Tenant Protection Act within Holyrood’s powers: judge
The legislation imposing a rent cap and a moratorium on evictions for housing tenancies in Scotland was within Holyrood's powers and did not breach landlords' rights under the European Convention on Human Rights, a Court of Session judge has ruled.
Lord Harrower gave the decision in rejecting a judicial review challenge by the Scottish Association of Landlords and others, all representing persons engaged in renting properties to tenants in the private rented sector, to the Cost of Living (Tenant Protection) (Scotland) Act 2022. The Act was introduced as an emergency measure in response to the cost of living crisis. Applying to rent increases notified from 6 September 2022, it can be kept in force by the Parliament for six months at a time, but not beyond 31 March 2024.
The petitioners maintained that the Act disproportionately interfered with landlords' rights under article 1 of Protocol 1 to the Convention "A1P1"), and discriminated against landlords of private residential tenancies without any objective or reasonable justification, contrary to article 14 of the Convention. Rent controls could amount to a deprivation of property contrary to A1P1 in some cases; the measure had to involve a fair distribution of the social and financial burden it was intended to address. It was unacceptable for the burden to be placed on one particular social group however important the interests of the other group or community as a whole.
On proportionality, there was no emergency justifying the enactment of legislation without proper consultation; the cost of living crisis was mainly concerned with energy prices, which were not rationally connected with a measure targeting rent levels; less intrusive measures could have been adopted, such as more limited controls, or targeted financial support; and the balance as between landlords and tenants was manifestly unfair.
Further, the Act discriminated against landlords in the private rented sector: landlords of social and student tenancies were subsequently excluded from it.
Refusing the petition, Lord Harrower said that consideration of whether legislation of general application in the area of social and economic policy proportionately interfered with the Convention rights of landlords was "precisely the sort of circumstances in which it is recognised that the legislature is better placed than the court to firm a judgment about what is in the public interest". Further, the fact that the Act was in response to a perceived emergency should be seen as "lowering the intensity of review"; and the Act contained review and reporting devices by which its measures might be adapted to changing circumstances, including and changes in the cost of living.
The petitioners, he remarked, "faced an uphill battle in challenging the Scottish Government's assessment of whether the cost of living crisis amounted to a genuine emergency". Insofar as their case amounted to saying that the Parliament, under the guise of a supposed emergency, sought to impose, without proper consultation, a lasting set of rent controls, "then I consider that the respondents were well founded in describing this as a bad faith or ulterior purpose challenge to the legislation. In that event, the petitioners would have failed to meet the high standard of proof beyond reasonable doubt which is appropriate to challenges of that nature".
In any event the situation was a political judgment "that requires to be respected by this court unless it can be shown to be manifestly without reasonable foundation. Whatever suspicions the petitioners may have harboured about ulterior motives, the petitioners did not even begin to surmount that high hurdle".
For the petitioners to succeed in a challenge without reference to particular facts, they would also have to show that the operation of the Act would give rise to an unjustified interference with Convention rights “in all or almost all cases”, and it was difficult to see how affidavits and other material produced "could ever establish that the Act interfered disproportionately with the Convention rights of all or almost all private sector landlords".
As respects proportionality, reasons had been given why less extensive measures were rejected; and it was "not enough for the petitioners to say that the legislation will necessarily disproportionately interfere with the A1P1 rights of some landlords. They need to establish a disproportionate interference with the rights of all or almost all landlords".
"Having regard to the petitioners’ challenge as a whole," Lord Harrower concluded "it falls far short of what is required in order ab ante to demonstrate that the Act disproportionately interferes with the A1P1 rights of landlords."