Chamber
Meeting of the Parliament 14 March 2012
14 Mar 2012 · S4 · Meeting of the Parliament
Item of business
Land Registration etc (Scotland) Bill: Stage 1
It is a challenge to bring some verve and spice to the issue of land registration. The subject does not brim with pulsating excitement. Things were a lot more colourful when buyer and seller exchanged clods of earth to reflect the sasine of acquired ground. I declare an interest as a former solicitor who practised conveyancing.
All the complex, technical and rather dry environment surrounding registering a title to heritage in Scotland should not blind us to the important function of giving a purchaser or an existing landowner a good title in law, and a secured creditor a good security. Without those components being delivered in an efficient and cost-effective process, much domestic conveyancing could grind to a halt and, on the commercial front, Scotland could become an unattractive destination for doing business. In modernising and improving the function of land registration, an important balance has to be struck.
My party accepts the need for that modernisation and, within the constraints of the time I have available, I will restrict my comments to the particular areas on which I would like the minister’s input. I also pay tribute to the Economy, Energy and Tourism Committee. I found its report to be very informative and helpful.
The objective of completing the land register is essential and the statutory changes that are proposed to achieve that are positive. However, if voluntary registrations are cut off at the pass by excessive registration fees, progress will not be made. That is a fact. I urge the Scottish Government to produce the carrot in the form of voluntary registration fees that act as an inducement. There could be a trial charging regime for a fixed period to assess the response. If the fees in Scotland are significantly greater than those in the comparable process in England and Wales, that is not a good message.
I accept that keeper-induced registrations are consistent with the ends of the bill, and the minister has sought to clarify the fee-charging mechanism, to some extent. I am still unclear about how the proposal will work in practice, so I urge the minister to spell that out in more detail. It is not only the involvement of the landowner that is significant; it is also about intimation to any secured creditor who has an equivalent interest. Without that clarification, the retention of section 29 will be problematic.
Nothing could be more vital than the technical issue of the land register’s accuracy. There are problems with the scale of the Ordnance Survey map, particularly for remoter geographical areas. Interestingly, those problems also existed in the old sasine system, which depended on a combination of plans and a series of written descriptions of physical boundaries such as walls, hedges, burns and rivers. I suggest to the minister not only that such additional information should be a minimum requirement to accompany a land registration application, but that the documents should be retained by the keeper for the purposes of archive information and that they be accorded legal status. A professionally drawn surveyor’s plan that is fully measured to reference points of an area of ground is the most accurate description that the keeper can procure. An Ordnance Survey map cannot match that degree of accuracy. That additional information can only help the keeper and make the land register more robust. That is why, without legal status for such plans, the inherent weakness of title depending on an Ordnance Survey scale that is too small for purpose remains unaddressed.
On electronic conveyancing—a bewildering concept to an old bird like me—I share the committee’s rejection of making it compulsory. The opportunities that will be provided by, and the potential of, proceeding with automated registration of title to land are obvious, and the committee was right to raise the twin issues of cost and safeguards.
The provision that troubles me most is section 108, in which the theory of box-ticking usurping common sense seems to have manifested itself. I do not know who is responsible for the inclusion of section 108, because it does not seem to have many friends. It was not in the original Scottish Law Commission bill, it was not consulted on, and it did not seem to find support from witnesses or in written evidence to the committee. At present, any party or agent—whether purchaser, landowner, heritable creditor, solicitor, surveyor or other adviser to a land registration application—who is dishonest and who, through dishonest conduct, knowingly induces a registration of land, is committing a serious criminal offence and can and should be prosecuted under existing law. The proposed new law is unnecessary and grossly disproportionate. I urge the minister either to remove section 108 or to amend it heavily.
Genuine error is a separate issue. I am concerned that section 33(1)(b) will give a power to the keeper that could be used excessively, to the detriment and prejudice of purchaser applicants and their heritable creditors. Rejection for a serious error or a material omission is one thing, but rejection on any other grounds seems to be irresponsible and could seriously prejudice a creditor’s interest.
Finally, anything that replaces letters of obligation has to be very good. I still recall the spasm every time I signed a letter of obligation, knowing that I was personally guaranteeing the wellbeing of my partners and my firm—an onerous undertaking for which to be responsible. I welcome advance notices and support the motion.
All the complex, technical and rather dry environment surrounding registering a title to heritage in Scotland should not blind us to the important function of giving a purchaser or an existing landowner a good title in law, and a secured creditor a good security. Without those components being delivered in an efficient and cost-effective process, much domestic conveyancing could grind to a halt and, on the commercial front, Scotland could become an unattractive destination for doing business. In modernising and improving the function of land registration, an important balance has to be struck.
My party accepts the need for that modernisation and, within the constraints of the time I have available, I will restrict my comments to the particular areas on which I would like the minister’s input. I also pay tribute to the Economy, Energy and Tourism Committee. I found its report to be very informative and helpful.
The objective of completing the land register is essential and the statutory changes that are proposed to achieve that are positive. However, if voluntary registrations are cut off at the pass by excessive registration fees, progress will not be made. That is a fact. I urge the Scottish Government to produce the carrot in the form of voluntary registration fees that act as an inducement. There could be a trial charging regime for a fixed period to assess the response. If the fees in Scotland are significantly greater than those in the comparable process in England and Wales, that is not a good message.
I accept that keeper-induced registrations are consistent with the ends of the bill, and the minister has sought to clarify the fee-charging mechanism, to some extent. I am still unclear about how the proposal will work in practice, so I urge the minister to spell that out in more detail. It is not only the involvement of the landowner that is significant; it is also about intimation to any secured creditor who has an equivalent interest. Without that clarification, the retention of section 29 will be problematic.
Nothing could be more vital than the technical issue of the land register’s accuracy. There are problems with the scale of the Ordnance Survey map, particularly for remoter geographical areas. Interestingly, those problems also existed in the old sasine system, which depended on a combination of plans and a series of written descriptions of physical boundaries such as walls, hedges, burns and rivers. I suggest to the minister not only that such additional information should be a minimum requirement to accompany a land registration application, but that the documents should be retained by the keeper for the purposes of archive information and that they be accorded legal status. A professionally drawn surveyor’s plan that is fully measured to reference points of an area of ground is the most accurate description that the keeper can procure. An Ordnance Survey map cannot match that degree of accuracy. That additional information can only help the keeper and make the land register more robust. That is why, without legal status for such plans, the inherent weakness of title depending on an Ordnance Survey scale that is too small for purpose remains unaddressed.
On electronic conveyancing—a bewildering concept to an old bird like me—I share the committee’s rejection of making it compulsory. The opportunities that will be provided by, and the potential of, proceeding with automated registration of title to land are obvious, and the committee was right to raise the twin issues of cost and safeguards.
The provision that troubles me most is section 108, in which the theory of box-ticking usurping common sense seems to have manifested itself. I do not know who is responsible for the inclusion of section 108, because it does not seem to have many friends. It was not in the original Scottish Law Commission bill, it was not consulted on, and it did not seem to find support from witnesses or in written evidence to the committee. At present, any party or agent—whether purchaser, landowner, heritable creditor, solicitor, surveyor or other adviser to a land registration application—who is dishonest and who, through dishonest conduct, knowingly induces a registration of land, is committing a serious criminal offence and can and should be prosecuted under existing law. The proposed new law is unnecessary and grossly disproportionate. I urge the minister either to remove section 108 or to amend it heavily.
Genuine error is a separate issue. I am concerned that section 33(1)(b) will give a power to the keeper that could be used excessively, to the detriment and prejudice of purchaser applicants and their heritable creditors. Rejection for a serious error or a material omission is one thing, but rejection on any other grounds seems to be irresponsible and could seriously prejudice a creditor’s interest.
Finally, anything that replaces letters of obligation has to be very good. I still recall the spasm every time I signed a letter of obligation, knowing that I was personally guaranteeing the wellbeing of my partners and my firm—an onerous undertaking for which to be responsible. I welcome advance notices and support the motion.
In the same item of business
The Presiding Officer (Tricia Marwick)
NPA
The next item of business is a debate on motion S4M-02304, in the name of Fergus Ewing, on the Land Registration etc (Scotland) Bill.13:34
The Minister for Energy, Enterprise and Tourism (Fergus Ewing)
SNP
I thank the Economy, Energy and Tourism Committee for its thorough and collaborative scrutiny of the Land Registration etc (Scotland) Bill. I also thank the ...
Murdo Fraser (Mid Scotland and Fife) (Con)
Con
I declare my interest as a member of the Law Society of Scotland.As convener of the Economy, Energy and Tourism Committee, I mention that the committee recom...
Fergus Ewing
SNP
I will consider further and respond in due course on reduced fees for voluntary registration. Does Mr Fraser agree that there is an incentive for voluntary r...
Murdo Fraser
Con
The minister has made a fair point. In his opening speech he mentioned the proposal to introduce time-and-line fees. Higher costs would potentially act as a ...
Fergus Ewing
SNP
I do not want to interrupt the flow of Mr Fraser’s speech too frequently, but I ask him—as one solicitor to another—whether it is fair to say that the high c...
Murdo Fraser
Con
That is a fair point, although I am sure that when Mr Ewing was in practice he was very reasonable in the fees that he charged—as, indeed, was I.The offence ...
Rhoda Grant (Highlands and Islands) (Lab)
Lab
I associate myself with the thanks that Murdo Fraser and the minister offered to those who provided evidence to and assisted the committee. The bill is large...
Mike MacKenzie (Highlands and Islands) (SNP)
SNP
Is it the Labour Party’s position that only companies or individuals who are resident and domiciled in Scotland should be able to buy land in Scotland?
Rhoda Grant
Lab
No. If Mr MacKenzie listens to the points that I will make, he might understand where I am coming from.The land reform legislation was based on the need to k...
Annabel Goldie (West Scotland) (Con)
Con
It is a challenge to bring some verve and spice to the issue of land registration. The subject does not brim with pulsating excitement. Things were a lot mor...
The Presiding Officer
NPA
We now move to the open debate. I remind all speakers that they have a fairly tight 10-minute time limit. Interruption. I am sorry: I meant to say four minut...
John Wilson (Central Scotland) (SNP)
SNP
I speak as a member of the Economy, Energy and Tourism Committee, which held a number of evidence-gathering sessions as part of its detailed examination of t...
John Park (Mid Scotland and Fife) (Lab)
Lab
I thank the clerks for the support that they gave me as a new member of the Economy, Energy and Tourism Committee when I started in January, just after the C...
Mike MacKenzie (Highlands and Islands) (SNP)
SNP
I am pleased to have the opportunity to speak in the debate. Although I am what Murdo Fraser has described as “a non-lawyer”—I wonder whether that is a Latin...
Stuart McMillan (West Scotland) (SNP)
SNP
As one of the non-lawyers on the Economy, Energy and Tourism Committee, it was with a sense of trepidation that I started out on my journey through scrutiny ...
Hanzala Malik (Glasgow) (Lab)
Lab
This is an interesting topic. I have witnessed huge amounts of difficulty overseas, in particular for farmers who have smallholdings. When an inheritance has...
Jean Urquhart (Highlands and Islands) (SNP)
SNP
When I offered to speak in today’s debate, I was aware that I would be doing so more from a sense of how important the bill is than from a position of taking...
James Kelly (Rutherglen) (Lab)
Lab
I welcome the opportunity to speak in this debate on the Land Registration etc (Scotland) Bill. As someone who is not a member of the Economy, Energy and Tou...
Paul Wheelhouse (South Scotland) (SNP)
SNP
I should declare an interest. I worked for BiGGAR Economics when it did the piece of work for Registers of Scotland on the economic impact of its proposals. ...
Rob Gibson (Caithness, Sutherland and Ross) (SNP)
SNP
As the convener of the Rural Affairs, Climate Change and Environment Committee, I have an interest in the Land Registration etc (Scotland) Bill dovetailing w...
Patrick Harvie (Glasgow) (Green)
Green
I strongly commend Rob Gibson for much of what he said. In addition, I thank everyone who contributed to the committee’s work, in whatever capacity.My fellow...
Annabel Goldie
Con
It is difficult in an essentially technical debate to introduce ideas and concepts without risking repetition. I prefer to comment briefly on one or two poin...
Ken Macintosh (Eastwood) (Lab)
Lab
I acknowledge that, although the bill is largely technical, most of its proposals have been welcomed and are required if we are to improve land registration....
Fergus Ewing
SNP
I have thoroughly enjoyed the debate. There have been useful contributions from all sides. If I do not reply in my short speech to some of the suggestions an...
Fergus Ewing
SNP
I will carry on for a bit, if I may.Mr Harvie acknowledged that point, as did others. I can tell him that we have had some discussions on the matter and offi...
Patrick Harvie
Green
Will the minister allow his officials to have discussions with Opposition members prior to stage 2, so that we understand the limits of what the Government t...
Fergus Ewing
SNP
I always do that.Why are reserves necessary? First, because the keeper cannot have access to consolidated funds; she must balance her budget. She does not ha...
The Deputy Presiding Officer (John Scott)
Con
You have another four minutes.
Fergus Ewing
SNP
Oh good. I thought that I needed to finish.