision of the Aarhus Compliance Committee and the DEFRA consultation?
• What steps does the Scottish Government intend to take to reflect on the decision of the Aarhus Compliance Committee that PCOs are not sufficient to provide full access to justice under the terms of the convention?
• What steps does the Scottish Government intend to take to ensure title and interest do not restrict access to justice in environmental matters as required by the Aarhus Convention?
• What studies have the Scottish Government undertaken to analyse the provision of legal aid in cases involving the environment?
• What studies have the Scottish Government undertaken to analyse the ‘freezing’ effect of current expenses rules?
• How many cases does the Scottish Government consider have been presented to the court in which full access to justice on environmental matters can be shown to have been met?
• Can the Scottish Government share the progress of discussions with the Lord President of the Court of Session in relation to the Gill Review?
• Does the Scottish Government consider that the findings of the Gill Review are still current and reflective of the legal situation following the findings of the Aarhus compliance committee?