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13/10/2020

STL Licensing: Letter to Scottish Government

The following letter has been sent to the Scottish Government from an ASSC Member today:

Dear Mr Stewart & Mr Ewing

Short-Term Lets: Consultation on a licensing scheme and planning control areas in Scotland

I am writing to you in connection with the above in my capacity as the husband of the owner of a long established self-catering property in Fife and also as someone with experience of legislation as a former government lawyer and, latterly, an occasional parliamentary drafter.

I have read the consultation paper in detail. It is thorough, intelligent, well structured and well presented. As I would expect from the civil service. Were it the product of legislative training course of the type I attended as a civil servant, I would score it 10 out of 10.

But unfortunately this is not an academic training exercise: it concerns the real world and affects peoples’ businesses and local supply chains. From that perspective the whole proposal is fundamentally flawed, unless of course the underlying policy intention is to significantly reduce the amount of self-catering available to visitors to Scotland.  That would be a surprising policy indeed. It would of course result in material damage the Scottish tourist industry generally, and significant economic damage to the local supply chains currently supported by these self-catering businesses: cleaners, housekeepers, local shops, art galleries, cafes, farm shops, restaurants, gift shops, pubs plumbers, electricians, gas engineers, painters etc. All that in return for little or no apparent benefit to anyone except, perhaps (allegedly), to the neighbours of a few badly run Edinburgh city centre Air BnBs. And, astonishingly, as if that was not bad enough at any time, you are proposing to do this now of all times when the Covid-19 damaged tourist economy needs encouragement not discouragement.

The reason this proposal is so potentially damaging is simple (and to those of us involved in this industry, pretty obvious): A LOT OF SELF CATERING BUSINESSES WILL SIMPLY GIVE UP.

Why will they give up?

Firstly, because many owners (ourselves included), most of whom are just small businesses, will feel that carrying on business is just not worth the hassle and future uncertainty –

  • the licence process will involve time and expense
  • the requirement to renew regularly will create too much future business planning uncertainty
  • the licence conditions may well be excessive and/or unworkable

Many of the detailed proposals are impractical and appear to be drafted by people who (understandably) have no practical experience of our industry. Many are based on wrongly conflating short term self-catering with residential letting. There is a very good reason for regulating the latter: they are people’s homes, not a one week holiday accommodation.

Secondly, the requirement for a licence will create practical and legal chaos for bookings. Self catering properties are often booked a year in advance, certainly at peak seasons. If a booking is likely to fall after a licence is necessary, there are 2 choices. You either make the booking contract conditional on getting a licence and provide that as owner you can cancel the booking without penalty if you don’t get a licence. Or you can take the risk that the licence will go through, say nothing in the booking conditions but unilaterally cancel if you don’t get the licence. If the former, most people will not book (we wouldn’t in their shoes!!) and will choose other UK destinations or abroad. Hardly the way to encourage Scottish tourism! If the latter, the owner risks being sued for breach of contract with further reputational damage to the Scottish tourist industry. This will then be repeated every 3 years on licence renewal. This is NOT solved by grace periods etc – all they do is move the time frame in which this is an issue.

To make matters even worse, as the proposal is to be implemented by secondary legislation, these high level issues will not even get proper parliamentary and media scrutiny. I was the drafter of the Pow of Inchaffray Drainage Commission (Scotland) Bill which you may recall was passed by the Scottish Parliament in 2019. Despite only affecting around 100 local residents, as a Bill rather than as subordinate legislation it received more parliamentary time and attention than this proposal is likely to receive, yet this will have a much wider impact – intended or otherwise. That seems completely wrong.

So in summary the whole policy needs to be reviewed in the light of the damage it will cause. We think it should be simply scrapped and we will help oppose it in every way we can, and encourage others to do so.

If (and only if) there are legitimate concerns about the supposed proliferation of Air BnBs in Edinburgh, that can be addressed in a targeted and subject-specific way by Edinburgh Council promoting private legislation that can be properly considered and debated. But to attempt to address this by an uncalled for, nationwide one-size-fits-all blanket licensing legislation is taking a sledgehammer to crack a nut and, contrary to what is said in the consultation paper, totally disproportionate.

If on the other hand Scottish Ministers wish to pursue a policy that will so manifestly result in the material damage to the Scottish tourist industry and its supply chain, and that at a time when I would have thought the government wanted to encourage, not discourage, Scottish tourism, then that is of course your prerogative. But push ahead with your eyes open, don’t say you weren’t warned, and be prepared to take responsibility for the consequences, unintended or not.

I have copied this initially to a few individuals in VisitScotland, STA & ASSC. I will separately respond to the consultation, but you will appreciate that the consultation questions are too limited in scope to allow me to address the macro issues I have raised here.

Kind regards

[ASSC Member]

Edinburgh

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