Chamber
Plenary, 16 Mar 2006
16 Mar 2006 · S2 · Plenary
Item of business
European Commission Green Papers (Divorce and Succession and Wills)
I welcome today's debate. I do so not because I believe that there is anything contentious in the motion or that there is likely to be disagreement on the Justice 1 Committee's findings, but simply because, having visited Brussels with the Justice 1 Committee and having talked to EU officials on a number of occasions, one thing has become abundantly clear: the Scottish Parliament has to be at the very beginning of the decision-making process at EU level. Members of the Scottish Parliament need to become involved in the process as soon as a proposal comes forward in Brussels, which is often the first time an item appears on an agenda. I say with some confidence that that is what the Justice 1 Committee did in this case. If we fail to do that, the consequences could be far-reaching. Certainly, a watching brief needs to be kept on the seemingly endless number of proposals that emanate from Brussels. At first, they seem to be for the mutual recognition of judicial decisions, but they go on to become proposals for creeping harmonisation.
The two green papers that are before us contain proposals to harmonise the laws that apply to divorce and succession and wills. Having taken evidence from the Law Society of Scotland, stakeholders and academics, the Justice 1 Committee was unanimous in its rejection of the terms of the green papers. We rejected the Commission's assertion that there is a demand or need to harmonise the applicable law in those areas. The Commission failed to provide statistical evidence to back up its assertion.
We believe that existing Scots law is working very well in applying the principle of lex fori, which is that our law is equivalent to the law of other jurisdictions. Harmonisation of the conflict-of-law rules could lead to a number of different possibilities. First, it could lead to other principles being introduced into our courts, the adverse consequence of which would be uncertainty about the law that is to be applied. At the moment, there is no such uncertainty. It could also lead to additional complexity which, in turn, would add to delays and increase costs. Harmonisation would almost certainly move international divorce hearings from the sheriff court to the Court of Session. If that were to happen, it would be contrary to both Scottish and EU efforts to provide wider access to justice.
The committee had similar reservations about the provisions in the green paper on succession and wills. Under Scots law, the courts apply the law of the deceased's ultimate domicile for moveable property, and the lex situs principle for immoveable property. All the witnesses told us that our present system works extremely well. As Kenny MacAskill said, this area of the law is a growth area, given that Scots and other EU citizens are now buying property abroad and living abroad. However, the rules that we have put in place and the principles that we have adopted are working well. In those circumstances, there is no need for change.
The green paper proposes a compulsory registration of wills to replace the informal registration that Scots law uses at present, which is not only cost effective but encourages people to make a will. I believe that the proposal would have the opposite effect to that which the Commission envisages: it would create a disincentive to people to make a will and would create a situation in which an informal but valid will could be struck down in favour of a registered will that had been made earlier, even though the registered will did not reflect the wishes of the deceased.
For all the reasons that I have given, the current system is more than adequate, so acceptance of the green papers would be a retrograde step. The Justice 1 Committee nicely summed up the situation when it said in its response to the green papers:
"The Committee is opposed in principle to the development of any further Community instruments in the area of family law. The Committee considers that the Commission has so far failed to provide any compelling evidence of significant need or demand from EU citizens for Community action in this area."
I am more than happy to support the motion.
The two green papers that are before us contain proposals to harmonise the laws that apply to divorce and succession and wills. Having taken evidence from the Law Society of Scotland, stakeholders and academics, the Justice 1 Committee was unanimous in its rejection of the terms of the green papers. We rejected the Commission's assertion that there is a demand or need to harmonise the applicable law in those areas. The Commission failed to provide statistical evidence to back up its assertion.
We believe that existing Scots law is working very well in applying the principle of lex fori, which is that our law is equivalent to the law of other jurisdictions. Harmonisation of the conflict-of-law rules could lead to a number of different possibilities. First, it could lead to other principles being introduced into our courts, the adverse consequence of which would be uncertainty about the law that is to be applied. At the moment, there is no such uncertainty. It could also lead to additional complexity which, in turn, would add to delays and increase costs. Harmonisation would almost certainly move international divorce hearings from the sheriff court to the Court of Session. If that were to happen, it would be contrary to both Scottish and EU efforts to provide wider access to justice.
The committee had similar reservations about the provisions in the green paper on succession and wills. Under Scots law, the courts apply the law of the deceased's ultimate domicile for moveable property, and the lex situs principle for immoveable property. All the witnesses told us that our present system works extremely well. As Kenny MacAskill said, this area of the law is a growth area, given that Scots and other EU citizens are now buying property abroad and living abroad. However, the rules that we have put in place and the principles that we have adopted are working well. In those circumstances, there is no need for change.
The green paper proposes a compulsory registration of wills to replace the informal registration that Scots law uses at present, which is not only cost effective but encourages people to make a will. I believe that the proposal would have the opposite effect to that which the Commission envisages: it would create a disincentive to people to make a will and would create a situation in which an informal but valid will could be struck down in favour of a registered will that had been made earlier, even though the registered will did not reflect the wishes of the deceased.
For all the reasons that I have given, the current system is more than adequate, so acceptance of the green papers would be a retrograde step. The Justice 1 Committee nicely summed up the situation when it said in its response to the green papers:
"The Committee is opposed in principle to the development of any further Community instruments in the area of family law. The Committee considers that the Commission has so far failed to provide any compelling evidence of significant need or demand from EU citizens for Community action in this area."
I am more than happy to support the motion.
In the same item of business
The Presiding Officer (Mr George Reid):
NPA
The next item of business is a debate on motion S2M-4088, in the name of Pauline McNeill, on behalf of the Justice 1 Committee, on European Commission green ...
Pauline McNeill (Glasgow Kelvin) (Lab):
Lab
I am grateful to the Parliamentary Bureau for allowing the Justice 1 Committee this slot to discuss our report on what we regard as very important European i...
Mr Kenny MacAskill (Lothians) (SNP):
SNP
I fully support the position that Ms McNeill and the Justice 1 Committee have taken. I see that Mr Gallie is present, so I put on record that although I cond...
Jeremy Purvis (Tweeddale, Ettrick and Lauderdale) (LD):
LD
I have a great deal of sympathy with what Kenny MacAskill says, but if the Scottish National Party is against common European policies on fisheries, on some ...
Mr MacAskill:
SNP
Absolutely. I have written and spoken about that subject, so I think that Mr Purvis's intervention is an irrelevancy. He may have been attempting to make a p...
Margaret Mitchell (Central Scotland) (Con):
Con
I welcome today's debate. I do so not because I believe that there is anything contentious in the motion or that there is likely to be disagreement on the Ju...
Mike Pringle (Edinburgh South) (LD):
LD
Members of the Justice 1 Committee must do all that we can to protect and enhance our legal system in Scotland. There is no doubt that the European Commissio...
Mrs Mary Mulligan (Linlithgow) (Lab):
Lab
It is important that Parliament's committees discuss, take a view on and influence the European Commission's decisions. Like Kenny MacAskill, I am a strong s...
Jeremy Purvis:
LD
I was not involved in the committee's consideration, but does the member agree that, in an international divorce, there may be assets and bank accounts in di...
Mrs Mulligan:
Lab
Such situations may arise, but the important point is that, at present, people know which law will be used to deal with them.On succession and wills, Scotlan...
Jeremy Purvis (Tweeddale, Ettrick and Lauderdale) (LD):
LD
The Commission's green paper outlines what it considers to be shortcomings in the current situation in the European Union. On divorce, there should be some s...
Pauline McNeill:
Lab
Does the member agree that there have always been complex situations? We have dealt with private international law for a long time, using the Hague conventio...
Jeremy Purvis:
LD
Ultimately, I agree. We do not hear the S-word much, but subsidiarity should be the basis of legislation in Scotland, the UK and the EU, so that legislators ...
Bill Aitken (Glasgow) (Con):
Con
Unless the world turns upside down at the conclusion of the debate, common sense will prevail. It was not always thus. The Minister for Justice has heard me ...
The Minister for Justice (Cathy Jamieson):
Lab
I have no interests to declare, as I do not have a holiday home in Tuscany, Benidorm or anywhere else. I am, of course, domiciled in the central part of Euro...
Stewart Stevenson (Banff and Buchan) (SNP):
SNP
The Justice 1 Committee brought this matter to the attention of the Parliament, because green papers have a habit of changing colour. There is little doubt t...