Below is a statement from the Scottish Parliament in response to the votes this morning in the Committee on the Scottish Government Handling of Harassment Complaints on the publication of written evidence from Alex Salmond on the Ministerial Code.
I agree with this statement.
The default position for the Committee has always been that it would publish as much information as possible. However, the work of this Committee must respect relevant legal obligations, including court orders made in relation to a judicial review and a criminal trial, which are aimed at protecting the anonymity of complainers. Whilst the issue of publication is ultimately a matter for the SPCB, the majority of the Committee is in agreement that it cannot publish given the legal constraints on it.
The Committee’s statement on the handling of information and evidence has been made clear to all witnesses giving evidence to the Committee, and this was highlighted to Mr Salmond when the Committee first wrote asking him to contribute to its inquiry on 7 July 2020 and again in October and November 2020.
The Committee would have been able to publish Mr Salmond’s submission, in line with the Committee’s statement, as it has his other submissions to the Committee. However, publication of the full submission in a manner that is readily accessible has made it impossible for the Committee to make the redactions needed to meet its legal obligations. This is clearly regrettable and something outwith the Committee’s control, but the Committee will not breach its data protection obligations or the court orders. This reasoning has been made clear to Mr Salmond on numerous occasions.
The Committee has corresponded extensively with Mr Salmond and his legal representatives since July (when he was first asked to make this submission by early August). In addition to the issues around Mr Salmond’s submission, there are a number of conditions to his appearance that the Committee simply could never meet, including waiving threat of all legal prosecution. It is simply not within the Committee’s gift to make such a commitment.
The Committee will use the detailed submissions he had already made to the Committee, all of which have been published by Parliament in line with the Committee’s statement on written evidence, as well as the over 130 pages of documentation from his solicitor, to help complete its vital work. All of this can be used to question the First Minister and can be published in the Committee’s report.
Extract of decisions
Murdo Fraser proposed that the Committee agrees to publish Mr Salmond’s submission on the Ministerial Code phase of the inquiry with appropriate redactions.
The proposal was disagreed to by division: For 4 (Jackie Baillie, Alex Cole-Hamilton, Murdo Fraser, Margaret Mitchell), Against 5 (Alasdair Allan, Tom Arthur, Linda Fabiani, Maureen Watt, Andy Wightman), Abstentions 0.
Maureen Watt proposed that the Committee agrees that, given the legal constraints on it, it is not able to publish any version of Mr Salmond’s 31 December 2020 submission on the Ministerial Code.
The proposal was agreed to by division: For 5 (Alasdair Allan, Tom Arthur, Linda Fabiani, Maureen Watt, Andy Wightman), Against 4 (Jackie Baillie, Alex Cole-Hamilton, Murdo Fraser, Margaret Mitchell), Abstentions 0.
Margaret Mitchell proposed that given the committee cannot reach a unanimous position on the publication of Mr Salmond’s submission it should now go to the SPCB for decision.
The proposal was disagreed to by division: For 4 (Jackie Baillie, Alex Cole-Hamilton, Murdo Fraser, Margaret Mitchell), Against 5 (Alasdair Allan, Tom Arthur, Linda Fabiani, Maureen Watt, Andy Wightman), Abstentions 0.
Andy Wightman asked to record in voting that he is a member of the Scottish Parliamentary Corporate Body.
In July 2019, the First Tier Tribunal issued an eviction order for a tenant living in a small studio flat in Edinburgh. The ground for eviction was that the landlord – along with his wife and daughter – wished to move from their 3 bedroom house into the studio flat.
Schedule 3 (4) of the Private Housing (Tenancies) (Scotland) Act 2016 states that a landlord wishing to recover a property to live in is a mandatory ground for eviction – in other words, the Tribunal must issue an eviction order.
Relations between the landlord and tenant had been strained for some time. It was the tenant’s belief that the landlord wished to evict the tenant and was using eviction ground 4 – an intention to live in the property – as an excuse. The Tribunal found, as they had to, that the test of establishing ground 4 had been met and issued an eviction order.
The tenant left in January 2020. In February, a new tenant moved into the property. The landlord remained in his three bedroom house.
The evicted tenant applied for leave to appeal the Tribunal decision. This was rejected. With the support of the Community Help and Advice Initiative, the tenant then applied for a Wrongful Termination Order. This in itself is an unusual step.
Even more unusually, in November 2020, the Tribunal granted it.
Wrongful Termination Orders were introduced by sections 57 to 60 of the 2016 Act. A tenant who has been evicted but believes that the landlord misled them can apply to the Tribunal for a Wrongful Termination Order. A tenant can apply whether they were issued an eviction order by the Tribunal or if they simply left the property when asked to.
(And most tenants do simply leave – because they have found another home, or it suits them to do so, or they do not want to kick up a fuss, or they are wary of entanglement in the court system.)
There have been previous applications for Wrongful Termination Orders. Although Scottish Housing News reported that the November 2020 decision was the first successful application for a Wrongful Termination Order, an earlier decision in December 2019 saw the Tribunal award £1,200 to a tenant it judged to have been wrongfully evicted. In that case, the landlord evicted the tenant on the ground that they wished to live in the property – but then took Airbnb bookings instead of moving in.
The vast majority of eviction cases lead to a successful eviction order for the landlord. This has been true even during the pandemic, although it is not yet clear what effect the Scottish Government’s temporary transformation of mandatory grounds to discretionary grounds will have. Applications for Wrongful Termination Orders are rare, and success is rarer still.
How many tenants have access to the help and support needed to apply? How many tenants are even aware that this is an option? The vast majority of tenants do not even attend Tribunal hearings when summoned. Organisations like CHAI and Living Rent do phenomenal work, but their resources are stretched. There is a chronic lack of awareness among tenants about their rights.
There is also a fundamental flaw in the legislation. As the Tribunal pointed out in the decision notice, the bar set by the Scottish Government for proof of the landlord’s intention to live in the property is very low indeed. Coronavirus changes aside, you can legally evict your tenant by providing an affidavit stating that you intend to live there.
The reforms of the last few years have strengthened the rights of tenants in Scotland. Yet it remains the case that a landlord who wishes to be rid of a tenant can evict them on the strength of a promise that they are telling the truth. There is no follow-up. Nobody checks that they were telling the truth. It takes a tenant who has both the willpower to push ahead and the support of a charity to uncover a wrongful eviction. It goes without saying that most tenants do not have these resources.
The maximum penalty that can be imposed by the Tribunal in the case of a wrongful termination is six months’ rent. In the November 2020 case, £1,350 was awarded to the tenant – three months’ rent. The Tribunal took both the landlord’s continued dishonesty and the tenant being in rent arrears into consideration.
When a Wrongful Termination Order is issued, the Tribunal sends it onto any local authorities who have the landlord on their landlord register. This is significant because of the fit and proper person test that local authorities should conduct on prospective landlords. Clearly, a landlord who has deliberately misled the Tribunal is not a fit and proper person to hold a landlord registration. It is worth noting in this context that the landlord who was the subject of the 2019 WTO referred to above (who let the property as AirBnB despite claiming that they intended to live there) remains on the Landlord Register.
The rarity of successful Wrongful Termination Orders reveals the flaws in the 2016 act. A priority for the next government should be fixing this legislation so that the rights of landlords and tenants are properly balanced. The private rented sector is crying out for reform. The starting position of any reform should be that housing is a human right, that a tenant’s home is in fact their home and that they should only be evicted in the most exceptional circumstances.
In response to reports of Marine Scotland challenging Irish fishing boats in the 12-mile territorial seas around Rockall, I have lodged the following motion in Parliament. For more information on the legal backgound, see this blog by Richard Collins of University College Dublin and this guest SPICe blog by Richard Harrison. Further background is contained in Chapter 9 of The Poor Had No Lawyers.
Motion Number: S5M-23827 Lodged By: Andy Wightman Date Lodged: 06/01/2021
Motion Text: That the Parliament notes reports of the recent actions by the Marine Scotland patrol boat, the Jura, in boarding the Irish fishing vessel, the Northern Celt, and asserting authority over fishing in the 12-mile zone around the island of Rockall; understands that Rockall was annexed by the British Crown following advice from the Colonial Office and exercise of a royal warrant by Captain Connell of HMS Vidal on 18 September 1955, and that this was the last annexation of territory in the British Empire; further understands that the Island of Rockall Act 1972 incorporates Rockall as part of Her Majesty’s Dominions into that part of the UK known as Scotland as part of the District of Harris in the County of Inverness; considers that colonial annexation by the British Crown is not an internationally recognised means of establishing sovereignty over any territory, and calls on the Scottish Government to formally disclaim sovereignty over Rockall and invite the UK Government to initiate international dialogue under the auspices of the UN to establish the status of Rockall in international law.
I have resigned from the Scottish Green Party. My resignation letter can be read here and is outlined below.
Lorna Slater & Patrick Harvie MSP
Scottish Green Party
19b Graham Street
cc. Membership Secretary 18 December 2020
Dear Patrick and Lorna,
I am writing to tender my resignation from the Scottish Green Party with effect from Friday 18 December 2020.
For some time now, since I was admonished for attending a public meeting at Edinburgh University in June 2019, I have been saddened by the intolerance shown by some party members to an open and mature dialogue about the tensions and conflicts around questions of sex and gender in the context of transgender rights and women’s rights.
On Thursday last week it was made clear to me that if (as I was minded to), I voted for amendment 28 to the Forensic Medical Services (Victims of Sexual Offences) (Scotland) Bill, I would face complaints and disciplinary action leading to possible suspension, deselection or expulsion. On the evidence of the reaction to my attendance at the June 2019 public meeting, I took this prospect seriously.
I understand that the Scottish Green Party has a strong commitment to equalities and trans rights. However, some of the language, approaches and postures of the party and its spokespeople have been provocative, alienating and confrontational for many women and men.
It has become evident to me that the sort of open-minded public engagement I would like to see take place on this topic is incompatible with a party that has become very censorious of any deviation from an agreed line.
Put simply, I cannot operate in this kind of environment and Thursday’s vote and the discussions that took place around it were the final confirmation of that.
I remain committed to Green politics and will endeavour to work constructively with the Green Group in Parliament until dissolution. I also have important work to do on tenants’ rights, the climate crisis, land reform, local democracy and taking forward my European Charter of Local Self-Government (Incorporation) (Scotland) Bill.
Rising private rents across Scotland reveal the failure of the SNP’s flagship rent pressure zones policy and the need for proper rent controls, Scottish Greens housing spokesperson Andy Wightman has said.
In 2016, Scottish councils were given the power to ask Scottish Ministers to designate a Rent Pressure Zone (RPZ) to give them limited powers over rent rises. Despite rising rents and a global pandemic, councils have been unable to use that power.
A new paper by Lothian MSP Andy Wightman exposes the difficulty councils have had in gathering evidence to support a RPZ. It also evaluates what actions councils have taken to collect data and protect tenants from rent rises.
In response to an FOI, 18 councils did not provide any information on work on rental data or RPZs. Ten councils held basic information on private rents and 4 councils had gone further by commissioning their own research or initiating work on establishing a RPZ.
Commenting, Andy Wightman said: “Rents have outstripped inflation over the past decade. Councils have been unable to act to protect private tenants, even during a global pandemic.
“Clearly, giving councils the power to establish a RPZ without having to seek permission from Ministers would be a start, but Scotland needs a comprehensive system of rent control in order to protect private tenants from eye-watering rent rises.”
In September 2020, the Scottish Parliament held a debate on ‘dirty camping’. Many MSPs spoke out against the poor behaviour their constituents had witnessed over the summer. This behaviour was caused not only by a lack of understanding about how to interact with the land, but also by a lack of outdoor facilities. In a blog at the time, I commented on Scotland’s woeful outdoor infrastructure. Our public outdoor spaces often lack public toilets, basic camping facilities, access for disabled people and safe active travel routes.
Our country parks, regional parks and national parks are vitally important landscapes.
The Pentlands is just one of three regional parks in Scotland (the others being Lomond Hills and Clyde Muirshiel) set up under the Countryside (Scotland) Act 1981. Scotland has established no new regional parks since 1990, despite the powers still being in place to do so. Setting up a regional park signals an intention to manage the land for public recreation as well as conservation.
Christine Grahame MSP introduced a Member’s Bill in 2015 proposing to extend the boundaries of the Pentland Hills Regional Park, to include 100% of the range instead of 45%. The Scottish Parliament disagreed to the general principles of the bill and it fell – largely on the grounds of cost, a perceived lack of demand and a feeling that it was inappropriate for central government to concern itself with the operation of regional parks given that this responsibility rests with local authorities.
The City of Edinburgh Council manages the park on behalf of the three local authorities whose boundaries cross the park area. The Council is currently asking the public for views on access and camping in the Pentland Hills Regional Park.
The premise of this engagement exercise is that there has been “a rise in irresponsible wild camping, antisocial behaviour and a significant rise in car park usage” in recent months and years. Quite rightly, the Council have identified the provision of proper infrastructure as the solution. They are proposing:
Enhanced parking facilities at the four main car parks
Development of active-travel alternatives
Creation of Warden position with formalised camping area and toilets at Harlaw
Provision of improved toilet facilities
Introduction of parking charges
Unfortunately, the touted development of active travel alternatives appears to be little more than minor upgrades to the footpaths around the car parks and scenic areas. It is not clear whether the City of Edinburgh Council – which is the managing authority for the park – also has plans to create the kind of joined-up active travel network that would truly encourage people to choose walking or cycling over driving. The planned expansion of the car parks at Harlaw, Flotterstone and Threipmuir only underline the extent to which those wanting to access the Pentlands are encouraged to depend on their cars.
Prioritising active travel routes to the Pentlands would not only reduce congestion on access roads, but also benefit local businesses – the research is clear that people spend more when they leave their cars at home.
The council says that there has been an increased number of cases of anti-social camping at the reservoirs. It proposes a twofold solution. First, a warden to prevent camping around Harlaw Reservoir between March and October. Second, the establishment of a basic camping area for 8 – 10 groups on the north-east side of the reservoir. Those wishing to camp there would need to pay a “small charge”. Toilets and bins would be provided. The revenue from this would pay for the employment of the warden.
If we are to have camping permit zones at all in Scotland, they should be a last resort once all other methods of addressing poor public behaviours have been tried. Basic facilities such as toilets and waste disposal, funding rangers, investing in outdoor education – these are all ways to enhance how people use and relate to land. Drawing a line between which land can and cannot be accessed by the public undermines our statutory rights.
The provision of toilets is vital in enabling access to outdoor recreation opportunities – as well as preventing the obvious problem of mess. Proper toilet provision is even more important for marginalised groups in society – particularly women or people with gastrointestinal disorders. So of course I welcome the 10 additional toilets the council is proposing for the Pentlands.
However, I find it astonishing that these toilets will come with a charge. Years of cuts to council budgets have left us in a situation where even the most basic of facilities must be paid for at point of use. Proper financing of Scotland’s outdoor public spaces is essential – now more than ever.
Public parks in other parts of Europe provide better facilities; better habitats for wildlife; better cycle routes; and better access by foot or bike. Proper outdoor infrastructure opens up the countryside for everyone. Our impoverished and underpowered local authorities are simply unable to meet demand. Without action and fair funding from the Scottish Government, local authorities like the City of Edinburgh Council will simply have to do what they can with what they have.
The survey closes on 4 December 2020 and I encourage anyone who is interested to share their views:
This blog is designed as a stimulus to further discussion and debate over the serious harm test set out in the Bill. It will be followed by a further blog exploring some of the possible options to amend the Bill. Feel free to comment below or send your views directly to myself. Before proceeding, however, I should make a few things clear.
Firstly, I supported Scottish PEN and others who have been campaigning for a serious harm test but I write this as a lawmaker and not a campaigner and I want to get this right.
Secondly, the proposal for such a threshold was adopted early on in the Scottish Law Commission’s work on the Bill and has become an established part of the evolving proposals. Now that the Bill is in the process of becoming law, we need as a matter of principle to properly evaluate the arguments for and against and stress test the provisions as set out in the Bill.
Thirdly, my speech appended below is a speech is thus rhetorical in style. It was in part designed to ensure that the opposing view to the general consensus was given an airing on the public record in Parliament before the detailed Stage 2 amending process. I should add that the one other MSP who spoke and expressed reservations about the proposed test was Annabelle Ewing MSP who was a Minister responsible for civil law until June 20128.
The Bill creates a statutory definition of defamation but then states that in order to be actionable the harm has to be serious.
The Defamation Act 2013 in England and Wales, by contrast, defines defamation as causing serious harm to ones reputation and this by exertion, only serious harms can be pursued.
We need further debate on the three key questions which form a logical progression of consideration.
Should there be a statutory threshold for initiating legal action for defamation?
My view is that yes, there should be a threshold. Currently anyone can initiate legal action for alleged defamation and the allegations are presumed to be defamatory. Whether they are in fact depends (in contested cases) on an evidential hearing (a proof) to establish whether in fact the statement complained of was ever made and in what context, whether the statement bears the meaning alleged by the pursuer, whether it carries a defamatory imputation and whether there are any defences available to the defender.
The purpose of a threshold is to filter our frivolous, vexatious or malicious actions and give some measure of confidence to those who receive legal letters threatening action as to what tests will need to be met before an action can proceed.
In setting any threshold, one needs to be mindful of the need to ensure that it is not set too high and does not exclude those with legitimate complaints who feel that they have been defamed and wish redress. On the other hand it should not be set so low as to have no practical effect.
2. If there should be, what should that threshold be?
This is a critical question. There should in my view be a threshold but if we are going to define defamation as a statement that causes harm to someone’s reputation then is that not a sufficient threshold to be demonstrated at an evidential hearing before a full proof can take place?
3. If there should be, how should such provisions be framed in law?
Should such a threshold be incorporated into the definition as in England and Wales or should the threshold for actionability be separate from the definition? Should the kind of procedure to asses whether such a threshold has been met be left to the rules of procedure for civil cases to determine or should there be some statutory provision? Should there be statutory criteria for assessing whether the threshold has been met or should it be left to the Courts to determine in each case depending on the facts and circumstances?
The written and oral evidence from a number of witnesses during Stage Ione reflected on some of this questions in a broad sense as the debater at Stage One is focused on general principles. However, in my view we need further debate on both the principles in some more details and how the law is framed as we head to Stage 2.
Thank you Presiding Officer – I want to focus my remarks on the serious harm threshold because it is a significant change.
It exists of course in England and Wales in section 1(1) which states that
(1)A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.
The Bill before us, by stark contrast does not follow that straightforward formulation but instead defines a statement as defamatory if it causes harm but then in addition states that for it to be actionable that harm must be serious. In that respect I disagree with Adam Tomkins that Scots law is being brought into line with England and Wales and I’ll return to that.
Following the Supreme Court ruling in Lachaux, liability in defamation cannot be established by reference to inherent tendency of the words alone but has to have regard to the facts and circumstances.
And thus the Court will need to hear evidence on whether the alleged words written or spoken were indeed ever written or spoken, whether they bear the meaning alleged by the pursuer, and the reasons why, if defamatory, serious harm is or is likely to be caused
And that does requires an evidential hearing and thus there will need to be significant procedural rule changes to Scottish civil procedure to accommodate any pre proof evidential hearing.
I have four arguments against the serious harm test as
First, as matter of principle, we should not be shutting down civil law remedies for people without good reason. Someone for example who is defamed but only suffers harm is now to be denied redress as is someone who suffers repeated harms over perhaps a long period of time but where the threshold may never be met by any one instance.
Secondly, as a caution to those who think this may act as some kind of procedural hurdle – this will involve evidential hearing and associated expense.
In my recent £750,000 action I would still have been in Court for 6 days trying to thrash out whether in fact serious harm had ever been caused to the pursuer.
Thirdly, a serious harm threshold will not deter a litigant determined to damage someone. That’s what happened with me. It took a full proof to conclude that no harm at all had been caused and no financial loss had accrued to the pursuer.
And finally but very importantly, let us ponder what Parliament is being invited to do. Section 1(4)(a) states that a statement about a person is defamatory if it causes harm to their reputation. Incidentally this was not in the draft Scottish Law Commission Bill and the Scottish Government has never published an analysis of responses it got to its own consultaiton. But any such statement is only actionable if the harm is serious.
Presiding Officer, We are defining a civil wrong in statute then saying there nothing you can do about it. We are now seeking to deny civil justice to our constituents whose reputation has been harmed.
Is this even compatible with Article 6 of the ECHR?
Presiding Officer The threshold does little for defenders as full proof will still be required.
The threshold on the other hand does a lot for pursuers but in a wholly negative way and without any justification. This Bill risks denying legitimate pursuers their human right to a civil remedy for a wrong that we are defining as harm but about which they can do nothing unless they can prove that it is serious.
The Scottish Parliament is being asked to delay the implementation of regulations on smoke and carbon monoxide alarms. This follows an upswell in public concern over ‘new rules’ about fire alarms in privately owned homes.
But what, exactly, is Parliament being asked to delay, and why?
The tolerable standard is a basic level of repair that your property must meet in order to be habitable. Councils have powers to force property owners to bring their property up to the tolerable standard, as well as establish support schemes. However, the tolerable standard is not a statutory duty on owners; it is not a requirement to be fulfilled; it is not a building standard. A house without adequate loft insulation probably won’t meet the tolerable standard, but no council is likely to take action against a homeowner who does not insulate their loft.
If you rent out a property, you must meet the repairing standard. Unlike the tolerable standard, this is a duty – the property owner must provide a habitable home for their tenants. The repairing standard includes the provision of suitable fire and carbon monoxide detection devices. The 2019 Tolerable Standard Order was intended to bring safety standards for properties in the owner-occupier sector in line with the private rented sector.
The actual text of the order stipulates that, in order to meet the tolerable standard, houses must have “satisfactory equipment” for detecting fire and carbon monoxide.
What is ‘satisfactory’? The statutory instrument does not define it. Most properties with existing fire and carbon monoxide detection systems will meet the letter of the law.
one smoke alarm installed in the room most frequently used for general
daytime living purposes (normally the living room/lounge);
one smoke alarm in every circulation space on each storey, such as hallways and landings;
one heat alarm installed in every kitchen;
all smoke and heat alarms to be ceiling mounted; and
all smoke and heat alarms to be interlinked.
This mirrors the specification in the guidance available to private sector landlords on fire detection systems. The difference is that if a landlord does not meet the repairing standard, their tenants have access to legal redress through the First-Tier Tribunal (Housing and Property Chamber).
Guidance is not scrutinised by Parliament. It is not voted on. It is what the government produce in order to communicate legislation to those affected. In this case, homeowners. And how did the government communicate these proposed changes to homeowners?
I submitted a written question last month to the Scottish Government asking “what specific steps it has taken to inform homeowners of the changes introduced by the Housing (Scotland) Act 1987 (Tolerable Standard) (Extension of Criteria) Order 2019 since January 2019, and when it took these steps.” In reply, the Minister for Housing and Planning told me:
“Following the changes to the tolerable standards, announced in March 2018, there was significant media coverage. The changes were further reported as they passed through Parliament, and the regularly updated online Q and A has been available since March 2018.
We have worked closely with the Scottish Fire and Rescue Service (SFRS) who have continued to publicise the changes via themed social media campaigns, all linking to what the requirements mean for home owners.
Further information, literature and advice are also provided during SFRS’ Home Fire Safety Visits.”
Is media coverage, an online Q&A and social media coverage sufficient? It was clear from the outcry last month that many homeowners had no idea these changes were coming. Every homeowner in Scotland receives a council tax bill – the perfect opportunity to communicate changes in law affecting homeowners.
A further consideration is insurance. As ever, individual insurers will have decisions to make about whether a property is insurable. If a property meets the letter of the law, but not the guidance, will homeowners face issues with cover?
The Scottish Government now has a number of options before it. It could – as it has proposed – delay the date at which the order comes into force. Kevin Stewart wrote to the Local Government and Communities Committee on 20th October to notify the committee that he would be asking Parliament to approve a 12 month delay. Is 12 months enough? And will the guidance be revisited? How will these changes now be communicated? How will the government ensure that unscrupulous companies do not take advantage of vulnerable people concerned about whether their fire alarms are up to spec?
This legislation was introduced in the shadow of Grenfell, as part of the drive to improve fire safety standards in our homes. The Scottish Government’s intention was to ensure that fire safety standards were the same whether you rent or own your home. Such a change should have been communicated clearly to homeowners at the earliest possible opportunity together with a clear understanding of what people did or did not need to do. The Scottish Parliament will probably extend the deadline but Government is in for some tough questions as to why it failed to communicate these changes more effectively and timeously.
I am delighted to be with you this morning at our autumn conference.
As we prepare for a Scottish election next year and local elections the year after, green politics has never been more important. With other parties now admitting to the existence of the climate emergency that we recognized long ago, it is vital that Green voices are heard loud and clear in mapping the way forward for our planet and all who share it with us.
We have come a long way.
The first time I was invited to address the SGP conference was in 1996 when it was held in a Guest House in Aberfeldy. I had just published ‘Who Owns Scotland?’
Plenary sessions were held in the lounge in front of the fire.
And although our conference today is bigger and more digital, the arguments I set out in 1996 over our land remain.
20 years of devolution have barely scratched the surface of the radical redistribution of power over our land and natural resources that’s sorely needed.
Much like 25 years ago, half of the country’s privately-owned rural land remains owned by a mere few hundred landowners.
And much like 100 years ago, much of Scotland’s land mass is kept barren as intensively managed grouse moors, damaging ecosystems and destroying wildlife.
But friends, it doesn’t have to be that way.
Over these past 25 years it’s been clear to me that the 4 core green principles of equality, peace, environmental sustainability and radical democracy hold the answers to this and many other problems.
After all, most folk don’t routinely seek out or actively pursue inequality or conflict.
Most folk want a world that is green with clean water, clean air and abundant nature.
They want a world that is just and fair to all.
And they want to play a part in shaping the world in which they live.
What stands in their way? Populism, narrow nationalism, totalitarianism, and the insane imperatives of capitalism itself all seek to corrupt and frustrate the realisation of these basic human instincts.
Democracy provides a vital path through this corruption. Not just democratic parliaments and councils but Democracy in the workplace, in political institutions, in finance, and of course, in land.
Fundamentally green politics is about redistributing power from the few to the many, from capital to workers, from elites to the public, from corporations to customers and from centralised government to decentralised government.
Tony Benn famously asked five questions of those who claimed to enjoy a position of power:
“What power have you got?
Where did you get it from?
In whose interests do you exercise it?
To whom are you accountable?
How do we get rid of you?”
Benn would explain that: “Anyone who cannot answer the last of those questions does not live in a democratic system.”
As some of you may know I first got involved in environmental politics whilst studying forestry at Aberdeen University.
In the 1980s there was a raging controversy over commercial afforestation of the deep peatlands of Caithness and Sutherland. This was driven by tax breaks for the wealthy and whilst I was as concerned about the environmental issues as many others, it was the politics of the situation that really caught my attention.
The Chief Executive of the company responsible for this activity gave a lecture and I asked him why the Government was giving millions of pounds in tax breaks to wealthy people in London to plant trees in the far north of Scotland?
Why, for example, did the Government not use the money it was foregoing in tax receipts to provide grants to the farmers and landowners who owned the land in Caithness so that they could plant the trees?
I don’t recall his answer but afterwards, my Professor pulled me aside and suggested it was not a good idea to ask such political questions.
And so I decided that asking such questions was in fact a splendid idea and, the more it made folk uncomfortable, the more I enjoyed it. Indeed it is a good life lesson for all of us. Never stop questioning things.
This was an environmental conflict – over the use of what to some people was cheap land from which to derive a profit but to others was an precious habitat, and one of the largest carbon sinks in Europe
It was, in short, a power struggle.
But has much changed?
Who has been funding current reforestation efforts trumpeted by the Scottish Government? An oil giant, Shell.
Shell’s £5m so they can advertise their green credentials on petrol pumps is greenwashing, pure and simple.
And the recent Forestry Act perpetuates power in Edinburgh. Wealthy private interests continue to be privileged in Scotland’s forestry sector.
Equally lucrative tax breaks remain, together with an equally generous grants scheme that is largely captured by wealthy land owners.
For example, if you have a spare £7.5 million, you can buy Kinrara Estate in the Cairngorms National Park and then pocket £2-3 million of public money to restore woodlands.
No wonder our pattern of forest ownership remains skewed.
Indeed Scotland has the most concentrated pattern of private forest ownership and the lowest proportion of the population involved in owning forests in Europe.
Forest industries in Sweden and Finland for example include huge member-owned industrial co-operatives such as Sodra and Metsalitto corporation
In France there are 11,000 local forest communues owning around 3 million hectares of forest – a fifth of French forests.
As in so many matters of public policy, Scotland is not a normal European country even with the devolved powers we have.
And so I am pleased to announce that in the next couple of months Scottish Greens will launch a campaign called Woodland Nation – a plan to become a normal European country through a socially responsible and environmentally restorative programme of reforestation owned and controlled by local people.
This will not be achieved by funneling grants and tax breaks to the wealthiest nor does the current Cabinet Secretary, Fergus Ewing, who is little more than a lobbyist for powerful private interests, have any interest in such a programme.
Scottish Greens will be making the case for fundamental change.
With a target to reach 40% woodland cover by 2040, achieved by a programme involving communities, local authorities and local people to create a Woodland Nation.
A programme where 50% of all grant support will be targeted at community and local forestry projects.
A programme linked to a strategic programme of community land acquisition across Scotland secured at economic value and not the inflated market value associated with scottish land.
We will promote new national public forests financed by community shares but managed locally for local benefit.
We will make it mandatory to restore natural forests on our most denuded landscapes.
And we will reform the governance of Forestry and Land Scotland so that it is accountable to elected regional boards.
And all of this needs to be tied into an industrial programme that provides high quality, energy efficient timber homes for rural families.
In short, land must be owned and used in the public interest and for the common good.
But today, up to a fifth of Scotland’s land mass is currently used as a playground for the ritual slaughter of grouse and other wildlife for the privileged. Let us be clear. Grouse moors have no place in a Scotland that needs communities empowered and forests and peatlands restored.
Scotland also has substantial renewable energy potential but much of the industry is now dominated by large multinationals rather than community and local businesses, and just this week we have seen the betrayal of the workers at Bifab, denied any role in supplying the enormous new offshore wind farm being developed off the coast of Fife.
And For all that we like to compare ourselves with similar European countries such as Denmark, the current heat networks bill going through Parliament is a reminder of how far we fall short
Denmark’s district heating schemes are the responsibility of the municipalities who also own most of the pipe network with consumer-co-operatives owning the rest.
And by law, in Denmark all suppliers of heat must operate on a not-for profit basis.
In contrast the proposed arrangements in Scotland exclude local communities, centralise power with Ministers and there is no not-for-profit requirement.
What is normal in Denmark should be normal here.
And in no area of public policy is our departure from European norms so pronounced as in housing.
Scotland continues to face a housing crisis.
Homelessness is on the rise.
Many young people in particular are struggling to afford housing being forced into the private rented sector with exorbitant rents in places like Edinburgh.
We are failing.
Because housing is framed as a property rights issue rather than a human rights issue.
Because housing is seen as a financial investment rather than a place to call home
Back in 2019 a constituent, Colin Brown, got in touch with me.
Colin was a tenant of an Edinburgh property company called Express Investments Ltd who owned multiple properties across the city.
Colin received a notice to quit his home of 27 years in May 2019. He refused to leave and I assisted him with contesting the eviction order at the tribunal. Colin lost the case but is thankfully now safely rehoused.
Whenever I met Colin, the first thing he would always say to me is “this is my home, it is not a property”.
Yet even if Colin had been covered by the new private sector tenancies introduced in 2018, he would still have been facing eviction.
Because the reason the landlord wanted to evict him was so that they could sell his home.
Colin had no objection to his landlord selling the property. He merely wanted the right to remain in this home. But the law says that the landlords right to sell trumps the tenants right to a home.
In few other countries in Europe are the rights so skewed so much in favour of landlords.
In few other countries in Europe do housing costs contribute so much to poverty.
The Recent Edinburgh Poverty Commission found that 29% of households in this city were living in poverty solely due to housing costs.
In short, there is no pathway to eradicating poverty that does not run through housing.
And that is why Greens will be proposing a new deal for Scottish housing.
Realistic and effective rent controls including the right to request a rent reduction.
An end to eviction grounds such as the wish of the landlord to sell.
Fairer taxation and a replacement for the regressive council tax.
Elimination of the speculative volume house building industry that denies consumers any say in their housing options – unlike normal European countries where the bulk of new housing is self-procured to higher standards.
A right for councils and communities to acquire land at its existing use value – not the inflated value arising as a consequence of planning permissions.
And a significant expansion of affordable housing – like normal European countries where in Vienna for example over 60% of households live in affordable social housing.
To conclude friends:
From our land and forests, to renewable energy and housing, Scotland is not a normal European country.
The odds are always stacked in favour of the wealthy, whether they be the big land owners, landlords, or corporates.
And as a result, the rich get richer and the poor poorer.
This is not an accident. It’s a policy choice, and for all their talk about building a wellbeing economy, over the last five years of this Government, time and time again we’ve seen the SNP choose to side with powerful vested interests rather than the public interest.
Standing up for landlords when the pandemic hit us whilst joining with the tories to block my proposals for better protection for tenants. In no other country in Europe would a Private Sector Resiliance group set up to safeguard tenants during the coronavirus pandemic have no representatives of tenants on it.
And that’s why if you believe in a building a fair and green Scotland then the Greens are the party for you.
The reason there is a global green movement is because the planet is imperilled. Our economic and political systems are designed for endless growth on a finite planet.
And we need to work together across international boundaries in solidarity.
To secure the future for the planet, Greens have long recognised the need for social, economic and political change.
That change involves of course Scotland becoming a self-governing independent nation. But it also involves creating genuine self-governing local government and communities.
And it involves doing what we can within the devolved settlement to make Scotland a normal European country in how we run our communities, plan our public transportation, own and govern our land and natural resources and organise our housing systems.
Conference, it is the Scottish Greens who have been working for Scotland. We can deliver a fair and greener European country. Through democratizing society. By giving power back to workers and communities who are fighting for a fair, just and sustainable Scotland.
So colleagues Take heart from their efforts and believe that together we can make the kind of progress in the year ahead that will make a truly green normal European Country.
The problems caused by the rampant expansion of short-term letting in Edinburgh are by now well known. Since launching my #HomesFirst campaign in November 2017, I have been arguing for proper regulation of this activity.
During this time, I have spoken with people who no longer have any permanent neighbours. I have listened to owners of short-term lets who rely on the income to supplement their pension or wages. Along with other Edinburgh MSPs, I have written to the Scottish Government to ask them to act. I have made attempts to amend legislation to help combat the problems experienced by my constituents. During the pandemic, I have tried to amplify the concerns of those constituents about short-term lets with shared entrances continuing to operate.
So I am pleased that the Scottish Government is now consulting on regulations relating to control areas and licensing of short-term lets.
The deadline for responses is Friday 16th October.
In this blog I will discuss the Scottish Government’s proposals as regards short-term lets, as well as some of the weaknesses in the plan. At the end of the blog is a link to my consultation response.
What do we mean by “regulation”?
The proposals in the consultation cover two important regulatory processes – licensing and planning. Put simply, licensing is a process whereby individuals are licensed to carry on certain activities such as operating a taxi or selling alcohol. In this case, the proposal is to give local authorities the powers to license the operators of short-term lets and the consultation sets out a series of questions about how this might be done.
Planning, on the other hand, is a process whereby planning authorities regulate the use of land and property. In this case the planning reforms involve how to establish short-term let control areas – zones within which any short-term let will require to have planning consent.
In short, planning is about whether a property can be used as a short-term let and licensing is about ensuring that the operator of any such premises is a fit and proper person who has the appropriate safety and other measures in place.
The consultation is not about the principle of these two regulatory measures but about the detailed content of each. Thus it is quite technical but detail is important.
On the whole, the plan is comprehensive and well-thought out. Of course, all of this is subject to the consultation, but it is likely that the following will come to pass.
Planning control areas
The Scottish Government plans on allowing councils to designate short-term let control areas. Unlike the failed rent pressure zones, they will use a tried and tested process along the lines of establishing conservation zones. You can expect that some councils will be very quick off the mark in requesting these control areas.
What will those control areas mean? Within a control area, short-term lets must have planning consent. No ifs, no buts. Of course, it has been my position all along that operating a dwellinghouse as a commercial business should always require planning consent. Within control areas, the situation will now be crystal clear.
Short-term let licensing
Short-terms will now be subject to local authority licensing. The consultation document is clear:
“All short-term lets will require a licence.”
From April 2021, local authorities will be able to introduce licensing schemes. All local authorities must have a scheme in place by April 2022. There will be both national conditions and local conditions of holding a licence. Local authorities can apply conditions to all short-term lets in their area, to some short-term lets (e.g. in tenements) and to individual licensees.
Short-term lets will have to be in good repair. They must be certified safe when it comes to fire, gas, electricity, legionella and carbon monoxide. The licence must be displayed in the accommodation. The licence number should be included in online listings. The consultation document mentions various other conditions that local authorities could apply locally, relating to anti-social behaviour, noise, greeting guests, litter and data collection. Local authorities will collect application fees as well as annual monitoring fees.
Operating without a licence or breaching licence conditions will attract fines of between £200 and £50,000.
Finally, if the short-term let requires planning consent, that will be a mandatory pre-condition of holding a licence.
This is all extremely welcome.
However, there remain some key issues that need to be tackled
First, it does little in the way of directly combating the number of short-term lets. The root problem of commercial short-term lets operating in the numbers that we have seen in city centres is that they take homes away from the housing supply. It is vital therefore that the City of Edinburgh Council adopts planning policies, ditched in 2011, that prioritise use of housing for homes – the #HomesFirst approach.
Second, licensing is welcome but it is not a panacea. I hope that the energy of short-term let campaigners will mean a greater degree of scrutiny is brought to bear on short-term let licensing than in other areas. I know from my casework as an MSP that residents who wish to object to houses in multiple occupation (HMOs), for example, often face a long uphill battle.
Third, the grace period – the time between a local authority establishing a licensing scheme and short-term let operators needing a license – is up to 2 years. Many residents of short-term let hotspots already feel like action has been slow. It will be up to councils to speedily implement a licensing scheme.
Fourth, planning enforcement is an overlooked but important mechanism for combating problems like short-term lets. Planning teams have been subject to large cuts to their budgets in recent years. Checking whether planning control has been breached takes time and resources: visits to the property, desk research, processing reports from neighbours, identifying and contacting the owner.
Fifth, I am pleased that local authorities will have to maintain a register of licensed hosts. It is not clear whether this register will be open to the public, like the HMO register, or with limited access, like the landlord register. It is not possible to use the landlord register to view a list of properties owned by a particular person. That is not transparent. I believe it is in the public interest to be open about property ownership, whether rented to permanent tenants or to short-stay guests.
Sixth, another pitfall of licensing regimes is false licence numbers. Each short-term let licence holder will be issued a unique number, which should be displayed on accommodation booking platforms. Those platforms will not check the accuracy of those numbers. There is no process for local authorities to check the multitude of platforms for fake numbers.
Other countries that have introduced short-term let licensing schemes have experienced this problem. Without a way of compelling accommodation providers like Airbnb and booking.com to check that license numbers are real, fake numbers will abound. I hope that action against short-term let owners who operate without a licence will be swift and thus an effective deterrent.
A final note
Short-term let owners have often felt under attack from campaigners in this area. I myself have been the subject of some scathing press releases from the industry body. I take no issue with any responsible short-term let owner who manages the behaviour of their guests and is considerate of their neighbours. However, the sheer number of short-term lets in areas such as Edinburgh, Skye and the East Neuk has had serious consequences for the local housing markets. Folk who want to live where they have always lived, or move to an area for work, have been priced out.
Additionally, many short-term lets in Edinburgh are not owned by individual operators supplementing an income or pension. They are owned by large companies, sometimes registered overseas. Money has been extracted from local economies for years. City centres have been hollowed out. Rural families have struggled to find affordable accommodation.
I am glad that the Scottish Government acknowledges the problems associated with short-term lets and is taking steps to address them. The Housing Minister says they have “worked quickly to develop detailed proposals”. That is half right: the proposals are detailed, but they come very late in the day.
Please do respond to the consultation by Friday 16 October.