Chamber
Meeting of the Parliament 31 May 2012
31 May 2012 · S4 · Meeting of the Parliament
Item of business
Land Registration etc (Scotland) Bill
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.
11:23
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.
11:23
In the same item of business
The Deputy Presiding Officer (John Scott)
Con
The next item of business is a debate on motion S4M-03070, in the name of Fergus Ewing, on the Land Registration etc (Scotland) Bill.As the bill contains pro...
The Cabinet Secretary for Finance, Employment and Sustainable Growth (John Swinney)
SNP
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 ...
The Deputy Presiding Officer
Con
Thank you. We now move to the debate. I call Fergus Ewing to speak to and move the motion. You have a generous 10 minutes, minister.10:25
The Minister for Energy, Enterprise and Tourism (Fergus Ewing)
SNP
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 mem...
Murdo Fraser
Con
I may have beaten Mr Harvie to asking the same question.The minister hopes that 80 per cent of properties will be registered by 2017. What proportion of the ...
Fergus Ewing
SNP
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 propert...
Fergus Ewing
SNP
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...
Patrick Harvie
Green
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...
Fergus Ewing
SNP
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....
Jenny Marra (North East Scotland) (Lab)
Lab
Given that our system of conveyancing is based on mutual trust and professional obligation, what consideration was given to safeguards against criminal and f...
Fergus Ewing
SNP
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 s...
Ken Macintosh (Eastwood) (Lab)
Lab
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 b...
Murdo Fraser (Mid Scotland and Fife) (Con)
Con
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 st...
John Wilson (Central Scotland) (SNP)
SNP
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 submi...
John Park (Mid Scotland and Fife) (Lab)
Lab
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 ...
Mike MacKenzie (Highlands and Islands) (SNP)
SNP
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 pr...
Patrick Harvie (Glasgow) (Green)
Green
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 supp...
Mike MacKenzie
SNP
If a target such as the member describes was set, what mechanism could the Government use to ensure that it was achieved?
Patrick Harvie
Green
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 achiev...
Stuart McMillan (West Scotland) (SNP)
SNP
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 fo...
Annabel Goldie (West Scotland) (Con)
Con
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 com...
Stuart McMillan
SNP
Does Annabel Goldie agree that it should not be about just the next five years, but that there should be continual scrutiny by future ministers to ensure tha...
Annabel Goldie
Con
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 conc...
Rhoda Grant (Highlands and Islands) (Lab)
Lab
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 al...
Fergus Ewing
SNP
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 i...
John Wilson
SNP
Will the minister give way?
Fergus Ewing
SNP
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 Reg...
The Presiding Officer (Tricia Marwick)
NPA
You have 20 seconds, Mr Ewing.
Fergus Ewing
SNP
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 neith...
The Presiding Officer
NPA
Minister, two weeks ago, you cast aspersions on my virtues when we were together in New York; now here you are, referring to Miss Goldie in such terms. One o...