Hansard

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 Europe that is known as Ayrshire. I am married to a Scot and have not so far had any difficulties in that respect.

I thank the Justice 1 Committee and its convener for bringing this topic to the chamber for debate. It has been a welcome opportunity to discuss some concerns about the developing proposals on applicable law and jurisdiction in respect of divorce, succession and wills in an EU-wide and cross-border context. In her opening speech, Pauline McNeill referred to the glazed looks that she encountered when she tried to explain the proposals. I am glad that there have not been glazed looks in the chamber this afternoon, because Pauline McNeill, Kenny MacAskill, Mary Mulligan and, I have no doubt, other members have had examples explained to them that make it clear that this is no dull, technical debate but one that could have important implications for people in their daily lives, given the changes in the way in which people move around Europe.

I have listened with great interest to the points that have been made. Like all members present, I hope, the Executive attaches great importance to our role in the formation and implementation of all EU legislation that impacts on devolved areas. In consultation papers that affect broader aspects of family law in Scotland, we see examples of proposals that would impact on the lives of many people here. I hope that members such as Mary Mulligan and, in particular, Kenny MacAskill will agree that it is right and proper that the Executive and the Parliament should be at the heart of Europe and should play an active role in EU justice and home affairs issues in general. That is why I believe that it is important that my officials and I have established good communication links with EU institutions and that I take the opportunity, whenever possible, to attend justice and home affairs councils in Brussels as part of the wider UK delegation.

We are committed to the fundamental principles of protecting individual rights and making legal procedures in Scotland more efficient, to which Europe is central. That is why it is right that the Executive engages with, understands and examines the proposals on cross-border divorces and succession. However, we must do so in a way that upholds the principle of fairness and ensures increased speed and efficiency for both Scottish and other UK citizens' access to the European Community's diverse justice systems. As many members have argued, that is very much about ensuring that the provisions of Scots law are protected. As is the case in criminal law, there are strong arguments in favour of mutual recognition, rather than harmonisation at all costs. We have heard some examples of those arguments.

I will make a few brief points about the Executive's position on one or two aspects of the proposals that we have heard discussed. My officials worked closely with officials in Whitehall to ensure that the final UK Government response to the green paper fully accommodated the Scottish position on applicable law and jurisdiction in cross-border divorces. From the UK Government's submission, it was clear that anything less than the application of the law of the forum—the place where the case is heard—would not be desirable for UK jurisdictions. I agree absolutely with that position. There was a similarly clear message on the questions of jurisdiction that would provide rules on which member states' courts would have competence to hear the case.

Although there might be some limited use in revisiting existing jurisdictional rules, we are not persuaded that the EU's Brussels 2a regulations, which regulate cross-border divorces, should be unpicked in the absence of hard statistical evidence that the existing rules are unworkable. It is not often that Bill Aitken steals my lines, but I think that we heard him use the phrase, "If it ain't broke, don't fix it." That came across strongly from a number of responses to the consultation document.

It remains to be seen what the Commission will issue in the way of draft legislative proposals. It would seem—as we have indeed heard this afternoon—that the UK is not the only member state to prefer an applicable law regime in which the law of the forum is the law to be applied in cross-border cases. The importance that is attached to that principle was outlined by a number of other member states at an intergovernmental meeting that was held in Brussels earlier this week.

I very much welcome the constructive speeches that have been made today on influencing and informing our approach in Scotland in relation to what might emerge in future European proposals. We can influence the shape of proposals only if we are involved in the process; we cannot afford simply to be dismissive or excessively narrow minded in pursuing outmoded ideas of what some would see as Scotland's best interests. A debate such as this gives members an opportunity to express their views and concerns in a timely fashion.

There are no draft legislative proposals as yet from the Commission. I stress the fact that both the green papers to which the motion refers are simply consultation documents at the moment. Concrete proposals on applicable law and jurisdiction in divorce are expected to be issued at some point in the summer or in the early autumn. Proposals on succession and wills are likely to be issued later this year or early next year. Today's debate and the points that have been made during it will help us to respond as and when any firm proposals emerge.

A number of members pointed out how important it is to ensure that Scotland's interests and legal traditions are safeguarded in any proposals on applicable law and jurisdiction on divorce or on succession and wills. I restate my commitment to remain fully engaged with the work that the Department for Constitutional Affairs and its ministers are doing to ensure the best outcome for Scotland and for the United Kingdom in relation to any proposed instruments in this area. Executive officials will, of course, work very closely with their Whitehall counterparts ahead of any draft legislative proposals. The UK Government is refining some of its key points with academics and practitioners, and we have taken the opportunity to do the same in Scotland. We will continue to work with the DCA. We are in the final stages of co-ordinating a response, which will be submitted next month.

Pauline McNeill, Margaret Mitchell and Mike Pringle highlighted a number of reasons why it is important that we take a view on succession and wills in particular. I expect that the final response that will be submitted will include some issues around the practicalities of the creation of a European register of wills and a European certificate of inheritance, as well as address the protection of heirs in Scotland and the matter of legal and prior rights in succession. It might also deal with the question how to safeguard a lifetime gift, which, in Scots law, would not automatically be reincorporated into a testator's estate upon death.

We have an opportunity to influence the shape of future proposals. I am clear about our need to continue to work closely with our UK Government partners and with stakeholders. As soon as any concrete legislative proposals emerge, we must feed in the Scottish position to the overall UK member state position. That is very important to us. I emphasise the importance of recognising the fact that the green paper consultation is still at a very early stage. We will need to examine whatever is produced in the future.

We have heard a number of important speeches this afternoon, which will help us as we develop our further work. On the basis of the debate, I am pleased that the Justice 1 Committee and the Executive are operating according to the same principles. We will continue to press the case as it has been made today. We will seek to ensure that Scots law is protected and that we operate on the principles of mutual recognition, rather than on those of unnecessary and unhelpful harmonisation.