Justice 1 Committee, 09 Nov 2005

Meeting date: Wednesday, November 9, 2005

Official Report 317KB pdf

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Subordinate Legislation

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Civil Partnership<br />(Jurisdiction and Recognition of Judgments) Regulations 2005 (draft)

Item 2 is subordinate legislation. Once again, we welcome the Deputy Minister for Justice, Hugh Henry. I refer members to the note that has been prepared by the clerk. I ask the minister to speak to and move motion S2M-3511.

The draft Civil Partnership (Jurisdiction and Recognition of Judgments) Regulations 2005 will incorporate into the Scots law of civil partnership the same grounds of jurisdiction as are contained in the European Union regulations—known as Brussels 2a—on matrimonial proceedings. They also provide for recognition of judgments from other member states that have been issued in civil partnership proceedings.

The regulations are to ensure equal access to justice for civil partners. European Union legislation has changed our domestic law concerning matrimonial proceedings by making some new grounds of jurisdiction available to the Scottish courts, and by providing for judgments to circulate through the EU. That legislation does not apply to civil partnership proceedings, as the situation in that regard is still rapidly evolving in the different member states. Some member states still have no mechanism to allow same-sex couples to enter binding legal relationships, although the trend is clearly for more countries to go down the civil partnerships route.

The issues for us are whether we should give civil partners the same access to the Scottish courts as they would have under the Brussels agreement if they had been married, and whether to provide for recognition of judgments in civil partnership proceedings from elsewhere in the European Union. If we do not do that, the effect will be to restrict that access to civil partners. If a civil partner were to discover that he or she could not bring dissolution proceedings here, for instance, even though he or she would have been able to bring divorce proceedings if they had been married, that civil partner would be likely to feel discriminated against on the basis of sexual orientation. I hope that members agree that such couples should have equal access to the courts.

I move,

That the Justice 1 Committee recommends that the draft Civil Partnership (Jurisdiction and Recognition of Judgements) Regulations 2005 be approved.

Thank you, minister.

I seek clarification on the impact of regulations 8, 9 and 10. If another member state were to go beyond recognising civil partnership to recognising same-sex marriage, will we, in approving the regulations, be obliged also to recognise that status?

My understanding is that same-sex marriages that were entered into abroad will have the status of civil partnerships here. Any attempt to dissolve would be conducted on the basis of dissolving a civil partnership here rather than a same-sex marriage.

Regulation 8 will prevent a court from reviewing the jurisdiction of the court of the member state, and regulation 9 will prevent a court from reviewing the substance of a judgment. Regulation 10 will ensure that the judgment is recognised, notwithstanding that there might well have been a different outcome if the law of Scotland had been applied. Regulation 10 is where I think we are with same-sex marriages. Is there potential for the introduction of same-sex marriage under the regulations, which we will then have to recognise, albeit for different reasons?

My understanding is that there is not. Nowhere do the regulations mention same-sex marriages; they talk consistently about civil partnerships. I believe that any such relationship would be dealt with as a civil partnership rather than as a same-sex marriage.

Regulation 3, on application, states:

"These Regulations apply to proceedings for the dissolution or annulment of an overseas relationship entitled to be treated as a civil partnership, or the legal separation of the same".

It is quite specific in talking about civil partnerships; there are no references to same-sex marriages.

I am content with that assurance.

Does that mean that, if another European member state does not have the same construction of the concept of a civil partnership as we have, but has something akin to it, that becomes a civil partnership for the purposes of Scots law? Is that what we are talking about?

Yes—I think that is essentially right. The Civil Partnership Act 2004 contains a provision to deal with that.

I do not know what variety of different relationships there are legally in other member states. How similar do they have to be to our civil partnership?

Part 2, paragraph 5(2) of the regulations mentions:

"A ‘court of a member State' referred to in paragraph (1)".

Paragraph 5(3) then mentions

"The ‘member States' referred to in paragraph (1) are any of the following States",

and goes on to specify the states. The 2004 act also specifies the criteria that are required for that recognition.

I see. Do other members have any questions?

I want something to be clear on the record. Are you saying that if another European Union state recognises same-sex marriage, we do not have to recognise it here?

We would not recognise a same-sex marriage. We would deal with a civil partnership.

So we would treat a same-sex marriage as a civil partnership.

That is correct.

Part 2 of the regulations lists the member states to which the regulations will apply. Those states have something that is equivalent to the civil partnership.

That is correct.

In essence, those countries are determined to have something similar to what we have in Scotland. If anyone from one of those countries wishes to dissolve their civil partnership in Scotland, they will be able to do so; our Scottish civil partnership regulations would apply, rather than the member state's legislation.

That is correct.

I am clear.

I just want to clarify this. If a member state has provision for same-sex marriage, a couple with such a marriage could come to Scotland and get a divorce.

They could have dissolution of a civil partnership.

What would be the effect of such a dissolution in their home country? Would it have legal standing?

That country would have to determine how it recognises decisions of a Scottish court. In effect, the couple would have applied to a court here for the dissolution of a civil partnership. Such a dissolution would be legally binding in Scots law. I would have thought that, in terms of international treaties and agreements, whether the dissolution would be recognised elsewhere would be a matter for the particular country from which the couple came rather than a matter for us.

So after a same-sex marriage was dissolved here as a civil partnership, the individuals concerned could form a new civil partnership at some stage—at least, in Scotland.

They would be able to form a new civil partnership in Scotland.

What standing would that have in the other countries?

That would be a matter for each country to determine.

Hmm—okay.

Given that we dealt with Brussels 2a in terms of jurisdiction and recognition of family law issues, I suppose what we are doing here is applying the same rules to civil partnerships. Am I right?

Convener, it is difficult enough to give assurances to the Scottish Parliament without my having to look at Poland, Portugal, Slovakia, Slovenia and so on.

But that is broadly what we are doing here.

Yes.

So the concept of "habitually resident", for example, that applies to married couples in Scotland would apply to people in civil partnerships because of the regulations.

Yes.

I think we have exhausted our lines of questioning on that.

Or you are just exhausted.

In that case, the question is, that motion S2M-3511 be agreed to.

Motion agreed to.

That the Justice 1 Committee recommends that the draft Civil Partnership (Jurisdiction and Recognition of Judgments) Regulations 2005 be approved.

We are required to report to Parliament on the regulations. Unless I hear a counter motion, I suggest that we base our comments on the Official Report. The deadline for publication of our report to Parliament is Monday 28 November. If members have additional points to make, they will have to let us know about them. We aim to publish by Friday 11 November.

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Civil Contingencies Act 2004<br />(Contingency Planning) (Scotland) Regulations 2005 (SSI 2005/494)

I refer members to the clerk's note on the Civil Contingencies Act 2004 (Contingency Planning) (Scotland) Regulations 2005. I thank the minister for being with us for the previous set of regulations. As these regulations are subject to the negative procedure, he is allowed to leave us. Do members have any points to make on the regulations?

Just before making my comment, I draw attention to my entry in the register of members' interests on my membership of Edinburgh Flying Club, which places duties on me, as a member of a private limited company, in relation to matters in the regulations.

Paragraph 40(4) of the regulations refers to

"A document which purports to be certified by or on behalf of a member of the Scottish Executive as a true copy of a certificate".

The certificate in question relates to sensitive information. Paragraph 40(4) continues by saying that the certificate

"shall in any legal proceedings be … evidence ( … in England and Wales … ) of that certificate."

I wonder on what basis we can assert that the legal proceedings of a court in England and Wales would take any attitude to anything that we did. I wonder whether we can find out.

Yes—we can put that question.

That is all.

There are no other comments, so are members happy to note the regulations?

Members indicated agreement.

That brings us to the end of the agenda. I remind members that the committee will meet next on Wednesday 16 November, which will be day four of our stage 2 consideration of the Family Law (Scotland) Bill. The deadline for lodging amendments for consideration at the next meeting is Friday 11 November at 12 noon. The target for that meeting will be published in tomorrow's Business Bulletin. It would be helpful if members could inform interested colleagues of that deadline.

Meeting closed at 13:17.