Justice 1 Committee, 27 Sep 2006

Meeting date: Wednesday, September 27, 2006

Official Report 336KB pdf

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Justice and Home Affairs in Europe

Item 4 is justice and home affairs in Europe. Members will recall that the committee has done quite a bit of work and held a parliamentary debate on our work on applicable law on matrimonial matters and divorce. Although we do not have a great deal of time to debate the matter further, I thought it important, given that we have done all this work, that we keep up the pressure in relation to the European Commission's progress on the matter.

We made it clear in our response to the European Commission that the proposals are not in Scotland's best interests. We recommended that the Scottish Executive strongly urge the United Kingdom Government not to opt into any draft community instruments that appear following conclusion of the consultation process. The proposal relating to applicable law on jurisdiction and divorce has recently been published by the Commission. I am informed that none of our concerns has been addressed.

The committee has been invited by colleagues at Westminster to make a submission to the House of Lords European Union Select Committee, which is considering whether the proposal respects EU rules on subsidiarity and proportionality. The House of Lords committee will submit an opinion to the Commission on behalf of the UK Parliament as part of a wider check on the national Parliaments throughout Europe.

The clerks and the Scottish Parliament information centre have given detailed consideration to the Commission's proposals and have prepared a report for the committee to consider. I invite the committee to agree to submit the report to the House of Lords European Union Select Committee as a contribution to the subsidiarity and proportionality check. It is a pity that we cannot get more coverage for the issue, because if the Commission progresses the matter, Scotland will be expected to apply other countries' national laws on divorce. I know that we all feel very strongly about that, but it would be a disaster if we did not comment on behalf of the Scottish Parliament. I invite members to comment on the report and agree it if they can.

I will not go through the arguments on the matter: we have been through them, there was a debate and nothing has happened to make me change my mind. In fact, everything that has happened since makes me stick to my position and be as belligerent as the Commission appears to be on the matter. We should stick to the recommendations in paragraphs 20, 21, 56 and 57 of the report.

I seek clarification on the content of the response. Did you say that it completely ignores all the points that were made?

The Commission has not addressed the points that we made. I think that the UK position is not dissimilar to our own.

I am a bit confused. I think that I read somewhere that there is to be a UK opt-in—the minister may have used that phrase. Are we opting out of this UK-wide or—

We calling on the UK Government not to opt into the provision. The UK can do that, in the same way that Denmark and other countries have done.

It would be useful to know about the UK response.

I was about to ask the same question.

There is merit in having a united front. The argument that applies to Scotland applies equally to England.

Although we are asking the UK Government not to opt in, the Executive has yet to firm up its view. We have made representations, but the Executive has not come to a view on its proposals, never mind on the UK Government position.

The clerks previously circulated the response of both the UK Government and the Executive. We will circulate them again. In order to keep up the pressure, we need to be sure that the Executive is including in its representations the view of the Justice 1 Committee of the Scottish Parliament.

As you said, convener, the proposal flies in the face of the way in which Scots law is, and has been, enacted. I agree that the Commission's approach is the wrong way to go. The committee is clear on the matter. We spent a substantial amount of time on our consideration of the Family Law (Scotland) Bill, including consideration of divorce. Given the effect that divorce has on individuals, it seems unnecessary and quite beyond belief that people in those circumstances should face further uncertainty.

We should make the strongest possible representations to the Executive and the Westminster Government that the proposal will be detrimental to the people whom we represent. The time we took in making our representation to the Commission should be acknowledged and the points that we made addressed. I do not want anything to change without first being given a substantive reason why the change should be made. I do not think that that argument can be made, but someone should make the effort to do so.

I agree with that.

Me too. I am keen that we try to get some coverage on the issue. That may be difficult; it is a dry subject. However, as Mary Mulligan said, if the proposal is introduced into Scots law, people will ask questions such as—

—why we did not do anything about it.

They will also ask what we tried to do about it. The proposal has serious implications for Scottish courts. I am keen to put something on the committee's position on the website. I will try to do that.

Are we going to ask the Executive what it is doing about this? Have we asked the minister that question?

There is a ministerial response, but we should raise the point again with the minister. We should say that we have had this discussion today and we should reiterate our position that we hope that the Executive will fight as hard as it has done until now to maintain the Scottish and UK position on the matter.

We are making a submission to the House of Lords European Union Select Committee, but is the minister also doing that? If she does not, when the Commission receives our submission, it will say, "The Government ministers of Scotland didn't make a submission; it was just some committee."

The work is parliamentary in nature—we have been invited to submit our report in our capacity as a parliamentary committee. That does not prevent us from doing what Mike Pringle is suggesting, which is to press ministers to keep on top of the issue. We are reaching the end of the process. It would be helpful for us to write to the minister to say that we continue to feel as strongly on the matter as we did at the time of the debate, and that we hope that the Executive is also of that view. The clerks and I will do that.

On that point, in the second-last paragraph of her letter, Cathy Jamieson makes her position absolutely clear—she is nowhere on the issue. She stated:

"I realise that I am not in a position to provide you with a full account of the Scottish position on the proposals and on the UK Government opt-in decision at this particular point in time".

She makes noises to make us feel that we are all singing from the same hymn sheet, but apparently we have not yet managed to get the hymn sheet printed. There seems to be prevarication, which concerns me. If we write again to the minister to make our views clear, that might help to solidify opinion at the Executive.

It is the phrase

"the UK Government opt-in position"

that caused me difficulty earlier and on which I sought clarification. I would like to know what the UK position on our submission is. Is anyone in a position to tell us?

We have the UK position. I will bring in the clerk.

The committee had circulated to it the UK Government's response to the green paper. At that consultation stage, the UK Government's position was very similar to that of the committee. It saw many negative aspects to the approach that was set out in the green paper.

Obviously, the Commission proposal was published only recently and we are only now at the stage at which both Parliaments and, indeed, other Governments around Europe are considering the proposal. It is still early in the process. The committee has been asked to contribute to the parliamentary element of the UK response. The Scottish Executive will contribute to the UK Government response.

From the minister's letter, one can see that the Executive appears to be at an early stage in its consideration. However, the minister gives a commitment in the letter that she will update the committee once she is clear on the Executive position.

I am deeply concerned about what she says about

"the UK Government opt-in decision".

My understanding is that the UK Government has not yet taken a decision to opt in. Surely the Executive is considering its decision to be invited to opt in.

That decision has not been taken as yet.

Right. That is helpful.

We agreed to take item 5 in private.

Meeting continued in private until 13:49.