Chamber and committees

That dates back to 2001. It is a long process, and there is not a deadline. In relation to the report that we got back in 2021, we have shown progress in all the areas that are being considered. The report has now gone to DEFRA; it is to be submitted at the end of November. We will wait for the feedback from DEFRA to see what further recommendations to take forward. We are keen to do what we can to be compliant.

The Government is independent of the SCJC, so consultation is up to the SCJC. I know that it has committed to consult on that issue next year.

I do not know whether any of the officials would like to add anything further.

I thank Pam Gosal for that question—I was watching the previous session before I came to the committee.

As I said in my previous answer, I have been clear thus far that we will not be introducing a bill in the current session of Parliament. I am really keen to look at legal aid reform, but it would be more in the landscape of secondary legislation. We have been listening to the committee, and it is important that we look in particular at different funding models for access to justice on environmental issues.

My officials are currently developing a paper on legal aid reform that will, in the coming months, set out the potential areas of reform. We are planning to host a variety of engagement sessions along with that.

Denise Swanson might want to add to that.

On legal aid reform?

The issue of whether there should be a dedicated environmental court in Scotland has been discussed for many years, and it is clearly a question of interest within many portfolios and the Scottish judiciary.

The most recently published statement on the issue was in the “Report into the Effectiveness of Governance Arrangements, as required by section 41 of the UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021”, which the Scottish Government published last year. That report had to consider whether an environmental court would enhance the environmental governance arrangements that were put in place by the UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021 to rectify the inadequacies that were created by the UK leaving the European Union. The report also considered wider issues of environmental governance in the context of the 2021 act.

The report stated:

“The Scottish Government recognises the strengths in the current balance of parliamentary, administrative and judicial roles in decision making on environmental matters, and does not see any strong argument for the creation of a specialist court.”

We have since consulted on that report, and a written statement will be laid before Parliament soon. It would not be appropriate for me to pre-empt that statement, but I will highlight some points.

The court in New South Wales was highlighted in the previous session. There are two key examples of such courts operating, in New Zealand and Australia, which have been discussed by stakeholders. As has been described, those courts have remits that mainly cover disputes about local spatial plans, environmental permits and planning applications. Most of the cases are not of a nature that would lead to a judicial review in Scotland; rather, there would be a reconsideration of the merit of plans and the decisions themselves.

In general, Parliament has shown little interest in such matters being considered by courts in Scotland in the same way that such issues are considered by those courts in Australia and New Zealand.

I cannot pre-empt what will be in the statement, but it will be given to all MSPs when it is available.

That is not under my portfolio, but we can write to the committee about that.

I will bring Walter Drummond-Murray into the discussion. As you said, it is quite a complex subject. I have responsibility for the access to justice part of it. There are also the environmental and planning aspects. We need to have a holistic, joined-up approach.

Historically, Walter has been dealing with the issue.

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.