People who rent out residential property in England have to check the documents of all tenants that they have the ‘right to rent’ but in practice this had led to discrimination the High Court has found.

The High Court has ruled that this breaches the European Convention of Human Rights . The ‘Right to Rent’ legislation applies to the whole of the UK but has only been put in place in England.

Concerned that the UK Government would roll this out across the UK, Scotland’s Housing Minister, Kevin Stewart said:

“The High Court ruling is one we welcome as this is a policy we do not want imposed on Scotland. I’m now seeking clarification from the Minister on her future plans and hope she will pay attention to the ruling and end Right to Rent.”

The UK’s legislation requires all tenants over 18 to be checked out even if they are not named in the tenancy and there is no written agreement. It basically includes all the adults who will use the property as their main home.

Landlords have to check all the original documents of the tenants and keep copies of them.

Kevin Stewart is calling on the UK Government to scrap the ‘Right to Rent’ legislation which the High Court concluded was leading to discrimination of non UK Nationals and UK ethnic minorities.

The challenge to the ‘Right to Rent’ in the High Court stated that:

“the net has been cast too wide and the effect of the Scheme has been to cause landlords to commit nationality and/or race discrimination against those who are perfectly entitled to rent with the result that they are less able to find homes than (white) British citizens.

“This is said to have been an unintended effect of the Scheme and that, in implementing the Scheme, landlords are acting in a way which is discriminatory on grounds of both nationality and race, not because they want to be discriminatory but because the Scheme causes them to be discriminatory as a result of market forces.

“The Defendant Department has refused to carry out its own evaluation of the Scheme or put in place any effective system for monitoring it in the face of what is said to be compelling evidence gathered by the Claimant and other non-governmental organisations of the discriminatory effect of the Scheme.

“The challenge is said to be brought in the public interest to ensure that the rule of law is vindicated in an area of obviously pressing public interest.”

Mr Justice Spencer in his ruling said:

“In my judgment, a decision by the Defendant to commence the Scheme in Scotland, Wales or Northern Ireland without any further evaluation of its efficacy on the one hand and its discriminatory impact on the other in the form of an exercise to measure each of those matters effectively would indeed be irrational and a breach of Section 149 of the Equality Act 2010.”

He stated that the way the legislation had been implemented in England was such:

“not that there will be merely a risk of illegality should the Scheme be extended to the devolved territories but a certainty of illegality because landlords in those territories will have the same interests and will take into account the same considerations as their counterparts in England. “

This damming judgment on the discriminatory effects of the Right to Rent legislation and its breach of the European Convention of Human Rights has led to Kevin Stewart seeking a meeting with his UK Government counterpart.

A Home Office spokesperson said:

“We are disappointed with the judgment and we have been granted permission to appeal, which reflects the important points of law that were considered in the case. In the meantime, we are giving careful consideration to the judge’s comments.

“An independent mystery shopping exercise for the department found no evidence of systemic discrimination in the Right to Rent Scheme. We are considering options for further evaluation of the Scheme.”

Kevin Stewart stated:

” Despite it [Right to Rent] relating to a reserved matter, it would directly impact on matters that are fully devolved to the Scottish Parliament and, to date, consultation with both the Scottish Government and key Scottish stakeholders has been limited. “

Reporter: Fiona Grahame