Beneficial Interest and the Land Registration Act of 1979

Abstract

The Land Reform (Scotland) Act 2016 provides for the creation of a public register of controlling interests in the owners and tenants of land. The idea, it turns out, is not a new one. Forty years ago the UK Government came close to introducing a legislative provision which sought to achieve much the same ends. The existence of clause 4 of the Land Registration (Scotland) Bill of 1978 has hitherto been unknown. On the basis of a study of the relevant Government files, this paper considers why the clause was thought to be necessary and why it was discarded just before the Bill entered the public domain. Clause 4 was a response to a growing demand for information as to the ownership of land in Scotland. In a path-breaking book, Who Owns Scotland?, published in 1977, John McEwen attempted to list the owners of all estates of over 1,000 acres. On McEwen’s figures, around half of Scotland was owned by 546 individuals or companies. Far from satisfying public curiosity, McEwen’s book only served to increase it. As it happened, the then Labour Government was preparing a Bill for a new map-based system of land registration. The new register would show who owned the land. The purpose of clause 4 was to show who owned the owners of the land by requiring any company or trust seeking to register a title to disclose who held the ‘beneficial interest’ in the company or trust. Clause 4 was championed by the Ministers in the Scottish Office but resisted by civil servants. Having overcome that resistance, the Secretary of State for Scotland, Bruce Millan, was unexpectedly defeated by the refusal of the Lord Chancellor, Lord Elwyn Jones, to allow to be introduced for Scotland a provision which he considered unsuitable for England and Wales.