Chamber
Plenary, 16 Mar 2006
16 Mar 2006 · S2 · Plenary
Item of business
European Commission Green Papers (Divorce and Succession and Wills)
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, Scotland has a clear succession system, in which movables are covered by the law of the deceased's domicile and immovables are covered by the law of the country in which they are situated. That is simple and straightforward and people understand it. Unlike with divorce law, the Scottish courts have experience of applying foreign law to succession. Further suggestions in the green paper include an executor certificate, a European certificate of inheritance and a European wills registry. All those would have problems, particularly the suggested register, which could allow valid wills that are more up to date and relevant to be rejected in favour of previously registered versions.
There is a general view that we, as legislators, need to consider how to handle the interface between emerging European law and Scottish law. The timing of legislation could also be an issue. As we have heard, a European green paper has been produced at the same time as the Scottish Law Commission is reviewing domestic succession law. It is clear that such situations can produce friction.
I am concerned that, having produced the green paper, the European Commission officials to whom we spoke could not provide examples or statistics to show how people had been affected by the current mixed systems, and that they had not carried out an impact assessment of the proposed changes. It appears to the committee that the suggested changes would be detrimental to Scots. Despite the academic examples that Pauline McNeill gave, there is no clear indication that the current system is causing problems. Moreover, it is unlikely that all the other European countries will reach agreement—when there was a previous review, they did not agree. For those reasons, I hope that members will support the Justice 1 Committee's recommendations and decline to opt in to the proposed instrument.
On succession and wills, Scotland has a clear succession system, in which movables are covered by the law of the deceased's domicile and immovables are covered by the law of the country in which they are situated. That is simple and straightforward and people understand it. Unlike with divorce law, the Scottish courts have experience of applying foreign law to succession. Further suggestions in the green paper include an executor certificate, a European certificate of inheritance and a European wills registry. All those would have problems, particularly the suggested register, which could allow valid wills that are more up to date and relevant to be rejected in favour of previously registered versions.
There is a general view that we, as legislators, need to consider how to handle the interface between emerging European law and Scottish law. The timing of legislation could also be an issue. As we have heard, a European green paper has been produced at the same time as the Scottish Law Commission is reviewing domestic succession law. It is clear that such situations can produce friction.
I am concerned that, having produced the green paper, the European Commission officials to whom we spoke could not provide examples or statistics to show how people had been affected by the current mixed systems, and that they had not carried out an impact assessment of the proposed changes. It appears to the committee that the suggested changes would be detrimental to Scots. Despite the academic examples that Pauline McNeill gave, there is no clear indication that the current system is causing problems. Moreover, it is unlikely that all the other European countries will reach agreement—when there was a previous review, they did not agree. For those reasons, I hope that members will support the Justice 1 Committee's recommendations and decline to opt in to the proposed instrument.
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...