Boyle K (2021) Academic Advisory Panel Briefing Paper: Access to Justice for Economic, Social, Cultural and Environmental Rights Principles of Adjudication 1 September 2020. National Task Force on Human Rights Leadership. The Scottish Government. https://www.gov.scot/binaries/content/documents/govscot/publications/factsheet/2021/01/national-taskforce-for-human-rights-leadership-academic-advisory-panel-papers/documents/aap-paper-katie-boyle---access-to-justice/aap-paper-katie-boyle---access-to-justice/govscot%3Adocument/AAP%2BPaper%2B-%2BNationalTaskforce%2B-%2BKatie%2BBoyle%2B-%2BAccess%2Bto%2BJustice.pdf
This briefing paper sets out some initial points for discussion for the Access to Justice Roundtable organised by the National Task Force for Human Rights Leadership on 1 September 2020. It is a synopsis of existing research and potential gaps that help signpost some of the key issues faced when enabling access to justice for economic, social, cultural and environmental (ESCE) rights. It is not intended to be exhaustive and further points of discussion should be encouraged as part of the workshop.
Comparative international experience tells us that access to justice for economic, social, cultural, and environmental (ESCE) rights requires a degree of disruption to the legal system. Enabling access to justice for ESCE rights therefore ‘requires the development of standards and criteria and a new litigation culture and practice, without which any application of abstract legal concepts is impossible.’ Of course, as part of any review of access to justice equality of access to the law is paramount. However, at the same time there must be a renewed focus on ‘ensuring fairness and contributing to social justice’ as well as a renewed understanding of the potential scope of both the rights and the remedies available to bring about social change. This requires stakeholders to take a step back from the existing system, to learn from experiences of ESCE adjudication elsewhere, and to ask what change is possible to enhance the existing framework (please see Annex A attached to email for a detailed description of the “building blocks” of ESCE adjudication in an excerpt of the SHRC paper on Models of Incorporation and Justiciability for ESC Rights).
Ultimately, access to justice recommendations should go beyond questions around how to enable equal access to the legal system and must make the bridge to reflect and consider how to enable equal access to effective remedies. Enabling access to an effective remedy for a violation of ESCE rights is a requirement of international law. In considering recommendations for reform, stakeholders should reflect on best practice and the changes required across the adjudication journey to achieve this aim. The following ‘principles of adjudication’ provide a framework for discussion towards progressive change as part of the new statutory framework for human rights in Scotland. Participants may be particularly interested in considering and developing recommendations around structural remedies to address systemic cases as well as what an ‘effective remedy’ would look like for a violation of an ESCE right.
The key principles of access to justice focus on: accessibility; participation; fairness; deliberation; counter-majoritarian adjudication; and the effective remedy principle.