Digital submissions analysis

Background

The purpose of Registers of Scotland

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.

The consultation on digital submission

Following the introduction of enhanced public health restrictions by the UK and Scottish Governments on 23^rd March 2020, and in order to protect the health and wellbeing of her staff and the wider community, the Keeper of the Registers of Scotland took the decision to close her offices in Edinburgh and Glasgow. This had the effect of closing all of the registers under the Keeper’s management and control to new paper applications – by far the most common method of submission.

In order to remain operational during this period of restrictions, a number of measures were introduced in the Coronavirus (Scotland) Act 2020 and Coronavirus (Scotland) (No. 2) Act 2020 which, in conjunction with the rapid development of an accompanying online digital service (the digital submission service (DSS)), enabled registration in four of the Keeper’s primary registers (the Land Register, Register of Sasines, Register of Judgments and Register of Inhibitions) to proceed on the basis of scanned copies of paper deeds submitted to RoS electronically.

Informal customer feedback on the DSS has indicated to RoS that there is a strong appetite for digital submission to be retained beyond the lifetime of the two Coronavirus Acts, on the basis that it provides a number of benefits over traditional paper submission. These benefits include increased flexibility in working location and hours (with many solicitors likely to be working remotely for the foreseeable future), and increased speed and certainty in the submission process due to the removal of the dependency on postal systems.

Digital submission also provides a range of benefits for RoS. Operational resilience is increased meaning that those registers which permit digital submission would not have to close in the event of further disruption to public life, and it is hoped that digital submission, in conjunction with the momentum provided in this space by the current pandemic, can act as a stepping stone on the path towards full electronic conveyancing.

Accordingly, RoS launched a public consultation on 22 December 2020 on behalf of the Scottish Ministers, setting out a number of proposals focused chiefly on whether to provide a permanent statutory footing for digital submission, but also inviting views on the next steps RoS, and the conveyancing profession, should take to increase the use of digital services in the conveyancing process.

Methodology

The public consultation ran from 22^nd December until 1^st February 2021 and was hosted on the Scottish Government’s Citizen Space consultation hub as well as being published on the RoS website. An extensive communications campaign was also launched, with stakeholders being encouraged to respond through the RoS website, social media channels, and through direct email contact.

The consultation was open to both individuals and organisations, and feedback was obtained through the answers provided to the 16 questions posed in the consultation.

A total of 223 unique responses were received, and included the views of a wide range of stakeholders including stakeholder groups (such as the Law Society of Scotland), academics, local authorities, commercial, residential and rural law firms, public and private bodies (such as the Scottish Property Federation), and a number of individual solicitors and legal professionals.

A number of respondents declined permission for the publication of their responses or requested anonymity. As a result, 184 responses (with anonymity being requested for 129 of these) will be published.

The 16 questions were grouped into four categories relating to different aspects of digital submission, with each question inviting the respondents to reply either yes or no, with the option to comment further if desired.

Each category also provided the opportunity to comment more generally on the proposals. Response rates for the yes/no questions were high with over 95% of respondents submitting an answer for each question.

Answers to the questions inviting comments were provided more rarely, where the respondent felt strongly or wished to include additional detail to support their response.

This consultation analysis reflects the range of views expressed by respondents on the 16 questions asked and, where appropriate, includes our response to the key issues and suggestions raised.

Consultation analysis

Question 1a

Do you agree that the ability to submit applications to the property registers via the digital submission service should be put on a permanent footing?

Respondents’ Views

Respondents indicated extremely strong support for this proposal, with 98.7% of respondents answering ‘yes’.

In addition to the operational benefits provided to RoS by digital submission, a number of respondents indicated that customers also benefit hugely from the service in terms of speed, efficiency and reliability.

One respondent noted:

“The digital submission service has been a very welcome introduction. We find the system easy to use, more efficient that the postal service and more reliable. We have been impressed by how Registers have taken feedback on board and refined the system and dealt with more complex applications. We are very much in favour of the DSS being put on a permanent footing”.

Shepherd and Wedderburn stated:

“Our response is an emphatic yes. The legal profession is moving increasingly to working in a digital way, and the efficiencies and risk mitigation that a digital submission services provides are completely complementary to this way of working. Our experience of the temporary digital submission service enabled by the Coronavirus (Scotland) Act 2020 has been extremely positive. The Keeper and her staff are to be congratulated on both the speed with which they have developed the current digital system and the collaborative approach they have taken to build the system and processes to meet the users’ needs”.

One respondent pointed out the environmental benefits of digital submission, and also noted that this approach suits the way people are likely to work in the future by noting:

“It’s incredibly helpful to solicitors and clients. It reduces our risk of rejection as we have to complete the online system requirements. It allows us to submit more quickly and so reduces risk to clients. It allows us to work remotely. It fits with our existing working practices. It reduces use of paper, printing, stationary, couriers and other delivery systems”

Several respondents also noted that a return to paper-based processes would be viewed as a significant backwards step, and would relinquish much of the momentum and interest provided in digital conveyancing provided by the digital submission services.

One respondent noted “100% yes. Reverting to paper submissions is a huge step backwards and is completely unnecessary. Not only is digital submissions ease (sic) of use, it has reduced the amount of paper by 98%. This is a massive saving in both costs, time and also environmental impact”.

No specific concerns were raised, with the single respondent who answered ‘no’ providing no further detail.

Question 1b

Do you agree there should be a presumption in favour of use of the DSS?

Respondents’ Views

There was strong support for this proposal, with 97.3% of respondents answering ‘yes’.

A number of these respondents indicated that their view was influenced by the fact that the service has already been in operation for almost a year, and has been proven to work well.

East Lothian Council noted that:

“The system has proved itself admirably over the last few months, and the vast majority of agents dealing with conveyancing business should have online facilities and accounts with RoS. There seems little point having both systems running in tandem as the default position”.

The Law Society of Scotland supported this view, stating:

“We agree that there should be a presumption in favour of the use of DSS. We note from the Consultation paper that this will create further efficiencies at RoS as otherwise this would require to offer two different registration processes which would increase operational costs and likely result in higher registration fees. Our view is that the majority of registrations can be dealt with via the DSS. Particularly now as they have introduced the non-digital document functionality, and therefore it is a sensible, efficient, and cost-effective suggestion to have a presumption in favour of the DSS”.

Of those respondents who raised concerns, the majority of these centred around difficulties experienced in using the digital submission service for applications (typically first registrations) which involve large plans, large numbers of deeds, poor quality deeds, or a combination of these factors.

In these situations, customers have encountered difficulty in scanning the requisite documents with the scanning technology available to them (often working from home), either due to the physical size of the document, quality of the scan produced, or simply the sheer number of pages to be scanned.

One respondent noted that they agreed with the presumption “subject to provision for hard copy submission where not practical or feasible. There can be issues scanning some older documents for submission in first registrations due to the quality of documents e.g. handwritten documents or documents in poor physical condition”.

One respondent sounded caution, however, pointing out that:

“Not everyone is entirely comfortable with digital services, and it will take a considerable period of time for it to become familiar to people who have been submitting physical deeds for many years. To penalise these people would be unfair and place an additional burden on already swamped firms. Physical and digital submissions should be on an equal footing.”

Response

In order to address the issue encountered with scanning certain documents, and following customer feedback, RoS have already introduced ‘non-digital document’ functionality to the digital submission services.

This feature allows digital submissions to be supplemented with a number of physical documents which cannot be scanned by the customer, negating the need to revert to a fully paper-based registration process.

If legislative provision is secured to make use of digital submission compulsory as proposed, RoS will retain and develop this feature further to ensure that the vast majority of applications can be submitted using the digital submission service, supplemented by physical documents where necessary.

As part of the roll-out of the digital submission service, RoS have worked (and continue to work) closely with customers to ensure that they understand how to use the service properly.

This has been achieved through the provision of online guidance (including videos), webinars and one-to-one sessions. Any customers who need assistance in getting set-up with DSS, or who are having issues, should contact our customer service team who will be happy to help.

Question 1c

Do you agree with the following exception criteria (where applications would be accepted by post/courier)?

Respondents’ Views

Respondents indicated support for the proposed exception criteria, with 93.3% answering ‘yes’.

However, even amongst those respondents who responded positively, there was a view that paper submission would still be required in some instances, and there was concern that these would not be covered by the proposed criteria. In particular, respondents sought clarity on how RoS would handle issues such as IT failure within a firm, document scanning problems, and the need to register urgent applications if RoS systems were down for less than 48 hours.

One respondent stated:

“And what happens if the solicitor would normally submit via DSS but cannot because they have had some sort of system failure or cannot access their premises etc?”.

Shepherd and Wedderburn added:

“We would add that in the third category, there should be included the ability to submit paper copies of large documents that do not lend themselves well to scanning, either due to size or to reproductive quality, such as large plans or bulky photographic schedules… We highly recommend that consideration be given to the specific issue of submission of large plans which require to be signed, so that for example the actual plan could be submitted unsigned, but a smaller pdf version of the same plan could be submitted within the digital system”.

The Law Society of Scotland also noted that:

“We agree with the exceptions criteria where applications could be accepted by post or courier as are set out in the Consultation paper. We welcome the recognition that exceptional circumstances may arise where applications could be accepted by post or courier within the proposed 48 hour period. We do anticipate that there will be some transactions where registration is so time critical that a 48 hour period would be detrimental to the transaction or would preclude the transaction from settling. We would therefore suggest that the guidance around exceptional circumstances would include such scenarios."

Response

The proposed exception criteria mirror those already in place in respect of advance notices and registration of electronic documents in the Land Register, and these provisions have worked well to date.

Applied to registration by digital submission, RoS would plan to take a pragmatic approach to the use of the third exception criteria listed in the consultation (where the Keeper is satisfied that exceptional circumstances apply).

Where applicants are unable to use digital submission due to circumstances outwith their control, or where an application requires to be registered during a period in which digital submission is not available, RoS will work closely with affected parties to ensure applications can still be made, and this may include submission by paper.

As noted in the consultation, ‘non-digital document' functionality has already been added to the digital submission service to allow digital applications to be supplemented with paper documents.

This functionality is specifically intended to resolve the issues applicants encounter in relation to scanning of large-scale documents, colour plans and historical deeds, whilst still allowing them to access the benefits of digital submission.

If legislative provision is secured to make use of digital submission compulsory, RoS will retain and develop this feature further to ensure that the vast majority of applications can be submitted using the digital submission service, supplemented by physical documents where necessary.

Question 1d

Do you agree that extracts and certified copies produced from copy deeds submitted digitally to RoS should be treated as any other and, for Land Register cases, covered by the s106 of the 2012 Act?

Respondents’ Views

There was strong support for this proposal amongst respondents, with 96.4% answering ‘yes’.

A number of respondents indicated that in order for users to have faith in digital submission, and therefore the Land Register, this simply must be the case.

Shepherd and Wedderburn note:

“We think that this is an essential component of the efficacy of a digital submission system and the integrity of the Registers. It is critical that the format of the documents submitted for registration should not be regarded as second class, and we strongly recommend that there should be an explicit statement in the permanent legislation that this is the effect of documents submitted through the digital submission system”,

This view was echoed by other respondents including one who noted succinctly that this proposal “is essential for promoting confidence in using the DSS and for underpinning its use”.

A small number of respondents expressed concern about the possibility that in some cases, poor quality extracts may be produced where the digital copy of the deed submitted to the Keeper was of poor quality, and that in such cases, the Keeper should require the original to be submitted.

One respondent noted:

“if the plan is not very clear/not in colour then I’d like to think there would be a requisition for either a clearer scan to be provided or a paper submission. The main issue will be with having clear and coloured plans scanned in for extracts/copy deeds”.

There were also contradictory responses in respect of where liability may sit in ensuring that the deed submitted to RoS for registration matches the original paper document.

Whilst the majority of respondents who raised this issue stated that it seemed reasonable on the basis that RoS are entitled to rely on the documentation submitted via digital submissions services by solicitors, a small number of respondents who asked for their responses not to be published expressed concern that the liability on solicitors would increase from the current level.

Alastair McDonald remarked that digital submission does not change the existing position that “the onus will remain on the applicant to satisfy themselves that the deeds submitted are authentic copies”.

Response

We strongly agree that treating deeds submitted via the digital submission as equivalent to their paper originals is essential to the integrity of the digital submission service.

As referred to in the previous response, RoS have introduced ‘non-digital document’ functionality to the digital submission service to allow digital applications to be supplemented with physical documents.

This functionality will ensure that where applicants are unable to submit a scan of sufficient quality to allow registration to proceed, the physical document can be submitted from which RoS will capture a high-quality scan.

This will ensure that extracts issued of deeds submitted digitally will be of equivalent quality to those previously issued on paper.

In respect of liability, the consultation paper is clear that, in our view (which is supported by the overwhelming majority of respondents), digital submission does not alter the position from the previous paper-based regime, namely that the Keeper will be liable under s106(1)(a) of the Land Registration etc (Scotland) Act 2012 for any losses suffered as a result of any extract (or certified copy) being found not to be a true extract (or copy).

This is one reason why access to the digital submission service is limited to legal professionals.

Further, in situations where the Keeper is liable, the Keeper may have recourse against the party who submitted the version of the deed which was not a true copy under the duty of care provisions in section 111 of the 2012 Act (or, where registration of the copy of the deed did not render the register inaccurate, there may be recourse under the general law) in the case of the Land Register, and under the general law in respect of extracts from the Register of Sasines.

Question 1e

Do you agree that digital extracts and certified copies should be the default format, with paper only available on request?

Respondents’ Views

As with the previous question, there was strong support for this proposal, with 95.1% of respondents answering ‘yes’.

Several respondents agreed that a ‘digital in, digital out’ approach was sensible, and aligned with the general societal move towards paperless business, citing environmental benefits, reduced storage requirements, and improvements in speed and flexibility of working.

One respondent noted that:

“If deeds can be accepted digitally they should also be issued digitally and reduction of paper will significantly reduce operational costs”.

Shepherd and Wedderburn stated that:

“This is entirely consistent with the move towards a more digital way of working. Most firms will currently scan a paper copy to be able to store it in their document management system. Individuals may choose to print off the document if they want, but a digital default will encourage less reliance on paper and is far more sustainable”.

However, a number of respondents, including some who answered positively, expressed some concern around whether digital extracts are likely to be accepted by typical recipients, including other law firms (and in particular, international firms) and the courts.

One respondent stated that:

“I have answered yes. However, consideration will require to be given to the purposes for which extracts and certified copies are generally requested and whether the courts and solicitors firms (in my experience larger international firms) who request these are likely to be satisfied with receiving these digitally. I would expect that most of the time a hard copy will be demanded by the courts and these firms”.

Some respondents also expressed general support for the proposal but qualified to allow extracts deeds with large or colour plans to be issued on paper, with one respondent answering:

“For straightforward deeds yes, but in relation to those with larger plans that are not suitable for issuing in a digital format a paper copy”

Response

RoS are unlikely to take this proposal forward for now due to the need to amend primary legislation (section 104(7) of the 2012 Act).

However, digital extracts will still be available on request, and RoS will work closely with the Scottish Courts and Tribunals Service, and the wider legal profession, to ensure that these documents are accepted in the same way as traditional paper extracts.

Question 1f

Do you have any other comments or suggestions in relation to the DSS as it currently exists?

Respondents’ Views

A significant number of respondents took the opportunity to praise the digital submission service, and the quick response taken by RoS at the beginning of lockdown.

Professor Stewart Brymer noted that the digital submission service is “an excellent service which should become more widespread. Lessons can be learned from the English equivalent operated by HMLR”, whilst another respondent noted that “It is an excellent system, and the RoS is to be congratulated for producing it quickly and under a great deal of pressure”.

One additional respondent simply noted that “it’s brilliant”.

In addition to these comments, respondents proposed a range of additional functionality that could be added to the service in the future (e.g. integration with a wider dashboard covering other RoS online services to allow progress of applications to be tracked), and these are now under consideration.

Question 2a

Do you agree that the ability to submit applications to the ROI and ROJ in electronic form should be placed on a permanent footing?

Respondents’ Views

The response to this question was extremely positive, with 97.3% of respondents answering ‘yes’.

A number of these respondents pointed out the benefits the DSS had brought to them in respect of registration in the ROI and ROJ and highlighted that in addition to operational benefits, this move is also consistent with court proceedings increasingly relying on technology.

One respondent noted that:

“It is the biggest and best initiative by the Registers in my career (nearly 40 years) and must be encouraged!”, whilst another stated that “Being able to submit such applications in electronic form has been vital during the lock downs and restrictions caused by the Covid-19 pandemic. It is a more efficient, economic and environmentally friendly solution than submission of paper deeds and ties in well with the fact that, increasingly, court proceedings are conducted via digital technology. We therefore agree that the ability to submit these applications in electronic form should be placed on a permanent footing and consider that losing the ability to do so would be a backwards step.”

No concerns were raised in relation to this question.

Question 2b

Do you agree there should be a presumption in favour of this method of submission?

Respondents’ Views

94.2% of respondents to this question responded positively, with the Law Society of Scotland stating, “We agree that there should be a presumption in favour of this method of submission for the reasons set out in the Consultation Paper”.

Very few respondents provided specific comment, and those who did qualified their approval by referring back to their comments in relation to question 1b, stating that the concerns raised there would also apply to this question.

Response

As noted in the response to question 1b, non-digital document functionality has been added to the digital submission service (including for ROI/ROJ applications) to enable digital applications to be supplemented with physical documents that cannot be scanned by the applicant.

This will allow all ROI/ROJ applicants to access the benefits of digital submission whilst circumventing any scanning issues encountered by applicants.

Question 2c

Do you agree with the exception criteria set out (where applications would be accepted by post/courier)?

Respondents’ Views

Respondents demonstrated support for the proposed exception criteria, with 91.0% answering positively.

The majority of those respondents who answered ‘no’ cited identical concerns to those raised in question 1c in relation to IT failure within a firm, document scanning problems, and the need to register urgent applications if RoS systems were down for less than 48 hours.

Two respondents who did not wish their answer to be published expressed the view that applicants should not be forced to use digital submission, and that the option to submit via paper should be available as a matter of course.

Response

As noted in the response to question 1c, the proposed exception criteria mirror those already in place in respect of advance notices and registration of electronic documents in the Land Register, and these provisions have worked well to date.

RoS will also take a pragmatic approach to the use of the third exception criteria listed in the consultation (where the Keeper is satisfied that exceptional circumstances apply).

Where applicants are unable to use digital submission due to circumstances outwith their control, or where an application requires to be registered during a period in which digital submission is not available, RoS will work closely with affected parties to ensure applications can still be made, and this may include submission by paper.

As noted previously, non-digital document functionality has been added to the digital submission service (including for ROI/ROJ applications) to enable digital applications to be supplemented with physical documents that cannot be scanned by the applicant.

This will allow all ROI/ROJ applicants to access the benefits of digital submission whilst circumventing any scanning issues encountered by applicants.

Question 2d

Do you agree that extracts from the ROJ should presumptively be in electronic form, with paper available on request?

Respondents’ Views

Respondents demonstrated support for the proposed exception criteria, with 94.2% answering positively.

Dr Clare Jones from the Open University stated that:

“I agree that extracts from the ROJ should presumptively be in electronic form, with paper on request. For the reasons I outline above, there should and must be the presumption. There should not be a middle ground, only exceptions. These expectations are valid and as iterated above, Scotland needs to focus on mitigating financial, social and digital exclusion amongst its people to prevent those being left behind in this move for transformation”.

The majority of those respondents who answered ‘no’ cited identical concerns to those raised in question 1e, with no additional comment being made.

One respondent also suggested that “the default should be that the method of submission determines the method of issue, so for example a traditional document submitted would have a traditional extract issued unless the party submitting requested an electronic copy”.

Response

In line with the response to question 1e, we are unlikely to take this proposal forward for now.

Digital extracts will still be available on request, and RoS will work closely with the Scottish Courts and Tribunals Service, and the wider legal profession, to ensure that these documents are accepted in the same way as traditional paper extracts.

Question 2e

Do you have any other comments on submissions to the ROI or ROJ?

Very few additional comments were made in this section, with the majority of those who did comment emphasising the opportunity to move towards digital processes.

Robbie McElroy commented that:

“21^st century practice should not be placing additional value on items just due to being on paper. Reduction of reliance on paper is something the legal industry has been severely behind the times on in comparison with other sectors and this will help.”

One respondent also took the opportunity to emphasise the benefits digital submission had brought to them by stating:

“We welcome the changes introduced which have many benefits including allowing us to take action quicker, more flexibly and reducing the time spent on each matter”.

Question 3a

Do you agree that registering electronic documents in the Register of Deeds should be enabled?

Respondents’ Views

Respondents exhibited clear support for this proposal, with 96.0% answering positively.

A number of respondents noted that this approach would form a useful starting point on the transition to a fully digital Land Register with one respondent noting:

“We agree that this would be a significant step forward – for the RoD to be opened up to electronic documents executed and authenticated by way of qualified electronic signatures. It is possible for property deeds to be signed electronically via the various e-signing platforms but the main barrier to take up of this technology in Scotland in the property law sphere thus far has been the inability to then record such deeds in the RoD or the property registers, so enabling this would open the gate to a full system of electronic conveyancing”.

This view was echoed by Professor Stewart Brymer who stated “it has long been an irritation that ROI and the Books of Council and Session cannot accept electronic documents”.

A small number of respondents expressed concerns in relation to a perceived incompatibility between the primary purpose of the RoD (preservation) and digital submission, and also in relation to the risk of fraud.

One respondent noted that this proposal “does not serve a primary function of that register which is the preservation of original deeds”, whilst another expressed a “fear this would create a risk that documents could be tampered with and made to look genuine if RoS was not able to inspect them first hand”.

Two respondents also singled out Wills as being an exception to the proposal in the consultation paper, with one stating:

“I think it is important that the Keeper should have the original of a Will. It may be possible for a Will to be altered and the alteration to be masked with a digital copy”.

Response

As noted in the consultation, the digital submission service has not been extended to the Register of Deeds because, in our view, the registration of digitally submitted copies of deeds is not consistent with the principle function of the register to preserve documents.

Instead, what is proposed is the registration of ‘true’ electronic documents which are equivalent in status to original paper documents.

In registering electronic documents in this way, originals will be preserved securely in perpetuity. Accordingly, there is therefore no reason to except any deed types, such as Wills, from being registered in this way.

In implementing this proposal, RoS will work closely with the legal profession and qualified trust service providers to ensure that any system developed is secure and protected from the risk of fraud.

Question 3b

Do you agree that the Keeper should be able to declare, in consultation with Ministers, when certain deed types can be registered?

Respondents’ Views

Respondents indicated strong support for this proposal, with 92.4% answering ‘yes’.

Professor Stewart Brymer was vocal in his support, stating that:

“The Keeper should be able to outline the proposed digital journey for Ministers and then be allowed to advance the transformation programme accordingly.

The Scottish Property Federation stated:

“The SPF agrees with this proposal because our members appreciate that the Keeper may wish to control the volume and timing of electronic deeds submitted for registration, and to ensure that any required systems and processes are in place for the registration of those deed types”.

A number of respondents appeared to indicate that all deed types should be registrable in electronic form from the outset, with one respondent stating:

“The register should be opened to all electronically signed deeds simultaneously and other Registers should also be opened up to such electronically signed deeds on that date”.

However, this was qualified in some cases to acknowledge the scale of the work required to enable registration of electronic documents across all of the Keeper’s registers, and that as a result, and in order to capitalise on the momentum provided by Covid-19, a more iterative approach was justified, with the Law Society of Scotland stating:

“We agree that the Keeper should be able to declare when certain deed types can be registered, in consultation with Ministers. We note that there will be a significant amount of work required to enable and introduce systems to support electronic submissions and therefore it is sensible that the Keeper has the flexibility and is able to control when such deeds can be introduced rather than being prescribed. This has worked well in relation to Discharges of Standard Securities”.

Response

As noted in the consultation, to allow all deed types to be registered from the outset would require a significant amount of development work to ensure that such deeds could be registered not only in the Register of Deeds, but also in the other registers (such as the Land Register and Register of Sasines) which they may require to be registered in, and this is simply not feasible at this time (see also our response to question 4 below).

Instead, by opening the Register of Deeds gradually on an iterative basis (starting with the registration of documents such as short leases and missives, which the profession have been calling for), the needs of those in the profession who use electronic signatures can be met in part, whilst those who are not familiar with electronic documents are gradually exposed through day-to-day transactions.

By building this familiarity with electronic signatures and documents over a period of time, it is hoped that one of the current barriers to wider digital registration systems will be overcome such that when future digital services are launched, uptake will be high.

Question 3c

Do you agree, for deeds which go into both Land Register and Register of Deeds, the Keeper should consider ‘authorising’ them together?

Respondents’ Views

Again, there was strong support for this proposal, with 95.5% of respondents answering ‘yes’.

A number of respondents saw this proposal simply as common sense, with there being no real alternative.

One respondent stated that:

“If one register were authorised for a particular document type but not the other, it would create a potential difficulty. If a QES signed lease could go into LR but not into RoD, there would be no point in using QES”.

However, a small number of respondents did provide comment that suggests this question was misunderstood.

In particular, concerns were raised that such an approach could result in delays to registration in the RoD as a consequence of Land Register backlogs, with one respondent noting that “this would be very useful to prevent delays between deeds being registered in the second Register” and another noting “yes as long as there is not a delay”.

Response

Several of the responses received suggest that respondents equated ‘authorisation’ with ‘registration’.

Instead, what was proposed in the consultation was a safeguard to ensure that certain deed types that are likely to require registration in both the RoD and property registers (such as long leases) are only registrable in electronic form when that deed type has been authorised for use in all relevant registers.

We strongly agree with those respondents who stated that, in the absence of all of the Keeper’s registers being open to electronic documents at once, this is the only way forward without preventing the registration of certain deed types in the property registers.

Question 3d

Do you have any other comments on the Register of Deeds?

Respondents’ Views

A significant number of respondents to this question suggested that any move to introduce registration of electronic documents in the RoD should be accompanied by removing the need to wet-sign the C&S1 form which often accompanies applications for registration, with a number of respondents stating “having legislation if required amended to do away with requirement to sign in any way the C&S1 form”.

Aside from this, few comments were made, with a very small number of respondents expressing concerns around the potential for fraud arising from the use of qualified electronic signatures and the acceptability of electronic documents by the courts system, with one respondent emphasising that “concerns around risk and fraud relating to QES by parties need to be firmly addressed”.

Response

As part of the work to open the Register of Deeds to electronic documents, RoS will carry out a wider review of the registration process, including application forms.

As mentioned in the response to question 3a, RoS will work closely with the legal profession and qualified trust service providers to ensure that any system developed is secure and protected from the risk of fraud.

It is also likely that initially, access to the relevant digital service will be limited to legal professionals and RoS account holders.

Question 4

Do you agree that RoS should continue, along with stakeholders and customers, to pursue a transition from the Digital Submission Service towards fully digital land registration?

Respondents’ Views

On this wider question, there was strong support from respondents, with 96.9% answering ‘yes’.

A significant number of respondents chose to point out that the previous paper-based system of registration is out of step with the modern world and that the move towards true digital registration should be prioritised to capitalise on the momentum provided in this space by Covid-19, and to prevent Scotland from lagging behind other countries.

One respondent noted that “the digital system is the future and the fast-track of this should be prioritised at all costs”.

MacRoberts took the view that:

“The days of printing and signing paper must be brought to an end soon. The Coronavirus restrictions have highlighted the inefficiency of working with paper. The legal profession is in danger of being seen as out of touch with modern practice. The Keeper is to be commended for embracing change and must pursue 'ARTL 2' over the next few years. The legal profession is conservative and slow to change, but change they must”.

Several respondents were keen for RoS to work closely with the profession in the development and roll-out of these new services to ensure a smooth transition for all users, with the Law Society of Scotland stating:

“We agree and fully support a transition from the DSS towards fully digital land registration. Throughout the last year, our Property Law Committee have worked closely with RoS in regard to their response to the pandemic and supported the digital advancements they have introduced throughout this time. The permanence of the DSS is a welcome and very significant step however as we look to the future and navigate post COVID there is further work to be done towards a fully digital land registration to support Scotland as a digitally-enabled economy. We look forward to working with RoS in this regard”.

One respondent also noted that whilst they fully supported the proposals, success will “require regular engagement with all key stakeholders throughout the transition to a full digital service. We would strongly encourage that RoS engages with SME organisations who may not have access to the same IT capacity that other larger firms may have”.

There was, however, a note of caution.

One respondent suggested that the current digital submission services may be as far as some solicitors are willing to go on the digital journey, stating “I feel that the DSS is likely to be a more manageable process for solicitors than full digital land registration”.

Response

RoS is extremely encouraged by the positive response to this proposal, which highlights the role the coronavirus outbreak and subsequent lockdown restrictions have played in shifting opinion since we last consulted on this subject in 2016.

The introduction of the digital submission service (in response to the coronavirus outbreak) has, at a single stroke, overcome one of the main barriers to the use of digital services by requiring all of our customers to become users.

In designing this service with our customers, RoS worked collaboratively to deliver this change.

By using the digital submission service as a platform, RoS will continue to work closely with our customers in the coming months to increase the functionality of the service, introducing concepts such as the structured capture of data, the ability for customers to use existing property information.

It believes this will bring benefits in respect of efficiency and certainty of data to customer and RoS.

RoS introduced the first iteration of Land Register application form dashboard in 2020; feedback from that and from this consultation illustrates the value to customers of further iterating upon this to view and manage a range of applications.

It is planned that these developments will extend to the creation of deeds, the use of qualified electronic signatures and, ultimately, automation of the registration process where appropriate.

RoS identifies the provision of digital registration as being of benefit to Scotland’s economy making Scotland an attractive place to transact in land and property.

This work cannot be driven by RoS alone, requiring significant cultural and technological change across the entire conveyancing profession if it is to be successful.

RoS will therefore continue to work closely with the Law Society of Scotland, our customers, technology providers and other relevant parties to ensure that we move forward towards a fully digital system of registration that delivers efficiency, certainty and security for all.

Footnotes

1. RoS plans for electronic conveyancing were set out in the ‘Digital Transformation: Next Steps’ public consultation in November 2016.↩
2. Regulations 3, 4A and 7 of the Land Register Rules etc. (Scotland) Regulations 2014 (although in relation to regulation 7, no digital registration services have been mandated to date).↩
3. As defined in section 9A of the Requirements of Writing (Scotland) Act 1995 and which, by virtue of regulations 2 and 3 of the Electronic Documents (Scotland) Act 2014, must be signed by way of a qualified electronic signature to permit registration.↩