Hansard

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 issues.

I have received some glazed looks in the past few days when I tried to explain what the debate was to be about—it is quite hard to make applicable law and jurisdiction in divorce matters sound interesting. It might not be a priority for Parliament, but the decisions that are taken now and in the future in Europe will affect the daily lives of our constituents when they come to use this branch of civil law, and it will have implications for the Scottish legal system, which we know and, perhaps, love.

The green paper on applicable law and jurisdiction in divorce matters is essentially about private international law, which consists of rules that enable the court of any country to determine three main issues: jurisdiction or authority to hear and decide a case; applicable law, or the law that applies, which is also known as the conflict of laws; and recognition and enforcement, or the extent to which a judgment of a court in another country can be enforced. The green paper identifies problems that might arise for couples who wish to divorce and who are of different nationalities or who live in a member state of which they are not nationals.

The Commission considered that the jurisdiction rules that are contained in the new Brussels 2 regulation, which allow spouses to choose between several grounds of jurisdiction, can cause difficulties because the applicable law is determined by the national conflict-of-law rules, which differ considerably between member states. What does all that mean?

I will give some examples that might illustrate what I am getting at. A Portuguese man and an Italian woman marry. They live in Italy. The husband returns to Portugal for work reasons and, after two years, decides to divorce. The couple may apply for divorce in Italy or in Portugal. Under the Brussels 2 regulation, the following can happen: because the couple are different nationalities, the Italian courts would apply the law in the country where the marriage had been principally based, but the Portuguese court would apply the law of the spouses' habitual residence differently, and failing that, it would apply the law with which the couple had the closest connection. The argument is that couples find it hard to predict the law that will be applicable in their situation.

Another more alarming example was given to us by the Commission. A couple have been married for 23 years and they live in Malta. The husband goes off to Finland for the purposes of his job, meets someone else and decides to divorce his wife in Finland where the law does not require a prolonged period of separation. His wife, who still lives in Malta, does not know that he has started divorce proceedings.

Scotland currently applies the principle of lex fori; it sounds like a name-calling exercise, but it means "the law of the forum". It applies that principle to all divorces. Evidence received from lawyers and the judiciary in this country is that it works satisfactorily.

Witnesses who came before the Justice 1 Committee suggested that if harmonised conflict-of-law rules were introduced in all member states, at least two laws, other than that of the forum, might be identified, which could lead to uncertainty for the litigants. The green paper would open up jurisdiction shopping, which would be a disaster. Couples would shop around the European Union to decide which legal system favours their circumstances. Scottish courts would face the prospect of being required to apply foreign law in divorce cases that were being heard in Scotland—a requirement to which they are not presently accustomed.

Witnesses considered that the added complexity of such cases would inevitably lead to delays and increased costs for the parties involved. The Commission cites arguments in favour of the change, including lack of certainty, difficulties for couples of different nationalities who may live in a third state, and the tendency of couples to rush to court in the country that offers them the best deal. I invited members of the Justice 1 Committee to tell the Commission whether any of the problems that are highlighted in the divorce green paper had ever arisen in their casework. Apart from Stewart Stevenson, who is known for always having extraordinary cases in his constituency, no member could tell the Commission that he or she had ever, in six years as an elected member, experienced such a complaint. One wonders where all the arguments are coming from. The committee received evidence from several witnesses, including the family law sub-committee of the Law Society of Scotland—its view was the same.

That evidence, combined with a lack of statistical evidence, means that the Commission cannot back up the claim that there is a real problem. The Scottish Legal Aid Board calculated that if international divorce cases were transferred from the sheriff court to the Court of Session because of the complexity of applying the law of another jurisdiction, there would be a more than threefold increase in the average costs that would be incurred; the average cost in the sheriff court is currently £1,827, and the average in the Court of Session is more than £6,000. The committee considered that that result would be contrary to the efforts of the Scottish Executive and the UK Government to promote access to justice, particularly in civil law.

I would also like to comment on the green paper on succession and wills. To some degree, that green paper is more alarming, because it refers to extending and harmonising the rules and laws of succession and wills across the European Union. The Commission proposes fundamental changes to our law, and ignores the fact that our law is based on principles and on Scottish culture and tradition. In our discussion with the Commission, the Justice 1 Committee was not reassured that the Commission places sufficient value on the different types of legal traditions that exist throughout the European Union. As with divorce cases, Scottish courts have experience of applying succession law, and they use the principle of lex situs, which means simply that where an estate includes immoveable property in another state, the law of that state will apply to it. That is a simple and straightforward practice.

All evidence that was received by the committee in response to the green paper's proposals concerning the registration of wills was strongly against any compulsory scheme, so the green paper gives us something to worry about. In my opinion, the beauty of Scots law in relation to wills is that one can register a will quite informally, as long as one dates it and signs one's name. The proposals would remove that possibility for drawing up a will, because wills would have to be registered in every case.

It was no surprise to me that, after hearing from our excellent expert witnesses, the committee spontaneously and unanimously opposed in principle the development of any further Community instruments in family law. We also consider that the Commission has so far failed to provide any compelling evidence of significant need or demand from EU citizens for action. Many of the proposals in the green paper could have significant implications for Scottish citizens, who will, by and large, have no idea that the EU is going to be legislating in that area of law.

Our experience, gained from being involved in the creation of the Brussels 2 regulation, is that once the UK opts into such a process, our needs are compromised and change becomes, to some degree, inevitable. We should learn from experience and seek to protect the traditions and values that are incorporated in our law. We can justify retention of our law in our land. In the light of the evidence, the committee's unanimous view is that the

"proposals are fundamentally flawed and unnecessary".

We therefore recommend that the Scottish Executive strongly urge the UK Government not to opt into any draft Community instruments that emerge following the conclusion of the consultation processes.

I move,

That the Parliament notes the concerns raised by the Justice 1 Committee in relation to recent European Commission Green Paper proposals on applicable law in divorce and succession and wills; agrees that the proposals are not in the best interests of the people of Scotland, and, in light of the Committee's views that these proposals are fundamentally flawed and unnecessary, calls on the Scottish Executive to urge the UK Government not to opt in to any draft European Community instruments which emerge following the conclusion of these consultation processes.