Consultation paperPublished: 22 December 2020
Freedom of information class: How we take decisions
Responding to this paper
You can submit responses to this consultation paper on the Scottish Government's consultation hub.
Registers of Scotland (RoS) is a Scottish public body headed by the Keeper of the Registers of Scotland. The Keeper is a non-ministerial office-holder in the Scottish administration and the Chief Executive of RoS. RoS' main functions include maintaining the public registers for which the Keeper is statutorily responsible and making the information they contain publicly available. The Keeper also retains the ability to offer consultancy, advisory and other commercial services.
Further information on how RoS operates is set out in its framework document.
This consultation is focussed on five of the Keeper's registers. These are;
- the Land Register of Scotland and the General Register of Sasines (together "the property registers"),
- the Register of Deeds in the Books of Council and Session,
- The Register of Judgements, and
- the Register of Inhibitions,
In the main, this consultation seeks views on whether the ability to submit certain applications to the Keeper digitally, which has been in place on an emergency basis since April and May 2020, should be made available permanently.
Impact of COVID-19 lockdown and related public health guidance
On 23rd March 2020, the UK and Scottish Government announced significantly enhanced measures (lockdown) to flatten the curve of Covid-19 spread. These measures significantly inhibited the ability of RoS to fulfil its role in maintaining its Registers, as the majority of applications being submitted were made on paper.
Although much of the downstream processing carried out by RoS staff could be carried out electronically (and thus remotely from other colleagues), the process was reliant on the initial step of paper applications being manually opened, sorted, prepared and scanned. In a typical day more than 2,000 pieces of post would be received and put through this process.
The nature of this work involved RoS staff working in close proximity in a single room (with two large industrial scanners taking up much of the floor space) and handling thousands of pieces of paper received from all over the country.
In order to safeguard the health and wellbeing of those colleagues and the wider community, and in view of the public health guidance, the Keeper made the decision to close the RoS offices at Meadowbank House, Edinburgh and St Vincent Plaza, Glasgow on 24th March 2020.
The immediate effect of the office closure was that the Keeper was unable to receive applications to various registers and, for the Land Register, that the application record was closed to paper deeds. Following discussion with the Law Society of Scotland and others, provision was put in place on 25th March 2020 to allow in-flight and urgent transactions to settle. Whilst this worked in the immediate period following the introduction of lockdown measures, it was not a position which was sustainable in the medium term.
What became clear in those discussions with the Law Society and other stakeholders was that the more sustainable solution would have three limbs;
- Provision of a system to allow traditional documents (paper deeds) and accompanying material to be submitted to the Keeper electronically.
- Legislative provision to underpin such a system.
- An extension to the period of effectiveness of advance notices (partly to cover the period while the system was being developed and partly to allow solicitors’ firms some time, when public health guidance allowed, to access offices and submit applications etc.)
Digital Submission Service and the Coronavirus Acts
On 15th April 2020, the Keeper launched the Digital Submission Service (DSS) to allow applicants to upload and submit electronic copies of paper deeds for registration. From that point the system was developed further, in collaboration with customers, to ensure that it could accommodate all types of land register applications. The system was extended to include Sasines applications from 16th July 2020.
During the same period a similar system was developed for submissions to the Register of Inhibitions and the Register of Judgments, which launched on 4th June 2020.
Paragraphs 11 to 14 of schedule 7 of the Coronavirus (Scotland) Act 2020 provide the legislative basis for applications to be submitted to the property registers via the DSS. The paragraphs modify the Land Registration etc. (Scotland) Act 2012 and the Land Registers (Scotland) Act 1868 for the duration of the 2020 Act, to make provision for registration in the Land Register and recording in the Register of Sasines to proceed on a copy of a paper deed submitted to the Keeper by electronic means.
Part 1 of schedule 4 of the 2020 Act also makes provision for the conduct of business in Scottish Courts and Tribunals to be by electronic means. Paragraphs 97 to 103, in particular, are relevant to the role of the Keeper as they make provision on electronic signatures and transmission of documents in connection with court proceedings.
Many of the writs which are registered in the Register of Inhibitions and the Register of Judgments are in connection with court proceedings (for example, inhibition on the dependence) and can therefore be electronically signed and transmitted. This provision is supplemented by Part 3 of schedule 4 of the Coronavirus (Scotland) (No. 2) Act 2020 which has a similar effect for documents which require to be registered in the Register of Inhibitions or Register of Judgments not covered by the first Coronavirus Act (ie those documents which are not in connection with court proceedings, such as inhibitions proceeding on a document of debt).
Finally, paragraphs 15 to 19 of schedule 7 of the Coronavirus (Scotland) Act 2020 made provision to extend the period of effect of advance notices in certain cases. This protected the position of purchasers for a certain period following the initial interruption of service. The Keeper has now following consultation with the Law Society fixed a date of 1 March 2021 as the date for re-opening the application record for submission of deeds in the Land Register for the purposes of the advance notice provisions.
Stakeholder and customer feedback
Informal stakeholder and customer consultation has indicated to RoS that there is an appetite for the Digital Submission Service (and the equivalent for Register of Inhibitions and Register of Judgments) to be retained beyond the lifetime of the two Coronavirus Acts. There is no proposal to replicate the provisions extending the protected period offered by advance notices, although RoS will continue to accept all advance notices electronically in the future. Accordingly, views are sought on the following proposals.
The Property Registers - Land Register and Register of Sasines
The DSS offers benefits to both customers and RoS, when compared to the traditional paper process. From a customer point of view, the digital submission service has allowed customers flexibility on when to work, because they don't require to meet the daily deadlines for physical post. They also have certainty that an application has been safely received by the Keeper with a digital audit trail and, in some cases, customers have told us they have made savings on the costs of postal/courier services.
For RoS, the main benefits are twofold. Firstly, the digital submission service provides increased resilience, meaning that our registers would not have to close in the event of a further wave of the virus, or where the postal service or access to RoS buildings is disrupted in some other way. Secondly, the DSS can act as a stepping stone towards full electronic/digital conveyancing (i.e. registration of electronic documents executed and authenticated by way of qualified electronic signature).
Presumption of use
The first Coronavirus Act makes no provision to compel the use of the DSS during the period in which it is in force. Instead, the closure of the Keeper's offices to paper applications effectively serves this purpose. However, as public health restrictions are gradually relaxed and returning to offices becomes a realistic proposition, a situation could arise where RoS would be required to deal with applications submitted by post in addition to those submitted via the DSS.
This would present significant operational challenges.
Firstly, allowing parties the freedom to choose between paper/postal applications and digital submission would require RoS to operate two different registration processes in tandem, This would mean a higher cost to RoS to operate the system, which would translate into higher registration fees and conveyancing costs which would be borne by citizens and businesses. In addition, there may be technical challenges where applications which relate to one another or in competition with one another are submitted by different routes, necessitating systems to resolve those issues in practice and a potential increase in the risk of rejections and inaccuracies on the face of the register, and costs in handling those issues. Customers may also experience similar issues where one side in a transaction relies on DSS whilst the other relies on paper.
Secondly, the introduction of the DSS has required RoS to significantly re-engineer our internal process. To revert to the previous paper-based process on a large-scale would take a substantial amount of capacity within RoS and would lead to longer processing times.
Finally, RoS may not be in a position to staff offices at the levels required to efficiently process the volumes of post we may see, whilst at the same time processing applications received via the DSS. Like many organisations, the current pandemic has required RoS to consider the use of office space and where staff are based. Whilst work on this issue is ongoing, we anticipate a significant shift towards home-working, with office attendance only required where specific roles necessitate this.
In our view, and in conversation with our customers, submission via the DSS should be the default method for the submission of applications to register traditional paper deeds in the Land Register and Register of Sasines. As with the current advance notice system a presumption in favour of use of the digital submission system would still leave room for an efficient bespoke system to be operated to support the small number of paper applications to be submitted where the system was unavailable for a given period, or individual applicants were unable to use the DSS for some other reason. In order to address this latter scenario, the DSS has already introduced ‘non-digital document’ functionality which allows DSS applications to be supplemented with physical documents where required, for example, where a deed plan is too large to be scanned, or where an acceptable quality of scan cannot be produced by the applicant.
In particular, it is possible (but not common) for people in Scotland to carry out their own conveyancing. In such cases it is not likely to make sense for such parties to be granted access to the DSS because they will not be continuing users, so the use of paper deeds would continue.
Extracts and plain copies etc
The Keeper's primary role in registering a deed (in the Land Register at least) is to assess the legal effect of the deed and make the appropriate updates to the title sheet and/or cadastral map.
The Keeper is also called upon to issue a formal extract or plain copy of a registered or recorded deed.
There are two issues related to extracts and plain copies which flow from the adoption, and continued use, of the DSS.
The first issue is the status an extract or plain copy should have where it is issued by the Keeper, based only on a copy of the original deed submitted via the DSS.
The approach taken by the Coronavirus (Scotland) Act 2020 is to provide that a copy submitted via the DSS is sufficient evidence of the original deed for the Keeper to complete registration/recording
In essence an extract or plain copy of a deed which has been registered via the DSS is no different to an extract of a deed which the Keeper has registered having had hold of the original. In our view, this is the right approach.
A third party who relies on an extract or plain copy of a registered deed (submitted via the DSS) which transpires not to be a true copy of the original may be compensated where appropriate by the Keeper under section 106 of the Land Registration etc. (Scotland) Act 2012.
We would expect any such cases to be extremely rare, and that is a further reason for not generally allowing non-solicitors access to the DSS outlined above.
In any case where it did occur the Keeper may have recourse against the party who submitted the version of the deed which was not a true copy of the original under the duty of care in section 111 of the 2012 Act.
Though that would only be engaged where the issue with the deed led to an inaccuracy in the register. If the issue with the copy of the deed was not of a kind to render the register inaccurate then there may be recourse under the general law.
The second issue is the format in which such extracts should be issued. Currently the default position is for extracts and copies to be issued on paper, though they may be issued electronically where that is requested.
Plainly issuing paper extracts where offices are closed is not straightforward. It may also be argued that, if the default position on submission is for use of a digital submission that should also be the case for extracts and plain copies. It should be noted that this may require primary legislation and may not be possible in the short term; nonetheless, we would appreciate stakeholder views on this issue.
For Sasines extracts the position is similar. The rule that an extract from Sasines is good evidence of the original is now found in section 45 of the Conveyancing and Feudal Reform (Scotland) Act 1970, though it has its roots much earlier than that.
There is no statutory equivalent for Sasines extracts to that for Land Register extracts found in section 106(1)(a) of the Land Registration etc. (Scotland) Act 2012, though the Keeper may be liable under the general law for provision of a Sasines extract which is not, in fact, a true copy of the original deed submitted.
The Register of Inhibitions (ROI) and the Register of Judgments (ROJ)
Like the property registers, the system enabling registration in the ROI and ROJ to proceed on the basis of electronically submitted deeds has been popular with customers, allowing registration to continue during the lockdown period.
The emergency measures in relation to the ROI and ROJ in the two Coronavirus Acts go further than those in relation to the property registers, with transmission and registration of a wide range of electronic documents (from scanned copies of traditional documents to true electronic documents) being possible.
This provision has been essential to allow orders and judgments issued by courts to be enforced as intended despite public health restrictions, and has allowed RoS staff to complete registration without having to be physically present in the office.
Also similar to the property registers, extracts of documents registered in the ROJ have been issued digitally, with electronic stamps and seals replacing the traditional paper-based versions.
As mentioned above, the way organisations operate in the future may be significantly changed by the current crisis, with ongoing public health restrictions, increasing levels of homeworking, and an increasing reliance on digital services impacting on how business is done.
In addition, as court proceedings are more and more conducted via digital technology it makes sense for recording in the ROI and the ROJ to be similarly available.
Accordingly, RoS consider that allowing applications to the ROI and ROJ to continue in this form is appropriate, subject to any future provision made for court business.
As with the property registers, it is considered that submission in a digital format should be the default method for the submission of applications, again subject to the same sort of exceptions proposed for the property registers.
- Where the service is unavailable for use for a period of 48 hours or longer
- Where the applicant has no access to the internet
- Where the Keeper is content that exceptional circumstances apply (this would include for accessibility reasons, and where the application is submitted by someone who is not acting as solicitor or legal advisor in connection with the application)
In addition, for the same reasons as set out for the property registers above, we propose that extracts of documents registered in the ROJ are issued by default, with electronic stamps and seals replacing the paper equivalent.
The Register of Deeds and Probative Writs in the Books of Council and Session (ROD)
Unlike the registers mentioned previously, no provision was made in the emergency coronavirus legislation to allow the ROD to continue to function during the initial period of strict social distancing restrictions.
As a result, the ROD remained closed from 24th March until it reopened to paper applications on 1st July 2020. The reason for this approach relates to the central purpose of the register, which is preservation in all time coming of original documents.
We considered that a solution on similar lines to the DSS (where an electronic copy of a paper original is submitted for registration) was inconsistent with this principal function.
However, in order that the ROD could remain open in the event of future disruption to the ability to receive paper deeds for registration, RoS propose at this stage to open up the ROD to true electronic documents executed and authenticated by way of qualified electronic signature.
This would provide a digital alternative (but not a replacement) to paper registration which is more closely aligned with the purpose of the register, and would also enable the growing number of solicitors who are choosing to use electronic documents (such as missives and leases) to register these documents electronically.
It is already possible for deeds, such as missives and leases to be in electronic form and to be valid and self-proving. However, at present such deeds cannot be recorded in the ROD (or the property registers)
From the Keeper's point of view, removing the restriction on registration of these documents in the ROD, would require to be done in such a way as to dovetail with the Keeper's ability to develop a system for the registration of such deeds.
A further complexity is introduced by the fact that some deeds (long leases being the main example) are registered in both the Land Register and the ROD.
We think it would be undesirable, or at least of little utility, to allow for long leases created as electronic documents to be registrable in the ROD but not in the Land Register.
The Keeper has a degree of discretion in the registrability of electronic documents, recognising the need to future proof the development of digital systems and the requirement to build them iteratively and with user input.
This appears in the secondary legislation for the digital registration system which gives the Keeper the power to declare, in consultation with the Scottish Ministers, when specific deed types can be registered digitally in the Land Register.
To date this power has only been used for Discharges of Standard Securities, though work is ongoing around other deed types. A similar approach could work well in relation to the ROD.
Post COVID – the future of digital registration
In November 2016, RoS launched a public consultation which set out ambitions to move to a fully digital system of land registration utilising electronic deeds signed by way of a qualified electronic signature. This was based on the following key tenets:
- Scotland is a digitally-enabled economy, with the required technical infrastructure and legal framework in place
- Digital services reduce cost, time and risk for parties involved, and support compliance and best practice within the legal community
- Digital registration services offer a natural extension to the increasingly digital conveyancing market
In our opinion, the current outbreak has only underlined the importance of moving towards this goal,
As such, RoS see the DSS as a useful stepping-stone towards this goal, With the majority of customers now using the DSS, RoS have a strong user-base that we can work with to develop, over the coming months and years, further digital services that fully exploit the foundations laid in the Land Registration etc. (Scotland) Act 2012 in respect of electronic conveyancing.
- It remained open to Advance notices over whole as well as digital discharges submitted via the Digital Discharge Service.↩
- RoS plans for electronic conveyancing were set out in the ‘Digital Transformation: Next Steps’ public consultation in November 2016.↩
- Regulation 3(1) Land Register Rules etc. (Scotland) Regulations 2014.↩
- For example, assuming loss and that section 106(2) does not apply.↩
- Section 104(7) Land Registration etc. (Scotland) Act 2012.↩
- Prior to the 1970 act an equivalent rule was found in the Titles to Land Consolidation (Scotland) Act 1868.↩
- Documents can also be registered (i) for execution, which allows an extract of the document to form the basis for summary diligence is some situations, and (ii) in a very limited number of situations, in order to give effect to the deed (e.g. Parental Rights and Responsibilities Agreements under section 4(2)(b) Children (Scotland) Act 1995). There are other legal means of enforcing the rights set out in the relevant documents.↩
- Regulations 2 and 3 of the Electronic Documents (Scotland) Regulations 2014.↩
- See section 9G Requirements of Writing (Scotland) Act 1995 which is partially in force – Land Registration etc. (Scotland) Act 2012 (Commencement No. 2 and Transitional Provisions) Order 2014, the Electronic Documents (Scotland) Regulations 2014, the Land Register of Scotland (Automated Registration) etc. Regulations 2014 and the Registers of Scotland (Digital Registration, etc.) Regulations 2018.↩
- Regulation 7 Land Register Rules etc. (Scotland) Regulations 2014 substituted by regulation 6 Registers of Scotland (Digital Registration, etc.) Regulations 2018.↩