Campaigners take on Scotland’s top court over failures on legal aid

Environmental and human rights campaigners rallied outside the Court of Session, Scotland’s top civil court, on Tuesday 1 October. It was to mark the Scottish Government missing a crucial deadline for compliance with the UN Aarhus Convention’s access to justice requirements – including legal aid.

Scotland: breaking a UN convention on legal aid?

The rally featured speeches from the Environmental Rights Centre for Scotland (ERCS) and community campaigners who have faced unaffordable legal expenses when taking environmental cases to court:

Participants symbolically ‘blockaded’ the court with traffic barriers to highlight ongoing barriers to justice:

They called on the Scottish Government to remove all the financial obstacles that prevent people from taking environmental cases to court.

The UNECE Aarhus Convention guarantees the right to go to court to challenge decisions, acts and omissions that break environmental law. Article 9 of the Convention requires that access to the courts is fair, equitable, timely and not prohibitively expensive.

The United Kingdom ratified the UNECE Aarhus Convention in 2005. Scotland is obliged to ensure that its legal system is compliant with the Convention.

Failures over access to justice

In October 2021, the Aarhus Convention’s governing bodies adopted Decision VII/8s – requiring Scotland, as part of the UK, to, ‘as a matter of urgency’ meet six recommendations to make access to justice ‘fair, equitable, timely and not prohibitively expensive’ by 1 October 2024.

The Scottish Government has made only minor amendments to court rules which do not fully address the issues relating to court costs, and the First Minister’s 2024-5 Programme for Government dropped both a Legal Aid Reform Bill, and a Human Rights Bill, both of which would have improved access to justice.

Legal costs for environmental litigation can amount to tens or hundreds of thousands of pounds. At the moment, the ‘loser pays rule’ means that litigants have to pay the costs of their opponent if they lose.

Although there are some caps to how much this might be, it is still unaffordable and causes a ‘chilling effect’ that prevents environmental cases from ever being taken to court.

Shivali Fifield, ERCS chief officer, said:

Upholding our environmental rights in court is the ultimate guarantee of the rule of law. Without this credible threat, polluters can act with impunity. The Scottish Government must take immediate action to replace the ‘loser pays’ rule, reduce courts costs, and expand legal aid, so that we can meet the access to justice requirements of the Aarhus Convention and make our legal system affordable for everyone.

Scotland must do better

Wyndford Resident’s Union is a union representing residents in Glasgow fighting to save their home from one of Scotland’s biggest demolition projects. Caz Rae, member of Wyndford Resident’s Union, said:

Without legal aid, Wyndford Residents Union couldn’t have challenged the environmental impacts of demolishing our four high-rise flats instead of retrofitting them. It has allowed us to go to court on the demolition that is forcing our community out and threatening a beautiful wildlife corridor.

Access to justice is important for us to protect our communities and the environment, and create a legacy of a greener, cleaner future for how we do housing.

Phil Taylor, director at Open Seas, said:

Open Seas took Scottish Ministers to court because they were failing to consider their own Marine Plan, when making decisions about fishing.

Taking legal action like ours is incredibly expensive – equivalent to the annual cost of nearly three members of staff. Our costs were exacerbated by the Government’s appeal, which was weak and sought only to re-litigate the same arguments.

The environment needs strong voices to stand up for it and we need the burden of challenging Governmental failures to be reduced.

Featured image and additional images via ERCS