Hansard

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 sympathy with the Commission for providing what is, on the face of it, an analysis of those current shortcomings. First, the Commission has considered whether individuals who are involved in an international divorce would choose from several alternative grounds of jurisdiction. Secondly, it has pointed to the significant differences between the national conflict-of-law rules and the prospect that those differences will be even greater as the European Union enlarges. Thirdly, the Commission has mentioned a lack of legal certainty and flexibility. Fourthly, it has pointed out that the current arrangements may lead to results that do not correspond with the legitimate expectations of citizens, although there is no clarification of what those expectations are in a divorce dispute.

Community citizens who are resident in a third state may face difficulties in finding a competent divorce lawyer. It would be fair to say that that would not happen in Scotland, but it could happen in other member states. They may also face difficulties in having a divorce judgment that is issued by a court in a third state recognised in their respective member states of origin. Finally, there is a risk of a rush to court under the current arrangements.

The Commission has the right to point out what it considers to be shortcomings in the European Union, but there is a valid debate to be had on what the responses to it should be. First, it is right to emphasise the constitutional status of the Scottish Parliament and of the green paper itself. It has already been stated that, under title IV of the Treaty on European Union, the UK has the ability to opt in to justice and home affairs issues, which is welcome if we want to ensure that Scotland has a voice in that area.

Members of the Justice 1 Committee have done a good job not only in scrutinising the European Commission green paper early in the European Union legislative process, as Mike Pringle said, but in bringing the matter to the chamber. I am a member of the Justice 2 Committee, which recently visited Brussels to meet members of the European Commission. There are similarities between what we are discussing and aspects of the proposed criminal law reforms. In Brussels, we discussed the Scottish Parliament's role in scrutinising early proposals relating to bail and police procedures. Members thought, as it is thought in this case, that the European Commission had got the emphasis wrong in seeking to dilute Scots law in many areas by proposing a lowest common denominator for what has been described as European harmonisation.

Pauline McNeill outlined a fairly devastating case against the Commission's proposals. When the Justice 1 Committee was scrutinising the proposals, she asked members of that committee whether they had experience of the matter. I am relieved to hear that Mr Stevenson has not personally gone through an international divorce, but he provided the committee with casework experience to scrutinise, which I am sure was of great value.

Kenny MacAskill felt that I was making a party-political point when I asked which areas of European harmonisation are acceptable to a nationalist. I acknowledge that that is a wider debate, but it is a relevant issue for us to consider. We are a devolved Parliament within the UK member state and I think that all of us in the chamber are at one on the importance of protecting and preserving our distinct legal system.

When the Justice 2 Committee was in Brussels, we met the director general of the directorate-general for justice, freedom and security, who told us that account is taken of the member states' one extra legal system. I take him at his word and acknowledge that the Commission is fully apprised of our distinctiveness in criminal and civil law. However, while I agree with the members who said that it is part of the duty of the Parliament to ensure that we are vigilant that that distinctiveness is not eroded, we heard examples of complexity in that area. Other areas of policy, such as energy or fishing, are not as straightforward and there is a debate to be had in the devolved setting of the Parliament about how we interpret and legislate on European issues in—as I would like to see—a federal setting.