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 this week.
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.”
“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.”