Tackling Barriers to Public Interest Litigation

The conditions required for public interest litigation in Scotland have seen a marked improvement over the last few years. This undoubtedly comes at an interesting time. Scotland has seen increased political participation and appetite since the Independence Referendum in 2014. Furthermore, alternative media platforms have pushed more issues that effect the public at large, such as air pollution, data privacy, surveillance, and corruption, into the mainstream media. As such these conditions, when taken with the changing public law field, may see the courts come involved in more widespread issues in Scotland than ever before.

University of Glasgow law students and former LSA volunteers, Graeme Di Rollo and Joshua Hale, examine the changes that have taken place on the Scottish legal landscape. This piece examines recent changes to the legal barriers that had prevented public interest groups seeking redress from the courts, as well as the financial protections that are in place so that litigation is a practically viable option.

 

Introduction

Prior to the decision of the Court of Session in AXA  General Insurance v HM Advocate[1], claimants seeking to bring cases of potentially great public interest against public authorities were confronted with barriers on two fronts — sufficient standing to initiate public interest litigation, and a lack of financial resources to support it. These substantive and pecuniary barriers to public interest litigation have been reduced, although not completely diminished, by a recent shift in the policy of the Scottish courts towards standing to seek judicial review on public interest grounds and the preliminary question of liability for the expenses of public interest litigants. This blog will briefly outline the judicial forces underlying this change in approach, before moving on to a discussion of the current standing and expenses rules in facilitating public interest litigation; concluding with comment on the development of so-called ‘Protective Expenses Orders’ through which the Court is able reduce or exclude liability for the cost of public interest proceedings.

 

  1. Changing Attitudes

Explaining the shift in policy of the courts towards both the law of standing and the law of expenses requires appraisal of the changing role of judicial review in its current legal landscape. Recent decades have seen broader notions of good administration and human rights increase in prevalence, developing in line with legislation such as the Human Rights Act 1998 and the European Communities Act 1972. This broadening of the Courts’ supervisory remit has, in turn, mandated an increase in focus on the protection of constitutional values which is difficult to square with private interest litigation and minimalist judicial review. That is not to say that the traditional conception of judicial review does not play a role in this new legal landscape. Indeed, framing the case for a change in approach in terms of the notion of judicial review as a tool to keep public authorities within the bounds of their powers might present a more convincing basis for shift in policy; even if the differences between these concepts is more academic than practical. In any event, the central issue is as follows: if we employ a system of judicial review which requires a specific personal interest on behalf of the applicant in the outcome of the case, there is no guarantee that public authorities will be held account for their failure to comply the requirements of the law. As many statutes confer powers on public authorities relating to interests held equally by a large number of people, the case may be that no one will have standing, or that those with standing will not deem it in their best interests to raise an action. But granting standing on wider public interest grounds is no guarantee of success. Financing remains a significant hurdle for applicants to overcome. At present, the legal aid schemes in the UK’s three jurisdictions do not support public interest litigation, and private funding is difficult to negotiate. Why finance litigation when no one stands to gain personally? Thus, we are presented with two barriers to public interest litigation: one substantive and one pecuniary. The extent to which these barriers have been addressed by recent developments in the law of standing and the law of expenses will be discussed below.

 

 

  1. A Question of Standing

Until recently, the main barrier to public interest litigation was the ‘private interest’ model of judicial review employed by the Scottish courts, which tied the question of standing to sue to an identifiable personal interest in the outcome of the case. As noted above, such a model prevents those seeking to bring to light a matter of genuine public interest from doing so, and, as a result, is not easily reconciled with recent changes in the UK’s legal landscape. In AXA, both Lords Hope and Reed highlighted the ill-fit of private law precepts of standing to determining public law issues. Instead, the operative test was whether the applicant has sufficient interest to invoke the court’s supervisory jurisdiction, even though he could not demonstrate standing under the traditional rules. Noting that the function of the courts must necessarily go beyond the protection of private rights, Lord Reed explained the shift away from the private interest model as one of principle:

The essential function of the courts is the preservation of the rule of law, which extends beyond the protection of individuals’ legal rights. There is thus a public interest involved in judicial review proceedings, whether or not private rights may also be affected. A public authority can violate the rule of law without infringing the rights of any individual… A rights-based approach is therefore incompatible with the performance of the courts ‘function of preserving the rule of law… [2]

The approach of the Court in AXA was confirmed by the Supreme Court in Walton v Scottish Ministers[3]. It can therefore be said in no uncertain terms that public interest standing is a clearly established rule of Scots law. Liberalised rules of standing raise their own problems, however; particularly in relation to funding. Those who contribute their own funds are faced with the not only the prospect of losing the money they invest if their case is dismissed, but also paying substantial awards to the other side. As summarized by Toohey J., a judge of the High Court of Australia, ‘There is little point in opening the doors to the courts litigants cannot afford to come in’[4]. It is this question of funding to which we presently turn.

 

  1. The Problem of Expenses

As you will no doubt be aware, the standard position in both Scotland and England is that expenses follow success; that is, the losing party will pay the legal expenses of the other. Any exclusion or limitation of liability on the part of the losing party must therefore be framed as an exception to this general rule. In light of the relaxed rules on standing, and in the interests of preventing applicants from being deterred from bringing important cases, the Courts have been required to consider such exceptions in the context of public interest litigant liability. As has been already been stated, there is little point in opening a new avenue for litigants in cases of public interest if they are ultimately unwilling to pursue their claims for fear of being bankrupted by legal costs.

Orders which exclude or limit the liability in expenses of public interest litigants in judicial reviews and statutory appeals are called Protective Expenses Orders (PEOs) in Scotland and Protective Cost Orders (PCOs) in England and Northern Ireland. They have taken on a particularly important role in promoting many of the values associated with public interest litigation and, in particular, ensuring that public bodies act lawfully.

Although the Courts have accepted such interlocutory orders as competent for the best part of two decades, the discretion to grant PEOs was exercised only on an exceptional basis; even in cases involving public interest challenges[5]. It was not until the case of R (Corner House Research) v Secretary of State[6] that the law was properly reviewed. Here, the claimants sought judicial review of a decision taken by the Director of the Serious Fraud Office to discontinue a criminal investigation into allegations of bribery by BAE Systems plc relating to the Al-Yamamah military aircraft contracts with Saudi Arabia. The claimants also sought PCOs to limit their liability for legal expenses. Determining that it was fair and just to make a PCO in all the circumstances, the Court set out a list of criteria as to when its discretion should be exercised to grant such an order:

  1. A PEO may be made at any stage of the proceedings, on such conditions as the court thinks fit, provided that the court is satisfied that:
  2. The issues raised are of general public importance;
  3. The public interest requires that those issues be resolved;

iii. The applicant has no private interest in the outcome of the case (although see below);

  1. Having regard to the financial resources of the applicant and the respondents and to the amount of costs that are likely to be involved, it is fair and just to make the order;
  2. If the order is not made the applicant will probably discontinue the proceedings and will be acting reasonably in so doing.
  3. If those acting for the applicant are doing so pro bono, that will be likely to enhance the merits of the application[7].

Moving away from the exceptional exercise of the Court’s discretion, subsequent cases have emphasised that such orders should be applied flexibly.[8] Indeed, even the Corner House criteria have been relaxed over the years — in one case, it was indicated that the fact an applicant had a private interest in the outcome of the case would not automatically exclude him from the applicability of the remedy.[9]

The shift in policy of the courts towards granting such orders reflects an increased interest in cases which raise issues of general public importance; both as a means of providing checks on public authorities acting arbitrarily or unlawfully, and as a tool to achieve good administration. In order to acquire a full picture of the role of PEOs in their public interest litigation context, however, it is necessary to take stock of two further developments; firstly, the adoption in 2013 of new rules for public interest environmental law litigation in all three UK jurisdictions, and, secondly, Sheriff Principal Taylor’s Review of Expenses and Civil Litigation in Scotland. It is to these recent developments we presently turn.

 

  1. Development and Utility of Protective Expenses Orders

In the majority of cases, the grant of a PEO remains a matter of discretion for the deciding court. However, the access to justice obligations imposed by the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (1998)[10] have necessitated the introduction of special rules for environmental litigation in the Court of Session. These rules are contained in Chapter 58A of the Rules of the Court of Session, which came into force on 25 March 2013, and have greatly informed the debate over the approach of the courts to the granting of PEOs.

When will a court make a PEO under the new environmental Rules?

Chapter 58 of the Rules defines a PEO as an order which regulates the liability for expenses of all or any of the parties ‘with the overall aim of ensuring that proceedings are not prohibitively expensive for the applicant.’ 1’Proceedings are deemed to be ‘prohibitively expensive’, and therefore non-compliant with the obligations in the Directive, if the applicant could not reasonably proceed with them in the absence of a PEO.’[12] A PEO may be refused by the court where the applicant fails to demonstrate sufficient interest in the proceedings, or where the proceedings otherwise have no real prospect of success.’[13] Subject to these caveats, however, the Court must make a PEO where it is satisfied that the proceedings are prohibitively expensive for the applicant.’[14] This provides a significant degree of certainty for public interest litigants seeking to raise public interest proceedings in this field.

Will this approach be replicated for PEOs across the board?

Chapter 58A does not affect the power of the court to make a similar order in any other proceedings. The making of PEOs in cases which are not covered by the Directive will continue to be governed by the Corner House principles set out above. Thus, it appears that, for all intents and purposes, there are presently two PEO regimes operating in the UK – one codified; the other reliant upon the discretion of the court.

Desirability of having two regimes for PEOs

The current arrangement is at odds with the single system suggested by the SCCR, but is largely consistent with the recommendation of the Taylor Review. The latter recommended:

  1. That power to apply for protective expenses order in Scotland should be available in all public interest cases;
  2. That the decision on whether to award a protective expenses order, and at what level, ought to be a matter for judicial discretion unless otherwise prescribed in Rules of Court for particular types of actions, and;
  • That PEOs should be available in multi-party actions only where a public interest could be demonstrated.[15]

Regardless as to whether this ultimately fits in either party’s recommendations, it is difficult to see how a two tier system of authorization squares with the underlying rationale for issuing such orders in the first place. Although the reasons why a codified scheme was introduced for environmental aspects is clear (compliance with the Aarhus Directive), the rationale for maintaining separate regimes is not. Indeed, there are no peculiarities of environmental law which necessitate its own separate regime for expense management. Problems of financing are no more acute in environmental cases as in non-environmental cases. The fundamental issues remain the same.

  1. Conclusion

At present, there are no plans for codification of the law on PEO/PCOs in judicial review and statutory appeals generally. Given that the purpose of PEOs is to prevent fears of unpredictable litigation expenses from inhibiting public interest litigation, it is perhaps surprising that a rule based approach, as one which promotes certainty and consistency, has not yet been adopted across the board. If the values which PSOs seek to protect are to be maintained, adoption of such an approach appears to be both inevitable and desirable. For further comment on the divergence between judicial treatment of environmental and non-environmental PEOs, and general proposals for cost protection for public interest litigants, see Tom Mullen’s article ‘Protective Expenses Orders and Public Interest Litigation’ (Edinburgh Law Review, 2015).

Graeme Di Rollo & Joshua Hale

(Please note this article was written before the recent Inner House decision Gibson v Scottish Ministers [2016] CSIH 10 was published earlier this month).

 

[1] – [2011] UKSC 46, [2012] 1 AC 868

[2] – [2011] UKSC 46, para.169

[3] – [2012] UKSC 44, 2013 SC (UKSC) 67

[4] – Address to conference of the Australian National Environmental Law Association (1989), cited in R (Corner House Research) v Secretary of State for Trade and Industry [2005] EWCA Civ 192, [2005] 1 WLR 2600, at para.31

[5] – Dyson, J’s judgment in R v Lord Chancellor, ex parte Child Poverty Action Group [1999] WLR 347

[6] – [2005] EWCA Civ 192, [2005] 1 WLR 2600

[7] – [2005] 1 WLR 2600, para. 74

[8] – [2005] 1 WLR 2600, para.74

[9] – Morgan and Baker v Hinton Organics (Wessex Ltd), [2009] EWCA Civ 107, [2009] 2 P & CR 4 Weaver v London Quadrant Housing Trust, [2009] EWCA Civ 235

[10] – The ‘Aarhus Convention’ – incorporated into UK law by virtue of the Public Participation Directive, inter alia.

[11] – Rule 58A.2(3)

[12] – Rule 58A.2(5)

[13] – Rule 58A.2(6)

[14] – Rule 58A.2(4)

[15] – 120-121, available at http://scotland.gov.uklAbout/Reveiw/taylor-review/Report

Repeal of the Human Rights Act: Evidence to the Scottish Parliament

Last week, the Campaign for Housing and Social Welfare Law, that LSA is a part of, gave evidence to the Scottish Parliament’s European and External Relations Committee on the UK Government’s plan to repeal the Human Rights Act. LSA’s Chief Executive, Paul Brown, represented the group at this evidence hearing that discussed both the constitutional challenges any such repeal may face, the media portrayal of the Human Rights Act, as well as how any change may effect people’s lives. A recording of the evidence hearing is available here (starting at the 1 hour 13 minute mark).

hraev1

This blog is summary of the written evidence that the Campaign for Housing and Social Welfare Law in November 2015. It covers the main points of the written evidence, which is available in its entirety here.

 

Not a day goes by where we are not involved in cases involving human rights. Our projects deal with cases relating to refugee women and children, patients unlawfully detained under mental health legislation, and utilising the Human Rights Act (‘HRA’) to protect people from evictions. It is clear from our work that the HRA has a dramatic effect protecting everyone in Scotland and the UK.

Last year the Scottish Parliament’s European & External Relations Committee’s call for evidence on the UK Government’s proposed repeal of the HRA and replacement with a British Bill of Rights (‘BBoR’). The Campaign for Housing and Social Welfare Law (“the Campaign”), that regularly meets in the offices of LSA and which we take an active role in, submitted written evidence last November.

In summary, the Campaign does not support the UK Government’s proposal in any respect. It is our belief that the UK greatly benefits from a sophisticated Human Rights regime that has achieved many successes and has great potential for the future. Alleged short falls are exaggerated and unfounded. The Campaign’s views on particular matters have been set out below:-

 

Codification

The Campaign believes any attempt to codify the broad principles of Human Rights law as they currently exist would put at extreme risk the existing protections. Considering the application of Human Rights Law in Scotland, any proposed Bill of Rights must respect the arrangements under the Scotland Act 1998 that affects the Scottish Ministers and Parliament in Holyrood. As the current system continues to work well, any change would lead to an enormous amount of unnecessary effort.

 

Respect for UK Parliamentary Sovereignty

Arguments that the sovereignty of the UK Parliament are not sufficiently respected are misinformed. Firstly, section 4 the HRA does not allow UK judges to strike out Westminster legislation, only declare it as incompatible with Human Rights. It is then for Parliament to amend (or not amend) any such legislation. Secondly, section 2 merely requires UK judges to “take into account” Strasbourg decisions, not bound or compelled. On a number of occasions UK judges have departed from Strasbourg rulings, particular when they believe such rulings do not respect the features of the UK legal system. Thirdly, section 3 requires UK courts to interpret legislation so that it is Human Rights compliant. However, where if the UK Parliament clearly legislates contrary to Human Rights or Strasbourg case-law, the UK courts are bound by Parliament by virtue of the principle of “Sovereignty of Parliament”. Therefore, the UK Parliament is in fact afforded a wide degree of respect when it comes to Human Rights.

The only area that binds the UK Government are judgments made against the UK by virtue of Article 46 of the ECHR. This continues to be an important international treaty obligation, and it is imperative that it remains so. If we are to value the application of Human Rights across the EU (if not globally), and where respect for Human Rights is weaker in other countries that make up the Council of Europe, it is necessary to have an effective enforcement mechanism on a pan-EU basis. Without this, Human Rights would not be worth the paper they are written on.

 

“Living Instrument” and “Mission Creep”

The ECHR is a “living instrument” and it is important that it is. With the document originally being drafted in the 1940s and 50s, it was heavily influenced by UK common law principles that can be traced back to the Magna Carta. However, current issues access to abortion, LGBTI rights and corporal punishment were not even contemplated at the time of the ECHR drafting. As a constitutional document that requires to enshrine relevant and modern fundamental rights, social attitudes across Europe, and developing Human Rights awareness, the ECHR must evolve over time.

Claims of “mission creep” fail to consider that ultimately the application of Human Rights law in the UK is under the supervision of the UK Supreme Court, and not Strasbourg. The UK Supreme Court has never been in any doubt that it is indeed Supreme, and Human Rights in this country have developed in accordance with our traditions and its decisions.

 

Practical Impact of UK Government Proposals

Although proposals are still vague with regards to what a BBoR might effect, discussions to remove immigration policy, criminal law or decisions by public authorities from the scope of Human Rights Law would be deplorable. The broad application of Human Rights Law, as well as protecting minorities in society that fall within such categories, is one of the most important aspects of Human Rights. It also begs the question, that if the BBoR does in fact replicate our Human Rights law, then why do we require a change at all?

 

The Impact on Scotland

The Campaign notes this is both a very complicated point, and one that has attracted much discussion regarding the changing devolution settlements, and the Sewel Convention (the requirement that the UK Parliament obtains consent from the Scottish Parliament before it legislates on a devolved matter). Further, it is important to note that the HRA and the ECHR are hardwired into the Scotland Act 1998 and of fundamental importance to the operation of the devolved Parliament and ministers.

It is the Campaign’s view that although amending the HRA would not engage the Sewel Convention by virtue of it being a reserved matter, the creation of a BBoR would presumably effect Human Rights in the Scotland. This latter matter is not reserved, it falls under the competence of the Scottish Parliament and therefore a Sewel Convention would be necessary.

Furthermore, any change in the UK’s relationship with the Council of Europe would require a Sewel Convention. The UK Government have proposed either removing the application of article 46 of the ECHR to the UK, or withdrawing from the jurisdiction of the Strasbourg Court or from the Council of Europe.  This raises important questions about the continuing application of the Scotland Act and the consequences for Human Rights protection in Scotland. It is the Campaign’s view that it would therefore necessarily invoke the Sewel Convention.

 

Conclusions

The Campaign is committed to the notion set out in the preamble of the European Convention that fundamental freedoms are the foundations of justice and peace. The enactment of this in UK law, the HRA, has been essential for the development of a Human Rights culture in the UK, influencing not only court decisions but public authority action as well. Without the HRA, UK society would suffer as a whole.

This observance of Human Rights, and participation in the European process, is admired and respected internationally. This cannot be understated. The UK has a long history of upholding fundamental rights and liberties. Misleading and flawed arguments that the ECHR reduces the sovereignty of Parliament risks supporting similar rhetoric in countries where Human Rights protections are less stable.

At a time of growing austerity, the refugee crisis, and developing security concerns, Human Rights are now more important than ever. Any weakening of our commitment to these fundamental principles weakens the protections we have at a time when we may need them the most. We should not take these rights for granted.

Human trafficking: Upholding Rights! Early Legal Intervention

Over the last 2 years, LSA’s Women and Young Persons’ department has been involved in a policy project with law centres across Europe to publish and promote an ‘early legal intervention’ approach to benefit victims of human trafficking. This blog has been written by one of LSA’s solicitor involved, Andrew Sirel, and discusses the benefits of such an approach and how the project has progressed. 

 

Introduction

Human trafficking is a form of modern slavery. Vulnerable people are forcibly recruited and transported – sometimes on long and harrowing journeys across whole continents – for the purposes of exploitation.  This exploitation takes many forms, including sex-work, domestic servitude in private houses, farming (including cannabis production), construction, the list goes on.  Victims are often enticed by the promise of a better life and a well-paying career, before being held at the mercy of organised gangs through force, deception and debt bondage.  It is an insidious crime, operating in the shadows of society.

The problem is widespread throughout Europe. According to a 2013 report by the EU, more than 23,600 people were victims of trafficking in Europe from the period 2010-2013[1].  In the UK alone, 2,340 potential victims of trafficking were referred to the UK identification mechanism (see below) in 2014, an increase of 34% on 2013.[2]  Surprisingly, although there are an estimated 13,000 potential victims currently in the UK, there were just 130 convictions for trafficking-related offences in 2013-2014[3]. It is likely that the official figures are merely the tip of the iceberg.

Awareness of the problem is growing in the UK and internationally.  Whilst human trafficking is most commonly associated with foreign nationals being transported across borders, it is worth remembering that trafficking also occurs within the UK to UK citizens.  The child abuse-ring exposed in Rochdale in 2014 provided a stark reminder of this.

Given the hidden nature of this illegal industry paired with the increasingly complex measures that traffickers will go to in order to avoid discovery, it can be difficult to identify victims.  Being identified as a victim of trafficking is a very complex process and can often be confusing for a potential victim.  The identification process often runs alongside an asylum claim, and other factors such as trauma suffered play a key part in a potential victim being able to disclose the true extent of their experiences.  In order to effectively navigate the process, it is absolutely vital that a potential victim receive Early Legal Intervention (ELI).

 

The UK System of Identification

The National Referral Mechanism (NRM) for identification of victims of trafficking was established in 2009.  It acts as the backbone for the UK system of intervention in trafficking as a platform to identify and support victims of trafficking within the UK.  The NRM is in place as a result of the Government’s obligation to identify victims under the Council of Europe Convention on Action against Human Trafficking (“Trafficking Convention”) as well as the EU Directive 2011/36/EU on preventing and combating trafficking in human beings and protecting its victims (“EU Trafficking Directive”).

To be referred, potential victims must first be referred to one of the UK’s two competent authorities: (i) the UK Human Trafficking Centre (UKHTC), which deals with referrals from the police, local authorities and NGOS; or (ii) the Home Office, which deals with referrals from the immigration process. The referring authority – known as the ‘first responder’ – will handle the initial referral.  This can be the police, HO, Social Services or an NGO.[4]  The referral will then be passed on to the relevant Competent Authority.

The Competent Authority will then consider initially if there are Reasonable Grounds to believe that the individual is a potential victim.  This is dependent on whether there are basic indicators of trafficking having taken place, and operates to a low standard of proof.  A potential victim then has a 45-day period of ‘reflection and recovery’ before a Conclusive Decision follows as to whether the individual is a victim of human trafficking.

According to NRM statistics, during the period January to March 2015 there were 731 referrals comprising individuals from 64 countries of origin. Within this three month period, 161 of the 731 referrals were found conclusively to be victims of trafficking, whilst 332 of the referrals were still awaiting a conclusive decision.[5]

Potential victims can also be failed by the UK system – recently, a high court judge ruled that the Home Secretary failed to protect three potential victims of trafficking, who were wrongly being detained in immigration detention centres. Failure to correctly identify victims and a failure to make appropriate referrals to the competent authorities can contribute to these situations.

 

Early Legal Intervention

Clearly victims of trafficking are extremely vulnerable and can often be left confused and unaided by the UK asylum process.  Thus, the need for legal support is a pressing one. Indeed, legal support for victims of trafficking is an internationally-recognised concept, enshrined under Articles 6(2) and (3) of the UN Protocol from Palermo (2000), Article 12 of the Trafficking Convention, and Article 12(2) of the EU Trafficking Directive.

Early legal intervention (ELI) exists in order to protect and empower victims of trafficking. It is the provision of confidential, professional legal advice for potential victims of trafficking from their first encounter with the authorities. The importance of legal advice from first contact cannot be overstated.  Often victims are required to give statements to the authorities when they are at their most traumatised and vulnerable.  To be disclosing such information in this state can be damaging to them.  Early legal advice can help a victim regulate their contact with authorities on their own terms, and act as a gateway to immediate protection, improving their social recovery in the long-term.

 

Upholding Rights! Early Legal Intervention for Victims of Trafficking

Despite a number of international and European instruments highlighting new strategies to tackle the problem of trafficking, significant difficulties remain. Particularly, these difficulties manifest in the provision of proper legal advice detailing victims’ rights to assistance and health care, rights to a residence permit, labour rights, and their rights regarding access to justice.

To address this, LSA has partnered up with the Immigrant Council of Ireland (ICI) which is leading a transnational Project on ELI, entitled Upholding Rights! Early Legal Intervention’.   The Project – co-funded by the EU’s Prevention of and Fight Against Crime Programme – aims to promote best practice in securing the protection of victims in trafficking through ELI.  The Project goes beyond the drafting of best practice principles however; it has established a ‘pilot’ programme, with these ELI principles at their core, in Ireland, Bulgaria and Croatia.  Immigrant Council of Ireland (ICI), the Bulgarian Gender Research Foundation (BGRF), and Croatia’s Centre for Women War Victims – ROSA are running the pilots.  The pilot organisations work in partnership with LSA, the AIRE Centre (London) and KSPSC (Lithuania).

During the Project, a comparative report was produced which studied and analysed in detail the processes for victims of trafficking in Ireland, England & Wales, Scotland, Finland, Lithuania and Bulgaria.  Analysis of ELI practices in participating Member States considered whether they were meeting their obligations in implementing the Trafficking Directive; and also contributed towards the harmonisation of ‘best practice’ most fully complying with European and international human rights standards.  The report details a recognition on behalf of these EU countries that the fight against trafficking must “include a rights-based approach to protection of the victims and support the development of prompt collaboration between the State and civil society in upholding the rights of victims.”  This is reached through the provision of comprehensible legal information as soon as possible.

LSA’s Women and Young Persons department has been an integral part of the team. It has had a hand in developing and implementing the Project by using the Department’s legal expertise, grounded in its exemplary casework, to provide a practical template for what best practice ELI actually looks like.

 

Conclusion

The ELI message is clear: if you encounter an individual and there are indicators of trafficking, call a lawyer as soon as possible.

In order to sustain the spirit of the Project, this message must be recognised and put into practice.  LSA will continue to take a leading role in doing so.  Firstly, the Project’s findings will be disseminated to key stakeholders in each partner country.  Secondly, training stemming from the research will be delivered to front-line staff and state agencies to provide critical context to the issue and to reinforce the ELI message.  Again, LSA’s website will provide more details on this in due course.

The conclusion of this Project could not have come at a better time in Scotland.  The Human Trafficking and Exploitation (Scotland) Bill has recently passed the Stage Three in the Scottish Parliament and is now the Human Trafficking (Scotland) Act.  Whilst access to legal advice is mentioned in the Act, ELI is not specifically spelled out.  It is therefore critical for legal practitioners to stress the importance of ELI and make sure that it becomes embedded into anti-trafficking practice in Scotland.

 

[1] http://www.npr.org/sections/thetwo-way/2013/04/15/177326963/european-union-report-details-growth-of-human-trafficking
[2] National Crime Statistics, NRM End of Year Summary 2014, 19 January 2015, http://www.nationalcrimeagency.gov.uk/publications/national-referral-mechanism-statistics/502-national-referral-mechanism-statistics-end-of-year-summary-2014/file
[3] http://www.theguardian.com/global-development/2015/aug/17/modern-slavery-act-human-trafficking-development-agenda-just-beginning
[4] http://www.nationalcrimeagency.gov.uk/about-us/what-we-do/specialist-capabilities/uk-human-trafficking-centre/national-referral-mechanism
[5] http://www.nationalcrimeagency.gov.uk/publications/national-referral-mechanism-statistics/599-human-trafficking-national-referral-mechanism-statistics-january-to-march-2015/file

Legal Services Agency successful in defending eviction action on human rights grounds

By Chris Ryan, Solicitor, Housing and General Court Team

 

As Social Justice Secretary Alex Neil launches the Scottish Government’s campaign to raise awareness of the benefits of human rights for everyone, we report on a recent success where eviction was prevented on human rights grounds.

River Clyde Homes v Woods, Greenock Sheriff Court, Sheriff C G McKay, 11th September 2015

Alastair Houston, Associate Solicitor and co-ordinator of LSA’s Inverclyde Housing Rights Project represented the tenant in this action.

Overview

This is a significant decision as it demonstrates the necessity for a human rights approach and the availability of such a defence which, if absent, would have led to the eviction of a vulnerable tenant.

The decision serves to highlight that the supervision of the court is vital to balancing the rights and interests of landlord and tenant and that access to quality advice and representation where fundamental rights are at stake is crucial.

This is particularly so in cases in which, at first blush, the facts may suggest that eviction is inevitable. i.e. in the present case the facts as they were initially presented were:-

  1. The tenant had a probationary tenancy with limited security of tenure as the tenant had been evicted from a previous tenancy due to anti-social behaviour;
  1. During the probationary period, the tenant had allowed her former partner to use her home as a bail address and live with her despite assurances she had given at the outset.

Difficult case!

Yet, as will become clear, the full picture was not as straightforward as this (as can often be the case).

The tenant was vulnerable, had previously been the victim of domestic abuse and in this case there was in fact no evidence of anti-social conduct at the tenancy or within the neighbourhood.

As will be discussed, it was the availability of a human rights defence which allowed all the relevant factual disputes and issues to be scrutinised by the Court.

Background

The tenant had obtained her accommodation with River Clyde Homes with the assistance of the local authority’s homeless service after being the victim of a domestic assault by her former partner.

The tenancy granted was a Short Scottish Secure Tenancy.

As readers may be aware, this tenancy has limited security of tenure and can be granted in certain circumstances including if the tenant has previously been evicted due to anti-social behaviour during the previous 3 years, which applied in this case.

Section 36 of the Housing (Scotland) Act 2001 provides that decree for eviction must be granted if the relevant and valid Notice to Quit has been served. There is no provision for a reasonableness defence or ability for the court to use its discretion.

However, in an earlier LSA case, South Lanarkshire Council v McKenna, the Inner House held that eviction actions involving Short Scottish Secure Tenancies could be defended on the basis of a proportionality challenge on human rights grounds and that if a tenant sought to make such a challenge there was a requirement for a landlord to give reasons for seeking eviction.

We instructed Adrian Stalker, Advocate, in that case and we are grateful to him for his assistance in developing the arguments which may be advanced in such cases.

SLC v McKenna followed upon decisions in the Supreme Court of Pinnock  and Powell which say there is a high threshold of advancing a seriously arguable case in order to challenge the proportionality of an eviction being granted.

In an earlier judgement in the present case (2015 Hous LR 33), the Sheriff held that there was a sufficiently seriously arguable case to allow the tenant to lead evidence and challenge the proportionality of granting eviction.

Interestingly, the Sheriff contrasted the position in Scotland with that of England where there is a review process for challenging the decision to seek eviction. The lack of such a process in Scotland significantly lowered the bar that a tenant has to overcome to allow proportionality to be argued.  I return to this later.

The reasons for the eviction action and the defence

The landlord served a notice to quit to terminate the tenancy after 6 months and sought the eviction of the tenant. Their reasons for seeking eviction were:-

  1. At the outset of the tenancy the housing officer discussed with the tenant their concern that she would resume the relationship with her former partner. This was a concern for them as the accommodation was offered to her to assist her ending the abusive relationship. They relied on an assurance by her that she would not do so.
  1. At the time of serving the notice the tenant had indeed resumed the relationship and that he was living with her and had provided the tenancy address as his bail address.
  1. There were complaints of antisocial conduct at the former partner’s address that involved the tenant and former partner.

The tenant denied this was the case and it was her position that:-

  1. There had been no breach of the tenancy agreement. There was no contractual provision preventing the former partner from attending the property.
  1. Whilst the former partner had been released on bail to the tenancy subjects, this was without the tenant’s consent.
  1. There had been no anti-social behaviour at her tenancy.
  1. The tenant was vulnerable having suffered domestic violence from her former partner. She had a history of alcohol addiction.
  1. In all of these circumstances it would therefore be a disproportionate and unnecessary interference with the tenant’s rights to respect for her home in terms of Article 8(2) of the European Convention of Human Rights.

 

The decision

After hearing evidence, the Sheriff found that:-

  1. The tenant did not give consent to her former partner providing her address as his bail address.
  1. There was insufficient evidence to establish that her former partner was “living” at the tenancy for a short period after release from bail, and even if this was the case there was no evidence of antisocial behaviour at the tenancy during this period.
  1. The tenant was warned at the outset that allowing her former partner to live with her could lead to the loss of her tenancy and of the effect of antisocial behaviour in the flat or its neighbourhood. However, the Sheriff was not satisfied that the tenant was warned of the consequence of antisocial behaviour elsewhere.

 

The Sheriff followed the English Court of Appeal case of Southend-on-Sea v Armour where the Court took account of the tenant’s circumstances not just at the date of serving the notice but also at the date of the hearing. The Supreme Court approved this approach in Pinnock (Lord Neuberger at [74]).

This was relevant to the present case due to the low threshold which a landlord has to overcome in order to demonstrate it is proportionate to grant an eviction order.

Despite the Sheriff’s reservations about whether the former partner was living with the tenant when he was released on bail, the Sheriff considered the landlord was justified in their approach at that time to issue the Notice to Quit.

However, given the circumstances at the time of the hearing, the following factors tipped the balance in favour of the tenant:-

  1. The tenant has not been subject to any complaints of anti-social behaviour at the tenancy or in the neighbourhood over 18 months since the start of the tenancy.
  1. She was rehoused specifically due to homelessness after domestic violence.
  1. She is a vulnerable individual in light of that and her alcohol abuse.
  1. She has taken steps to address her alcohol abuse.
  1. There was no suggestion of her former partner living at the tenancy other than the brief period he gave the subjects as his bail address.
  1. Eviction would vastly exacerbate her vulnerability at a time when she appears to be successfully addressing her alcohol addiction.
  1. Any negative elements of her behaviour were very much at the lower end of the scale of criminal behaviour.

 

The landlord argued that a Short Scottish Secure Tenancy was not probationary in nature and therefore there could be no expectation on the part of the tenant that Short Scottish Secure Tenancy would convert in due course to a Scottish Secure Tenancy.

The Sheriff however accepted our submission that Short Scottish Secure Tenancies are probationary in nature and taking into account the Scottish Government’s guidance agreed that the purpose is to test the ability of the tenant to avoid anti-social behaviour.

In particular, the fact there was no antisocial behaviour at the tenancy was an overwhelming factor which led to the Sheriff finding that it would be disproportionate to grant an order for eviction.

The action was dismissed and the tenant now enjoys security of tenure at the property as a Scottish Secure Tenant.

Further thoughts

But for the ability to challenge the eviction action on “proportionality” human rights grounds, this vulnerable lady would have lost her home and stability threatening her recovery from alcohol misuse. The Court would have had no other option even although she did not breach her tenancy agreement.

When in force, Section 36(3)(aa) of the Housing (Scotland) Act 2001, as amended by the 2014 Act, ensures that a landlord provides reasons in a Notice to Quit in relation to Short Scottish Secure Tenancies – an amendment made as a consequence of the SLC v McKenna decision.

Section 36(4A) of the 2001 Act as amended by the 2014 Act (also not yet in force) does introduce the right to review a decision to proceed with eviction action in such circumstances.

The fact there was no such right to a review in the present case lowered the threshold to allow the tenant to argue it was disproportionate to evict.

Therefore the introduction of the right to a review will potentially affect the extent to which tenants will be able to rely on a proportionality defence.

Interestingly, however, in his judgement the Sheriff questions whether the new review procedure will be sufficient given that it provides for the landlord simply reconsidering their decision and that reconsideration being by higher ranking officials of the same organisation (para 38).

As outlined at paragraph 45 of Pinnock:-

“Any person at risk of being dispossessed of his home at the suit of a local authority should in principle have the right to raise the question of the proportionality of the measure, and to have it determined by an independent tribunal in the light of article 8, even if his right of occupation under domestic law has come to an end.”

Does an internal review constitute an “independent tribunal”, or does it, as the Sheriff suggests, leave the door open to argue that a lower threshold will continue to apply once the new provisions are in force?

I look forward to finding out!

 

Chris Ryan

November 2015

 

A full copy of the Sheriff’s decision is available here.

LSA Submits Evidence to the Scottish Parliament on Private Housing (Tenancies) (Scotland) Bill

LSA has a long history of providing legal aid to those in the Private Rented Sector (‘PRS’), whether it be landlord/tenant disputes or homelessness issues. LSA regularly works in complex housing matters and engages with vulnerable groups such as refugees and mental health sufferers. Furthermore, LSA hosts the “Housing and Social Welfare Law Campaign Group” on a monthly basis, where PRS and other housing matters have been discussed regularly.  We have been monitoring the discussion on rent controls in the PRS with interest as a greater call to protect vulnerable tenants grow.

On the 9 October 2015, the Scottish Parliament announced it was seeking views on the new Private Housing (Tenancies) (Scotland) Bill. The objective of the bill was to improve the security of tenure for PRS tenants by replacing the short assured tenancy and assured tenancy with a new single tenancy for the PRS. Other protections within the proposed bill include rent controls so that increases can be predictable for tenants and greater opportunities for landlord/tenant disputes to be settled at a tribunal level.

While LSA support such objectives, we are concerned over the effectiveness of the protections afforded by this new bill. Our full written submission to the Scottish Parliament can be found here, with our main concerns being summarized as follows:-

  1. The recovery of possession grounds/eviction grounds in the bill are heavily weighted against tenants (let alone tenants that may exhibit vulnerabilities). This undermines the objective of the bill to provide security of tenure;
  2. Penalties against landlords who mislead or wrongly evict tenants are too weak to act as real deterrent or provide reasonable recompense for the tenant; and
  3. That full access to legal advice, assistance and representation be provided for Tribunal Hearings.

LSA welcomes the opportunity to give evidence on the proposed bill, which it views as a step in the right direction but we believe improvements are required for the new bill to meet its intended aims.

LSA operates a housing drop-service where individuals can get free legal advice on housing and homeless matters at our Glasgow and Greenock offices:-

Central Glasgow

Mon 11.00am-4.00pm

Tuesday 11.00am-2.00pm

Wednesday 11.00am-1.00pm

Thursday (Street Homelessness Issues only) 11.00am-1.00pm & 4.00pm-6.45pm

Friday 11.00am-2.00pm

North Glasgow

Tuesday 2.00pm-4.00pm

Greenock

Tuesday 11.00am-1.00pm

Thursday 11.00am-1.00pm

 

Full details can be found on our website http://www.lsa.org.uk.  

LSA Continues to Fight Judicial Review Time Limit

On 25th March 2014 Paul Brown gave evidence to the Justice Committee on the Court Reform (Scotland) Bill. Last month the Committee published its Stage 1 Report on the Bill, evaluating the evidence provided by all interested parties. This month the Bill completed Stage 2 and now awaits Stage 3 where it faces a final debate in Parliament.

The Bill seeks to implement recommendations outlined in the Report of the Scottish Civil Courts Review (2009), where Lord Gill criticised the court system for being “slow, inefficient and expensive” and recommended that “the court system has to be reformed both structurally and functionally”.

Whilst most provisions received our broad support, you may remember we strongly disputed one central aspect of the Bill – a proposal to limit the application for Judicial Review to three months. Judicial Review is a procedure by which a court can review an administrative action by a public body. It’s a way of supervising public bodies to make sure they’re acting within their legal powers and that they have proper procedures in place to deal with people fairly and openly. LSA often makes or threatens judicial review applications in cases where homeless rights are at issue, or to dispute local authority community-care decisions.

We argued that the proposed time limit has no real pressing policy justification, being unnecessarily pro-Government and anti- applicant and far too restrictive to allow for time to manage an application (especially for smaller community groups). This view has been supported by the Scottish Association of Law Centres and Glasgow Advice Service Campaign Working Party. Paul argued to the Committee “the AXA case opened the door for Judicial Review but the three month deadline, in the context of our court procedure and lack of tradition for judicial review, closes it again.”

Giving evidence, many others outlined similar concerns. Jonathan Mitchell QC neatly compared public authorities’ avocation of a three month time limit for judicial review to a prisoner in Barlinnie arguing for a three month time limit on prosecution for crime. Tony Kelly of Justice Scotland pointed out that only 20% of respondents to the Gill review supported the introduction of the limit. Other organisations demonstrating concerns included the Law Society of Scotland, Friends of the Earth Scotland, Scottish Environment LINK, and Shelter Scotland.

Reviewing the evidence, the Justice Committee in their Stage One Report recognised that many opposed the deadline. However, it is presented as though there was a general balance of opinion on the matter – “A range of views were expressed to the Committee about time limits for judicial review, with some organisations supporting the three month limit and others opposing it”. This is misleading. Of those that expressed a view on the idea of a time limit it their written submissions, only four (including Asda who actually advocated an even tighter 6 week limit) voiced their support for the provision. 14 others, however, opposed it, and at the very least argued for an extension to 6 months.

Apparently ignoring these concerns, the Committee supported keeping Section 85, recommending that subsection (1(b) – which allows for judicial review in such a longer period as the “court considers equitable” – be applied with “flexibility”. In doing so, they appear to give great weight to the view of the Lord President, who in oral evidence, stated that subsection (1)(b) could cover a “wide range of circumstances” and therefore was a sufficient safeguard. Whilst we believe it is certainly necessary to have such a provision to avoid injustice in specific cases if a limit is to be introduced, we strongly believe the existence of such a provision also creates uncertainty for litigants. A longer time limit would reduce the number of cases in which the court had to exercise this discretion, and this would be preferable.

In any case, is very risky to presume such a provision will be applied with “flexibility”. The Bill does not specify the grounds that might be permitted for late actions. In general however, ignorance of the law or delay in obtaining advice (unless caused by an illness) is not regarded as an excuse for raising an action, meaning many meritous cases could still be thrown out.
Allison McInnesALISON MCKINNES MSP EXPRESSED HER CONCERNS TO THE COMMITTEE

Although its was later rejected, we were encouraged when Justice Committee member Alison McInnes MSP lodged an amendment at Stage 2 which would have had the effect of removing Section 85, therefore eradicating completely provisions for the time limit. She reflected the concerns of those opposing the bill, telling her fellow committee members: “There is concern that the three months is insufficient time to assemble a case and secure funding, and that is particularly true for community groups, which, given the need to meet, understand their options and agree a course of action, will likely need longer to marshal their case. It would also present real challenges to those who require legal aid or who have to find a solicitor willing to act pro bono”.

We wrote to Alison McInnes, expressing our support for her endeavours and encouraging making similar amendments again at Stage Three. She replied saying that she is likely to lodge further amendments, but this time with aim to extend the limit rather than remove the section entirely. We are delighted that there may still be a possibility that the legislation could be changed and have informed Alison McInnes that should she make such an amendment, we plan to write to all MSPs on behalf of various organisations encouraging them to support her proposals.

We have been informed that Stage Three is likely to be held in the middle of August (although this is yet to be confirmed) and Alison McInnes has promised to notify us when Stage 3 amendments have been tabled – stay tuned!

Paul Brown on the Courts Reform (Scotland) Bill

Image Our Chief Executive Paul Brown gave evidence to the Justice Committee on Tuesday 25th March on the Courts Reform (Scotland) Bill.  It is the second time this year that LSA has given evidence to the Scottish Parliament following our submission on the Housing Scotland (Bill) in January.

The Bill seeks to implement recommendations contained in the Report of the Scottish Civil Courts Review (2009), which was led by Lord Gill. The Review concluded that the Scottish civil courts provide a service to the public which is “slow, inefficient and expensive” and recommended that “the court system has to be reformed both structurally and functionally”.

The main provisions in the Bill include: an increase in the privative jurisdiction of the sheriff court; creation of ‘summary sheriffs’; establishment of a specialist Scotland-wide court; judicial specialisation; creation of a new Sheriff Appeal Court; changes in the way petitions for judicial review should be brought; new procedures relating to criminal and civil appeals; and merger of the Scottish Courts Service and Scottish Tribunals Service.

Below Paul outlines his views on some of the key sections of the Bill.

Judicial Review

In terms of Section 85 it is proposed that an application for the Supervisory Jurisdiction of the Court (Judicial Review) must be made before the end of the period of three months beginning with the date on which the Grounds giving rise to the application first arise or such longer period as the Court considers equitable. This proposal, of course, contrasts with the current situation where there is no formal time limit.

It is our view that such a deadline would be a serious mistake and we would urge the Committee to recommend that the deadline be extended if not to a year at the very least to six months.

We appreciate that it may be considered appropriate that there be some form of deadline to give a discipline to the consideration of such issues as well as to avoid Government or other organisations having decisions challenged, whether successfully or otherwise, many months if not years after they were taken. Acceptance of the principle of a deadline is very different from acceptance of the deadline proposed. The three month deadline will only be reasonably easily manageable in either comparatively straightforward matters or in matters where the Applicant, and/or the solicitors have an established routine. Thus, Legal Services Agency regularly threatens, and sometimes raises, Judicial Review in disputed homelessness matters and community care matters.

We know the law well, we are in regular contact with Junior Counsel who are also familiar with the law and we are familiar with the approach that the Scottish Legal Aid Board takes to the matter.    It is however a very different matter where the policy or decision being challenged is novel and where substantial research may be necessary, for instance through a Freedom of Information Application (a 40 day time limit).

In complex or novel matters the whole decision making process of the public authority will require to be investigated with Minutes of meetings, correspondence and so forth obtained. Save in emergency matters (such as a homelessness matter) it cannot be assumed that Applicants will consult a solicitor, far less start investigating matters immediately after a decision has been taken.

A delay of a few weeks would be perfectly normal. As the Committee will no doubt be aware, as soon as the application is raised, the permission hearing will require to be prepared for,  written evidence in support of the application lodged and copies of any documents upon which the Applicant proposes to rely and a list of essential documents for advance reading also lodged and intimated. Whilst it is accepted that presumably the Court may agree to the matter being sisted or adjourned to permit more time for the preparation, such an application might be vigorously opposed by the Respondent. Furthermore, and in any event, the drafting of the relevant application and the preparation of a Legal Aid application will all require this work to be done beforehand. It may be said that of course in England there is such a three month deadline.

As other organisations giving evidence have commented, the position in England is very different with a tradition of Judicial Review and indeed a well established specialist law centre.   In addition, there are very well known specialist law firms. Little of this “infrastructure” exists currently in Scotland. The position would be still more difficult for community, charitable and voluntary organisations (NGO’s). Until recently, of course, it was difficult if not impossible for such organisations to embark on Judicial Review (unlike the position in England).

The law in Scotland now allows for a single test in which the Petitioner for Judicial Review must demonstrate a “sufficient interest”.   Thus NGO’s in theory can take action. In addition procedures have been introduced to moderate Petitioner’s liability for the legal expenses of a successful Respondent.  (Protected Expenses Order) These are important reforms which allow access to justice to go someway to approximate that in England and Wales.

The new law however is novel. If NGO’s are to have any chance at all of availing themselves of the new law they must be given a reasonable amount of time in order to take up the remedy, Judicial Review, now available.   A three month deadline is, quite simply, far too short. Not only will a Petitioner organisation have to be find a solicitor, prepare the case and so forth they will also have to find the necessary funds to pay their own legal expenses and potentially make provision for those of the Respondent.

Until such time as NGO’s become familiar with the procedure, which may take many years, it seems unlikely that they will be able to avail themselves of Judicial Review at all if the time limit is imposed. In short, the reforms of the widening of access will be rendered stillborn by the deadline. The three month deadline significantly reduces access to justice without any obvious justification.   It is pro-Government and anti-Applicant.

Simple Procedure in the Sheriff Court

We welcome the introduction of Simple Procedure for all claims up to £5,000.    It makes sense to have one procedure rather than the current two.   We do however share the Law Society of Scotland’s concern about the curious provision in terms of Section 77 (4)(a) to the effect that in certain cases an award of expenses may be made notwithstanding the general rule that no award should be made. The circumstances to which we refer are where the defender had not stated a defence, or having stated a defence, has not proceeded with it. In effect this provision makes negotiation more difficult.    Th

The rule prejudices Pursuers who may submit a defence and then proceed to change the position upon receipt of legal advice. Currently there is much publicity on small claims indicating that no expenses are awarded: this obscure rule has caused problems for vulnerable people and the repetition to this provision would not seem advisable.

Simple Procedure/Defended Eviction & Specialist Sheriffs

We note that it is intended that the Sheriff may have an inquisitorial role in the Simple Procedure.   Whilst such a role does not in any way, in an important matter, reduce or alter the need for legal representation, it is nonetheless a helpful proposal. We would however suggest that if an inquisitorial role is to be taken seriously a degree of specialisation by Summary Sheriffs will be necessary. We would suggest that it seems unlikely that a Summary Sheriff will be sufficiently well briefed to deal with the whole gambit of Simple Procedure cases on an inquisitorial basis as well as other matters and criminal law. We would welcome a degree of specialisation as well as, as much separation of criminal and civil matters as is reasonably practicable.

Specialist Sheriffs generally

In our view, there is much to be said for Specialist Sheriff’s, in addition to the above, in the fields of  adults with incapacity and children’s hearing referrals.

The Privative Limit for the Sheriff Court

We support the many submissions that we have read to the effect that the proposed privative limit of the Sheriff Court of £150,000 is excessive. In our view, it should be no more than £50,000 at the most. We have some difficulty in understanding why it is argued by some that the proposed very high limit of £150,000 is in the interest of consumers.   The current arrangements are to the advantage of consumers/Pursuers who can choose the Court that can suits them best.

We appreciate that Defenders may object to  an action being raised in the Court of Session with the necessary instruction of Counsel and so forth where the value is low.   Our understanding is that the Judges themselves attempt to control this using orders regarding expenses. If however, more control is desired, as above indicated, we would propose a limit of £50,000.   We make this comment however in the context that, generally, the proposed change whether £50,000 or £150,000 is to the advantage of Defenders, not consumers. We would be concerned that the abrupt introduction of £150,000 Sheriff Court jurisdiction may have a range unintended and unascertainable consequences.

Conclusion We support much of what is contained within the Bill.   The introduction of Summary Sheriffs, more systematic provision for Specialist Sheriffs and the introduction of Simple Procedure all seem worthwhile reforms. We are concerned about the possible consequences the introduction of the Privative  Jurisdiction of the Sheriff Court of £150,000 may have and thoroughly disagree with the three month  deadline for Judicial Review.

WATCH PAUL’S SUBMISSION IN FULL:

 

Housing (Scotland) Bill

_72449713_72448132LSA Chief Executive Paul Brown (left) at the Committee

The Housing (Scotland) Bill is a complex proposed enactment currently going through the Scottish Parliament.   There is much in it that is thoroughly progressive and promises to help those in housing needs in Scotland.   Such proposals include the long overdue abolition of the right to buy.

One proposed change includes improved regulation of the Short Scottish Assured Tenancy regime.   These proposed changes have taken on board the views of the court in LSA’s test case (South Lanarkshire Council v McKenna).

The improvements to the regime include proposals for the housing provider to give reasons should they propose an eviction from a Short Scottish Secured Tenancy, as well as a requirement to provide a review process should a tenant be aggrieved.
All this is good stuff.

LSA was privileged to be invited to Parliament on 22nd January 2014 to make written and verbal submissions to the committee studying the proposed new law.

We took the opportunity to not only indicate what we supported but also the proposals that caused us considerable concern.

Those concerns arise from the experience of our work to the effect that, particularly in Glasgow, there is a major crisis of an increase in rough sleeping and fall in availability of temporary accommodation.   Apparently this is caused by a lack of availability of permanent housing for people who are in temporary accommodation.   In other words, a crisis in allocation of housing has a knock-on effect, resulting in the most vulnerable having nowhere whatsoever to stay.

The Bill, in our view, does not handle these issues in the right way.

It does not enhance the obligations of Registered Social Landlords (“RSLs”) to allocate housing to those in the most need.   On the contrary, it increases the discretion landlords have not only to allocate but also to evict those it claims are guilty of anti-social behaviour.

It also makes it easier to convert existing Secured Tenancies to Short Scottish Secured Tenancies.

The policy behind the Bill seems to be to use the provision of housing as an increased way of disciplining people who have a variety of behaviour issues.   This is, of course, an understandable objective on the part of housing managers, it risks, however, increasing the “underclass” of homeless people:  a proportion of whom, though theoretically entitled to temporary accommodation, do not appear to be able to even get that.

LSA made robust submissions, both verbally and in writing.   Copies of both sets of written submissions are on our website.

One aspect of the Bill that has caused widespread concern is the “watering down” of RSLs’ obligations to young people.   LSA has joined in a campaign with Shelter Scotland, among others, to rectify this.

While we have grave concerns about the policy, the process of engaging with the Parliament and, more closely, with other voluntary organisations (including Govan Law Centre and the Law Society of Scotland, with whom we appeared) has been a positive one that we will build on for the future.

Novel Case in Mortgage Repossession

brown and coOne of LSA’s clients at our Inverclyde Housing Rights Project was defending an action raised by a second secured lender for repossession.

The second secured loan had fallen into arrears.   At the date proceedings were raised, the client owed the lender in excess of £25,000.   The client’s difficulties had been caused by running up a high level of unsecured debt and prioritising this over payments to the second secured lender.

By the time the client sought advice from LSA, she had paid off her unsecured creditors, leaving only her main mortgage and second secured loan.   Offers of repayment were made to the pursuers which were rejected.

LSA, on behalf of the client, submitted an application in terms of Section 129 of the Consumer Credit Act 1974 requesting that the court make a “time order”.  Such an order allows the court to provide for the rate of payment by a debtor to a creditor that the court, “having regard to the means of the debtor or hirer and any surety, considers reasonable”.   The test is justice.  Significantly, under Section 136 of the Consumer Credit Act 1974, the court also had the power to include “such provision as it considers just for amending any agreement or security”.   The court can therefore amend any term of the credit agreement when granting a time order.

The court, after hearing on the time order application, decided it was just to grant the application.

The time order provided that the client was to make payment to the pursuers at a higher rate of payment but that no interest or charges were to be applied on the arrears and penalty charges that had accrued to date.  This totalled the overwhelming majority of the sums owed to the pursuers and will save the client (defender) a considerable amount of money given that the variable interest rate was most recently 13.69%.

Time orders can only be applied in respect of unsecured debts and secured debts that are regulated by the Consumer Credit Act 1974.  Main mortgages are exempt from regulation under the 1974 Act.

This case represents a significant new weapon in the armoury of mortgage advisors.  Contact LSA’s Inverclyde Housing Rights Project for further information:

Inverclyde Housing Rights Project
9 Sir Michael Street, Greenock, PA15 1PQ
Telephone:  01475 725665

LSA Test Case on Deprivation of Liberty and Powers of Attorney

power-of-attorney-preston-1

LSA encourages the use of Powers of Attorney, in particular for the elderly and those diagnosed with mental ill health.  They provide a great way of planning for the future.  A Welfare Power of Attorney allows a person to appoint someone they trust to make decisions in the future about their medical, personal and social needs if they become unable to do so themselves.  However LSA feels the law in this area lack safeguards in regard to the issue deprivation of liberty.

In our view an Attorney authorising the placement of the person they are loo
king after in a locked residential environment or nursing home against their wishes is contrary to the European Convention on Human Rights.  We are not alone in this view and we await the Scottish Law Commission’s Report on Deprivation of Liberty with great anticipation.

LSA has recently acted to safeguard one of our clients and has commenced a test case on the issue about whether or not a Welfare Power of Attorney can exercise their role as Attorney by depriving someone of their liberty within a locked environment.  The incarceration was contrary to the wishes of our client, who was released after an order of the Court of Session for interim liberation.

Karen McGill, Partner within LSA’s Mental Health Legal Representation Project commented:

“The practice over the years of Welfare Attorneys in some circumstances depriving someone of their liberty lacks the human rights protections and proper means of review, of challenge by a Court.  The time has passed whereby this practice without proper safeguards can continue”.

Watch this space for further developments as matters progress.