For the purposes of rule 9.11 of the standing orders, I advise Parliament that Her Majesty, having been informed of the purport of the Land Registration etc (Scotland) Bill, has consented to place her prerogative and interest, so far as they are affected by bill, at the disposal of Parliament for the purposes of the bill.
Thank you for your generosity, Presiding Officer.
I am pleased to open the stage 3 debate on the Land Registration etc (Scotland) Bill. First, I thank the members of the Economy, Energy and Tourism Committee, the Subordinate Legislation Committee, and the Finance Committee for their hard work and careful scrutiny of what is, in essence, a technical bill. I also thank all the organisations and individuals who provided oral and written evidence to the committee, and briefings for members on the bill’s provisions.
I also pay tribute to the Scottish Law Commission for the work that it has carried out since 2002 in developing most of the policies that appear in the bill. I particularly thank the officials, especially the keeper of the registers of Scotland and her staff—many of whom I had the pleasure of meeting earlier this week—for the hard work and dedication that has gone into the preparation of the bill.
The bill seeks to provide the people of Scotland with a land register that is fit for the 21st century. It will place on a statutory footing many of the sound policies and practices that have been developed by Registers of Scotland since the introduction of the land register in 1981. I remember that event because it occurred towards the end of my apprenticeship.
The bill will also provide for a fairer and more balanced system of land registration. It is recognised internationally that an efficient and secure system of land and property registration is fundamental to the operation of the economy. Registers of Scotland and the land register are a key part of that process and they support the Scottish economy by underpinning a property market that can be worth more than £24 billion each year. Registers of Scotland sets the standard in how information about land and property is captured, held, analysed and made available to the people of Scotland. I believe that emerging evidence shows that our system of land registration is increasingly of interest to other countries with whom—as I learned earlier this week—the keeper’s staff are regularly in contact. That is an accolade to the quality of our land register and our system.
Recent evidence of the importance of the role of the land register is shown by the purchase of Grangemouth oil refinery. The new owner, which is based outside Scotland, sought the surety of having title held on the land register. I am informed that, hitherto, the oil refinery’s title was based on a large number of farms that existed before the refinery was set up. The new owners sought a land-register based title and Registers of Scotland carried out that voluntary registration rapidly so that the transfer of ownership could be completed. I mention that because it is the kind of act that one does not read about in the newspapers, but it plays an important part in helping to promote economic development in Scotland.
By bringing registration law more closely into line with general property law, the bill addresses legal tensions that have caused confusion and uncertainty for property owners since the introduction of the land register. The changes will ensure that the land register continues to underpin the Scottish economy.
The bill also provides the legal framework that will allow the land register to be completed. There has been much debate in Parliament on this topic, including in this morning’s proceedings. I note and understand the eagerness of members of all parties that the land register be completed as soon as possible. So far, about 55 per cent of titles and about 22 per cent of the land mass of Scotland have been registered. The keeper is keen to expand coverage of the land register and plans are being put in place to take advantage of the power that is contained in the bill for keeper-induced registration in order to expand the title coverage of the land register.
Research that has been carried out by the keeper indicates that some 700,000 properties, for which her staff have carried out some form of preliminary title examination, are not yet on the land register. The keeper is exploring options for bringing those properties onto the land register within this decade, and aspires to have the titles registered by 2017, to coincide with the 400th anniversary of the general register of sasines. Doing so would increase the percentage of titles on the land register from 55 per cent to almost 80 per cent, which would be consistent with my previous commitment in Parliament that there will be no keeper-induced registrations of large and complex titles during this parliamentary session. We do not want a system of compulsion; we want a system of increased triggers for registration, which includes keeper-induced registrations where appropriate, but which also includes the use of voluntary registration.
Patrick Harvie (Glasgow) (Green) rose—
I suspected that members might be interested in the answer to that question, so I consulted officials about it yesterday evening. Most of the 700,000 properties that we anticipate would be appropriate subjects of keeper-induced registrations are properties such as the last flat in a tenement block of six flats—in other words, the flat that is preventing the transfer of the whole block to the land register—or the last house in a modern housing estate of 30 or 40 houses. In such cases, completion of the land register requires removal of the whole estate or tenement from the register of sasines. They are the kinds of property, by and large, for which the keeper anticipates that keeper-induced registration will be used in transferring properties from the register of sasines to the land register.
Let us not forget—I know that Mr Fraser would never forget this—that transferring properties to the land register means that processes will be simpler, clearer and cheaper. Those are three pretty good benefits.
Patrick Harvie rose—
I do not know whether Mr Fraser and Mr Harvie have the same question to ask; it would be a parliamentary first. Let me not be accused of dodging any question in this chamber. I will come to Mr Harvie in a moment: I have not quite finished with Mr Fraser.
We do not expect coverage by area to advance as significantly. The answer is that it is likely to increase by a few percentage points. Nonetheless, moving from 55 per cent to 80 per cent of properties would be fairly solid and impressive progress.
My question is related. The minister is talking about moving from 55 per cent to 80 per cent of titles being covered but says that there is likely to be only a very small increase in the overall proportion of Scotland’s land that is included on the land register. He therefore has another question to answer. Under the voluntary approach that he is taking, when does he expect the principal policy objective of the bill, which is stated as being completion of the land register, to take place?
We have made it clear that the process cannot happen overnight and will take many years to complete. Mr Harvie is entitled to suggest alternative approaches. Any alternative approach would involve compulsion and additional costs. We feel that that approach would not have been correct—especially in a recession, when the imposition of additional costs is not justifiable and would likely have caused considerable outcry, on the basis that the money might be used for better purposes, such as the creation of more employment.
We think that the voluntary approach is correct, and I inform Parliament that it is working. It is working in relation to the Forestry Commission, which has excellent plans to include much more of what it owns on the land register, which will, over time, be a significant step in respect of the proportion of land that is shown on the register. I encourage public sector bodies, including local authorities, to follow the Forestry Commission’s example. I am sure that many public bodies are considering that.
Given that our system of conveyancing is based on mutual trust and professional obligation, what consideration was given to safeguards against criminal and fraudulent activity? What guarantees, over and above the master policy, were considered?
The point of land registration legislation is to provide a state guarantee to title; the bill extends that protection. The protection of the public is also secured by the Solicitors (Scotland) Act 1980 and by the requirement that every solicitor have professional indemnity and fidelity insurance. The protections are substantial.
To address Jenny Marra’s question directly, I will comment on the offence provision, which has caused controversy, but which we believe is absolutely essential. The level of fraud in Britain is extremely serious; it rose last year from £33,000 million to £73,000 million. In response to correspondence from me, the Law Society of Scotland has indicated that, sadly, there have been instances of mortgage fraud. The Scottish Crime and Drug Enforcement Agency has identified no fewer than 291 individuals—including lawyers, financiers, security experts and accountants—who are professional facilitators and specialists who are providing advice and support to organised crime groups. The problem is serious, which is why the offence provision is in the bill.
I acknowledge that the Law Society of Scotland has concerns about the provision, but we addressed some of those concerns at stage 2. We believe that it is absolutely right that Parliament tackles fraud in every possible way. We are following the advice of the Lord Advocate—as given clearly to the Economy, Energy and Tourism Committee—and we believe that the measure will be effective.
There are matters that I have not covered, but with your forbearance Presiding Officer, I might have the opportunity to do so in my closing speech.
That the Parliament agrees that the Land Registration etc. (Scotland) Bill be passed.
As I suspect all members will do today, I begin by welcoming the reforms in the Land Registration etc (Scotland) Bill and the improvements that we hope the bill will introduce to the system of land registration in Scotland. Our country has one of the oldest public registers of property and land, which dates back almost exactly 400 years to 1617 and the establishment of the register of sasines, which is the original national register of property deeds. I was slightly worried when Mr Ewing seemed to suggest that he can remember the old system. A replacement for the register of sasines was introduced in 1979 with the Land Registration (Scotland) Act 1979. We hope that the passage of the bill today will improve further on that modernisation process.
Before I go further, I thank all those who have been involved in introducing and working on the bill: the Minister for Energy, Enterprise and Tourism and his team; members of the Economy, Energy and Tourism Committee and their clerks; the researchers at the Scottish Parliament information centre; all those who gave evidence or responded to the consultation, including the Law Society of Scotland; and of course the Scottish Law Commission, whose original report and recommendations were the basis for this reforming bill.
There are a number of reasons why the bill is necessary and welcome. An effective system of land registration is important to any modern economy. To give an idea of that importance, it is worth mentioning that the Scottish property market, including mortgages and remortgages, was worth more than £24 billion in 2009-10.
The new land register of Scotland was introduced in 1979 to replace the register of sasines. It was gradually brought into operation and, since 2003, it has applied across the country. In fact, I note that Renfrewshire, in my constituency, was first to use the new register. Unlike the old register of sasines, which often only contained a written description of the legal boundaries to a property or a poor quality plan, the land register describes the property by reference to the relevant part of an Ordnance Survey map.
The land register is a register of title, not of deeds. For example, on the one hand, a person who buys land on a register of deed has to verify the seller’s legal title by examining the sequence of prior deeds, which is a complex task. On the other, if the land is on a register of title, it is only necessary to check that the seller is the person who is listed on the register as the owner. I note that the documentation accompanying the bill stated that that job could therefore be carried out by a paralegal, rather than by a trained lawyer, which means that the process should be much cheaper for all involved. I am not sure whether that saving has been necessarily passed on yet, but I look forward to that happening under the new system.
There have been big improvements, but until now a number of concerns have remained about operation of the new land register, which the bill will address. The main concern is that, despite the register’s having been operating for more than three decades, only 55 per cent of Scotland's more than 2 million property titles have been switched to the new register. In terms of area, that represents only 21 per cent of the land mass of Scotland. As members know, that is because land belonging to the Crown, local authorities, the churches, and some of the larger estates is rarely sold.
The bill addresses that concern and the other key weaknesses with four specific measures that are designed to ensure the eventual transfer of all property in Scotland to the land register, and the subsequent closure of the register of sasines.
The bill improves the law relating to rectification of inaccuracies in the land register, and operation of the state guarantee of title, which was criticised for being legally complex. The bill rebalances the law towards the true owner of the affected property, rather than the person who acquires the property.
However, the bill does not do everything. There has been criticism of the mapping system that is operated by Registers of Scotland. That issue has not been addressed by the bill, although I note that Registers of Scotland has set up a mapping forum with the Law Society of Scotland and other interested bodies.
I confess that I found the bill—or, at least, the informed briefings that have accompanied its parliamentary passage—to be very educational. I admit that I was one of those who thought that, following the initial missives, the exchange of keys to a property, accompanying the settlement, marked the transfer of ownership. I am reliably informed that ownership transfers in law only when it is registered in the land register. Of course, there is typically a delay between receipt of an application and its registration. Part 4 of the bill introduces a new system of advance notices that are designed to protect the buyer of the property from the risks that he or she is exposed to in the short gap between handing over the purchase price and receiving legal title.
The only major disagreement or, rather, disappointment with the bill is that it misses the opportunity to move the land reform agenda on apace. The Minister for Energy, Enterprise and Tourism made the point at Stage 1 that the bill is not about reform of the law on property, but about reform of the law on registration of property. The trouble with that argument is that there are issues that are to do with registration alone and, in particular, to do with access to information and transparency, which would help communities across Scotland.
The minister, in rejecting Rhoda Grant’s amendment 1, suggested that the land register is sufficiently open and transparent. He argued that the point of the register is simply to establish or validate ownership. The argument that I and many others who have an interest in wider land reform in Scotland share, is that there are still plenty of murky practices and a great deal of obscurity about who owns land and property. The best way for us to end that unwelcome state of affairs is simply to shine a light on the matter. People and companies who operate openly and are potentially subject to wider public scrutiny are far more likely to act in the wider public interest than in self-interest.
I believe that we have a choice: we can simply allow the land register to be used by any and all property owners to secure their own interests, or we can use the register as a tool of public policy that is designed to encourage beneficial ownership. I am disappointed that we have not taken the opportunity to pursue the latter option, and I hope that the Parliament will have the opportunity to come back to and address that issue.
As many others are, I am particularly anxious that people in urban areas and not just those who live in rural Scotland become more aware of their own environment and exercise greater responsibility over that space. How many of us as constituency MSPs have been approached over the years about land ownership issues? Such issues include, for example, local eyesores or patches of ground for which no one seems to claim ownership and which become magnets for refuse and litter. Finding out who owns and is responsible for maintaining land in Scotland should be simpler and more straightforward. On that point, I am pleased to see the measures in part 10 of the bill that will make use of electronic documents easier.
Despite our achievements early on in this Parliament in abolishing feudal tenure, guaranteeing the right to roam and introducing the right for some communities to buy their land, Scotland still enjoys the most inequitable distribution of land ownership in Europe. I believe that there is a clear majority in the Scottish Parliament in support of further land reform, so I am anxious because today is a bit of a missed opportunity. Having said that, I am pleased to welcome the measures that the Land Registration etc (Scotland) Bill will introduce and I hope that they make a marked and welcome difference to our 400-year-old system of public land and property registration.
I declare my interests as a member of the Law Society of Scotland and the convener of the Economy, Energy and Tourism Committee, which was responsible for stage 1 scrutiny of the bill.
I acknowledge that many of the issues that the bill deals with are highly technical. Even though I have a background in property law, on more than one occasion I struggled to grapple with some of what we had to deal with. I therefore pay tribute to all my fellow committee members, some of whom are in the chamber today and none of whom had, unlike me, a professional background in law. Nevertheless, they all did an excellent job in producing the stage 1 report and dealing with the bill at stage 2. I put on record my thanks to our team of clerks, to SPICe and to our committee adviser, Professor Kenneth Reid.
It is fair to say that this has not been the most exciting piece of legislation that we have ever dealt with, nor is it the most politically controversial. The bill represents a much-needed update to, and extension of, existing legislation. As the minister pointed out, the bill will allow faster completion of a land register and eventually the closure of the register of sasines so that we will not have two parallel systems of title registration in Scotland, as we have had since 1979. As the minister pointed out, that should mean a simpler process for the conveyancing of property.
The minister also said that the legislation would lead to a cheaper system. I know from my experience of lawyers—I am sure that the minister would agree—that while that might be true in theory, it remains to be seen whether it will necessarily be the case in practice. As many people involved in the legal profession know, most of the costs that are involved in property transactions are around not the title transfer, but the conclusion of the missives and negotiating the terms of the sale. The transfer of the title represents a very small part of the work involved in a property transaction. However, I share the minister’s high hopes that the bill will lead in due course to a reduction in costs for the consumer.
The bill permits modernisation of procedure, such as an acceleration of the move to e-documents. Ken Macintosh made a fair point about the increasing use of new technology. It is something of an irony that we can now go on the internet and look up Google Earth or similar websites and see an excellent aerial view of virtually any property in Scotland. We have not really kept up with that technology when it comes to producing title documents.
The committee was concerned about a number of issues, which it addressed in its stage 1 report. Probably the most controversial of those was around section 108, which is intended to tackle mortgage fraud. The Law Society of Scotland was extremely concerned that the section was too broad in its scope. I lodged a number of amendments at stage 2 to try to address that but, unfortunately, I was unable to attract much support for them from my committee members. Despite that, there are still concerns about how the provisions in section 108 will operate in practice. I hope that the minister will ensure that there is very close engagement with the Law Society on how the provisions will be implemented. It is important that the new offence will not mean that those who simply make a genuine mistake will find themselves on the wrong side of the law.
Another issue that was dealt with at stage 2 was the settlement of boundary disputes. From their casework and surgeries, all members will be familiar with disputes over property boundaries, in which just a few feet or inches can cause a great deal of heat between the parties involved. At present, the only way in which to resolve such issues is through the courts, which is a very expensive way of addressing the matter. At stage 1, the committee recommended that the Lands Tribunal for Scotland should have a greater role in resolving such disputes, in an effort to reduce costs to the parties involved. Mike MacKenzie lodged an amendment at stage 2 to that effect, which was agreed unanimously. That is a great improvement to the bill and will mean that, in the future, we will have greater scope for using the Lands Tribunal to settle such matters. There will, however, be a resourcing issue for the Lands Tribunal, and I hope that the Scottish Government will consider that.
Earlier this morning, I spoke to two amendments originating from the Law Society, which tried to deal with situations in which the keeper’s practice has become out of step with the established understanding of property law. Although I did not press those amendments to a vote, they deal with issues of serious concern and I welcome the minister’s assurance in both cases that he and his officials will consider how those matters might be resolved. There is also concern among some in the legal profession about the keeper’s approach to a number of similar issues. There is a perception that she is a law unto herself in the way in which she interprets the law and devises her practice accordingly. The keeper will obtain her own legal opinion on matters and refuses to share that with others. I understand that that is the policy across the Government as a whole. Nevertheless, when legal opinion from learned professors of conveyancing takes a different view it is disappointing that the keeper appears to be digging herself in on issues. I hope that we will see a more open approach in the future.
The bill will be welcomed not just by property lawyers, but by all those who have an interest in the ownership of Scotland’s land. With a complete land register, eventually, it will be far easier to identify who owns Scotland, which will no doubt make my good friend Andy Wightman very happy. However, the committee was not able to support at stage 2 amendments to change substantially the law on prescription, in which I know that he has a particular interest, so perhaps his joy will be a little muted.
Despite our minor misgivings, this is an important, welcome and necessary piece of law reform, and the Scottish Conservatives will be pleased to support the bill at stage 3 at decision time.
As deputy convener of the Economy, Energy and Tourism Committee, I sat through a number of evidence-gathering sessions and read a number of the written submissions that were made to the committee in its examination of the bill. The bill builds on the previous legislation, which dates back to 1979. It attempts to bring a degree of modernity to the law and restates the law on the registration of rights in the land register.
It was clear to me and probably to other committee members that, since the introduction of the Land Registration (Scotland) Act 1979, progress on land registration has been uncomfortably slow. I welcome the minister’s statement today that the keeper hopes to have around 80 per cent of property titles registered by 2017. Nevertheless, there are still concerns regarding land registration and when we will see a complete land register of Scotland, which committee members made known at the committee. We attempted to get some dates or timetables into the bill towards which the keeper could work, and I am glad to hear from the minister that the keeper hopes to have the registration of land ownership and title up to 80 per cent by 2017. I welcome that advance.
One of the bill’s key objectives is to create the fastest possible method of efficiently completing land registration for the whole of Scotland, with sufficient safeguards being built in, in order to strengthen the overall process. There has been concern that the current procedure is overly bureaucratic and it has been argued that confidence needs to be developed, so the introduction of electronic conveyancing is a welcome move in developing new processes.
There is a human cost to these matters that needs to be reflected upon. I hope that the bill will go some way towards tackling disputes about land ownership and registration. As Murdo Fraser intimated, examples of disputes about land ownership and boundaries were brought to the committee during our evidence sessions, and members were able to give examples from their postbags of constituency inquiries that they have received regarding title and ownership of land and property. In some cases, new owners have found that they do not actually own the property that they thought they owned.
As I stated when the bill was debated in the chamber at stage 1, a key aspect of the proposals is the creation of a statutory offence of making a materially false or misleading statement to the keeper. I know that the minister and the Solicitor General for Scotland believe that that measure is a vital part of the bill as it will give them legal powers to deal with organised crime. The committee received a written submission from the Association of Chief Police Officers in Scotland that supports section 108 of the bill.
I recognise that there is a significant problem, and the bill attempts to address some of the concerns about the process that have been identified, particularly in relation to the tackling of fraud. The oral evidence that the Solicitor General, Lesley Thomson, gave to the committee, which was reflected in its stage 1 report, highlighted the importance of the creation of an offence to deal with organised crime.
I am aware that officials from the Crown Office and Procurator Fiscal Service and the Scottish Government met the Law Society of Scotland to discuss the scope of the offence in section 108. It is desirable that the Solicitor General ensures that there is regular dialogue with the Law Society on what further guidance and advice can be provided to solicitors once the bill has become law.
I welcome the stage 3 debate and the wide-ranging principles that are contained in the bill. I was glad to hear that the committee convener found our consideration of the bill an education. I think that all members of the committee found it an education, either as home owners or landowners. I thank all those who provided oral or written evidence to the committee. In particular, I thank Andy Wightman for his insight into the land ownership issues that arose in the debate. I also thank the committee clerks and SPICe for their support and assistance, as well as my colleagues on the committee for their work in enabling the bill to reach this stage of the legislative process.
I echo the sentiments and words of John Wilson on the work that the committee clerks and other parliamentary staff did on the bill. The bill is technical in nature and a considerable amount of work went on behind the scenes to enable committee members to draw up our stage 1 report and scrutinise the bill as effectively as we could. I think that we did that.
Murdo Fraser said that the bill is not the most exciting piece of legislation that he has been involved in, but I actually found it quite exciting. That might be a reflection of how dull my life is, but I found it very interesting. We moved from debating the policy issues to coming up with proposals that will make a difference, and consideration of the bill was a worthwhile process for everyone who was involved.
I had not intended to say anything about section 108, but I note John Wilson’s suggestion that we should consider the concerns that were highlighted to the committee and ensure that the policy decisions that are taken address the practicalities and the concerns that people have. That suggestion is important, because we need to build confidence. Certainly, as someone without a legal background, I understand some of the commonsense concerns about section 108. John Wilson’s suggestions are valid and very important to help ensure that we get something that delivers what it was designed to do.
The minister said that the bill is about developing a land register that is fit for the 21st century. That is why the e-conveyancing and e-documents that we discussed are important. They will ensure that the land register reflects how people live their lives these days—how they perform various financial transactions and how they gather information predominantly from the internet. In that regard, there is a bit of catching up to do on how the bill may work. However, the provisions in the bill will ensure that there is confidence to develop electronic services such as e-conveyancing, to ensure that the bill makes a difference in that area.
Consumers, individuals and communities will be able to engage with the system in the same way that they can with many other organisations, for example in the financial services area. That is important. I have worked with community groups that try to identify people who own land, get involved in proposals and work to develop proposals in their areas that will make a difference to their communities. Such groups are hindered by the inability to access the information that they need, and it is important that the committee considered that in its scrutiny of the bill.
I hope that the Lands Tribunal proposal, which was agreed to at stage 2, will make a fundamental difference. With that in place, some of the issues that we read about daily or which, as Murdo Fraser said, we deal with in our constituency casework, will be able to be tackled in a way that is cost effective for people who may previously have been excluded. I have a concern on one issue, or rather a request for some clarity from the minister when he winds up. Obviously, some people are already in the dispute system, while others are on the cusp of that system. Regarding the policy development that will flow from the bill, it would be helpful to know the Scottish Government’s view on how to deal with those who may have problems retrospectively. I have a constituent in Newburgh with an on-going case who would find that helpful.
There is expertise out there, which helped the committee to form opinions. That expertise deserves some policy development, going forward from the bill, which reflects our aspirations and concerns. I hope that the process will deliver that.
I compliment my fellow members of the Economy, Energy and Tourism Committee for their considered and intelligent scrutiny of the bill, and the clerks, who provided their usual high standard of support. Most of all, I want to record a personal thanks to Professor Kenneth Reid, who provided us with specialist legal advice. It is a great tribute to him that he did so in a way that facilitated our understanding, as lay people, of some fairly technical issues with both humour and patience. I also thank the many witnesses who gave evidence, and the people who wrote to me and took an interest in the committee’s work.
We all agree that the bill’s general thrust and focus is to be welcomed. Completion of the land register is itself a worthy goal. Smoothing and rendering more efficient the processes that pertain to property transactions are equally worthy objectives. However, my concern throughout has been that, in our bid to complete the land register, we do not sacrifice quality for speed and that we recognise some of the problems of the system and attempt to deal with them, so far as we reasonably can.
I am therefore glad that Mr Ewing, the minister, engaged constructively with the committee and with the various stakeholders. He listened carefully and responded to suggestions for improvements to the bill when it was wise to do so. For example, in section 42, on prescriptive acquisitions, he reduced the period of abandonment of land from the originally proposed seven years. That is only one example of a practical and wise judgment being made when it had to be made.
A certain amount of idealism was displayed in the amendments that were lodged by some of my colleagues on the committee. Idealism, of course, is a fine thing and I am glad that the spirit of idealism is alive and well in the Parliament. However, we must never enforce our idealism when it will cause harm and difficulty, when ordinary people going about their business will be victims of that idealism, or when the practical difficulties far outweigh any benefits that the idealism might bring. I therefore hope that Mr Harvie and Ms Grant will understand why I felt unable to support their amendments.
However, even the best of systems can never be perfect. Despite the keeper’s reassurances that all was well, I felt that it was important that a more efficient and perhaps more cost-effective mechanism than the courts ought to be available for resolving mistakes or disputes. I was therefore glad to be able to lodge an amendment at stage 2 that will have the effect of allowing the Lands Tribunal to provide such a mechanism. The unanimous support that the amendment achieved in committee was due much more to the common sense of my colleagues and the compelling evidence that we had heard than to any persuasive ability on my part.
The bill has been much improved in its course through the Parliament. I have been pleased to play my own small part in the process and I hope that members throughout the chamber will support the bill.
I echo the thanks that have been expressed to my fellow members of the Economy, Energy and Tourism Committee, to our clerking team, to the officials who supported the process, to our adviser and to all our witnesses.
Murdo Fraser reminded us that he was the only lawyer on the committee and that that gave him a perspective that, perhaps, a few of the rest of us found difficult to keep up with. He seems to have been on the receiving end of some rather cutting remarks about lawyers during recent committee meetings, so perhaps the rest of us should be grateful that we have been protected from those.
Whatever approach the Government took to the bill, there was bound to be a lot of technical content and a lot of expectation on members to deal with that. My regret, which I spoke about during the debate on Rhoda Grant’s amendment 1, is that the minister seems to regard this purely as a technical bill. Its weakness is in the policy content that is not there, rather than in what the Government has chosen to do.
Members may know that I drew most heavily on one witness in particular and I will cite him again. Andy Wightman’s written evidence to the committee pointed out that
“This is the first time in the history of Scotland that a democratically-elected Scottish Parliament has considered the statutory basis for sanctioning who owns land in Scotland and providing the benefits that accrue to landowners with a recorded title. It is therefore vital that Parliament consider some wider questions of public interest that come within the scope of the Bill.”
That is what has not been done and that is the opportunity that has been missed. It comes down to the purpose of the bill. In the policy documents that accompany the bill, its principal purpose is stated clearly:
“Completion of the Land Register”.
However, to listen to the minister’s remarks, both in committee and today in the chamber, it would seem that the bill’s purpose is purely transactional and that it is, in fact, just about facilitating sales, protecting landowners’ interests and promoting economic development.
Questions about the wider public interest and about what the public gain from having an effective and modern land registration system have been missed. A number of those aspects were addressed in stage 1 discussions and in stage 2 amendments, and it became clear that the Government had decided that it was determined not to budge on those issues.
I will address the idea of including a target date for completing the land register. If we believe the assertion that the bill’s principal policy objective is completing the land register, it is odd that the bill does not include a target date—even an indicative target date—as is set for a host of other policies, such as the eradication of fuel poverty. In many areas, we set a target date and give ministers a duty to act in the way that is best calculated to achieve the aim by that date.
That goes back to the minister’s response to my earlier comments. He said that an alternative to the purely voluntary approach, which we know will not achieve completion of the land register, would involve compulsion. The Government has set out the mechanism by which keeper-induced registrations can take place. The question is simply about the context in which we would choose to use that mechanism.
The minister talked about the costs that would be incurred. Let us remember that some of those who will dig their heels in most determinedly and who will not register will be the largest estates. We are talking about very wealthy people who can well afford to bear the costs. Why should those who choose to register or who comply with the expectation to register meet all the costs, while those who dig in their heels have the costs met by the taxpayer? I do not accept that.
As there is not a target date or even a prediction or expectation from the minister in the chamber about when the register will be complete, it is clear that he does not know when that policy objective of the bill will be met. I can conclude only that that is not the bill’s real policy intent and that the policy intent is to deal with the purely transactional issues that I mentioned.
Other specifics relate to the beneficial ownership arguments that Rhoda Grant expounded, prescriptive claims issues and community land questions. I regret that the Government decided not to give way to any amendments from Opposition parties throughout the bill’s passage. In reply to Mike MacKenzie, I suggest that the bill is the victim of a lack of idealism and that we could have done a great deal better.
As one of the Economy, Energy and Tourism Committee members who scrutinised the bill, I am happy that it will provide an improved framework and experience for all stakeholders.
In the stage 1 debate on 14 March, I highlighted my “sense of trepidation” at the beginning of the bill’s progress through Parliament. However, the bill has been extremely interesting, in contrast to what Murdo Fraser said. I do not know whether he takes his view because he is a lawyer—the only lawyer on the committee. The bill has been extremely interesting and it is important, because it will bring an element of public and private life up to date.
A number of issues were raised during the bill process. I took a particular interest in the automated registration of title to land system and the use of information technology under part 10. In this day and age, there is absolutely no reason whatever why the use of electronic means—or, to coin a phrase, electronic wizardry—should not be increased.
In paragraph 103 of our stage 1 report, we suggested that the keeper should “consult and test widely” to get improved buy-in from the sector for e-registration. I am content that Registers of Scotland will undertake appropriate consultation and testing with stakeholders and end users in developing new or upgraded electronic registration systems. However, I reserve the right—I am sure that every member in the chamber would do the same—to challenge the Registers of Scotland if it does not undertake those actions.
We all understand that public consultations sometimes do not get full backing. In listening to some of the evidence throughout the bill process, it was clear that there was a level of scepticism towards the keeper, particularly with regard to consulting and listening to practitioners. I hope that the process of consultation and testing will continue once the bill is enacted. I am sure that an improved dialogue will take place, and I hope that the end user will obtain a better experience.
A key aim of the bill is to bring land registration into the 21st century. However, a further key aim is to use land registration as an economic driver, as the minister highlighted earlier. The SPICe briefing for today’s debate highlighted the challenge that we as a Parliament face in progressing registrations. There are 2.6 million units of property in Scotland, of which 55 per cent have switched to the land register, and 21 per cent of Scotland’s land mass is on the register. That has come about since the Land Registration (Scotland) Act 1979 was passed.
The bill will have a positive effect on the number of registrations, and on the percentage of land mass that is registered. However, I hope that the Parliament will return to various land registration issues in the future. Patrick Harvie mentioned compulsory registration, which the minister indicated that he does not wish to include in the bill.
I agree with the minister’s comments on the economic potential of the bill and the economic driver theory behind it. However, future Governments will need to continue to scrutinise the progress of land registration. If that happens, the land register will indeed be completed. The Parliament has not undertaken much post-legislative scrutiny since it came back into being because it has had so many other issues to deal with. However, regular scrutiny would allow future Governments the opportunity to act swiftly if the bill’s aims were not being achieved.
I will back the bill tonight, and I thank my colleagues on the Economy, Energy and Tourism Committee for the way in which they have scrutinised it. I also thank the clerking team, the SPICe team, the committee adviser and the witnesses who gave evidence to the committee.
I have enjoyed the bill process, and I have learned a tremendous amount. I am sure that when the bill is enacted, it will bring about an improved level of land registration. I am convinced that we will reach the 100 per cent registration target in future.
As I mentioned at stage 1, I am now a retired solicitor, but when in practice I undertook conveyancing work over many years. As my colleague Murdo Fraser commented, the issue is extremely technical, and I realise that neither the subject matter nor myself is likely to set the minister’s heart a-beating. However, I hope that he may heed some of what I have to say in my subsequent observations.
Like other members, I thank Murdo Fraser and his fellow committee members for their thorough work in scrutinising the bill. That scrutiny, coupled with subsequent amendments, has ensured that the bill is in a better state now than it was at the beginning of the process.
The bill’s purpose is to ensure that the registration of title to land in Scotland is fit for 21st century purposes, and that the transition from sasine to land register title is accelerated so that, in the not-too-distant future, all titles will be registered. That is a sensible aspiration, and the bill maps out the route to achieve it.
However, under what may look like a calm surface, there are still some reefs in the water that require careful navigation. At stage 1, I expressed a slight misgiving about how rapidly voluntary registrations would proceed without some encouragement to the landowner in the form of reduced fees. I see that the minister has been entirely unmoved by my entreaties, so, aside from a strong sense of personal slight, I will just have to endure his indifference.
On a serious note, as the whole purpose of the bill is to make sasine titles a thing of the past, will the minister at least instruct the keeper to monitor progress over the next five years? I was interested in the minister’s remarks in his speech about the target for 2017. If we do not see the necessary pace of change on the numbers of titles and the land mass being transferred to land registration, he needs actively to investigate some form of discounted fee to encourage action.
Yes. My remarks were prompted by the minister’s specific comments about 2017 in the debate. The critical period of five years is significant.
I share the concerns that my colleague Murdo Fraser expressed in speaking to his amendment 6. The position in law to which the minister referred in respect of inhibitions striking only at voluntary disposals is correct, but apparently the keeper is not reflecting that position in current practice, and I think that that is causing delays and uncertainty. I urge the minister to engage in urgent discussions with both the Law Society of Scotland and the keeper to ensure that the keeper’s practice reflects current law.
Section 108 of the bill was the section that troubled me and others most. I voiced my concerns at stage 1, and wish to place them on the record today.
I am aware that, through lodging amendments at stage 2, my colleague Murdo Fraser endeavoured to give some sense of proportion to section 108, but those amendments were not agreed to. I note with some alarm that the Government amendment at stage 2 to remove section 108(4)(c) from the bill as introduced, which was agreed to, leaves the defined person under section 108 even more vulnerable. Currently, when legal experts and the keeper cannot agree on legal issues surrounding aspects of land registration, it is clear that what may be deemed to be materially misleading in the opinion of one lawyer may be deemed to be innocent representation in the opinion of another, and what may constitute reckless disregard for one lawyer may reflect due diligence and adequate professional service for another.
The difficulty is that, where a client or an adviser to the client other than the solicitor, or a third party who is dealing with or for the client gives erroneous information to the solicitor with malign intent and is determined to deceive the solicitor to induce a fraudulent land registration, the hapless solicitor is the easy target and could be subjected to the nightmare of a technical criminal prosecution that is made possible by the section. As I observed during stage 1, existing law covers such dishonest or fraudulent activity, and the Scottish Law Commission did not seek a new criminal provision in its original bill, the provision was not consulted on pre-legislation, and it did not find support from witnesses who gave oral evidence to the committee. The one exception was the Solicitor General; I might suggest that the Solicitor General’s office naturally relishes a growth industry in new criminal offences. I would have thought that all that would ring serious alarm bells for most people. I am sorry that the Scottish Government is not among them.
With those reservations, I accept that the bill makes good progress towards an objective that we all want to be reached and my party will support it.
I, too, want to put on record my thanks to the committee clerks, our adviser Professor Kenneth Reid, SPICe, all the other officials who gave us advice and all those who responded to the consultation.
Unlike John Park and Stuart McMillan, I found the bill quite dry and complex. Perhaps they need to get out more if they found it exciting. Nonetheless, it is a good bill as far as it goes. It will streamline our processes and allow for mistakes to be corrected. Mike MacKenzie’s amendment will allow the Lands Tribunal for Scotland to adjudicate where there are concerns about mistakes that may have been made. Therefore, although it lacks policy, it will put in place some very good administrative practice.
There are issues missing from the bill that could have been addressed. One of those is the issue of prescriptive claims, when unscrupulous people acquire land—ransom strips—and hold back development. The aim of having a prescriptive claim in legislation is to do the opposite of that, but we need to look at the process again to ensure that it meets the public interest. The bill is a missed opportunity to rectify that problem. Patrick Harvie was right when he said that many aspects of the bill do not address the public interest.
Another issue that is missing from the bill is beneficial ownership. I tried to do something about that earlier with my amendment, which would have allowed those who had real concerns about the ownership of land that they were interested in to have that beneficial ownership registered. That would have created transparency when there were problems. I am disappointed that the amendment was not supported. Organisations such as HMRC, as well as tenants, crofters and neighbours of unscrupulous landowners have been let down because that amendment was not agreed to.
Mike MacKenzie levelled the charge of idealism at me. If I were being idealistic, I would have moved a totally different amendment that would have made the whole process much more transparent and accessible. I did not—I moved an amendment that was a practical solution to a difficult problem. As Patrick Harvie said, the bill would benefit from a good dose of idealism—we have missed that opportunity.
The other issue that has not really been touched on is the need for the register to be open and available to members of the public. People need to be able to access the register without any great cost. Information about who owns land in Scotland needs to be open and transparent. I hope that the minister will keep an eye on that issue to ensure that that is the case in the future.
Many of the contributors talked about completion of the register, as is right and proper, because that is one of the main aims of the bill. The statement was made that keeper-induced registration will not be compulsory. That raises concerns. How will we get a transfer to the new register if much of the land in Scotland remains unregistered? A lot of the land may pass into new ownership, but because that land ownership is in a trust, it is the ownership of the trust that changes, not the ownership of the land itself.
There may be an inducement in the bill—if not in the bill itself, certainly in the policy behind the bill—to encourage large landowners to register their land, especially if the land title is complex, because the minister suggested to the committee that there may be a change to how fees for land registration are charged. It may become much more expensive to register complex land titles in the future. Owners of large and complex estates might do well to consider that and get in early with their registration.
Mike MacKenzie talked about quality being sacrificed for speed—he is right. There were complaints about inaccuracies in the register and concerns about errors that were made by the keeper. The bill allows for those errors to be rectified, but we need to be careful. Land registration is extremely important. If it goes wrong it leads to disputes that can be expensive and difficult to put right. I hope therefore that accuracy will be given a high priority.
Section 108 was mentioned by Murdo Fraser, John Wilson, John Park and Annabel Goldie. There is a real concern that in trying to ensure that the transfer of land and land purchase is not open to fraud, solicitors may end up being prosecuted for fraud when they acted in good faith on the information that they had. We need to look at the guidance that goes with that part of the bill, because even an investigation can cause huge problems. A solicitor acts on the basis of their good character and people trust them because of that good character. If there is any question about their reputation it could damage their business, so I urge the minister to look at that guidance closely and to make sure that that damage cannot happen.
As I said earlier, I am pleased that the Lands Tribunal is being used to settle disputes. Mike MacKenzie pushed that in the committee and lodged amendments on the issue, and I congratulate him on getting his proposal accepted. Accessing the Lands Tribunal does not mean that people do not need lawyers, but it should mean that the process will be much simpler.
I thought that I would struggle to fill the seven minutes that you generously gave me, Presiding Officer, but I see that I am getting close to the end of that time.
This is a good and useful bill, but it is a missed opportunity to make good progress on the land reform agenda that the Government says that it supports.
This has been a useful and constructive debate. I thank all members for their contributions. The debate has demonstrated that members agree that this is an important bill. Any disagreement appeared to centre on how exciting it is. I am pleased that all speakers have acknowledged that it is a useful, solid piece of work that will allow us to make great progress with our land registration system.
As has been mentioned, the register of sasines was revolutionary. In 1617, it was the first national land registration system in the world. For its time, it was pioneering. However, as those of us who spent many years in private practice dealing with conveyancing know, the old system involves poring over deeds, which are mostly handwritten and sometimes include quite vague descriptions of land. I remember one description that simply said, “All and whole of that three merk land of old extent.” Goodness me. That conveyancing description must have been drafted after an extended lunch, because it did not provide much clarity about the boundaries of the land involved.
Equally, I am sure that Miss Goldie and Mr Fraser will remember spending far too many hours poring over handwritten documents such as contracts of excambion, charters of novodamus, feu contracts, feu dispositions, bonds and dispositions in security.
Of course, one of the great benefits of the land register is not that those deeds are somehow dispensed with and rendered no longer relevant, because, often, they may still be relevant, even if some of them have fallen into desuetude; it is that most of them will now be shown on the burden section—called land obligations, now—of the title sheet, in typewritten form. That has the practical benefit for the people whom we represent that their lawyers are not spending hours—for which they are paying—poring over old handwritten deeds.
It has been said that the purpose of this bill is purely transactional. I think that it is a good thing that we are helping to aid the process of making the job of land registration one that can benefit the people whom we represent who want to own their house. I do not think that it does justice to the work of the keeper or the profession to say that that is purely transactional. This morning, we are doing something that will benefit a great many people in Scotland and, in a modest way, will make Scotland a better place.
The bill creates more triggers for registration, allowing the process to encompass more transaction. I inform the chamber that I am advised by the keeper that that is likely to result in 7,000 additional first registrations in the first year after the designated day.
Earlier, I mentioned the Forestry Commission. I praise it for carrying out a survey of its land holdings in Scotland. The Forestry Commission owns 1,969 parcels of land covering 650,000 hectares, which accounts for 7.5 per cent of Scotland’s land mass. That is a substantial proportion of our land mass, and I welcome the willingness of the Forestry Commission to engage in how we take the issue forward.
The member will have to excuse me, but I really want to give the chamber some more information that I did not have time to give earlier.
I understand from Registers of Scotland that, at a rough order of magnitude, the cost of the aspiration of undertaking the 700,000 keeper-induced registrations by 2017—I repeat, 700,000 registrations—is around £25 million. The keeper has set aside £10 million in the reserves in her trading fund, and the intention is to recoup the £15 million shortfall from the fee income over 10 financial years, which will have to be reflected in the biennial fee reviews.
Of course, all these things are kept under review; of course, they are studied; and, of course, ambitious, major and detailed plans have been put in place and will be enacted to extend the coverage of Scotland’s land register. This is not minor progress; it is major progress that will happen not simply because we pass the bill—which, after all, is only words on a page, important though they are—but because team Scotland is working together to achieve the bill’s aims and to ensure the gradual completion of the land register.
In fact, to pursue that aim, the keeper and I jointly wrote an article for The Journal of the Law Society of Scotland last year in which we encouraged landowners to get their titles registered. I take this opportunity to make the same encouragement to ensure that landowners receive the benefits of land registration. Indeed, plans are afoot to encourage landowners in this matter; for a start, Rhoda Grant was quite right to point out that because the fees have a maximum cap they represent an excellent deal. In some cases, the current fees do not reflect the total cost to the keeper of carrying out this work. I repeat my exhortation to landowners to seriously consider the offer. If they transfer their titles to the land register, they will find that the benefits can be considerable; for example, they might discover that they own land that they were not aware of and that it is easier to transact land for development. Those kinds of commercial benefits can be gleaned and I praise the keeper and her staff for their very detailed efforts in dealing with this matter.
The bill makes a number of very important changes to land registration practices and adopts many of the sound practices that have developed over the years. For a start, it makes provision for defining inaccuracy in the land register and, more important, when and how titles can be rectified. As a matter of registration practice, the keeper has been proactive in bringing new procedures in line with recognised international standards and the mapping working group that I believe Mr Macintosh mentioned in his remarks and which comprises members of the Ordnance Survey, the Royal Institution of Chartered Surveyors, the Law Society and Registers of Scotland has been established.
I must also thank Mike MacKenzie, who I think has been somewhat modest, because he did a power of work on this bill for the Economy, Energy and Tourism Committee and brought a lot of knowledge to its scrutiny. Assisted by committee members, he lodged an important stage 2 amendment that in effect allows a case to be referred to the Lands Tribunal for Scotland instead of individuals having to go to the full expense and through the whole panoply of court action.
Mr Park asked me to respond to his important point. Although in many cases it might be possible to refer underlying legal issues to the Lands Tribunal, I must, as I have before, indicate that, as I think Mr Park is aware, the Parliament has certain restrictions on its freedom to make law that alters existing property rights in live cases.
Annabel Goldie accused me of indifference towards her, ignoring her entreaties and not taking seriously her inestimable contributions to this and previous debates on this matter—perish the thought. How could I now, in the past or in the future ever be indifferent to Miss Goldie’s entreaties? My difficulty is in preventing my beating heart from distracting me and in ensuring that my mind is engaged with her remarks. [Interruption.] I am told that I should move on, Presiding Officer.
In all seriousness, we believe that the offence provision in the bill is necessary. As the overwhelming majority of solicitors are honest, they will be neither inconvenienced nor subject to any difficulty.
As someone who, as a solicitor with Leslie Wolfson 30 years ago, had experience of the previous Land Registration (Scotland) Bill, I am somewhat surprised but very pleased, proud and honoured to find myself playing a modest part in the updating, modernisation and improvement of the land registration system in this country.