Chamber and committees

Thank you, convener, and good morning.

I welcome the opportunity to appear before the committee to give evidence on Scotland’s compliance with the Aarhus convention. As members of the committee will know, the convention consists of three pillars: access to environmental information for any citizen; the right to public participation in decision making; and access to justice in environmental matters. My portfolio responsibilities relate to the access to justice pillar.

We are all very appreciative of the detailed work that the ACCC undertook to ensure compliance with this important convention. It is a complex and cross-cutting area of work that touches on a number of different policy areas. Enormous strides have been made towards compliance under the current Government. Despite that, at a meeting of the parties in October 2021, the ACCC found both Scotland and the rest of the UK as a whole to be non-compliant. The ACCC had previously welcomed Scotland’s significant progress in 2018, and work is on-going to strengthen compliance in the areas of concern that the ACCC identified in its most recent decision. We are optimistic that further progress will be recognised, following the submission of our update later this month.

Officials have continued to work with our counterparts in the Department for Environment, Food and Rural Affairs and in both the Welsh Parliament and the Northern Ireland Assembly to provide a response to the ACCC that addresses the concerns that have been raised.

I am happy to answer questions, convener.

Sure. Several issues were raised in the report, and I can highlight probably four on which action has been taken since it was published.

The first issue is cost protection on appeal. Under a rule change enacted in June 2024, reclaiming is progressed in the same manner, regardless of whether it is a petitioner or the respondent who is appealing the original decision. The rule change clarifies that court fees are included in the cost cap and also addresses the issue that was raised by the ACCC.

Another issue related to protective expenses orders. A rule change was enacted, prompting a petitioner to request confidentiality when they lodge a motion requesting a protective expenses order, and in the event of a hearing, it would be heard in chambers, from which the public would be excluded. A rule change was also enacted in June 2024 with regard to interveners. The Scottish Government has taken action to clarify that a potential litigant’s exposure to an intervener’s costs is likely to be nil, providing that they act reasonably.

In relation to court fees, following a public consultation in 2022, an exemption from such fees was introduced for Aarhus cases raised in the Court of Session. Therefore, the ACCC’s concern over whether court fees would be included in cost caps has become redundant, which has been welcomed by all stakeholders and environmental NGOs.

Several other issues were raised for proposed action, but I do not know whether you want me to cover all of them, too, or whether you are happy with that progress.

Yes. Legal aid reform is simply one element of access to justice, together with court fees and protective expenses orders.

As I have said on record, it has not been possible thus far to introduce a bill to enact any change in this parliamentary session. However, that does not prevent us from making further reforms that we can build on to simplify the legal aid system and reform fees within the current legislative framework, perhaps through the use of secondary legislation.

I am confident that we can still comply with the convention without full legal aid reform.

I will bring in Denise, but my understanding is that, even if there were to be reforms to regulation 15, we would have to carefully consider the knock-on effects on different portfolio areas.

We are looking at starting the engagement process towards the end of this year and the beginning of next year. The timescale would be to put in place secondary legislation before the end of the current session of Parliament, so there will be some reform of legal aid.

I do not know whether it will be an oral statement; it will come towards the end of November.

Thank you, convener, and good morning, committee. The instruments before you are the Upper Tribunal for Scotland (Transfer of Functions of the Transport Tribunal) Regulations 2024 and the Upper Tribunal for Scotland Bus Registration Appeals (Composition) Regulations 2024.These regulations are part of a package of four instruments that are closely connected and were all laid on the same date. The two affirmative instruments are important as they will continue the work to bring current tribunal functions into the Scottish tribunals structure and are essential as part of a wider package to enforce bus services improvement partnerships.

The first instrument, if passed, will transfer the devolved functions of the transport tribunal to the Upper Tribunal for Scotland. Those functions are the appeal functions that are currently exercised by the transport tribunal for certain financial penalties imposed by the traffic commissioner for Scotland on bus operators for failures to comply with certain statutory requirements set out in section 39 of the Transport (Scotland) Act 2001.

The regulations will also make transitional provisions to ensure that any live appeals before the transport tribunal transfer to the Upper Tribunal for Scotland. Equivalent bus enforcement powers conferred on traffic commissioners in England and Wales have an appeal route directly to the United Kingdom Upper Tribunal. Hearing appeals against service standard decisions in the Upper Tribunal for Scotland will ensure equal access to justice for any cross-border operators.

The second instrument, if passed, will make provision for the composition of the Upper Tribunal when deciding appeals against certain penalties that can be imposed against an operator of a local bus service under section 39 of the Transport (Scotland) Act 2001 and service standard decisions made by the traffic commissioner for Scotland in connection with bus services improvement partnerships.

Members of the Upper Tribunal can be legal, judicial or ordinary members. When deciding the appeals outlined above, these regulations provide that the Upper Tribunal may consist of: a legal or judicial member of the Upper Tribunal acting alone, or two or three legal or judicial members of the Upper Tribunal, or the president of the Scottish tribunals, acting alone or with no more than two legal or judicial members.

The power to choose between the compositions that I have just described is delegated to the president of the Scottish tribunals. The president of the Scottish tribunals, Lady Wise, was consulted on both draft sets of regulations in line with the requirements of the Tribunals (Scotland) Act 2014. Lady Wise indicated that she was content with the two instruments. There was also a public consultation that included the regulations, which closed on 27 October 2023.

I understand that the Delegated Powers and Law Reform Committee considered both sets of regulations on 1 October 2024 and was content.

I want to highlight that these regulations will have no impact on individual members of the public as they relate only to the appeals rights of local bus operators and local transport authorities. I am happy to answer any questions, convener.

I can answer that. Although the fee increases are more than in previous years, they should be seen in the context of the soaring inflation that we have experienced over the past few years, and the increased associated costs, which Walter mentioned. In 2021, there was no fee increase due to the pandemic; in 2022 and 2023, the increase was 3 per cent; and in 2024, it was 2 per cent.

There are no plans for further increases until 1 April 2026. The total increases are considered over a five-year period, which would be in line with the post-pandemic inflation as measured by the consumer prices index. One other thing to highlight is that the fees that have been selected for the higher percentage increase were chosen because they are lower in nominal terms, thus minimising any impact to access to justice. Specific examples, which I mentioned in my letter to the committee last week, are fees for the sheriff court caveat, which are proposed to rise from £48 to £58, and the fee for lodging a motion, which is proposed to rise from £54 to £65.

I would like to respond to that point. That issue is one that has been raised. Legal aid is demand led. Last year, it had a budget of more than £141 million. If, during the course of a year, the level of legal aid goes over the budgeted level because of demand, the Scottish Government will have to pay for that.

I know that the Scottish Legal Aid Board is currently looking geographically at the areas that need legal aid and at how we can solve that. We are working with SLAB and the legal profession on how we can improve access to justice through legal aid.

I do not have that exact price at the moment. It would be useful to have the data that allows for the fee to be broken down in that form, but the cases differ depending on how much of the court’s time is used, so it is unique to each individual case. Many cases will settle without a hearing. Accordingly, the fee might be low. However, some cases might involve lengthy hearings in the Court of Session and multiple motions, which might make them more expensive. Therefore, it is very difficult to pinpoint an average cost.