New comment on the right to roam, or is it the right of responsible access?

In December 2022, I published a post about the recent decision of the Inner House of the Court of Session in the Gartmore House case. This judicial review concerned a land owner’s unsuccessful attempt to resist the imposition by the relevant access authority of two new core paths on its land, all in terms of the Land Reform (Scotland) Act 2003.

My post was something of a raw precursor to some more developed thoughts on the case. That polished comment can now be found in the new issue of the SPEL journal – thanks as ever to John Watchman and the team there for their support with the publication process. An author-produced pre-print of the article can be found via the University of Strathclyde’s academic repository.

In other circumstances I might have left this current blog post as a simple signpost to the new article. Some readers might be happy to treat this post as just that, before I wander off on a bit of a tangent. Call that fair warning: feel free to stop reading now if you can’t be bothered with a slightly wordy rest of post, regarding the appropriate terminology to use when describing aspects of the 2003 Act.

The indirect spark for this tangent was Lord Carloway’s opinion in the Gartmore House case. In paragraph [1] of that opinion he noted that “the right to be on land for recreational, educational and non-commercial purposes, and the right to cross land [found in section 1 of the 2003 Act]… is known as the right to roam.” In paragraph [2], he noted that the system of core paths introduced by the 2003 Act was “in addition to the general right to roam”. His ease with using the term “right to roam” follows on from his adoption of that terminology in an earlier case on the 2003 Act that he also ruled on, as noted in my predecessor blog post.

The direct spark for this tangent is a “pingback” I received in early January in relation to that predecessor post. That is to say, I got a WordPress notification telling me someone else had linked to my output. Naturally intrigued, I clicked through to the linking blog post in question, by Nick Kempe on the Parkswatch Blog, entitled “Scotland has a right to roam not a ‘right of responsible access’“.

Here’s my first attempt to downplay what I am about to write. As an academic, or indeed as a blogger, you write stuff and people react to it. That comes with the terrain. In fact, you positively hope people engage with it. It might be that people nod silently in agreement, and such people are unlikely to write screeds of text agreeing with you. Others might take issue with what you’ve written, and sometimes they tell you that. When people react in a way that leads to further writing, that’s absolutely fine. This reaction caught me on the hop though, as I hadn’t really envisaged that I had a chink in my armour here; heck, I hadn’t even realised I had any need for armour, never mind that anyone was trying to find a way through my non-defences.

Anyway, this Parkswatch post’s purpose is to position for “right to roam” as the preferred terminology for the access rights introduced by the 2003 Act, in preference to the formulation “right of responsible access”. Kempe’s argument is fortified by Lord Carloway’s recent usage, a point I had already acknowledged in my earlier post.

More recently, what might be thought of as a follow-up to Kempe’s post by Mike Dales was published on Parkswatch, entitled “Access Rights and Terminology”. This current blog post was largely written before Dales’ post, but I have tried to incorporate some commentary here about what he has added to the debate. I should also sportingly note early in this post that the Parkswatch blog plays a valid role in the Scottish blogosphere, and good luck to the team there in their efforts to hold people to account in relation to a variety of important matters.

Enough pleasantries. I’ll return to Kempe’s post about Scotland having a right to roam not a “right of responsible access” now.

Does Scotland have a right of responsible access?

Here is a screen capture of the post which begins the discussion. Perhaps confusingly, me taking this screen capture leads to a screen capture of a screen capture:

A screen capture of my earlier blog post on Parkswatch. Yes, I made a mistake in the post, by missing the word “it” before “immediately”. There is really nothing more effective at flushing out a mistake in your work than someone else referring to it.

Um… “grudgingly”? I had no idea I was grudging anyone anything when I drew attention to something in a case I was digesting that I thought was interesting. Anyway, I’ll try not to get too distracted by that. Also, in fairness to Kempe, he accepted a comment from me on his blog post where I pushed back on that (which you can click through to see for yourself), so I shouldn’t lay it on too thick.

In Kempe’s post, I am described as one of the proponents of the term “right of responsible access”, and that “authors like [me]” use clause [sic] 2 of the Land Reform (Scotland) Act 2003 to argue that point.

I’ll come back to who the proponents of this term might be later. On the substantive point though, Kempe proceeds to give the wording of section 2 a bit of a shakedown in relation to why people shouldn’t use section 2 in that way.

I am afraid I don’t buy the point made in his post that the framing of section 2 is such that saying “right of responsible access” is a misrepresentation because it somehow changes the emphasis. There might be arguments for preferring “right to roam” over “right over responsible access”, but the statutory language – lacking any punctuation – is absolutely that of a qualified right.

I’ll return to that qualified right point in a moment, but before I do I’ll try to fully cover off another aspect of Kempe’s objection to the use of “right of responsible access”, namely that it cuts out the word “exercise”, which appears in subsection (3). I see this as a complete non-argument: “exercise” is simply appearing as a verb in its transitive form. (I’ll revisit the word “exercise” towards the end of this post.) I also don’t fully buy into his argument relating to the heading of section 2 and it being somehow decisive here, given the chequered history of legislative headings and side notes in matters of statutory interpretation, but that’s a rabbit-hole I’m not going to dive down.

On the fact that the statutory rights to cross land and be on land are qualified, it is instructive to compare access rights under the 2003 Act with the right of passage that is conferred by a public right of way. A public right of way is a route recognised under Scots common law that afford access from one public place to another. No-one calls that entitlement a “right of responsible passage”, because it is not subject to the same “only if they are used responsibly” constraint as the 2003 Act’s access rights. Travellers on a public right of way, of course, must still comply with the law of the land, and cannot (for example) block other users or cause a private law nuisance, but it would be wordy and unnecessary to shunt “responsible” into “right of passage” for those extreme situations. Putting “responsible” into the shorthand for the 2003 Act’s access rights does not face the same critique.

Here’s where I can usefully bring in Dales’ blog post, where he – quite understandably – notes that there are constraints on conducting yourself in various situations where you have entitlements, and yet you don’t go around inserting the word “responsible” into all those contexts. I do understand that, and the argument carries an inherent attraction. I think my comparison between a right of passage remains a valid one though, because, bluntly, they are different – only one of them has a statutory qualification, and whilst some people might prefer to relegate that from any description it is not going to go away.

Let’s try another analogy. Suppose Angela and Bronwen are talking about that law-making venue at Holyrood. Angela calls it a legislature, and is equally happy to call it a parliament. She’s correct in her terminology. Bronwen, however, is conscious of the constitutional settlement that created the Scottish Parliament and calls it a devolved parliament. She is also correct. Angela might not like Bronwen drawing attention to that fact, perhaps for political or sentimental or whatever reasons, but she cannot wish it away. Deal with it: it’s a devolved parliament, and it’s not wrong to describe it as that for as long as the constitutional arrangement continues. This analogy stands for the right of responsible access.

I’m not criticising anyone or any statute here in relation to the “right to roam” terminology, I’m just being a private lawyer about it all. If others wish to put a different gloss on it, fill your boots, but that doesn’t make “right of responsible access” inherently wrong. For what its worth, I think the better argument for leaning towards “right to roam” is that the statute as a whole is about liberalising access to land, and in a question of pure statutory interpretation that is something a court could take into account.

Oh, and there I go: I’m so sceptical of “right to roam” there’s me giving a fresh argument for it. Returning to an earlier point though, am I proponent of “right of responsible access”?

Grudgingly, I suppose I should acknowledge that I am. There have been occasions where I find it a useful teaching device, plus I’ve explained above why I think it makes sense in property theory.

Here’s the thing though: I’m pretty much okay with both terms. The next bit of this blog post will be a bit of a trawl through historic terminology to demonstrate this.

Traditional terminology

Looking first at my own language, I see from my own blogging I added tags for both “right to roam” and “responsible access” to this WordPress blog in 2017, using them to tag a post about George Monbiot’s call to trespass in England. I used both right of responsible access and right to roam in this introduction to a case comment for ScotWays from 2018. I’ve checked other output and on balance it is fair to say I have tended towards “…responsible access” rather than “…roam”, but I do use both terms.

Meanwhile, I quite happily flagged that Lord Carloway had used the term “right to roam” in his two opinions, five years apart, to make it all the easier for people to notice that.

As such, I’m a bit confused as to why I was set up as an Aunt Sally figure; to switch to internet meme-mode, I’m basically David Mitchell dressed up in a Nazi uniform asking “Are we the baddies?”

As for my main published work on public access to land in Scotland, namely The ScotWays Guide to the Law of Access to Land in Scotland, in introducing what the statutory rights of access are there is no doubt that I err towards “right of responsible access” instead of “right to roam”. Section 2 of the 2003 Act is part of that. It can also be noted that the previous ScotWays Guide didn’t use “right to roam” at all (except in its index, which simply cross referred to “statutory access rights”). When I took on the project of reworking the ScotWays Guide, I wasn’t coining any terminology myself.

This did get me thinking about provenance though. I accordingly had a bit of a rummage into the historic usage of these phrases.

I turned to Google (yes, I know, and other search engines are available). The Scottish charity Paths for All mentions “right of responsible access” (and not “right to roam”) on its website section headed “What are your access rights?” The website of NatureScot (i.e. Scottish Natural Heritage) dedicated to outdoor access has a section on “Legislation history” which prefers “right of responsible access” (and hints at the “right to roam” terminology actually relating to the older tradition of access to hill ground). Further Google searching with restricted time parameters shows that Scottish Borders Council and Clackmannanshire Council were both using “right of responsible access” in February 2005, when I was such an influential proponent of the term that I was still an undergraduate law student. A 2007 publication from Angus Council refers to the right of responsible access (one year before my first publication on the topic, in the Edinburgh Law Review). Arch-nemesis of land reform Andy Wightman spoke of the “right of responsible access” rather than the “right to roam” in a 2013 blog post. I also had a look at the Official Report of the Scottish Parliament and I can see both terms being used in the Chamber, sometimes in the same debate.

In short, right of responsible access is not my term, and I’m not averse to using other terminology. As such, it feels a bit weird to be the only person named in Kempe’s post. Being the only person named in Kempe’s post forces me to address another point he makes, which I will turn to now.

The reciprocal responsibilities of landowners

Towards the end of his blog post, Kempe writes, “Those who refer to ‘the right of responsible access’ almost never refer to the reciprocal responsibilities of landowners.”

This is a bit of a strawman argument anyway, so it is barely worth a response. I’ve been suckered into replying to it though, as I’m a bit worried that as the only named individual in Kempe’s post (other than Lord Carloway) people will think this cheap shot applies to me. If this is indeed aimed at me, it’s bullshit. You can find an example of me never referring to the reciprocal responsibilities of landowners at pages 64 to 67 of the ScotWays Guide, or in the third substantive sentence of my aforementioned online case comment from 2018.

[I did mention above that I think Parkswatch is a valid part of the Scottish blogosphere. I still think it is. But if you’re going to have an unsubstantiated swipe out about something that might catch someone’s reputation in the crossfire, it would be good practice to give that someone a bit of notice about this, or ideally approach them for a comment.]

One related point might be worth thinking about though, and it is actually Dales’ later blog post that develops this. He highlights his fear that the term right of responsible access “suggests an expectation on the part of the people who continue using it that there is going to be widespread irresponsibility, and its deliberate use appears to be aimed at promoting the perception that it is only the recreational visitor that will be capable of being irresponsible.” For what it’s worth, that’s not what I am trying to promote, and I hope I have explained why in this post. I do understand the fear though. He then provides an example from his own experience, which I will quote in full.

The worst example I came across of this view that responsibility only applies to one party was at a meeting I attended when I worked for the Scottish Canoe Association. I was told in a very impolite way by an angling representative that “you only have a responsible right of access”, to which I replied that we had a right and that both sides were expected to act responsibly. I went on to say that a landowner or fisheries manager had responsibilities to be fair and accurate when, for example, they put up a sign to communicate a message to canoeists and that it would not be irresponsible for a canoeist to ignore an irresponsible sign. The guy was furious with me and was effectively arguing that if they put up a misleading and non-Code-compliant sign, then we had to obey the message anyway. I’m pleased to say that his outburst was in front of the entire meeting and his view was not backed up.

Meaning no disrespect to Dales here, this episode presents the sound of the system working. It might not always be like this though, and I must acknowledge that the system may have only worked here because the impolite angling representative was faced with a clued-up canoer. I confess I’m not 100% sure whether lopping “responsible” from the moniker would stave off any attempts at over-exuberant land management: that’s not a private law issue, and I’ll leave this to experts in human behaviour. I will however quickly consider a possible disadvantage to moving away from the responsible access terminology.

Welcome to the reductio ad absurdum bit of the blog post, where I ponder whether relegating the word “responsible” from any description will in fact lead to irresponsible access, by not foregrounding that access rights do indeed require to be exercised responsibly, and perhaps leading to folks strutting around with impunity when that impunity is misplaced, for whatever reason. I should declare at the outset that I don’t think it would, but again this is more a behavioural than a legal issue. It might also be noted that those who are vociferously pro- or anti-access are not going to bother themselves with such linguistic niceties (and indeed the same would be true in relation to the clash described immediately above). I think the point would need to be considered though when undertaking any renaming exercise (see below), lest there be any danger of throwing the baby out with the bathwater, and perhaps even losing goodwill by moving away from a term that is generally well understood.

I suppose the final point to note here is overall education as to the exact scope of access rights and the correlative duties of owners and occupiers of land is far more important than the term that is used to describe them. Lord Carloway or anyone else can use any sensible extra-statutory term they like, but in the event of a dispute it’s the actual terms of the statute and the accompanying Scottish Outdoor Access Code that will matter.

Conclusion

Will I be removing “right of responsible access” from my lexicon, as Kempe is seeking? No. As I’ve illustrated, it’s not my term to remove anyway. Meanwhile, I won’t be removing “right to roam” either. Both work. Both have pros and cons. Neither appears in the statute. Lord Carloway’s usage is clearly a feather in the cap of “right to roam”. Since the 2018 case I’ve been more relaxed about using it, and in any future edition of the ScotWays Guide I imagine I will adapt some of the wording to reflect this. In short though, I’m really not that bothered. I’m so not bothered I’ve just written thousands of words about it. Grudgingly.

Maybe this is about as important as one person putting a genre-spanning band in one genre, and another putting that band in a different genre. Actually, wait: in some circles that is pretty important…

To conclude, I’ll draw this back to what I have said in the most recent article for SPEL about the Gartmore House case, where I tried to capture the position in a paragraph.

[A] note on language, and the right terminology. From this judgment, it is apparent that Lord Carloway is a fan of describing the access rights introduced by the Land Reform (Scotland) Act 2003 as the trisyllabic ‘right to roam’ rather than the less catchy ‘right of responsible access’. The latter term might seem preferable given that it immediately captures the qualified nature of the entitlement (that is to say, a person has access rights only if they are exercised responsibly, in the words of s 2(1) of the 2003 Act). Be that as it may, the judge at the apex of the Scottish judicial system (UK Supreme Court justices excepted) is obviously content to use ‘right to roam’ – he did so in the case of Renyana Stahl Anstalt v Loch Lomond and the Trossachs National Park Authority ([2018] CSIH 22; 2018 SC 406) and did so again here… ‘Right to roam’ was also used by Sheriff Reith to introduce access rights in her decision in Manson v Midlothian Council 2019 S.C.L.R. 723. The 2003 Act itself speaks of ‘access rights’ (s 1(2)). Neither ‘right to roam’ nor ‘roam’ actually appear in the statute itself. For completeness, it can be noted that while the concept of the responsible exercise of access rights permeates the 2003 Act (see, for instance, ss 2(3) and 12(1)), the formulation ‘right of responsible access’ does not appear in that Act either.

I’ll now return to Dales’ post, which I confess I am more sympathetic to [and I hope not just because when I read his post, in contrast to Kempe’s, I did not find myself wondering “when did I piss in his chips?”]. Dales angles for doing away with both terms. His proposed solution is to use the term “Scottish Access Rights”. In a general sense, I could get on-board with this, but I have a reservation. The main issue I have is there are other access rights that don’t flow from the 2003 Act, e.g. the common law ius spatiandi to be on the foreshore, or rights of public navigation on some waterways. Such a broad-brush term could lead to those rights being relegated from public consciousness. Unless and until such common law rights are brought into an overall regime by a future reform, this weighs against that term. This is also to say nothing about public rights of way, which again need to stand separate to 2003 Act access rights.

One other throwaway comment, on a slightly different point. At the end of Kempe’s post, there is some discussion about the use of the term “access taker”, linked to a separate post. I do have some sympathy with this, and this is something that was discussed as part of the production process for the ScotWays Guide. We struggled to settle on a snappy alternative formulation for that text. My own devilish preference is to call those enjoying 2003 Act rights “access rightsers”, but I suspect there is no way I’d get this by an editor. I’ll get away with saying that on this self-published blog though, and I’ll look forward to hearing what other options are put forward in place of “access takers”. The other option that springs to mind is “access exercisers”, and in fact that is most consistent with the terminology of the 2003 Act, but “exercisers” suffers from being clunkier than the less-than-neutral “takers”.

Let’s wrap this up. Perhaps we do need some new 2003 Act terminology, or maybe we should all just calm down. With that last point in mind, here’s what I hope will be my final word on the core topic of this blog post. Scotland does have a right of responsible access, even if some people argue other descriptors might be preferred. Anyone who argues Scotland does not have a right of responsible access is engaged in an exercise of contrived construction and/or spin.

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Residential tenancies in the cost of living crisis – an update, and a challenge

The Cost of Living (Tenant Protection) (Scotland) Act 2022 is designed to look after those who rent a home in the private, social and student sectors. Since September 2022, rents have been subject to various controls, plus the usually finite grounds for evictions have been narrowed. I tried to digest this and more in a post for the Strathclyde Law Blog (which makes reference to some other output in relation to this topic).

On 19 January 2023, a news release from the Scottish Government provided an update about various matters, most notably that rent controls were to continue in a slightly modified form in the private sector, whilst they would be ending in the social and student sectors.

The emergency private sector regime provides as a starting point that a private landlord may not increase the rent payable by more than the permitted rate. That rate is currently set at 0%, but it is to increase to 3% as from 1 April 2023. Another aspect of the emergency regime is a private landlord may apply to the rent-setting body to increase the rent by more than the permitted rate to recover certain “prescribed property costs” (relating, for example, to mortgage interest). This will continue after 1 April 2023, over and above the possible baseline increase of up to 3%, meaning landlord will be able to increase rents by between 3% and 6%.

Social landlords – i.e., housing associations and local authorities – will be removed from rent controls. Although this was wrapped up in the 19 January announcement, this was already on the cards (per this earlier Scottish Government publication). Social rents will now be subject to a sector-level agreement that any rent increases will be below inflation. No doubt social landlords will be relieved to hear this, but this gives social tenants and indeed private landlords something to think about.

Student tenancies will also be removed from rent regulation, owing to the “limited impact on annual rents set on the basis of an academic year”.

Temporary reforms to eviction and damages for unlawful eviction are to remain.

Those are the headlines. Or at least they were the headlines yesterday. The headline today is that the coalition of landlords who had threatened to judicially review the measures have now done so. You can read about this on the website of Scottish Land and Estates (one of the representative bodies involved).

Will they succeed? That, dear reader, is a very good question, and one that I will shamelessly dodge for now. I did however touch on the human rights issue (in terms of the human right to peaceful enjoyment of possessions, as embodied in Article 1 of the First Protocol to the ECHR) in my earlier Juridical Review piece (and mentioned on the Strathclyde Law Blog). The differential treatment of social and private sector landlords announced yesterday might offer a new slant for any argument. This is most definitely one to watch.

My 2022 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 2021 in review” post, copy the intro and the structure, and adapt.

Readers of my blog will know that I have uploaded a short post at the end of my blogging year since 2013. I tend 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 2022, then? As with last year, the “getting on with the day-job” consideration has taken up a fair bit of time, especially with the move back to campus-based activities. I’ve also been covering for a colleague as Director of Strathclyde’s Clinical LLB degree programmes, where students integrate their University of Strathclyde Law Clinic experiences with their actual modules. That has been really insightful for me; I sincerely hope it has been for the students too. I do feel I have improved as a [clinical legal] educator through that.

Away from the day-job, noteworthy side-activities might include me continuing to sit on the Scottish Land Fund committee and my involvement with the Land and Human Rights Advisory Forum for the Scottish Land Commission. As I noted last year, being on the Scottish Land Fund committee has mitigated some of my pontification on this blog or on social media about politics or certain 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). So be it though: being on the committee has been great for working with some interesting people on the committee itself and in the background. More importantly, I hope it has been useful in terms of being able to support some community schemes across Scotland: a press release about the most recent awards can be found on the National Lottery Community Fund’s website.

I’ve also been involved with a couple of “knowledge exchange” activities in collaboration with the Scottish Universities Insight Institute, namely: (Un)Earthing New Pathways for a Justice Transition: Cultivating Hope and Food on Contested Terrains in Scotland, Amazon and the Arctic (a number of resources are available on the SUII website, including a final report); and an ongoing project on Community Carbon Offsetting. Another project, co-ordinated by Dr Kirsteen Shields and funded by the RSE, brought together some land reform minds and I was lucky to be involved with that. I hope to write something up about rural housing burdens as part of the output from that (and me committing this to a blog post should serve to shame me into doing that).

Otherwise, it’s been good to get back involved with music a bit more, whether that be attending gigs with some regularity, or singing at the Royal National Mòd again (my choir won the bass and tenor competition, and you can find our “own choice” on the BBC website).

I’ll also take a moment for some personal reflections. I don’t want to labour this too much, as I know everyone will face challenges from time-to-time, plus I don’t want to overshare, but 2022 certainly had its moments. Anyway, we had a couple of family funerals: one of these was semi-expected after a long life; the other was completely unexpected and as such a bit of a proverbial gut-punch. On the latter, I’ll share this fitting tribute written for my late cousin Alasdair by Niall Bartlett. That all happened in the first half of the year, so whilst at times it feels like it was ages ago, there are other times when it feels pretty raw.

I’ll now take the chance to offer a separate tribute to someone else who we lost in 2022, Professor Peter Duff. Pete was part of the furniture when I started my first full-time academic post at the University of Aberdeen. Even though we didn’t really work in the same fields, he was always a sensible head and a steadying influence when academic counsel was sought. He was great to chat to about our shared interests of hillwalking and the Dons. Finally, and more fatefully, he was part of the recruitment panel who recruited me for that job. It’s much too late for him to see this, of course, but nevertheless I would like to put on record my acknowledgement to him (and the rest of that panel) for taking a punt on me. I know he shaped the lives of many people over the years and I am, perhaps less than obviously, one such person. This blog post is dedicated to Pete.

From that, to the mundane. Here is my blog breakdown for 2022.

STAT ATTACK

My top five base drones of 2022 (excluding the blog’s churning home page and any posts from earlier years) were as follows:

In 1st place, a post about the land reform consultation for the next land reform bill. That was me sorting my own thoughts out prior to responding to the consultation, and it’s fair to say my consultation response was very much shaped by it. You can access the 482 published responses (including mine) on the Scottish Government’s website.

In 2nd place, a post about an old favourite, souvenir plots in Scotland. This particular post was about goodie bags given out for Academy Awards. I was particularly fond of my analysis in that post. I’ve also had a couple of quotes in the press about other souvenir plot issues, to do with the video game Elden Ring and a YouTube brouhaha about Established Titles.

In 3rd place, a post about the future direction of private renting in Scotland. Coincidentally, this was exactly the same topic and ranking combo as I had last year. I didn’t even need to change that sentence.

In 4th place, a post about a troublesome issue relating to the right of responsible access in Scotland, namely where the existence of this right might stop new public rights of way being formed at common law.

In 5th place, another post about access rights, in this instance relating to a more general feature in the Press & Journal where the journalist Kieran Beattie and I busted some myths around access.

I also wrote about the adoption of new core paths and residential tenancy reform for the Strathclyde Law Blog. In relation to the former, in December 2022 I blogged about the next judicial stage of that core paths dispute, just in case you are looking for an update; given how young that blog post was it had very little chance of reaching this year’s top 5.

What next?

I’ve already declared one plan (relating to work on rural housing burdens). I also hope to write something else up about the landlord and tenant reforms that are going on in Scotland at the moment, and I’ve some other irons in the fire that I probably should attend to. Needless to say, I will literally keep you posted about any of this on this here blog.

That’s enough from me for 2022. All the best for 2023.

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

I wrote about a legal dispute relating to the application of an aspect of the law relating to public access to land in Scotland earlier this year. The point at issue concerned core paths – a concept created by Part 1 of the Land Reform (Scotland) Act 2003.

The dispute first came to my attention in the context of a Court of Session case. In March 2022, Lord Clark (sitting alone in the Outer House) rebuffed a judicial review petition brought by the owner of a site near the village of Gartmore. The owner had sought to challenge the introduction of some new core paths over its land by the national park authority with a remit in that area. Analysis of that stage of the dispute, plus an overview of the applicable law and the background facts, can be found in this post for the Strathclyde Law Blog. A more detailed account can be found in an article in the Scottish Planning and Environmental Law journal ((2022) 210 SPEL 35-37, open access version available via the University of Strathclyde’s academic repository).

That was not the end of the matter though. The owner appealed, and on 20 December 2022 the Inner House of the Court of Session refused the reclaiming motion (i.e. rejected the appeal). This leaves Lord Clark’s earlier interlocutor and indeed the updated core paths plan – including the new paths the owner objected to – in place. This blog post will consider points of interest which arise from the most recent opinion, which was delivered by the Lord President, Lord Carloway (sitting with Lord Woolman and Lord Pentland), after a quick refresher of the law and the situation in question.

The law and the context

The dispute had the right of responsible access to land at its heart, but in actuality it was more of an administrative law case relating to the adoption of an updated plan under the 2003 Act and a separate issue of whether there was a failure to comply with the public sector equality duty found in section 149 of the Equality Act 2010.

As noted, a more complete overview of Part 1 of the 2003 Act – which affords outdoor access to those crossing land or in some cases using land for an authorised purpose, subject to that access being on a responsible basis and in a place that is not excluded from the scope of the legislation – and the factual circumstances of this case can be found elsewhere. Briefly stated though, local authorities or, where relevant, national park authorities – which can together be termed “access authorities” – have a role in relation to access rights in their respective areas. One such role relates to core paths, which are a feature of the 2003 Act. Core paths, and the related core path plan that shows where they can be found, offer members of the public a degree of certainty that the land is subject to access rights. In terms of section 7(1) of the 2003 Act, the exclusions to access rights found in section 6 do not apply to land that is a core path, save in very particular circumstances (namely when access is prohibited or restricted owing to an outbreak of animal disease, or where access has been suspended for a particular purpose by an access authority in accordance with section 11).

In the case at hand, the proprietor of a rural site near the village of Gartmore had sought to object to the creation of new core paths on that site. These paths were introduced as part of a wider review of the network of core paths in the local area. Core path plans were to be introduced by all access authorities in the early years of the 2003 Act, in terms of section 17 and related provisions. The 2003 Act and related guidance envisaged that these plans may need to be updated, which is provided for in section 20 and related provisions. It was this “review and amendment” process that the access authority tried to deploy here, which involved public consultation, a chance to object to the new plan, and referral of any unresolved objections to a Reporter appointed by the Scottish Ministers to consider the matter. After the plan was ultimately adopted, the land owner tried to argue that the relevant process was not followed correctly, with a separate point to do with a failure to properly consider the interests of vulnerable groups who might be using the site. The land owner was not successful at first instance or indeed on appeal, having failed to establish to the appeal court that the original judge got the law wrong.

What follows here is a selection of eclectic observations which occurred to me as I read through Lord Carloway’s opinion. A more structured analysis of the ruling can be found in this Scottish Legal News item by Mitchell Skilling.

The right usage of “right to roam”

Lord Carloway likes using the term “right to roam” rather than “right of responsible access” to describe what was introduced by the Land Reform (Scotland) Act 2003. Some people are sticklers for the latter, and I have discussed on this blog and elsewhere the reasons why this maybe should be the preferred term (in particular as immediately captures the qualified nature of the right). Be that as it may, the judge at the apex of the Scottish judicial system (UK Supreme Court justices excepted) is clearly absolutely fine with using “right to roam” – he did so in the Renyana Stahl Anstalt case and did so again here.

Maps are good

The Outer House decision did not feature a map of the site. Anyone trying to picture the scene was accordingly forced to do so through words in a judgment, or those who knew where to look and how to rummage could go to the website of the Scottish Government Planning and Environmental Appeals Directorate. The Inner House judgment has a map, as captured below for reference. Maps in judgments are good.

Core path plans are not set in aspic

To be successful on appeal, the petitioner [i.e. the land owner] had the not insignificant task of trying to convince the Inner House that Lord Clark had interpreted the law incorrectly. As part of this, it was argued that the core path plan review exercise “should have been about whether the original network [from the original core paths plan] continued to provide sufficiency; not whether that network could be improved.” The key to this argument was that section 17 conferred a duty on access authorities to draw up a “system of paths… sufficient for the purpose of giving the public reasonable access throughout their area.” If that had been the end of the matter, this argument would have been more attractive. Section 20, however, allows for review to ensure “that the core paths plan continues to give the public reasonable access throughout their area”. Relevant guidance, published by the Scottish Government in 2005, also envisaged that a plan should not be a “finite document”.

Lord Carloway did not buy the petitioner’s argument. At this point, it might be useful to set out paragraphs 32-33 of the opinion.

The 2003 Act imposed an obligation on the respondents [the national park authority] to draw up a plan for core paths “sufficient for the purpose of giving the public reasonable access throughout their area” (s 17(1)). The respondents did this. The adoption of the plan did not carry with it an assumption, or a presumption, that there was thereby a sufficient core paths network in the area; merely that the identified core paths contributed to the statutory purpose of giving reasonable access and balanced the factors, including the interests of land owners, required by section 17(3). A plan which was put forward for adoption as contributing to the statutory purpose could hardly have been rejected because it did not create a sufficient or saturation level of core paths.

In due course, an adopted plan might be improved; whether by the addition of other paths or the substitution of different routes, provided that the plan, as amended, also contributes to the sufficiency of the network. That is the objective of the provision for review (s 20(1)). The use of the phrase “continues to give… reasonable access” does not carry with it an implication that any previously adopted plan demonstrates the existence of a sufficiency which can never be improved. It would make no practical sense for a core paths plan to be set in aspic. The reporter asked the correct question of whether, under section 17(1), the new plan with the additional paths created a system which again contributed positively to the overall purpose of giving the public reasonable access; balancing in that equation the land owner’s interest. It was not necessary for the reporter to carry out a comparison of the existing network with the proposed new one or to examine whether the network in place was already sufficient. That would be an unduly narrow and artificial exercise; it would run counter to the statutory policy of conferring on authorities a wide discretionary power to review, when they consider it appropriate, whether improvements are desirable in the interests of furthering the objective of promoting reasonable public access. The review exercise involves a consideration of whether the amended plan continues to provide reasonable access, not whether the existing plan was of itself sufficient. The latter might be an argument which a land owner might advance, and it is no doubt a factor to be considered, but that is all.

Also, a confession – I had to look up “aspic”. I salute Lord Carloway for his deployment of it.

Equality Act considerations matter, but not so much that someone under the public sector equality duty needs to make a song and dance about them

Lord Carloway was happy the Reporter had acted in an appropriate way, in a process that allowed relevant issues (including those pertaining to protected characteristics) to be aired, and with a result that had indeed considered the matters that had been raised and how best to deal with them (in this case, that there would be limited interference anyway, and what interference there was could be mitigated by taking temporary measures around the new core paths). Lord Carloway also noted that the Reporter’s failure to make a specific reference to the Equality Act 2010 after doing the substance of what you were supposed to do did not undermine anything. I profess no particular expertise in this area so I offer this without any deep analysis, save to say this sounds intuitively correct to me.

Conclusion

When I heard there was to be an appeal in this case, I felt it was likely to be a long-shot, or at least a series of long-shots. For once, I have the receipts to prove that I thought this (at least in relation to my home territory of access rights); I wrote that Lord Clark was “surely correct” in my earlier analyses of this case, in terms of the test to be applied for the updating of a core paths plan. The other long-shots of the land owner did not go in either: I am not sure if they sought guidance from a Del Amitri World Cup song prior to launching this appeal, but if they did that was unwise. Anyway, I will try to write this up more professionally and without a Del Amitri reference in the coming weeks. For now though, I leave you with my promised screen capture of the map in the judgment.

“Tenants’ rights in Scotland: what do recent reforms mean for Scotland’s private renters?” A post for the Strathclyde Law Blog

A wee [sign]post, to draw to the attention of any followers of this blog a post on another blog I am involved with, namely the Strathclyde Law Blog. This new post, available on Strathclyde Law School’s website, aims to synthesise my recent writings on residential tenancy reform in Scotland, whilst offering some quick thoughts about possible future regulation in this area.

Consultation on the KLTR’s new Ownerless Property Transfer Scheme

The King’s and Lord Treasurer’s Remembrancer – the Crown’s representative for dealing with ownerless property in Scotland – has been consulting for the past few months on a new Ownerless Property Transfer Scheme. The deadline for the consultation is tomorrow. I submitted a response today. I selected the “public” option in terms of the visibility of my response, but for ease I will post a PDF of my response here as well.

Yes, the KLTR is a really cool name. And yes, I am still struggling to not say QLTR. Mercifully, those typing the URL qltr.gov.uk will be redirected to the correct website. Well done, Team KLTR.

kltr-opts-response-combeDownload

“Tenants’ rights: the scales tip further” – article for the Journal of the Law Society of Scotland

Time for one of those blog [sign]posts, which serves as a link to my recent contribution to the Journal of the Law Society of Scotland. This is, I hope, a more thorough and less rambling comment on the new Cost of Living (Tenant Protection) (Scotland) Act 2022, which I commented on (when it was a Bill) in an earlier blog post. Thanks as ever to Peter Nicholson and his team at the Journal for their help with this article.

The Cost of Living (Tenant Protection) (Scotland) Bill – some initial thoughts

This is a blog post where I seek to make sense of the Cost of Living (Tenant Protection) (Scotland) Bill, which was passed by the Scottish Parliament on 6 October 2022. Royal Assent is awaited. That being said, we already know that it bites from 6 September 2022 – one month before it was passed – which was the date when the rent freeze and eviction moratorium were first aired in the Programme for Government. This means that, for example, rent increase paperwork properly served by Scottish landlords before 6 September 2022 can take effect, but papers served after that date will be subject to the new legislation’s terms.

The bill cantered – perhaps even galloped – through Holyrood at quite a clip: it was laid before Parliament on Monday 3 October, then Stage 1 took place on Tuesday, Stage 2 on Wednesday, and Stage 3 on Thursday. It was classed as an emergency bill, owing to the current cost of living crisis.

The procedures around emergency bills are provided by the Scottish Parliament’s Standing Orders. There are legitimate questions about the level of scrutiny that is afforded to such bills in general, and there might be a question about whether this is indeed an emergency. These are questions I will largely dodge, although I will find it hard to resist the occasional observation. On scrutiny, this is a matter for better public lawyers than me to analyse, and I know my colleague Pablo Grez Hidalgo and others are looking into this in the context of Covid measures. Next, it can be acknowledged that these measures are time-limited, so the argument might be that we should not get too exercised about them. Then again, we have just witnessed previous emergency measures for Covid becoming decidedly non-temporary, by virtue of the Coronavirus (Recovery and Reform) (Scotland) Act 2022. Accordingly, this might be something to revisit later. And is it really an emergency? I don’t think it’s for me to make an authoritative call on that, but you don’t need to look too hard to find reports of big rent hikes in the Scottish private rented sector (like this report on STV News). Some context can also be found in this BBC News report.

As noted, my main blog goal from now on is to make sense of the Bill, in part as teaching prep for my own Housing Law class. That class is suffering not so much from one set of moving goalposts, but rather just when it seems one set of goalposts has stopped moving, another gyratory goalpost is unveiled for the syllabus to contend with. May you live in interesting times, and all that.

One thing I won’t do in this blog post is talk through all the interesting things that MSPs of different political persuasions tried to introduce to or remove from the Bill as it went through Holyrood. I will however give a wee overview of the amendments that did make it into the final form of the Bill at Stages 2 and 3.

Another thing I won’t do in this post is explain concepts or background legal matters in the manner I like to do on this blog, meaning I won’t explain (for example) what exactly a registered social landlord is, or what is meant by a Scottish secure tenancy and a short Scottish secure tenancy. A degree of knowledge is accordingly presumed. My apologies for that, but if anyone is flummoxed by anything do comment below and I’ll try to explain as best I can.

Please also note these are my initial thoughts after my first read through of the Bill. It may be that I don’t cover something that’s important, or perhaps even not quite get a handle on an important provision. This is very much me blogging to try to sort out my own thoughts, and if I also manage to get everything right by the time I hit “Publish” that will be a bonus.

Also, it’s over 3,600 words long. Sorry not sorry.

What does the Bill do?

Background information about two aspects of the Bill can be found in posts by the Scottish Parliament Information Centre, with one looking at the rent freeze and another at the evictions moratorium. The Bill is not a simple freeze though, and it is possible for rent increases to happen in some circumstances. That leads to some drafting about what sort of increase is indeed allowed. Also, and perhaps confusingly given the title of the Bill, it seems to introduce a private sector eviction ground allowing a landlord suffering financial hardship to move into the let property or sell it with vacant possession (but more on whether this can fairly be called a new ground below). There is provision relating to eviction for substantial rent arrears, either asking for a set number of months (in the private sector) or a set sum of money (in the social sector) of backlog before eviction can be granted. There is also quite a lot for Scottish Ministers to do in terms of reporting on the law in action and consulting with relevant stakeholders at staging posts in this law’s time-limited life.

Here is a PDF of the Bill as passed. I will work through its provisions as best I can now.

Part 1, entitled “RESIDENTIAL TENANCIES: RENT CAP AND EVICTIONS”, contains two short sections. Section 1 makes a schedule on rent control operative, then section 2 does the same for another schedule about evictions. Part 2 supplements Part 1, providing an initial end date of 31 March 2023, and also providing for two six month extensions (much like the Coronavirus (Scotland) Act 2020 had), but also with powers to suspend either or both of the rent cap or eviction protection provisions. There are also reporting and consultation obligations on Scottish Ministers, with special provisions about rent control in the social sector such that those must be properly considered before 31 March 2023 (this being a recognition of the particular funding challenges registered social landlords may face). Part 3 then introduces provisions on rent adjudication, with a later programmed end date of 31 March 2024 (and a possible extension to that of up to a year). I’ll now consider the “Rent Cap”, the “Protection from Eviction”, and “Rent Adjudication” in turn.

A warning: reading the various schedules without also having a handle on the governing statutes for the three private renting regimes that still exist in Scotland and the social renting regime in the Housing (Scotland) Act 2001 is a tricky exercise. The private sector regimes of the private residential tenancy (PRT), the assured tenancy and short assured tenancy, and the protected tenancy are found in the Private Housing (Tenancies) (Scotland) Act 2016, the Housing (Scotland) Act 1988, and the Rent (Scotland) Act 1984 respectively. The schedules of the Bill effect the changes in the law by way of amendments to these various statutes.

Rent Cap

Taking up over seventeen of the forty pages that comprise the PDF of the Bill, Schedule 1 “Rent Cap” is the longest Schedule to wrestle with. This is perhaps not surprising, given the complexity of the measures and the fact they need to be replicated over various private renting regimes and in the social sector.

The PRT is the main player in the Scottish private rented sector these days, so I will focus on that. I’ll also make a quick acknowledgment of the changes to the social sector, regulation of student residential tenancies, and the briefest nod to the other private sector vehicles.

In a curious but perhaps pragmatic opening gambit, the first thing that Schedule 1 actually caters for is more rent increases in a 12-month-period than would normally be permitted, but only if Ministers allow for this to happen by regulations. In non-emergency times, PRTs can be subject to a rent increase once per year, on three months’ notice.

Next though, a new section 22A of the 2016 Act provides that as from 6 September 2022 the landlord under a private residential tenancy may not increase the rent payable under the tenancy by more than the permitted rate, and that permitted rate is set at 0%. That is, as things stand, no rental increases are possible, or at least this will be the case unless the Scottish Ministers pass regulations to substitute a different percentage. Scottish Ministers are duty bound to review the permitted rate relatively soon in the social sector, but not in the private sector. It seems accordingly safe to assume there is no immediate prospect of a change to the permitted rate. This section also clarifies any rent-increase notice given on or after 6 September 2022 during a period when the permitted rate is 0% is of no effect – any landlord who speculatively sent off a rent-increase notice after reading the Programme for Government is accordingly caught by this.

Subsequent amendments to the 2016 Act suitably constrain the rent variation provisions when the permitted rate is 0%, or modify those provisions to e.g. stay a rent officer’s hand when it comes to ordering any increase when the permitted rate is more than 0%. Another curious effect of the modified rent increase regime is it removes the theoretical possibility of a rent officer reducing the rent after a landlord seeks a different rent and a referral is made. Rather, there is now an “upwards only” procedure, albeit capped at the permitted rent. Curious this may be, but again it is probably a pragmatic attempt at keeping the overall legislative scheme fair to landlords.

That’s not all though. A landlord may make an application to the relevant rent officer to increase the rent in a PRT by more than the permitted rate in terms of a new section 33A of the 2016 Act. They can do this in order to recover up to 50% of the increase in any “prescribed property costs” that the landlord has incurred during the relevant period (where these are suitably evidenced). A “prescribed property cost” is relatively tightly defined, so as to include: a) interest payable in respect of a mortgage [sic] or standard security relating to the let property; b) a premium payable in respect of insurance (other than general building and contents insurance) relating to the let property and the offering of the property for let; and c) service charges relating to the let property that are paid for by the landlord but the payment of which the tenant is responsible for (in whole or in part) in accordance with the terms of the tenancy. “Relevant period” means the period of 6 months occurring immediately before the day on which the application for an increase is made.

[Scots property lawyer heckle: the inclusion of the word “mortgage” is otiose. There is no such thing as a mortgage in Scots law, even if there was an Act called the Mortgage Rights (Scotland) Act 2001. That statute used that well-understood word for the right that a borrower gives to a bank in exchange for money in its short title, but the substance of the legislation then spoke about standard securities, the correct name for this security right under the Conveyancing and Feudal Reform (Scotland) Act 1970. It’s a shame this English law term has now found its way into a Scottish statute. It shouldn’t be there.]

Anyway, returning to the rental increase stuff, assuming an application is all properly documented, the rent officer can then sign off on an increase of no more than 50% of the hike in a landlord’s costs. To my mind, this represents a fair attempt at a balance by the devolved Scottish Parliament. When rent controls were introduced to the UK private rented sector in 1915, they came with mortgage* interest controls too. [Yes, I just used that m-word for ease, hypocrite that I am.] Holyrood can’t do anything in relation to mortgage markets, or indeed insurance markets. To hamstring landlords in one way without offering at least some mitigation in another could have been problematic, perhaps even in human rights law terms (see below).

The 50% maximum step-down of prescribed property costs can be changed by regulation. Given the provision is silent about the nature of such a change, this could go up or down.

Finally in relation to PRTs, the never used provisions on Rent Pressure Zones are suspended.

Analogous changes are made to the Housing (Scotland) Act 1988 in relation to assured tenancies and short assured tenancies, such that they too are capped in general but with up to 50% prescribed property cost increases allowed. No such changes were needed to the Rent (Scotland) Act 1984 with its different rental regime.

Next, we have the social sector, and its Scottish secure tenancies and short Scottish secure tenancies. Rent increases – as between the landlord and tenant – are comparatively less regulated in the social sector, albeit registered social landlords are highly regulated in terms of corporate governance etc. and are entirely geared towards providing housing on a not for profit basis. In terms of the private law relationship between landlord and tenant, the only additional regulation of rent comes from section 25 of the Housing (Scotland) Act 2001. That normally only asks for proper consultation with tenants, and then four weeks’ notice before the beginning of any rental period, where “rental period” means a period in respect of which an instalment of rent falls to be paid. When this Bill comes into force with its starting permitted rate of 0%, no rent increase will be possible. There is no comparator for prescribed property costs in the social sector, meaning there can simply be no rent increase when this regime applies. The fig leaf offered to the social sector here is the prospect of a prompt review of the provisions; no doubt social landlords will be pressing hard to allow for some kind of review of this if their unavoidable costs cannot be stepped down and no other funding is coming there way prior to the (usual, but not uniform) annual revisiting of rents at the start of April 2023

The last category catered for in Schedule 1 is the student residential tenancy. These tenancies normally escape specific regulatory regimes, being carved out from the PRT provisions of the 2016 Act, but that carve out now serves as the basis of a definition of this other set of landlord and tenant relationships where the rent cap is in play. As with the social sector, no rent increase whatsoever is possible for such leases to a student when the permitted rate is 0%.

Protection from Eviction

Schedule 2 is comparatively shorter than Schedule 1. It begins by restricting the effectiveness of eviction decrees from 6 September 2022 onwards. The restriction applies until either a) the end of a period of 6 months beginning with the day on which the decree for removing is or was granted, or b) the expiry or suspension of the restriction in accordance with Part 2 of the Bill.

There are some exceptions though.

First, having been drawn into the regulatory regime that they normally escape, student residential tenancies now get their own eviction grounds. Students who engage in relevant criminal or antisocial behaviour in the regulated time period can nevertheless be evicted.

Next, specific grounds from existing residential tenancy regimes also have a chance to apply notwithstanding what has loosely been termed a moratorium. For PRTs, these grounds include: the existing grounds of property to be sold by lender, tenant no longer being an employee, tenant not occupying let property, criminal behaviour, anti-social behaviour, and association with a person who has a relevant conviction or engaged in relevant anti-social behaviour; and the new grounds of landlord intention to sell the property to alleviate financial hardship, landlord intention to live in the property to alleviate financial hardship, and substantial rent arrears.

Whilst these are technically new grounds for eviction, and they look like they are new grounds given they standalone in the legislation, I think it can also be noted that they are in fact existing grounds on steroids. The existing grounds relating to a landlord’s plans for the property, already subject to a reasonableness test, are now made subject to a financial hardship criterion, as properly evidenced (see below).

Meanwhile, rent arrears of three or more months would normally be an eviction ground. The ground in the Cost of Living (Tenant Protection) incarnation asks for even more in the way of arrears. Substantial rent arrears is defined as a situation where the cumulative amount of rent arrears equates to, or exceeds, an amount that is the equivalent of six months’ rent under the tenancy at the point when notice to leave is given to the tenant.

In the other private sector regimes similar changes are made. The same is largely true in the social sector, although there is a set figure for substantial rent arrears in that context: £2,250.

Rent Adjudication

The final schedule makes provision in relation to the determination of private sector rents (under the Private Housing (Tenancies) (Scotland) Act 2016 and the Housing (Scotland) Act 1988 – i.e. for PRTs and assured tenancies and short assured tenancies). This they can do by stipulation matters to be taken into account, matters to be disregarded, and assumptions to be made in determining the rent. Further, they could limit the rent that may be determined to an amount that is no more than the rent specified by the landlord in a rent-increase notice (or analogous documentation under the 1988 Act). The point listed in the preceding sentence would end the possibility of a landlord getting a windfall when a tenant challenges a notice and then ends up with a rent being set at higher than what the landlord asked for in the first place. That does seem sensible, although it might also lead to landlords taking a punt and aiming high in a rent-increase notice knowing that there is no chance of getting anything higher. Rent-setters would need to be wise to this accordingly.

What about a potential human rights challenge?

I have said absolutely nothing about whether a landlord might seek to run an argument about a breach of their rights under Article 1 of the First Protocol to the ECHR. All I’m doing here is noting the fact that it is a theoretical possibility, although no doubt the provisions about eviction proceedings still being possible with certain levels of arrears, the new financial hardship ground, and provisions for possible increases in rent were introduced with this risk in mind.

What amendments were made?

There now follows a rather underwhelming conclusion to this blog post, where I abruptly end my substantive analysis but also set out what amendments actually successfully made it to the Bill (whether by non-Scottish Government MSPs or by Scottish Government MSPs as alternatives to proposals other MSPs brought forward).

Stage 2 gave us the following successful amendments

Amendment 39 (allowing removal where the ground for possession relates to demolition of, or substantial work on, the property);

Amendment 48 (allowing affidavit evidence in relation to the “Landlord intends to sell property to alleviate financial hardship” ground);

Amendment 71 (requiring Scottish Ministers to take steps to ensure that tenants receive appropriate information, advice and support for the period during the regime is in force) and related Amendment 85 (requiring Ministers to set out those steps in their three-monthly reporting cycle); and finally

Amendment 87 (requiring Scottish Ministers to consult such persons as appear to them to represent the interests of tenants and landlords, and also local authorities in connection with aforementioned reporting, and a need to explain who the views of consultees were taken into account by the Scottish Ministers in a report).

[Yes, a lot of amendments didn’t make it, which can be seen from the numbering of those that did.]

Stage 3 gave us the following amendments:

Amendment 2, relating to rent increases in the social housing sector, such that the Government must set out by mid-January 2023 (as part of the programmed three-month reporting requirements) whether they propose to (a) retain the rent freeze (by keeping the permitted rate at 0%), (b) increase the permitted rate, (c) make regulations for the expiry or suspension of the rent freeze in the social sector.

Amendments 4 and 5 regarding permitted rent increases, requiring rent increase paperwork for PRTs and assured tenancies to include a statement that the rent payable does not increase unless and until the relevant rent officer makes an order determining the rent or, where the order is appealed to the First-tier Tribunal, it makes an order determining the rent. [Incidentally, all the Tories voted against Amendment 4, as did Alex Cole-Hamilton of the Lib Dems, but he did so in error and put that on record. He voted for the (mirror) Amendment 5 though.]

Amendments 7, 11 and 12 (allowing private sector eviction for someone who is no longer an employee) and Amendment 9 (allowing social sector eviction by an islands council as an education authority). Other amendment attempts relating to eviction in the context of mortgage enforcement by a secured creditor and the level of substantial rent arrears were also discussed, but did not make the cut.

Amendments 15-18, relating to the new private sector landlord ground for possession in relation to financial hardship. As explained by Mark Griffin MSP in the Chamber, these provide across the private sector some further examples of what a landlord would need to provide to the relevant tribunal to demonstrate their financial hardship when seeking to evict in order to sell or live in a property, which now goes beyond a simple affidavit from the landlord and can also now include: a letter of advice from an approved money advisor or local authority debt advice service; a letter of advice from an independent financial advisor; and a letter of advice from a chartered accountant.

“An inquiry into local authority duties to the homeless: Dafaalla v City of Edinburgh Council” – article for the Juridical Review

I have a Case and Comment piece in the new issue of the Juridical Review, the law journal of the Scottish universities, on a recent judicial review action relating to homelessness law.

On 5 July 2022, the Inner House of the Court of Session refused a reclaiming motion (i.e. an appeal) by City of Edinburgh Council, and approved an earlier Outer House decision to the effect that it had not fulfilled the statutory duties it owed to a homeless person (and his family). Here is a PDF of the opinion of Lady Dorrian for those who wish to go straight to the source.

The obligations of local authorities flow from the Housing (Scotland) Act 1987, the home of Scotland’s homelessness regime. In terms of that statute (as amended), there is a duty on all local authorities to investigate the circumstances of someone who applies to them for accommodation or assistance to obtain accommodation where they have reason to believe they are homeless or threatened with homelessness. Further, they must offer temporary accommodation and, if eligible, permanent accommodation to applicants.

In this case of Dafaalla v City of Edinburgh Council the applicant was seemingly eligible for accommodation, but had refused previous offers of permanent accommodation from the relevant local authority and had in fact been removed from temporary accommodation in January 2020. He then applied again at the start of the pandemic in March 2020, noting his medical conditions put him at increased risk of severe illness should he contract coronavirus and making his current arrangement where he and his family resided where they could from night to night untenable. The local authority did not entertain this fresh application, being of the view that its duties under the homelessness legislation were spent. As noted above, and as discussed in more detail in the article, the Outer House and then the Inner House of the Court of Session disagreed, ruling that the local authority remained bound by the statute and as such just because someone had refused accommodation in the past that did not mean they would never be able to get accommodation ever again in the future.

This was the first time the matter of what might be termed repeat applications came before a Scottish court. There has been some English case law though. Whilst there are some differences with the Scottish and English homelessness regimes – a point that led to some discussion in proceedings – the general similarity and shared history of homelessness law in Great Britain means English authorities can often be used in Scotland. The relevant English decisions developed a principle as to when an apparently new (further) application by someone for accommodation could be treated as “no application”. In the circumstances of a local authority receiving such a repeat application, the local authority can only be taken to be complying with its obligations under the homelessness legislation if that further application was based on the same facts as the one that preceded it. Applying that to the case at hand, Lady Dorrian was of the view the local authority here was wrong to not open up inquiries in relation to this particular repeat application.

The case has been welcomed in some quarters. Unsurprisingly, Shelter Scotland were amongst those putting the kettle on and declaring the case very welcome indeed, per this piece by Fiona McPhail in Scottish Legal News. That being said, there are some potential resourcing concerns for local authorities, particularly in relation to the provision of temporary accommodation whilst inquiries are being made. That duty will now unquestionably apply for a repeat applicant unless that person’s application is patently the same application as the one they made previously. Resourcing challenges aside though, there are wider policy and legal pushes towards adopting a sympathetic approach to the generally narrow category of those who genuinely do need to make repeat applications, including a backdrop of human rights instruments such as the right to “an adequate standard of living…including housing” (through the International Covenant on Economic, Social and Cultural Rights, Article 11).

All of this is discussed in the article which is available on Westlaw or in your local law library, with the citation Malcolm M Combe, “An Inquiry into Local Authority Duties to the Homeless: Dafaalla v City of Edinburgh Council” 2022 Jur. Rev. 167. I’m afraid it is subject to an embargo for the next year, at which point an open access version will appear on Strathclyde’s academic repository.

Finally, I’d like to think Peter Robson, Adrian Stalker and David Anderson for their comments on the article. This was my first dalliance with homelessness law for a publication and I am grateful to them all for their time.

2022 Land Rights and Responsibilities Statement

The Scottish Government has just published its updated Land Rights and Responsibilities Statement (LRRS).

This comes five years on from the original Land Rights and Responsibilities Statement, which itself followed on from the Land Reform (Scotland) Act 2016.

First out of the traps to comment on this was, I think, Emma Cooper of the Scottish Land Commission. Her blog post is available on the Commission’s website.

I’m not going to offer as much analysis as she does in my own blog post. All I plan to do here is to highlight the differences between the old and the new versions of the “Vision” and the “Principles” of the LRRS, plus a few throwaway remarks. I’m not even going to offer much speculation about what these changes will actually mean in practice. What I will note in passing is that the current rather woolly effect of the LRRS may change if and when a new Land Reform Bill is enacted, all as discussed in my earlier blog post about the current consultation exercise on that proposed legislation. Incidentally, the consultation period for that has been extended, until 30 October 2022.

Vision

The new Vision, with changes emboldened, is as follows:

A Scotland with a strong and dynamic relationship between its land and people, where all land contributes to a modern, sustainable and successful country, supports a just transition to net zero, and where rights and responsibilities in relation to land and its natural capital are fully recognised and fulfilled.

As to these changes, community bodies under the existing Land Reform Acts already have to be geared towards sustainable development before they can acquire land under one of the community rights to acquire and then need to continue to comply with that requirement, so a nudge towards all landowners being sustainable might be seen as consonant with that.

Meanwhile, “just transition to net zero” now gets a nod, as does “natural capital“. Unscientifically, these phrases feel like newer lingo to me, and it is interesting to see these words working their way into the LRRS. What this will actually mean is not something I feel able to comment on in this “shooting from the hip” blog post, save to note that land use and what land users do with natural capital will clearly have an effect on whether Scotland can achieve what it wants to achieve in relation to its net zero goals, and in turn whether it can do so in a way that does not, for example, exclude people who might be particularly affected by changes in land use and land ownership from meaningful involvement in projects.

Principles

The Vision is followed by Principles, which now number seven rather than six. There is a new Principle 5, and there are tweaks to four existing Principles. Again, changes are emboldened.

1. The overall framework of land rights, responsibilities and public policies should promote, fulfil and respect relevant human rights in relation to land, contribute to public interest and wellbeing, and balance public and private interests. The framework should support sustainable economic development, protect and enhance the environment, support a just transition to net zero, help achieve social justice and build a fairer society for the common good.
2. [unchanged]
3. [unchanged]
4. The holders of land rights should exercise these rights in ways that take account of their responsibilities to meet high standards of land ownership, management and use. Acting as the stewards of Scotland’s land resource for future generations they should contribute to wider public benefit, sustainable growth and a modern, successful country.
5. Land ownership, management and use should deliver a wide range of social, environmental, economic and cultural benefits.
6. There should be improved transparency of information about the ownership, use and management of land, and this information should be publicly available, clear and contain relevant detail.
7. There should be greater meaningful collaboration and community engagement in decisions about land.

Instant thoughts include: a reference to the common good in Principle 1 will please progressive property theorists; holders of land rights don’t get an automatic pat on the head in Principle 4, they should actually strive to do stuff of wider public benefit; and Principles 6 and 7 are less about changing things up, rather they are declarations of what should be happening.

I’ll leave it at that for now. I’ve a feeling this won’t be the last word on this particular matter though.