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Coronavirus (Scotland) (No.2) Bill – housing amendments

20. May 2020 · 6 comments · Categories: Housing, Human Rights, Legal affairs, Politics

This is a brief blog to explain the background to the rented housing amendments I lodged at Stage 2 of the Coronavirus (Scotland) (No.2) Bill on Tuesday 19 May and those I intend to lodge at Stage 3 to be considered on Wednesday 20 May.

The Coronavirus (Scotland) (No.2) Bill is the second piece of emergency legislation to come before the Scottish Parliament. The first was the Coronavirus (Scotland) Act passed in a single day on 1 April.

Both pieces of legislation are designed to respond to the challenges posed by Covid-19 and typically make some administrative changes to how the courts and public bodies work as well as some more substantive policy changes in housing, licensing and justice.

Many people are facing new hardships due to job losses, declines in incomes and wider insecurities. These include renters who, like everyone else, are required to stay at home but whose security in their home its subject to laws on housing tenancies and the attitudes of landlords.

Responding to this, the first Act extended the period of notice required to be given by a landlord to a tenant if they wished to evict them. This was designed to ensure that renters could not be evicted during the pandemic. These reforms, however, did nothing to stop evictions being initiated during the so-called emergency period. I lodged a series of amendments to prohibit any evictions being sought during the crisis (not simply require longer notice periods). These amendments were rejected by Parliament.

Since 1 April it has become clear that longer notice periods will not be sufficient to deal with the hardship likely to be faced by many tenants – hardships that will extend beyond the emergency period when landlords will, if nothing changes, be within their rights to seek to evict tenants once again on the grounds of rent arrears that may have accrued as a result of hardship during the crisis.

So, when the new Coronavirus (Scotland) (No.2) Bill was introduced to Parliament on Monday 11 May I took the opportunity to propose amendments that would seek to deal with the post-covid period. I notified the Housing Minister on Tuesday 12 May of my intentions and invited him to discuss my proposed amendments with a view to potentially supporting them at Stage 2 (or stating why he could not).

I received no response.

Thus I lodged amendments 16-20 which did four main things.

Amendment 16 established a tenant Hardship Fund to respond to tenants in particularly acute distress.

Amendment 17 sought to freeze rents for two years.

Amendment 18 provided that in certain circumstances (to be seat out by Ministers) rent liability for some tenants facing particular hardship could be extinguished.

Amendments 19 and 20 were deigned to ensure that any rent areas accrued during the crisis would continue to be payable to landlords but could not be ground for eviction. This would prevent tenants losing their home but they would continue to be liable to pay any rent arrears accrued.

A number of parties including social housing interests wrote to the Committee with their concerns. I was not copied in to any of these representations and thus was unable to respond to them.

All the amendments were defeated by SNP and Conservative members of the Committee with the Liberal Democrat member supporting three of them and opposing two of them.

The arguments can be seen in the draft Official Report of the Meeting. All the housing amendments were dealt with at the beginning of the meeting.

Debate now moves onto Stage 3, the amendment deadline for which is 0930 on Wednesday 20 April. I am lodging a similar suite of amendments again but further amended to reflect objections made at Stage 2.

Amendment 16 will be taken forward by Pauline McNeill MSP (note that these numbers relate to the Stage 2 amendments, the amendment numbers for Stage 3 will be different)

Amendment 17 will now apply only to the private rented sector and the baseline date will be 1 April so as not to disadvantage landlords who have reduced rents during the crisis.

Amendment 18 now makes clear that writing off rents is only for tenants facing unusual or extreme hardship and it will be for Ministers to define this in regulations. It is NOT and NEVER was framed as a broad writing off of rent.

Amendments 19 and 20 now apply only to the private rented sector and make explicit that arrears can only be disregarded for the purpose of evictions (but remain payable) if the arrears are directly liked to coronavirus.

The redrafted amendments focus the intentions more explicitly, respond to objections and remain a modes but important suite of reforms designed to afford proportionate protections to tenants facing hardship because of factors beyond their control.

Scotland still lags behind many continental European countries in tenants rights and politicians continue to instinctively protect propertied interests rather than the interests of tenants. Since the propertied class have assets, they are relatively well off. For tenants, however, we are talking about their homes, the schools their children attend and the jobs they have. Tenants stand to possibly lose all of this and be kicked out of their homes. Landlords will still have a valuable asset.

It is time to stand up for the human right to a home.

Stop Colin Brown being Evicted

16. December 2019 · 2 comments · Categories: Housing, Human Rights, Legal affairs

Over the past few months I have been assisting a constituent to resist a Notice to Quit served on him to evict him from his home. I have set a Crowdfunder up to raise funds to pursue a legal case on human rights grounds to halt the eviction of 67 year-old Colin Brown from his home of 27 years in Leith, Edinburgh.

We are raising funds via Crowdjustice here https://www.crowdjustice.com/case/colinbrown/

Colin’s landlord is a company called Express Investment Company Ltd. The company owned 29 residential properties as at March 2018 and is disposing of all of them. In the case of eleven tenants who have secure tenancies, their homes have been sold with the sitting tenants remaining in their homes. Notices to Quit on the remaining properties have been served and the tenants have left. Colin Brown is the last remaining tenant. He is challenging his eviction in the First Tier Tribunal at a hearing on 17 January 2020.

This crowdfunder is not concerned with this tribunal hearing but with a wider planned challenge to the Housing (Scotland) Act 1988 on the grounds that in the circumstances of this case, the legislation violates Colin Brown’s human rights under the European Convention on Human Rights (Article 8 Right to Respect for Private and Family Life and Article 1 of Protocol 1 Protection of Property).

We believe that it may not be proportionate under Article 8 to evict a tenant who is 67 years old and has lived in his home for over 27 years. We believe that it may violate Colin’s rights under Article 1 of Protocol 1 as it may be disproportionate to remove his property rights (the 27 year tenancy) in favour of a corporate landlord who by definition cannot e.g. live in the property.

Why does this matter?
This case clearly matters for Colin Brown but it could also be of wider significance to the 15% of the Scottish population who live in the private rented sector. We believe that there are elements of private tenancy law that do not adequately uphold the human right to a home, to a private and family life and to possessions because it is too easy in too many cases to evict a tenant at short notice.

What do we propose to do?
We propose to obtain an Urgent Opinion by a leading Advocate as to the likely grounds and chances of success of this action. We have already secured pro bono advice from a leading academic authority in the field of ECHR.

How much we are raising and why?
We propose to raise £10,000 to secure this Opinion and to review the options open to use once it has been given. if we then decide to proceed to litigation, we will launch a new and separate crowdfunder.

This is about the worst time of year to ask anyone to donate money but Colin faces eviction and too many other private tenants live insecure lives. Thank you for whatever support you are able to provide.

Crowdfunder here https://www.crowdjustice.com/case/colinbrown/

Tackling the Misuse of Rights Rhetoric in Land Reform Debate

13. April 2015 · 146 comments · Categories: Democracy, Human Rights, Land Reform, Land Rights, Legal affairs

Scottish Land and Estates, the organisation that represents some landowners in Scotland, attracted a fair bit of press coverage last month for their claim that potential reforms to Scotland’s agricultural tenancy laws could leave the Scottish Government open to compensation claims of £600 million (see Telegraph, Press & Journal, Herald). (1)

The claim was made in written evidence to the Rural Affairs, Climate Change and Environment Committee on 25 March 2015. The £600 million figure was derived from a study undertaken for SLE by estate agents Smiths Gore which purports to calculate the potential loss faced by landowners were reforms to be enacted.

The heart of the matter, however, is not the quantum of any possible claim. Compensation would only be relevant if there is a breach of the rights to property enshrined in the European Convention on Human Rights (Article 1 of Protocol 1). Moreover, such rights are not the only human rights that come into play when the Scottish Parliament enacts legislation.

As Professor Alan Miller, Chair of the Scottish Human Rights Commission, noted in evidence to the Scottish Parliament’s Rural Affairs, Climate Change and Environment Committee on 3 December 2014,

Professor Miller expanded on this point at a very well-attended Scottish Parliamentary meeting was last week hosted by Michael Russell MSP on the topic of land reform and human rights. In attendance were several MSPs, a Government Minister and more than six civil servants including one from the Crown Office.

The meeting was addressed by David Cameron from Community Land Scotland and Professor Miller. In their presentations and in the discussion that followed, it was evident that convention rights of the sort being deployed by SLE are only part of a much wider spectrum of human rights that Scottish Ministers and the Scottish Parliament have to balance in framing legislation. Section 7(2)(a) of the Scotland Act 1998 obliges the Parliament to observe and implement all international obligations including a wide range of human rights that are not covered by the ECHR such as the Covenant on Economic, Social and Cultural Rights and the Covenant on Civil and Political Rights.

This perspective is diligently and authoritatively explained in a paper by Dr Kirsteen Shields from Dundee University’s School of Law published in the current edition of the Scottish Human Rights Journal entitled “Tackling the Misuse of Rights Rhetoric in Land Reform Debate”. (download available here) All with an interest in the topic and, in particular, MSPs, would be well advised to read this carefully.

None of these arguments will be new to anyone with any experience of international development where, since 1997, the rights-based approach has been adopted not only by the UN but by Governments and NGOs around the world.

Indeed the UK Government is an enthusiastic advocate of such an approach in its overseas aid programme. The Scottish Government is also bound by the terms of the Scotland Act to do all in its power to further the realisation of international human rights obligations.

The claims by SLE that landowners could be entitled to £600m of compensation is predicated on there being a breach of ECHR. Crucially, SLE has not published the legal advice upon which the £600m claim is based. During the Parliamentary meeting, I called for the organisation to do so and share this with MSPs. I await developments with interest since only by understanding the legal basis upon which any claim rests, can we judge whether any financial consequences might flow. Moreover, as the above paper makes clear, there is more to human rights than the ECHR.

All of which led Cabinet Secretary, Richard Lochhead, to dismiss such claims at the Rural Affairs meeting on 1 April 2015. In response to suggestions that compensation claims might be as high as £1.78 billion, he said,

“First, the cabinet secretary is too broke to afford £600 million, let alone £1.78 billion. It would be more constructive and helpful in moving the debate forward if we had fewer silly reports such as that. SLE’s intervention and the figures in its report – which came when we are supposed to be saying that there is unprecedented collaboration and understanding of some of the key issues facing tenant farming – were unconstructive and unhelpful. It escapes me how those figures were arrived at. Given that we have not even published the legislation yet, there is no way for those with a strong view on one side of the debate even remotely to begin to work out any potential figures.”

Now that Parliament has been made aware of the wider human rights context in which it is, by law, required to work, it is to be hoped that such speculative and outlandish claims can be put to rest.

NOTES

(1) SLE is the representative body of 1351 landowners in Scotland who own 29% of Scotland.

(2) A fuller extract of his evidence..

“I am struck by how narrowly framed the debate has been. I am a little embarrassed that the way in which human rights has been interpreted is contributing to there being quite narrow parameters around debate about land reform and community empowerment. I will just make a couple of points about the perception of human rights and its relevance to the committee’s consideration of the bill, because I am sure that others have more value to add.

The language that is being used – I heard the term “absolute right to buy” being used again this morning – is very unhelpful, although I understand why people are using it. The European convention on human rights is not understood as providing a framework in which the legitimate rights of landowners and the public interest are reconciled and a balance is struck, with compensation being paid to the landowner if necessary. The right to buy is a qualified right: there has to be a competing public interest to override the right to peaceful enjoyment by the person who owns the land. Therefore, language such as “right to buy” or “absolute right” polarises the debate in an unhelpful way and does not reflect a clear understanding of what the ECHR contributes to the debate.

The bigger frustration that I have with the policy framework is this: human rights does not begin and end at the European Court of Human Rights in Strasbourg; there is a much broader framework of international human rights that are relevant to the Government and the Parliament, but which are largely invisible.

The Scotland Act 1998 calls on the Scottish ministers to observe and implement international obligations, of which one—but only one—is the International Covenant on Economic, Social and Cultural Rights, which places a duty on the Scottish ministers to use the maximum available resources to ensure progressive realisation of the right to housing, employment, food and so on—that is, it sees land as a national asset, which is to be used for the progressive realisation of what we might call sustainable development.

Therefore, what human rights provides is a broader impetus for land reform, rather than an inhibition, as is suggested in the way that the issue is currently couched—that is, in questions about whether a landowner has a red card that can be used with reference to the ECHR to stifle discussion about different use of the land. That is what is missing from the policy framework.”