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We have written and met with the Scottish Government on the issue. We requested a meeting with the Cabinet Secretary for Justice to discuss the issues and a meeting with Chris Graham, who had formerly headed up the Access to Justice team in the Scottish Government Justice Department, was arranged. The overall outcome of the meeting was a repetition of the Scottish Government’s belief that Scotland is fully compliant with Aarhus. However recent developments, in particular the compliance committees ruling that the UK (England, Wales, Northern Ireland) is non-compliant, suggests this is not the case (see section 5). We emphasised the need for Scottish Government lawyers to review their interpretation in light of this ruling.

We helped draft amendments for Alison McInnes MSP that were tabled then withdrawn during the passage of the Climate (Change) Scotland Bill. We supported an amendment which would have enshrined the principles of Aarhus in the Act, ensuring that the Scottish courts would comply with them in cases where the Scottish Government was failing to meet its commitments under the Act.

There were two main reasons why the amendment was withdrawn. Firstly because Friends of the Earth Scotland and Alison McInnes both agreed implementation of Aarhus would be better done in a comprehensive manner rather than through the Climate Change Bill, it was largely seen as a ‘probing’ amendment. Secondly the Minister gave an assurance that the Lord President of the Court of Session was looking at the issue – in particular there was a commitment that the Lord President would look at protective cost orders following the Gill review. 

Having said this there were several shortcomings in the Minister’s evidence and argument at Stage 2, in particular around transposition of an EU directive, rules on standing, prohibitive costs, scope, and independence of the courts.

Transposition: The Minister failed to recognise or note that the provisions of Aarhus on access to justice in particular (as opposed to those on access to information and participation) have yet to be translated into an EU directive. The Minister overlooked the fact that there are infraction proceedings pending against the UK arising under the participation provisions of Aarhus, and wider complaints pending with the Aarhus Compliance Commission (this decision has since been published as referred to below). We understand that this is one reason why the Scottish courts are already considering protective costs orders (PCOs) (see below).

Standing: The Minister argued that clarity of rules on standing was unnecessary. Yet in similar circumstances with regard to the Land Reform (Scotland) Act 2003, the Scottish Parliament, the courts (and the then Scottish Executive) took the opposite view and chose to actively clarify rights of standing, with respect to NGOs, in line with Aarhus. There is a need for clarity in this case also.

Costs: On the matter of costs we welcome the fact that PCOs are already being considered. While the courts have recognised the principle, it is worth noting that the original case which recognised the possibility of such orders being granted was heard in December 2005 but no orders have yet been made. (Although in McGinty v Scottish Ministers  a PCO was granted, it was set prohibitively high and is still not in line with the Convention). In this situation the risk of costs remains a significant deterrent to access to justice, and the situation must be clarified.

For Minister’s response at Stage 2 see Official Report, Col.1964 www.scottish.parliament.uk/s3/committees/ticc/or-09/tr09-1602.htm#top
For Minister’s response at Stage 3 see Official Report, 24 June, Col.18783:

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