The Scottish Government’s proposals for new rules of court on Protective Expense Orders published last month are as disappointing as they are late.

Codification of the rules of court on Protective Expense Orders (PEO) was recommended by Lord Gill’s review of the civil courts in 2009 as a necessary aspect of compliance with the UNECE Aarhus Convention on Access to Information, Public Participation and Access to Justice in Environmental Matters.

Amongst other things, Aarhus requires that access to justice in environmental matters is not ‘prohibitively expensive’. PEOs are one way of tackling the issue in providing some certainty and clarity in relation to liability for costs from an early stage.

When Lord Gill published his review, not a single cost order had been granted by the Scottish courts. Friends of the Earth Scotland were refused our application for a PEO a year earlier in a judicial review of the Scottish Executive’s decision to proceed with the M74 extension against the recommendation of the Reporter, and that refusal was part of our decision to withdraw the case.

A few years down the line, two PEOs have been awarded, first in McGinty v Scottish Ministers at £30,000 next in Roadsense & Walton v Scottish Ministers at £40,000, and now the Government is consulting on rules. Progress at last it would seem.

Or not. The Scottish Government has repeatedly stated that it is in compliance with Aarhus on costs because of the availability of Protective Expense Orders and legal aid. This is in spite of the fact that the only two PEOs issued have done little to remove the risk of prohibitive expense in those cases nor to provide any certainty for potential future litigants. And, given that most environmental cases tend to have a broader public interest, it is virtually impossible to access legal aid to fight them because regulations strongly imply the need for a private interest and require that SLAB refuse legal aid if others might be affected by the case (and therefore reasonably expected to contribute towards the cost).

In correspondence with the Public Petitions Committee in January 2011 the Government held that

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it complies with Aarhus and ‘no legal challenge made on the grounds of non-compliance has been successful’. Which is not surprising, given how difficult it is to actually attempt a challenge.

Under pressure from our Petition to the Scottish Parliament on Aarhus compliance and European Commission infraction proceedings, the Government has at last issued these proposals.

However, while the UK Ministry of Justice and the Northern Ireland Department of Justice are consulting on proposals for Protective Cost Orders in all public interest environmental cases, the Scottish rules are wittingly limited to cases under the Public Participation Directive (PPD).

This means the proposals would not even apply to a case like McGinty v Scottish Ministers, where the petitioner sought to challenge the decision to include a new coal fired power station at Hunterston in the National Planning Framework without adequate consultation, under the Strategic Environmental Assessment Directive.

Leaving aside the problematic scope, the proposals in themselves are very unlikely to put compliance with the PPD beyond doubt, so there is a very real risk of continued legal action from the EC.

Under these rules litigants would face a potential liability of at least £35,000 should they lose a case, a sum that undoubtedly remains prohibitively expensive for many communities, let alone individuals. The Government’s own research shows that less well off communities are more likely to suffer from the impacts of bad environmental decision making.

There is no rational for the presumed level of cap being set at £5,000 (other than that is what the England and Wales propose), and the inclusion of an explicit cross cap means that individuals face the possibility of forking out tens of thousands of pounds even on winning a case.

Therefore, it is hard to accept the Government’s claim to take its broader obligations under Aarhus seriously. In particular the implication that the Taylor Review – which has no specific remit or expertise in this area – will sort out the rest of Aarhus related cost issues, appears to be deliberately misleading.

However, there is a small glimmer of hope in the SNP’s manifesto commitment to look into establishing environmental tribunals.

Aarhus requires the state to provide a more level playing field for individuals against public authorities or developers, often experienced repeat litigants with in-house (or money to pay for) legal representation. Aarhus also actively places a duty on citizens to “protect and improve the environment for the benefit of the present and future generations”. This is illustrative of the wider policy issues that drive environmental law and set it apart from other areas of public law, and explains why the Government is obliged to improve access to justice in this area.

With climate change now widely recognised as one of the most serious threats to humankind it is clear that the importance of decisions affecting our environment merit greater investment in systems of participation and review. The requirement for Scotland to comply with the Aarhus Convention offers the chance to rationalize and simplify recourse to justice in the complex framework of environmental legislation, and create world-class access to environmental justice to match our world class Climate Act.

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