 Gwelom ddaeth i gael i'n ddiolch yn Gwylltofn, unrhyw mewn llwnig, cerdd Gain, a gyrfa hon i Gwelom arferwur aethau aethau i 2019. Rhyw o'r gwstd Car content, llwn i gael i'n gweld â'r cyflawn. Ysgriff erbyn i Gwelom yn cael ei ddod api ddifoledigol, gan â fwrdd i Gwelom aethau aethau i 2019. Rwyf aen nhw'n gweithredu, llythiau cyfwyr, ac gwylliant, llythiau aethau, EUX Scotland amendment etc. EU exit, Scotland amendment etc regulations 2019 draft. I welcome Ash Denham, minister for community safety and her officials, Simon Stockwell, civil law division and Rosemary Lindsay, director of legal services with the Scottish Government. This item is a chance for members to put to the minister and her officials any points that seek clarification on the instrument before we formally dispose of it. I refer members to paper one, which is a note by the clerk, and paper two, which is a private paper. Minister, do you wish to make an opening statement? I would, thank you convener. I just like to say a few words about this draft SSI, the jurisdiction and judgments family, civil partnership and marriage same-sex couples EU exit, Scotland amendment regulations of 2019. This draft SSI relates to family law and Brexit. EU provision has not generally impacted on the substance of family law, but instead EU provision has made provision on matters such as which courts would have jurisdiction in EU border cases and on the mutual recognition of judgments. This SSI relates in particular to EU regulation 2201-2003, commonly known as Brussels 2A. Brussels 2A makes provision on issues such as jurisdiction of the courts in divorce cases and on mutual recognition of family judgments in the areas of parental responsibility such as contact and residence cases. This SSI is in the event of a no deal. Obviously, that is not the Scottish Government's preferred position. We regret the decision to leave the EU and we would regret a no deal Brexit as well. However, we do have to prepare for all potential outcomes and we have had to consider the best approach in this area if the UK should leave the EU without a deal. As I indicated in the letter that I sent to the convener last week following the comments by Mary Fee at the DPLRC committee, we think that the best general approach in this area is to fall back on international Hague conventions. There is a 1996 Hague convention on jurisdiction, applicable law, recognition enforcement and co-operation in respect of parental responsibility and measures for the protection of children. Relying on this helps to provide the necessary reciprocity, which unfortunately will be lacking in EU measures if the UK leaves without a deal. Clearly, there are some downsides, but these are inevitable if the UK is to leave the EU. Some stakeholders have suggested that enforcing judgments under Hague may be slower and maybe more expensive than under Brussels 2A. It is very hard to quantify that at the moment. In relation to recognition of divorces, Brussels 2A currently provides certainty that a divorce will be recognised across the EU and that will be lost when we leave the EU. However, there is a Hague convention on divorce and this is from 1970, which has been implemented in the UK by the Family Law Act 1986. We will continue in Scotland to give wide recognition to overseas divorces whether they are from the EU or indeed from elsewhere. On jurisdiction of the courts in divorce and similar cases, we are proposing to go back to the jurisdiction as it was before EU provision was made. In relation to divorce, that means that the Scottish courts would have jurisdiction if at least one of the parties had been habitually resident in Scotland for a year or more or is domiciled here. Those rules are based on a Scottish law commission report from 1972. We recognise that 1972 is quite a long time ago. The word is quite old and, in due course, we will review jurisdictional rules in this area. The exact timings of that review will depend on exactly what type of Brexit takes place. It is generally accepted that Brussels 2A does not extend to same sex relationships, given the varied views across EU member states on the recognition of same sex relationships. As a result, we made domestic provision to mirror Brussels 2A when both civil partnership and same sex marriage were introduced. This SSI revokes that domestic provision and puts jurisdiction of the Scottish courts in same sex cases on the same footing as for mixed sex cases. The one exception is that we have retained a jurisdiction of last resort for cases where the couple registered a relationship here and it appears to the court to be in the interests of justice to assume jurisdiction in the case. Finally, convener, we recognise the need to provide guidance to both legal practitioners and also to the public. Providing guidance in this area is not straightforward. We don't know what sort of Brexit we're going to have and we also don't want to cause any unnecessary alarm either, but we will issue guidance to both practitioners and to the public. We want to provide as much clarity and certainty as we can. I'm grateful, convener, for the opportunity to outline the impact of this SSI and I'm obviously happy to take any questions that the committee may have on it. Okay, thank you. John Finnie. Thank you, convener. Morning panel. Thanks for your comment, minister. Minister, I welcome your comments about the same sex provision. I'd like to—and I'm certainly pleased that the Hague and the EU systems both, and I quote here, have the best interest of the child as a guiding principle. That's welcome, but also, as you noted in your comments, the view that these procedures would be slower and more expensive. So slower would impact on the child and more expensive may in fact affect access to justice. I wonder, in the broadest sense—we've done a series of these SSIs, and there's no doubt more to come—has the Government done any impact assessment of the cumulative effect of all of those? Because it doesn't seem to me that there's anything that's better than the cumulative effect of all the things that are going to be worse as an assessment being done, please. Obviously, in terms of the general broad outline of the situation, the Scottish Government does not want to be in this position. Clearly, in time, obviously, we were talking about civil law this morning, but also, if you take it from a wider justice perspective in terms of things like security, access to European databases and so on, if we are not able to get the same arrangements that we currently have, and I would assume at this point that that is going to be quite unlikely, obviously the UK Government's political declaration has stated that they want to maintain on-going judicial cooperation, but the EU considers judicial cooperation to be closely linked to a single market co-operation. I'm not sure that those two objectives are compatible, so that being the case, we're probably going to end up with a dilution somewhere across the justice piece. It's not a situation that the Scottish Government wants to be in, but obviously, as a responsible Government, we have to make provision at this point now for the situation that we're in. For the voice of doubt, I'm not being critical of that. Rather, I'm wondering if, where are we ultimately going with this? Is there engagement with the Secretary of State for Scotland? We had him here. I have to say that it wasn't the most informative encounter that we've had in this committee. I want to understand that the landscape is going to be totally different. If we are talking slower and more expensive in relation to something as compelling as child custody cases, then that's a very, very significant thing in itself. Never mind the many, many other things that we've dealt with and are going to deal with. Well, in terms of this specific instrument, we did look at this recently, and so we know that the numbers involved are significant, but they're quite small. But I'll ask Simon, if he wants to give a little bit more detail on that for you in the committee. We did look at numbers of cases under Brussels 2A. The central authority team who work with me deal with possibly about 10 to 15 requests per year for advice and assistance from other central authorities. We don't have hard statistics from the court service, but they said that there are a number of requests for certificates. We did try to get some quantification, a specific point that you raised, Mr Finnie, about how much slower and how much more expensive would it be to enforce under Hague than it would be under Brussels 2A. The court service and the legal aid board thought that they couldn't spot any significant difference as far as their interests were concerned. Practitions have said that they thought that they might be slower and more expensive, but when I asked them, they could actually quantify that. They said they couldn't actually quantify that. Some of it might be down to possibly the generality of people are familiar with EU measures on the whole, where less familiar possibly with Hague conventions. When we've looked at civil law more generally, the impact of Brexit on civil law, our very broad conclusion is that in family law, as we've mentioned, as the ministers mentioned, there are good fallbacks in relation to Hague. There might possibly be some gaps away from family law in terms of recognition of judgments and things like that, where some of the fallbacks may not be quite so good. In very broad terms, we think that in family law, there are good fallbacks. On civil law, more generally, there are fallbacks, possibly not quite as good as there are in relation to family law. I thank you very much for what Mr Finnie has said and thank you minister for outlining the background to this. I think that it in the sense reinforces what we were hearing through the earlier evidence sessions that we were taking both on the civil side and also in relation to criminal law. Again, like John Finnie, I have no problem with the approach that has been taken by the Scottish Government in this context, but I am concerned at the fact that we appear to be in a situation where what is being put in place in light of a no deal is likely to be slower and more expensive, though I appreciate that. It is difficult to quantify. Is there anything that the Scottish Government feels that it may be able to do to mitigate that, where it to arise? I think that recognising the point that has been made, where cases progress more slowly, there are issues in terms of child impact and in terms of the cost. Again, there are potential impacts in terms of access to justice. Is there anything or any work that you or your officials have done that is looked at ways in which that might be mitigated? Obviously, extensive preparation has been done across the whole of the Scottish Government but, essentially, I am sure that the committee will understand that we are in uncharted waters here. The Scottish Government is just having to put in provision to make sure that we can have legal certainty and access to justice as best as possible, as we can, bearing in mind the situation that we are in with regard to a Brexit that Scotland did not vote for. That being said, I will ask Simon Simon if he has any more detail that he can provide for you. I think that the one area that I think we can do, and the minister mentioned it in her opening statement, is that we are thinking about what sort of guidance can we provide to people. That is quite tricky because we don't want to alarm everybody unnecessarily and obviously we don't quite know what's going to happen in terms of Brexit, even as late as this. But we are thinking that we would put some material on our website, which is public facing about the implications for people involved in cross-EU cases. We are also thinking about some more technical material to go out to legal practitioners to keep them informed as well. We will probably be meeting some of the legal practitioners as well sometime this month. One of my colleagues has already arranged a meeting with the Law Society of Scotland and I imagine that I would also want to meet the Family Law Association as well, just to talk through some of the implications for them. Is there anything else that the Government could be doing that might help during this period? You talked earlier about the conversations that you had both with the court service but also with the Scottish Legal Aid Board. Is there anything that you have done by way of agreement with the Scottish Legal Aid Board that, in the event of applications coming forward, they will be expedited in a way that would minimise any of those delays or any cost pressures that would impact on access to justice? The legal aid board actually said that, from their perspective, they couldn't actually see that it would be slower or more expensive. The legal aid board came back and said that they thought that they would treat them in the same way as they would in Brussels to A measures at the moment. It was practitioners more who said that they thought that there might be delays and possibly more expense rather than the legal aid board and the court service. They thought that it wouldn't have much impact on what they do. I wonder, minister, that the whole assumption or assertion so far has been that we will be worse off but we had to run table on Family Law and, in particular, the issue of child deduction was looked at. The conclusion there was that, although the override is there in the EU regulations, it is not used. It is not looked at as a political decision on the commission's part. It is not a priority area for law enforcement from a commission's perspective. Therefore, there is no guarantee that abducted children will have the rights under EU law enforced, because no one ensures that those rights are enforced. There was the view that the Hague convention regime would be a better regime because of that. Could you comment that? There may not all be a downside. There may be some positives. No, I think that that is a fair point. When I was talking about us being worse off, I did preface what I was saying in a general sense. With regard to things like security and other justice issues, it is fair to say that in some aspects of civil law, particularly relating to things such as what we are discussing this morning and Brussels 2A, the Hague convention does provide a very reasonable fallback, which we have set out. In terms of child abduction, that has been dealt with by the Westminster SI, which I think that the committee may have looked at before, but last time in Stockwell to go into a bit more detail if the committee wishes on that. What the minister said is of course entirely right. There has been a Westminster SI on this. I am familiar with the discussion that you had previously in this committee about whether the Hague convention was better than Brussels 2A. To be honest, it depends on what point of view you take. Clearly, one of the persons who appeared before this committee had a definite view that Hague conventions generally were perhaps to be preferred to EU measures, whereas other people who appeared before you took a different view. It is quite hard to say which one is right and which one is wrong. Is there more generally a feeling that sometimes what is intended on the EU's aspirations do not materialise in reality and in practice? I think that Brussels 2A, for example, is used and the EU maintenance regulation is used. I am certainly aware of some EU measures that are not really used, such as the EU measure on mutual recognition of civil protection orders, which is not really used. To be honest, you could point to some domestic provision in Scotland that we have made that is not used either, as well as I would have thought. EU measures in relation to family law are used and people who have got used to them over the past 10 to 15 years. Any more questions? Daniel Johnson? The issue of reciprocity, which is not always an easy word to say at this point in the morning, is obviously flagged by Mary Fee. So far in our questions this morning, we have asked about people using the Hague conventions in Scotland pursuing those measures through the Scottish courts. Can I ask what analysis has taken place in terms of what the situation Scots may find themselves living in other jurisdictions pursuing these measures using Hague conventions in other legal jurisdictions? That is a good point. At this point, we have good co-operation with other EU member states. In Scotland we have the role of the central authority, so we receive requests and then we also put out requests on issues of child protection. I know that that was brought up by Mary Fee in the other committee for reports living in Scotland and so on. If there was a report that came in—this is after Brexit—that came in from another country—it came from Bulgaria or Poland or something, worried about a child that was living in Scotland, we would consider child protection to be crucial in that area and we would still act. If we thought that there was a child in danger, we would act. That request could come from any Hague convention country. The other point that I would make, Mr Johnson, is that if we indeed leave the EU, we will recognise as officials that we will need to do more work on Hague conventions and we will need to ensure that we are visible. One of my colleagues is actually in the Hague this week, along with her Ministry of Justice counterpart. There is, I think, the annual meeting of the Hague convention conference to talk about issues arising, and clearly she will be discussing where we are at at the moment with other parties represented there. If we do leave with a deal or without a deal, however we leave the EU, we will have to spend a bit more time looking at international conventions and ensuring that Scotland is visible in relation to international conventions and picking up any particular problems that might arise if a party to an international convention does not respect the Scottish order or something like that. John Finnie and Mendrona Mackay Thank you, convener. I am concerned about the use of a word and the word's abduction. If we are talking about family dispute, it could be construed as that is an appropriate word, but abduction is a crime at Scots law. The prosecution of crime and the pursuit of those who have affected crime requires judicial co-operation, exercise the European arrest warrant, the sharing of criminal intelligence, all of which will be inferior if the UK leaves the EU. Is that not correct? Certainly, there are extreme question marks over the European arrest warrant, Echrys and a number of other databases that, as you say, would allow us to share information about criminals across, but this instrument does not specifically deal with child abduction. As we were discussing, that was dealt with in an SI that was at Westminster, but you are quite right to say that it would still be a criminal offence. How would the Hague Convention impact on custody, just to do forward custody battles, cross-year restrictions? Well, what this is intended to do is so that we can still recognise things that are happening in other countries and to make it as clear and certain as possible that things will continue to work in the way that they should, but I will ask Simon if he wants to give a little bit more detail on that. I think what the minister said there is entirely right. Brussels to a, to an extent, is largely a copy from the Hague Convention. Many of the EU family measures are actually borrowed from the Hague Convention, so to an extent we are falling back to the measures which the EU regulations were originally based upon. Now, Brussels to a is being renegotiated, as we speak, and a new version of Brussels to a is due to come into force in 2022. Clearly, it must be doubtful whether Scotland and the UK will be party to that, but, as it is, we are going back to a convention in which Brussels to a at the moment is pretty well based upon. So, in layman's terms, someone who was involved in that would notice no difference truly in the fact that the laws had changed or something? That should be the position, yes. We have talked earlier about some practitioners have said that enforcing a custody judgment in those cases in Scotland might be slower and more expensive because people are possibly less familiar with Hague Convention material than they are with EU material, but in broad terms, yes, it should make no significant difference. So, if we say people, do you mean lawyers, or does that what you mean? Lawyers have told us, yes, that it might be more expensive and slower to enforce under Hague than under Brussels to a. Yes, lawyers have said that to us. We now move to debate the motion on agenda 2, which is formal consideration of the motion in relation to the affirmative instrument. The Delegated Powers and Law Reform Committee has considered and reported on the instrument and has no comments on it. The motion will be moved with an opportunity for formal debate, if necessary. The motion is motion 15920 that the Justice Committee recommends that the jurisdiction and judgments family, civil partnership and marriages, same-sex couples, EU exit, Scotland amendment, etc. regulations 2019 draft be approved. Minister, to move the motion. Moved, convener. Do members have any further comments? No. The question is that motion 15920, in the name of Ash Denham, be approved. Are we all agreed? We are all agreed. That concludes consideration of the instrument. The committee report will note and confirm the outcome of the debate. Is the committee content to delegate authority to me as convener to clear the final draft report? Thank you for that. I thank the minister and officials for attending for answering all our questions. I suspend briefly to allow ministers and her officials to leave. Agenda item 3 is consideration of a proposal by the Scottish Government to consent to the UK Government legislating using the powers under the European Union Withdrawal Act in relation to a UK statutory instrument on the immigration, nationality and asylum EU exit regulations 2019. I refer members to paper 3, which is a note by the clerk, and ask if members have any comments or questions. If that is the case, the clerks will produce a short report if the committee is content to recommend that the Scottish Parliament gives its consent to the UK Parliament to pass the statutory instrument. Do we give that consent? We do. That concludes the public park of today's meeting. Our next meeting will be on Tuesday, 12 March, when we will consider stage 2 of the Vulnerable Witnesses Bill. We now move into private session.