Seòmar agus comataidhean

Absolutely. One issue was the types of claims that are covered and the actions that we propose to take in that respect. In the context of the Aarhus convention, particular reference is made to nuisance and littering and the domestic law on both points under the Environmental Protection Act 1990. In Scotland, a litter abatement order would be sought in the sheriff court, but, to date, there has been very little available case law on that point. An action for nuisance would be raised in the sheriff court, too. The relevant committee of the SCJC has instructed the preparation of draft rules on the extension of PEOs to the sheriff court, with the aim of running a public consultation exercise on the matter next year.

The final point raised by the ACCC was about the level of cost caps. The SCJC has published on its website—so it is publicly available—a research paper about cost caps when used in practice. The paper sets out information on the use of PEOs based on the evidence available. The SCJC has given consideration to the cost caps, but is content to keep the current amounts at the moment. The SCJC has decided to maintain the ability to vary cost caps up and down, which is reflective of the statutory guarantee of judicial independence. Since cost capping was introduced in 2013, there have been no instances of caps being shifted upwards in practice.

The SCJC has also provided clarification of the phrase “on cause shown”; namely, that the party would need to demonstrate a valid reason. That is a Scots law term, and the SCJC has challenged the idea that it would cause enough uncertainty to lead to somebody abandoning proposed litigation.

Those are two areas in relation to which action is happening and proposed. As I said to the convener, there are other areas where we have taken action since the report was published.

I will bring in Denise Swanson, who is the legal aid expert on regulation 15.

I do not think that it will be me who will make the statement, so I do not think that it would be appropriate—

We recognise that we need to reform the legal aid system. The officials are seeking to work collaboratively, especially with the legal sector, and to build a consensus. I hope that all the stakeholder sessions that we are planning to hold will allow stakeholders to discuss the contents of legal aid reform and their priorities. We are definitely open to working with the legal profession and all stakeholders in legal reform, while seeing what we can do during the rest of the parliamentary session through secondary legislation to make some progress.

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.