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Month: September 2021

POTENTIAL HUMAN RIGHTS VIOLATION

Posted on by Fiona Campbell

POTENTIAL HUMAN RIGHTS VIOLATION

The ASSC has identified a potential human rights violation: Protocol 1, Article 1 and Article 17 of the Charter on Fundamental Rights – Right to Property.

The ASSC engaged the respected legal firm Burness Paull LLP in Summer 2021 to provide expert comment on the Scottish Government’s short-term let regulatory plans and their arguments are set out below.

We seriously question whether the draft Order is compliant with the European Convention on Human Rights (“ECHR”).  Protocol 1 Article 1 provides that every natural or legal person is entitled to peaceful enjoyment of their possessions.  To be deemed compatible with Article 1 of Protocol No. 1, the interference must fulfil certain criteria: it must comply with the principle of lawfulness and pursue a legitimate aim by means reasonably proportionate to the aim sought to be realised.   It is in our opinion clear that the draft Order fails to comply with the latter.

The specific public interest objective being pursued by the Scottish Government via this Order is unclear and as already articulated above, not sufficiently explained or underpinned by clear, sound data or evidence.  There appears to be no account taken of the following:

the existing regulatory framework for short-term lets.  There is no substantive evidence put forward to support the proposition that this existing framework is not fit for purpose or that the proposed measures are necessary and capable of effectively addressing potential issues such as availability of affordable housing and safety of short-term lets.  This results in the draft Order failing to be in the general interest; and

the lack of data to support the draft Order further underlines it ought to be regarded as irrational and arbitrary, such as in the case of R (Kensall) v Secretary of State for Environment [2003] EWHC Admin 459, where measures were found to be in convention of ECHR rights.

The proposed framework includes several aspects which prima facie look to be subjective and could lead to irrational decisions and/or disproportionate interference with property rights:

the short time duration of licenses, being three years, means that interference with peaceful enjoyment is extremely frequent and imposes an excessive burden, as in Sporrong and Lönnroth v Sweden [1983] 5 EHRR 35 where measures were found to be in contravention of the right to peaceful enjoyment of property;

the framework would appear to levy excessive, irregular and currently unquantifiable costs upon licence-holders and applicants; and

there are more proportionate and less intrusive measures available to the Scottish Government, including a mandatory registration scheme, as proposed by the ASSC previously.

We also challenge whether the draft Order would be in compliance with the Charter of Fundamental Rights of the European Union (the “Charter”).  Whilst the Charter no longer has effect in UK law following Brexit, the Scottish Government has made clear its desire to stay aligned with EU law as far as possible, and protect rights that existed for UK citizens.

Article 17 of the Charter provides that everyone has the right to own, use, dispose of and bequeath his or her lawfully acquired possessions, and the use of property may be regulated by law in so far as is necessary for the general interest.  For the reasons outlined above, we do not consider that objectively, a case has been made, backed up by evidence that the draft Order is either in the general interest or is only interfering in use of property so far as necessary.

PROVISION OF SERVICES REGULATIONS

Posted on by Fiona Campbell

The ASSC has highlighted a potential illegality of the draft short-term let licensing legislation, under the Provision of Services Regulations, preserved in UK law by the European Union (Withdrawal) Act 2018.

The ASSC engaged the respected legal firm Burness Paull LLP in Summer 2021 to provide expert comment on the Scottish Government’s short-term let regulatory plans and their arguments are set out from points below (16-19) in this submission.

In our view, the proposed licensing regimes are incompatible with the legal requirements of the Provision of Services Regulations (the “Regulations) 2009 (as amended) and the Provision of Services (Amendment etc.) (EU Exit) Regulations 2018 which preserved the Regulations notwithstanding the UK’s withdrawal from the EU.

The Regulations protect UK businesses and consumer rights by maintaining obligations on UK competent authorities to ensure that their regulation of service activity is proportionate and justified in the public interest. Service activity includes tourism activity which we have interpreted as encompassing self-catering accommodation provision.

Overriding reasons of general interest relevant to short-term accommodation rental services can be: social policy objectives such as ensuring the availability and affordability of local housing; the protection of the urban environment; public security; the protection of consumers; and ensuring tax compliance and effective fiscal supervision.

Justifications for imposing policy and regulatory restrictions on short-term accommodation rental services must be supported by clear evidence that the general interest needs to be protected, and evidence of the link between short-term accommodation rental services and the protection of the general interest.

The Scottish Government has provided no empirical data that there is a direct link between short-term letting and loss of housing stock, thus it cannot be considered to be an overriding reason of general interest.

The Regulations require that an authorisation (licensing) scheme can only be implemented under certain circumstances: to treat issues locally, if these issues are justified by an overriding reason of general interest. In these circumstances, a registration/authorisation (licensing) scheme must be simple, fast, easy to complete, the criteria should be clear, objective and transparent. Once again, we have serious concerns that the draft Order does not meet these requirements.

REQUIREMENTS OF THE REGULATIONS

  • Specific requirements of the Regulations which we consider the draft Order to breach include:
  • Part 3 of the Regulations Competent authorities are required to provide a clear process for their authorisation scheme and that any scheme meets the requirements within the Regulations. Businesses cannot be prohibited from delivering a services activity due to an economic test, involvement of competing operators or other requirements such as quantitative or territorial restrictions, minimum number of employees etc.
  • Competent authorities are obliged not to impose disproportionate or unnecessary requirements on businesses that seek to provide services, unless justified. We have queried above the failure of the Scottish Government to date to provide a sound, evidence-based justification for its approach.
  • Conditions for the granting of authorisation: An authorisation scheme must be based on criteria which preclude any competent authority from exercising its power of assessment in an arbitrary manner.
  • The criteria must be: (a) justified by an overriding reason relating to the public interest (ORRPI); (b) proportionate to that public interest objective; (c) clear and unambiguous; (d) objective; (e) made public in advance; and(f) transparent and accessible.
  • We have set out above our views that the Scottish Government has failed to provide empirical data to support the proposition that these requirements are necessary and justified in the public interest or that they are objective or proportionate.

FEES

  • Fees charged by a competent authority under an authorisation scheme must be reasonable and proportionate to the cost of the procedures and formalities under the scheme, and must not exceed the cost of those procedures and formalities. See regulation 18(4) of the Regulations.
  • Fees should not be used as an economic deterrent to certain activities or to raise funds. If a business believes the fee to be disproportionate, they can contest it with the competent authority concerned.
  • We have set out above why we consider that the fees approach proposed is excessive, disproportionate and constitutes a real deterrent to many small businesses in raising funds or simply continuing to operate.

Edinburgh Council Launch Short-Term Let Control Area Consultation

Posted on by Fiona Campbell

City of Edinburgh Council have today launched their consultation into designating the entire city as a Short-Term Let Control Area.

Under these plans, “a property owner who is letting out a residential property (which is not their principal home) on a short-term let basis would have to apply for ‘change of use’ approval through the planning application process”. It will not affect those who engage in ‘homesharing’ – that is, “the letting rooms or letting out the whole residential property where it is the owner’s principal home and the owner is absent.”

The consultation, which was approved by the Planning Committee, will run for nine weeks until 5th November 2021. The ASSC will provide a full briefing to members in due course but information from the Council relating to the consultation and how to respond can be accessed here: https://consultationhub.edinburgh.gov.uk/sfc/short-term-let-consultation/

Responses to the Council will be used to inform the decision on taking forward a Short-Term Let Control Area for formal designation – Scottish Government Ministers will ultimately be responsible for approving Edinburgh’s plans.

The ASSC believes that City of Edinburgh Council’s Short-Term Let Control Area proposals are disproportionate, lack a robust evidence base and will damage Edinburgh’s renowned tourist economy.

For some facts and data on short-term letting in Edinburgh, read more: Edinburgh Briefing – ASSC

We have issued the following comment to media in response to the announcement:

Fiona Campbell, Chief Executive Officer of the Association of Scotland’s Self-Caterers, said:

“Edinburgh Council’s draft proposals for a short-term let control area covering the entire city are wholly disproportionate and lack an empirical evidence base to substantiate claims that such accommodation has reduced housing stock.”

“Furthermore, their proposals appear to rely on pre-pandemic listings from one online platform only and this does not provide an accurate reflection of the situation.”

“Self-catering properties have been a longstanding presence in the capital for decades, enhancing the tourist offering and boosting the local economy, and should not be used as a convenient scapegoat for policy failures elsewhere. Communities are being hoodwinked into believing that regulating short-term lets out of existence will act as a panacea when in reality, we have failed to build enough affordable homes or bring large numbers of empty properties back into use.”

“Self-catering generates £70m for Edinburgh’s economy. For a city that is renowned for its hospitality, it is very disappointing that local policymakers are looking to solve multifaceted housing challenges in Edinburgh by concentrating on tourist accommodation and damaging small businesses in the process.”

“The ASSC looks forward to supplying evidence to the consultation and highlighting the need for balanced, targeted and proportionate regulation for the benefit of all concerned stakeholders in the city.”