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.

Perhaps I can give you a little bit of history first. When the ACCC reported back in 2021, it asked that the UK be required to submit an action plan in 2022, followed by a progress report in October 2023 and a final progress report in October 2024. However, following the general election in July, and the consequent change of Government, the ACCC agreed to an extension for the submission of the final progress report to the end of this month. The Scottish Government supplied our report to DEFRA several weeks ago.

As I said, we know that the SCJC has committed to public consultation on the extension of protective expenses orders to the sheriff courts. That will be in its work plan for 2024-25.

As it is independent of Government, it would be inappropriate for me to comment at this stage. If we got to the end of that consultation and there were concerns, it would perhaps be an issue that Government could consider at that stage. However, as the SCJC is moving towards a consultation, I do not think that it would be appropriate for me to interfere.

Absolutely. One issue was the types of claims that are covered and the actions that we propose to take in that respect. In the context of the Aarhus convention, particular reference is made to nuisance and littering and the domestic law on both points under the Environmental Protection Act 1990. In Scotland, a litter abatement order would be sought in the sheriff court, but, to date, there has been very little available case law on that point. An action for nuisance would be raised in the sheriff court, too. The relevant committee of the SCJC has instructed the preparation of draft rules on the extension of PEOs to the sheriff court, with the aim of running a public consultation exercise on the matter next year.

The final point raised by the ACCC was about the level of cost caps. The SCJC has published on its website—so it is publicly available—a research paper about cost caps when used in practice. The paper sets out information on the use of PEOs based on the evidence available. The SCJC has given consideration to the cost caps, but is content to keep the current amounts at the moment. The SCJC has decided to maintain the ability to vary cost caps up and down, which is reflective of the statutory guarantee of judicial independence. Since cost capping was introduced in 2013, there have been no instances of caps being shifted upwards in practice.

The SCJC has also provided clarification of the phrase “on cause shown”; namely, that the party would need to demonstrate a valid reason. That is a Scots law term, and the SCJC has challenged the idea that it would cause enough uncertainty to lead to somebody abandoning proposed litigation.

Those are two areas in relation to which action is happening and proposed. As I said to the convener, there are other areas where we have taken action since the report was published.

I will bring in Denise Swanson, who is the legal aid expert on regulation 15.