Improving transparency in land ownership in Scotland: consultation analysis

5. Workstream 2: Practical Aspects - Where the information should be held and what information should be disclosed

The Land Reform (Scotland) Act 2016 provides that the information is to be published in a public register maintained by the Keeper. The main options are to publish the information as part of the existing Land Register or to hold the information as a free-standing public register.

Question 11: In your opinion, should a new register of persons with controlling interests in land owners and tenants be created? Yes/No

5.1 36 respondents answered this question with a majority of 22 considering that a new register of persons with controlling interests should be created. Table 5.1 shows views by category of respondent. Individual respondents were generally in favour of creating a new register; organisations were more mixed in view.

Table 5.1: Views on whether a new register of persons with controlling interests should be created

	Number of respondents providing view:		Total
Category of respondent	Yes	No
Private sector and professional bodies	4	4	8
National non-governmental organisations/public sector	1	2	3
Stakeholder representative groups	2	2	4
Local government	1	0	1
Individuals	14	6	20
Grand total of individuals and organisations	22	14	36

Question 12: What would the advantages be?

5.2 Responses to this question revealed that there was some confusion over whether this question referred in general to the advantages of registering people with controlling interests in land owners and tenants, or the specific issue of whether a new register should be created for this purpose.

5.3 14 respondents provided arguments in favour of creating a free-standing public register. Most common was the view that a bespoke register would be easier to access and navigate than would be the case if it was part of the existing Land Register.

5.4 Other advantages were identified as:

• A new register can be tailored for purpose;
• Adding to the Land Register could clutter it and could result in delays in routine conveyancing transactions;
• Operating the new regulations should not be paid from Land Register fees and two separate registers will keep funding streams apart; and
• The Keeper is under statutory duty to ensure the Land Register is accurate. However, there is a risk that it would be constantly inaccurate if it had to contain information on persons with controlling interest.

Question 13: What would the disadvantages be?

5.5 21 respondents identified disadvantages to creating a new register. The most commonly identified drawback was that setting up a new register would result in fragmented information with multiple searches required across registers to find out about ownership and controlling interests in land:

"An additional portal of information will add an unnecessary further step to investigations into who owns and controls land." (Brodies LLP)

5.6 Another potential disadvantage identified repeatedly was that the establishment of a free-standing public register would incur disproportionate costs at a time when public resources are stretched and the focus should be on driving forward the ScotLIS project.

5.7 Several respondents considered that having to provide details to two different registers would increase the burden of registration, result in duplication of effort and introduce unnecessary red-tape.

5.8 One stakeholder representative body suggested linking both registers so one could be accessed directly via the other, with shared reference numbers and updates applying automatically across both.

Information to be disclosed

The Scottish Government intends that the name of any person having a controlling interest in a land owner or tenant should be disclosed. However, disclosure of the name of a person alone may not be sufficient to enable a community body or other interested party to identify "a person with a controlling interest in a land owner or tenant". More personal information may be required including a person's postal address, service address, email address or contact telephone number. This raises issues of data protection, proportionality and keeping details up-to-date. There may also be commercial sensitivities relating to this information.

Question 14: In your view, in addition to the names of "persons with controlling interests in land owners and tenants" should other information about them be disclosed? Yes/No.

5.9 36 respondents answered this question with a majority of 32 considering that in addition to the names of "persons with controlling interests in land owners and tenants", other information about them should also be disclosed. Table 5.2 overleaf shows views by category of respondent.

Table 5.2: Views on whether other information, in addition to names, should be disclosed of "persons with controlling interests in land owners and tenants"

	Number of respondents providing view:		Total
Category of respondent	Yes	No
Private sector and professional bodies	4	2	6
National non-governmental organisations/public sector	2	1	3
Stakeholder representative groups	4	0	4
Local government	0	0	0
Individuals	22	1	23
Grand total of individuals and organisations	32	4	36

Question 15: If yes, how would disclosure of that information fulfil the regulations' aim(s)?

5.9 30 respondents answered this question. The overarching view was that information to be disclosed should be sufficient to enable communication between communities and those with controlling interests in land owners and tenants to commence:

"There should be sufficient detailed information given to facilitate communication and engagement with these persons." (Bute Land Reform Group)

5.10 The most important information for this purpose was identified as:

• Name
• Business/service address

5.11 Concerns over data protection and misuse of information were expressed if other details such as personal addresses, email and phone numbers were made publicly available. It was suggested that these details should be registered, but made available only on request, in a formal application and with valid reaons for requiring these.

5.12 Restricting the amount of information to be disclosed to only that which is strictly necessary for the purposes of fulfilling the aims of the regulations was seen as avoiding unnecessary burden.

Question 16: If no, why not?

5.13 Very few comments were provided in response to this question. The main view was that information should not automatially be disclosed publicly if it is not required for communities to make contact with those with controlling interests in land owners and tenants.

Question 17: In your view, should information about the nature and extent of a person's "controlling interest" be disclosed? Yes/No.

5.14 36 respondents answered this question, with a majority of 29 of the view that the nature and extent of a person's "controlling interest" should be disclosed. Table 5.3 shows views by category of respondent.

Table 5.3: Views on whether the nature and extent of a person's "controlling interest" should be disclosed

	Number of respondents providing view:		Total
Category of respondent	Yes	No
Private sector and professional bodies	2	4	6
National non-governmental organisations/public sector	3	0	3
Stakeholder representative groups	2	1	3
Local government	0	0	0
Individuals	22	2	24
Grand total of individuals and organisations	29	7	36

Question 18: In your view, should information about the nature and extent of a person's "controlling interest" be disclosed on a public register? Yes/No. Please give details.

5.15 35 respondents answered this question, with a majority of 27 agreeing that information about the nature and extent of a person's "controlling interest" should be disclosed on a public register. All of the private sector respondents who replied did not think that such information should be disclosed on a public register, although two of them considered this information should be disclosed (see question 17 above). Table 5.4 shows views by category of respondent.

Table 5.4: Views on whether the nature and extent of a person's "controlling interest" should be disclosed on a public register

	Number of respondents providing view:		Total
Category of respondent	Yes	No
Private sector and professional bodies	0	6	6
National non-governmental organisations/public sector	3	0	3
Stakeholder representative groups	3	1	4
Local government	0	0	0
Individuals	21	1	22
Grand total of individuals and organisations	27	8	35

5.16 The advantages of disclosing this information on a public register were seen largely as:

• Facilitating transparency;
• Illuminating who owns what and how land is managed; and
• Enabling more informed communication between communities and those with "controlling interests".

5.17 A few respondents stated their view that there appeared to be no good reason to withhold such information from a public register.

5.18 Amongst those disagreeing with making this information publicly available on a register were respondents who suggested that this could create data protection issues and potential misuse of information. Whilst there was general agreement that this information should be retained, they did not agree that it should be available for public view without valid reason.

Question 19: If yes, how would this information fulfil the purpose of the regulations' aim(s)?

5.19 24 respondents answered this question although several simply referred to their response to the previous question. The most common response amongst the others was that public disclosure of this information would aid transparency on who owns and/or has controlling interest over land in Scotland.

5.20 A few respondents stated that the information would enable communities to make contact with those with "controlling interest". One stakeholder representative group suggested that the information would contribute to the evidence-base for future policy.

Question 20: If no, why not? Please give details.

5.21 Five respondents (four private sector and professional respondents and one stakeholder representative group) answered this question. All considered that information on the nature and extent of a person's "controlling interest" is not necessary to meet the aim(s) of the regulations. A few suggested that public disclosure of such information may raise issues of commercial confidentiality and may deter inward investment. One respondent envisaged difficulties establishing this information in cases of complex ownership structures.

Question 21: Thinking about the information which in your view should be disclosed, are you aware of any potential sensitivities relating to this? Yes/No. Please give details.

5.22 34 respondents answered this question, with a majority of 23 stating that they are aware of potential sensitivities relating to information to be disclosed. All of the six private sector and professional bodies who provided a response to the question expressed their awareness of potential sensitivites. Table 5.5 overleaf shows views by category of respondent.

Table 5.5: Views on whether there are potential sensitivities relating to the information which should be disclosed

	Number of respondents providing view:		Total
Category of respondent	Yes	No
Private sector and professional bodies	6	0	6
National non-governmental organisations/public sector	2	1	3
Stakeholder representative groups	3	1	4
Local government	0	0	0
Individuals	12	9	21
Grand total of individuals and organisations	23	11	34

5.23 Two key themes emerged from the supporting details provided by respondents. Firstly, there was a broad acknowledgement that some of those with "controlling interests" may not wish to disclose various details, but that disclosure was in the public interest and a small price to pay for transparency over land ownership and "controlling interests". Secondly, several respondents considered that sensitivities could be addressed largely by taking care to request and disclose only information required for the purposes of the regulations:

"The more information which is sought and the more tenuous that information is to the purpose of the regulations, the risk of sensitivities obviously increases and also arguably diminishes the transparency of the information provision through an overload of and potentially irrelevant and extraneous additional detail." (Scottish Land and Estates)

5.24 Several respondents, from different categories, identified particular cases where sensitivities may be heightened:

• People in witness protection schemes;
• People at risk of violence and intimidation;
• People who have physical or mental health problems where this could be revealed in information about legal capacity;
• Where there are commercial considerations; and
• Public figures who do not wish their personal residence details known.

5.25 A few respondents suggested that a mechanism be put in place whereby those with valid reasons for having their details withheld could have their request honoured. One respondent recommended following the model protection regime adopted by the PSC Register, "Protection will only be granted if your application contains evidence proving a serious risk of violence, intimidation or physical harm to the PSC or someone who lives with the PSC".

Question 22: If yes, in your view what are the advantages of keeping this information up-to-date?

5.26 28 respondents answered this question, with the most common response being that unless the information is kept up-to-date, the register will not be fit for purpose. In reality, a few respondents acknowledged that it would be rare for all details to be totally current, and suggestions were made for windows of 30 days,
6 months or one year, to be acceptable for changes in circumstances to be recorded. "Triggers" for updating details were put forward and included annual confirmation statements (such as those required for Companies House), and new registrations of land.

5.27 Other advantages identified in keeping the information up-to-date were:

• For efficient communication with those with "controlling interest";
• To minimise friction and conflict over use of land;
• To maintain transparency;
• To send a clear message that the register is to be taken seriously; and
• To facilitate policy-making and research.

Question 23: If no, why not? Please give details.

5.28 Only one significant comment of relevance was made in response to this question. A stakeholder representative body remarked that at present, information about persons with "controlling interest" in corporate bodies of various types is already disclosed in other registers.

Question 24: In your view, are there instances in which the information about the nature and extent of a person's "controlling interest" is commercially sensitive and should not be revealed? Yes/No.

5.29 35 respondents answered this question, with a majority of 24 considering that there are no instances in which information about the nature and extent of a person's "controlling interest" is commercially sensitive and should not be revealed. Of the five private sector and professional bodies who responded, all were of the view that there are potential commercial sensitivies which should not be revealed. Table 5.6 overleaf shows views by category of respondent.

Table 5.6: Views on whether there are potential commercial sensitivities relating to the information which should not be revealed

	Number of respondents providing view:		Total
Category of respondent	Yes	No
Private sector and professional bodies	5	0	5
National non-governmental organisations/public sector	0	3	3
Stakeholder representative groups	1	3	4
Local government	1	0	1
Individuals	4	18	22
Grand total of individuals and organisations	11	24	35

Question 25: If yes, please explain why you think that this information should not be revealed.

5.30 Seven respondents, from four respondent categories, provided responses to this question. Two considered that there should be a default position of privacy for all information bar that required to meet valid public interest over "who owns and manages what". Two respondents suggested that commercial sensitivies may be time-specific, with confidentiality required for a defined period, following which information could be made public.

5.31 A private company commented that third parties will need their privacy protected where information about their affairs may be revealed in complex "trust" arrangements. An individual respondent considered that there will always be rare situations in which commercial sensitivities should be prioritised and a blanket ruling over revealing all information would be inappropriate.

5.32 One private sector respondent commented that the PSC regulations have provisions to protect some information from being made public.

Question 26: If no, why not? Please give details.

5.33 23 respondents answered this question. The most common response was that commercial sensitivities should not stand in the way of legitimate public interest:

"Any commercial sensitivity must be outweighed by the statutory right of the Scottish public to know who owns and controls land in Scotland." (Individual)

5.34 Other reasons given in support of the view that there are no instances in which information about "controlling interest" should be withheld due to commercial sensitivies were:

• To be transparent, there can be no exceptions;
• Creating exceptions will provide loopholes to be exploited;
• No information is so sensitive that it should be hidden; and
• For those with "controlling interest" to be held to account, information must be revealed.