One of the most welcome recent developments in Scottish democratic reform has been the Commission on Strengthening Local Democracy. which was established in autumn 2013. Chaired by the visionary Councillor David O’Neill, it has bravely gone where no administration at Holyrood has gone in all the years of Scottish devolution.

Today is has published its Final Report which concludes that 50 years of centralisation has not worked. It reached this conclusion after a great deal of work (all of which you can find here). In its Interim report in April 2014, the Commission showed how Scotland was the most centralised country in Europe with the weakest and least democratic form of governance. The graph above, taken from my own Renewing Democracy in Scotland report for the Scottish Green Party)  shows how this trend has developed since 1894.

Read the report (and my own one from February this year) and consider why this matters.

The Scottish Parliament will be considering a Community Empowerment Bill over the coming months. The Commission’s report highlights why this Bill will only treat the symptoms of disempowerment.

Here are some quotes from the Commission’s final report.

The case for much stronger local democracy is founded on the simple premise that it is fundamentally better for decisions about these aspirations to be made by those that are most affected by them…

….after decades of power ebbing away, for many people it has become increasingly inconceivable to think that local communities could be in charge of their own affairs.

In the end, all of our thinking has come down to seven fundamental principles that we believe must underpin Scotland’s democratic future.

We have also concluded that the evolution of Scotland’s democratic system across the past 50 years has more or less undermined or inverted all these principles, albeit often with good intentions.

and finally,

The principle of sovereignty has been so inverted that it is now routine in public policy to talk about governments and local governments “empowering” communities rather than the other way round. The principle of subsidiarity has been undermined by the progressive scaling up of local governance, and central control of local resources and functions. The transition from over 200 local councils in 1974 to only 32 “local” councils in 1996 is one of the most radical programmes of delocalisation that we can identify anywhere in the world. Moreover, Scotland’s local democratic structures can be changed at will by any national government with a majority. That the Scottish Parliament is in exactly the same position with respect to Westminster illustrates how “top down” the whole framework of democracy is.

Will the political parties at Holyrood grasp this agenda? The Scottish Green Party appears to be the only one that has unequivocally done so. In a report in June from the Local Government and Regeneration Committee, MPS concluded that,

[para 40] Our preliminary conclusion here is that beyond the narrow confines of academia and COSLA, people are less concerned about the ratios and numbers of councillors to wards and more interested in how functions are being exercised and the extent to which they are able to influence them.

[para 41] Equally we see no identifiable case for increasing the number of authorities, we are not convinced of the need for structural reform of this type. Later in this report we look at whether changes should be more concerned with appropriate powers in different areas matching local needs.

This level of arrogance and complacency is breathtaking.

There is now a clear divide between those who think democracy works just fine in Scotland and are content to pursue policies that undermine local democracy (such as the council tax freeze) which would be illegal in other jurisdictions (1) and those who want fundamental reform in our democratic structures.

Regardless of the outcome of the independence referendum, this is a question that the Scottish Parliament has the power to resolve. if it is to do so, however, the people must be mobilised to support such reform. How is that going to happen?

 

NOTES

(1) See page 13 of Renewing Democracy in Scotland

“…during the 2011 Holyrood election, both the SNP and the Labour Party promised that, if elected, they would freeze the level of the council tax despite this being a local government competence. Evidence suggests that this was a popular policy but the council tax level is not set by the Scottish Parliament but by each of Scotland’s 32 local authorities.

The fact that politicians seeking election to a national parliament could so easily usurp the powers of local government in pursuit of their own electoral success is an illustration of the crisis that is local democracy in Scotland. Had Angela Merkel made such an appeal to German voters in the Federal election of 2012, she would have been advocating a clear violation of the German constitution, specifically Article 18(2).

“Municipalities must be guaranteed the right to regulate all local affairs on their own responsibility, within the limits prescribed by the laws. Within the limits of their functions designated by a law, associations of municipalities shall also have the right of self-government according to the laws. The guarantee of self-government shall extend to the bases of financial autonomy; these bases shall include the right of municipalities to a source of tax revenues based upon economic ability and the right to establish the rates at which these sources shall be taxed.” Article 28(2) Basic Law for the Federal Republic of Germany

 

 

Among the recommendations of the LRRG are that more effort should be made to complete the Land Register and that patterns of rural landownership should be mapped and better understood. In response to publication of the report, the Scottish Government announced that it had asked the Registers of Scotland to complete the coverage of privately-owned land in the Land Register within 10 years and public land within 5 years.

The Registers of Scotland has launched a consultation on how it might meet this aspiration using the existing statutory powers contained in the Land Registration (Scotland) Act 2012 which comes into force in December this year.

Currently 26% of land in Scotland is registered in the Land Register (see map below) with the remainder being still registered in the older Register of Sasines. (1) Currently as land changes ownership, it moves onto the Land Register. The Land Registration (Scotland) Act 2012 introduces new triggers and the LRRG recommended that there be further ones.

This  blog examines the wisdom and desirability of the ten-year target and whether alternative means might be more useful in fulfilling the recommendations of the LRRG and the aspirations of Scottish Ministers.

The Registers

It is important to understand the difference between the Register of Sasines and the Land Register.

The Register of Sasines is a register of deeds – bits of paper that record legal agreements to sell land, to raise a standard security over land, to lease land etc. It was established in 1617. The Keeper’s responsibilities are to record such deeds so as to provide a means by which the interests they represent can be legally enforced and defended.

Being a register of deeds means that in order to find out who owns a parcel of land, these deeds have to be read and interpreted. This can be a laborious process. There are usually no plans associated with the deeds. If there are, they can often be a black & white copy of a plan showing the “lands delineated in pink”.

In 1979, this register was replaced  by the Land Register which provides a state-guaranteed title together with a definitive map. The Keeper undertakes a once-and-for-all search to determine the title to land. She then issues a land certificate containing details of ownership and a detailed plan based on Ordnance Survey mapping (see example here of Stirling Castle – title & plan). She also provides a state guarantee of the title and is liable to indemnify the owner if any mistakes subsequently come to light. A Land Certificate is is the gold-standard in defining and defending property rights. Given the choice, everyone would want one.

But Scotland’s landownership history is complicated and to generate a Land Certificate involves a painstaking check over all the prior deeds to establish what land exactly is contained within the title, what was sold in the past, what rights might be held by others over the land (such as servitudes for access to other land) and the precise boundaries of the land. This is often straightforward in property developed in the recent past but for land the forms part of very old estates or larger holdings that have a complex history of land transactions, it is time-consuming work. This is why, in many cases it can take years to generate a title.

The other fact to appreciate is that the Registers of Scotland is an Executive Agency of the Scottish Government and is self-funding. It receives no public funds from Parliament and, instead, finances its operations entirely from the fees paid to record deeds and titles and, to a lesser extend from search fees and consultancy work.

Is ten years realistic?

So would it be possible to complete the Land Register within 10 years?

My initial reaction to the Scottish Government’s aspiration was skepticism. Land registration is a complex and time-consuming business. Some titles take up to 5 years to be generated (although it can be expedited when, for example, PetroChina wanted to invest in the Grangemouth oil refinery). The Keeper has to check through the history of a property and make sense of sometimes ambiguous information. She has the discretion to withhold indemnity over all or part of a title and, where this happens, the owner must wait for ten years until their ownership is free from challenge.

Over the years I have seen titles that are incorrect. One of the most blatant involved an owner of several hundred hectares of land whose title included a house and garden owned by the parents of one of my childhood friends. This took much time and effort to sort out. Moreover, land registration has been used to claim land that is not owned by the vendor. I myself have advised that a small access strip be incorporated in a title hoping that the Keeper would not notice. She didn’t.

The biggest challenge to a rapid (and ten years is rapid) completion of the Land Register is financial. For over 30 years, the Registers of Scotland has been self-financing. If it were to complete the register within ten years, resources would have to be found. The consultation document is not very transparent about the workload and financial consequences.

Until recently, I was doubtful about the wisdom and practicalities of this target but had an open mind. Reading the consultation document does not convince me that this task is possible. But it was hearing of changes to how the Keeper intends to handle future applications for land registration that has not only confirmed my doubts but convinced me that we are about to embark on a reckless and dangerous path and that the target poses huge risks.

The Keeper’s Memo

In a memo issued to staff in early July, the Keeper announced that;

1) The Keeper will no longer check prescriptive title and will rely instead upon the certification on the registration form that the deed is valid. There will therefore be no search in the Sasine Register and the Keeper will not require sight of links in title to support an application. By certifying the deed is valid the solicitor is assumed to have carried out the relevant checks

2) The Keeper will not check for outstanding securities.

3) Only the deeds lodged with the application will be used and the Keeper will not examine any other deeds.

4) The Keeper will not use her own records to determine whether a deed should be included in the application or not.

In other words, the basic principles of Land Registration under the 1979 and 2012 Act are to be tossed aside and titles will be issued based on the information provided by solicitors. I have seen too many instances of land-grabbing and shady deals by solicitors to have any confidence whatsoever, that the Register will have any integrity if these reforms are implemented. There is nothing now to stop rogue solicitors and their clients abusing the system. Even well-intentioned and honest applications will now be compromised. Even now, many applications contain errors made in good faith. (2)

If there are no independent checks made on applications by the Keeper by looking behind the scenes then there is a significant possibility that anyone, whether a practicing solicitor or not, will be able to concoct a fraudulent application that is never checked. Once the title is registered it will appear to be as valid as any other. This may confer additional rights the applicant never should have had (which may or may not be the detriment of another land owner) and may sit as a ticking time bomb for some future land owner.

The changes appear to be in response to the Scottish Government’s request to meet the ten year target.

One of the biggest threats this poses is to owners of land that border that which is the subject of an application. The process of land registration has always favoured those titles are recorded first. Under the existing regime, owners of neighbouring properties are not consulted about the boundaries claimed by applicants. It is not hard to envisage those with most to gain (large-scale landowners and owners of the most valuable land) taking advantage of the new arrangements to appropriate useful bits of land from homeowners, local authorities, common good funds and others landowners. They will be completely in the dark about such claims and may very well find themselves many years from now having had their interests compromised.

My understanding is that senior staff in the Registers of Scotland have doubts as to whether these changes are consistent with the 2012 Act

Conclusion

It is my view a fundamental and highly dubious change is now in train which should not be made solely to secure a political goal of completing the Land Register within ten years. Indeed it should not be made at all.

I have proposals that would maintain the integrity of the Land Register, assist with the process of land registration AND ensure free public access to good quality information about who owns Scotland. This will be the subject of another blog in the near future.

Meanwhile, it looks like Murdo Fraser’s Economy, Energy and tourism Committee might be well advised to investigate this matter.

NOTES

(1) This equates to 58% of all property titles. The extent of land is less because most titles are small urban sites rather than large rural estates.

(2) See paras 160 onward from the Stage One Report of the Economy, Energy and Tourism Committee.

 

Following the publication of the Land Reform Review Group‘s final report in May, the Scottish Government has committed itself to the introduction of a Land Reform Bill in the current Parliament.

The report (hard copies of which are now available from the Scottish Government) provides an intellectually coherent framework for land reform designed to make the ownership of urban, rural and marine land and property serve the public interest and the common good through increased transparency, accountability and democracy.

The Land Reform Bill provides an opportunity to implement some of the specific recommendations in the report and to put in place a statutory enabling framework that will enable key reforms to be taken forward in future.

What I am presenting here is merely an outline of what the Land Reform (Scotland) Bill 2015 should look like. A key consideration in deciding what might be included is the time necessary to develop detailed proposals. Some of the Review Group’s recommendations require significant further work before any legislation can be drafted.

In addition, some measures will be the subject of separate legislation including agricultural tenancies, housing, succession and wild fisheries and are thus not included here. Finally, it should be noted that much of the land reform agenda does not require legislation (at least in the short-term). Future blogs will flesh out the detail behind some of these proposals.

Chapter 1 Land Information, Valuation and Registration

1. Establish a national land information system providing open and transparent data on the ownership, value and use of every parcel of land in urban and rural Scotland. Such a system will pull together data currently held and administered in separate places such as the Scottish Assessor, Registers of Scotland, Historic Scotland, Marine Scotland, Scottish Natural Heritage and local authorities.

2.Update the data held by the Scottish Assessor to include site values and improvement values for all domestic and non-domestic land and property in Scotland. This should include all land that is currently not included on the valuation roll such as agricultural and forestry land. Bill should make provision for a mandatory annual valuation of all entries. Any reform of council tax and non-domestic rates or introduction of a new system such as land value taxation will require up-to-date valuations for all land both to inform policy and to provide transparency on who pays and who might be exempt. Even if exemptions continue or rebates are given, a universal valuation will enable policy-makers and the public to assess the cost of any such measures.

3. Introduce a protective order mechanism as an amendment to the Land Registration etc. (Scotland) Act 2012 to allow the public to register areas of common land and prevent them from being “land-grabbed”.

4. Make it incompetent for any legal person not incorporated within the jurisdiction of an EU member state to register title to land in the Register of Sasines or Land Register.

Chapter 2 National Land Policy

1. Provide a statutory basis for a National Land Policy taking full account of international best practice.

Chapter 3 Compulsory Sale and pre-emption

1. Introduce a new power of compulsory sale to address the persistent challenge of vacant and derelict land. Unlike the power of compulsory purchase, a compulsory sale order would compel a landowner to sell land to a third party in circumstances where land is not being used.

2. Introduce a right of pre-emption over land to be exercised by the Scottish Government, its agencies and local authorities where this is in the public interest.

Chapter 4 Community Land Rights

1. Establish a Community Land Agency with a range of powers to facilitate negotiation between communities and landowners and to promote, support and deliver a significant increase in local community landownership.

2. Introduce new community land rights as outlined in Figure 17 of the Report.

Chapter 5 Common Good

1. Further to proposals already included in the Community Empowerment (Scotland) Bill, introduce a statutory definition of common good, a statutory right for communities to manage their own common good fund and a statutory right for communities in Scotland’s burghs to recover title to their common good assets.

Chapter 6 Crown Rights

1. Abolish all remaining Crown property rights in Scotland that are not currently administered by the Crown Estate Commissioners and replace them with appropriate statutory arrangements.

2. Nationalise the Crown’s property rights in the foreshore and seabed and set up a statutory framework for transferring rights as appropriate to local authorities and local communities.

Chapter 7 Land & Property Commission

1. Establish a Scottish Land and Property Commission to provide an ongoing focus on all aspects of Scotland’s system of landownership including the provision of advice and initiation of research, monitoring of public policy as it interacts with the system of land and property ownership and keeping under review the Scottish Government’s programme of land reform.

Chapter 8 Miscellaneous

1. Introduce a statutory right for the public to become members of charitable bodies that own substantial areas of land (such as on the Isle of Bute, Applecross and Atholl Estate).

2. Repeal the Division of Commonties Act 1695.

3. Provide a statutory basis for imposing a ceiling on the maximum extent of land that can be owned by any one beneficial interest. The precise nature of such a provision to be the subject of secondary legislation.