Beneficial interest, controlling interest, and the Land Register of Scotland

On 1 December 2017, a conference was held to celebrate the contribution of Professor George Gretton to Scots law and beyond. Conference proceedings have been Storified by me here.

On the day, papers were presented on a variety of topics and a book containing printed versions of those papers and more was unveiled. The book, Nothing So Practical as a Good Theory: Festschrift for George L. Gretton, was edited by Andrew J. M. Steven, Ross G. Anderson and John MacLeod and published by Avizandum.

I won’t re-hash my Storify story in this post or go over the papers presented in any more detail here. Rather, what I will do is highlight a chapter in the festschrift that was not spoken to on the day, by Professor Kenneth Reid. That it was not spoken to on the day should not be taken as an indication it is not important. On the contrary, it makes a series of striking points about what became the Land Registration (Scotland) Act 1979.

The culmination of Reid’s research is to shine a light on an attempt to link the new Land Register of Scotland (which was being introduced to replace the much older General Register of Sasines) to the “Who Owns Scotland” movement that was active in the 1970s. This attempt failed. It was not until Part 3 of the Land Reform (Scotland) Act 2016 was passed before a roughly comparable regime was introduced. (At the time of writing, Part 3 has not been brought into force.)

To summarise, amidst all the other politics of the 1970s – including a (coincidental) failed first attempt for Scottish devolution – for a variety of reasons not connected to the wider land reform movement it was thought that the law relating to registration of title to land in Scotland needed reformed. Essentially, these reforms would draw on the earlier English and Welsh reforms (in the Law of Property Act 1925) and move Scotland from a system where deeds relating to a land transaction were registered to one where the title itself (and an associated plan) would be registered and guaranteed by the state.

Notwithstanding the apparently technical focus of these land registration reforms, Reid explains that the then Secretary of State, Bruce Millan, decided to take steps to mesh the more overtly policy-oriented issues that had entered the public debate into the Land Registration (Scotland) Bill, and in turn address “Who Owns Scotland”-type questions. He proposed a new clause for the Bill that was progressing through Westminster. The text of the proposed clause is reproduced in Reid’s chapter. It was to the effect that landowners who were not natural persons would have to disclose any person having beneficial interest in relevant land, and the nature of that beneficial interest. Technical wording followed which explained what that meant.

Having negotiated several hurdles put in the way of this clause, it fell at a hurdle positioned by the then Lord Chancellor, Lord Elwyn Jones. The primary reason it fell was because of a worry that developments in Scotland might lead to a clamour for a similar reform in England and Wales, where there was no such need to disclose. As Reid adroitly expressed the point:

Scotland, it seemed, could not have what England did not want (or was not to be allowed).

This opposition resulted in the clause being quietly spiked and the Bill was passed without it. Not much more was heard of the clause and the debate that surrounded it. Further debates around transparency followed (including on this blog) with no reference to the clause. Reid’s very welcome chapter brings the matter to the fore and will help to inform the current and future debate. Meanwhile, some forty years on, it is now left to us to wonder what might have been if greater transparency had rolled out across Scotland as the Land Register became operational, and patiently await implementation of the transparency provisions of the Land Reform (Scotland) Act 2016 with a slightly better knowledge base than many of us previously held.

Kenneth’s paper can be found on SSRN here.

Nothing So Practical as a Good Theory: Festschrift for George L.Gretton

Image credit – Avizandum

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About basedrones

Bachelor of Laws. Scots lawyer working at the University of Aberdeen. English law qualified. Took far too long to write this bio. Blogs on legal issues, with occasional veering into other purportedly intellectual stuff from time to time. Tweets about legal issues, education, law clinics, fitba, music, rogue cell division and not at all about politics at @MalcolmCombe.
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