UN Aarhus Convention: Scotland's high legal costs breach international environmental law

The draft findings follow the Scottish Government’s commitment to enshrine human rights into Scots law, including the right to a healthy and safe environment.

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A UN committee tasked with monitoring compliance with the Aarhus Convention,which guarantees everyone in Scotland the right to go to court to defend the environment, has confirmed a lack of progress in meeting requirements. 

Article 9 of the Convention requires that access to the courts is fair, equitable, timely and not prohibitively expensive. 

However, Scotland’s legal system has repeatedly been found in breach of the Convention because of the high cost of taking legal action, with judicial reviews often running into the tens or hundreds of thousands of pounds. 

The Aarhus Convention Compliance Committee noted that the vagueness of the rules relating to costs ‘introduces legal uncertainty and could have a chilling effect’ and called for law reform ‘as a matter of urgency’ with ‘a plan of action, including a time schedule’ to be submitted to it by 2022.

Friends of the Earth Scotland head of campaigns Mary Church said: “As we face the unprecedented challenges of the climate and nature emergencies, it’s more important than ever that people act to protect the environment including going to court where necessary, and they should not have to face impossible costs in doing so. 

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“Successive Scottish Governments have neglected the issue of access to justice for the environment.

“The present Government’s pledge to enshrine Human Rights, including the right to a healthy and safe environment, in Scots law will be meaningless if it is not possible for individuals, communities and NGOs to enforce these rights in court. 

She added: “An overhaul of the courts to remove barriers to public interest litigation, and ensure Aarhus Convention-compliant standards of access to justice for the environment, is long overdue. 

“The draft findings from the UN Committee and the introduction of the new human rights framework must be the impetus for doing so urgently.”

Emilia Hanna, Advocacy Officer for the Environmental Rights Centre for Scotland, said: “We welcome the draft findings of this UN expert body, which highlight that Scotland’s legal system is in breach of environmental and human rights law, and call for urgent action.

“Every person in Scotland should enjoy the right to stand up for the environment in a court of law, but the huge costs of challenging poor environmental decisions mean that access to the courts is simply not an option for most people. 

“Covid-19 has reminded us of how important it is for everyone in Scotland to live in a safe and healthy environment, but there can be no justice for people or the environment without accountability."

Issues include the types of claims covered, uncertainty in the level of cost caps, chilling effect in applying for protected expenses, failure to include protection from costs of interventions, and failure to evidence that court fees are included in costs protection.

The Committee also highlighted the barriers in accessing legal aid for environmental cases.

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The United Nations Economic Commission for Europe’s (UNECE) Aarhus Convention guarantees the right to go to court to challenge decisions, acts and omissions that break environmental law. 

The United Kingdom ratified the UNECE Aarhus Convention in 2005. Scotland is obliged to ensure that its legal system is compliant with the Convention. 

Today’s draft decision from the Aarhus Convention Compliance Committee follows similar findings of non-compliance in 2011, 2014 and 2017, and is expected to be finalised and adopted at the 7th Meeting of the Parties to the Aarhus Convention in October 2021.