Justice and Home Affairs in Europe
Item 6 concerns European Union justice and home affairs. There are many interesting documents in members' papers, which account for most of the papers that members have. I refer members to all the notes that the clerks have prepared, which it must have taken some time to photocopy. I thank the clerks for providing those useful reference documents. I invite the committee to consider the options that are set out in paper J1/S2/04/37/6.
As we have discussed previously, because of the volume of information and the number of decisions that are being made at European Union level, it is important for us to consider taking a systematic approach to this issue. It is suggested in the paper that we start by considering the priorities of the presidency and that we receive an annual report on the timetable for legislation. We have the option of slotting that into our agenda, when appropriate. Members will know from their visit to Brussels that many on-going issues that are of direct relevance to the committee are being considered in green papers and other papers. I invite members to consider the available options and to indicate specific interests that they have in on-going EU matters.
The proposed actions that are suggested by the clerks in paragraphs 7, 11, 24, 25 and 30 make eminent sense. I want to raise a timetabling issue in relation to the green paper on bail. Paragraph 40 states:
"The Executive is presently formulating its response to this Paper working to a deadline of the end of November",
which was yesterday. That does not imply that we will see the Executive's response. Is it intended that we or our colleagues on the Justice 2 Committee will see it? Has the Executive managed to work to the timetable that is stated in the paper?
There would be no harm in clarifying with the Justice 2 Committee what point the Executive has reached with its response, as this is a very important issue. There is a common theme through all these issues, especially in the area of justice. We are supposed to be operating on an agenda of mutual recognition, but in some areas it is hard to see how mutual recognition and minimum standards can be applied at the same time, as that would require changes to be made in some member states that operate different systems. Do we agree that we will clarify with the Justice 2 Committee what point the Executive has reached with its response to the green paper on bail?
Members indicated agreement.
I have a question about divorce. Were there issues that we wanted to flag up prior to the publication of the green paper? Did we not have reservations concerning property law?
We were informed on our visit to Brussels that there was a white paper on divorce and that papers on the law of succession would be coming down the line at some point. We took from that that applicable law on divorce is only the starting point. There is a response for the committee to make here—if we take an approach to which should be the applicable law in civil cases such as divorce, it is hard not to go down the road of looking at the laws of succession and property.
At the moment, as far as I understand it, the proposal simply deals with the transaction of divorce, but not with the division of property, which will be dealt with separately. The law of succession will also be dealt with separately, but it is, of course, related. As we have distinct provisions in Scots law, we have to be alive to the potential for change.
I am struck by the complicated principle of applicable law on divorce. We heard from the officials in Brussels about current rules that guide the European Union on which member state's law is applicable in a divorce case. Members will recall that we heard that the principle of applicable law allowed residents of the European Union to "jurisdiction shop" and to decide in which member state it would be advantageous to them to pursue divorce. Given that there are two parties in any divorce proceedings, there will be cases in which it would be advantageous to one party to sue in one jurisdiction and not in another.
As members know, it is currently EU law that if a UK national marries in France, for example, and then returns to Scotland, they cannot pursue a divorce for up to six months after separation, whereas the person who remains in the member state where the marriage took place can sue immediately. Minor changes have been made to the law already, but we can begin to see the impact that the introduction of common European rules would have. We can see that we might want common rules, because there are more mixed marriages—in the sense that individuals from different member states live in countries in which they were not born—but we can see why the legal situation is complicated.
One could take a simple approach—I do not see why the jurisdiction in which people marry should not be the jurisdiction in which they seek divorce. That would be fairer to both parties.
Stewart Stevenson indicated disagreement.
I will let Stewart Stevenson speak in a minute because I see that he is shaking his head.
However, the road down which the European Commission is going is concerned with a very complex area of law and I am not sure that it needs to be. I am worried about the example that we were given of an Italian couple who were married for 30 years. He went to Malta, Spain or somewhere for a temporary job, decided that he had had enough of the marriage and sought to divorce the woman—who was still in Italy—under Spanish law because it was more advantageous to him. She was stuck in Italy trying to defend the action. There is a lot of unfairness in that situation. The situation varies from one extreme to another. Divorce is a paper exercise in Finland and no court is involved, whereas other countries take the more moralistic view that divorce should not be easy anyway. Regulations in member states generally reflect the view of their societies, but the Commission is trying to standardise them under applicable law.
The European justice and home affairs note from the clerk indicates that the expectation of a white paper on divorce has now been replaced by expectation of a green paper. In other words, the Commission is finding changing the regulations much more difficult than it anticipated. That does not surprise me.
The convener suggested that one should be divorced where one got married, but if the couple moved to another country in the European Union and wished to divorce 30 years later, it might be onerous in terms of cost and time for both parties to have to go back to the other country now that they are residents of a different one. I only say that to illustrate that almost anything you can come up with has genuine difficulties. I have no solutions whatsoever. My only general observation is that much of this touches on family law, which the Executive is examining. We have to keep a close watching brief on the interactions between what is proposed by the Executive, what is happening in Europe and so on. It will be difficult.
As a former justice of the peace who performed the procedures for quickie divorces, I know that they could not be contested, property could not be divided and there could be no children involved—the situation was that there had been a clear mistake. There are differences in our own system in how and where you can perform a divorce. I have sympathy with the argument that you have the divorce in the country in which you were married—I speak as someone who was married abroad—simply because you accepted the rules of the country in which you were married. However, if both parties agree to have the divorce in another land, that should be a matter for them. I thought that the idea that you nipped off on a business trip and came back divorced happened only in Las Vegas.
You marry in Las Vegas and you divorce in Reno.
I am making notes in case it ever becomes necessary.
If both parties do not agree, and he beetles off and obtains a divorce without telling her, they should be compelled to go back to the land in which they were married. However, if the two people agree to get married in Las Vegas and divorced in Reno, they should carry on.
I take on board the strong message that we received when we went to Brussels, which was to intervene early and as soon as possible. I am not in favour of waiting for publication of the green paper before we flag up the general concerns—without getting into the details—about the applicable law on divorce and how it affects nationals from our member state. We should flag up that we have reservations about the law of property and the law of succession being affected by any decision in the green paper. If we do that prior to the green paper being published, it will be a firm concern. We should do that rather than wait until the green paper is published and then respond, because we know that things start to become entrenched further along the legislative process.
The law on divorce might be the easy part. What happens when children are involved, and how are custody and access determined? There is a great deal of difference between, for example, the law in Germany and the law here, with regard to where a child can go without the permission of both parents, particularly if one is a German national. In addition, the view of divorce in Ireland is somewhat different. There are major difficulties in trying to standardise the law. There are cultural differences. I am not sure how you can pay due respect to people's cultural and religious beliefs and insist that there is a common system. There has to be a rough set of rules under which actions can take place, but there must also be diversity.
We spent some time looking at civil partnerships, but there are lesbian and gay marriages in some countries in Europe, and if we are talking about mutual recognition the green paper might take a long time to make progress.
That is a good point.
I point out that a regulation on parental responsibility comes into force in March 2005, which in part deals with the question of parental responsibility and access. If members are interested in that, the notes are worth reading further, because they say that the UK delegation reflected well in the negotiations both UK and Scots law. However, the battle was hard, because some Scots law principles would have been overturned by principles of other member states' law.
Many of the issues are already determined by international conventions, such as the Hague conventions. Existing conventions that have operated effectively for some time may be undermined. I doubt whether the European Union needs to redo existing conventions because one member state feels that the way in which it does things should be recognised. That is often what some member states use the presidency priorities for, whether a subject relates to Brussels 2, which the proposal comes under, or family law generally.
Margaret Mitchell says that the key is early involvement. I agree that we need not wait, but we must have a discussion to establish the committee's views before we can respond. We will need to timetable a discussion on the applicable law in divorce with a view to preparing a response. When we have that discussion, members can decide what they want to do with the submission.
We have submitted a response about the proposed directive on some aspects of mediation and we received an update from the Commission when we were in Brussels. That is another issue that the committee can pursue.
The green paper on maintenance obligations is connected to the proposal on applicable law. Would it be better to put those two items together?
I presume that the green paper covers enforcement and its practicality when people live elsewhere.
Until we receive the paper, who knows?
The green paper was published in April 2004, but we have not had a chance to read it.
I beg your pardon.
We might need to read the green paper to summarise the main points and find out whether the issues in relation to the applicable law on divorce and to maintenance obligations have commonalities. If they do, discussing the papers at the same time might have value, although they are separate consultation papers. The green paper is a bit further down the road.
The implications will be direct.
I imagine so. I have not read the document.
If the committee agrees, we will have a summary of the main points in the document, which will show whether we need to take up any issues immediately.
Does the committee want an update from the Executive about what it is doing on all the matters that we have discussed, which are of great importance?
Option e) in the clerk's note would be useful.
Unless members tell me otherwise, I will presume that they accept options a) to e), which include an oral evidence session with the Minister for Justice during the Luxembourg presidency, so that we can have details of the Executive's plans. Is that agreed?
Members indicated agreement.
I leave it to members to consider whether we should take that evidence jointly with the Justice 2 Committee. I do not ask for a decision today. We must consider how much business we need to cover. When the two committees are together, it is sure that the option to pursue issues in detail is reduced. I will also discuss the matter with the Justice 2 Committee's convener, Annabel Goldie, to find out her view. I will return to the question.
We have reached the end of the agenda. I remind members that we will undertake a fact-finding visit to the 218 time-out centre and other drug treatment programmes in Glasgow on Monday 6 December, as part of our inquiry on the rehabilitation of prisoners, which is drawing to a close. I remind members that the committee will receive from Professor Rennie, who is the committee's adviser on the security of tenure, an informal briefing about hutters. That concerns another issue that has been on the table for some time.
Finally, I remind members that we will meet at half past 9 on Wednesday 8 December in committee room 4 to take evidence from the Scottish Executive bill team as we begin stage 1 of the Protection of Children and Prevention of Sexual Offences (Scotland) Bill. There is no rest for the wicked.
I have a quick question. Do you have a time for Monday's visit? Does it start at 10 am?
We are likely to start at 10. Is that a problem?
Starting at 10 is not a problem. What is the finishing time?
The visit will conclude by half past 3.
That is a problem.
I suggest that you liaise with the clerks to tell us what you can do. We will work round that.
Okay.
Meeting closed at 11:36.