1. The United Nations Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters1 ("the Aarhus Convention") was adopted on 25 June 1998 in Aarhus, Denmark. It created a framework for public access to environmental matters, granting the public rights and imposing duties on parties and public authorities in relation to the three pillars of the Convention: access to information, public participation and access to justice.
2. The UK and EU are both parties to the Convention and the EU has partly incorporated the Convention through Public Participation Directive 2003/35/EC ("the PPD"),which amended the Integrated Pollution Prevention and Control Directive 96/61/EC2 ("the IPPC Directive") and Environmental Impact Assessment Directive (85/337/EEC) ("the EIA Directive")3 .
3. The PPD requires Member States to ensure effective public participation in decision-making and regulation in relation to certain environmental matters, through access to information, access to justice and consultation. The PPD further requires that there must be access to a procedure for review of decisions by public authorities on environmental matters that is "fair, equitable, timely and not prohibitively expensive".
4. The sorts of decisions covered by the PPD principally cover those where an environmental impact assessment is required, for example, major infrastructure projects. Examples of the types of projects or programmes which may require an environmental impact assessment include:
- windfarm developments,
- hydroelectric schemes,
- major roads,
- waste incinerators, and
- urban developments, such as schools, housing and sports stadia.
5. Full details of projects to which the EIA Directive applies are listed at Annexes I and II of the Directive4 .
6. In Scotland, the obligation to ensure access to a review of decisions by public authorities is principally met by judicial review, where the legality of decisions by public bodies may be challenged by bringing a petition in the Court of Session; and by applications for statutory review, for example, under sections 238 and 239 of the Town and Country Planning Act 1997 (c.8) or Schedule 2 to the Roads (Scotland) Act 1984 (c.54).
EU infraction proceedings
7. The European Commission has raised questions whether, across the UK, the current regime for granting Protective Expenses Orders ("PEOs) in the UK complies with the requirement under the PPD that access to legal remedies should not be "prohibitively expensive". The Commission considers that the current legal framework for granting PEOs does not provide the level of certainty required by the PPD. A way forward, it has suggested, is to codify the procedure for PEOs in rules of court, with the rules themselves specifying a cap on the petitioner's (or applicant's) liability to pay the respondent's or defender's expenses rather than leaving this to the discretion of the court.
8. The European Commission adopted a reasoned opinion on 18 March 2010 which set out its view that the current rules on costs for environmental challenges do not ensure compliance with the PPD. The Commission referred the UK to the EU Court of Justice on 6 April 2011.
9. The Scottish Government consulted on specific proposals for a costs capping scheme via court rules on PEOs in its consultation paper Legal Challenges to Decisions by Public Authorities Under the Public Participation Directive 2003/35/EC: A Consultation, ("the consultation") published in January 2012.5
10. The usual rule in civil litigation is that expenses should follow success. A PEO represents a modification of that rule by limiting the amount of expenses a challenger (referred to as a 'petitioner' in judicial review proceedings) has to pay to the other side if unsuccessful. Although there is no formalised procedure for granting them, a number of PEOs have been granted in judicial review cases.6
11. An independent analysis of responses to the consultation was carried out by Why Research and published in September 2012.7 This paper is designed to be read alongside the consultation report and does not seek to duplicate or contradict its findings. Similar exercises have been carried out in England and Wales and in Northern Ireland. 8
12. In light of the EU Commission's concerns, the Scottish Government proposed that, in conjunction with measures proposed by the UK Government and the Northern Ireland Department of Justice, there should be specific Rules of the Court of Session for granting PEOs to put compliance with the requirements of the PPD beyond doubt.
Proposals Consulted On
13. The Scottish Government consulted on the following key proposals for on the following proposals for Rules of the Court of Session for Protective Expenses Orders ("PEOs"):
- The rules are to apply to judicial reviews and statutory reviews of decisions by public authorities covered by the PPD. The rules are to apply in the same way, regardless of whether the petitioner in a particular case is a natural or legal person.
- The rules are to apply in the Court of Session only, and in the case of statutory reviews, only to reviews brought in the Court of Session.
- A PEO should also be available for mixed cases, that is:
- where the application concerns matters falling within the scope of the public participation provisions of the PPD, but also raises other matters outwith their scope.
- where the claim is grounded on whether the public participation provisions of the PPD apply, and turns on whether those provisions apply or not.
- A PEO will not be made automatically, but must be applied for.
- A PEO can be applied for at any stage in the proceedings but should be applied for timeously to provide certainty for all parties.
- The PEO will limit the liability of a petitioner (or applicant) to pay the respondent's costs to £5,000 and also limit the liability of the respondent to pay the petitioner's costs to £30,000.
- By way of exception, the respondent may apply for the petitioner's cap to be removed - i.e. that there should be no costs capping because the petitioner is not in need of costs protection - where information on the petitioner's resources is publicly available. The application may only be on the basis that the petitioner demonstrably has such funds available for litigation that access to justice is not in issue and no costs protection is required. The respondent must provide justification supported by evidence.
- The respondent will not be able to require the petitioner to disclose their means.
- If the application to remove the cap is successful, costs protection will be disapplied altogether, so there will be no cross-cap (an alternative option which provides for the cap to be raised rather than simply removed is also provided for consultation).
- Costs of the PEO application will not be payable by either party if the PEO is applied for with default terms and is made in those terms (that is to say, there should be no additional costs element for a "default" application and order).