Land Registration | Land Matters

Open Up the Registers

11. March 2018 · 37 comments · Categories: Freedom of Information, Land Registration, Who Owns Scotland

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It is an odd state of affairs that it is easier to find out the ownership of land in 1915 than it is in 2018. The Finance Act of 1910 (Lloyd George’s famous People’s Budget”) proposed an increment levy on the increase in value of land. To establish a base-line of values, surveyors mapped out in intricate detail, the ownership, occupation, value and use of virtually all of Great Britain and Ireland, covering 99.7% of the land area of Scotland.

The map above shows the results for the west of Edinburgh around Charlotte Square.

In 2018, with modern technology such as digital mapping, satellite imagery, online technology and smartphones, we have yet to come close to what the Edwardians achieved with paper maps and ink.

Across the world, modern technology and integrated data management has delivered land informations systems that provide comprehensive data on land to citizens. From Scotland, for example, you can find out a wide range of information about land parcels anywhere in the US State of Montana. If you want the same data for Scotland, you will be frustrated at every turn, expend an inordinate amount of time and have to pay for it.

The question of Who Owns Scotland has been perennial one for decades. John McEwen had a go at answering it in 1979 and it was the focus of my first book published in 1996. In the early years of devolution, I tried to persuade the then Scottish Executive to open up land information to the public but there was little appetite. Since then, I made representations to Fergus Ewing and Parliament during the course of the Land Registration (Scotland) Act 2012 to persuade them to increase transparency and access to land information.

In a meeting with Fergus Ewing and the Keeper of the Registers of Scotland in December 2011, I made the case for this but the Minister could barely disguise his contempt for my suggestions and later, in the course of the passage of the Bill flatly rejected the idea that the public should have free access to land information (See col982 8 Feb 2012 Official Report).

He also rejected proposals to reveal the beneficial owners of companies that own land although the Government were eventually persuaded to do so in the Land Reform (Scotland) Act 2016, the provisions of which are yet to come into force.

But this blog is not about beneficial ownership. It is about access to information that already exists but is difficult and costly to access. The recent history of attempts to open up access is dismal as the following examples make clear.

PASTMAP

Over the decades I have spent researching landownership, I have developed a range of methods and sources. Although the Register of Sasines and Land Register are the definitive sources, they can be impossible to use in certain circumstances, For example, if you want to know who owns a field at a junction of a country road in Fife, you won’t be able to do so from official sources since you need an address or a name of a person and even the map-based Land Register will often be unhelpful in such circumstances.

Key to success in such cases is to find out some information from other sources to enable interrogation of the Registers. One such source is a very helpful online map called Pastmap [http://pastmap.org.uk] which provides information on various elements of the historic environment. If there is a Scheduled Monument located on or near land whose ownership you wish to establish, then a link is provided to the legal documents that are registered in the Register of Sasines. These provide details of the ownership of the land at the time of scheduling.

In 2012, however, I noticed that Historic Scotland had redacted the ownership information. See the example (second page) of the Bonawe Iron Furnace Schedule before redaction and after redaction.

I wrote to Historic Scotland and asked them why the schedules were now being redacted. They replied that,

“Since the publication of the online schedule we have begun to redact the names and the addresses of legal owners from the scheduling documents given the perceived additional risks and sensitivities associated with publication of this information in such a readily and widely accessible format online.”

We are also considering removing legal ownership details from our scheduling certificates completely as part of an overall review of our scheduling documentation.”

These documents are recorded and made available to the public in the Register of Sasines (and made available for public inspection in the National Records of Scotland) with no redactions, so why conceal this information on Pastmap? What exactly are the “sensitivities” over this information? And why is Historic Scotland considering removing these details completely in future? Above all, if the Scottish Government is committed (as it claims it is) to transparency, why is it seeking to conceal this information from the one freely available source to the public?

Such questions remain unanswered.

SCOTLIS

Following a report in July 2015, John Swinney announced in October 2015 the establishment of SCOTLIS (Scottish Land Information Service), an online portal that would enable “citizens, communities, professionals and business to access comprehensive information about any piece of land or property in Scotland” The service was developed by Registers of Scotland and launched in November 2017. Here it is.

It is useless.

There is no map-search facility, there is no comprehensive information (solely landownership) and, as always, any information you do find, you will have to pay for. Contrast it with the online Montana service above. If you are a business, you can sign up as a business user and get access to an enhanced service. But by no stretch of the imagination is this a system allowing easy access to comprehensive information by the citizen. No wonder John Swinney’s successor issued no media release on the day of its launch.

OVERSEAS OWNERSHIP

On 1 March 2018, the Registers of Scotland published an Overseas Company Report and a Statistical Report on the overseas ownership of land in Scotland. Against growing demands for greater transparency in who owns land and property across the world, this is presumably Scotland’s contribution.

The report reveals the companies registered overseas that own land in Scotland. But this is the tip of the iceberg because it only takes account of land in the modern land register and not the older Sasines register. It doesn’t include any information on how much land is owned overseas (my own research shows that 750,000 acres of Scotland is owned in tax havens posing problems for law enforcement and tax authorities).

The Sunday Post published details of the findings on 11 March 2018.

And yet, the public are denied access to this data underlying the Overseas Company report because to obtain the report (see Information Sheet) will cost you an astonishing £1560 (the Statistical report is free to download). Even if you could afford this sum of money, if you wished further details of each of the records, you will need to buy this from Registers of Scotland. It will cost you £30 each and if you wish details of all 1700 companies, that comes to a cool £51,000.

Registers of Scotland claim that the data is being charged out on a cost-recovery basis (i.e. RoS only plans to recoup its costs from sale proceeds). But this merely emphasises why all of this data should be freely available. Were it to have been so over the past decade or so, all sorts of people would have been able to compile all sorts of reports and analysis within their own resources at no cost to the public purse and to the wider public good.

OPEN UP THE REGISTERS

The public deserve access to information about who owns Scotland. It’s time to end the secrecy and the costs and open up all information (environmental, planning, valuation, tenure, ownership) in an accessible manner which is free and easy to use by the citizen.

Over the coming months, I invite those with an interest to join me in campaigning for greater transparency and openness in land information. Contact me at andy.wightman.msp@parliament.scot

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Land Reform (Scotland) Bill Stage 2

18. January 2016 · 12 comments · Categories: Democracy, Land Reform Bill 2015, Land Registration, Who Owns Scotland

This Wednesday the Rural Affairs, Climate Change and Environment Committee (RACCE) holds it first meeting to consider amendments to the Land Reform (Scotland) Bill at Stage 2. Once the Committee has completed Stage, its amended Bill will go forward to Stage 3 to be debated and further amended by a sitting of the whole Parliament.

This blog is a brief update on where we are with the one provision that has been the subject of much debate and where the RACCE themselves want the bill strengthened – namely the Part 3 provisions on transparency over who controls corporate entities that own land.

BRIEF HISTORY

Proposals to make it incompetent for non-EU companies to own land and to make declarations of beneficial ownership of companies mandatory in the Land Register were tabled during the passage of the Land Registration (Scotland) Act 2012 but were rejected by the Scottish Government.

– The Land Reform Review Group recommended that such a measure be adopted to improve transparency in the ownership of land.

– The Land Reform Bill consultation in December 2014 sought views on the proposal and it was widely endorsed by consultees.

– The Land Reform Bill was published in June 2015 but did not contain provision for such a bar. Instead, it contained a mechanism whereby questions could be asked about the beneficial ownership of companies in tax havens and elsewhere but there is no obligation on such jurisdictions to co-operate.

– The RACCE Committee took evidence on the Bill and, in its Stage One report, recommended that the original proposal be introduced to the Bill.

– Scottish Ministers responded to the Stage One report by, once again, rejecting the non-EU proposal on the grounds (they argue) that it is outwith the competence of the Scottish Parliament.

– Scottish Ministers then last week announced that they would be tabling an amendment at Stage 3 [link to letter] that would create a public register of person who exert control of companies that one land. The amendment would merely be a regulation making power with the details of how such a register would operate being left to the next Parliament to draft and enact.

AMENDMENTS

We now have three distinct proposals for the way ahead with regard to transparency – two amendments to be considered this Wednesday (see full text here) and one amendment to be tabled at Stage 3.

Graeme Dey (SNP) Amendments 29, 30 and 36

The first is a series of amendments in the name of Graeme Dey MSP (numbers. 29, 30 and 36) to the Bill that would require the beneficial owner or “controlling interest” in any corporate entity (not just non-EU ones) to declare their identity in a new section of the Land Register (Amendments 29 and 36 merely remove existing Sections 35 and 36. Amendment 30 is the substantive amendment). This is not a bar to non-EU entities but is a disclosure provision to be incorporated in the Land Register. Verification of the identity of the beneficial owner will still be tricky but appropriate penalties can act as a deterrent. This amendment has ben developed following considerable effort by Megan McInnes of Global Witness and Peter Peacock of Community land Scotland.

Patrick Harvie MSP (Scottish Green Party) Amendments 105 and 106

Patrick Harvie has tabled an amendment (Nos. 105 & 106) that reinstate the bar to non-EU corporate entities and fulfils the original recommendations of the Land Reform Review Group, the December 2014 consultation paper and the RACCE Stage one Report. Whilst some EU disclosure requirements are not fully transparent, bringing corporate entities “onshore” exposes them to the ongoing work across the EU to improve transparency through a variety of processes such as the requirements of the Fourth Anti-Money Laundering Directive that requires member states to establish registers of beneficial ownership of companies.

The Scottish Government Amendment

The Scottish Ministers will table an amendment at Stage 3 to replace Sections 35 and 36 and introduce a new regulation making power for Ministers to establish a “Register of Controlling Interests in Land”. The details of this register, what it would contain, how it would operate and how compliance would be enforced would then be the subject of secondary legislation to be introduced in the next Parliament. It is thus hard to know what is involved with this proposal and there will be no time for any debate as it will be introduced at Stage 3. Critically, it is not clear whether Ministers are proposing yet another Register or whether they are open to the idea within Graeme Dey’s amendments to make such disclosure part of the Land Register and thus visible on the title to ownership of the land.

I hope that RACCE will support both Graeme Dey and Patrick Harvie’s amendments. They provide a “double lock” arrangement whereby tax havens are outlawed as jurisdictions within which land and property in Scotland can be owned AND those entities registered within the EU are obliged to publish details of the controlling interests on the face of Land Register titles.

If you wish to support these amendments, contact any member(s) of RACCE and tell them you support amendments 29, 30, 30, 105 and 106. Contact details are here.

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Sunlight or shadows – will the Government’s new public register of land ownership be effective in improving transparency?

14. January 2016 · 3 comments · Categories: Democracy, Land Reform, Land Reform Bill 2015, Land Registration, Politics, Uncategorized

Sunlight or shadows – will the Government’s new public register of land ownership be effective in improving transparency?

by Megan MacInnes, Land Adviser with Global Witness

Yesterday the Scottish Government announced that their solution to the problem of not knowing who is behind the opaque corporate structures owning Scotland’s land was to create a public register of those who control land, (media release here and letter to RACCE here) as part of the Land Reform (Scotland) Bill currently passing through parliament. This step should be broadly welcomed and is a significant step forward from the previous proposals in the Bill to improve transparency of Scottish land ownership.

On paper this announcement appears close to the improvements to transparency of land ownership which I blogged about two weeks ago, but is it really as good as it sounds?

No-one disputes that not knowing who is really behind major swathes of land in Scotland is a problem. It prevents local communities living on or affected by land from contacting the true owner if they have a problem (rather than an anonymous shell company), it prevents law enforcement agencies from investigating crimes and it’s ironic that having won the right to roam, Scotland’s citizens don’t have the right to know who truly controls and makes decisions about the land they are walking on.

In a l etter accompanying the Government’s announcement, Minister for Environment, Climate Change and Land Reform, Aileen McLeod MSP, describes their intention to “requir[e] the public disclosure of information about persons who make decisions about the use of land in Scotland and have a controlling interest in land”.

However, the devil is certainly in the detail and there are many ways in which this commitment may not provide us with what we really need to know about who truly owns Scotland’s land. The potential for loopholes and exemptions which would render this register meaningless are substantial.

Most importantly (and let’s get the boring technical stuff out of the way first) this register needs to consist of the “person(s) of significant control” of the legal entities owning land in Scotland. This term is the technical definition of what’s more commonly known as “beneficial ownership” and means that what is registered are the names of the individual people who either own or control land in Scotland. This term already applies in Scotland through a UK-wide register of company beneficial ownership which was introduced in 2015. Adopting this technical definition is the only way to ensure the register will include what we need it to.

This register has the potential to finally shine a light on some of Scotland’s most shadowy corporate entities, for example Scottish Limited Partnerships and the shell company structures used to hide land ownership in Scotland in overseas tax havens and secrecy jurisdictions. Therefore, it’s essential that there are no loopholes or exemptions which these kinds of corporate vehicles can exploit.

The register should of course be free and fully publicly accessible.

We also have questions about process. What the Government’s proposal does is push the more difficult discussions into the next Parliament. So it’s important that the Bill describes the register in robust enough language that it cannot be later watered down, as well as introducing a firm duty and deadline by which the regulations providing for this register have to be adopted.

One major question remains however – why the Government has proposed this register to be separate from the Land Register? My earlier guest blog outlined the reasons why expanding the Land Register requirements to include beneficial ownership appears to be the simplest and most administratively straightforward route to achieving this goal.

But still – what a difference a week makes. This announcement has completely changed the terms of the debate about transparency in land ownership in Scotland and this can only be good. What we need now though are tough ideas and quick thinking to close potential loopholes and ensure this commitment once and for all brings Scottish land ownership out of the shadows.

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