The ASSC engaged the respected legal firm Burness Paull LLP in Summer 2021 to provide expert comment on the Scottish Government’s short-term let regulatory plans and their arguments are set out below.
We consider that the draft Order creates a regulatory framework that is manifestly inconsistent with the Scottish Government’s Better Regulation Agenda [18] and the principles of regulation being proportionate; consistent; accountable; transparent and targeted only where needed
Furthermore the draft Order creates a framework that is inconsistent with the Regulator’s Strategic Code of Practice to which local authorities as regulators must have regard under Section 5 (5) of the Regulatory Reform (Scotland) Act 2014 in exercising any regulatory functions.
In particular we consider that the draft Order would effect breaches of the Code in the following manner:
Clause 2 of the Code: Regulators should pursue a positive enabling approach in their pursuit of outcomes, which contribute to ‘sustainable economic growth’. [Section 4 and 5, Paper 2: Draft Licensing Order] demonstrate the drastic economic consequences that will inevitably result from the new regulatory proposal.
Clause 2 of the Code. Regulators require to be committed in their decisions, actions and policies to the five principles of better regulation: regulation should be transparent, accountable, consistent, proportionate and targeted only where needed. However, as has been outlined above, the ASSC considers the entire framework to be disproportionate, potentially inconsistent in its application between regulators (e.g., local authorities) and that, without empirical data, seeks to regulate distinct sections of the self-catering industry in a blunt and blanket manner manifestly failing to target its regulation at genuine, identified issues.
Clause 3 of the Code requires Regulators to be enablers to help support businesses to grow sustainably. The draft Order for all of the aforementioned reasons cannot meet this objective it will stifle rather than support small businesses in this sector. This regulatory framework would also force regulatory decisions to be taken in a manner that is entirely inconsistent with many of the principles in this clause including:
- minimising business compliance costs, where possible, by reducing unnecessary bureaucracy and delays;
- helping those they regulate to design simple and cost-effective compliance solutions to improve confidence and day to day management control.