European Commission Green Papers (Divorce and Succession and Wills)
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 papers on applicable law in divorce and succession and wills.
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 issues.
I have received some glazed looks in the past few days when I tried to explain what the debate was to be about—it is quite hard to make applicable law and jurisdiction in divorce matters sound interesting. It might not be a priority for Parliament, but the decisions that are taken now and in the future in Europe will affect the daily lives of our constituents when they come to use this branch of civil law, and it will have implications for the Scottish legal system, which we know and, perhaps, love.
The green paper on applicable law and jurisdiction in divorce matters is essentially about private international law, which consists of rules that enable the court of any country to determine three main issues: jurisdiction or authority to hear and decide a case; applicable law, or the law that applies, which is also known as the conflict of laws; and recognition and enforcement, or the extent to which a judgment of a court in another country can be enforced. The green paper identifies problems that might arise for couples who wish to divorce and who are of different nationalities or who live in a member state of which they are not nationals.
The Commission considered that the jurisdiction rules that are contained in the new Brussels 2 regulation, which allow spouses to choose between several grounds of jurisdiction, can cause difficulties because the applicable law is determined by the national conflict-of-law rules, which differ considerably between member states. What does all that mean?
I will give some examples that might illustrate what I am getting at. A Portuguese man and an Italian woman marry. They live in Italy. The husband returns to Portugal for work reasons and, after two years, decides to divorce. The couple may apply for divorce in Italy or in Portugal. Under the Brussels 2 regulation, the following can happen: because the couple are different nationalities, the Italian courts would apply the law in the country where the marriage had been principally based, but the Portuguese court would apply the law of the spouses' habitual residence differently, and failing that, it would apply the law with which the couple had the closest connection. The argument is that couples find it hard to predict the law that will be applicable in their situation.
Another more alarming example was given to us by the Commission. A couple have been married for 23 years and they live in Malta. The husband goes off to Finland for the purposes of his job, meets someone else and decides to divorce his wife in Finland where the law does not require a prolonged period of separation. His wife, who still lives in Malta, does not know that he has started divorce proceedings.
Scotland currently applies the principle of lex fori; it sounds like a name-calling exercise, but it means "the law of the forum". It applies that principle to all divorces. Evidence received from lawyers and the judiciary in this country is that it works satisfactorily.
Witnesses who came before the Justice 1 Committee suggested that if harmonised conflict-of-law rules were introduced in all member states, at least two laws, other than that of the forum, might be identified, which could lead to uncertainty for the litigants. The green paper would open up jurisdiction shopping, which would be a disaster. Couples would shop around the European Union to decide which legal system favours their circumstances. Scottish courts would face the prospect of being required to apply foreign law in divorce cases that were being heard in Scotland—a requirement to which they are not presently accustomed.
Witnesses considered that the added complexity of such cases would inevitably lead to delays and increased costs for the parties involved. The Commission cites arguments in favour of the change, including lack of certainty, difficulties for couples of different nationalities who may live in a third state, and the tendency of couples to rush to court in the country that offers them the best deal. I invited members of the Justice 1 Committee to tell the Commission whether any of the problems that are highlighted in the divorce green paper had ever arisen in their casework. Apart from Stewart Stevenson, who is known for always having extraordinary cases in his constituency, no member could tell the Commission that he or she had ever, in six years as an elected member, experienced such a complaint. One wonders where all the arguments are coming from. The committee received evidence from several witnesses, including the family law sub-committee of the Law Society of Scotland—its view was the same.
That evidence, combined with a lack of statistical evidence, means that the Commission cannot back up the claim that there is a real problem. The Scottish Legal Aid Board calculated that if international divorce cases were transferred from the sheriff court to the Court of Session because of the complexity of applying the law of another jurisdiction, there would be a more than threefold increase in the average costs that would be incurred; the average cost in the sheriff court is currently £1,827, and the average in the Court of Session is more than £6,000. The committee considered that that result would be contrary to the efforts of the Scottish Executive and the UK Government to promote access to justice, particularly in civil law.
I would also like to comment on the green paper on succession and wills. To some degree, that green paper is more alarming, because it refers to extending and harmonising the rules and laws of succession and wills across the European Union. The Commission proposes fundamental changes to our law, and ignores the fact that our law is based on principles and on Scottish culture and tradition. In our discussion with the Commission, the Justice 1 Committee was not reassured that the Commission places sufficient value on the different types of legal traditions that exist throughout the European Union. As with divorce cases, Scottish courts have experience of applying succession law, and they use the principle of lex situs, which means simply that where an estate includes immoveable property in another state, the law of that state will apply to it. That is a simple and straightforward practice.
All evidence that was received by the committee in response to the green paper's proposals concerning the registration of wills was strongly against any compulsory scheme, so the green paper gives us something to worry about. In my opinion, the beauty of Scots law in relation to wills is that one can register a will quite informally, as long as one dates it and signs one's name. The proposals would remove that possibility for drawing up a will, because wills would have to be registered in every case.
It was no surprise to me that, after hearing from our excellent expert witnesses, the committee spontaneously and unanimously opposed in principle the development of any further Community instruments in family law. We also consider that the Commission has so far failed to provide any compelling evidence of significant need or demand from EU citizens for action. Many of the proposals in the green paper could have significant implications for Scottish citizens, who will, by and large, have no idea that the EU is going to be legislating in that area of law.
Our experience, gained from being involved in the creation of the Brussels 2 regulation, is that once the UK opts into such a process, our needs are compromised and change becomes, to some degree, inevitable. We should learn from experience and seek to protect the traditions and values that are incorporated in our law. We can justify retention of our law in our land. In the light of the evidence, the committee's unanimous view is that the
"proposals are fundamentally flawed and unnecessary".
We therefore recommend that the Scottish Executive strongly urge the UK Government not to opt into any draft Community instruments that emerge following the conclusion of the consultation processes.
I move,
That the Parliament notes the concerns raised by the Justice 1 Committee in relation to recent European Commission Green Paper proposals on applicable law in divorce and succession and wills; agrees that the proposals are not in the best interests of the people of Scotland, and, in light of the Committee's views that these proposals are fundamentally flawed and unnecessary, calls on the Scottish Executive to urge the UK Government not to opt in to any draft European Community instruments which emerge following the conclusion of these consultation processes.
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 condemn the European Union's position on applicable law in divorce and succession and wills, I remain a supporter of the concept and the principle of the EU. However, it seems to me that the proposals in the green papers are not what the EU is meant to be about.
I have supported the EU's enlargement and will support the assimilation of other nations, and I believe that we must ensure that we can address the EU's social needs as well as its economic needs. However, it is one thing to try to harmonise social welfare legislation and quite another to impinge on an area that has reflected the basis of our society for generations. I oppose the EU's positions as adopted in the green papers, but I do not believe that I am, by setting out my opposition to where the green papers are coming from, going against the concept of the EU; I am merely taking part in a continuing debate about what that Union is meant to be about.
For almost 1,000 years, we have had a distinctive legal system in Scotland. Notwithstanding that we live on the island of Britain, where there is a distinctive jurisdiction south of the border, we have for 300 years maintained a separate legal system while we have operated within the union of the United Kingdom. I argue that that state of affairs has been beneficial to Scotland because it has allowed the country to go its own way on legal decisions, even before the re-establishment of the Scottish Parliament. We have been able to decide how to run our society and the EU should recognise that.
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 aspects of the environment and the economy and on the issue that is under debate, which is a justice and home affairs matter, are there areas in which harmonisation in the EU would be compatible with the SNP's position?
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 party-political point, but I am addressing proposals that would have a fundamental effect on the law of Scotland. I fully support the position of Ms McNeill and the Justice 1 Committee and I have no doubt that the minister will be sympathetic to it. We can by all means discuss the proposals in a wider context, but Mr Purvis's point is a side issue.
Society—both in Scotland and in the European Union—has become much more complicated. People have flats in Benidorm and villas in Tuscany; they move to Frankfurt to work; sadly, they die abroad; divorces happen and people marry people from other countries. Many of those developments are good and we should support them. They make the law more complicated, but I believe that our legal system is perfectly capable of addressing such matters because it has always been able to address complicated situations.
As someone who has dealt with numerous matrimonial cases—although not in the same context as my colleague, Stewart Stevenson—I know that there are devices, such as the Hague convention, for addressing situations in which disputes arise over which jurisdiction is responsible for, for example, the domicile of a child. Such cases are often complicated and that is an area of the law that requires to be refined because sometimes different interpretations are made in different jurisdictions. Measures exist to allow individual nations' to interpret laws in their own way. Matters such as how a property that is owned in Tuscany or Benidorm should be dealt with can be addressed in the context of the current Scottish legal system. Developments are afoot in the EU, but our legal system is capable of recognising that.
Turning to broader matters for a moment, I say to Mr Purvis that one reason why I support further progress in the EU is so that we have a bulwark against the United States. That said, there are legal differences even within the USA—the state of Louisiana operates differently from the state of Alaska and the set-up in the state of Texas is different from that in the state of Massachusetts—but the system manages to operate.
There is no need for the EU to dragoon us into going down its preferred route. There are many apocryphal tales that would bring the EU into contempt, such as those to do with the banning of bagpipes or the placing of restrictions on haggis, most of which are not true. Many of us who support the ethos of the institution must argue against the proposals in the green papers because they are fundamentally wrong. Some areas of law are complicated, but the lawyers in our legal system are adequately trained to deal with them.
We should therefore go down the European Union route that the Government and peoples of Finland support, which is the fields-of-responsibility route. For some areas of the law, it is appropriate that we come together on a broader European Union basis, but other matters need to be addressed on a more regional or geographic-area basis—whether that involves an area such as Scandinavia or a part of the British isles. Some matters should be decided by individual nation states; the subjects of the debate fall into that category.
Scotland has distinctive matrimonial law. That is why we have the Family Law (Scotland) Act 2006. We also have distinctive law on succession. That is why we have introduced legislation on that and why we consider the Scottish Law Commission's views on a variety of such matters. There is no need for the European Union to impose or impinge upon us; we have shown that we are capable of working with other jurisdictions, whether in terms of the Hague, Warsaw or other conventions. The European Commission should leave Scotland well alone.
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 Justice 1 Committee's findings, but simply because, having visited Brussels with the Justice 1 Committee and having talked to EU officials on a number of occasions, one thing has become abundantly clear: the Scottish Parliament has to be at the very beginning of the decision-making process at EU level. Members of the Scottish Parliament need to become involved in the process as soon as a proposal comes forward in Brussels, which is often the first time an item appears on an agenda. I say with some confidence that that is what the Justice 1 Committee did in this case. If we fail to do that, the consequences could be far-reaching. Certainly, a watching brief needs to be kept on the seemingly endless number of proposals that emanate from Brussels. At first, they seem to be for the mutual recognition of judicial decisions, but they go on to become proposals for creeping harmonisation.
The two green papers that are before us contain proposals to harmonise the laws that apply to divorce and succession and wills. Having taken evidence from the Law Society of Scotland, stakeholders and academics, the Justice 1 Committee was unanimous in its rejection of the terms of the green papers. We rejected the Commission's assertion that there is a demand or need to harmonise the applicable law in those areas. The Commission failed to provide statistical evidence to back up its assertion.
We believe that existing Scots law is working very well in applying the principle of lex fori, which is that our law is equivalent to the law of other jurisdictions. Harmonisation of the conflict-of-law rules could lead to a number of different possibilities. First, it could lead to other principles being introduced into our courts, the adverse consequence of which would be uncertainty about the law that is to be applied. At the moment, there is no such uncertainty. It could also lead to additional complexity which, in turn, would add to delays and increase costs. Harmonisation would almost certainly move international divorce hearings from the sheriff court to the Court of Session. If that were to happen, it would be contrary to both Scottish and EU efforts to provide wider access to justice.
The committee had similar reservations about the provisions in the green paper on succession and wills. Under Scots law, the courts apply the law of the deceased's ultimate domicile for moveable property, and the lex situs principle for immoveable property. All the witnesses told us that our present system works extremely well. As Kenny MacAskill said, this area of the law is a growth area, given that Scots and other EU citizens are now buying property abroad and living abroad. However, the rules that we have put in place and the principles that we have adopted are working well. In those circumstances, there is no need for change.
The green paper proposes a compulsory registration of wills to replace the informal registration that Scots law uses at present, which is not only cost effective but encourages people to make a will. I believe that the proposal would have the opposite effect to that which the Commission envisages: it would create a disincentive to people to make a will and would create a situation in which an informal but valid will could be struck down in favour of a registered will that had been made earlier, even though the registered will did not reflect the wishes of the deceased.
For all the reasons that I have given, the current system is more than adequate, so acceptance of the green papers would be a retrograde step. The Justice 1 Committee nicely summed up the situation when it said in its response to the green papers:
"The Committee is opposed in principle to the development of any further Community instruments in the area of family law. The Committee considers that the Commission has so far failed to provide any compelling evidence of significant need or demand from EU citizens for Community action in this area."
I am more than happy to support the motion.
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 Commission green papers on applicable law and jurisdiction in divorce and succession and wills threaten the way in which we deal with such matters in Scotland. We should be clear about the fact that the implementation of the proposals could lead to a situation in which Scottish courts applied family law to divorce cases and required people to register their wills. We do not want such a situation.
People who work on EU family law proposals claim that the free circulation of decisions is particularly important in family law, because family ties are increasingly being formed between nationals or residents of different member states. In that context, it is important that there be clear rules on jurisdiction and applicable law in matters of divorce and parental responsibility, and it is important to establish common-effect rules for the recognition and enforcement of decisions within the EU.
Perhaps a member will correct me if I am wrong, but I understand that there has been no debate on the matter in the European Parliament, although I think that national ministries of justice were represented when the issue was debated in public at a meeting a couple of days ago.
The Justice 1 Committee received evidence from a number of witnesses, including the family law sub-committee of the Law Society of Scotland, which took the view that the application of foreign law in divorce cases would inevitably lead to considerable delays and, as a consequence, increased costs for all parties. Indeed, the Scottish Legal Aid Board suggested that costs could rise from £1,827 to £6,649. The Justice 1 Committee only recently considered the Family Law (Scotland) Bill, which made provision to change the time limits for divorce and other matters. We should allow the Family Law (Scotland) Act 2006 time to settle in so that we have an opportunity to ascertain how the reforms that it has introduced work in practice. We can return to the issue and examine it further in the next session of Parliament, if we want to do so.
In a letter to the committee, the Law Society of Scotland said:
"Representatives of the Society agreed that there was no particular problem in relation to jurisdiction in relation to forum shopping or in relation to applicable law. The current rule of Scots international private law—that the lex fori principle, the law of the forum, applies—seems to present no problems in Scottish courts as far as is understood from a practitioner perspective. The Society does not think the case has been made for harmonised divorce law."
That ably sums up my view on the matter.
The green paper on wills and succession was published on 1 March 2005, which was when the public consultation started. The aim of the consultation was to canvass opinion on the practical problems. Again, a number of witnesses gave evidence to the committee and we were told that a number of previous attempts to harmonise the law had fallen on stony ground. We also heard that the Scottish Law Commission is about to review domestic succession law. I am sure that the Scottish Law Commission will do that well and that it will approach Parliament with appropriate proposals for change.
The proposed requirement to register wills would be counterproductive, and the committee heard no evidence in favour of a compulsory registration scheme. I emphasise the point that Pauline McNeill and Margaret Mitchell made: many Scots write their wills by themselves and have them witnessed without incurring the cost of a solicitor. Such wills are perfectly legal if they are signed and witnessed and would be accepted by a Scottish court. If we were to agree to the EU proposal, it is likely that such informal wills would not be accepted if a previous will had been registered through a solicitor. That is another reason not to accept the EU proposals.
I accept that times are changing. More and more people buy property abroad, live and work abroad and, for that matter, die abroad. In the future, some harmonisation of the conflict-of-law rules may be desirable but, as I have said before, at that point the Scottish Law Commission should produce proposals on how to change Scots law.
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 supporter of the UK's membership of the European Union, but I will never accept that it should dictate on issues that affect the lives of people in Scotland. I strongly support the idea that, as a democratically elected Parliament, we should robustly challenge EC proposals.
In last week's debate on international women's day, we all agreed that that should not be the only day on which we discuss issues that affect women. Today, we acknowledge, with due respect to members of the European and External Relations Committee, that many committees of Parliament—not just that one—need to take an interest in European issues. The Justice 1 Committee took evidence on applicable law and jurisdiction in divorce and succession and wills. Although that may sound like a mouthful and people may not immediately understand what is involved, many of us may already have been touched by the issues and many more will be in the future.
More marriages now take place between couples of different nationalities. Given that such people may marry in a third country and live and then seek to divorce in a fourth country, we can understand why there could be a need for certainty about which law, or which country's law, will be used if a divorce is sought. It is also easy to understand that couples' family members can be of different nationalities and live in different countries. We must consider which law pertains to succession and wills after a death. The Justice 1 Committee took evidence diligently on the issue—in writing from various officials and the legal profession and orally from representatives of the Law Society of Scotland and Scottish Executive officials. As is becoming fairly commonplace for the committee, we also had a videoconference with European Commission officials.
As has been said, in divorce, Scotland presently uses the principle of lex fori, which means that the law of the country in which the case is brought is used. That principle gives certainty, because people know what the law will be. It avoids doubt as to which law is to be used and it avoids the additional work and cost for legal professionals and the couple, of dealing with what might be unfamiliar law. The concern that one of the couple may rush to a particular nation's courts to gain an advantage over their partner is not supported by any evidence. Therefore, the committee's view is that, on divorce, it would be prudent to let the relatively new jurisdictional rules in the Brussels 2a regulation settle down before they are reviewed and possibly changed.
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 different member states of the EU, which would add complexity over and above the issue of the jurisdiction within which the divorce takes place?
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.
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.
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 convention. In fact, if the Commission went in the opposite direction and looked for simpler solutions, such as the one that we have in Scotland, perhaps there would be less for it to do.
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 make laws that are as close as possible to the people who will be affected by them. If we are to engage again in a debate about the European constitution, I hope that that principle is to the fore.
I agree with the Justice 1 Committee's conclusions, which, while they are robust, are nevertheless correct. I speak in particular of the committee's concern that no impact assessment has been done by the Commission to determine what the effect would be on member states' substantial, procedural and conflict rules of the various proposals that have been set out. That is an extremely relevant point, not only to this debate on the proposals but to the wider issue of impact assessments in member states and devolved Governments when proposals are made.
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 banging on frequently about the old saying, "If it ain't broke, don't fix it." It would be total nonsense to fix this, because there is no problem with the existing system.
I am not the most Eurosceptic of individuals, but there is a school of thought that the Commission is staffed by little men and little ladies with not a lot to do, who look at what they can get up to pass the time and to become increasingly intrusive in people's lives. That is not a view to which I particularly subscribe, but when I see the measures that are being advanced I could be persuaded. From what I can tell from the Justice 1 Committee's report, there has been no statistical evidence under either of the headings in the legislation—the divorce and succession aspects—that would justify any change in the law. How much did it cost for the measures to be introduced, simply for them to be rejected by anyone with a scintilla of common sense? It is significant that the UK Government, a body that is not renowned for having that degree of common sense, has reacted negatively to the proposals.
Kenny MacAskill was correct to flag up the fact that we are becoming more internationalist in outlook and activity. That is no bad thing. People have holiday homes abroad, we have transferability and mobility of labour and, as we know, tragically, accidents happen all too frequently. However, there is nothing that could happen that would not be met within the law as it stands. The law of Scotland in respect of succession makes it clear that the immovables or capital assets should be dealt with in the country of domicile, whereas the movables should be dealt with in the country where the incident happened. There are no issues that need to be addressed.
Frankly, I despair when I see the European Commission advancing such measures. It is indicative of a body that is hell-bent on being much more intrusive and in which no great thought has been applied to the proposals. On this occasion, the Justice 1 Committee—steered ably, I am sure, by Margaret Mitchell and convened admirably by Pauline McNeill—has come up with the right solution to the problem: complete rejection of these nonsensical proposals. We can all carry on quite content that Scots law is in a position to cope with any problems that may arise.
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 Europe that is known as Ayrshire. I am married to a Scot and have not so far had any difficulties in that respect.
I thank the Justice 1 Committee and its convener for bringing this topic to the chamber for debate. It has been a welcome opportunity to discuss some concerns about the developing proposals on applicable law and jurisdiction in respect of divorce, succession and wills in an EU-wide and cross-border context. In her opening speech, Pauline McNeill referred to the glazed looks that she encountered when she tried to explain the proposals. I am glad that there have not been glazed looks in the chamber this afternoon, because Pauline McNeill, Kenny MacAskill, Mary Mulligan and, I have no doubt, other members have had examples explained to them that make it clear that this is no dull, technical debate but one that could have important implications for people in their daily lives, given the changes in the way in which people move around Europe.
I have listened with great interest to the points that have been made. Like all members present, I hope, the Executive attaches great importance to our role in the formation and implementation of all EU legislation that impacts on devolved areas. In consultation papers that affect broader aspects of family law in Scotland, we see examples of proposals that would impact on the lives of many people here. I hope that members such as Mary Mulligan and, in particular, Kenny MacAskill will agree that it is right and proper that the Executive and the Parliament should be at the heart of Europe and should play an active role in EU justice and home affairs issues in general. That is why I believe that it is important that my officials and I have established good communication links with EU institutions and that I take the opportunity, whenever possible, to attend justice and home affairs councils in Brussels as part of the wider UK delegation.
We are committed to the fundamental principles of protecting individual rights and making legal procedures in Scotland more efficient, to which Europe is central. That is why it is right that the Executive engages with, understands and examines the proposals on cross-border divorces and succession. However, we must do so in a way that upholds the principle of fairness and ensures increased speed and efficiency for both Scottish and other UK citizens' access to the European Community's diverse justice systems. As many members have argued, that is very much about ensuring that the provisions of Scots law are protected. As is the case in criminal law, there are strong arguments in favour of mutual recognition, rather than harmonisation at all costs. We have heard some examples of those arguments.
I will make a few brief points about the Executive's position on one or two aspects of the proposals that we have heard discussed. My officials worked closely with officials in Whitehall to ensure that the final UK Government response to the green paper fully accommodated the Scottish position on applicable law and jurisdiction in cross-border divorces. From the UK Government's submission, it was clear that anything less than the application of the law of the forum—the place where the case is heard—would not be desirable for UK jurisdictions. I agree absolutely with that position. There was a similarly clear message on the questions of jurisdiction that would provide rules on which member states' courts would have competence to hear the case.
Although there might be some limited use in revisiting existing jurisdictional rules, we are not persuaded that the EU's Brussels 2a regulations, which regulate cross-border divorces, should be unpicked in the absence of hard statistical evidence that the existing rules are unworkable. It is not often that Bill Aitken steals my lines, but I think that we heard him use the phrase, "If it ain't broke, don't fix it." That came across strongly from a number of responses to the consultation document.
It remains to be seen what the Commission will issue in the way of draft legislative proposals. It would seem—as we have indeed heard this afternoon—that the UK is not the only member state to prefer an applicable law regime in which the law of the forum is the law to be applied in cross-border cases. The importance that is attached to that principle was outlined by a number of other member states at an intergovernmental meeting that was held in Brussels earlier this week.
I very much welcome the constructive speeches that have been made today on influencing and informing our approach in Scotland in relation to what might emerge in future European proposals. We can influence the shape of proposals only if we are involved in the process; we cannot afford simply to be dismissive or excessively narrow minded in pursuing outmoded ideas of what some would see as Scotland's best interests. A debate such as this gives members an opportunity to express their views and concerns in a timely fashion.
There are no draft legislative proposals as yet from the Commission. I stress the fact that both the green papers to which the motion refers are simply consultation documents at the moment. Concrete proposals on applicable law and jurisdiction in divorce are expected to be issued at some point in the summer or in the early autumn. Proposals on succession and wills are likely to be issued later this year or early next year. Today's debate and the points that have been made during it will help us to respond as and when any firm proposals emerge.
A number of members pointed out how important it is to ensure that Scotland's interests and legal traditions are safeguarded in any proposals on applicable law and jurisdiction on divorce or on succession and wills. I restate my commitment to remain fully engaged with the work that the Department for Constitutional Affairs and its ministers are doing to ensure the best outcome for Scotland and for the United Kingdom in relation to any proposed instruments in this area. Executive officials will, of course, work very closely with their Whitehall counterparts ahead of any draft legislative proposals. The UK Government is refining some of its key points with academics and practitioners, and we have taken the opportunity to do the same in Scotland. We will continue to work with the DCA. We are in the final stages of co-ordinating a response, which will be submitted next month.
Pauline McNeill, Margaret Mitchell and Mike Pringle highlighted a number of reasons why it is important that we take a view on succession and wills in particular. I expect that the final response that will be submitted will include some issues around the practicalities of the creation of a European register of wills and a European certificate of inheritance, as well as address the protection of heirs in Scotland and the matter of legal and prior rights in succession. It might also deal with the question how to safeguard a lifetime gift, which, in Scots law, would not automatically be reincorporated into a testator's estate upon death.
We have an opportunity to influence the shape of future proposals. I am clear about our need to continue to work closely with our UK Government partners and with stakeholders. As soon as any concrete legislative proposals emerge, we must feed in the Scottish position to the overall UK member state position. That is very important to us. I emphasise the importance of recognising the fact that the green paper consultation is still at a very early stage. We will need to examine whatever is produced in the future.
We have heard a number of important speeches this afternoon, which will help us as we develop our further work. On the basis of the debate, I am pleased that the Justice 1 Committee and the Executive are operating according to the same principles. We will continue to press the case as it has been made today. We will seek to ensure that Scots law is protected and that we operate on the principles of mutual recognition, rather than on those of unnecessary and unhelpful harmonisation.
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 that acting at an early point in the European legislative process increases dramatically the likelihood that one can influence the outcome. We have seen too often, when intervening at a late stage, that when a proposal has achieved a degree of momentum it can be difficult to dislodge.
The debate can be summed up in one simple phrase. Parliament is saying clearly and unambiguously to the European Union and its officials, "Get your tanks off our lawn; we're nae having it."
A number of members have raised the issue of the internationality of Scotland and the people in it and reference was made to some of my constituency work, which touched on that. It is worth saying that in the past couple of years a widow of a member of the Movement for Democratic Change in Zimbabwe has sought my help—her brother and her husband were both murdered by Robert Mugabe's men; I have heard from a Chinese acupuncturist who had residency problems; and I have spent something of the order of £500 on translation fees in seeking to help a Latvian father whose daughter had the misfortune to die in my constituency. I do not imagine that any member has had nothing of a similar nature in their constituency work.
The world is international; we cannot roll that back. That is not even a recent development. My great, great grandfather William Stewart emigrated to the United States, but did not like it much and came back. My great, great uncle Alexander Berrie went to Australia; he did like it, stayed there and became a multimillionaire. A rather distant cousin of mine, James Jeffrey, died in Shanghai in 1870 at the age of 33, thus cutting off his potential before it could be fully realised. In all the weddings that I have attended in the past 15 or 20 years, there have been six different nationalities among one or other of the partners. I am one quarter English, so I am used to cross-jurisdictional marriages.
I take particular interest in internationality because Banff and Buchan is the most cosmopolitan constituency in Scotland, which is reflected by the fact that we have three consulates. That might surprise some members.
There is little doubt that few if any of us have been approached by our constituents or by anyone else saying that the law that touches on international private affairs in either divorce or testamentary affairs requires to be changed. I have not met anyone who has been so approached. The reason for that is straightforward: by and large, the law works as well as it is possible for such things to work. None of us wishes ever to encounter either circumstance, but the reality is that death is inevitable and divorce is all too common. It is important that we have a well-founded, well-understood and well-established system for dealing with those matters. In Scotland, as in the majority of the countries in the European Union, there are well-established processes that mean that the law works pretty damn well.
Why are we considering change? Cynically, I say that it is perhaps because idle hands are looking for work to do. It would be proper for us to consider change that provides mutual benefit to people throughout the European Union, where there is a genuine, identifiable problem that requires it. We should make such changes by mutual decision making, which would ensure that the distinctive Scottish system was represented in whatever way was appropriate at the time. In that way, we would have mutual laws and practices. However, if there is no need for change, change should not be driven by officials.
We are clear that there is absolutely no blank cheque for EU proposals in this area. I do not believe that any political party, in the Parliament or beyond, wishes us to act in the way that the green paper suggests.
Under Scots law, it is straightforward to establish jurisdiction in divorce and testamentary matters. If we reach the position where people can shop for jurisdictions, applicable law will get really complicated. Recognition and enforcement work quite well at the moment.
Think of this: if the law were to change, fewer people might go to another country to marry. I am neither for nor agin that, but the people in Gretna might regret it if their business went down a bit because of potential complications for people who want to travel to another jurisdiction to marry.
The freedoms of people throughout Europe are protected by the status quo; the freedoms of people in Scotland are served adequately by existing Scots law. I hope that the minister either in her ministerial capacity or, if that is not possible, in her private capacity, will ensure that a copy of today's Official Report is delivered to the appropriate people in Brussels. I add my support to the motion.