Core Path Plan Amendment under the Land Reform (Scotland) Act 2003 – Gartmore House v LLTNPA

A wee blog [sign]post, simply to direct you to my post on the Strathclyde Law Blog about a recent judicial review case: Gartmore House v Loch Lomond and the Trossachs National Park Authority [2022] CSOH 24. In that litigation, a landowner unsuccessfully challenged the adoption of a new core paths plan (in terms of the Land Reform (Scotland) Act 2003) by one of Scotland’s national park authorities.

That blog post is in turn a digestible (I hope) version of an article I contributed to the SPEL journal.

“Right to roam: ‘There’s no such thing as trespass’ and six other Scottish access myths busted” – Press & Journal article

A few weeks ago, the journalist Kieran Beattie got in touch with me to ask if I would consider contributing to a piece about public access to land in Scotland. Kieran was keen to explore and debunk misconceptions about the law. I did me best to explain what I could and offered some responses. You can now find the resulting article on the Press & Journal’s website.

For information, there were three further questions that Kieran had asked me that landed on the cutting room floor. I don’t have the same word constraints here – ah, the perks of your own blog – so here are my responses to the other questions that were asked (written with a newspaper audience in mind).

And yes, I was chuffed when Kieran used a photo of me in a 19/20 Aberdeen away strip, with a specific caption to that effect. Another perk of publication in the P&J.

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You can fish wherever you want

This is a definite “no” in terms of the access legislation. Hunting, shooting and fishing activities are excluded, so if you are fishing at a loch or a river you really should check with the relevant landowner or – in the case of salmon fishings – the person with rights to that. Coastal rock fishing/sea angling might be okay though.

You can go down any river in a boat

There are actually quite a few legal options here for taking access to a river. The first point to note is the right of responsible access applies to inland waters, so you can go for a swim or a paddle. There is an exception for motorised vehicles though, so if you are using an on-board motor you can’t rely on the Land Reform Act. The next possibility is Scottish common law does recognised traditional rights of navigation in many situations. I might not go as far saying “any river” though – if you were to get in the way of a big boat at the mouth of the River Dee, I don’t think the harbour master or the crew of the ship would want to debate the finer points of access law with you.

Right to roam doesn’t count when it comes to protection of wildlife

Protection of wildlife – especially creatures specifically covered by nature conservation rules – will invariably “win” when pitted against the right to roam. To give an example, a few years ago I went for a walk at Forvie and there was signage up relating to ground nesting birds (terns, as I recall), directing walkers away from the usual walk up the side of the Ythan. I changed my route, but at one stage as I looked back towards the beach I actually saw some people in the restricted area. By chance, I finished my amended walk at roughly the same time they did, and I witnessed them getting a dressing down – quite correctly – from a local ranger. If access to a site is regulated by conservation laws, such laws take precedence. Even when access is not specifically regulated, you still need to be responsible around wildlife.

Signage about a wildlife exclusion zone at Forvie, just north of Aberdeen, photographed by me in 2017

Will recipients of Academy Awards goodie bags own land in Glencoe?

No.

When access rights stop [new] public rights of way – some thoughts on an access dispute at Monifieth

This blog has hosted a fair few posts on the right of responsible access, aka the right to roam, that has applied in Scotland since Part 1 of the Land Reform (Scotland) Act 2003 came into force. I won’t revisit how the regime works in this new post in great detail. In summary though, it allows people to access the Scottish outdoors without prior permission or authority in many circumstances, subject to some exceptions based on either the land in question or the means by which access it taken.

A point to remember is that this statutory right of responsible access did not supersede and replace any pre-existing public access to land regime. This allows for the continued existence of, and co-existence with, common law rights relating to coastal access (at the foreshore), the use of navigable rivers, and passage along public rights of way.

It is the co-existence and indeed interrelationship of the right of responsible access with the creation of public rights of way that is the focal point of this blog post. With that in mind, a bit of background about the legal status of public rights of way, and how they come into being, is necessary before launching into that.

Public rights of way operate to link public places by a more or less defined route. Of course, they don’t just spring into existence overnight when someone decides on a new, handy route. In contemporary Scots law, it takes twenty years’ use of a suitable route by members of the public without challenge by the landowner to create a public right of way: a process known as positive prescription that is regulated by the Prescription and Limitation (Scotland) Act 1973.

Naturally, a landowner cannot [successfully] challenge legitimate access under the 2003 Act. It would accordingly be strange, perhaps even counter-intuitive, to allow positive prescription to operate for new rights of way over someone’s land when the right to roam has been deployed by a stravaiging stranger.

The 2003 Act reacted to this through its section 5(5). That provides the following.

The exercise of access rights does not of itself amount to the exercise or possession of any right for the purpose of any enactment or rule of law relating to the circumstances in which a right of way or servitude or right of public navigation may be constituted.

This all seems sensible, but is there a sting in the tail?

How do you make new public rights of way?

Okay, sure, the right to roam might provide access to a place in many circumstances, so you might not need a public right of way, right? Well, yes, but then again the right of responsible access over any particular parcel of land won’t survive that land somehow becoming excluded under section 6 of the 2003 Act, plus the right of responsible access can be suspended by a local authority (or, where relevant, national park authority) in some circumstances. The right to roam is also subject to the “responsible access” framework of the 2003 Act, whereas a public right of way simply allows someone to take passage (subject of course to complying with the wider criminal law and not, for example, interfering with other access takers, plus a requirement to take passage with the minimum disruption that is practically possible). Public rights of way accordingly still matter. Denying the chance for new rights of way to blossom also matters accordingly.

For a little while I’ve been wondering when section 5(5) might rear its head. It didn’t feature in a recent right of way case involving fisherfolk at Cove Harbour (see this earlier blog post, relating to an article in the Juridical Review by Douglas Cusine and me), for example.

We don’t exactly have a new court case on this provision now, but we do have a precedent of sorts. This relates to an access dispute at Ferry Road, Monifieth, not too far from Dundee.

This dispute first appeared on my radar when it was reported in the local newspaper The Courier. I don’t know Monifieth particularly well; I camped there once, in a previous (much fitter) life as a stopover on a cycle from Aberdeen to Edinburgh, but otherwise I can offer no insights or anecdotes about the place. More importantly, I can offer no view at all on the merits of this particular flashpoint, save that a quick check on Google Maps and Street View shows that the flashpoint is quite near a burn and seems to be a shortcut to an area of open greenery. That is to say, it does appear from that cursory online check to be a tantalisingly attractive path, so I can understand why this might have come to a head.

I really don’t want to get into the rights and wrongs of this situation. I narrated the above for context, nothing more. Suffice it to say though, an access dispute relating to this site landed on the desk of someone at the relevant local authority. Local authorities (and national park authorities) have a statutory role to champion access rights and, if necessary, take enforcement action to allow access rights to continue to be exercised. Steps might need to be taken when land that is not excluded from access under section 6 is nevertheless blocked off, or perfectly responsible access is characterised as not responsible for spurious reasons. Section 14(2) of the 2003 Act allows for enforcement action to be taken when someone has acted or indeed omitted to act in a way that is primarily designed to block legitimate access.

With due acknowledgement of the commendable publicity of all of this, anyone wishing to read more about this can go online. Paperwork pertaining to the issue can be found on Angus Council’s website, with the papers from the Land Reform Sub-committee of 15 February 2022 being particularly relevant.

This is where it gets interesting for my purposes.

There is a Report available on Angus’s website. A passage from this Report of the Vibrant Communities and Sustainable Growth (great name) provides as follows (starting at paragraph 10.2).

An initial assessment of the evidence suggests that a public right of way was unlikely to have existed prior to 1990. The evidence suggests that the volume and nature of public use since 1990 was likely to be consistent with the criteria necessary for establishment of a public right of way. However, exercise of access rights under the Land Reform (Scotland) Act 2003, which came into effect in 2005, do not in themselves count as possession for the purpose of establishing a public right of way. The availability of access rights may therefore have interrupted the necessary prescriptive period and prevented establishment of a public right of way

As access rights are considered to exist, it is not appropriate to investigate the possible public right of way further at this time.

Sensibly they parked the issue of whether there is indeed a public right of way here. As to the legal principle though, I think that is a fair interpretation of section 5(5). And if it is correct, it means a nascent public right of way that began its prescriptive journey in 1986 will never grow into a legally enforceable right of passage, with all the consequences narrated above.* [Edit – see note below.]

This is not an original point by me, I hasten to add. I know Professor Roddy Paisley made this point in a ScotWays guide published in 2006. No doubt others have made the point too. It’s just interesting to see it writ large in this instance.

Does this mean new public rights of way cannot now be created at all? Not quite. It’s only access that flows from the 2003 Act that is not counted in the prescriptive process. Repeated motorised access cannot be attributable to the 2003 Act (owing to this being excepted from access rights under section 9 in most circumstances), so twenty years of intermittent quad-biking might positively prescribe a public right of way. Alternatively, repeated access over excluded land (say cutting across a school site) might also allow for a new right of way. It’s fair to say these would be rare situations though.

A quick aside from a slightly different perspective. My view is using an existing public right of way – i.e. one that was fully established in 2005 – in a manner that seems to overlap with the right of responsible access does not mean that the existing public rights of way will negatively prescribe owing to non-use after twenty years. This is because section 5(5) specifically relates to the constitution of new public rights of way (and indeed servitudes, i.e. a right of use for a neighbour), rather than the extinction of rights by non-use.

So that’s the legal point. For those who have had their interest piqued about what happened next in this particular dispute, you can read about it in a later issue of The Courier (subscription needed), or you can view the relevant meeting on Angus Council’s YouTube channel.

By way of conclusion, okay, I will offer one quick view on what happened in this case. There was some argument about safety at this site, a recurring feature in access disputes (this is being argued over in relation to an access dispute in Ardnamurchan (as reported in The Guardian), and was a point of contention at times in the Drumlean litigation), and there was some discussion about antisocial behaviour. There is no doubt that these can be important factors that weigh against responsible access in some situations. Be that as it may, the council here took what I think was a pragmatic approach, ordering the removal of obstructions to access, but acknowledging that the owner could bring an action under section 28 of the 2003 Act to seek to establish that the land is not subject to access rights after all or that certain access takers are not responsible. I guess we now wait to see what happens next.

Before I go though, here is a final, final thought. I do wonder if there is a certain danger for a landowner arguing that responsible access is not possible for safety reasons, because that would mean such access could not be ascribed to the 2003 Act. As such, could a public right of way then be constituted by that apparently unsafe, not responsible access? That would, I imagine, be difficult to argue in terms of the quality of the prescriptive possession under the 1973 Act, but it might be a prickly wee esto submission.

*Update 4 March – After publication, I was contacted on Twitter by someone who pondered whether post-2005 instances of access chaining on to earlier non-statutory access might not be “in themselves” 2003 Act access, but rather to be considered alongside earlier use. This is an arguable point and one I thought worth capturing for posterity in the blog post. Also, I tweaked this paragraph slightly after publication, to note the Council’s interpretation was fair (mitigating down the earlier draft which might have been seen as complete support for that interpretation).

What is going to happen to the regulation of private sector residential lets in Scotland? The Coronavirus (Recovery and Reform) (Scotland) Bill

In September 2021 I blogged about a Scottish Government consultation on reforms to private sector residential lets in Scotland. The seeds of that consultation exercise have now been planted, and we now get to witness the growth of a beautiful, miscellaneous botanical, with various vaguely related recovery and reform limbs grafted to a Covid-19 recovery stem.

Enough flowery analogy. This is a blog post to highlight what Stage 1 of the Coronavirus (Recovery and Reform) (Scotland) Bill proposes to do to the Scottish PRS (and only the Scottish PRS). The relevant provisions are in Part 4 of the Bill and – absent any amendments in Stage 2 and/or Stage 3 – will become law in due course.

Some background knowledge of the law and the recent Covid-19 context is needed for Part 4 to make sense. Starting with the general context, private sector lets in Scotland entered into from December 2017 onwards are generally classified as private residential tenancies – PRTs – and they are the focus of this post. The relevant statute for them is the Private Housing (Tenancies) (Scotland) Act 2016 (although there are some other regulations to do with forms of notice and tribunal procedure).

Since April 2020, the underlying law has been tweaked, as I explained in that recent blog post and more fully in a recent chapter in an edited collection published by Juta (an open access version of that chapter becomes available in June, I understand). Following various extensions, these rules that suspend mandatory eviction grounds and introduce longer notice periods end in March 2022, with an almost inevitable extension to September 2022* [EDIT 18 March 2022: see below]. The new Bill changes nothing in that regard.

What the Bill does is amend the underlying, primary law, such that mandatory evictions by landlords (e.g. to move back into the let property) are brought to an end. Landlords will still be able to recover possession, but this will be subject to the discretion of the relevant tribunal, such discretion being based on a reasonableness test (balancing the situations of landlord and tenant). In the consultation exercise it was pondered that some grounds might continue to be mandatory, with the rent arrears ground being singled out. This is not reflected in the Bill. Mandatory evictions will not be a thing anymore, including in relation to tenants owing landlords rent money. (Whether landlords try to pretend mandatory evictions still are a thing owing to sharp practice, and whether wrongful-termination orders might protect tenants in such situations, is another matter. We can cross that bridge when we come to it.) When PRTs were introduced, on application by a landlord a tribunal was obliged to order eviction where a tenant i) was in arrears of one month’s rent or more and (ii) had been in arrears of rent more generally for three or more consecutive months (unless that arrears was due to a delay or failure to in relation to benefits). No longer.

Similar changes are made in relation to older tenancy regimes, such that eviction from assured tenancies and protected tenancies will also be discretionary only.

Another thing that happened during the pandemic emergency response was the introduction of pre-action protocols for rent arrears. This brought the private sector closer to the social sector (and also closer to the separate sector of residential mortgage enforcement), such that a landlord could only recover possession of a let property after complying with certain steps. There will be future regulations on this point, but it is ordained that these regulations will provide for: (a) information which should be provided by a landlord to a tenant (including information about the terms of the tenancy, rent arrears and any other outstanding financial obligation under the tenancy), (b) steps which should be taken by a landlord with a view to seeking to agree arrangements with a tenant for payment of future rent, rent arrears and any other outstanding financial obligation under the tenancy, and (c) such other matters as the Scottish Ministers consider appropriate. The existing, time-limited regulations provide a handy precedent.

The Bill is accompanied by a statement of legislative competence. The Presiding Officer of the Scottish Parliament and Scottish Government itself note they are happy that the Bill, as introduced, can be passed in terms of the devolved settlement. It will be recalled that Holyrood legislation cannot impinge on reserved areas (no issue with that here) or fall foul of the European Convention on Human Rights. That competence statement is interesting in terms of answering a binary question, but of more interest is what the accompanying Policy memorandum says on human rights, specifically Article 1 of the First Protocol (which guarantees peaceful enjoyment of possessions). The relevant paragraphs are set out in full here.

Consideration has been given to the impact of the pre-action protocol and discretionary grounds of eviction on a landlord’s property rights under A1P1 to the ECHR. Both of these provisions could be argued to constitute a control of a landlord’s use of their property for the purposes of A1P1. The Scottish Government considers that both of these provisions strike an appropriate balance between the landlord’s rights in the property and the protection of the tenant from unnecessary eviction. Accordingly, these provisions are both considered to be proportionate.

In relation to the pre-action protocol, the Scottish Government considers that a fair balance has been struck between the rights of landlords and tenants by encouraging landlords to engage with tenants in cases of rent arrears and, if the tenancy cannot be saved, landlords would be in a better position to demonstrate that eviction is reasonable in the circumstances. A landlord is not prevented from obtaining an eviction as compliance with the pre-action protocol is simply something the Tribunal must take into account when determining whether eviction is reasonable. The things that landlords ought do under the protocol will all be actions which are within the gift of the landlord to deliver.

In relation to discretionary grounds of eviction, the Scottish Government considers that a fair balance has been struck between the rights of landlords and tenants by enabling the Tribunal to consider all of the circumstances of a case before making a decision on eviction. The Tribunal can consider the ECHR rights of landlords and tenants and arrive at a decision which ensures appropriate respect for both. The removal of mandatory grounds of eviction does not in itself prevent eviction; it merely ensures that eviction should be granted only where it is reasonable to do so.

Policy memorandum, paragraphs 318-320

It is appropriate and correct that this is thought about. Article 1 of the First Protocol seems to be engaged. I have not much to add to the analysis regarding the pre-action protocol; I thought the protocol was relatively uncontroversial in human rights terms previously and I stick to that view. Of more import is the change to eviction law. Is this too much of an imposition on landlords? Clearly the Scottish Government is of the view this is within what is known as the margin of appreciation, i.e. what the European Court of Human Rights allows states to do in relation to determining what is in the public interest or general interest. They may yet be challenged on this but, for my part, I do not think this quite hits the high A1PI Scottish landlord and tenant law watermark of Salvesen v Riddell (where a provision of the Agricultural Holdings (Scotland) Act 2003 imposed a very secure agricultural tenancy on a very select group of landlords, and was accordingly found in court to be not law).

This is only Stage 1. Stages 2 and 3 will follow. Owing to the numbers at Holyrood, it seems inevitable that they will indeed follow, the only issue is what amendments will be made as the Bill works through those Stages.

Finally, all of this is separate to another consultation launched in December: A New Deal for Tenants: Draft Strategy Consultation Paper (PDF). That consultation exercise closes on 15 April 2022.

*UPDATE 18 March 2022. On no particular basis, I predicted all residential tenancy Covid measures would continue for another six months. I was wrong in relation to notice periods for evictions. The extended notice periods no longer apply from the end of March.

My 2021 in review

Another year, meaning it is time for yet another reflective blog post.

By which I mean, it is time for me to go back to my “My 2020 in review” post, copy the intro and the structure, and adapt. Sorry to everyone who was expecting something altogether bespoke.

Anyway, readers of my blog will know that I have uploaded a short post at the end of my blogging year since 2013. I traditionally try to offer some thoughts for the year, merging that with analysis of my most read posts from that year. Here I go again.

What to say about 2021, then? Personally, and boringly, this year I mainly focussed on just getting on with things like the day-job and some other roles that came my way. The most notable of such roles was my appointment to the Scottish Land Fund committee. This has been great, both in terms of working with some interesting people on the committee itself and in the background, and also in terms of being able to support some community schemes across Scotland. In a way, being on the committee has stopped me pontificating on this blog or on social media about land reform stuff (in part because I’ve been busy, and in part because I don’t want to accidentally loop the committee into anything). Hopefully I’ve been able to make a contribution in a different way though. For those who were expecting more in the way of online Combe droning, I’m sorry/you’re welcome [delete as appropriate].

Mind you, I did contribute to this BBC Scotland/Red Sky Productions programme, Who Owns Scotland? [in episode 2], so you might find that of interest if you’ve not seen that already. It’s on the iPlayer until October 2022. I also participated in a few podcast episodes (with Professor Bram Akkermans for his PropertyCon podcast, with Adam Calo for his Landscapes project, and an episode of the Local Zero Podcast), plus I contributed to a Scottish Books Long Weekend event (on what’s next for Scotland). I might also mention a personal favourite event that I was involved with in November through my Clinical Legal Education Organisation role, namely an online event about law clinics and climate adaptation. Well done to all the students at York, KCL and Strathclyde plus the other universities around the world who sent in contributions for putting on such a great event.

The aforementioned sorta-public Scottish Land Fund role also means I probably shouldn’t offer any razor sharp commentary on the Holyrood elections or anything else that’s been going down. Again, I’m sorry/you’re welcome.

I seem to be apologising a lot. Sorry about that. Anyway, I will promptly move to my blog breakdown.

STAT ATTACK

My top five base drones of 2021 (excluding the blog’s churning home page and any posts from earlier years) were as follows:

In 1st place, a post about responsible access in whatever lockdown we were in in January 2021.

In 2nd place, a post about access being restricted at the site of the Scottish Parliament.

In 3rd place, a post about the future direction of private renting in Scotland.

In 4th place, a post about wrongful-termination orders and how they have shaken out when tenants have tried to pursue former landlords for dubious behaviour that, eh, encouraged them or a tribunal to bring a private residential tenancy to an end.

In joint 5th place (how exciting!), a post about joining the Scottish Land Fund committee (as mentioned above) and a post about the Land and Human Rights Advisory Forum of the Scottish Land Commission.

I also wrote about tenancy deposit protection and letting agent regulation for the Strathclyde Law Blog.

What next?

My main task in 2021 2022 will be navigating what is left of this pandemic, continuing to reflect on the changes to teaching practice this environment has entailed, and trying to get a bit more in the way of published work out of the metaphorical pipeline. 

As for anything else, last year I noted I would try to read a bit more for pleasure. I’m not sure I fully managed this tbh. I read Therapy?’s biography by Simon Young, a book about a cricket tour in Nazi Germany by Dan Waddell, books by Jon Ronson and Danny Boyle about public shaming and being rude respectively, and some David Baldacci stuff. Maybe I shouldn’t faff about on the internet so much.

Speaking of faffing about on the internet, thanks for reading. All the best for 2022. I’m sure that message will make all the difference. I said “All the best for [X year]” the previous two years and it all worked out.

Land and human rights – a post for the Scottish Land Commission

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).

Land and Human Rights Advisory Forum

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.

In a bid to make this far more mysterious than it really is, I am not (yet) at liberty to talk about what we talked about. I can go as far as noting that we mainly discussed a couple of Scottish Land Commission publications, namely: Legislative proposals to address the impact of Scotland’s concentration of land ownership; and Compulsory Sales Orders A Proposal from the Scottish Land Commission.

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 Scottish Parliament, the Serious Organised Crime and Police Act 2005, and reflections on the indycamp

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”.

Sections 128-131 of the 2005 Act (as amended) serve to criminalise trespass at certain “protected sites” in the UK. This overall category applies to nuclear sites (as a result of an amendment by 2006 terrorism legislation) and any sites that are individually designated by order.

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.

It’s not as if it’s just access law geeks that know about this though. The designation of the Scottish Parliament under the 2005 Act has been reported in The Scotsman and The Herald and at Bella Caledonia. It is clear from that coverage the move is controversial. A more recent article in The Herald suggests growing disquiet about the designation. It appears that the Scottish Greens are sceptical about the reform, and BBC Reporter Philip Sim tweeted that SNP delegates voted 352-152 to urge parliamentarians to call on the Scottish Parliament Corporate Body – the managing/landowning entity at Holyrood (the SPCB) – to withdraw the order.

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.

What is going to happen to the regulation of private sector residential lets in Scotland?

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 9 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:

1. Extend the non-mandatory eviction rules beyond March 2022 and make them permanent;
2. 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
3. Extend the non-mandatory eviction rules beyond March 2022 but don’t make them permanent [i.e. kick the can down the road];
4. As option 2 [rent arrears to lead to discretionary eviction], but don’t make them permanent
5. 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).

Non-Covid reforms

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.