I’ve written a blog post for the Scottish Land Commission, in connection with its new Land and Human Rights Advisory Forum (detailed in this earlier blog post). This basedrone is simply a signpost to the Commission’s website: I’ll invite you to click the preceding link rather than say anything further here (save to note that, yes, I am wearing an Aberdeen away top for the 2020/21 season in the accompanying photo).
This afternoon, I had an absolutely smashing chat about land reform and human rights with some great people. Entirely relatedly, the first meeting of a Scottish Land Commission and University of Strathclyde Law School initiative took place this afternoon.
A little while ago, some contacts at the Scottish Land Commission – a body set up by the Land Reform (Scotland) Act 2016 – approached me about establishing a forum to really interrogate some of the difficult legal questions that it (and eventually the Scottish Parliament) would be contending with in relation to land reform in Scotland. This forum is now a thing. Details of the Land and Human Rights Advisory Forum, and its membership, can be found on the Scottish Land Commission’s website. I am acting as Chair, and I am joined by two Strathclyde colleagues. It’s definitely not a Strathclyde-only project though, as we are joined by voices with experience from practice, from overseas, from other parts of Scotland, and from other academic institutions.
It might be the case that some of our discussions feed into work in the background. Other aspects might be a little bit more in the public domain. I’ll do what I can to keep you posted about the latter. The next thing I need to do in that regard is pen a blog post for the Commission’s website. This is me creating a rod for my own back and committing myself to doing just that.
The Serious Organised Crime and Police Act 2005 (Designated Scottish Sites under Section 129) Order 2021 was laid before the UK Parliament on 9 September 2021 and, as things stand, will come into force on 1 October 2021. This order, made under a UK-wide statute called (you guessed it) The Serious Organised Crime and Police Act 2005, turns the Scottish Parliament building and its immediate environs (including the fountains/pools and open areas to the south and east of the building) into a “designated Scottish site for the purposes of section 129 of the Serious Organised Crime and Police Act 2005”.
Section 128 deals with the rest of the UK, making it an offence for anyone to enter or be on a protected site as a trespasser (i.e. without some legal basis or permission, expressed or implied). Section 129 is the operative provision for Scotland, and a point of interest is that it judiciously avoids the use of the word trespasser (albeit it does appear under a section heading “Trespass on designated site“. T-word avoidance notwithstanding, it criminalises entry to and being on such a site without lawful authority.
“Lawful authority” is crucial here. I’ll come back to that.
This legislation does not affect many sites in Scotland. The Clyde Naval Base is a designated site, per an earlier order, and Scottish nuclear facilities are also covered in terms of the statute itself.
Scotland is generally perceived as having a fairly liberal custom towards and legal regime for unfettered access to land but, like pretty much every legal system that provides for private ownership of land, a land owner generally has a right to exclude others from their land in many circumstances. This starting point can be qualified by a public right of way or a specific statutory authorisation, the most famous example of that being the right of responsible access provided for by the Land Reform (Scotland) Act 2003. Needless to say, the right to roam cannot apply when access there is restricted by another legal regime (under section 6(1)(d) – hence why pedestrians should not plead access rights on motorways, for example).
Another consideration for some land owners, namely those who are public authorities, is that such owners must take account of human rights, in this case Article 10 (Freedom of expression) and Article 11 (Freedom of assembly and association) of the European Convention on Human Rights. Protests and demos tend to be more effective when they are in strategic locations and it pretty much goes without saying that a legislature, where politicians make laws, is a strategic spot: heck, in pre-pandemic times UCU members were part of a demonstration at Holyrood during a period of industrial action and colleagues and I were positively welcomed there by an MSP.
Would I have been committing an offence in new money and ultimately face imprisonment for a term not exceeding 12 months, a fine not exceeding level 5 on the standard scale, or both if I refused to leave Holyrood? It’s fair to say I wouldn’t have a defence under section 129(4) on the basis of not knowing the site was designated, given I’ve just blogged about it. Oops.
What should we make of this, then? Is this designation an illiberal measure that should be countermanded before 1 October 2021? Or is this actually something that is needed? After all, it was the SPCB – made up of elected MSPs – that requested the designation.
Some of this harks back to the indycamp, which I blogged about several times (including this final, biblical indycamp conclusion) and I also wrote an academic comment about it for the Edinburgh Law Review. I don’t intend to revisit this all here, but this involved campaigners occupying land with tents with a view to staying there until Scotland became independent from the rest of the UK. In my most recent indycamp blog post, a £100K+ figure was mentioned in terms of how much had to be shelled out to eventually remove the indycampers. That is public money that could have been spent on something else, and no doubt the actual figure was higher.
This new designation would surely have stopped the indycamp’s spiralling costs, so is it therefore to be welcomed?
One point that is worth bearing in mind is legislation from the 90s, which pre-dates this designated site order and the 2005 Act itself. Sections 61 to 71 of the Criminal Justice and Public Order Act 1994 relate to ‘public order, collective trespass or nuisance on land.’ The object of Part V of the 1994 Act was made clear by the government of the time, namely to control the activities of new age travellers, field sport saboteurs, and environmental groups protesting about such things as motorway construction, not to mention clip the wings of the 90s rave scene. That scene, incidentally, was captured in the Scottish film Beats for anyone who is interested – I saw that at a special screening at The Belmont in Aberdeen and thoroughly enjoyed it. I digress.
Section 61 of the 1994 Act allows the police to act against two or more persons who are trespassing on land with the common purpose of residing there for any period, while sections 68 and 69 creates the offence of aggravated trespass, which is classified as being on land then doing anything that is intended to have the effect of either intimidating those who are engaged in lawful activities on the land, or obstructing or disrupting those activities. Someone convicted of one of these offences faces imprisonment for a term not exceeding three months or a fine not exceeding level 4 on the standard scale, or both (slightly lower penalties than the 2005 Act).
These powers are there already and I confess to being a little unsure as to why they were not deployed against the indycampers. Granted, section 61(1) sculpts its offence somewhat, in that not only must someone have been asked to leave they must also (a) have caused damage to the land or to property on the land or used threatening, abusive or insulting words or behaviour towards the occupier, a member of his family or an employee or agent of his, or (b) have between them six or more vehicles on the land.
Even if that did not catch the indycampers, for the simple, pragmatic reason that those powers are on the statute books and will catch unruly protesters, I am reticent to welcome these further restrictions in relation to the Scottish Parliament.
Let’s play that most unwelcome of advocates though, and invite a submission for the Devil. Suppose that the law is changed and the site is designated. Suddenly it is all about “lawful authority”, it being recalled that simply being on such a site is not automatically criminal. It will also be recalled that there is a need for the SPCB to consider relevant human rights in terms of what it does, and a blanket policy of “no-one other than MSPs, staff and our invitees is allowed to set foot on the site” would surely not fly in ECHR-terms (he wrote with the certainty of a private lawyer who does not have his copy of Reed and Murdoch: Human Rights Law in Scotland to hand).
Of course, as was noted in the indycamp litigation, Convention rights under Articles 10 and 11 do not give you an unfettered right to demonstrate in a manner entirely of your own choosing, given the interference that demonstration was found to be having with the rights of others. Although the SPCB was successful in its legal action against the indycampers, it was faced with a major outlay after the indycamp saga concluded. This new measure, accompanied by suitable guidance and an understanding that “lawful authority” extends to Convention Rights, might just be able to stop a protracted situation like the indycamp arising again yet still be just about palatable enough to be accepted.
I don’t know.
That’s not the best conclusion I’ve ever written. Nevertheless, I’ve decided to stop now, publish, and be damned. In part I’m doing this because I’m not sure anyone will be able to cover off everything in a way that is satisfactory to all parties, and also because this is a fast moving situation (per Gina Davidson’s report in the Scotsman) and I would quite like this blog post not to be obsolete before it’s even published. Feel free to comment below as I am pretty sure I don’t have all the answers here.
And yes, I know Westminster and the Senedd are designated sites in relation to the equivalent section 128 offence, but we can and should make our own decisions on this matter.
As the dust settles after the most recent Holyrood elections and (hopefully) the worst of the Covid-19 pandemic, it seems reform of the legal regime that applies to the private rented sector in Scotland is in the air. Or rather, it seems some Covid-19-related changes (some of which I digested here and here) that are with us at the moment could be rendered into law on a less temporary basis, and separately reforms will implement the plans of the most successful party at those elections and its partner in government (being the SNP and Scottish Greens respectively). This blog post will digest the prospectus as things stand
Making [some of] the Covid-19 emergency reforms the norm
The Scottish Government is consulting (until 19 November 2021) on “Covid Recovery”. The online title of the consultation narrates this covers the “justice system, health and public services reform”, whereas the PDF document of the consultation has a title page covering “public services, justice system and other reforms”.
The “other” is covering a lot here. This consultation takes in many eclectic topics: from bankruptcy; to mental health; to legal aid; to freedom of information; to notarial functions; to registrations of deaths, still births and live births; to proceeds of crime; and more. With so many topics being consulted on under such a broad heading, it might be easy to miss reforms in any given sector. Be that as it may, the consultation incorporates “Tenancies: protection against eviction (discretionary grounds of eviction); and pre-action requirements for eviction proceedings on ground of rent arrears” (beginning at page 48 of the consultation document, or towards the bottom of this online consultation webpage).
The key proposal for this post is to “make permanent the provisions creating discretionary grounds of eviction and pre-action requirements for the private rented sector, until such time as future housing legislation is passed and implemented.” That is to say, if implemented, there would be no mandatory evictions when a justification to evict is triggered. In normal, non-Covid times there are eighteen grounds for the recovery of possession by the landlord, all of which must go before the relevant tribunal (the First-tier Tribunal (Housing and Property Chamber)). For some grounds, that tribunal must make an order, i.e. the tribunal’s role is simply to establish that the ground applies (e.g. the tenant doesn’t actually live there, or the landlord needs the property to live in personally (and actually really needs to, but that’s another story covered in another blog post)). For others, the tribunal will only make an order when it is reasonable in all the circumstances to do that.
To make them all discretionary is a big change, and it is one that broadly favours tenants to landlords by giving them a chance to argue about reasonableness when (before April 2020) they could not do that. Beyond noting this would a big change, and also noting that this would make the job of the FtT more onerous, I am reticent to offer a view on the policy call of whether this would be a welcome or unwelcome change overall. It does seem though that some of the normally mandatory grounds are more in the nature of a slam dunk [technical term] than others and making every ground discretionary might lead to some tenants, for want of a better way of putting it, playing the system. The Scottish Government might even have this unofficial hierarchy in mind in terms of its consultation response options, where it invites respondents to choose from the following:
Extend the non-mandatory eviction rules beyond March 2022 and make them permanent;
Extend the non-mandatory eviction rules beyond March 2022 and make them permanent, but only to the extent that rent arrears should continue to be a discretionary eviction ground – with all other eviction grounds returning to their pre-pandemic status
Extend the non-mandatory eviction rules beyond March 2022 but don’t make them permanent [i.e. kick the can down the road];
As option 2 [rent arrears to lead to discretionary eviction], but don’t make them permanent
Don’t extend them at all.
Moving away from the mandatory/discretionary eviction point, there is also a proposal to continue with the need for service of pre-action information for tenants in rent arrears. I am more than okay with this proposal.
Consultations can also be interesting for what they don’t cover. One notable aspect that is not being consulted on is the retention of the extended notice periods before raising eviction proceedings. Such periods were extended by the pandemic emergency measures, but it seems now that three or six month notice periods will revert to 28 or 84 day notice periods (depending on which eviction ground is in play).
Both the SNP and the Scottish Greens had indicated prior to the election that they would like to reform the private rented sector. It was accordingly absolutely no surprise that when they joined forces to develop a “Shared Policy Programme” (available on the Scottish Government website (PDF)) “Housing” was an area they could agree on. That agreement is set out on pages 27-28.
Much of this is very high-level at the moment, and there is to be a Rented Sector Strategy by the end of 2021 which will flesh this out. For now, these matters can be noted of interest to the private rented sector.
First, there is a commitment to a new housing regulator, “to improve standards and enforce tenants’ rights”. This will perhaps be influenced by the regulator in the social rented sector (which covers local authority and housing association landlords). The interaction of this new regulator with roles currently held by local authorities in relation to (for example) HMOs and landlord registration will need to be considered carefully in due course.
There is also a commitment to allowing tenants to have pets (which tracks moves in England) and to decorate homes. Absent the introduction of such rules, a landlord would be able to stipulate on these topics in a lease.
Returning to the topic of eviction control, there is to be greater restrictions on evictions over winter. There are already rules in relation to which days of the week and at what times of day you can carry out evictions, but to regulate a whole season is an innovation.
There is also a commitment to introduce additional penalties and compensation for illegal evictions. Civil penalties are already found in the Housing (Scotland) Act 1988 and (theoretically) at common law, and in criminal law terms the Rent (Scotland) Act 1984 can apply. Evidently there is a perception that more can be done here. I am inclined to agree. Given my recent work with Peter Robson in relation to wrongful-termination orders for tenants with PRTs, I’ll be watching this closely.
Less concretely, the agreement states that there will be a consultation, as part of the Rented Sector Strategy, on how to deliver a rent guarantor scheme for estranged young people.
Finally, the not at all controversial topic of rent controls. Yup, that’s right, private rented sector rent controls. Rent controls have not been a thing for new private sector tenancies since 1989. The current law in relation to the prevailing letting vehicle in Scotland (the PRT) is that a landlord can only raise rent once a year and (if a tenant objects) an assessment of the rent can take place then, but outside of any rent pressure zone it will be the market that dictates the price at the start of the tenancy. There are no rent pressure zones in Scotland.
Rent controls exist in other jurisdictions, but they are controversial. I think if I blogged fully on the topic I would be here a while, so now is probably the time to stop.
I’ll conclude by noting this is all to happen by the end of 2025. Given everything else that is in the Shared Policy Programme, plus the topics that are not that will nevertheless need to be addressed in this parliamentary term, Holyrood is going to be busy.
This is a blog post about private renting in Scotland. More specifically, it is about a legal device that can be available to those who had rented a property under a private residential tenancy – the prevailing letting vehicle in Scotland since 1 December 2017 – where their landlord has been fly and regained possession of the let property when they had no legal ground to do so.
This post doubles as a signpost to a piece I have in the new issue of the Scots law journal the Juridical Review (co-authored with Peter Robson). It also links to a related podcast episode, where I discuss the article and various other matters with Professor Bram Akkermans of Maastricht University.
Let’s start with a quick overview of the relevant law. Scotland introduced a new private residential letting vehicle, known as the private residential tenancy (PRT), when the Private Housing (Tenancies) (Scotland) Act 2016 came into force. Unlike the short assured tenancy (the letting vehicle that dominated the Scottish private rented sector after its introduction by the Housing (Scotland) Act 1988), PRTs cannot be of a set length. PRTs are essentially open-ended, provided that the tenant lives in the let property as their main home, pays their rent, and doesn’t somehow breach the tenancy agreement.
Accordingly, tenants with a private residential tenancy of a dwelling in terms of the Private Housing (Tenancies) (Scotland) Act 2016 should be able to live there until they decide to move out, unless their landlord has a ground to evict them in terms of the 2016 Act. A finite list of grounds is provided in Schedule 3 of the 2016 Act, including grounds that relate to the landlord’s circumstances (such as requiring the property to live in for themselves or a family member, or needing to sell the property with vacant possession).
This means that landlords who grant such tenancies need to rely on one of eighteen statutory grounds to recover possession of a let property. The grounds reflect the fact that a landlord’s circumstances might genuinely change – for example, the landlord may have been renting property in another city for work and then takes a new job in the city where the let property is, or is living with a partner in a property owned by that partner and then the relationship breaks down. Such a landlord will need somewhere to live and – despite any upheaval for the tenant(s) who currently live there – the let property might well be a much more viable place for the landlord to stay than buying or renting another property. Alternatively, a landlord’s sibling might need accommodation in the area and have nowhere else to stay. In these and other circumstances, the landlord can approach a tribunal for an order to evict the tenant(s).
Assuming a ground for possession exists and has been notified to the tenant, the tenant might be obliged to vacate the premises through subsequent eviction proceedings at the First-tier Tribunal (Housing and Property Chamber), or the tenant may simply move out without awaiting a tribunal order. If a (now former) landlord did indeed have a valid ground for possession, that would be the end of the matter, but what happens if a landlord did not have a genuine reason for recovery of possession, but pretended that they did?
Where it transpires there was no ground for possession after all, the 2016 Act allows a (now former) tenant to apply to the First-tier Tribunal for something called a wrongful-termination order. Where a WTO is made, the former landlord can be ordered to pay the former tenant a penalty sum up to six times the monthly rent that was payable.
How does this work in practice? Or rather, is the system working in practice? That is what the article in the Juridical Review is about. It looks at the emerging WTO tribunal jurisprudence, and argues that former tenants are facing significant hurdles in terms of unlocking this remedy.
To date, there have been 21 applications for a WTO. Only three have been successful (resulting in penalty awards against the former landlord of three times the monthly rent in two cases, and one times the monthly rent in the other). Those cases are highlighted in the article, but of more interest are the WTOs that got away. The reasons for the eighteen unsuccessful applications are discussed in the article in some detail. A quick overview is provided here.
Some applications may have been procedurally unsound and as such there is not too much to say about those. There is a separate access to justice point about whether legal aid thresholds are such that applicants are not able to access professional support to frame and present their applications properly. I’ll gloss over that here.
Some applications have failed because the tribunal was happy enough with the landlord’s explanation of what happened (for example, a family member had been planning to move in but that did not happen after all), and again there is not so much that can be said about those cases.
That leaves the cases where former tenants have not been able to obtain a WTO because the former landlord did not serve papers that amounted to a formal notice to leave in terms of the 2016 Act. The tribunal has been fastidious in requiring this, because this is, apparently, what the legislation says. The effect of this interpretation is to deny WTOs to tenants who have been sent emails, text messages or WhatsApp messages instead of proper notices to leave and acted on those representations rather than await more formal correspondence. For reasons explained in the paper, Peter and I think this is unfortunate.
Lastly, the paper also notes the interaction of wrongful-termination orders and the older route to damages for unlawful eviction of a residential occupier under the Housing (Scotland) Act 1988. We think this requires consideration, to ensure those who have been faced with dubious conduct by a former landlord do not fall between the cracks.
And this is where I stop blogging and direct you to some other resources on the matter. One of these resources is an episode of the PropertyCon Podcast, the other is the article itself.
Starting with the podcast episode, Professor Bram Akkermans of Maastricht University has recently started a podcast called PropertyCon. Episode 6 of the PropertyCon Podcast sees him interviewing yours truly.
He has some “Podcast Notes” about the episode, as “snipped” below. I also offer some additional resources that I mention in the podcast below for reference.
The article itself can be found at page 88 of the 2021 Juridical Review. For those unable to access the piece on Westlaw or through Thomson Reuters’ Proview service, there is a short embargo period before I can make an open access version available. That being said, if any of you would like a copy, please drop me a line at email@example.com.
Finally, if any of you hear of any cases or situations where a WTO has been raised as a possibility, please do drop me a line. My hope this article serves as the start of a discussion, and perhaps even presages a refinement of the approach that has been adopted to date.
Oh, and the title of this blog post? It’s a play on the whole “Let’s go [World Trade Organization]!” that was a bit of a Brexit mantra for some. I wanted that in the title for the article but Peter suggested, politely, that this was a bit naff. He was probably right, although we might have gathered some accidental and confused readers who were expecting an article on international trade law. We went for a much more functional title instead, namely: “A review of the first wrongful-termination orders made under the Private Housing (Tenancies) (Scotland) Act 2016: do they sufficiently protect those misled into giving up a tenancy?” Perhaps not the catchiest, but we hope it is effective.
Here are some resources I mentioned in the podcast episode.
It goes without saying that I can’t say too much about this appointment at this particular juncture, mainly because I don’t yet know exactly what the role entails. All I can say for now is that I am very much looking forward to getting involved and playing my part in this important source of support for communities across the whole of Scotland.
I also suspect I won’t be able to say too much about the role going forward, owing to confidentiality issues, collective responsibility, standards in public life, and so on. I hope this won’t make me a boring so and so but there it is. I’ll still blog with impunity on matters which don’t impinge on the Scottish Land Fund as and when a relevant moment arises.
If anyone has any questions about the Scottish Land Fund, I suppose I had better direct you to its website.
Hello, everyone. I used to blog a bit. It seems I’ve hit a bit of a fallow period. Sorry about that (or, alternatively, please enjoy the respite).
Anyway, here’s a quick and opportunistic return to blogging to say nothing more than this: I will be participating in free, online event at The Scottish Books Long Weekend, entitled “What Next for Scotland at Home and Abroad? Talking Politics with Ruth Wishart and Guests”. I am a guest, and I will be desperately trying to prevent my imposter syndrome from shining through as I am joined by the other guests Angie Zelter, Stephen Gethins and Annie Tindley. I wangled my way onto this panel as Annie and I co-edited a book called Land Reform in Scotland: History, Law and Policy (with Jayne Glass – who we haven’t fallen out with, honest – but she cannot make this particular event).
I have two new blog posts on the Strathclyde Law Blog, considering aspects of residential tenancy law in Scotland. The first post is about the tenancy deposit protection scheme. The second post also relates to that legal regime whilst also taking in aspects of letting agent regulation.
For information, just in case you are interested in the birth of blog posts, the posts began life as a single post. The conclusion to my initial draft grew arms and legs somewhat, and after I passed that megapost to my good friend and residential tenancy guru Peter Robson for a proof read he suggested that I split it into two. I think he was right to do so.
As for the content of the posts, I’m happy to let those posts speak for themselves and leave this base drone largely as a sign post to them. I will however offer a soupçon of extra detail here, in relation to something I allude to in the second post. There, I nod to a passing involvement with the matter under discussion. I can confirm that I was one of the favours called upon (as noted in paragraph 39 of the decision), such that I offered the applicant (or rather the applicant’s brother, who I know personally) some assurance that a) he would not “be out of pocket for making the Deposit Application under the 2011 Regulations” and b) an award of expenses would almost certainly not be made against him. I was also quietly chuffed to have been (I think) the person who provided the spark for the second application to the First-tier Tribunal (Housing and Property Chamber) to be made, as it was me who flagged the very real possibility of a claim being made against the letting agent for its somewhat forthright reaction to the deposit-related application to the FtT. That forthright reaction cost the letting agent £250.
Eleven months into lockdown, it’s finally happened: I started podcasting. Or rather, the resourceful, smart and all-round-good-guy Adam Calo (a postdoctoral researcher at the James Hutton Institute in Aberdeen) started podcasting. He decided I would make a decent guest for the inaugural episode of the Landscapes podcast. This meant he had a hefty task of trying to corral my land reform thoughts, not to mention editing out the worst of my verbal ticks, as I spoke about the Scottish scene before eventually homing in on an article that John Lovett and I wrote for the Montana Law Review that considered Scotland’s first urban community buyout. Anyway, I think he’s done a great job, and I hope my own ramblings are of interest. You can find out more at the relevant website and you can listen “wherever you get your podcasts” (here are the links to Apple and Spotify).
This is a short, self-promotional blog [sign]post, which serves to direct readers to a new article that was published today in the Australian Journal of Clinical Education. The online, open access article can be found here.
I confess, this was not a place I was expecting to have my work published. To explain how this came to pass, just about three years ago I uploaded quite a long blog post about the Scottish University Land Unit. Through the power of Twitter, someone involved in the aforementioned online journal clocked the blog post and asked me if I would be interested in submitting an article on the topic. My answer was not “no”, but it was “not yet”. For reasons explained in the article, a couple of years later I returned to the project, and with thanks to the aforementioned power of Twitter, the team at the AJCE, and the various people I mention in the acknowledgements, there is now a publication I can [electronically] wave at people.
Here is the abstract of the paper:
For two years an initiative called the Scottish University Land Unit has partnered volunteer law students with an existing support agency that brings law students (with academic support) together with communities in Scotland seeking empowerment opportunities through access to local land or buildings. Drawing on the information and experience garnered over that period of operation, this paper will offer some reflections on the early life of the Scottish University Land Unit – or SULU – and also highlight the scheme to an international audience. It does this by giving an overview of existing scholarship and highlights the potential clinical benefits a student who engages with clinical legal education might gain, before giving an overview of the contemporary context and law relating to community empowerment and land reform in Scotland. Next, it will detail how SULU brings together the complementary goals of student development and serving the community. Lastly, this paper will conclude with a discussion on the future of SULU, and by offering some insights that may inspire similar schemes in different sectors or jurisdictions.