The Scottish Government has been consulting on the issue of putting a cap on legal costs that the losing side may be asked to pay in a challenge to government on public interest issues centred on the environment.
The proposal in consultation is for capping the costs levied on a losing challenger at £5,000; and capping the costs levied on a losing government at £30,000.
The cap on such costs is known as a Protective Costs Order, or PEO.
As we reported recently, St Andrews woman, Penelope Uprichard has won a historic Protective Costs Order of £6,000 at the UK Supreme Court should she lose her case to prevent a development of 1,000 houses in the town.
The Faculty of Advocates, representing Scotland’s most senior lawyers, supports the Scottish Government move in its lowering of the barriers to justice faced by those with no or limited resources.
However, it points out that there is no logic in limiting public interest cases attracting PEOs only to those concerned with environmental matters.
The Faculty of Advocates is therefore calling for PEOs to apply in ALL public interest cases. There is no reasonable defence for any other position.
The Faculty is quoted as saying: ‘There is a public interest involved in judicial review proceedings, whether or not private rights may also be affected.’
‘It would be consistent with the underlying purpose of judicial review… for such a order (Ed: PEO) to be competent in any public interest case, subject to the relevant criteria being present.’
This would, if and when implemented, impact upon, for example, the numbing scale of potential loss faced by small rural communities in challenging decisions – either by local or national government – to close their schools.
Assuming a total cost of judicial review at £40,000, £20k for each side, a community would then be looking at the need to have assured access to a total of £25,000, rather than £40,000, against the eventuality of losing, with costs awarded against them.
This is better than nothing.
However, there are very many small rural communities – in Argyll and elsewhere, such as Hillhead in Wick – who would never be in a position to raise £25,000 to support a legal challenge. Most would never be able to do this regardless of however legally incompetent and damaging the decision against them might have been – as is the case, on both counts and emphatically so, with Hillhead School.
The Scottish Government needs to go much further to make the law accessible to all with a need for justice and to remove the present cost barrier which heavily favours the wealthy and well connected.
Small rural communities in Scotland, with several wealthy second home owners who engage with the community, as many do, have a chance to raise the funds to go to law should the imperative arise.
The majority of less fashionable indigenous communities simply have no means of any description to get to the point of being able to defend themselves in law against injustice. They must bear it.
This is neither defensible nor acceptable.
What is needed here is a change to Regulation 15 governing the granting of Legal Aid.
As it stands, legal aid to support raising a case for judicial review may only be granted to an individual and not a group.
Where a qualifying individual makes an application for legal aid on a matter in which others have an interest – even if it is a public interest issue – the Scottish Legal Aid Board is bound by Regulation 15. This requires them to consider the circumstances of all those who can be shown to have an interest in the outcome and decide whether, collectively, they have the means to contribute to the anticipated costs of a legal challenge.
This is arguably a reasonable legal position in prudent protection of the public purse – but not in matters of public interest.
Government fundamentally exists to protect the interests of the public.
Where the interests of a specific government conflict with public interest, as they not infrequently do, it should be a sine qua non that the public purse bears the costs of a competent challenge on behalf of the public interest. Competent challenges may still fail because competence is relative.
But there are cases, like that of Hillhead School in Wick, where the government’s decision taking has been demonstrably ultra vires, unreasonable and unfair to the point that it could not mount a defence more capable than the challenge that could be offered it.
With Hillhead, the community is paralysed by its financial inability, a painfully wrong situation.
The Scottish Government and other interests are content to let this situation obtain because, for different reasons, it suits them.
Some actions have consequences that are irredeemable.
Hillhead school and its needy community – which benefits so manifestly and in so many ways from the performance of its excellent school – will bear the brunt of the irredeemable consequences of an indefensible decision it cannot raise the resources to challenge. Their school will close.
A less substantial but equally abiding consequence of this matter is our own education in the nature and relative values of those willing to allow this situation to prevail.
But the underlying wrong is that justice cannot be available only to those who can pay to have it.
The position of the Faculty of Advocates on the limitation of costs on all public interest cases is correct and helpful – but it can only express a view on this single part of the overall issue of cash for justice.
The finessing of Regulation 15 on Legal Aid is actually more urgent in the general need and requires to be addressed.