OPINION

Cochrane v Grampian Joint Police Board

[1] This is an application for a finding in terms of Section 68(4) of the Housing (Scotland) Act 1987, that Mr Cochrane, a former Police Officer with Grampian Police has a right to buy the house which he has occupied as tenant at 29 Viewfield Road, Aberdeen since 1994. The landlords, Grampian Joint Police Board, oppose the application on the basis that he has never been required to pay rent or rates and, accordingly, that the tenancy is excluded from the right to buy provisions by virtue of the exception set out in Para. 7(a)(i) of Schedule 2 to the Act. The essential facts and relevant statutory provisions are the same as those in Robb v Tayside Joint Police Board, cited below, where the Tribunal held that the circumstances did not fall within the terms of the statutory exception. However, as will be seen, while the applicant attempted to rely on the decision in that case, he did not attempt to rely on the reasoning behind it. We deal with some of the implications of that under the heading stare decisis.

[2] At the hearing on 3 and 4 August 2010, the applicant was represented by Mr I.G. Mitchell, QC and Mr P.G.S. Barclay, Advocate, and the respondents by Mr R.W. Dunlop, Advocate. At the outset, we allowed the application to be amended to run in name of Mr Cochrane alone, it having previously referred to other members of his family. All the relevant facts were agreed by joint minute summarised below and the matter proceeded essentially as a debate.

Authorities

A-G v Hanover (HRH Prince Ernest Augustus) 1957 AC 436
Barron v Borders Regional Council 1987 SLT (Lands Tr) 36
Hanlon v The Law Society [1981] AC 124
Deposit Protection Board v Barclays Bank Plc [1994] 2 AC 367
Holmes v South Yorkshire Police Authority [2008] HLR 33
Oxfordshire County Council v Oxford City Council [2006] Ch 43
Robb v Tayside Joint Police Board 2009 SLT (Lands Tr) 23
Robertson v Church of Scotland General Trustees 1976 SLT (Lands Tr) 11
R (A) v Director of Establishments of Security Service 2010 2 WLR 1
R v Hammersmith and Fulham LBC. Ex p.M (1998) 30 HLR 10
R (Quintavalle) v Secretary of State for Health [2003] 2 AC 687
Royal College of Nursing v D. H. S. S. [1981] AC 800

Primary legislation

Police (Scotland) Act 1967
Tenants’ Rights Etc (Scotland) Act 1980
Housing (Scotland) Act 1986
Housing (Scotland) Act 1987 (“the 1987 Act”)
Abolition of Domestic Rates (Scotland) Act 1987 (“the Abolition Act”)
Local Government Finance Act 1992
Housing (Scotland) Act 2001
Local Government (Scotland) Act 1975

Secondary legislation

Police (Scotland) Regulations 1976
Police (Scotland) Amendment Regulations 1990
Police (Scotland) Amendment Regulations 1994
Housing (Scotland) Act 2001(Scottish Secure Tenancy etc) Order 2002

Text Authorities and references

Bennion Statutory Interpretation - 5th Edition
Hansard - Volume 86
Hansard - Volume 93
Hansard (House of Lords) - Volume 472
Hansard (House of Lords) -Volume 474
Oxford English Dictionary 2nd Edition “rate”

Facts

[3] In terms of the Joint Minute it was agreed that the applicant was a Police Officer with Grampian Police from October 1979 until he retired on 7 October 2009. From 1 April 1980 until his retirement Mr Cochrane resided in police accommodation provided to him as part of his employment as a Police Officer, as was his entitlement under Reg.66 of the 1976 Regulations. For the first nine years he was, in fact, required by Grampian Police to live in such accommodation.

[4] He had been provided with rent-free accommodation at two addresses before August 1994 and since then has lived at 29 Viewfield Road, Aberdeen. Until March 1989 he paid neither rent nor domestic rates in respect of any of this accommodation.

[5] Domestic rates were abolished with effect from 1 April 1989 when the Community Charge came into force. Police Officers such as Mr Cochrane were required to pay the Community Charge but were provided with a fixed “provided accommodation allowance” of £300 per annum in terms of the regulations for each of the tax years 1989-1990; 1990-1991; and 1991-1992. From 1 April 1993, when the Community Charge was abolished, Mr Cochrane required to pay Council Tax. No accommodation allowance was paid to offset this tax.

Summary of relevant legislative material

[6] In this opinion we refer to the Housing (Scotland) Act 1987 as “the 1987 Act”. References to “Para.7” are to Para.7(a)(i) of Schedule 2 to that Act. We refer to the other relevant Act of 1987, the Abolition of Domestic Rates (Scotland) Act 1987, as “the Abolition Act”. References to Reg.42 and Reg.66 are to the provisions of the Police (Scotland) Regulations 1976.

[7] The respondents accepted that they were a “local authority landlord” and that the house was let under a tenancy within the meaning of the relevant legislation. The tenancy had started before 30 September 2002 which was the commencement date of the new regime under the 2001 Act. In order to have the right to buy, the applicant required to be tenant under a “Scottish secure tenancy”. The effect of Section 11(1)(e) of the 2001 Act and the Housing (Scotland) Act 2001 (Scottish Secure Tenancy etc) Order 2002 was that it was only a Scottish secure tenancy if, as at 30 September 2002, it was a ‘secure tenancy’ under the 1987 Act. It was accepted that the applicant would have been a “Scottish secure tenant” at that date unless the respondents could demonstrate that the circumstances of his tenancy were covered by the provisions of Para.7.

[8] Secure tenancies, and the right of secure tenants to buy, were introduced by the Tenants’ Rights Etc (Scotland) Act 1980. Police and fire authority landlords were not originally covered. That was changed by the Housing (Scotland) Act 1986.

[9] The relevant provisions of the 1986 Act were re-enacted in the 1987 Act which was a consolidation Act. Para.7 of Schedule 2 to the 1987 Act provided as follows:-

“7. A tenancy shall not be a secure tenancy if the landlord is an authority or committee mentioned in-

(a) section 61(2)(a)(viii) and the tenant-

is a constable of a police force, within the meaning of the Police (Scotland) Act 1967, who in pursuance of regulations under section 26 of that Act occupies the house without obligation to pay rent or rates; or

in a case where head (i) above does not apply, is let the house expressly on a temporary basis pending its being required for the purposes of such a police force;”

[10] Section 26(2)(j) of the Police (Scotland) Act 1967 authorised regulations in relation to “the hours of duty, leave, pay and allowances of constables.”

[11] The Police (Scotland) Regulations 1976 made in terms of the 1967 Act provided inter alia:-

“42(1) A constable who is not provided with a house or quarters free of rent and rates shall be paid a rent allowance which shall be either a maximum limit allowance or a flat-rate allowance.”

“42(7) In this regulation - “(c) the expression “rates” means any rate, charge, or assessment, the proceeds of which are applicable to public local purposes and which are leviable on land and heritages and includes any rate in respect of water supply payable according to the net annual value of the house or quarters; … ”

“66. A constable who is not paid a rent allowance under regulation 42(1) shall be provided with a house or quarters free of rent and rates … ”

[12] “Domestic rates” were abolished with effect from 1 April 1989, in terms of sec 1 of the Abolition of Domestic Rates (Scotland) Act 1987. They were replaced by the community charge.

[13] Regulations 42 and 66 above were amended by the Police (Scotland) Amendment Regulations 1990, so as to read inter alia as follows:-

“42(1) Subject to the provisions of regulation 42B, a constable who is not provided with a house or quarters free of rent shall be paid a housing allowance which shall be either a standard-rate allowance or a half-rate allowance …

“42(12) In this regulation- “(c) the expressions “rent allowance” and “rates” have the same meanings as they had in regulation 42 of the principal Regulations as originally enacted … ”

“66. A constable who is not paid a housing allowance under regulation 42(1) or a transitional rent allowance under regulation 42B shall be provided with a house or quarters free of rent … ”

[14] The community charge was abolished and replaced by council tax, with effect from 1 April 1993, in terms of the Local Government Finance Act 1992. No amendments were then made to any relevant parts of regulations 42 or 66.

[15] Regulations 42 and 66 were repealed by Reg.12 of the Police (Scotland) Regulations 1994. References in these regulations to entitlement to rent-free accommodation were all to the provision of accommodation “free of rent”. There was no mention of “rates” in these regulations.

[16] The Housing (Scotland) Act 2001 introduced “Scottish secure tenancies” and also amended the right to buy provisions in a number of respects. In relation to tenancies commenced after 30 September 2002, Schedule 1 of the 2001 Act listed cases of tenancies which are not Scottish secure tenancies. Paragraph 2 of Schedule 1 provides as follows:-

“2. A tenancy is not a Scottish secure tenancy if the landlord is a local authority landlord and the tenant-

“(a) is a constable of a police force, within the meaning of the Police (Scotland) Act 1967, who in pursuance of regulations under section 26 of that Act occupies the house without obligation to pay rent or council tax,”

[17] The effect of the various regulations was that a police officer, such as the applicant had been, did not require to pay rates at any time when traditional domestic rates were exigible. After that, he had to pay community charge but received an allowance towards it for three years. He received no allowance in 1993 and 1994. He then had to pay his own council tax.

Stare decisis – the effect of the decision in the Robb case

[18] Mr Barclay opened the submissions for the applicant by reference to the decision of the Tribunal in the case Robb v Tayside Joint Police Board. He said that case was on all fours. The doctrine of stare decisis applied. (This expression may be translated as “to stand by things decided”. It was used by counsel to refer to the idea that a court or tribunal is bound to follow a particular decision) He submitted that this was the proper approach for Scottish Courts and Tribunals. It meant that the Tribunal should not depart from the previous decision. He cited Robertson v Church of Scotland General Trusteesat p12. In any event, even if not binding he suggested that the decision in Robb should be seen as highly persuasive. Senior Counsel did not depart from this submission but said he did not wish to add to it. It is convenient to deal with this argument at this stage.

[19] The respondents had intimated to the Tribunal Clerk their intention to challenge the decision in Robb. They had suggested that a larger Tribunal should be convened. They submitted that the Clerk had been correct to say that the Tribunal was not bound by its previous decisions and that it was not necessary to have a larger Tribunal before an issue covered by a previous decision could be reconsidered. They accepted that the Tribunal would inevitably place considerable weight on any previous decision. But, essentially, both Tribunals were operating as first instance courts and it was submitted that there was no binding rule of precedent in the circumstances.

[20] We are not persuaded that there is any justification for the application of a doctrine of binding precedent in the context of decisions of first instance tribunals. We were not referred to any authority suggesting that other first instance tribunals are bound by they own decisions and our general understanding is to the contrary. We also note that the Scottish Land Court does not regard itself as bound by previous decisions: see Stair Encyclopedia vol 22 para 321.

[21] A rigid rule of stare decisis does give rise to practical problems. If, a particular tribunal was minded to reach a different conclusion from a previous tribunal, it would be unfortunate if it was able to explain why it thought the previous decision was wrong but was forced to refuse to give effect to its own conclusion. In practical terms the losing party would be forced to appeal to gain the benefit of a considered decision. It may be added that it is a particular problem for a small specialist court or tribunal that it will often have to make a decision on an issue which may have a bearing on other issues without the benefit of full submissions on all such issues. We think that the ability to be able to reconsider issues of law in light of experience is an important attribute of such a tribunal.

[22] That said, there is no doubt that consistency of approach is desirable. We recognise the force of the dicta to that effect in Robertson. Although it begs the question to say that we must give effect to such dicta we have no doubt that we must endeavour to follow previous decisions. Where a decision has been relied on as a basis of established practice we would be very unlikely to accept that it was appropriate to change it. Other cases will depend on their circumstances and on the nature of the decision in question. However, we consider that, in principle, we are not bound by our own decisions. We do not regard ourselves as bound by any formal requirement to convene a larger tribunal. The Tribunal now operates with two legally qualified members and two surveyors. An obligation to convene a larger tribunal to reconsider a point of law, would create obvious difficulties. However, there might be circumstances in which we would consider it appropriate to take that step.

[23] We recognise that the second decision will not necessarily be “better” than the first but it will usually have had the benefit of wider discussion of issues and authorities. In particular, it will, as here, have had the benefit of detailed scrutiny of the reasons given in the first decision. The second decision may, as here, also have the benefit of potentially relevant authority which might not have been before the first tribunal. It must also be borne in mind that in an adversarial system, the function of the court is to determine which of competing submissions is to be preferred. In practice, judges will always seek to apply what they consider to be correct legal principles. They expect assistance from parties’ submissions but will also try to ensure that all issues they think relevant are covered by submissions. Tribunals are expected to be somewhat more flexible in their approach. They can be expected to be familiar with the law applicable to their own specific jurisdictions and will therefore find it easier to ensure that relevant issues are properly ventilated. But, a tribunal like the Lands Tribunal, which - unlike many tribunals - is dealing with disputes between private parties, will still expect, and be expected, to decide cases on the basis of matters covered in course of submissions. If a judge or tribunal chairman, when settling to consider the effect of the various submissions, does think of a relevant new point or discovers an authority or statutory provision which he, or she, considers to have a significant bearing on the argument, it may well be necessary to give parties a chance to comment before reaching a concluded decision. There will, of course, be no need for this if the new material simply supports a conclusion reached on the basis of the material which has been discussed in submissions.

[24] The need to determine cases on the basis of the arguments considered in submissions has a particular bearing on the issue of stare decisis in the present case. As will appear, both parties expressly disavowed the approach taken before the tribunal in Robb. Both asserted that their arguments were, essentially, on a different basis from those advanced by the parties in that case. Although each sought some support from aspects of the decision they did not rely on the ratio. It accordingly appears to us that the opening submissions to the effect that we should, at least, treat the decision as “highly persuasive”, are inapplicable. If, as we accept, we are not formally bound to reach the same result as in the previous case, whatever the arguments, there is no substance in the submission that a decision reached on the basis of quite different arguments should be regarded as highly persuasive. We are satisfied that as the parties were agreed that the present case required a different approach, the decision in Robb has no direct bearing on our conclusion and we need not consider the correctness or otherwise of that decision.

The applicant’s substantive argument

[25] Mr Barclay went on to refer to the detail of the statutory provisions and the various regulations enacted under the 1967 Act. He accepted that the definition in Reg.42(7) would not have covered the personal community charge. In terms of sec.10 of the Abolition Act this was a charge on persons, not properties. But, he contended that it would have covered the standard community charge. If the policeman’s house had happened to be his secondary residence, the Police Board would have been obliged to provide it free.

[26] His main submissions on the merits were adopted or refined by his Senior and we set them out below in that context. He contended that the extended definition in Reg. 42(7) necessarily applied in relation to Reg.66 because the latter mirrored the former. The Tribunal in Robb at [30] appeared to have misunderstood this point. Reg. 66 could not work without reference to the definition in Reg.42(7). Similarly, he said, the meaning of “rates” in Para. 7 was tied to that definition. The 1987 Act was not changed until 2001. It was important to note that the overall approach of the latter Act was to water down the benefits conferred on tenants. Various limitations were introduced. The qualifying period was extended. Discounts were capped. In the context, it was unlikely to have been the intention of Parliament to enlarge the rights of constables. So, the new reference to “council tax” instead of “rates” should be seen as no more than an update of terminology. The transitional provisions of the 2001 Act pointed to an intention to preserve the rights of existing tenants, not to increase them. If payment of council tax was not already covered by the expression “rates”, the inclusion of “council tax” in the 2001 Act would have been intended to increase the benefit to existing tenants. This was unlikely.

[27] In support of the argument that a purposive approach to the terms of Para.7 was appropriate, Mr Barclay referred to R (Quintavalle) v Secretary of State for Health: at paras 8–11 and 21. He accepted that the meaning was tied to the regulations as they stood when the Act was passed. The meaning could not change to reflect subsequent changes to regulations. The purposive construction was also supported by reference to the social purpose of the legislation. The general policy of the Act should be seen as driving all the provisions. Exceptions should be construed narrowly: Barron v Borders Regional Council and Robb v Tayside Joint Police Board. He submitted that, if the argument that the definition in Reg.42(7) applied to Para.7 was taken into account, it was clear that the actual decision in Robb was correct.

[28] Mr Barclay concluded by looking at Holmes v South Yorkshire Police Authority. He pointed out that the main argument that the expression “rates” covered council tax was not advanced in that case. He added that in England there had been no equivalent to the 2001 Act.

Respondents’ Submissions

[29] Mr Dunlop dealt first with the legislative background. He suggested that the provisions of Para.7 were of critical importance to the police ability to retain housing stock. It was not possible to rely on the provisions of Para.1 of Schedule 2 because a Police Constable was not an employee and, accordingly, was not covered by these provisions. He referred to three different strands of relevant legislation relating, respectively, to housing, police and local taxation. The 1987 Act was not changed by the provision of any of the police or taxation legislation. His short submission was that as Mr Cochrane had, at no time, been obliged to pay rent or rates the exception in Para.7 applied. However, a more elaborate analysis led to the same conclusion. He presented the analysis in three chapters: the concept of “updating legislation”; the English authorities; and the dicta in Robb.

[30] In relation to the construction of legislation by updating, he referred to dicta in R (Quintavalle). But, he submitted that while the concept of updating applied to social or factual changes, it did not apply to changes brought about by Parliament itself. He did not challenge the dictum of Lord Wilberforce, quoted in that decision at para 10, but he contended that it simply did not apply to legislative changes. It had to be assumed that Parliament was aware of relevant law and circumstances. When domestic rates were abolished, Parliament could have amended Para.7. The Abolition Act contained a list of amendments. This was commonplace. If Parliament had decided or neglected to change a provision, that provision remained unchanged.

[31] He suggested that this was obvious. But, it was supported by observations in OxfordshireCounty Council v OxfordCity Council. That case had been commented on by Bennion at p 893 and footnote 2. Although the dicta at [85] and [86] were not transparent the meaning was clear. Change effected by Act of Parliament required a different interpretative approach. There was a requirement to read statutes together. This could mean that a new definition was applied. But this was quite different from the updating principle.

[32] In any event, there was no question of applying a new definition here. He pointed out that the extended definition of “rates” in Reg. 42(7) was expressly limited to that specific regulation. It did not even extend to Reg. 66. It certainly could not be taken to extend to separate primary legislation. That was the approach taken in Robb [30]and Holmes para 22. The attempt to apply an extended definition in the present case was simply wrong.

[33] The English position was directly in point and important. He submitted that the facts and law in Holmes were on all fours. Admittedly there had not even been an attempt to advance the argument now made. But it clearly would have been rejected as it relied on the same “semantic bridge” which had been rejected in relation to water charges. The court had put the matter accurately. The proper approach to Para.7 was to say that, as rates had been abolished, there was simply nothing to bite on.

[34] Mr Dunlop then addressed the argument that it was artificial to say that “rates” might refer to “non-domestic rates”. That, he said, was no more artificial than saying that they were equivalent to council tax. It was a different tax assessed on a different basis. For the updating approach to be valid it would have to have covered the change to community charge. Plainly it did not.

[35] Counsel went on to comment on aspects of the decision in Robb. The relevant passages started at [29]. In the first place, he submitted that it was not accurate to say that rates had been replaced by council tax. They were replaced by community charge. It was not artificial to read “rates” as referring to non-domestic rates. Circumstances could arise where non-domestic rates would be levied if, say, a constable’s living quarters were part of a police station and not a separate unit.

[36] The Tribunal was wrong to suggest that there was a choice between deleting the word “rates” or giving it an updated meaning as referring to council tax. The word “rates” still had a potential content. But, even if that was not so, the situation was properly characterised as one where the provision had nothing to bite on. He suggested that it was not easy to understand the conclusion reached by the Tribunal in the last sentence of [31]. But, as far as the substance of the paragraph was concerned, there was, in his submission nothing odd or anomalous about different starting dates providing different results. This was commonplace with legislation. In relation to [32] it was to be noted that the present respondents were not seeking to rely on any technical distinction but on the proposition that “council tax” was not “rates” in ordinary language, as had been accepted by the Tribunal at [30].

[37] The apparent choice discussed at [30] was repeated at [33]. The reason for avoiding the construction that a provision was deleted must implicitly be that Parliament would not have intended such a result. But Parliament had, indeed, plainly intended to abolish “rates”. If anything, a contrary inference should be drawn.

[38] At [34] there was an indication of the inconsistency of the argument relating to use of the regulations to define the meaning of the primary Act. It was no part of the respondents’ argument that the regulations had any bearing. The argument was that the issue was solely one of construction of the 1987 Act.

[39] The Tribunal was wrong at [35] to suggest that there were three ways in which the respondents could secure housing stock which was operationally required. Paragraph 1 did not apply because a constable was not an employee. It would be quite artificial to attempt to apply Para.7(a)(ii). The let to Mr Cochrane was not a temporary one. The respondents could not have used the exception in Para.8 relating to curtilege because that turned on a pure question of fact. The respondents could not have created a curtilege merely to avoid the right to buy.

[40] It was also wrong to seek to construe the 1987 Act by reference to the 2001 Act. No retrospective inference as to construction could properly be drawn. The reference to council tax in that Act could be explained in terms of a decision to change the law. For these various reasons, he submitted that Robb was not a safe decision. On the basis either of the short submission or the longer analysis it was clear that the circumstances fell within the exception in Para. 7 and, accordingly, the application should be refused.

Response for Applicants

[41] Mr Mitchell opened his substantive submission by making it clear that the argument was based on proper construction of the 1987 Act and not the route of argument taken in Robb. It was not suggested that the meaning changed with the regulations. The Tribunal had reached the right decision but for mistaken reasons. The matter should be approached afresh.

[42] Counsel produced a table helpfully showing the chronology and combined effects of the three related strands of legislative provision: police, housing and “rating”. Mr Mitchell said that there were two strands of argument or forks in the road which could be followed. The first was that it was necessary to read across the definition from Reg.42(7) to understand what Parliament meant by “rates” in Para.7. The second relied on the fact that although Mr Cochrane did not have to pay rates this was because they had been abolished and was not “in pursuance of the regulations”. Both strands came to be developed in course of submissions.

[43] The first argument was that Para.7 had to be read with the Regulations as they stood at that time. It was necessary to read across the definition from Reg.42(7) to make sense of Reg.66 and to Para.7 in order to make overall coherent sense. We look at the detail of this in the discussion below and it is unnecessary to repeat it. Counsel pointed out that it was literally impossible to read Para.7 without reference to the Regulations. He stressed that there was no need for updating. The Act spoke from its start. It was not disputed that construction was not affected by subsequent regulations although they might, of course, have a bearing on the application of the Act.

[44] The Abolition Act introduced three different community charges. The personal one under sec 8 would not have been covered even by the wide definition of Reg.42(7), but the standard community charge under sec10 and the collective community charge under sec 11 were payable in respect of premises and would have been covered.

[45] The scheme of the 1990 regulations was clear. It stripped out reference to rates from the police regulations. It introduced a standard rate housing allowance. As appeared from the preamble, the regulations were the result of discussions involving the Police Federation, the Police Boards and the Minister. As part of the bargaining process there might possibly have been an agreement that the tenant would be relieved of his obligation to pay community charge or council tax. If the latter had been removed there plainly would have been no right to buy. But, this was never agreed. The respondents could not complain about the result.

[46] Counsel said he did not place a great deal of weight on the change made by the 2001 Act. He accepted that the substitution of council tax for rates in the relevant exception might simply point to an intention to change the law. But, the fact that other changes all had the effect of restricting a tenant’s rights made this unlikely. He submitted that the probability was that Parliament thought that the existing law covered council tax and that they were simply updating the matter. However, he accepted that construction of the 1987 Act was a matter for the Tribunal and not the Parliament in 2001.

[47] As the argument developed it became clear that an important variation of the first fork of the argument was the proposition that, even if it was not appropriate to incorporate the definition in Reg.42(7) as a formal part of Para.7, it was, nevertheless, important to have the whole terms of the regulations in mind as part of the context in which the word “rates” was used. The aim was to give effect to Parliament’s purpose: R (Quintavalle) p 695 para.8. It was necessary to have regard to the whole context in which legislation was passed: Bennion pp 588 and 589; A-G v Prince Ernest Augustus of Hanover. The context clearly included the Regulations and also the social context and the broad purpose of the Act. He referred to remarks of ministers in Hansard explaining the social purpose of the Housing Act. This material pointed clearly to a wide definition limiting the exception as much as possible. He discussed the concept of “rates” in the context of the Local Government (Scotland) Act 1975. But, he pointed out that the dictionary meaning was wider: Oxford English Dictionary. All this material pointed clearly to the need for a wide approach to use of the word “rates” in Para 7.

[48] Mr Mitchell considered the dicta in Holmes. It might appear to be against hismain argument, but that argument had not, in fact, been advanced in the English case. The conclusion that “rates” did not cover water charges and the observations about an apparently illegitimate semantic bridge, were not supported by any reasons.

[49] The need for a wider definition was also supported by what had been described as the second fork or esto argument. On a literal approach to Para.7 and a simple grammatical construction, it was essential to give effect to the words “in pursuance of regulations”. Accordingly, it was not enough for the respondents to show that a constable did not pay rates. It had to be shown that this was “in pursuance of the regulations”. Mr Mitchell contended that this approach although a narrow one, was a perfectly tenable one. He did not depart from it. He accepted that it was not an immediately attractive construction. A purposive construction would be preferable. But, that cut both ways. If a purposive construction was to be applied to “rates”, it would be seen that a wide meaning was required. This supported the alternative aspect of his main argument.

[50] Mr Mitchell noted Mr Dunlop’s criticisms of the decision in Robb but, again, stressed that his argument was quite different from that previously advanced. He suggested that the attempt to give continuing content to the word “rates” in the 1987 Act by reference to the possibility that there might be circumstances where a policeman would have a liability to pay non-domestic rates for his accommodation, was quite unrealistic. In any event, the 1987 Act had to be construed at its own date.

[51] Although Mr Mitchell said that he did not require to rely on an “updating construction”, he did not go as far as accepting the proposition that change made by legislation was necessarily excluded from this principle. He referred to the qualification in Bennion, p 893 fn 2.

Response

[52] In response, Mr Dunlop repeated his submission that it was not possible to read across a definition from regulations to a primary Act. He said that in both Holmes and Robb, this was correctly treated as trite law. He suggested that it was supported in this case by several specific considerations. The first was that if Parliament could be taken to be aware of the 1976 Regulations, they would be well aware that the specific definition was expressly restricted to Reg.42. If they had intended it to apply to Para.7 they would have done so expressly. He next dealt with a proposition that Parliament would not intend the definition to rely on regulations which were liable to be changed by ministerial order. He dealt with aspects of the problems of definition which might arise as regulations changed. However, as Mr Mitchell subsequently stressed that he placed no reliance on such changes, it is unnecessary for us to attempt to set out the precise points made. Mr Dunlop next commented on the applicant’s reliance on the words “pursuant to” in Para.7. A short answer was that the Act did not refer to the specific regulations. The reference included all regulations made under sec 26. If Parliament had been adopting the method of definition by reference it would have done so by reference to an explicit definition.

[53] He contended that the dicta in Holmes and Robb were supported by observations in Hanlon v The Law Society; Deposit Protection Board v Barclays Bank plc; and R(A) v Director of Establishments of the Security Service. However, he accepted that the question of interpretation of a statute by reference to what the draftsman of regulations assumed it to be, was a different issue from the present case.

[54] He submitted that the argument advanced as the second fork or esto case was not tenable. When the 1987 Act came into force, the applicant was, indeed, kept free of any obligation to pay rent or rates. When rates were abolished there was simply nothing for the Act to bite on. He remained free of liability. Although the 1987 Act was a consolidation Act, it was before Parliament at the same time as the Abolition Act. Both secured Royal Assent on the same day. Parliament was plainly aware of the terms of each. If there was to be a narrow construction, it would follow that Parliament knew that Para.7 would never apply. There would never be a situation where a policeman was free of rates under regulations. This would be an absurd result. On a sensible construction, the reference to regulations could properly be limited to “occupying the house”. It was not a composite definition. In any event, the argument had, he submitted, been considered and rejected in Holmes, at [10] - [15].

[55] In relation to the general question of whether a reference in one Act to a provision in another Act was a reference to that provision as it stood at the date of the former Act or as it might be amended, he provided reference to Bennion at pp 764 and 1041. Usually any reference would be to the other statute as it stood at the date of the incorporating Act although some exceptions had been identified. However, this was irrelevant to the circumstances of the present case. There had been no change to the provisions of sec 26.

Final Response for Applicant

[56] As a final submission, Mr Mitchell stressed that his position was that the matter was fixed by reference to the position when the 1986 Act was first enacted. References to changing regulations were irrelevant. The effect of that Act was to set a minimum requirement for regulations to allow an exception. The question was simply whether regulations as they existed from time to time met that requirement. The regulations did not change the meaning; just the application or effect. There was no problem about discontinuity of effect. If the provision did not apply at any given time, there was no reason why it should not apply at another. If local taxation had gone back expressly to “rates”, there would have been no problem applying Para. 7 even if there had been a break for community charge. He suggested that in effect council tax did indeed simply replace rates. The difference was one of nomenclature.

[57] Mr Mitchell said that he very deliberately did not adopt the argument advanced in Holmes in relation to occupation under regulations. He entirely accepted that occupation was under the regulations. The question was whether the constable was relieved of rates by reason of a regulation. The argument in Holmes was not relevant to this.

[58] In relation to the suppose consequences of a narrow argument and the suggested absurd result, he observed that if it meant that people who formerly would not have a right to buy were suddenly given a right to buy, this was not absurd. It was simply the consequence of legislative change. Parliament could have avoided this. But, if it was to be described as absurd, that, in itself, was a strong argument for preferring a wide construction. If “rates” was given a wider meaning, the problem would disappear because it would still be possible for rates in a wider sense to be relieved by regulations even if “rates” in the traditional sense had been abolished.

Discussion

[59] Both parties were agreed that the 1987 Act had to be construed at its date. It may be added that both recognised that it was a consolidation Act but the provisions in question had first appeared the previous year, in the 1986 Act, and it was not suggested that anything turned on any distinction of time. For the applicant the Chapter numbers of the 1987 Act, Ch 26 and the Abolition Act, Ch 47, were pointed out to show their relative order but Mr Dunlop noted that both had received Royal Assent on the same date. We do not think that anything turns on precise dating and the substantive debate was conducted by reference to the 1987 Act and, in broad terms, to 1987 as being the relevant date.

[60] Although both parties referred to the detail of changes in the regulations made under sec 26 of the Police (Scotland) Act 1967, after 1987, they were at one in saying that such changes had no bearing on the issue of construction. The changes might have a bearing on the application of Para.7 from time to time but could not change its meaning. There was also apparent agreement that the changes made by the Housing (Scotland) Act 2001 had no direct bearing on the question of construction of the 1987 Act. However, Mr Mitchell did attempt to take some support from the 2001 Act and Mr Barclay in opening his submission that the question was whether a purposive approach showed an intention to include a tax such as council tax under the term “rates” had placed considerable stress on the intention of the later Act. He said that he had been unable to find any Parliamentary material explaining why there had been an express change to refer to council tax. He suggested that it could be assumed that Parliament thought this was a simple update.

[61] As we have seen, Para.2 of Schedule 1 of the 2001 Act was in terms identical to Para.7 with the substitution of “council tax” for “rates”. We think it right to acknowledge that, at first sight, this seemed to give considerable support to the applicant’s argument. It clearly played a part in the decision in Robb. In that case the Tribunal thought it unsatisfactory that a different regime should apply to tenancies depending on whether they commenced before or after the start date of the 2001 Act. However, it must be said that it is commonplace for there to be differences in rights depending on dates of application of specific provisions. The Act brought a raft of changes applying to tenancies commencing after its start date. By and large, new tenancies had more restricted rights and significantly lower discounts. We recognise that the Tribunal’s concern was the specific example of police officers who might have occupied police accommodation for the same length of time but had come to their current dwellings at different dates, one before and one after the commencement of the 2001 Act. We understand that such a result may well be thought “unsatisfactory”. That thought had a clear bearing on the approach taken by the parties and Tribunal in the Robb case. However, we do not think that this has any bearing on construction of the 1987 Act which was the issue addressed by parties in the present case.

[62] More generally, we think that Mr Mitchell was clearly right to acknowledge that it is possible to treat the 2001 Act as changing the law to add a requirement relating to council tax or to see it as having been based on an assumption that it was simply restating the law in modern terms. Mr Mitchell stressed various factors tending to support the latter but he accepted that, in relation to the problem of construction of the 1987 Act, the views of the Scottish Parliament in 2001 were not entitled to any special weight. Even if that Parliament did think that the word “rates”, as used in Para.7, covered the new tax, the question was purely one of construction and that was an issue for the Tribunal.

[63] In short, although the fact that there is an explicit reference to “council tax” in the 2001 Act is potentially distracting, we consider that it can provide no proper guidance to the construction of the word “rates” in 1987.

[64] The applicant’s argument was presented as having two forks or strands but, as developed, the first fork contained an important subsidiary argument. The main contention under the first fork was that the extended definition in Reg.42(7) applied to Para.7 because of the express reference to the regulations. This was referred to as “reading across”. The subsidiary argument was based in part on the proposition that, in any event, Parliament must have had the regulations in mind as part of the context. Mr Mitchell recognised that the definition was expressly said to apply to Reg.42 and that this implied an intention to limit it to that regulation. However, he observed that the inter-relationship of Regs. 42 and 66 was such that the definition necessarily had effect in relation to the latter. One provision was said to mirror the other.

[65] As we have seen, Reg.42(1) was in the following terms: “A constable who is not provided with a house or quarters free of rent and rates shall be paid a rent allowance”. Reg.42(7) provided, “in this regulation”, a wide definition of “rates” which would include council tax - but not community charge.

[66] For completeness we note that Reg.42 falls within Part V of the Regulations which was headed “Allowances and Other Emoluments”. Reference to accommodation “free of rent and rates” appeared in other regulations, such as Reg.43(3) and Reg.46 without reference to Reg.42(7) although there was express reference to the extended definition at Reg.47(1)(d). Nothing was made of this.

[67] Reg.66 comes in Part VI of the Regulations under the heading “Housing, Uniform and Equipment”. Having regard to the limitation in Reg.42(7) it is clearly appropriate to try to read Reg.66 without reference to the special definition in that provision. But, Mr Mitchell contended that this could not be done. The provisions of Reg.66 mirrored those of Reg.42. It was necessary to give the words the same meaning in each Regulation. He suggested that the definition in Reg.42(7) might be given a label such as “wide rates”. A reference to “wide rates” was necessary to make sense of Reg.66 because the two provisions were wholly inter-related.

[68] We see the force of Mr Mitchell’s contention in relation to the two regulations taken in isolation, but consider it important to have regard to the context of Para.7. He stressed that it was impossible to read the latter without reference to the regulations. They were expressly included. However, we think that in the context of Para 7 it is unnecessary to go further than Reg.66. The substantive obligation under Reg.66 can be described as being to provide a house free of rent and rates. If the officer is not paid a housing allowance he is to be provided with a house. Reg.66 does not, on the face of it, require consideration of the issue of entitlement to a rent allowance under Reg.42(1). Mr Cochrane was not paid a housing allowance and was provided with a house free of rent and rates. That brings him within the wording of Reg.66.

[69] Although Mr Mitchell’s elegant submission demonstrated the way in which the proper operation of the two regulations could be seen to be essentially linked, we are not persuaded that there was any practical sense in which the risk of separate definitions would have been of relevance. If the constable had an allowance under Reg.42, the provisions of Reg.66 would not come into play. If he was in fact provided with housing free of rent and rates, Para.7 could apply without reference to entitlement under Reg.42. In effect, the greater scope of Reg.42 would always protect the interest of the constable under Reg.66. No circumstance was identified where he might fail to be entitled to an allowance under the “wide rates” definition and yet be precluded from relying on Reg.66.

[70] It follows that we do not accept the argument linking the definition in Reg.42, through Reg.66, to Para.7. But, in any event, we do not accept that a link between Reg.42 and Reg.66 would be sufficient to incorporate a definition from Reg.42 as the definition of “rates” in Para.7. That provision does not require the housing to be free of all charges covered by the regulations. It refers explicitly to rent and rates, both well understood concepts at the time.

[71] In modern Parliamentary drafting it is, of course, common to find an extended definition applied to a particular word. However, the well known method of achieving this aim is to provide a specific definition section. Sec 82 of the 1987 Act provides examples. Where an extended definition is to be achieved by incorporation of a definition contained in some other provision, the straightforward way of doing this is by express incorporation. Accordingly, we consider that an intention to incorporate an extended definition cannot readily be assumed.

[72] Further, it is of significance in the present case that the definition relied on under reference to the terms of Reg.42(7) is one which is expressly provided for the purposes of that Regulation. It is implicit that it was not intended to apply beyond Reg.42. It may well be that Reg.66 cannot properly be operated without using the wide rates definition, but it cannot reasonably be assumed that Parliament had in mind the analysis carried out by Mr Mitchell. If Parliament did wish to use an extended definition of “rates”, it could either have done so in express terms or by express reference. It would not have relied on implicit adoption of a definition such as that in Reg.42(7) when that was itself expressly limited in its application.

[73] We discuss below the case of Holmes which was relied on by Mr Dunlop as supporting the view that it was illegitimate to incorporate a reference by implication. For the reasons we discuss, we do not think that the case adds much to the argument, although the observation of Lord Justice Sedley, at para.14, as to matters which one would expect to have spelt out in legislation rather than fetched in by a sidewind, tends in the same direction as the view we take of the attempt to incorporate a wide definition of “rates” in the present context.

[74] The supporting argument advanced as part of the first fork was that, in any event, the word “rates” in Para.7 required a wide construction. The aim of construction was to determine the purpose of Parliament. In order to identify that purpose it was necessary to have regard to the whole context in which the legislation was passed. This argument placed considerable weight on the need to give a wide meaning to “rates” to make sense of the reference to the regulations. As discussed above, we are not persuaded that this is so. We have no doubt that Para.7 should be given a purposive construction but we are satisfied that it was workable and made good sense at the time using “rates” in its conventional sense. It seems to us that there is nothing about the background of a reference to the regulations which provides a basis for argument independent of the main strand of the first fork of the argument.

[75] The other elements of context relied on were variously described in terms of the social purpose or main scheme of the Act. This approach gets some support from dicta in Barron. The Tribunal, in that case, referred to the exclusion of police houses and, noting that it was wider than the exclusion relating to firemen, said: “This wider exclusion seems to us simply to emphasise the underlying intention to exclude only the minimum number of houses, consistent, that is, with the particular authority’s functions”: p39.

[76] There is an obvious conflict between the general scheme of an Act and any exceptions. Plainly the general purpose of the legislation is to be found in the general scheme. But, we see no obvious reason to give greater weight to the general purpose than to the purpose of the exception. In Robb the Tribunal described the problem in terms of finding the right balance between the purpose of the exclusion and the general purpose of the legislation”:[25]. If Parliament has decided that there should be an exception it must be because Parliament has recognised a genuine need for such exception. If a provision has been enacted to meet a perceived need, it is hard to see that some conflicting policy can safely be relied on as a guide to its construction. It is not easy to see what different weight should be given to the different policies involved except by reference to the language of the Act itself. Any supposed difference in weight between two policies appears to us an uncertain and unreliable guide to construction.

[77] In any event, even if the policy can be securely identified it would only be relevant to help resolve an ambiguity. The primary approach is to look at the language used. In Para.7 Parliament used the well understood term “rates”. There is no apparent ambiguity. The express reference to the regulations simply shows that Parliament was aware of a closely related context where a wider term had been thought necessary. They chose not to use a wider term. The plain inference is that they did not consider it appropriate. In any event, we are not persuaded that a broad public policy of allowing tenants to buy their homes has any bearing on the proper construction of the word “rates”.

[78] A further argument in support of the need for a broad approach to construction was addressed as part of the second fork argument. We shall come back to that fork. But, ultimately, it involved the proposition that if a narrow approach to construction of the reference in Para.7 to the regulations was inappropriate, a broad approach to the term “rates” was also required.

[79] We cannot accept such an argument. It proceeds on the unexpressed assumption that there is a choice between a broad and a narrow construction of every word. But, we see no reason of principle why Parliament might not have used one expression in a “narrow” sense and another in a “broad” sense in the context of a single provision. In each case, the adjectives are not intrinsic. They come from comparison of the range of options for construction reasonably available having regard to the language used and its particular context. Put shortly, we are not satisfied that a decision as to the intention of Parliament in using the expression “in pursuance of regulations”, has any necessary bearing on their intention in using the word “rates” in the same subparagraph. We have not found the arguments advanced under reference to the second fork to be of assistance in relation to this aspect of the first.

[80] We are satisfied that “rates” had a well understood meaning in 1987. We see no need on this issue to depart from the views expressed by the Tribunal in Robb. In ordinary language one would not refer to council tax as rates: [30]. Rates were a species of taxation based on heritable property. They were not the genus. We are not persuaded that Parliament intended the term to be wider than its well recognised meaning.

[81] We reach that conclusion without attempting to pray in aid any assumption as to policy and without seeing any need to treat the issue as requiring a preference for a “narrow” construction over a “wide” one. However, it may be that a reason for treating the expression narrowly can be identified. Mr Mitchell responded to a question from the Tribunal as to the conjunctive or disjunctive use of the word “or” in Para.7 by saying that the use here was conjunctive but that this did not really matter. Plainly the provision required the officer to occupy free of both. That is clearly correct and, in the context where Parliament may have assumed that “rent and rates” went together, the point is of no significance. However, it is far from clear that Parliament would have intended that a person who occupied rent free but who paid any charge – such as a water charge – which might be described as “rates” in a wide sense or as “rates” within the meaning of Reg.42(7), should have the same right to buy as someone who had required to pay full rent and conventional rates. The broad policies of the Act were expressed in terms of the rights of tenants. The intention of the Act was to extend benefit to persons occupying without any obligation to pay rent. But it cannot be assumed that there was any intention that provisions in their favour be given any specially wide construction.

[82] In short, we do not accept that the overall context points to an intention to use “rates” in Para.7 in anything but the conventional sense. The first fork of the argument accordingly falls to be rejected.

[83] The second fork came to be referred to as the “four hurdles” argument. It was contended that weight had to be given to the whole expression: “in pursuance of regulations under section 26 of that Act occupies the house without obligation to pay rent or rates”. Accordingly, it was not enough that Mr Cochrane could be shown to have paid no rent. This had to have been “in pursuance of regulations”. The regulations did, indeed, relieve him of a liability to pay rent so the respondents crossed the first two hurdles. It was accepted that he paid no rates. This allowed them to cross the third hurdle. But, it was contended that as the freedom from rates arose because rates had been abolished, the respondent fell at the last hurdle. It was not in furtherance of regulations.

[84] The concept of four hurdles did not appear to us to cast significant light on the problem. The question is whether the supposed hurdles two and four exist rather than whether they were crossed by the respondents. This approach perhaps shielded the argument from the blunt observation that, whatever Parliament may have intended, it could hardly be thought that it intended such a result. As Mr Dunlop pointed out, one consequence of the argument would be that when rates were abolished, all officers would immediately have a right to buy. They would no longer be free of rates because of the regulations, they would simply have no obligation to pay them. Even if, as happened, rates were replaced by community charge and the officers were free of the obligation to pay community charge, this would not allow the respondents to get over the fourth hurdle. It was not suggested that the expression “rates” was wide enough to cover the community charge.

[85] It is not entirely clear what Parliament intended by the inclusion of the phrase “in pursuance of regulations under section 26” in Para.7. There is force in Mr Dunlop’s contention that although the provision is not happily expressed, the thrust of the reference is to occupying a house in pursuance of the regulations rather than to the need that the rent or rate free provision was in pursuance of such regulations. We accept that the language used is capable of such construction. It can, of course, be said that it is not entirely clear what the provision is intended to achieve as a qualification of occupation. Even when provided with a house under the regulations Mr Cochrane might reasonably be said to occupy it because he chooses to do so rather than in pursuance of some regulation. However, Mr Mitchell expressly said that there was no challenge to the proposition that Mr Cochrane occupied “under the regulations”. We did hear that under earlier regulations there were circumstances in which an officer might have been obliged to occupy a police house. Mr Cochrane had been in that category for a while. That would, perhaps, have provided a different context for the provision.

[86] We are satisfied that it makes sense of the provision to treat the reference to the regulations as relating simply to the occupation rather than the freedom from rates. It is sufficient to say that we can see no purpose which Parliament might have intended to achieve by applying it to the obligation to pay rates. As we see it, it is irrelevant to the substantive argument that the Police Board managed to provide the house rent and rate free because they themselves met the obligation or because no relevant obligation existed. In this context, it may be accurate to say that there was nothing for the obligation to bite on.

[87] The four hurdles argument might also be answered by a robust approach to the impact of the Abolition Act. Mr Dunlop made the point that the Act contained a variety of provisions amending prior legislation in light of the abolition of domestic rates. Sec 26(2) provided for a general change in the meaning of the word “rate” – it was to refer to non-domestic rates unless the context otherwise required. Mr Mitchell contended that it was fanciful to suggest the context of Para. 7 allowed for reference to non-domestic rates. If we accept that contention, it might seem a reasonable approach to construction of Para.7 to treat the reference to rates as effectively deleted by the substantive provision of the Abolition Act which, by sec 1, “abolished” domestic rates. If so, the third and fourth hurdles disappear. However, we recognise that the Tribunal in Robb took a different view. It sought to avoid the inference that the reference to rates should be treated as deleted. We also note that although the robust approach appears to have been taken by the recorder in Holmes, it was not explicitly endorsed by Sedley L.J. who contented himself with the observation that the issue was “slightly more complex”: at para 20. As it is unnecessary for us to rely on this argument, we need express no further view.

[88] Although Mr Mitchell maintained that the argument under the second fork was perfectly stateable, he recognised that it was not an immediately attractive one. He suggested that its main weight might come from the force it added to the need for a purposive view of the whole clause. We have referred to that above. We have no difficulty in accepting the need for a purposive approach to the whole provision but that does not lead us to the view that “rates” requires an extended meaning.

[89] We conclude that Mr Dunlop’s short submission can be sustained. Mr Cochrane has occupied his accommodation in pursuance of relevant regulations. He has been kept free of any obligation to pay rent or rates. We are satisfied that the respondents have established that the case falls within the exemption in Para.7 and that Mr Cochrane is not a Scottish secure tenant and, accordingly, does not have a right to buy.

[90] We have not found the dicta in Holmes v South Yorkshire Police Authority to be of assistance and we have reached our decision without reliance on it. However, it is necessary to explain this further. In Holmes, the Court of Appeal had to consider similar provisions in terms of the equivalent English Act. The relevant provision of Para.2(2) of Schedule 1 to the Housing Act 1985 was in effectively the same terms as Para.7. The applicants had rent free accommodation. They did not pay rates. They apparently paid council tax. They paid “water charges”.

[91] Two arguments were advanced which were said to be relevant to the present case. It was contended that the regulations under which the officers had been provided with accommodation had become “spent” by virtue of changes in the regulations in 1994. Accordingly, it was said that their accommodation was no longer provided “in pursuance of regulations”. The Court dealt with that argument on the basis of construction of the regulations and a finding that the regulations under which they had been provided with accommodation were still effective in that context. The accommodation was accordingly provided in pursuance of the 1997 regulations.

[92] We accept that this decision has no direct bearing on the present case. Mr Mitchell made it clear that he accepted that the accommodation was provided in pursuance of the regulations. We understood Mr Dunlop to seek support from it as showing that the Court treated the reference to the regulations in Para.2 as relating to the “provision of housing” rather than to the status of that housing as being free of “rent or rates”. As that particular contrast was not in issue in the case, this point is not one of any great weight although it does support the view that there is a proper content for the provision in question in relation to the provision of housing. The reference to “in pursuance of regulations” does not require to be read as governing the reference to “rent and rates”.

[93] The second issue was relied on as being of greater weight. The argument advanced on behalf of the applicant in the present case was not attempted in Holmes but a similar argument in principle was advanced on the basis that the payment of water charges fell within the definition of “rates” in the English regulations. The definition was somewhat similar to that in Reg.42(7) but it did make express reference to “any rate or charge (our emphasis) for a supply of water”. As the officers had to pay water charges it was contended that the circumstances took the case outside the exemption. Lord Justice Sedley, with whom the other judges concurred, dealt with the argument as follows:

“In my view this ingenious argument skips a beat. Mr Westgate accepts that there is no longer a general rate, and although this has been replaced by what is now the council tax he does not argue that the latter ranks as a surrogate general rate. Yet he continues to argue that the water rate, which has also ceased to exist, survives in the form of water charges and so, if these fall on the tenant, nullifies the exemption from security. But Mr Westgate’s problem is that he cannot use the expanded meaning of rates in the Police Regulations as an aid to the construction of the Housing Act. Without that semantic bridge the abolition of water rates has exactly the same effect as the abolition of the general rate: there is no longer anything for the exemption to bite on, assuming – what I doubt – that ‘rates’ in Para.2(2) of Schedule 1 to the Housing Act 1985 included water rates in the first place”.

[94] As Mr Mitchell stressed, the Court advanced no authority for its clear view that it was not legitimate to use the expanded meaning in the regulations as an aid to construction of the primary legislation. Mr Dunlop argued that the Court plainly had seen no need for reasons because they considered that the proposition was trite. However, it is not possible to spell out from the report itself precisely what proposition was taken as trite. In terms of the report, counsel was trying to rely on a definition in regulations of 1987 as a basis for construction of primary legislation in 1985. For obvious reasons, including those covered in the discussion in Hanlon v The Law Society at p193-194, we think that the Court would have felt no need to say more than that a definition in regulations made at a later date under a different Act could not be applied to a provision in primary legislation. It may be that there were earlier regulations in identical terms and that the Court was relying on a more fundamental objection of principle. However, we were not referred to any such regulations. As the tenancies in question in Holmes started in 1991 and the report does not make reference to earlier regulations we cannot safely assume that the Court had earlier regulations in mind. In the circumstances we cannot accept the dicta in Holmes as providing reliable assistance in relation to the matters before us.

Decision

[95] For the reasons set out above we must refuse the application. We have concluded that the applicant does not have a statutory right to purchase his dwelling-house because the circumstances fall within the exemption set out in Para.7 of the 1987 Act.


Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 2 September 2010

Neil M Tainsh – Clerk to the Tribunal