Equality Impact Assessment Record
Title of policy/ practice/ strategy/ legislation etc.
The Draft Land Reform (Scotland) Act 2016 (Register of Persons Holding a Controlled Interest in Land) (Scotland) Regulations 2021
Robin Cornwall, Land Reform Policy and Legislation
Officials involved in the EQIA
Name: Anna Leslie
Team: Land Reform Policy and Legislation
Directorate: Division: Team
Sustainable Land Use and Rural Policy: Land Use and Land Reform: Land Reform Policy and Legislation Team
Is this new policy or revision to an existing policy?
Secondary Legislation (Scottish Statutory Instrument), provided for in the Land Reform (Scotland) Act 2016
A full Equalities Impact Assessment ("EQIA") was carried out to assess the impact of the proposed Land Reform (Scotland) Act 2016 (Register of Persons Holding a Controlled Interest in Land) (Scotland) Regulations 2021 on protected characteristics. This is a five stage process, beginning with a framing workshop to identify potential impacts on protected characteristics and going on to assess available evidence and any positive or negative impact on these characteristics, before explaining steps taken to mitigate negative outcomes.
The policy is aimed at increasing transparency of who has control over decision-making in relation to land. This will help enable communities and individuals to identify who they should engage with over decisions about land where that person cannot be identified already. It will also aid policy making by allowing a fuller picture of those individuals who have control over decisions about land in Scotland.
The regulations' purpose is to establish a new register, the Register of Persons Holding a Controlled Interest in Land, to make publicly available information about those who have a controlling interest in land, i.e. those who ultimately make decisions about the management or use of land, even if they are not necessarily recorded as the owner of the land. The new register will be held by Registers of Scotland and the public will be free to search and access the information online, enabling communities and individuals to benefit from the regulations and support the transparency aims of the policy.
The policy seeks to address two main situations: where land is owned or leased by an opaque entity (such as an overseas company) or where land is owned or leased subject to an opaque arrangement (such as a trust). In these cases the regulations will require the legal owner or tenant of the land to provide information about their controlling interests.
The policy contributes to the national outcomes for communities, environment and economy. In creating greater transparency of who controls land in Scotland and making that information accessible, it will empower communities. It will improve their ability to engage with decisions about land and how it is used, by enabling communities and individuals to ascertain who has the power to make decisions about an area of land and engage with that person or group of people to communicate their ideas and concerns and potentially draw greater benefit from those spaces. Greater transparency also supports an inclusive economy as transparency enables groups to engage with one another, supporting the development of spaces that take account of the community's needs.
Who will it affect?
The register will contain information about those who own or tenant the land (a 'recorded person') when their land is subject to the control or influence of land (an 'associate'). For this policy, only tenants who hold a long lease of 20 years or more are considered to have significant influence or control and so captured by the register.
The register will disclose information about associates who control recorded persons through the following:
- a contractual or other arrangement with a person to give that person influence or control over significant decisions in relation to the land,
- a partnership, including any Scottish partnership where at least one partner is an individual,
- a trust,
- an unincorporated association, and
- an overseas legal entity.
Where an individual owns or tenants land under a long lease, but is not subject to a controlling interest i.e. does not have an associate, they will not be required to register. Where a recorded person owns or tenants land under one of the mechanisms above and is subject to a controlling interest, they will be required to register.
There will be an entry for each recorded person. Each entry for a recorded person will then detail who is in a position to influence or control them in one or more of the capacities listed above. All known associates are required to be recorded in the register. Duties will be placed on recorded persons and associates to provide information for the register.
The register will enable members of the public to engage with the respective parties by accessing the register which will contain parties' contact details. It will be a criminal offence not to comply with duties set out in the regulations, punishable by a fine of up to £5,000.
Consequently, this policy impacts individuals through the requirements for them to register and their need to access the information held by the register. Where a controlling interest exists, there will be an entry for each recorded person. Each public entry for a recorded person or an associate will include the following personal data:
- Contact Address
This address does not need to be a personal address; for example, individuals could provide a business address or their solicitor's address instead. The policy objective is that the person(s) who control decisions about the land should be contactable.
The date of birth of associates will be also collected to aid differentiation between individuals, but will not be made public. Each associate will be allocated a unique reference number. Subsequently the register does not directly capture any protected characteristics except age, and this information will not be publicly available.
Sixteen and seventeen year olds will be in scope of the register if they own or tenant land, or have a controlling interest in a trust, but they will have the same access and rights to apply for a security declaration (see below) as an adult. Consequently they are not expected to be negatively impacted by a requirement to register.
Although the register impacts on individuals by virtue of their controlling interest in land, this interest may arise due to them belonging to specific types of land owning organisations which represent those with protected characteristics, for example, religious bodies. Through stakeholder engagement we have identified that belief can affect decisions on the structure of some land owning organisations, which determines who is deemed to have a controlling interest. For example, the structure of some religious organisations may require them to register a high number of people per property as decisions about their land are taken by multiple peoples within the organisation. Some such structures are historic and the introduction of the register may have a significant impact on them due to the number of properties they own and the number of people they have to register. Consequently the protected characteristic of religion and belief is indirectly impacted by the regulations.
Banks, building societies and other providers of mortgages and similar financial products are out of scope of the register, including mortgages designed to be compliant with religious beliefs. However some financial agreements designed to comply with religious beliefs can create an arrangement whereby the creditor has significant influence and control over the recorded person. Such an arrangement could potentially be such as to be within scope of the register and if so would represent another way in which the protected characteristic of religion and belief is indirectly impacted by the regulations. These structures are not thought to be common, and whether or not any particular one was in scope would depend on the specific formulation of each structure and need to be determined on a case by case basis.
We have not found any other evidence to show that any other protected characteristics determine organisational structure, or that protected characteristics impact organisations in any other way that would affect what is captured by the register.
The register will be built following the Digital First programme which ensures accessibility issues are addressed during development in order to avoid any negative impact on those with the protected characteristic of disability.
What might prevent the desired outcomes being achieved?
The aim of the policy is to increase public transparency in relation to individuals who have control over decision-making in relation to land. Schedule 2 provides exemptions from the requirement to register associates only for those already subject to other transparency regimes: requiring them to double report would not contribute to the aim of transparency in land ownership.
Exemption of further bodies and groups that own or tenant land on a long-term basis but are not already reporting would negatively impact this aim, as the names and contact details of those with controlling interests would not be available elsewhere.
If an individual's ability to access information is restricted due to the accessibility of the register, then the transparency aim is also negatively impacted.
Individuals failing to register information also hampers transparency, however this risk is mitigated by the proposed criminal offences for not providing information to the register.
The security declaration will only be applied when appropriate evidence from the Companies House-held register of Persons with Significant Control suggests that security declarations are rarely applied for, and so are expected to have a negligible impact on the overall transparency outcome of the register.