Edinburgh from the Pentland Hills
cc-by-sa/2.0 – © Jim Barton – geograph.org.uk/p/3343260

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:

https://consultationhub.edinburgh.gov.uk/sfc/pentland_hills_regional_park/

Speech in Stage One debate (to see subtitles, switch them on in icon below vide)

9 minute read.

The Defamation and Malicious Publication (Scotland) Bill was debated at Stage One in the Scottish Parliament on Thursday. I was given 3 minutes to speak and I used them to articulate my concerns about the serious harm threshold. The text of my speech is appended at the foot of this blog.

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.

SPEECH

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.

Why?

02. November 2020 · 1 comment · Categories: Housing

Photo Credit: Melinda Taber Flickr via Compfight cc

Reading time: 5 minutes

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 legislation in question is the Housing (Scotland) Act 1987 (Tolerable Standard) (Extension of Criteria) Order 2019. These regulations were laid before Parliament in November 2018. The Local Government and Communities Committee considered them in December 2018, during which assurances were given about planned communications – see columns 26 and 27 in the Official Report of that session. Shortly after, the committee recommended that the Order be approved and Parliament passed them on 16 January 2019.

The Order inserts two additional requirements into the tolerable standard as set out in Section 86 of the Housing (Scotland) Act 1987, relating to equipment for detecting fire and carbon monoxide.

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.

The Scottish Government produced guidance in January 2019 which says that “satisfactory equipment” means:

  • 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.

selective focus photography of green leaf

Text of a 15 minute speech

Good afternoon friends.

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?

and finally

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.

10 minute read

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.

You can read the consultation document here: https://www.gov.scot/publications/short-term-lets-consultation-licensing-scheme-planning-control-areas-scotland/

And respond to the consultation here: https://consult.gov.scot/housing-services-policy-unit/short-term-lets-licensing-scheme/

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.

Key issues

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.

You can read my detailed consultation response here.

blue dome tent on green grass field near mountain under white clouds during daytime

Last Wednesday I spoke in a debate on ‘dirty camping’. Over the summer, we have seen some careless, reckless, and anti-social behaviour by people visiting scenic areas of Scotland. This is a matter of great concern to many people, especially those who live in the Highlands and Islands, Perthshire, the Borders and local beauty spots across the country.

I unequivocally condemn that kind of behaviour.

However, disturbing as these incidents have been for local residents, they have not been – as media reports might have led to you to suppose – a widespread occurrence. For example, the Cairngorms National Park Board considered a paper last Friday that looked at the summer visitor experience. It observes that:

“Early August was very busy with large numbers of visitors to the park… Despite a noticeable increase in irresponsible behaviour the vast majority of visitors have been reacting favourably to information offered by the Rangers with few, but significant, occasions of difficult behaviour.”

A more detailed analysis of Badenoch and Strathspey, Deeside and the Atholl and Angus Glens says that the data “shows a relatively small… but noticeable increase in irresponsible behaviour.”

Punitive action against anti-social behaviour and littering – involving police, permits and permissions – might be appropriate in particular cases, in the short term and in specific locations, but is not an appropriate response in the medium and long term. I know from conversations with rangers and outdoor activities instructors, many of whom have engaged with so-called dirty campers, that many are cutting live wood and leaving litter out of genuine ignorance. Who is responsible for that ignorance?

For centuries the law has sought to punish those who camp, who travel and who use land for recreation. Luckily we now have some of best access legislation in Europe: it is a statutory right to camp responsibly in Scotland. During the debate, some MSPs questioned whether the laws in this area are adequate. There were suggestions that the law as it stands is not working. One suggested route forward was expanding permit zones – areas where campers must buy a permit in order to camp.

Rather than responding by reacting solely to the most extreme examples, we should ask ourselves how we can encourage people to act responsibly. We need to focus on education and on inspiring a love of outdoors amongst a generation more used to Mediterranean beaches and music festivals.

Scotland has woeful outdoor infrastructure – basic camping facilities, a woeful lack of public toilets, and so on. I have cycled in the Netherlands, Germany and Denmark – these countries take outdoor recreation seriously and provide the appropriate facilities. Outdoor recreation should not be only for those who can afford a car or expensive equipment.

Outdoor recreation is also concentrated in a small number of over-visited hotspots, which have borne the brunt of recent incidents. We have a statutory right to roam, but often the land over which it is most pleasant to roam is far away from the cities where most people live.

A great deal of the accessible information online relating to outdoor activities in Scotland is ‘hitlist’ style. It focuses on must-visit spots, such as the Fairy Pools on Skye, Glencoe and Loch Lomond. As a consequence, these spots receive a disproportionate number of visitors.

We need to democratise the countryside.

That means supporting outdoor education centres, many of which are facing serious financial challenges. The Scottish Government have now said that no domestic residential school trips can go ahead in the Autumn 2020 term, leaving these centres bereft of income.

It also means ensuring ranger services have sufficient funding to protect fragile landscapes and educate visitors. The Scottish Countryside Rangers’ Association estimate that over 140 ranger posts have been lost since 2008. Rangers

Land around cities should be managed primarily for recreation, community food projects and recreational hutting rather than low output publicly subsidised agriculture so that the public have easy access to leisure opportunities.

Hutting provides a valuable opportunity to change the shape of domestic tourism and the relationship people have with the outdoors. It would also mean affordable, low-impact holidays.

Diversifying ownership of land is also part of this. I hope that where communities take over the management of the land around them, they also take the opportunity to improve access and to provide the kind of basic facilities that would allow so much more responsible enjoyment of the countryside.

More information about attractions and paths would also help issues of crowding. Path mapping projects like that currently being carried out by the Ramblers are vital in spreading visitor numbers across many areas. Information about walkable paths would also open up the countryside for many without specialist knowledge.

Finally, it means communication. I welcome the Scottish Government’s commitment to increased campaigns around littering. However, tackling litter is just one piece of the puzzle. We need a grand reset of people’s relationship with the countryside.

None of this requires legislation. It requires funding and communication. Money spent on improved outdoor infrastructure and education saves public money – it means less money spent on cleaning up litter and policing camping hotspots. As the blogger Nick Kempe has suggested, it would be a good idea to focus the £43 million that Visit Scotland spent on marketing last year on improving infrastructure and promoting responsible enjoyment of the outdoors.

No rural community should have to feel besieged or threatened by a surge in visitors. However, this is not a problem that can be solved by punishing individuals. For decades, the services that support people to interact with the land around them have been cut. It should not surprise us when some people act out of ignorance.

4 minute read

The vast majority of legislation considered by Parliament is introduced by Scottish Ministers. But Members (and Committees) can also introduce legislation.

In June 2018, I published a draft proposal for a Bill to incorporate the European Charter of Local Self-Government into Scots law. Details of that consultation together with responses are available at www.europeancharter.scot

In May 2020, I introduced the European Charter of Local Self-Government (Incorporation) (Scotland) Bill. The Local Government and Communities Committee is currently consulting on the Bill as part of the Stage One scrutiny process. The deadline for written evidence to be submitted is Thursday 17 September 2020.

What is the Bill about?

The European Charter of Local Self-Government is an international treaty of the Council of Europe, the 47 member body established in 1949 to promote democracy, human rights and the rule of law across the European continent. Perhaps the most well-known treaty of the CoE is the European Convention on Human Rights.

The Charter is an international legal instrument that lays out a set of legal protections for local government. It was opened for signature on 15 October 1985, was ratified by the UK on 24 April 1998 and came into force on 1 August 1998. Further details on the Charter can be found on the CoE website here. Just as with human rights, the CoE carries out monitoring and makes recommendations to its members relating to the principles of the Charter and how they are being implemented in member states. This is undertaken by the CoE’s Congress of Local and Regional Authorities.

Unlike many European countries, the legal systems of the UK are dualist. That is to say, domestic and international law are distinct and separate from one another. In countries with monist systems, international law has the same status as domestic law. So for an international treaty such as the Charter to have legal effect in Scots law, it must be incorporated by an Act of Parliament. Only then can it be admissible (and be applied) in domestic courts.

At its core, that is what this Bill is about. It incorporates the European Charter of Local Self-Government into Scots law and it makes it unlawful for Scottish Ministers to act in a manner which is not compatible with the Charter.

Why does this matter?

The Charter is designed to provide constitutional protections for local government. At the moment, in Scotland and the rest of the UK, such protections are absent for two reasons. Firstly, unlike most countries, the UK does not have a written, codified constitution within which the status and functions of local government would normally be set out. Secondly, because the Charter is not incorporated into Scots law, it is not admissible before the courts. If you believe the Articles have been violated, there is nothing you can do about it.

By incorporating the Charter, the Charter Articles become part of the law of Scotland. Anyone can challenge any executive action of Scottish Ministers or legislation passed by the Scottish Parliament if they believe that either is incompatible with the Charter (which, being international law, has primacy). The Courts will have the power to quash actions of Scottish Ministers and secondary legislation as well as to issue a declaration of incompatibility for primary legislation. The Bill gives legal teeth to the Charter, makes it part of Scots law and means that its provisions can be relied upon to challenge domestic administrative actions and laws.

The intention of introducing this legislation is not to encourage legal actions, but to heighten the awareness of the Charter’s provisions and to ensure compliance with them. To that end, the Bill also places a duty on Scottish Ministers to promote local self-government and to report at least every five years on what they have done to safeguard and reinforce local self-government and increase the autonomy of local councils. The Bill also places a duty on any MSP introducing Bills to Parliament to make a statement about the extent to which, in the view of the MSP, the Bill is compatible with the Charter Articles.

Support for the Bill

Calls for the Charter to be incorporated have been made by the Council of Europe’s Monitoring Missions to the UK, Committees of the House of Commons, COSLA’s Commission on Strengthening Local Democracy and the Scottish Constitutional Convention. COSLA has been campaigning for incorporation of the Charter since 1981 when the draft Charter was then under discussion in the Council of Europe’s Congress of Local and Regional Authorities.

Where Now?

The Bill is currently being scrutinised as part of Stage One scrutiny by the Local Government and Communities Committee. Its consultation closes on 18 September 2020 and you can find more about how to submit your views here.

view of townhouse

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.

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.

I have just realised that I have never posted the good news about my defamation case here on my own website so here is it for the record.

I won!

Lord Clark ruled comprehensivelty in my favour in an Opinion published on 11 March 2020. This was just as coronavirus was taking over all of our lives and so I forgot completely to provide an update on my website although I did contact all the donors to my crowdfunder with the good news (though apologies I may have omitted to contact a number of people who donated by post).

The case (Wildcat Haven Enterprises CIC vs. Andy Wightman A111/17) was heard by Lord Clark at the Court of Session from 29 October 2019 – 8 November 2019. The Closed Record (the written argumets b y pursuer and defender) can be read here (2Mb pdf). Lord Clark rejected all of the pleas of the pursuer in what was a comprehensive victory for me. As a matter of law therefore neither of these two blogs are defamatory. The Pursuer issued a statement to the media on 11 March stating that “we will certainly appeal the decision”. However, the 28 day period in which to appeal has now expired and no appeal has been lodged. The original blogs are thus back online here and here.

What was revealed of this case in Lord Clark’s decision was a fraction of what was revealed in Court. What was revealed in Court was a fraction of the evidence assembled in the 1494 Productions (written documents lodged as evidence) lodged in the Court (59 by the Pursuer and 1435 by Defender). And what was revealed in the Productions was a fraction of what I have learned in the course of extensive preparatory research over the past 3 years about the activities of Highland Titles and Wildcat Haven Enterprises CIC. I will be publishing a detailed blog revealing what really went on over the past three years. Given the litigous nature of both parties, I will, of course, have these blogs legalled before publication.