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Developments in environmental justice in Scotland. A consultation

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Chapter 2 - Scotland's Civil Justice System

Introduction

1. The Scottish Government recognises the importance of an efficient justice system - both as a mechanism for economic growth and for the effective protection of rights. An efficient civil justice system is vital to Scotland's economy in helping to make Scotland an attractive place to do business. An understandable and accessible system is vital in giving litigants confidence that their problems will be resolved in an efficient and timely manner.

2. We are living in a period of comprehensive change, at the heart of which is the desire to ensure that the court system deals with cases proportionately.

3. We have created a new framework for the civil courts in the Courts Reform (Scotland) Act 2014 ("the Courts Reform Act"), which began to be implemented throughout 2015. That implementation will continue in 2016. This Act is part of our programme of significant reform to address the problems identified in Lord Gill's Scottish Civil Courts Review[5]. Our aim is to ensure our civil justice system remains accessible and cost effective by ensuring that the right cases are heard by the right court, at the right cost.

4. Major changes to civil court structures and procedures will reinvigorate the whole justice system in Scotland. We want to improve access to justice at every level. The courts should help parties focus on the issues and facts in dispute and facilitate settlement. There should not be endless opportunity for technical arguments about procedures which prevent cases being dealt with expeditiously.

5. This is where reformed procedures and clear court rules can have a huge beneficial impact. Recent changes will support our judiciary in adopting more active judicial case management. Ultimately we expect a system where, through the appropriate streaming of cases and appeals to the right courts, cases are dealt with swiftly and efficiently.

6. In the next sections we explain in more detail the changes which have taken place and which provide the context for considering environmental cases as they are dealt with in our justice system.

Sheriff courts and the Sheriff Appeal Court

7. Scotland's sheriff courts deal with certain environmental matters that arise in summary applications, for example in licensing. The sheriff court also hears certain statutory appeals which might relate to the environment, for example in relation to decisions about local access disputes. However, discussions at the National Access Forum suggest that particularly difficult access disputes remain unresolved because access authorities (local authorities and National Park Authorities) are reluctant to take cases to the sheriff court because of the time taken to resolve a dispute, the costs involved and the risk of an appeal to a higher court.

8. Civil appeals from the sheriff court were previously made to the sheriff principal or directly to the Inner House of the Court of Session. The Courts Reform Act has created the Sheriff Appeal Court[6] which will hear the majority of appeals from the sheriff courts.

9. The Sheriff Appeal Court may establish precedents on points of law which will be binding on sheriffs throughout Scotland. Using the Sheriff Appeal Court rather than the Court of Session is likely to result in lower costs to litigants. Court fees will be lower and the instruction of counsel, which is compulsory in the Court of Session, may not be necessary. As appeals from sheriff courts may include environmental appeals, the Sheriff Appeal Court is an important part of the landscape for these appeals.

Court of Session

10. As a consequence of the Courts Reform Act, the Court of Session now hears cases where the combined value of orders sought is £100,000 or more. This has been raised from £5,000. The limit for the Court of Session was increased in order to permit the Court of Session to return to its proper role of dealing with the most complex and important cases and developing Scots law[7].

11. The Court of Session has exclusive competence to hear judicial reviews and appeals under statute. In each case, the Court considers whether a decision-maker acted lawfully in making a decision.

Judicial review

12. In judicial review, the Court of Session supervises the decision-making of both private and public bodies. The Court looks at whether the decision was wrong in law, and whether the body making the decision had the power to make it.

13. A decision may be judicially reviewed on the basis that it is not rational, or that it was made following an unfair or biased procedure. Judicial review may also be used where a decision is considered to breach the Human Rights Act, European Union law, or equality duties.

14. One example of an "environmental" judicial review could be Sustainable Shetland v Scottish Ministers[8], which concerned a decision to grant consent for the construction and operation of a wind farm.

15. Judicial review is only available when there are no other ways of challenging a decision. If internal complaints procedures, or appeals under statute (see below) are available, these mechanisms should be used first.

16. As part of a broader programme of civil court review, the Courts Reform Act has introduced a 3 month time limit within which an application for judicial review must be made. However, the Court has discretion to allow a longer period where it considers it equitable so to do. The Act also introduces a permission to proceed stage. This is intended to filter out cases with no real prospect of success or where the applicant has insufficient interest in the subject matter of the application.

17. These reforms, coupled with improved case management by the Scottish Courts and Tribunals Service (SCTS), are intended to speed up and reduce the costs of judicial review.

Appeals under statute

18. Where an Act of Parliament sets out a right of appeal, this is usually heard by the Inner House of the Court of Session. In this type of challenge, known as a statutory appeal, the court exercises a similar function to that in a judicial review. The question is whether the decision-maker acted lawfully in making its decision.

19. Examples of statutory appeal can found in sections 238 and 239 of the Town and Country Planning (Scotland) Act 1997, Schedule 2 to the Roads (Scotland) Act 1984, and sections 63A and 63B of the Marine (Scotland) Act 2010.

20. For example, a decision made by a planning authority to adopt a strategic or local development plan can be challenged by way of a statutory appeal, as was the case in Uprichard v Scottish Ministers[9].

Judicial specialisation

21. The Lord President of the Court of Session may determine categories of sheriff court case for the purposes of judicial specialisation under section 34 of the Courts Reform Act. This is a discretionary matter for the Lord President.

22. The sheriff principal in any sheriffdom may, in turn, designate sheriffs and summary sheriffs, under section 35 of the Courts Reform Act, as specialists in a particular category of case. Again this is at the discretion of the sheriff principal.

23. Section 36 of the Courts Reform Act places a duty on both the Lord President and the sheriff principal of a sheriffdom, when allocating business within a sheriffdom, to have regard to the desirability of ensuring that cases which fall within specialist categories are dealt with by judges who are designated as specialists in those categories.

24. The effect of sections 34, 35, and 36 of the Courts Reform Act is that, if the case is made, it is possible that environmental cases could be heard by specialist environmental judges provided that the Lord President designates such cases as a category that is suited to be dealt with by specialist sheriffs or summary sheriffs, and sheriffs principal designate one or more of these judicial office holders as specialists in environmental cases. This option is not a matter for the Scottish Ministers.

Court specialisation

25. In January 2015, Lord Gill, the then Lord President, announced his intention to carry out a feasibility study[10] into the creation of a new Energy and Natural Resources Court in the Court of Session.

26. The creation of this court would not require primary legislation. The creation of a specialist court within the Court of Session is a matter for the Lord President and the SCTS and not for the Scottish Ministers.

27. The commercial court within the Court of Session is an example of a specialist court established by the Lord President. The procedures appropriate to an Energy and Natural Resources Court could be put in place in the same way, including case management powers similar to those of the commercial court.

28. The aim of the Courts Reform Act is to reform the civil courts in order to allow the right cases to be heard in the right courts. This in turn will afford the Court of Session the opportunity to adapt, diversify, and attract high quality work.

29. An Energy and Natural Resources Court in the Court of Session could provide a specialist forum to resolve disputes in the oil and gas industry and in the newer renewable energies, wind and wave power sectors.

30. As far as the sheriff court is concerned, section 41 of the Courts Reform Act allows the Scottish Ministers, with the consent of the Lord President, to provide for "all-Scotland" sheriff courts for specified types of civil proceedings if a case is made for doing so. This would enable an all-Scotland environmental court to be created to deal with civil environmental matters. However, this is only likely if the volume of cases to be heard by the court can justify its existence. An example of an all-Scotland sheriff court is the Sheriff Personal Injury Court.

Standing

31. In order to function efficiently and effectively, every judicial system requires clear procedural rules: for example about who can bring an action, what kind of action they can bring; and the remedies available to them, if successful.

32. The procedural rules on who can bring a case to court in Scotland have recently been changed. The long-standing concept of "title and interest", requiring litigants to have a private interest in their litigation, has been replaced by a less restrictive test of "standing".

33. The rights of representative organisations to litigate in the public interest were clarified in the Supreme Court case of AXA General Insurance v HM Advocate[11]. These rules were then affirmed in Walton v Scottish Ministers[12], where it was held that "a person aggrieved" could include someone taking a public interest challenge. In Walton, Lord Hope stated that environmental law proceeds on the basis that "the quality of the natural environment is of legitimate concern to everyone" although this was not to be seen as an "invitation to the busybody"[13].

34. The Courts Reform Act codified these changes for judicial review[14]. Someone wishing to challenge a decision of a public authority requires to demonstrate "sufficient interest" in that decision. The result is a clear, broader entitlement to take a case to court. We expect that this change will benefit those with an interest in public interest litigation and who seek to bring cases in the future.

Legal aid

35. Making legal aid available to those who need it is a key part of access to justice. Legal aid helps people to pursue their rights if they can't afford to do so otherwise. The Scottish Government seeks to make the system more effective by reducing unnecessary costs and making sure support is targeted at those who need it most[15].

36. Unlike in other jurisdictions, we have not approached the challenge of a gap between budget and the true cost of legal aid by proposing major changes to the scope. We consider that reductions to scope can have a damaging impact on access to justice and can have adverse consequences for other parts of the justice system as well as wider society.

37. As Scotland's public interest litigation culture develops, there have been calls for changes to be made to some aspects of legal aid. For example, FoES[16] call for the repeal of a regulation which FoES considers makes many environmental cases ineligible for legal aid: Regulation 15 of the Civil Legal Aid (Scotland) Regulations 2002.

38. Regulation 15 applies not only to environmental cases but to all civil legal aid cases. Where more than one person has a legal interest in a case, the Scottish Legal Aid Board (SLAB) is required to consider whether, in those circumstances, legal aid should be granted.

39. The purpose of this rule is to ensure that taxpayers' money is used only where it is appropriate to do so and where there are no other means of funding a court action. In cases where many individuals have an interest in the outcome, it is not always reasonable to expect public funds to meet the costs of those individuals if some of those involved could meet those costs themselves.

40. SLAB does not believe that Regulation 15 has an "overbearing influence" on the ability of applicants to receive legal aid in cases with an environmental impact. SLAB notes that between April 2011 and March 2015, Regulation 15 was given as part of the reason for refusal in only 4 of 23 applications for legal aid[17].

41. The Scottish Government believes that Regulation 15 strikes the right balance by ensuring that legal aid is targeted at those who need assistance and cannot reasonably get funding from another source. However, as Scotland's public interest litigation culture continues to develop, we will keep matters under review.

Protective Expenses Orders

42. The general rule of litigation is that expenses follow success: the losing party pays the legal expenses of the other party. In order to limit the potential expense of certain cases and broaden access to justice, it is possible to apply in advance for an order which effectively acts as a guard against any expense being payable beyond a limit set out in the order. This is known as a protective expenses order (PEO). As with legal aid, only those who need a PEO should be eligible to receive one.

43. While PEOs were already available at common law, in 2013 the Rules of the Court of Session were changed to set out an express PEO procedure for certain environmental statutory appeals and judicial review[18]. Since then, PEOs have been applied for in a number of cases including Carroll v Scottish Borders Council[19] where a homeowner appealed against the grant of planning permission for wind turbines. More recently, in Gibson v Scottish Ministers[20], the decision not to award a PEO was successfully appealed.

44. In 2015, amendments were made to the rules of court which provide for PEOs[21]. While the PEO rules continue to apply to statutory appeals and judicial review, the rules now refer to the Aarhus Convention itself.

45. In order to ensure broad access to justice and assistance for those who need it, in determining PEO applications judges must consider both the resources of the applicant and the likely expense of the litigation (i.e. the subjective and objective elements of the application[22]). As the rules make clear, the overall purpose is to ensure that proceedings are not prohibitively expensive for the applicant.

46. The PEO rules, together with the rules about who might bring a case (see the section on standing above), are part of ensuring access to justice in environmental decision-making.

International obligations - the Aarhus Convention

47. The United Kingdom and the EU are parties to the United Nations Economic Council for Europe Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters ("the Aarhus Convention").

48. The Aarhus Convention is an international treaty concerned with environmental protection and the rights of individuals in relation to environmental decision-making. It is based on three "pillars":

  • the right of access to information about the environment;
  • public participation in decision-making about the environment;
  • and access to justice in relation to environmental matters.

49. The rights of access to environmental information and to public participation in environmental decision-making have been incorporated into EU law[23] and domestic legislation[24]. The third pillar, access to justice, has not been the subject of EU incorporating legislation.

50. This paper sets out how the Scottish system affords access to justice, as distinguished from the right to public participation in decision-making. We set out the comprehensive changes which have affected the landscape in the last 5 years, many of which are fundamental reforms. The changes to standing, the introduction of PEOs, and the increased possibility for judicial specialisation are some of the main differences.

51. In setting Scotland's scene, we note that there is inevitably scope for comparison with other legal cultures and traditions. This is particularly the case given the international nature of the treaty arrangements[25]. Different countries with different legal systems give effect to the Aarhus Convention in their own ways. Compliance may therefore take a number of forms.

52. The Aarhus Convention itself required the Parties to establish "optional arrangements of a non-confrontational, non-judicial and consultative nature for reviewing compliance with the provisions of the Convention". To meet this obligation, the Aarhus Convention Compliance Committee (ACCC) was established. The Scottish Government contributes to the UK's annual reports to the ACCC[26] and has informed the ACCC of updates to PEO rules and to judicial review.

53. The Scottish Government has undertaken a significant programme of reform to the justice system. We aim to make the court system in Scotland more efficient and more accessible. By codifying the changes to "standing" for judicial review and introducing PEOs for certain environmental cases, our civil courts reform programme has contributed to Scotland's ongoing compliance with international obligations under the Aarhus Convention.