Response analysis report

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), who is a non-ministerial office-holder in the Scottish Administration and the Chief Executive of RoS. RoS' functions are to maintain 21 public registers for which the Keeper is statutorily responsible and make the information they contain publicly available.

The consultation on the fee proposals for the registers introduced by the Moveable Transactions (Scotland) Act 2023

The Scottish Parliament passed the Moveable Transactions (Scotland) Act 2023 (“the Act”) on 4 May 2023, with it receiving Royal Assent on 13 June 2023.

The Act reforms and modernises Scots law to make it easier for businesses and individuals to assign claims or raise finance using moveable property. Moveable property can include tangible things such as vehicles, livestock and machinery as well as intangible things such as intellectual property (patents, royalties etc.).

The Act provides for the creation of two new registers, the Register of Assignations (“RoA”) and the Register of Statutory Pledges (“RSP”), and for both registers to be under the management and control of the Keeper.

It is proposed that the two new registers will go live in Spring 2025.

The Act contains a number of provisions requiring a fee to be paid to the Keeper on the occasion of certain events:

• upon making an application for registration in either register;
• upon making a correction application in the RSP under either S.96(1) or S.98(6);
• upon searching the record in either register; and
• upon requesting an extract of an entry in either register.

In July 2024, RoS published a consultation paper which set out the proposed fees for these events and also proposed a number of other fees to facilitate the effective operation of the two new registers.

This consultation closed on 16 September 2024. In total, 14 responses were received.

These responses came from:

• Two stakeholder groups - the Law Society of Scotland and UK Finance
• Seven law firms
• One property search firm
• One business finance firm and
• Three individuals

One respondent declined permission for publication of their responses. As a result, 13 responses will be published on the Scottish Government website and placed on the RoS website.

All but the last of the consultations questions invited the respondent to reply either Yes or No to the proposition with an option to comment further. The last question asked respondents if they had any other comments to make on the consultations proposals.

Consultation responses - key message

An overwhelming majority of respondents were either dissatisfied or strongly dissatisfied by the consultations key proposals regarding RoA and RSP registration fees, with respondents’ viewing these as prohibitively high and excessive to the extent that the legal reforms intended by the Act could be negatively impacted.

The extent of this dissatisfaction can perhaps be best illustrated by the respondents’ responses to the final question which asked whether respondents had any other comments to make on the consultations proposals. Individually, each comment serves to encapsulate that respondent’s other responses in one statement and, collectively, delivers a clear message regarding the appropriateness of the registration fees proposed:

• Morton Fraser MacRoberts LLP commented: 
  • “The proposals are disappointing. They are not aligned with the stated intention of the Registers and will discourage usage of the new security / assignation regimes. An urgent rethink is required.”
• Shepherd and Wedderburn LLP commented:
  • “We urge Registers of Scotland to reconsider the levels of fees being proposed for registration of assignations and statutory pledges in the new Registers, either on a dynamic pricing basis (with a slightly higher initial registration fee allied with lower additional registration fees) or a static pricing basis (with a lower registration fee across the board).”
• Brodies LLP commented:
  • “We consider that there should be a closer fees alignment with those charged by Companies House so that full advantage can be taken of the positive legal reforms.”
• Burnes Paull commented commented:
  • “We believe that the fees for registration of assignations and statutory pledges must be significantly lower than the £80 that has been proposed.  Unless this is done, we believe that transactions will be structured so as to reduce the need to register (for example, assignations will be intimated and not registered) and the benefits of the Act, particularly for SMEs, would therefore not be realised.”
• CMS Cameron McKenna Nabarro Olswang LLP commented:
  • “We urge Registers of Scotland to reconsider the levels of fees being proposed for registration of assignations and statutory pledges in the new Registers. If RoS do not reconsider the position on registration fees then, in our view, the new Registers and the new statutory pledge security will not be used in practice. This will undermine the MTSA and its stated aims and objectives, meaning an opportunity will be lost for commercial transactions and businesses in Scotland.”

• Addleshaw Goddard LLP commented:
  • “There is a very real risk that the solutions offered by the MTA will not be adopted by the market if these solutions are prohibitively expensive. Comparisons should be made to Companies House and not the Land Register.”

Consultation responses

Q1:  Do you agree with the below proposals for the RoA and RSP registration fees?

• To register an Assignation document in the RoA – £80
• Where an Assignation document assigns different claims to different assignees - £80 for each claim for which registration is applied for
• To register a Statutory Pledge document or an Amendment of Statutory Pledge document in the RSP – £80.
• Where a Statutory Pledge document creates more than one Statutory Pledge - £80 for each Statutory Pledge for which registration is applied for
• Where an Amendment of Statutory Pledge document amends more than one RSP Record entry - £80 for each RSP Record entry amended.

Yes: 2 | No: 12

An overwhelming majority of respondents either disagreed or strongly disagreed with the registration fees proposed in the consultation, with 78% overall agreeing that those fees were excessively high.

Common objection themes emerged across disagreeing respondents:

• Proposed registration fees would deter usage and undermine the Act

The majority of respondents felt strongly that the proposed registration fees would impact severely on usage and effectiveness of the registers, negatively impacting the benefits that both new registers were intended to bring, thereby undermining the beneficial changes introduced by the Act.

UK Finance (who represent more than 300 firms across the banking and finance industry), commented that the proposed £80 registration fee was:

“Significantly higher than expected. UK Finance and its members would be concerned that proceeding with such high fees would deter usage, resulting in parties to commercial transactions choosing to rely on existing security and perfection methods and/or the new off-register alternatives. This would negatively impact the benefits that the new regime is intended to bring.”

Shepherd and Wedderburn LLP had identical concerns, whilst Morton Fraser MacRoberts LLP commented that the proposed registration fees were:

“far too high and likely prohibitively so…. Fees at this level will discourage usage and obviate the stated purpose of the Registers as per the SLC Discussion Paper, being to simplify and modernise the Scots law in this area in a user friendly and accessible manner.”

Burness Paull LLP commented:

“We feel strongly that the proposed fee of £80 for the registration of an assignation, the registration of a statutory pledge and the amendment of a statutory pledge is too high. We are concerned that a fee set at this high level will discourage use of the registers, and detract from the commercial benefits brought by the legal reforms.”

Summing up the practitioner view, and highlighting that in setting fees from a position of cost recovery RoS may actually discourage use of the registers, The Law Society of Scotland commented:

“We consider the proposed individual fee of £80 to register an assignation and statutory pledge respectively is materially higher than was expected… We are very concerned that setting a fee too high will discourage use of the registers, and undo the attractiveness of the new legal reforms (and indeed reduce potential overall revenues from these registers for Registers of Scotland).”

• Proposed registration fees seriously detrimental for multiple statutory pledges within one document

Over half of the respondents identified that the proposal for an £80 registration fee to be charged for each statutory pledge would compound the negative effect of what was already considered to be an excessive fee by charging for each individual statutory pledge (over individual assets or groups of assets) contained within a single document.

Respondents anticipated that such documents would be commonplace but suggested that the proposed approach would lead to prohibitively high fees and, potentially, low usage of the new register.

The Law Society of Scotland commented:

“This higher than expected fee of £80 is further compounded by the likelihood that multiple assignations or statutory pledges are likely to be granted under one document by businesses seeking finance thereby rendering the use of the Registers as comparatively expensive.”

Similarly, Morton Fraser MacRoberts LLP commented:

“Security documentation in corporate and commercial financings is likely to contain several different pledges….Fees would therefore quickly multiply into the hundreds and possibly thousands for a simple registration”

Addleshaw Goddard echoed this, commenting:

“We expect that in the majority of financing transactions, a single security document will, for example, typically include multiple statutory pledges. At £80 per pledge, the registration costs for one document could easily reach hundreds of pounds. If multiple companies within the same corporate group grant statutory pledges, as is very often the case, the total registration fees for a transaction could exceed £1,000. Such high fees would be prohibitive in many cases. The costs of registration in financing transactions are borne by the security providers and this would disproportionately affect SMEs who are already at a disadvantage when negotiating deal terms with financial institutions.”

Capturing the overall feeling of disagreement, CMS Cameron McKenna Nabarro Olswang LLP commented:

“…under the new MTSA regime we expect parties to commercial transactions will regularly look to take multiple statutory pledges and assignations over different asset classes in any given commercial transaction. If we advise our clients that it will cost them hundreds (potentially thousands) of pounds to do so, the answer will be simple: they won’t. This will result in the Registers not being used and the MTSA being undermined. If the proposed fees remain at this level, we anticipate that parties will structure financing deals to minimize the number of statutory pledges or avoid them altogether. This could lead to fewer registrations in the ROA and RSP, reducing income for RoS and undermining the effectiveness and use of the MTA”.

For clarification, the consultation proposed an £80 fee for the registration of each statutory pledge within a statutory pledge document, but only where the applicant applies for this.

It is considered that the primary reason for the separate registration of each statutory pledge within a statutory pledge document will be to avoid accidental/unintended extinction resulting from the acquiescence provisions of S.52 of the Act.

Where the applicant does not apply for registration of individual statutory pledges within a statutory pledge document, a single registration fee for that document will be chargeable.

The effect of this would be that, if a statutory pledge document contains 10 individual statutory pledges, each over an individual asset (group of assets), and the applicant applies for registration of each statutory pledge separately, 10 registration fees will be chargeable. This is akin to a separate fee being chargeable for the registration of a Standard Security over multiple Title Numbers in the Land Register.

Where the applicant does not require to register each statutory pledge separately, however, one single registration fee will be payable.

The acquiescence provisions of S.52 of the Act do not apply to assignations. Consequently, there will be no requirement to make multiple applications to register an assignation document in the RoA, irrespective of the number of categories of claims or categories of assigned claim, unless that assignation assigns different claims to different assignees.

• Link to land register standard security registration fee inappropriate
• Automatic registers = lower registration fees

There was a strong feeling amongst respondents that the linking of the proposed registration fees for the RoA and RSP to the current lowest fee (£80) for registration of a Standard Security in the Land Register was inappropriate, with 65% of respondents making this point. An equally strong 60% of respondents also felt that the automatic nature of the two new registers should ultimately mean a low registration fee. Generally, those dissenting respondents made a direct link between the two in their responses.

Morton Fraser MacRoberts LLP commented:

“Our understanding is that RoS will not check registered documents for authenticity or validity and will simply register documents presented to it in the new Registers. There is accordingly no equivalence with the Land Register of Scotland, for which a fee of £80 is charged per heritable title charged under a standard security.”

Shepherd and Wedderburn LLP agreed, commenting:

“In our view, the comparison with existing base ROS registration fees – specifically with those for a standard security – are not appropriate… land value is generally much higher than moveable property value and land assets tend to be dealt with less frequently than moveable property and with specific external advice. There is therefore an acceptance by parties that higher transaction costs (including higher fees) will be incurred for land registration…our understanding is that registration in the new Registers of Assignations and Statutory Pledges will be almost entirely automated, eliminating the manual interaction costs required for the Land Register which potentially justify higher fees for registration of standard securities and other dealings with land.”

Brodies LLP, drawing out the distinction between the number of assets involved in moveables financing compared to heritable property financing, commented:

“A comparison with RoS land registration costs is not appropriate as generally in a land transaction fewer title numbers/land assets are involved and their value is generally greater than that of moveable property involved in a commercial transaction…..The proposed fee levels are also at too a high level considering the passive role that the Scottish registers will have in relation to registrations, which will largely be automated.”

Similarly, Addleshaw Goddard commented:

“While the proposed fees match the cost of registering a standard security in the Land Register, we do not believe this is an appropriate comparison. The RSP and ROA will be, we understand, automated systems, without the detailed verification and checking that occurs in the Land Register. It should also be noted that land assets are significantly more valuable and subject to fewer dealings in the life of an average company, so there is an acceptance that the fees will be higher here.”

UK Finance echoed each of these responses, commenting:

“We do not believe that the fees for registration in the Land Register of Scotland are an appropriate comparison to draw for the following reasons. Land value will generally be much higher than the value of the moveable property being dealt with in connection with secured lending to businesses. Land will also normally be dealt with less frequently and usually in conjunction with specific legal advice and services. A portion of the benefits of the new registers are intended to come from their wider accessibility and they are designed to be automatic and requiring little manual involvement from the registrar on a day-to-day basis.”

• Proposed fees much higher than UK Companies House/Overseas Comparator jurisdictions fees for security document registration.
• Registration fees should be aligned with UK Companies House fees.

A significant number of respondents, almost 60%, expressly identified that the proposed registration fees significantly exceeded those fees charged for the registration of security documents in Companies House, with several also highlighting the disparity between the proposed fees and those currently charged for security document registration in overseas comparator jurisdictions. Over a third of all respondents also expressed the view with that the registration fees for the RoA and RSP should be more appropriately aligned with current Companies House fees.

Morton Fraser MacRoberts LLP commented:

“RoS should consider here as a corollary the fees charged by Companies House for the registration of security documents against companies and limited liability partnerships. We understand that this level of pricing is also more closely aligned with similar registers in other overseas jurisdictions.”

Addleshaw Goddard agreed, commenting that:

“We believe that fees for the ROA and RSP should be aligned with those at Companies House.”

Shepherd and Wedderburn LLP were more specific, commenting that:

“If dynamic pricing is not possible within the new Registers, then our view is that the level of registration fee should be more in line with Companies House registration costs, i.e. no more than £12 to £15”.

Shepherd and Wedderburn LLP also commented that:

“A good comparator of the registration fee proposal is with other moveable property/security registration regimes around the world. We are not aware of any other jurisdiction where the level of registration fees are anywhere close to £80 per security.”

The Law Society of Scotland echoed this, commenting:

“we consider the most appropriate domestic comparator to be Companies House, and a fee of £15 is charged to register the particulars of a mortgage or charge for a UK registered company at Companies House (or alternatively £24 to file a paper MR01 form)…Internationally, this fee level is also disproportionately high….”

Professor Andrew Steven said that the proposed registration fees:

“… compare unfavourably with the equivalent fee for registration of a charge at Companies House (£15) and fees for registration in Personal Property Security Act jurisdictions.”

UK Finance, perhaps summarising the feeling of respondents, said:

“£80 is significantly higher than what we consider to be the closest UK equivalent (Companies House at £15 per online registration)… We also note that fees in corresponding registers in other comparable jurisdictions (including in Canada, Australia and New Zealand) are lower still.”

Other feeing proposals

40% of all respondents made other specific proposals to reduce registration fees, with over a third of all respondents proposing a “dynamic pricing” fee model to accommodate multiple assignations/statutory pledges within the one document.

Both Shepherd and Wedderburn LLP and CMS Cameron McKenna Nabarro Olswang LLP commented that:

“if dynamic pricing is possible within the new Registers (by which we mean, it is possible to have a different price for registration of the initial assignation / statutory pledge document and each subsequent assignation or statutory pledge) then we think a higher initial registration fee might be sustainable. For example, an initial registration fee of no more than £25 for the document, with each additional statutory pledge or assignation being no more than £5.”

Addleshaw Goddard LLP proposed a dynamic pricing model which incorporated capped fees, with the former commenting that:

“a dynamic pricing model could be considered with one fee per pledge document and additional (and significantly smaller) fees per individual pledged asset. There should also be a cap on the total fees payable for any one security document.”

UK Finance also suggest:

“a flat (low) fee to register all statutory pledges where they are part of an integrated financing agreement and are contained in the same document would be more likely to encourage usage… If such an approach is not considered acceptable then UK Finance would urge consideration of small incremental fees for additional pledges, combined with a low initial registration charge.”

Finally, UK Finance further suggested:

“some form of dynamic pricing or a 'double-registration' for a combined fee” where registration of the same integrated financing agreement is required in both the Register of Assignations and the Register of Statutory Pledges”.

UK Finance also made several comments regarding the proposed approach of:

“charging per entry made in the register, rather than by document uploaded”, commenting that this would “exacerbate the impact of the high fee levels”, highlighting the example of invoice financing.

In explanation, they commented that:

“If a fee is payable for each individual invoice subject to assignation it seems unlikely that the Register of Assignations would be extensively used, with finance providers instead relying on existing methods. UK Finance and its Commercial Finance members would strongly urge RoS to consider enabling the assignation (and registration) of the finance facility agreement itself in the Register of Assignations, and to do so at a fee significantly lower than £80.”

For clarification, the Consultation’s base registration fee proposal for the RoA is “To register an Assignation document in the RoA – £80”. This proposal would enable a single assignation document, which document, in the context of invoice factoring, can be expected to assign a multiplicity of individual invoices, to be registered for one single fee of £80.

Q2:  Do you agree with the below proposals for the RoA and RSP correction fees?

• For correction of the RoA under section 29(1) (correction by Court Direction) - £0
• For correction of the RoA under section 29(2) (manifest inaccuracy correction by Keeper) - £0
• For correction of the RSP under S.96(1) (correction by secured creditor) - £20 per record corrected
• For correction of the RSP under S.98(6) (correction by correction demand) - £20 per record corrected
• For correction of the RSP under S.100(1) (correction by court direction) - £0
• For correction of the RSP under S.100(2) (manifest inaccuracy correction by the Keeper) - £0.

Yes: 8 | No: 5 |  No response: 1

A majority of respondents – over 60% of those who provided a response - agreed to the overall proposals regarding correction fees, with Brodies LLP and Professor Andrew Steven viewing the proposals as reasonable. Unanimous agreement to the “nil” fee proposals was received from those respondents.

Two respondents, however, caveated their agreement with respect to the £20 proposed fee for RSP corrections under either S.96(1) or S.98(6) of the Act, linking their response to their expressed view that proposed registration fees were too high.

Addleshaw Goddard LLP commented that:

“The £20 fee for corrections is generally okay but if the fee for question 1 is reduced as we suggest, this fee should reduce also.”

Brodies LLP agreed in similar terms, commenting:

“We generally agree with the £20 fees but think that the fee for correction of the RSP under section 96(1) should be no higher than the fee for the amendment of a statutory pledge. If the fee for amendment is reduced in line with our comments at question 1 above, we think the section 96(1) fee should be reduced to match this.”

The Law Society of Scotland also caveated their response in similar terms, again linking their response to their expressed view that proposed registration fees were too high, but this time disagreeing with the proposal commenting:

“….we consider that the £20 fee level would be more appropriate for initial registration, with lower fees charged for corrections.”

Q3:  Do you agree that a combined Amendment of a Statutory Pledge and correction should attract a single fee?

Yes: 9 |  No: 4 | No response: 1

A strong majority of respondents, 70%, agreed with the proposal for a combined Amendment of a Statutory Pledge and correction fee. No substantive supporting comments were received.

Of those respondents who were against the proposal, two explained that they actually agreed with the principle of the proposal but disagreed with the proposed fee for an amendment of a statutory pledge (£80) and, as a consequence, opted for “No”.

Taking this additional agreement into account, it is more correct to say that a very strong 86% of those who provided a response agreed with the proposal.

No supporting comments were received from the other two dissenting respondents.

Q4:  Do you agree that there should be no rejection fee?

Yes: 13 | No: 0 | No response: 1

There was unanimous support for this proposal amongst those who provided a response.

Q5:  Do you agree that the fee for searching should mirror the ScotLIS search fee for the Keeper’s other registers as at the date that both new registers go live?

Yes: 10 | No: 4

There was very strong support for this proposal, with over 70% of respondents agreeing that the search fee for the two new registers should be identical to the fee for searching the Keeper’s other registers using ScotLIS - the Keeper’s online land and information service which enables citizens and businesses to access land and property information, as well as information relating to the Judicial Registers.

Shepherd and Wedderburn LLP, Professor Andrew Steven and UK Finance, for instance, all described the proposal as “reasonable”.

A considerable number of respondents, however, caveated their support by saying that they agreed with the proposal only on the basis that the search fee would include full access to search result records, including relevant documents, with the ability to download those records/documents at no extra cost. On the same theme, several respondents also sought general clarification as to what register information would be available as part of a search result.

For clarification, it is intended that each search of the RoA or RSP will give access to all the results returned, so users will be able to access (“click through” into) the record entry for each “hit” contained in the search result. Users will then be able to view and download, for free, copies of all record entries, including relevant documents, contained in that search result, where required.

Users will also be able to save each search result, including documents, into their own files.

Almost half of respondents, including some who agreed with the proposal, identified that the searching of security-based documents granted by entities registered under the Companies Act 2006 is free.

Shepherd and Wedderburn LLP, for instance, who agreed with the proposal commented that:

“It should be noted that searching at Companies House is free and that statutory pledges and assignations in security granted by relevant companies and limited liability partnerships will also be registered and searchable there without cost.” Professor Andrew Steven made a similar comment.

Those opposing the proposal, however, generally cited this free Companies House searching as the main reason for their opposition.

Brodies LLP commented that:

“The appropriate comparator should be Companies House, where there is no fee to search. On that basis we consider the proposed £3 fee to be too high.”

The Law Society of Scotland commented:

“We consider this fee to be slightly excessive. Once more, the appropriate comparator is UK Companies House, where there is no fee to search. Internationally, the cost is $2 in Australia (so approximately £1), $2 in New Zealand (so approximately £1). British Columbia charges $7 for online searches, so £3.50.”

Questioning the benefit of charging any search fee at all, CMS Cameron McKenna Nabarro Olswang LLP commented that:

“It should be noted that searching at Companies House is free and that statutory pledges and assignations in security granted by relevant companies and limited liability partnerships will also be registered and searchable there without cost and so it does not appear to serve any benefit in charging such fee.”

Several respondents also made suggestions as to how the approach to search fees and searching might operate in practice.

Shepherd and Wedderburn LLP, for instance, suggested that:

“Consideration should also be given to alternative charging methods for regular searchers and situations where searches are required against large numbers of group companies or similar bulk searches.”

UK Finance also made an almost identical suggestion:

“Consideration should be given to alternative fee arrangements for regular or bulk searchers, particularly as it would be expected that register searches will begin to be incorporated in wider business information propositions from third-party providers.”

Finally, Addleshaw Goddard LLP, in addition to proposing that a fee should not be chargeable if a search returned no results, also proposed that as “ROA and RSP searches are likely to become routine in finance transactions so it should be clear from how the information is presented that new entries have been added since any previous searches.”

Q6:  Do you agree with the below proposals for Extract fees?

• Extract of an entry, or part of an entry, in the RoA or RSP Record - £35
• Extract of an entry, or part of an entry, or of a document, or part of a document, from the RoA or RSP Archive Record - £35.

Yes: 10 |  No: 4

Once more, there was very strong support for this proposal, with over 70% of respondents in agreement, with Shepherd and Wedderburn LLP and Professor Andrew Steven both agreeing that the proposals were “reasonable”.

Of those in opposition, an anonymous respondent commented that “As these things are digital this is pure profiteering.”

Morton Fraser MacRoberts LLP were also opposed, commenting that the proposed fee was “far too high. The fee should be no more than £10 in each case.”

CMS Cameron McKenna Nabarro Olswang LLP took a different view in opposition, commenting:

“Security documents are already freely available at Companies House and so in our view the cost of downloading a plain copy of any document disclosed in a search should be included in the search fee.”

For clarification, as explained above, plain copies of any document disclosed in a search will be able to be downloaded at no additional cost to the search fee.

Q7: Do you agree with the below proposals for plain copy fees?

• Plain copy of an entry, or part of an entry, in the RoA or RSP Record - £25.

• Plain copy of an entry, or part of an entry, or of a document, or part of a document, from the RoA or RSP Archive Record - £25.

• Plain copy of a document issued at date of application for registration - £20.

Yes: 2 | No: 12

A resounding majority – 85% - of respondents were against the plain copy fee proposals.

Respondents were clear, however, that their opposition to the proposal was on the basis that plain copies should be downloadable for free, as part of the standard search process, once a search fee has been paid.

Respondents were united in their views:

Millar & Bryce Ltd, for instance, disagreed, commenting:

“When accessing register for the initial fee (proposed £3), we should be able to download any information to save as evidence of our findings without incurring further fees.”

Shepherd and Wedderburn LLP agreed, commenting:

“plain copies should in our view be much more cheaply available. Security documents are already freely available at Companies House and so in our view the cost of downloading a plain copy of any document disclosed in a search should be included in the search fee.”

Burness Paull LLP echoed this, commenting:

“we believe that copies of entries and documents registered in a particular ROA or RSP record or in a particular ROA or RSP Archive Record should be available to view and download on payment of the £3 search fee proposed at question 5 above.”

And UK Finance, in similar terms, commented:

“Plain copies, in particular should be much more cheaply available. As noted above, security documents are already freely available at Companies House and so the cost of downloading a plain copy of any document disclosed in a search should be included in the search fee to encourage usage.”

For clarity, and as explained above, a plain copy fee would not be chargeable when downloading records/documents from search results for the two new registers. Unlike the Keeper’s other searchable registers – where searching does not include free access to plain copies of records/documents – searching the RoA and RSP will include access to registered records/documents for free once the search fee has been paid. Consequently, there will be no need for a searcher to pay a plain copy fee whilst searching the RoA or RSP.

For both registers, a plain copy fee would, however, be charged for someone who ordered a copy of a record entry, or part of a record entry, or an archive entry, or part of an archive entry, out with the search process e.g. direct from RoS Customer Services. The proposal relating to a £20 fee being chargeable where a copy of the document submitted for registration is requested at the same time as submitting that document for registration will not be pursued due to lack of customer requirement.

Q8: Do you agree with the below proposal for a register inspection fee?

• Request for inspection of one entry (including response) in either the RoA or RSP Record - £30.

Yes: 6 | No: 8

Although there was strong opposition to this proposal, with almost 60% of respondents being opposed, it is clear from responses received that there was general confusion amongst respondents as to what a “register inspection fee” would involve.

Morton Fraser MacRoberts LLP, for instance, commented that the proposal was “ludicrously high” and asked “In what respect is inspecting the Register different from searching the Register?”

Shepherd and Wedderburn LLP shared the confusion, commenting that they were “unclear what a Register inspection would permit and provide that ordinary searching would not.”

Similarly, The Law Society of Scotland commented “we do not agree with a fee of £30 being charged to inspect or download multiple registered documents by single assignor or pledgor in view of this being a free service that Companies House provide when inspecting their register.”

Brodies LLP agreed with The Law Society of Scotland, commenting that they disagreed because “Companies House provide this service for free. See our responses to Questions 5 and 7. A download of the registered instruments should be included within the search fee.”

For clarification,the register inspection service is a long-standing service that the Keeper provides for all of her registers other than the Land Register and Sasine Register. Regulations applying to the operation of this service are contained in Regulation 4 of the Registers of Scotland (Information and Access) Order 2014. The fee for this service is currently provided for in Part 7 of Schedule 1 to The Registers of Scotland (Fees) Order 2014.

This inspection service operates out with ScotLIS and involves a customer engaging either in person with the Keeper’s Customer Services Centre, in writing via letter or email or by submission of an online form to request an inspection of the register rather searching directly via the ScotLIS route. This inspection service involves a manual search being undertaken by RoS staff on behalf of the applicant and the search result being provided to the applicant, with an enhanced fee being chargeable accordingly.

Consequently, the inspection service would operate independently to the online searching service that will be provided by the Keeper for the RoA/RSP.

Q9: Do you agree with the below proposal that RoS should have the ability to vary statutory fees by an amount not exceeding £10 in such circumstances as described?

• It is proposed that the Keeper should have the power to vary Register of Assignation (RoA) and Register of Statutory Pledges (RSP) fees between Fees Orders, up to a maximum of £10, with such limitations and conditions as Scottish Ministers may impose, all is specified by Fees Order’.

Yes: 8 |  No: 6

A narrow majority of respondents supported this proposal, with most respondents caveating their response to some degree. There was also a concern amongst respondents, both for and against, that the proposal might not go far enough as regards the maximum amount that the Keeper might be able to vary fees by.

Burness Paull LLP, for instance, agreed with the proposal but commented that:

“it is difficult to accurately project volumes of registrations for the new registers, particularly for the RSP as it relates to a completely new security right. We therefore have no issue with RoS having the ability to vary fees by an amount not exceeding £10. Given the uncertainty here, we would be relaxed about fees being varied by a higher maximum amount (perhaps £20) provided that the initial fees introduced by RoS are in line with the fee level that we have suggested in our answer to question 1 above.”

Shepherd and Wedderburn LLP, who disagreed with the proposal, commented:

“in our view, the two new Registers are very different to any of the more recent new Registers that ROS have established, and the risks of discrepancy in costs and related revenues is consequently much higher. It may therefore be prudent to set the variation amount higher than £10, for example at £30.”

And UK Finance, also disagreeing, commented:

“Clearly our response to this question will largely depend on the final fee levels set and our over-arching comment remains that fee levels should be set at (and, if necessary, varied to) levels that will incentivise usage. It may be considered appropriate to retain an ability to vary the fee levels down by more than £10 if initial usage indicates this is necessary.”

Several dissenting respondents, however, considered that any potential increase in registration fees would adversely affect the operation of the two new registers and so were against the proposal.

The Law Society of Scotland, for instance, commented that:

“we consider that any upward variation in fees would materially detriment the utilisation of the registers and so should only be undertaken in the most extreme of circumstances.”

Finally, one respondent, Morton Fraser MacRoberts LLP, although disagreeing with the proposal on the basis that certainty was required in fee levels, also offered up an alternative option for achieving fee increases out with Fee Orders, proposing that fees should only be reviewed periodically but with “any increases approved on a costs needs basis with some linking to inflation indexes.”

Other comments

The majority of additional comments provided by respondents appeared in the “Consultation Responses - Key Message” part of this Report. Further additional comments were received from:

Steve Macfarlane: “All very clear, easy to understand, consistent and practical. An exemplar of sense in government.”

Andrew Steven: “As mentioned above, I would be happy to meet the implementation team if that would be helpful.”

The Law Society of Scotland: “We welcome Registers of Scotland’s consultation process, both on the development of the two new Registers and the proposed fees that will be charged to use each of these. We are also grateful that the various stakeholders who will be affected by the introduction of the RoA and RSP have been included throughout and draw attention to the importance and benefits of undertaking a robust consultation process to capture the views of all interested parties.”