Going Green at the Gill Review? The Potential Implications of the Scottish Civil Courts Review for Environmental Justice in Scotland
2010 1 Aberdeen Student Law Review 11
35 Pages Posted: 5 Jun 2013
Date Written: April 20, 2010
This article analyses the Scottish Civil Courts Review’s (the 'Gill Review') recommendations on standing for judicial review and funding public interest litigation, and their potential implications for 'environmental justice' in Scotland.
First, the article analyses the concept of environmental justice to obtain a working definition and highlight the importance of the civil justice system to environmental justice in Scotland.
Second, the article examines the current law on standing for judicial review in Scotland and the implications of the Gill Review's recommendations. It finds that the current law relating to standing in Scotland is restrictive, antiquated and unclear; inhibiting access to the remedy of judicial review. It is suggested that adopting the test of ‘sufficient interest’ will have a similar effect to that seen in England (where it is also used); liberalising and clarifying the standing test, widening access to judicial review and improving environmental justice in Scotland.
Third, the article examines the current situation with regards to funding 'public interest' environmental law litigation in Scotland and the implications of the Gill Review's recommendations. The Review recommends that an express power be made whereby a court may grant a ‘protected costs order’, protecting litigants who act in the public interest from paying the other party’s expenses if they are unsuccessful. The threat of having to pay the opposing party’s costs can present a major hurdle to litigants in public interest environmental cases, acting as a deterrent against accessing legal remedies to environmental problems. The article finds that, if definitional and jurisprudential problems surrounding the test which a court uses when deciding whether to grant a protected costs order can be resolved, the recommendation may represent a step forward for environmental justice. However, protected costs orders will not fully solve the predicament faced by those unable to meet the costs of litigation in Scotland.
Keywords: environmental justice, access to justice, aarhus convention, civil justice, Scottish Civil Courts Review, judicial review, standing, public interest litigation
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