Chamber
Plenary, 16 Mar 2006
16 Mar 2006 · S2 · Plenary
Item of business
European Commission Green Papers (Divorce and Succession and Wills)
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 Commission green papers on applicable law and jurisdiction in divorce and succession and wills threaten the way in which we deal with such matters in Scotland. We should be clear about the fact that the implementation of the proposals could lead to a situation in which Scottish courts applied family law to divorce cases and required people to register their wills. We do not want such a situation.
People who work on EU family law proposals claim that the free circulation of decisions is particularly important in family law, because family ties are increasingly being formed between nationals or residents of different member states. In that context, it is important that there be clear rules on jurisdiction and applicable law in matters of divorce and parental responsibility, and it is important to establish common-effect rules for the recognition and enforcement of decisions within the EU.
Perhaps a member will correct me if I am wrong, but I understand that there has been no debate on the matter in the European Parliament, although I think that national ministries of justice were represented when the issue was debated in public at a meeting a couple of days ago.
The Justice 1 Committee received evidence from a number of witnesses, including the family law sub-committee of the Law Society of Scotland, which took the view that the application of foreign law in divorce cases would inevitably lead to considerable delays and, as a consequence, increased costs for all parties. Indeed, the Scottish Legal Aid Board suggested that costs could rise from £1,827 to £6,649. The Justice 1 Committee only recently considered the Family Law (Scotland) Bill, which made provision to change the time limits for divorce and other matters. We should allow the Family Law (Scotland) Act 2006 time to settle in so that we have an opportunity to ascertain how the reforms that it has introduced work in practice. We can return to the issue and examine it further in the next session of Parliament, if we want to do so.
In a letter to the committee, the Law Society of Scotland said:
"Representatives of the Society agreed that there was no particular problem in relation to jurisdiction in relation to forum shopping or in relation to applicable law. The current rule of Scots international private law—that the lex fori principle, the law of the forum, applies—seems to present no problems in Scottish courts as far as is understood from a practitioner perspective. The Society does not think the case has been made for harmonised divorce law."
That ably sums up my view on the matter.
The green paper on wills and succession was published on 1 March 2005, which was when the public consultation started. The aim of the consultation was to canvass opinion on the practical problems. Again, a number of witnesses gave evidence to the committee and we were told that a number of previous attempts to harmonise the law had fallen on stony ground. We also heard that the Scottish Law Commission is about to review domestic succession law. I am sure that the Scottish Law Commission will do that well and that it will approach Parliament with appropriate proposals for change.
The proposed requirement to register wills would be counterproductive, and the committee heard no evidence in favour of a compulsory registration scheme. I emphasise the point that Pauline McNeill and Margaret Mitchell made: many Scots write their wills by themselves and have them witnessed without incurring the cost of a solicitor. Such wills are perfectly legal if they are signed and witnessed and would be accepted by a Scottish court. If we were to agree to the EU proposal, it is likely that such informal wills would not be accepted if a previous will had been registered through a solicitor. That is another reason not to accept the EU proposals.
I accept that times are changing. More and more people buy property abroad, live and work abroad and, for that matter, die abroad. In the future, some harmonisation of the conflict-of-law rules may be desirable but, as I have said before, at that point the Scottish Law Commission should produce proposals on how to change Scots law.
People who work on EU family law proposals claim that the free circulation of decisions is particularly important in family law, because family ties are increasingly being formed between nationals or residents of different member states. In that context, it is important that there be clear rules on jurisdiction and applicable law in matters of divorce and parental responsibility, and it is important to establish common-effect rules for the recognition and enforcement of decisions within the EU.
Perhaps a member will correct me if I am wrong, but I understand that there has been no debate on the matter in the European Parliament, although I think that national ministries of justice were represented when the issue was debated in public at a meeting a couple of days ago.
The Justice 1 Committee received evidence from a number of witnesses, including the family law sub-committee of the Law Society of Scotland, which took the view that the application of foreign law in divorce cases would inevitably lead to considerable delays and, as a consequence, increased costs for all parties. Indeed, the Scottish Legal Aid Board suggested that costs could rise from £1,827 to £6,649. The Justice 1 Committee only recently considered the Family Law (Scotland) Bill, which made provision to change the time limits for divorce and other matters. We should allow the Family Law (Scotland) Act 2006 time to settle in so that we have an opportunity to ascertain how the reforms that it has introduced work in practice. We can return to the issue and examine it further in the next session of Parliament, if we want to do so.
In a letter to the committee, the Law Society of Scotland said:
"Representatives of the Society agreed that there was no particular problem in relation to jurisdiction in relation to forum shopping or in relation to applicable law. The current rule of Scots international private law—that the lex fori principle, the law of the forum, applies—seems to present no problems in Scottish courts as far as is understood from a practitioner perspective. The Society does not think the case has been made for harmonised divorce law."
That ably sums up my view on the matter.
The green paper on wills and succession was published on 1 March 2005, which was when the public consultation started. The aim of the consultation was to canvass opinion on the practical problems. Again, a number of witnesses gave evidence to the committee and we were told that a number of previous attempts to harmonise the law had fallen on stony ground. We also heard that the Scottish Law Commission is about to review domestic succession law. I am sure that the Scottish Law Commission will do that well and that it will approach Parliament with appropriate proposals for change.
The proposed requirement to register wills would be counterproductive, and the committee heard no evidence in favour of a compulsory registration scheme. I emphasise the point that Pauline McNeill and Margaret Mitchell made: many Scots write their wills by themselves and have them witnessed without incurring the cost of a solicitor. Such wills are perfectly legal if they are signed and witnessed and would be accepted by a Scottish court. If we were to agree to the EU proposal, it is likely that such informal wills would not be accepted if a previous will had been registered through a solicitor. That is another reason not to accept the EU proposals.
I accept that times are changing. More and more people buy property abroad, live and work abroad and, for that matter, die abroad. In the future, some harmonisation of the conflict-of-law rules may be desirable but, as I have said before, at that point the Scottish Law Commission should produce proposals on how to change Scots law.
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...