Digital Assets (Scotland) Bill: final business and regulatory impact assessment

Section 1: Background, aims and options

Background to policy issue

The Bill delivers the Programme for Government 25-26 commitment to ‘clarify the status of digital assets as property in Scots private law, to provide greater legal certainty for individuals and for businesses including those investing in digital assets, for technology and financial start-ups, as well as for the legal sector’. Other developments across the UK are:

• The Property (Digital Assets etc.) Bill in England and Wales, which aims to address similar issues but through the modernisation of English and Welsh law, with its territorial extent covering Northern Ireland, England and Wales.
• The Moveable Transactions (Scotland) Act 2023 references corporeal moveable property in the context of creating certain security rights, but this does not resolve the legal uncertainty around digital assets in Scots private law.

Scots law does not currently provide sufficient legal clarity for digital assets. The Bill will address this by setting out which types of digital assets will be recognised under Scots law. Unlike England, which is developing a body of case law in this area, Scotland currently has no judicial precedent: relying on the courts to provide swift resolution through case law would be unsuitable due to the length of time required to build up a body of case law, making legislation the optimal route for Scotland.

Purpose/ aim of action and desired effect

The Bill will provide a legal framework which recognises digital assets as objects of property under Scots private law. It will make provision on the acquisition of ownership, aiming to help businesses and individuals to transact with greater confidence.

The Bill is included in the 2025-26 Programme for Government’s Year 5 legislative programme. The Bill can help maintain Scotland’s reputation as an attractive place to do business, support the growth of its FinTech cluster, and enhance its ability to attract global investment.

Options (considered so far/ still open)

Option 1: Do nothing. To do nothing would mean waiting for matters of property law to be determined by the Scottish courts. This could lead to additional time and resources being spent by Scottish courts and litigants. Given the relatively small size of the jurisdiction, it is not possible to predict if or when a suitable case or cases may come before the Scottish courts.

Until such time as case law is developed, there would continue to be a lack of legal certainty.

Option 2: Introduce primary legislation. The Bill is an expedient way to provide legal certainty through foundational legislation that will help facilitate Scots private law to accommodate modern business practices. It would help reduce the time and resources spent by Scottish courts and litigants by clearly establishing the legal status of digital assets in Scotland.

Primary legislation may also reduce l legal uncertainty and provide a more attractive operating environment for businesses dealing with digital assets. It may also remove uncertainties which could stand in the way of investment.

We anticipate that primary legislation would have a broadly positive impact on Scotland’s economy. Within our public consultation, 85% of respondents agreed that primary legislation is the most effective way to resolve uncertainty about the status of digital assets in Scots private law.

Sectors/ Groups affected

The Bill is expected to impact some sectors of the Scottish economy, with financial services and FinTech sectors most immediately affected, including investment firms, exchanges and payment platforms which currently use digital assets as part of their offerings and wish to govern their assets under Scots private law. Scotland has an established financial services industry and a strong FinTech cluster, particularly concentrated in Edinburgh and Glasgow.

The Bill will also impact the legal sector when required to advise clients on the ownership and transfer of digital assets. Smaller businesses exploring digital assets as part of their business models may also be impacted.

Beyond these sectors, the Bill will also have implications for consumers and investors: Individuals who hold or transact with digital assets for payments and investment are likely to benefit from greater legal certainty. Scottish courts will interpret and apply the statutory framework.