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.