Paper rights

There is a worldwide phenomenon of ‘paper rights’. By that I mean people are given a right or entitlement as a matter of law but in practice those rights are ignored by public bodies or are rarely accessible in practice. To give a couple of examples.

I’ve acted for vulnerable female refugees with young kids who were placed in grotty bed and breakfast accommodation populated by single, violent, male, alcoholics. The law says they should spend no more than 14 days in such accommodation but they were there for many weeks until they fled in fear. These were victims of unspeakable war crimes trying to regain their dignity and life.

The law says if a homeless person has no priority need or is intentionally homeless they are still entitled to a reasonable period in temporary accommodation. In Glasgow, we know that single men and women who present as homeless are lucky to get a sleeping bag to sleep rough on the street, or at best they might be allowed to sleep on a chair for one night.

It’s awful. And this phenomenon is not restricted to Scotland or the UK. The fact good laws exist on the statute book is only half the battle, we need implementation of those laws in practice – and when they are not being respected, we need practical remedies for citizens to ensure that they are.

In the context of Scottish housing, there is a major inequality between social rented tenants and private sector tenants. Too many tenants in the social and private rented sectors live in properties which are not reasonably fit for human habitation – damp, cold, smelly homes with mould growth and dangerously high populations of the house dust mite – which excretes a potent allergen giving rise to asthma and other illnesses.

Our law of repairs prohibits such living conditions, and we are able to secure paltry sums of damages – maybe a £1,000 per a year for living in extremely substandard housing. What is missing is a remedy to speedily enforce the carrying out of major repairs. But our law of specific implement is hopelessly outdated, and I have tried to use the 1990 Environmental Protection Act but we lost on a 2-1 decision in the Inner House – so we have been unable to use the EPA in condensation dampness cases – unlike in England and Wales.

The Scottish Government introduced the 2006 Housing (Scotland) Act which provides a Private Rented Housing Committee system to enable tenants to get repairs done without legal expense. However, this remedy only applies for private sector tenancies. Why?

I suspect because of the strength of the housing lobby and moreover the fact the Scottish Government realised that if this scheme were extended to housing association or council tenants, ultimately the financial implications of undertaking major repairs would find its way back to the Scottish Government.

So over a quarter of all households in Scotland have no remedy to force their landlord to undertake major repairs. It’s incredible. And there is a conspiracy of silence. I am sure you can think of examples from you own professional experience where vulnerable citizens have a solution on paper but in real life you know that they will never access it.

Yet a strong and independent Scottish legal profession can and does speak up for real rights for real people. Will your Tesco lawyers do that? Answers on a postcard to John Swinney and Kenny MacAskill – oh and you might want to ask Nicola Sturgeon how on earth an expanded dodgy private landlord sector will help vulnerable people?