82 - The Participation Game: Article 8, Scotland…

Hello again, dear reader(s).

Those of you who follow this blog with the devotion it deserves will recall the guest post from Dr Ben Christman, Legal Director at the Environmental Rights Centre for Scotland (“ERCS”) in August 2024. Refresh your memories here. In his blog, Dr Christman raised concerns that the process leading to the Scottish Civil Justice Council (“SCJC”) amendments to the Rules of the Court of Session concerning protective expenses orders in environmental appeals and judicial reviews in the Court of Session (“PEOs”) had been carried out without any public participation.

That concern crystallised into a formal communication to the ACCC by the ERCS in March 2025. The ACCC made a preliminary determination that the claim was admissible on 2 June 2025. Last month, the UK Government filed its response.

So settle in, dear reader, because what we have here is a communication to the ACCC that engages not the well-worn territory of Article 9 and prohibitive expense, but the less-trodden ground of Article 8 and public participation in the preparation of generally applicable legally binding rules.

In short, the ERCS’s communication argues that there was no public participation during the SCJC's preparation of the 2024 Act of Sederunt. The backstory to that argument is worth noting. ERCS first wrote to the SCJC in November 2021 requesting a public consultation. In January 2023, the SCJC indicated that a public consultation would take place later that year. By November 2023, the SCJC had reversed that position, explaining that a consultation was no longer planned in order to "avoid undue resource impacts for potential respondents". In December 2023, ERCS warned the SCJC that it would consider submitting a communication to the ACCC if new PEO rules were made without prior public consultation. The SCJC pressed on and the rest, as they say, is compliance committee history.

The UK Government filed its written response on 17 April, making three submissions which may be (roughly) summarised as follows:

The Communication is inadmissible it relies on an incorrect factual assumption. The Government's case is that the SCJC did in fact carry out a formal public consultation in 2017, and certain issues raised for the first time during that consultation were subsequently addressed in the 2024 Act of Sederunt.
The proceedings should be discontinued given the availability of domestic procedures, namely: (i) judicial review which – the Government asserts, contrary to the position adopted by the ERCS – is available to the ERCS and (ii) opportunities to participate in public consultation on further reform of the PEO rules in 2025 and 2026.
The UK has in any event complied with Article 8. The Government places considerable emphasis on the “softer” nature of the Article 8 obligation, which requires Parties to “strive to promote” effective public participation - an obligation of conduct, not result. The steps set out in paragraphs (a) to (c) of Article 8 are described as recommendatory rather than mandatory, and the Government argues it has in any case fulfilled each of them through the 2017 consultation process and the prospect that the public may provide feedback on court rules at any time via the SCJC’s website.

In essence, the Committee will need to determine whether a consultation exercise conducted seven years before the adoption of new rules can constitute sufficient public participation "at an appropriate stage" within the meaning of Article 8 – or whether fresh consultation was required as the specific text of the 2024 amendments took shape.

The next stage will be for ERCS to respond to the UK Government's submissions. The Committee will then consider the matter further and may hold an oral hearing. Those of us with an interest in Article 8 – and, be honest, who among this blog's readership does not? – should watch for the Committee's next procedural directions.

Given the ACCC’s resource constraints, the wait for the next stage may be long. This blog, ever watchful, will keep you posted as matters unfold.

Until next time…

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Authors of the Aarhus blogs

– James Maurici KC – James has been in many of the leading cases on Aarhus costs including: R (RSPB) v SSJ [2017] 5 Costs L.O. 691; Case C 530/11 Commission v United Kingdom; Case C-260/11 Edwards v EA; R (Edwards) v EA (No.2) [2011] 1 Costs L.R. 70 and [2013] UKSC 78; and R (Edwards) v EA [2011] 1 W.L.R. 79. He has also appeared a number of times before the UNECE Aarhus Compliance Committee in Geneva, cases include: ACCC/C/2010/45; ACCC/C/2010/53; ACCC/C/2011/60; ACCC/C/2011/61; ACCC/C/2012/77; ACCC/C/2014/100 and 101; ACCC/C/2017/150. He is currently acting on the Free Trade Agreement Communication ACCC/C/2022/194. He was one of the contributors to the Aarhus Convention: A Guide for UK Lawyers (2015) and he has written and lectured extensively on the Aarhus Convention.

– Jacqueline Lean – Jacqueline has also been instructed on a number of matters concerning the Aarhus Convention, including appearing (with James Maurici KC) for United Kingdom before the Aarhus Compliance Committee on two communications concerning the Government’s decision to proceed with HS2 (ACCC/C/100 & 101); representing the Secretary of State for Communities and Local Government Secretary of State in R (CPRE Kent) v Secretary of State for Communities and Local Government [2019] EWCA Civ 1230 in which the Court of Appeal considered the approach to summary assessment of costs at permission stage when an Aarhus costs cap applied; and acting for the Secretary of State in R (RSPB) v Secretary of State for Justice [2018] Env LR 13, a challenge to the Government’s amendments to the Aarhus costs protections in the CPR (also with James Maurici KC). She is also a contributing author to Coppel’s ‘Information Rights’ on Environmental Information.

– Nick Grant – Nick joined Chambers in 2019 and has regularly advised on Aarhus related matters. He has represented the UK twice before the Aarhus Convention Compliance Committee, appearing with James Maurici KC in ACCC/C/2017/150 (the Withdrawal Act case) and unled in the admissibility hearing for ACCC/C/2022/194 (the free trade agreements case).

– Margherita Cornaglia – Margherita’s public law practice often involves acting in claims raising environmental and climate change related issues. For instance, she acted as junior counsel in the judicial review of the Government’s Third National Adaptation Programme (NAP3), pursued with an Aarhus costs cap, advancing novel arguments under Part 4 of the Climate Change Act. She also acted as junior counsel for community claimants in the Launders Lane litigation, challenging Havering Council’s refusal to designate Arnold’s Field as contaminated land; that claim likewise proceeded with Aarhus costs protection to secure effective participation and accountability. Beyond litigation, she has advised solicitors on the Government’s recent consultation concerning access to justice in relation to the Aarhus Convention, drawing on her broader practice representing NGOs and affected communities in environmental and climate cases.

– Alex Shattock – Alex has been involved in a number of environmental claims including Friends of the Earth v SSLUHC (the Cumbria coal mine case: acting for Friends of the Earth in the Planning Inquiry and High Court, with Paul Brown KC and Toby Fisher); Cox and Ors v Oil and Gas Authority [2022] EWHC 75 (Admin) (representing Extinction Rebellion activists in a challenge to the Oil and Gas Authority’s Strategy, with David Wolfe KC and Merrow Golden); R (Hough) v SSHD [2022] EWHC 1635 (acting for the claimant in an environmental and equalities challenge to the controversial use of Napier Barracks as asylum seeker accommodation, with Alex Goodman KC and Charles Bishop). He regularly advises individual and NGO clients on Aarhus costs protection. Alex also has a keen interest in treaty law generally. He has a masters and PhD in public international law and has been involved in various treaty negotiations and treaty ratification processes.

– Rebecca Sage – Rebecca is a junior tenant at Landmark Chambers with a growing practice in planning and environmental law. She is regularly instructed on matters engaging the Aarhus Convention, usually through the lens of judicial review. Rebecca has a developing interest in this complex and important area of the law and its implications for access to information, public participation in decision-making and access to justice.