A year in review: access to justice and the Law Society of Scotland

Access to justice is important. I have blogged on the topic previously (click through the tag below, if you are interested) and dabbled with it in my writing (such as this note in the Journal of the Law Society of Scotland and the occasional book review). It has also featured in my academic practice, by introducing students to the notion and through encouraging and facilitating student activities that address access to justice issues. It now features in a slightly different aspect of my professional life, as a new member of the Access to Justice Committee of the Law Society of Scotland.

I have only attended one meeting thus far, so it is still “early doors”. That said, some things have cropped up already. The most time-critical thing is a response to a Scottish Government consultation, on Scottish court fees. This closes on 12 January 2018.

In the landing page for the consultation, this following is stated. “It is necessary to increase fees in line with inflation in order to continue to achieve full cost recovery.” The necessity of full cost recovery – that is to say, users of a service paying for it so as to leave no cost on the state – is not made out.

There is an argument to be had about this. To some, justice is one of those things that cannot really be categorised like other commodities (this being something that was discussed in the UK Supreme Court in the UNISON v Lord Chancellor [2017] UKSC 51 case (about employment tribunal fees)). I note Consumer Focus Scotland does not support full cost recovery (PDF). Without claiming to speak for the Law Society of Scotland in this post (but see this contribution from one committee to a previous consultation (PDF)), there are some in the profession who are sceptical of the policy.

Those views notwithstanding, it can be acknowledged that the Scottish Government has been moving towards full cost recovery since at least 2008 (in terms of this motion), and further that the Scottish Government is not particularly minded to have any argument about this, at least in parliament anyway (PDF). That backdrop suggests this is a policy that is not ripe for review. Regardless, watch this space for the response from the Access to Justice Committee on this consultation in particular and full cost recovery as a whole.

I will conclude by noting one other thing that has cropped up quite separately to my appointment, namely this research on the effectiveness of legal aid. My lack of involvement (i.e. I did not commission the research or undertake the research itself) means I can be semi-objective when I observe that it deserves a wide audience, within and outwith Scotland. Those in England and Wales, where legal aid has been slightly more emasculated in comparison to Scotland, might be particularly interested.

If anyone is interested in the work of the access to justice committee or wishes to contact me about it, here are its aims and objectives:

  • promote access to justice for the public
  • identify barriers to access to justice and, where possible, work alone or with others to identify or implement solutions
  • monitor the supply of publicly funded legal assistance across Scotland, encouraging greater coordination of services
  • identify opportunities to promote pro bono work
  • build the Society’s relationship with law centres, Part V solicitors, and other advice providers
  • examine how a range of funding sources for, and providers of, legal advice can be encouraged
  • liaise and negotiate with external organisations, such as Scottish Government, Citizens Advice and others
  • collaborate with other LSS committees, including Civil Justice, the Civil Legal Aid Negotiating Team, Mental Health and Disability, Equality and Diversity and Human Rights and Discrimination

This is the fourth of my reflective blog posts on 2017. The first was on my involvement with the Juridical Review (available here), the second related to some research projects to do with Scottish smallholdings and interventions in land markets (available here), and the third related to deer.

UPDATE 29 January 2018

The consultation response is available here (PDF).

Posted in Access to Justice | Tagged , , , | 1 Comment

A year in review: a deer topic for Scotland

Sorry. What a terrible pun. I almost opted for a word formulation involving “deer-ly beloved”, but I thought that might be a bit too twee.

Anyway, why am I punning about deer? Or rather, why am I thinking, researching and writing about matters to do with deer?

This is another topic that I became (more) involved with in 2017. To explain, the Scottish Government has set up an independent Deer Working Group. Its terms of reference are available here. It has four members (one of which acts as its Chair, another as its Special Adviser), and two external advisers. I am one of those external advisers. Member profiles and details of the advisers can be found here. My role is to provide advice on specific questions to assist the Group fulfil its remit. The Group is due to report in 2019.

Meanwhile, a separate independent review group has been established to review the management of grouse moors.

These two topics are important for Scotland. I look forward to contributing to the Deer Working Group, and I look forward to reading the output of the group looking at grouse moor management practices in due course.

This is the third of my reflective blog posts on 2017. The first was on my involvement with the Juridical Review (available here) and the second related to some research projects to do with Scottish smallholdings and interventions in land markets (available here).

Posted in Deer, Deer Working Group | Tagged , , | 2 Comments

A year in review: some tender reflections on 2017

Don’t worry. Despite this blog post’s title, this is not going to be a romantic or nostalgic reflection on my year. This is a post about a different kind of tender. 

Scottish land law and related matters of land policy have been a matter of some interest to me for a while. Two opportunities to pursue this interest officially presented themselves in 2017, in the shape of contract work for two public bodies. I am part of two separate teams that successfully tendered for these work streams.

The first of those relates to Scottish smallholdings. I have had some involvement with this niche practice area, in my capacity as co-author of the Leases chapter of the Scots law textbook Gloag and Henderson and as per this note for the Journal of the Law Society of Scotland. (Smallholdings are not to be confused with crofts or agricultural holdings, which are subject to separate regulatory regimes, although the regulation of crofts and smallholdings did align in the early to mid-20th century.)

In partnership with Dr Annie Tindley of Newcastle University (see her press release here), I will be playing a support role in relation to a Scottish Government tender considering some historical aspects of smallholdings in Scotland. This work, it is hoped, could inform the future regulation and perhaps even the vitality of smallholdings in Scotland. Stay tuned for further information in relation to this. In the meantime, if you have any interesting smallholding yarns I would be happy to hear from you.

Another piece of work relates to this contract for “Research on Interventions to Limit Land Ownership” with the Scottish Land Commission. For this I have teamed up with an Aberdeen colleague, Professor Norman Hutchison (who brings economic expertise), to in turn partner with a team from the UHI, headed up by Dr Jayne Glass from the Centre for Mountain Studies. 

We will be looking at interventions in the land markets of comparator legal systems, to gauge whether such measures might feasibly and effectively be replicated in Scotland. What can I bring to this exercise, I hear you cry? One example is gauging what constitutional protection of property a jurisdiction has and then analysing whether that is stronger or weaker than the position of Scotland. Another example is comparing land registration regimes. 

The Scottish Land Commission contract will be the first of “my” contracts to draw to a close, with reports due in January (in draft) and February. Not that the first contract is not important, I think it is fair to say this second contract could be of wider application to the whole of Scotland. I have found the research input to this to be geekily enjoyable; I just hope others also enjoy the output, failing which they at least find it useful. Stay tuned for further information about this workstream as well.

There. Those are my tender reflections on 2017. 

(Depending on reader demand I might also move into lifestyle blogging.)

(Actually, on reflection, no.)

This is the second of my reflective blog posts on 2017. The first was on my involvement with the Juridical Review and is available here.

Posted in Land Reform, Small Landholdings | Tagged , , , | 3 Comments

A year in review and the Juridical Review – Commenting on Case and Comment

Many bloggers have a habit of writing a reflective blog post at the end of the year. I am one such blogger. This year, I have some topics that I think merit standalone blog posts. This is a post on the first of those.

Earlier this year, I was asked to join the editorial board of the Juridical Review, the law journal of the Scottish Universities. When Professor Jane Mair of the University of Glasgow put the question of whether I would like to be one of two Case and Comment editors (alongside Dr Rebecca Zahn, of the University of Strathclyde), I swithered for about four seconds then realised it was a “no brainer”. Roughly ten years ago, the Juridical Review carried my first legal article, so I have something of a personal attachment to the journal. It also has a long pedigree, dating back to 1889. I was honoured to be asked.

The new editorial board (also featuring Dr Claire McDiarmid, another Strathclyder, and Dr Alan Brown, of Abertay University) has now navigated its way to the end of its first year. Three of its four 2017 issues had “Case and Comment” pieces, on matters including criminal law, employment law, access to justice, human rights, and family law. I have enjoyed playing a part in seeking and poring over contributions, and working with peer reviewers who kindly offered their expertise in relation to subject specialisms (thanks, folks).

As for the discipline of offering shorter notes in this REF-era, as someone who is on a teaching/research contract I can well appreciate the pressure to write longer pieces. I would submit that, away from REF, this internet era coupled with associated and independent competition for everyone’s precious time creates a climate that is still suitable for short, punchy, surgical writing. (See, for example, this note by Andrew Jensen Kerr in the Journal of Legal Education, entitled “Writing the Short Paper.) Accordingly, I hope that Case and Comment can play a useful role in relation to the development and science of the law in Scotland and beyond.

If you have anything you would like to contribute, I would be happy to hear from you. Submissions for Case and Comment should usually be in the 2,000-3,000 words range.

2017 Jur. Rev Part 4

Posted in Juridical Review | Tagged , , | 4 Comments

Scottish Law Commission Report on Moveable Transactions

On 19 December 2017 the Scottish Law Commission published its Report on Moveable Transactions. The Report is in 3 volumes (see Volume 1 (PDF); Volume 2 (PDF); and Volume 3 (PDF)). Volume 3 is in fact a draft Bill, covering what is within the devolved competence of the Scottish Parliament. A news release (PDF) and a summary (PDF) are also available.

This is a huge piece of work and I congratulate Dr Andrew Steven (who led on this law reform project) and everyone else who was involved in it. I won’t regurgitate the various Scottish Law Commission materials here; I will simply commend them to you.

I am taking a bit of a punt in commending all of the material to you, as I have not fully digested it. That which I have read I am thoroughly impressed by. I look forward to further analysis in the coming weeks and months, including in our legislature(s).

The limited comment I will make here relates to my own small involvement in this law reform project. Back in 2011 – before I had even started this blog (I know, right?) – I collaborated with my late colleague Professor David Carey Miller in a response to the initial Scottish Law Commission Discussion Paper. Having this blog now allows for a slightly solipsistic but I hope useful contribution.

Before that, a tangent. I am very sorry that David is not still around for a lot of reasons, but at moments like this I and many others will miss him all the more acutely. I have no doubt he would have brought his great legal mind and his particular specialism in relation to corporeal moveables to bear on this Report in a way that would have either: a) authoritatively endorsed it; or b) politely but oh so effectively offered improvements on it.

Back to my own views on moveable property. It is fair to say land has become more of a specialism of late. That said, I have dabbled with moveables, both in practice and in the academy.

In terms of my practice, I hazily recall one episode where, as an employee in the Capital Projects department of Tods Murray LLP, I played a supporting role to a construction colleague who was trying to offer advice to a client whose subcontractor had brought materials onto its site, whilst that subcontractor had not paid its supplier for those materials. These materials were transferred subject to something known as a retention of title clause. The concept is a simple one: no payment, no transfer of ownership. So the supplier would still own the stuff and could get it back, right? Well, maybe not. Not every day presented me with a scenario that could have been straight from a property law exam, but when I was called over for a blether with my colleague between frantic phone calls this was such a day. The supplier was apparently seeking to collect or indeed collecting the moveables and I was asked whether it could do so. Notwithstanding any land law issues of coming onto someone else’s site (I cannot recall the exact facts as to whether this would have been a helpful matter to raise), the Sale of Goods Act 1979 seemed to present an answer. The goods were – at least arguably – owned by our client. This was because the subcontractor was a “buyer in possession”, and in terms of section 25 of the 1979 Act this meant our client could obtain title even though there was a retention of title clause. This stuff matters and has financial implications. It just so happened that the law favoured our client in this instance, or at least it gave us enough dust to throw up in the air to make self-help remedies that bit less attractive whilst the legalites were being considered more closely. Aside from that specific example, the project finance strand of my practice meant I was also involved periodically with attempts to secure moveable property, particularly incorporeal moveable property. Suffice it to say, it is generally thought to be easier to assign claims (debts) in security under English law than Scots law, and let’s not even get started on share “pledges” in Scots law. This stuff matters too. Such perceptions (fair or otherwise) and actual legal formalities contribute to whether or not Scotland is a place where people want to do business. All of this is why the work of the Scottish Law Commission is so important.

In terms of my academic output, in the noughties I was fortunate to be part of a team of writers including David Carey Miller, Andrew Steven and Scott Wortley as we contributed a report in Scots property law to a comparative European project. (I was also fortunate to have been taught by Scott as an undergraduate the University of Strathclyde – to say I had imposter syndrome amongst this company would be an understatement.) This was published by Sellier in 2009, alongside reports for England and Wales, Cyprus and Ireland. Some of my other publications have touched on moveable property, and of course moveable property features in the content of property law courses for the Scottish LLB. And there was the response to the Discussion Paper itself.

As for David’s academic credentials, you don’t need to look any further than his book on Corporeal Moveables in Scots Law (of which there are two editions, the second with David Irvine). If you do happen to look further, you will find plenty more scholarly output in the form of his articles and chapters on the topic.

Credentials aside, the more important issue is what we said in our response. So what did David and I say? I confess, I had to look at the Report to remind myself: a word search for “Aberdeen” will either reveal what we contributed or what my colleague the insolvency specialist Donna McKenzie Skene offered. For anyone interested, conducting a search might be a better way to gauge what we said that was suitably of note than me re-hashing it here.

Suffice it to say, we were not laughed out of town, which was reassuring, and it is nice to have played a role. In particular, I was happy to see our comments engaged with in relation to (for example) why it would not make sense to tie protection of an acquirer of a moveable from the effect of an existing statutory pledge (that being the name of the proposed new moveable security – see recommendation 72) to delivery of the secured moveable (when delivery plays no role in the transfer of ownership in a sale transaction; for those interested in the legal argument behind this, in our response we highlighted that a possible analogy with the abovementioned section 25 of the Sale of Goods Act 1979 was imperfect – see page 108 of Volume 2). We also got a mention in relation to the possible protection of good faith acquirers of lower value goods, with our suggested figure of £1,000 being latched onto (page 107). It appears Ross Anderson was the only other respondent to propose a figure: in his case, he acknowledged his £5,000 proposal was “arbitrary”. So was our figure, but it is good to know we were in the correct ball-park. Finally, I am also pleased to note my defence of the term “intimation” by analogy with a Church of Scotland intimations sheet made it into the Report and flavoured Recommendation 10.

What next? I am not planning to make any further comment than this blog post, so I await further mulling from other commentators with interest.

There is then the issue of finding legislative time for this matter. I appreciate this is at a premium, with Brexit and all that, but this really is an important matter and it would be a shame for this Report to go the way of (for example) the Report on Succession, which is still largely unimplemented.

Regardless of what happens next, it is fair to say that the Scottish Law Commission has played its part. Hopefully it will be a springboard to legislation. Even if it is not, it stands on its own as a thorough and very welcome piece of scholarship.

Posted in Property | Tagged , , , , , | Leave a comment

Land law responses to the sharing economy: short-term lets and title conditions

I have an article in Issue 4 of the 2017 Juridical Review, the law journal of the Scottish Universities. Here is the abstract:

Short-term lets of land are not a new phenomenon. In contrast, the processes by which many short-term lets are advertised and arranged are decidedly modern, making use of internet platforms in a way that allows accommodation providers and customers to conclude deals quickly, remotely and with relative ease. This opportunity, and the related increase in short-term lets in some neighbourhoods, brings certain challenges. Alongside any public regulatory response to those challenges, traditional land law devices, namely title conditions, might play a role. The nature and effectiveness of that role will depend on the applicability and enforceability of real burdens which commonly occur in residential areas, which will dictate whether they can be used by residents who have been affected by a neighbour’s proximate, problematic short-term letting activities.

In the article, I note that online platforms like Airbnb (other platforms are available) can link individuals who would not normally be able to contact each other in a (generally) safe, trustworthy and reliable way and in turn can offer accommodation providers an income stream that would not otherwise be available in relation to underused assets. Offering flexible accommodation at competitive rates to those who need it might in turn bring money the local economy where the let property is. That is the positive case for short-term letting, but I also note there can be issues.

By this I am not looking at problems experienced by hosts or guests, albeit I refer to instances where things have gone a bit awry, such as the reported usage of Airbnb to facilitate theft and an alleged sexual assault by a “superhost”. (In passing, I also note this recent and creepy report about hidden cameras being positioned within Airbnb accommodation, which appeared too late for me to reference.)

The article looks at problems neighbours might have with an increased amount of short-term letting in an area. This blog post is not the place to rehearse all the various perspectives here – my article has some discussion about this and suitable references, I promise – but in summary there are perceptions that dedicating accommodation in traditionally residential areas to short-term accommodation might change the character or appeal of a neighbourhood, and also that those who make short-term use of accommodation may care little for the long-term good of the neighbourhood.

In terms of more tangible issues a stream of short-term occupants might bring, this could include incremental contribution to wear and tear, including for common areas shared by the let property or its surroundings (even well-behaved holidaymakers bring an increased number of opportunities for suitcases to be bashed and scraped off door frames and steps, which would be an issue in many Scottish tenements). There is also the possibility of reckless or deliberate nuisance (particularly noise). The lack of concern about dirtying one’s own nest removes a factor that might otherwise self-police longer term occupiers, plus (and in contrast to more traditional temporary accommodation) there is often no-one on hand (like hotel staff or a resident B&B host) to directly regulate problematic behaviour. This can also be coupled with the fact even well-meaning short-term guests are at times pretty ignorant about the area in which they are staying, especially on a first visit. Granted, this is less of a problem in the internet-age and attentive hosts will provide a proper briefing or even meet guests, but again short-term lets can bring a level of faff not witnessed in traditional hotels. (*Although I did not mention this last point in the article, I offer a personal anecdote about faffing, from my recent trip to the USA, below.)

Some of these factors will be of ongoing interest to neighbours in an area. Some of these will be of interest when a neighbour comes to sell: there is a wider debate to be had as to the effect a preponderance of short-term let property will have on the housing market, but this is not the place for it.

Public responses

Certain areas outwith Scotland have reacted to short-term letting with a direct regulatory response: the places I mention in my article that do (or plan to) control short-term letting include Berlin, Toronto, Vancouver, New York City and San Francisco. Since I wrote the article, Toronto has voted to regulate matters. I could have also added New Orleans to this list of regulating municipalities and there will be others.

Scotland as a whole has not followed suit with direct regulation, nor has any particular neighbourhood in Scotland. (The debate as to whether it should is referenced in the article.) To an extent, Scotland – or at least Scottish local authorities – might respond by more careful policing of existing rules, particularly fiscal rules that might catch lets that are currently not or under- declared. My understanding is there are regional variations and/or patchy approaches when it comes to such enforcement. There may also be non-declaration of income that should be liable to income tax. Important as such matters are, they are not the focus of my article so I will skim over them.

Let us now assume that Scotland does not make a direct public response, or that as regards existing rules there is: a) insufficient will or capacity to enforce them; and/or b) they are not suitable for the purpose of regulating short-term lets. What can the neighbours of a landowner who is short-term letting in a problematic way do?

Private responses

To what extent can neighbours use title conditions against another neighbour’s short-term letting arrangements? Title conditions – that being the catch-all term for real burdens, servitudes and conditions in certain leases – are land law devices that have been recognised by Scots law for some time. The most relevant of these to the present discussion are real burdens, as governed by the Title Conditions (Scotland) Act 2003. They can bind property owners and can regulate the conduct of the owner or occupier of affected land.

The following discussion presupposes that there is a relevant real burden in play: if there is not, there is no scope for regulation by this method.

Assuming there is a potentially relevant real burden, the answer to the question of whether a neighbour can use it to regulate another’s short-term letting scheme will first depend on what it says. A burden might insist on use of a property as a sole or main residence, or suggest that it not be used for a trade, business or profession. Such burdens are common in residential areas. Leasehold conditions in similar words have proven to be a means of combatting short-term rentals in England and Wales.

My article considers the framework of the Scottish regime and its potential applicability, in light of relevant case law on the validity of such burdens. It then considers the key issue of whether a neighbour could demonstrate “material detriment” when a neighbour acts in a way that breaches the terms of a burden, and as such have title and interest to enforce that burden in terms of section 8 of the Title Conditions (Scotland) Act 2003. I submit that the concerns of a neighbour of a property given over to short-term letting cannot be disregarded as fanciful or insignificant (that being the test that is appropriate, following the case Franklin v Lawson). I also submit that case law where a neighbour of a new B&B was unable to object to its operation as such an operation (Barker v Lewis) can be distinguished, owing to the difference between accommodation where there is a live-in host and short-term letting of an entire property to unsupervised guests. As such, private enforcement could take place…

…subject, that is, to finding the time and money to bring a court action. That will not be easy for many potential litigants. In the absence of a case directly on the point, I hope my article might play a small but useful role.


In due course, legislation may be passed to specifically regulate short-term letting in particular pinch points. In the meantime, it needs to be considered whether existing land law devices could play a role in Scotland, which I submit they already do in certain circumstances. Appropriate real burdens can come into play. This means that those offering their homes for short-term letting need to look beyond the terms of service of an online provider like Airbnb. They also need to look at their own title deeds.

And now for something completely different…

*Here is my anecdote about how perfectly well-meaning and polite short-term guests can still cause a bit of a disturbance for neighbours.

Those of you who know me or follow me on social media may have noticed I was in the USA recently, as a guest of Professor John Lovett of Loyola University, New Orleans. After I finished there, I went travelling with a group of friends who were over in the USA at the same time as me. We made use of a short-term letting platform to book three separate berths on our travels. This is the first time I have made (indirect) use of such a service. Let’s call it fieldwork.

The first of our berths was directly above a music venue and had clearly been designed with tourists like my group in mind. (We had been warned not to expect peace and quiet when there were bands playing, which suited us fine as we were there for the music.) There were no residential neighbours to disturb. The second of these berths was actually a let from a friend of a friend, so again this was not quite a “normal” Airbnb. That said, our host was careful to warn us not to block the neighbour’s drive with our car, which made me wonder whether there was any history from other guests that had stayed or if this was just sage advice.

The third berth presented more of a challenge for us. We booked this at fairly short notice, so our own planning had been light. On arrival, we were confused and were not sure which parking space or indeed which house was ours for the night. We had to enter from the back of the property, where house numbers were not quite as clear. We parked up in a space that seemed about right in terms of the directions we had been given and one of our party went to the door.

Of completely the wrong house.

On walking in (the door was not locked) and rapidly realising it was not our accommodation for the night (as it did not correspond to the rough description we had been given), my friend equally rapidly about turned before any residents noticed. We then found the correct house and the secure code entry system we had expected to see. Some of us suggested we move the car now that it seemed we were in the wrong space. We weren’t going to be long though, so we tried the entry code we had been given.

It was incorrect. We punched this in carefully three times and managed to lock the secure entry system completely.

At this point a neighbour turned up and firmly told us we had parked in his space.

We moved the car. In lieu of a better plan, we went to a local restaurant to have a very nice dinner but mainly to use their power sockets to charge phones and gain WiFi to send a frantic message to the host. We got sent a new code by the host to get in. We went back to the accommodation.

This code didn’t work either.

We called the host with a newly charged phone. We finally got a working code and got in.


How many times neighbours of this property have had to put up with such a rigmarole I have no idea. The local restaurant benefited from our custom though.

There: that’s my short-term letting confession. I felt I needed to get that off my chest.

Posted in Property | Tagged , , , , | 2 Comments

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

Posted in Land Reform, Property | Tagged , , , , | Leave a comment