Chamber
Meeting of the Parliament 31 May 2012
31 May 2012 · S4 · Meeting of the Parliament
Item of business
Land Registration etc (Scotland) Bill
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.
10:53
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.
10:53
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...