Meeting of the Parliament 22 January 2026
It is a privilege to open the debate on behalf of Scottish Labour and to echo the previous speaker—we, too, will support the bill at stage 1.
It is right that we address the issue, because the law has not kept pace with the rapid evolution of digital technology, and Scotland now faces a level of legal uncertainty that is neither sustainable nor acceptable for individuals, businesses or the wider economy. The expert reference group has already been mentioned in the debate, as have submissions from those—including the Law Society of Scotland—who have stressed that we cannot rely on the slow, case-by-case development of Scots common law to resolve complex novel questions about digital property. That also means that we lose the opportunity for timely and considered views on what the answer should be and that we are moving forward at a pace that means we must rely on those who sat on, and guided, the expert reference group if we are to avoid the risk of incoherence in the future.
The overarching purpose of the bill is clear: to confirm that certain digital assets are, in Scots law, capable of being owned and to establish the rules governing their recognition, control and transfer. However, if we are to legislate with clarity and foresight, we must also grapple honestly with the conceptual foundations of the bill. I would say that we have already delved into the undergrowth, but that is perhaps unfair, so I will say that we have circled the roundabout of understanding the characteristics of rivalrous goods and independent existence, grounded in work done by the Law Commission. That is reflected in recent case law from R v Lakeman in the Court of Appeal, which more understandably explains what rivalrous means. In that case, there was a discussion about virtual in-game currency, which was recognised as being an asset because its use by one person necessarily prevented its use by another.
That is an essential distinction between mere data—which was referred to by the convener as the PDF—and true digital assets. The Law Society of Scotland made the important point that the requirement for an “immutable record of transactions” risks being too closely tied to one technological model—the standard block chain, which I think people have a growing understanding of—and that that may inadvertently exclude other systems being developed that allow authorised modifications in order to correct a genuine error, for example. That is why the bill must safeguard technological neutrality as we progress.
The bill seeks to offer clarity about ownership, control and transfer, and much of that is welcome. The Law Society of Scotland rightly cautions that treating digital assets as corporeal moveables for the purpose of acquisition could cause future uncertainty. It would be unfortunate if a device intended to simplify ownership were actually to complicate the situation, particularly, as we have already heard, with regard to insolvency, property doctrines and the existing rules governing incorporeal rights. A more direct approach that links transfer to the intention to transfer ownership and to the transfer of exclusive control might warrant reflection at stage 2. That is not an argument against the bill but a reminder that precision matters, particularly with regard to our private law system.
There is a strong case for some specific carve-outs, as has been mentioned by the committee, SPICe and the Law Society of Scotland. Those might be for assets such as the electronic trade documents dealt with in the Electronic Trade Documents Act 2023, uncertified securities dealt with by existing UK regulations, and financial collateral under the movable transactions regime. All of those are already governed by detailed statutory frameworks, and bringing them within the scope of the bill threatens to create conflict, uncertainty and unintended consequences. The Government should therefore confirm whether it intends to pursue explicit exclusions or statutory instrument powers to clarify the scope of the bill as technology develops.
I will have the great pleasure of closing on behalf of Scottish Labour later, when I will revisit the market overt and the question of ownership. I reaffirm that we will be supporting the bill.