UN probes Scots judge-led body's 'breach' of international law

The Herald Scotland

28-07-2025

Now the Scottish Government will be expected to give answers to a UN committee about the complaint as part of a UK response over compliance.
Scotland has since 2011, been found to be in breach of Article 9 of the Aarhus Convention, a binding piece of international legislation that guarantees the right to a healthy environment and enshrines people's rights to defend it in a court of law.
The United Nations council which adopted the convention in 1998 gave the Scottish Government a deadline of October 1, 2024 for a plan of action to remove or cut the cost of access to justice as legal cases can often run into tens of thousands of pounds.
The ERCS says that makes access to justice to protect the environment unaffordable and while there is a 'loser pays' rule, litigants are liable to pay their opponents fees if they lose their case.
The Scottish Government asked the Scottish Civil Justice Council (SCJC) - a public body comprising predominantly senior judges and other members of the judiciary and legal profession which is responsible for keeping the civil justice system under scrutiny - to review the rules on the costs of court actions.
Lord Pentland is at the centre of access to justice row (Image: NQ) But despite the review, a UK progress report at the end of last year confirmed the nation has not removed the cost barriers to justice despite the SCJC intervention. They say it continues to breach the convention as they "only made minor changes and no concrete commitments for future reform".
In its formal complaint to the UN's Aarhus Convention Compliance Committee, ERCS argued 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.
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It argues that that means there was no say in ensuring that international law was met and that the legal system was affordable.
They say the consultation would have required the SCJC to consider and respond to representations from the public.
Now the Herald has learnt that the compliance committee has decided that the complaint has been found admissible on a preliminary basis for further investigation despite official opposition.
Dr Ben Christman, ERCS's legal director said: 'The way we make decisions matters. Public participation is a critical part of creating fair and functional environmental laws. The Scottish Civil Justice Council failed to consult the public and, predictably, went on to produce legal expenses rules that do not comply with the Aarhus Convention's requirements.
Former co-convener of the Scottish Greens, Maggie Chapman has criticised ministers over law breaches over access to justice (Image: NQ)
'We were glad to see that the Aarhus Convention Compliance Committee saw through bad faith attempts to knock out our complaint. We hope that the Scottish Government will now respond to our concerns seriously.'
The SCJC has denied that there has been a breach.
And Scots community safety minister Siobhian Brown has said in a response to a question about the case: "The Scottish Government has every confidence in the work of the Scottish Civil Justice Council."
The council is responsible for overseeing civil justice fairness and effectiveness and provides advice on rule changes and recommends improvements while keeping the system under constant review.
It is typically made up of between 14 and 20 members and are appointed by its chairman, the most senior judge in Scotland and Lord President of the Court of Session and Lord Justice General, Lord Pentland or Scottish ministers.
They are predominantly entrenched in Scottish law either as judges, sheriffs, advocates, solicitors or heading up administration.
At least four are members of the judiciary including at least one judge from the Court of Session and a sheriff, as well as at least two practising advocates.
Other senior judges include on the council are Lady Carmichael, who was appointed as a Senator of the College of Justice in 2016 and Lord Ericht, who became a judge of the Supreme Courts in 2016.
The group further includes Malcolm Graham, chief executive of the Scottish Courts and Tribunal Services, Colin Lancaster, the chief executive of the Scottish Legal Aid Board (SLAB)
It comes amidst growing concern about local democracy being overridden as some of Scotland's most scenic areas face up to hundreds of live renewable projects.
A "once in a generation" convention of 53 community councils have been demanding a summit with energy ministers in a fight to pause infrastructure projects.
There were over 700 live applications in the Highland Council area alone, ranging from wind and hydro projects to energy storage and transmission grid plans.
Councils convention chairman Helen Crawford at Balblair substation near Beauly (Image: Helen Crawford) Calls have been made for the Scottish Government to undertake an inquiry to address the cumulative impact of all major renewable energy infrastructure developments on the communities and landscape fearing projects "may hasten depopulation in some areas".
Conservation charity John Muir Trust has previously spoken out of its concerns about the rights to justice after its attempt to challenge a windfarm development eight years ago led to it facing a near £700,000 bill, although this was eventually negotiated down to £275,000.
The Trust settled out of court with the Perth-based energy company SSE and the Scottish government after its attempt to block a wind farm through a judicial review near Loch Ness failed.
The dispute was over a wind farm at Stronelairg, which is in wild land in the Monadhliath mountains near Loch Ness. Consisting of 67 wind turbines, it was proposed by SSE in 2012 and granted by the Scottish government in June 2014.
Glasgow had to exploit a loophole to bring the action in the name of a member who would qualify for legal aid.
ERCS said it has had to resorting to questions under the Freedom of Information act on the SCJC process and any proposed new court costs rules.
In response to an FOI request, the SCJC indicated in January 2023 that they intended to hold a public consultation on the new costs rules to inform decision-making "later in 2023".
But in response to a chaser FOI request in October 2023, the SCJC decided against a consultation "to avoid undue resource impacts for potential respondents".
And the ERCS say when the revised rules on Protective Expenses Orders - which limit a liability for costs in certain types of legal cases - came into force at the end of last year it was without public consultation and they say that they remain non-compliant with the Aarhus Convention.
The Scottish Environment LINK (SEL) coalition of more than 30 leading charities said the SCJC failure was a "disappointing development which further damages accountability and the quality of environmental decision-making in Scotland".
The SCJC has said that the latest amendments to the PEO rules was the first step in a process and that the review on costs as it relates to the sheriff court remains ongoing with a public consultation due to take place this year.
Dr Shivali Fifield, ERCS's chief officer, said: "We submitted this complaint to uphold our right to participate in environmental decision-making. Scotland has been in breach of the Aarhus Convention's access to justice requirements since 2014. This is the third time the Scottish Civil Justice Council has reviewed rules on legal expenses and yet it remains prohibitively expensive to defend the environment in court.
"Access to justice is not a favour, it is integral to our environmental human rights. We know that there is support for environmental justice across the political parties - and we will continue to hold the Scottish Government accountable until we see the barriers to justice removed."
An analysis backed by Scotland's nature agency found wildlife is "in crisis" in 2023 with one in nine animals and plants being at risk of becoming extinct north of the border.
A State of Nature Scotland analysis, backed by the [[Scottish Government]]'s [[Nature]]Scot agency and published by a partnership of over 50 nature and conservation organisations, warned the risk of extinction among some groups, such as vertebrates, is much higher at more than a third (36.5%).
The most notable declines were with familiar birds such as swifts, curlews and lapwings which have declined by more than 60%. Kestrels have declined by more than 70%.
A spokesperson for the Scottish Civil Justice Council said: 'The Scottish Civil Justice Council has approved its work programme for 2025/26, which has now been published.
"As part of this , a priority for the coming year is to hold a public consultation on the extension of Protective Expenses Orders to the Sheriff Court. These orders allow litigants to limit the legal costs they might incur in the event they lose the case. The consultation is currently being finalised and we expect it to begin in the near future.'
A Scottish Government spokesman said: 'The Aarhus Convention Compliance Committee is looking into a complaint, which says that the Scottish Civil Justice Council failed to ask the public for their views before changing rules about legal costs in environmental cas'The committee has decided the complaint is worth investigating further, but this is just a preliminary decision. They still need to follow more steps before making a final decision on whether to fully investigate. It would be inappropriate to comment further at this stage.'