Introduction

The legal landscape governing tenant and landlord relationships in Scotland witnessed a significant development with the case titled Petition of the Scottish Association of Landlords and Others against the Lord Advocate and the Scottish Ministers ([2023] CSOH 76). Decided by the Outer House of the Court of Session on November 2, 2023, this case scrutinizes the legislative competence and constitutionality of the Cost of Living (Tenant Protection) (Scotland) Act 2022, particularly focusing on its rent cap and eviction moratorium provisions.

The petitioners, representing landlords and property management entities, challenged the Act on grounds of disproportionate interference with their rights under Article 1, Protocol 1 (A1P1) of the European Convention on Human Rights (ECHR), and alleged discrimination under Article 14 of the Convention. This commentary delves into the intricacies of the judgment, exploring the court's reasoning, the application of legal precedents, and the broader implications for landlord-tenant law in Scotland.

Summary of the Judgment

The Scottish Court of Session, presided over by Lord Harrower, thoroughly examined the petition challenging the legislative competence and human rights implications of the Cost of Living (Tenant Protection) (Scotland) Act 2022. The Act, introduced as an emergency response to the cost of living crisis, imposed a rent cap and an eviction moratorium on private residential tenancies.

The petitioners contested the Act's compatibility with A1P1, arguing it excessively infringed upon their property rights by limiting rent increases and restricting evictions without adequate justification or compensation. Additionally, they alleged that the selective suspension of rent caps for certain tenancy types constituted unjustified discrimination under Article 14.

After meticulous analysis, the court dismissed the petitions, affirming that the legislative measures were within the Scottish Parliament's competence and proportionate to the objectives of protecting tenants amid economic hardship. The court found that the Act did not unfairly discriminate against landlords and that the Scottish Government had sufficiently justified the differentiation in treatment between private and social sector landlords.

Consequently, the court refused the orders sought by the petitioners, effectively upholding the validity of the Tenant Protection Act and its associated regulations.

Analysis

Precedents Cited

The judgment extensively references previous case law to underpin its reasoning. Key precedents include:

• Bank Mellat (No 2): Established the four-stage proportionality test, crucial for assessing whether legislative measures align with human rights obligations.
• Christian Institute v Lord Advocate [2017] SC (UKSC) 29: Emphasized the necessity for challenging parties to demonstrate that legislation would result in an unjustified interference with Convention rights in all or nearly all cases for an ab ante challenge.
• In re Abortion Services (Safe Access Zones) (Northern Ireland) Bill [2023] 2 WLR 33: Reinforced that an ab ante challenge to legislation requires a high threshold of proof regarding disproportionate interference.
• Hutten-Czapska v Poland (2007) 45 EHRR 4: Interpreted A1P1, detailing its scope concerning the peaceful enjoyment of possessions, deprivation of possession, and state control over property use.
• Salvesen v Riddell 2013 SC (UKSC) 236: Highlighted that not every individual affected by legislation needs to prove a violation, especially in abstract challenges.

These precedents collectively guided the court in evaluating the proportionality and non-discrimination aspects of the Tenant Protection Act, ensuring consistency with established human rights jurisprudence.

Legal Reasoning

The court undertook a structured analysis based on the proportionality test, assessing whether the Tenant Protection Act's provisions were a justified limitation on the landlords' rights under A1P1 and whether any differential treatment breached Article 14.

• Legislative Competence: The court affirmed that the Scottish Parliament possessed the authority to enact the Act, especially given the declared emergency posed by the cost of living crisis. The expedited legislative process was deemed appropriate under the circumstances.
• Proportionality Assessment: The court evaluated the Act's objective of protecting tenants against economic hardships, finding it sufficiently important to justify the interference with property rights. The measures were deemed rationally connected to the objective, with the rent cap and eviction moratorium serving direct roles in stabilizing housing costs and preventing unlawful evictions.
• Least Restrictive Means: The court considered alternative measures presented by the petitioners, such as targeted financial support or energy price controls. However, it concluded that these alternatives were either impractical or insufficiently comprehensive to address the widespread impact on tenants.
• Fair Balance: The differentiation between private and social sector landlords was scrutinized. The court found that the Scottish Government's approach achieved broad parity in treatment, considering the unique regulatory frameworks and operational differences between the two sectors.

The court's reasoning underscores a balanced approach, weighing the immediate needs of tenant protection against the rights of landlords, within the framework of proportionality and non-discrimination.

Impact

The decision has profound implications for future legislative actions and the interpretation of human rights within Scottish law:

• Affirmation of Legislative Discretion: The ruling reinforces the Scottish Parliament's ability to enact emergency measures in response to socio-economic crises, provided they meet proportionality and non-discrimination standards.
• Clarification on Ab Ante Challenges: By upholding the stringent requirements for abstract challenges, the court delineates the boundaries within which organizations can contest legislation, emphasizing the necessity of demonstrating widespread disproportionate impact.
• Enhanced Tenant Protections: The affirmation of the Tenant Protection Act solidifies the legal safeguards for tenants in Scotland, potentially encouraging further legislative measures aimed at balancing tenant and landlord interests.
• Guidance on Non-Discrimination: The nuanced handling of Article 14 ensures that differential treatment in legislation must be substantiated by legitimate, proportionate objectives, guiding future laws to avoid arbitrary discrimination.

Overall, the judgment fortifies the framework for tenant protections while respecting the rights of landlords, setting a balanced precedent for similar disputes in the future.

Complex Concepts Simplified

Article 1, Protocol 1 (A1P1)

Definition: A1P1 is part of the European Convention on Human Rights, guaranteeing the right to peaceful enjoyment of one's possessions. It protects against arbitrary deprivation of property and allows state control over property use under specific, justified conditions.

Application in the Case: The petitioners argued that the rent cap and eviction moratorium interfered with their property rights under A1P1 by limiting their ability to set rents and evict tenants, respectively.

Article 14 of the ECHR

Definition: Article 14 prohibits discrimination in the enjoyment of the Convention rights. It ensures that rights are exercised without discrimination based on protected characteristics, such as race, gender, or societal status.

Application in the Case: The petitioners contended that the selective suspension of rent caps for certain tenancy types discriminated against private landlords, violating Article 14's non-discrimination principle.

Proportionality Test

Definition: A legal framework used to assess whether the infringement of rights is justified by the importance of the objective pursued. It involves balancing the benefits of the measure against the severity of the rights limitation.

Four Stages:

• Importance of Objective: The goal must be significant enough to warrant limiting a right.
• Rational Connection: There must be a logical link between the measure and the objective.
• Least Restrictive Means: The measure should not be more restrictive than necessary to achieve the objective.
• Fair Balance: The benefits of the measure should outweigh the adverse effects on rights.

Application in the Case: The court applied this test to determine if the Tenant Protection Act's provisions were a justified limitation on landlords' rights under A1P1.

Conclusion

The judgment in Petition of the Scottish Association of Landlords and Others against the Lord Advocate and the Scottish Ministers [2023] CSOH 76 serves as a pivotal reference in balancing human rights with socio-economic legislation. By upholding the Cost of Living (Tenant Protection) (Scotland) Act 2022, the court affirmed the legitimacy of emergency legislative measures aimed at mitigating economic crises, provided they adhere to principles of proportionality and non-discrimination.

This decision not only reinforces the scope of tenant protections in Scotland but also delineates the contours within which landlords can contest such measures. The ruling underscores the judiciary's role in ensuring that legislative actions remain within constitutional bounds, particularly concerning human rights obligations.

Moving forward, stakeholders in the private rental sector must navigate a legal environment that increasingly values tenant security and equitable treatment, while landlords are reminded of the importance of constructive engagement with regulatory frameworks designed to balance diverse interests in the housing market.