Chamber
Plenary, 16 Mar 2006
16 Mar 2006 · S2 · Plenary
Item of business
European Commission Green Papers (Divorce and Succession and Wills)
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 supporter of the UK's membership of the European Union, but I will never accept that it should dictate on issues that affect the lives of people in Scotland. I strongly support the idea that, as a democratically elected Parliament, we should robustly challenge EC proposals.
In last week's debate on international women's day, we all agreed that that should not be the only day on which we discuss issues that affect women. Today, we acknowledge, with due respect to members of the European and External Relations Committee, that many committees of Parliament—not just that one—need to take an interest in European issues. The Justice 1 Committee took evidence on applicable law and jurisdiction in divorce and succession and wills. Although that may sound like a mouthful and people may not immediately understand what is involved, many of us may already have been touched by the issues and many more will be in the future.
More marriages now take place between couples of different nationalities. Given that such people may marry in a third country and live and then seek to divorce in a fourth country, we can understand why there could be a need for certainty about which law, or which country's law, will be used if a divorce is sought. It is also easy to understand that couples' family members can be of different nationalities and live in different countries. We must consider which law pertains to succession and wills after a death. The Justice 1 Committee took evidence diligently on the issue—in writing from various officials and the legal profession and orally from representatives of the Law Society of Scotland and Scottish Executive officials. As is becoming fairly commonplace for the committee, we also had a videoconference with European Commission officials.
As has been said, in divorce, Scotland presently uses the principle of lex fori, which means that the law of the country in which the case is brought is used. That principle gives certainty, because people know what the law will be. It avoids doubt as to which law is to be used and it avoids the additional work and cost for legal professionals and the couple, of dealing with what might be unfamiliar law. The concern that one of the couple may rush to a particular nation's courts to gain an advantage over their partner is not supported by any evidence. Therefore, the committee's view is that, on divorce, it would be prudent to let the relatively new jurisdictional rules in the Brussels 2a regulation settle down before they are reviewed and possibly changed.
In last week's debate on international women's day, we all agreed that that should not be the only day on which we discuss issues that affect women. Today, we acknowledge, with due respect to members of the European and External Relations Committee, that many committees of Parliament—not just that one—need to take an interest in European issues. The Justice 1 Committee took evidence on applicable law and jurisdiction in divorce and succession and wills. Although that may sound like a mouthful and people may not immediately understand what is involved, many of us may already have been touched by the issues and many more will be in the future.
More marriages now take place between couples of different nationalities. Given that such people may marry in a third country and live and then seek to divorce in a fourth country, we can understand why there could be a need for certainty about which law, or which country's law, will be used if a divorce is sought. It is also easy to understand that couples' family members can be of different nationalities and live in different countries. We must consider which law pertains to succession and wills after a death. The Justice 1 Committee took evidence diligently on the issue—in writing from various officials and the legal profession and orally from representatives of the Law Society of Scotland and Scottish Executive officials. As is becoming fairly commonplace for the committee, we also had a videoconference with European Commission officials.
As has been said, in divorce, Scotland presently uses the principle of lex fori, which means that the law of the country in which the case is brought is used. That principle gives certainty, because people know what the law will be. It avoids doubt as to which law is to be used and it avoids the additional work and cost for legal professionals and the couple, of dealing with what might be unfamiliar law. The concern that one of the couple may rush to a particular nation's courts to gain an advantage over their partner is not supported by any evidence. Therefore, the committee's view is that, on divorce, it would be prudent to let the relatively new jurisdictional rules in the Brussels 2a regulation settle down before they are reviewed and possibly changed.
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...