The right to own a home
Debate is raging over the Scottish Government’s plans to scrap the right to buy. Ruth McNaught examines whether the move could breach tenants’ human rights
The Scottish Government is consulting on plans to scrap the right to buy, or to move tenants with a ‘preserved’ right to buy onto modernised terms.
The right to buy is a subject which invokes strong feelings - on both sides of the reform argument. But a more fundamental question remains: would scrapping the right to buy breach the human rights of tenants?
Article 8 of the European Convention on Human Rights (the right to respect for private and family life, home and correspondence) protects the private life of an individual against arbitrary interference by public authorities.
Of particular note is the individual’s right to respect for their home. Scottish secure tenants’ right to buy their home has subsisted for more than 30 years and has been made available to hundreds of thousands of tenants.
About 455,000 Scots have already bought homes under the scheme - leaving councils with 320,000 homes. Another 10,000 homes would be retained between 2015 and 2020 if the right to buy is scrapped. But could its abolition breach article 8?
Case law would suggest otherwise. In 2003, the House of Lords noted that ‘the European Court of Human Rights had made clear that article 8 does not in terms give a right to be provided with a home and does not guarantee the right to have one’s housing problem solved by the authorities’.
Protocol 1 protects the entitlement ‘to the peaceful enjoyment’ of possessions, except where it would be in the public interest to deprive a person of such entitlement. It is expressly provided that the right of a state to enforce laws deemed necessary to control the use of property in accordance with the general interest is not contrary to Protocol 1.
In 2004, a Northern Irish case examined whether the rejection of an individual’s application to exercise their right to buy breached articles 8, 14 and protocol 1 of the European Convention on Human Rights.
Regarding protocol 1, the court considered a ruling of the court in Strasburg dating back to 1979, where it found that ‘this article does no more than enshrine the right of everyone to the peaceful enjoyment of “his” possessions, that consequently it applies only to a person’s existing possessions and that it does not guarantee the right to acquire possessions’. The court confirmed that it did not recognise any human right to become the owner of property.
Conversely, the Council of Europe maintains that the convention applies where there is a ‘legitimate expectation’ that a certain state of affairs will apply. Scottish secure tenants with a preserved right to buy, who have had the entitlement for a number of years - may be regarded as having such a legitimate expectation. The exception to the protocol is thus likely to be of assistance: the Scottish Government has indicated that the reforms are necessary to protect Scotland’s social housing stock for the greater public interest.
Questions of indirect discrimination may also be posed. Those with the preserved right to buy are almost invariable older people - 41 per cent are over 60 years old.
Yet, this is set against the backdrop of the Scottish Government seeking to reform the right to buy in a manner that is proportionate to further a legitimate aim, namely, the reduction of waiting times for those to be allocated housing and the alleviation of homelessness.
The likelihood of a successful challenge on human rights grounds is lessened by the Scottish Government’s assurance that the proposals (if implemented) will come into force on a phased basis, whereby no person will suddenly find that their entitlements have been eliminated without due notice.
The challenge will be for the Scottish Government to ensure that tenants know and understand that they will have a prescribed period within which to exploit their right to buy entitlement, before it is lost.
Ruth McNaught is a solicitor at Harper Macleod