Public Petitions Committee

Meeting date: Tuesday, December 7, 2010

Official Report 429KB pdf

---

New Petitions

---

Access to Justice (Environment) (PE1372)

We have seven new petitions to consider this afternoon. PE1372, from Duncan McLaren, on behalf of Friends of the Earth Scotland, calls on the Scottish Parliament to urge the Scottish Government to demonstrate clearly how access to the Scottish courts is compliant with the Aarhus convention on access to justice in environmental matters, especially in relation to costs and title and interest; to publish the documents and evidence of such compliance; and to state what action it will take in light of the recent ruling of the Aarhus compliance committee against the United Kingdom Government. I welcome Duncan McLaren and Juliet Swann from Friends of the Earth Scotland. Is it just the two of you?

Yes. Frances McCartney, who was due to come to the meeting from Glasgow, was at Queen Street station for the 12.30 train but was not able to get on to it or the 1 o’clock train, so unfortunately she will be unable to join us.

She may want to furnish us with some additional evidence.

If there are any questions that we think Frances would be able to answer more adequately, we will get her to supply a written response.

That is fine. I invite one of you to make an opening statement of no more than three minutes. Members will then ask questions.

Thank you for inviting us to give evidence, albeit to a small but perfectly formed group.

Friends of the Earth Scotland, as part of an international federation with 77 member groups, is committed to environmental justice and empowering communities to protect and enjoy their environment. Environmental justice means that everyone has the right to a healthy environment and a fair share of the earth’s resources, both now and in future generations.

Friends of the Earth Scotland believes that with rights come responsibilities, but that it is in the power of Government to ensure that communities and individuals can exercise those rights and responsibilities—that is to say, that Government must provide the means for individuals and communities to defend their environment; to find out when their environment risks damage or is being damaged; to be consulted when decisions are being made that will impact upon their environment; and to be able to challenge decisions that will impact on their environment or breach environmental law.

At the moment, Scotland has good provision for access to information, thanks to our freedom of information legislation and the role of the Scottish Information Commissioner. Provision has also been made for consultation, but frequently we have found that communities do not feel that their participation has been enabled or that their views and opinions have been given due attention.

Representatives of environmental non-governmental organisations are often approached by individuals and communities that feel aggrieved by a lack of consideration of their views and that are discouraged from participating in the process, whether that be engaging in the planning system, offering information about breaches of environmental regulations or questioning whether an environmental law has been broken. We think that, in a 21st century democracy, we must grant our communities the means to participate fully in the decisions that impact on their environment and to do so in a way that is meaningful and in which they can have faith.

To provide for such participation, the United Nations Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters was negotiated in Aarhus. The convention links environmental rights and human rights; acknowledges that we owe an obligation to future generations; establishes that sustainable development can be achieved only through the involvement of all stakeholders; links government accountability and environmental protection; and focuses on interactions between the public and public authorities in a democratic context.

The subject of the convention goes to the heart of the relationship between people and Governments. The convention is not only an environmental agreement but a convention about Government accountability, transparency and responsiveness. It grants the public rights and imposes on parties and public authorities obligations regarding access to information, public participation and access to justice, both when those obligations are not met and in cases of breaches of other environmental laws.

We argue that the third aspect of the convention has not been properly implemented in Scotland and that our failure to provide access to justice in environmental matters places us in breach of the UNECE convention, with the associated risk of a case being taken to the European Court of Justice.

14:15

As mentioned in our submission, the UK has recently been found to be in breach of the convention after two cases from England and Wales were referred to the compliance committee, with the committee recommending that the UK review its system for allocating costs in environmental cases within the scope of the convention and undertake practical and legislative measures to overcome the problems identified to ensure that such procedures are fair and equitable, are not prohibitively expensive and provide a clear and transparent framework. Given that the legal framework in England and Wales is further advanced in terms of meeting the requirements of the convention, we suggest that Scotland also needs to heed the recommendations.

In June 2011, the fourth meeting of the parties will take place in Chisinau to review the progress that has been achieved in implementing the convention. Given the recent compliance committee decision, we recommend that Scotland indicate how it intends to implement fully the Aarhus convention in advance of that meeting. We ask the Public Petitions Committee, therefore, to consider whether either it or another parliamentary committee should ask the Scottish Government whether it continues to consider that Scotland is implementing Aarhus; to state which case law, rules of court, or legislation ensure fair, equitable and not prohibitively expensive access to justice; and to indicate what response it has made to the compliance committee’s ruling and what information it has submitted to the Department for Environment, Food and Rural Affairs in relation to the implementation report that will be presented at the meeting of the parties in June.

Before I ask a question, I should declare an interest, in that I have been a member of Friends of the Earth Scotland since 1985 and have, on behalf of various organisations, lodged a number of questions over the past few years on compliance with the Aarhus convention.

Thank you for your clear exposition of the case. It would be helpful to have a little more information. Can you give us any examples of situations in which excessive costs arising from failure to meet title and interest requirements have restricted access to environmental justice?

We could start with the M74 case, in which Friends of the Earth Scotland sought a review of the Government’s decision to authorise the go-ahead of the M74 construction in Glasgow. We needed to fundraise around £60,000 to take that case forward. At that time, no protective costs orders had been granted in Scotland. We sought an application and put it before the court, but it declined to consider it, even though Lord Glennie had considered that PCOs would be valid in the Scottish courts.

More recently, members will be aware of the case that is being taken to review the inclusion of Hunterston coal-fired power station in the national planning framework, which involved the first PCO in Scotland being granted. However, the judge set the level of the maximum liability at £30,000, which was in addition to any legal costs that the appellant might incur on their own side. That compares badly with the situation in other European jurisdictions. For example, I read that in Spain, costs of €3,000 to €5,000 are considered to be expensive and are often supported by legal aid for non-governmental organisations. In Belgium, the fee is €243, and no legal expenses are expected. We believe that costs in the order of tens of thousands of pounds, running up to a possible total of £100,000, are a significant barrier to access to the courts.

In relation to title and interest, as we call it in Scotland, or standing, as it is known more commonly in England and Wales, the Gill review said that, in civil justice, title and interest is too restrictive. In Scotland, we tend to take a very strictly defined, geographical approach. I will give you some practical examples—they might sound like terribly controversial cases, but I am just using them for the purposes of illustration.

In the case of Mary Buchan Forbes v Aberdeenshire Council and Trump International Golf Links, Mary Forbes was told that she did not have title to take the case to court, because she did not have an adjacent property. As you know, Mary Forbes lives in a mobile home next to the dunes the planning application for which she was seeking to have reviewed. Furthermore, the sufficient interest test, which is the test that Lord Gill recommended, which is more commonly used in England and Wales, is a much broader test of interest. In England and Wales, NGOs, such as Age UK, can take cases on behalf of people whom they represent. In Scotland, it has been found that that is not possible, because NGOs are not directly influenced by the decision that they seek to challenge.

I want to pursue the issue of costs for the moment; I am sure that we will come back to the other one. If I picked you up right, Mr McLaren, you talked about the costs of, as it were, the court—recognising that any party will have other costs, such as lawyers and other incidental costs. You suggested that legal aid would be appropriate in some cases. What is the position in Scotland at the moment? Am I right in thinking that there is no question of legal aid for public interest environmental cases in Scotland?

As far as I am aware, it is impossible to get legal aid for public interest environmental cases. The rules imply that it might be possible to get legal aid where you also have a private interest, but there are very few, if any, examples of it being granted. It is a shame that Frances McCartney could not be with us, because she has represented a number of clients seeking legal aid to take such cases, and I believe that she is in litigation at present with the Scottish Legal Aid Board in an attempt to open up that availability.

Okay, but, at the very least, legal aid would be very restricted, probably to cases where somebody was absolutely bang next door, had a very obvious civil case that Scottish law would recognise and had very few means. There is no general availability of legal aid for such cases.

No.

As Duncan McLaren said, it is not that legal aid is forbidden, if you will, but no public interest environmental cases seem to have been granted legal aid. There is a sort of catch-22 situation in that private interest cases might be granted legal aid, but generally the whole point about these cases is that a wider public interest is at stake. Even if you try to take the case as a private interest case, if it is deemed that other people might be able to support you financially, you do not get legal aid. You do not have to identify who those other people might be; it is just thought that if other people might be affected, surely they would be willing to pay, too.

Will you explain precisely how a protective costs order works in favour of a complainant?

It is worth noting that protective costs orders have been adopted by the English and Welsh courts, but that they were assessed by the compliance committee as not adequate. I will say a little bit about where the situation needs to go. A protective costs order is made at the start of the case, so on the first day of the case, or even before the hearing before the judge, the judge has the discretion to rule that it is in the public interest that the case should be heard and should not be deferred or prevented by lack of means, and to set a maximum level of expenses that might be found against the appellant if they lose the case.

In the English experience, the PCO does not cover the costs of the appellant themselves. That is left largely at the discretion of the judge. That factor led the compliance committee to say that there was still a deterrent, because until you went in on the first day you would not know the decision, but by that time you would have spent money and the defendants would have spent money preparing a legal case. You could go in and even though you were told that you were not going to get a PCO or you found that the level was set so high that you could not go forward, you would still have a significant legal bill.

Organisations that have been involved in English cases have suggested that a rules-based model in which the rules of court set out the conditions under which a protective costs order should be made and the scales for that would be compliant with the convention. Those organisations have suggested that it might be better to have one-way cost shifting, so it is clear that costs can move in only one direction and up to a certain amount. Lord Gill also suggested that as one of his options—he cited several options, including some from Australia. We encourage examination of that model in Scotland, rather than the PCO model as it is currently used in England, which sadly has been found still to be deficient, although it has enabled additional cases to be brought.

Just to clarify, even if the appellant knows their costs to date on the first day of the court hearing, and knows what the defendant’s costs have been, the judge can set a protective costs order so high that the appellant has to withdraw straight away, because they cannot face the risk.

Yes.

There have been several reports in England and Wales. There has been the Jackson review, which, similarly to our Gill review, looked more broadly at civil justice. There has also been the Sullivan report, which looked specifically at environmental justice. He, too, recommends qualified one-way cost shifting instead of protective costs orders. That is because of the judicial discretion that is involved in those orders, which means that neither the defendant nor the appellant knows at the outset what the costs will be set at or how they will be able to proceed.

So what you would really like is a pre-hearing—or a set of rules that eliminate the need for such a hearing—to set out that if you go to court, you will still be responsible for your costs, but you can be absolutely sure that the court and the defendant’s costs that you are expected to cover will be no more than £10,000 or whatever, and you would like that before you have to do a significant amount of work.

That is a good summary. There are regimes, such as the Australian one that Lord Gill cited, in which the rules cover the possibility that, in cases that are important because of the breadth of the public interest, there would always be a contribution to the appellant’s costs. However, your formulation is a good statement of what we would like. As an environmental NGO, we are happy to tell our members that we need to fundraise to bring a case and to pay our lawyers; the issue is when we have to say that we need to fundraise because we might have to pay additional costs, although we do not know how much they will be. That is a significant deterrent to our fulfilling the functions that our members expect us to fulfil.

What kind of sums of money do you need for your lawyers? I am conscious that those good ladies and gentlemen do not, by and large, come cheaply.

In the Hunterston case, it is estimated that, although the costs that Mr McGinty will have to pay the Government if he loses have been capped at £30,000, he is still looking at a bill of £110,000 at the end of the day.

I believe that that is the maximum figure.

Obviously, there is some pro bono work because it is a good test case, but that is how much it will cost in strict legal terms for the Queen’s counsel and lawyer to be in court for that length of time.

That is the point that I want to extract. Whether or not the costs are capped at £10,000 or £20,000 or whatever, that might turn out to be almost irrelevant when the figure for your lawyers could get to six figures on a bad day, or a bad week or two. Perhaps the issue needs to be put in the context that that possibility is in itself prohibitive.

The point is that costs on your side are more under your control. In some circumstances, people choose to go before the court without legal representation, to seek pro bono support or to use only junior counsel. It is possible to manage costs in ways that the costs of the other side cannot be managed. Without that cap, the Government or public authority and an interested company might both instruct a senior QC, which would definitely take the costs into six figures.

14:30

That has a name: it is called the chilling effect. A lot of the time, communities will get together, raise enough money to pay for their own legal expenses and try to take a case, and they will be threatened by the other side saying, “At the very least you will have to pay us £150,000 if you lose.” It means that people are genuinely disincentivised from even trying to take a case. That has happened in a couple of cases up in Skye.

I point out that that is a general problem with the legal system; it is not a problem only for the environmental movement.

Absolutely. I would never suggest that anything that we are talking about today is just a problem for environmental law, but the Aarhus convention is an interesting tool for us to use, because it provides for access to justice on environmental matters.

This is an appropriate juncture at which to add that nothing that we are saying should be seen as reflecting an expectation that changing the rules would lead to a flood of cases. We believe that the most valuable outcome of changing the rules would be that it would be credible for someone to take a case that led to better consideration of environmental matters. That seems to be the evidence from other jurisdictions in Europe. There are still only a handful of cases coming forward each year on such matters.

That leads to my next question. Which jurisdictions have done it better? What are the implications? It strikes me that the Government might be concerned about the floodgates opening and that it has the sort of concerns that any Government would have. From what you know of other jurisdictions that have complied more closely with the Aarhus convention, is it your experience that, although it has improved things, the implications for Government have not been huge?

Portugal has what is called an actio popularis, which is a general public right to access the courts in relation to the Aarhus convention, and it has not experienced a massive growth in court cases. As you might expect, Denmark has an excellent system in place. There have been a handful of cases since it introduced an administrative route to try to meet the terms of the convention. Although Ireland may not be the best example of anything at the moment, it has had much better access to the courts and to justice in place for a number of years and, until recently, it obviously had huge economic growth, which shows that those things can work alongside each other. As Duncan McLaren says, it is about ensuring that there is a level of engagement and a level of trust on the part of the communities. It is all very well saying, “You will be consulted,” but if you have no grounds on which to challenge when you think that you have not been consulted, why would you have faith in that system?

I come back to title and standing, which I deliberately put to one side. The concept is straightforward enough in Scots law and in law in general. If we start from the basis that Scots law does not naturally give you the kind of title and standing that you would want in an environmental case, for reasons that we have already alluded to, what definition of title and standing do you suggest that we should look at?

I will start and I am sure that Juliet Swann will also comment.

The essence of the definition that Lord Gill adopted and, indeed, recommended, was to move from title and interest, with its connotations of land ownership and direct impact upon the individual, to a test of sufficient interest. Although that sounds quite vague to you and me and others with a layman’s use of English, in legal terms it is apparently very easy to define a sufficient interest and to show that an organisation or a local body was affected by the decision, could be affected and had an interest in the outcome, but would not necessarily pass the hurdles of title and interest as they stand.

Thank you. That is helpful. I suspect that one thing that we will want to do as a result of the petition is write to the Government. It is helpful if there is no particular difficulty in the words that it needs to get its mind around.

I have in front of me the relevant chapter—chapter 12—of the Gill review. Gill says that having separate title and interest is not working any more and that we need to think about moving to sufficient interest. I mentioned Age Concern earlier; the report cites a case involving it. Age Concern tried to bring a case to do with a piece of published literature that it thought was inaccurate, but it was told that it did not have title and interest, as the matter would affect not it, but the people whom it represents. Gill said that if there were a test of sufficient interest, it would obviously be able to take the matter forward, as it represents older people.

Do members have any suggestions on how to proceed?

We should write to the Scottish Government. It is clear that there is a strong case to answer and that the Government has very little to lose and much to gain in taking up the matter. There are specific questions that we could ask. We could ask whether the Government considers that access to the Scottish courts is compliant with the Aarhus convention on access to justice in environmental matters, especially in relation to costs, title and interest. If it thinks that it is, it should be able to demonstrate that. We could ask the Government whether it will publish the documents on and evidence of such compliance, and, if it will not, why not. We could also ask it what action it is considering taking in light of the recent ruling of the Aarhus compliance committee against the UK Government.

Have we covered the additional points that Juliet Swann raised?

I am conscious that we might want to talk to the Scottish Court Service, but I am not sure that we do. Let us see whether we can make some sense of that. However, I am sure that we need to talk to the Scottish Legal Aid Board, as we need to know where it fits in. It will know what the rules on legal aid are at the moment.

May I make a suggestion? Is that allowed?

Of course.

Writing to the Scottish Legal Aid Board and asking it what the rules are is an interesting idea, but I would ask it, as I would ask the Government, to back up what it says with examples of when the rules have been applied. As far as I am aware, there is no explicit rule against granting legal aid in the public interest in environmental cases, but that never happens in practice.

I suggest that we write to the United Nations Economic Commission for Europe, which might have something to do with policing compliance with the Aarhus convention.

The compliance committee monitors implementation.

Okay. So it might be worth asking it where it thinks we are. It may have a view on that. You may already know what it is.

I suspect that you will find that it has in front of it only the information that is included in DEFRA’s reports to it, which have at best been sketchy on Scotland. The most recent draft that we saw said something along the lines of, “We are advised that Scotland is compliant.”

We can send the compliance committee your presentations to us and the Official Report of today’s meeting for it to consider.

We are aware that at least one case from Scotland that has been sent to it is still under consideration.

I wonder whether there is any legal group that we can contact. I spent this morning talking to the Faculty of Advocates and the Law Society of Scotland in this room. I am not sure that we necessarily want to write to them only. I am looking to the witnesses for help. Are there are any groups of lawyers whom we could consult?

It may be worth writing to the UK Environmental Law Association, which has members in Scotland and England. Its members will have made use of the PCO regime in England. I see no reason why the committee should not also seek the views of the Law Society of Scotland.

I think that, in the first instance, we want to cast the net fairly wide to see whether we can get people’s views and where they point us.

Some university law departments specialise in environmental law and we might be able to tap into them.

The University of Edinburgh and the University of Strathclyde both excel in that respect.

Are there some issues around communication between DEFRA and the Scottish Government?

In preparation for the 2011 meeting of the parties DEFRA has to prepare a UK implementation report, which went out for consultation in November. The only Scottish organisations on the consultation list were Patrick Campbell solicitors, which Frances McCartney works for, and Road Sense, which is the group that is taking the complaint to the compliance committee. Friends of the Earth England, Wales and Northern Ireland was listed, and Friends of the Earth Wales was listed separately, but we were not invited to respond. We have responded, however.

I spoke to Frances McCartney yesterday and she said that, as far as she is aware, the Scottish Government has made a submission. The fact that the consultation was not made public in Scotland is worrying, however, especially as it does not—as Duncan McLaren said—represent the situation that we are aware of in Scotland. The report broadly ignores quite a few devolved issues and makes blanket statements such as “Scotland has told us that they are in compliance,” which seems a little dodgy, if you will pardon that term.

It might not do any harm to contact the UK Government and find out the extent to which Scotland has been consulted.

We could explain the grounds on which the UK Government tends to make claims of compliance, if that would be helpful background information for the committee. There are some fairly standard arguments that it uses. Perhaps we could put that explanation in writing for you.

It would be helpful if you could put that in writing and send it to the clerk.

Thank you both very much for appearing before us today. We will take the petition forward and you will be in touch with the clerk with additional information, which will be very helpful.