 Good morning and welcome to the Justice Committee's fourth meeting of 2018.iedzieć item 1 consisted of the decision on taking item 6, which is a discussion of the committee's work programme in private, Are We All Agreed? Agenda item 2 is around table evidence session on Brexit and family law. The purpose of the round table is to explore issues around family law in the context of the United Kingdom's withdrawal from the European Union. I welcome all the witnesses to the committee round-tain evidence session today, and we'll start by doing introductions round the table if I can start. Margaret Mitchell and the convener of the Justice Committee. I'm Gail Scott and one of the clerks to the Justice Committee. Janis Scott, QC. I'm an advocate. I practice in family law, including international issues. Ben Macpherson, MSP for Edinburgh Northern and Leith. Lucia Clarke, partner at Morton Freezer specialising in family law. John Finnie, MSP Highlands and Islands. Juliet Harris, director for them together at the Scottish Alliance for Children's Rights. Liam McArthur, MSP for Orkney. I'm Liam Kerr, MSP for the North East region. I'm Maurice Corry, West Scotland region. Paul Bowman, professor of EU and private international law at the University of Aberdeen. I'm Maddie Gougeon, MSP for Angus North and Mearns. George Adam, I'm Paisley's MSP. Janine Carruthers, professor of private law at the University of Glasgow. I'm Daniel Johnstone, MSP for Edinburgh Southern. I'm Rona Mackay, MSP for Strathkelvin and Birstain and deputy convener of the committee. Part of having the round table is a more informal setting. The evidence is obviously still recorded and out there in the public domain, but it's to allow a more free exchange between witnesses and members. Having said that, if you always come through the chair, then we can keep control of it. Don't worry about your microphone or having to press anything. When it's your turn to speak, again, as if by magic it will automatically come on and you'll be able to speak into the microphone. Can I just thank all the witnesses who have provided written evidence? There's obviously a lot of work going into those submissions. There is the potential for today's session to be very complicated, technical and not really achieving too much. The essence of what we want to get through is a round table that a man in the street could look at and understand the extent of the problems, the options available and where we go from there more or less. So, with that in mind, I thought maybe I'd start trying to look at the extent of the problem with family law and the various aspects. Perhaps that's Lucia, if you would kick off as you do a very good bit in your submission, just putting that in context. I started just with the figures that come from various other papers that I've looked at this in terms of the number of international cases. 1,440,000 international divorces, 1,800 cases of child abduction and that's within the European Union each year. I don't have specific figures for the UK or indeed Scotland, but I think we're all aware that families move about, people move about and this is an issue likely to increase rather than decrease in terms of families with different people, different assets across borders. The areas that we're looking at, would somebody kind of like to pick that up and the potential impact, the size of the problem really that we're looking at to continue it with that? I would like to kick off with that. I'm happy to begin picking up the point that you made about this potentially being a very technical area of law, that is true, but I think at the Brexit negotiations, the referendum people did not identify this as a possible area of controversy because it has been dressed up as technical and procedural, but in fact one pairs it back as Lucia Clark has pointed out for people who live in families in this session, in businesses and consumers in the next session, employers, employees, there are very significant practical implications of this, looking at three particular areas of international private law, which is basically the area of law that we're concerned with here, questions of jurisdiction which arise, which court is competent to hear a particular dispute involving a cross-border family, questions of applicable law, namely the court exercising jurisdiction, what law will it apply, which country will it apply to determine the dispute arising and then the question of the recognition and enforcement of overseas judgments, to what extent will a Scottish court recognise judgments overseas and vice versa and the rules of international private law, private international law, those are the rules which dictate how those three problems of jurisdiction, applicable law and recognition and enforcement of judgments should be determined. The position will be that on the advent of Brexit the European Communities Act 1972 will be repealed and with that the private international law landscape will change dramatically because the private international law landscape currently in Scots law is European in character and there are various regulations, European regulations currently applicable and it is the operation of those instruments that will be in question upon the advent of Brexit. That's helpful. Can we look at the kind of issues that we're talking about? We're talking about family law. Last year I was asked to litigate a case for a wife who was in Scotland and a husband who was living in France and there was concern about what law would apply. The EU instruments don't govern for us what law, applicable law, they govern the court. Can I ask what the case was about? Was it divorce? It was a divorce case, yes, so we were concerned about the money aspects of the divorce case and we started proceedings in Scotland deliberately in order to secure priority for the wife's divorce and the Scottish rules for financial provision. Under the current EU provisions the court that starts first carries the case and no other court within the EU can then intervene. Following the withdrawal bill if I had the same case and I started in Scotland I could not guarantee that the French court would not start because they would not recognise the fact that the Scottish court had started first. The problem that we will face with the withdrawal bill is that if we implement it as it is currently drafted we are saying we will carry on with EU rules and we will recognise a court that starts first but no other court in Europe will recognise if we start first. We have a problem with that sort of case and what we could get in that sort of issue are two courts very expensively both conducting the litigation and potentially coming to conflicting decisions and that is something that I would have thought that this committee would be very concerned to prevent. We have already heard that it is private international law that dictates this so I suppose one of my questions would be is there an international recognised agreement or are there specific EU agreements too? In that particular scenario it is the EU and there is not an international agreement on priority of courts in relation to divorce. Okay, some other comments? Liam Supplementary and then Professor Bowman. Reading the papers it certainly seemed as though I could see a community emerging but it sounded as though Professor Bowman had a slightly different interpretation of what might happen and I just wondered if Professor Bowman might come in on that. Sorry. It just took five minutes instead of hearing directly from Professor Bowman but thank you for that. That was very kind of you indeed, thank you. Yes, Janice makes the point in relation to divorce which is one of the few areas where there isn't an international regime and she's quite right so she selected one where there is a problem but in most areas my evidence suggests there isn't really a problem. People are worrying I would say it's to quote Shakespeare much or do about nothing in most cases but we can have a debate about that. In divorce Janice is quite right but I have to put the opposite point of view which is that indeed we have a problem with the current regime which most people acknowledge which is that because it's a first come first serve regime and there's a European Court of Justice case law on this we see a pattern where couples who have been in England or Scotland during their married life but one of them is from France or Italy usually the husband. The husband will try and instigate proceedings first in France or Italy in order to reduce the amount of money he has to pay to his wife and we have to recognise that if he gets in first so it's a swing and roundabouts arrangement first come first serve it can suit the wife if she gets in first it can hammer her if she doesn't. Now the fallback position is the common law in this context not an international regime if we stop applying the EU instruments unilaterally and of course our fallback in this area is Scotland's proudest development in this whole area of law which is forum non-convenience we are the architect of a concept which has now been accepted throughout the common law world United States in all the commonwealth countries and it comes from Scotland and it's one of the few things we can actually say is a product of Scottish legal endeavour so I don't think it's quite shocking to apply a system of forum non-convenience which would be our courts making the assessment as to whether there is a more appropriate forum to deal with it and we declined jurisdiction in favour of the more appropriate forum the sad thing is that continental european countries don't apply that concept and they will apply normally under their common law at least spendage rule so in fact if we were seized first they would respect that that's their normal approach outside of the EU rules so you can take your choice I've never been a big fan of least spendings in fact I don't like it at all I think it's arbitrary and it's all about who's best advised and who gets in first I think a better justice system is where judges make discretionary decisions about whether the court is the the most appropriate forum to deal with an international case any more of the our invited guests otherwise them I'll follow up with some points that the committee on the same point mary was I was related to the the previous points that have been raised it was just about Janice the point that he raised about two courts essentially running in parallel over a divorce agreement so it's really who would be in a post post Brexit situation if both courts reached a decision what what overarching body would could there be to deal with that there isn't yeah and also it's just about the enforceability of each of those arrangements if both courts came to a decision in that regard how is that going to be enforced in either in either country that's precisely the danger and that's what the EU instruments were designed to deal with and I understand why paul has reservations about these pendents we all do one cannot defend the EU regime as being perfect one can say that it was a work in progress but what I think what we would like to say it was better than what we had before because it prevented parties having to litigate in two places at once because they both thought they had the right regime and then you had a problem over enforceability and given the increased movement of persons international families that is not something which in a modern world one can really I would suggest tolerate one actually has to have a regime even if it isn't the regime that one would ideally want to advance I understand paul's reasons why forum convenience is a very civilised concept on the other hand one has to have determination and finality and reduce expense and distress for families okay can I respond to that yes certainly I mean yes but the trouble is that it's not actually true that the lease benefit system works for divorce let's be candid if you technically look at it it doesn't because brussel's 2a only relates to the divorce action it doesn't relate to the financial provisions that's governed partly by the maintenance regulation and partly by instruments we're not party to which are the matrimonial property enhance cooperation regulations therefore actually a french proceeding could continue in opposition to the Scottish proceeding because half of it relates to matrimonial property and not to maintenance and they are not bound by the regulation to defer to the Scottish proceedings they only bound to defer on the question of divorce not on the financial provisions they would technically be bound to defer on the maintenance aspects but that is a small part viewed from a french french perspective a small part of the overall package so you don't get the solution that you think you get if the french court plays hardball which is perfectly capable of doing and the court of justice wouldn't prevent it from doing so because it's not a least pending situation I accept there are deficiencies Janine, were you going to respond to that? Yes, I think it's a share Professor Beaumont's pride as an academic in this wonderful export of the principle of forum non-convenience but in fact for clients who have to pay for this dispute to be settled somewhere the forum non-convenience which is a discretionary system is expensive and typically lengthy to litigate and I think those considerations have to outbalance the pride in the academic export Can I ask are we talking here about the financial settlement really there's a divorce itself and it seemed to be separated from the financial settlement now I recently attended a conference on arbitration and Lord Glenny then suggested that arbitration could be looked at recognised internationally worldwide so there would be no dispute about regulations to settle maybe matrimonial property or finance would the panel care to con that on that? The Brussels to Beas regulation is restricted to jurisdiction and the recognition and enforcement of judgments in matrimonial matters which is divorce, nullity and judicial separation and matters of parental responsibility as Professor Beaumont said it doesn't extend to the financial implications the separate regulation that we're focusing quite closely on is the maintenance regulation and that is concerned with the financial aspects either parent child maintenance or spousal maintenance but the problem highlighted is that these proceedings are not necessarily streamlined in one set so strictly Brussels to Beas is dealing with the the recognition of the divorce but not necessarily the financial implications of that Professor Beaumont yeah arbitration is an interesting idea of course the arbitration couldn't deal with the divorce itself because that was a status issue but in principle there is no reason why if couples agree they couldn't put the financial aspects of their divorce to arbitration I don't think it's a terribly common practice in international matters and I'm certainly not aware of it being a common practice but those in practice would might be able to alert me to to that it tends to be more used in the in the commercial context rather than in the family context. I'm very keen to see developed in the family context and it's something we've been working on and so that was a something for the future obviously we're going to have to take a slightly different view of it post brexit for me might have done otherwise. I was just going to make the same comment as Janice that arbitration is interesting for practitioners and academics but it's not something that's widely known or used and obviously the couple would need to agree to that it doesn't solve the problem here which is a couple who are in dispute not just about how they're going to divide their assets because obviously if everything can be done by negotiation you don't need to go near a court other than to finalise the divorce it's a couple who are in dispute about where to divorce and where to sort out the finances. George? Just one of the points that in your written evidence that Janice Scott brought up was the fact that you said this is the family law is the point where brexit becomes personal and I'm only talking from a I'm trying to keep this really simple because basically I'm coming from a simple perspective that as a constituency MSP when I've had interactions with this type of issue it's normally been one party and someone's take flight to another country sometimes with their children otherwise not but is there not a case that if we don't have anything there to actually because many times at attending divorces it's not going to be amicable there's always going to be problems and there's not a case of who's right and wrong but is there not a case that we make the system even more complex and to a stage at a time like a divorce you have a situation where there may be a party on one side or the other that might like your example you say someone starts something in Scotland someone starts in France they might use that as a way to actually continue to make their case and therefore make it longer and make the hard take in the family even worse right and that's why EU instruments that bring certainty are helpful to parties because you can at least say to them this is the court that will determine your dispute and with divorce bring comes in the financial elements what we are proposing what is proposed is really to send us off into the wilderness of uncertainty in family proceedings when we were actually on a course that was bringing us towards greater certainty albeit it wasn't perfect it was it was something we were definitely working on and I was very enthusiastic I have to confess in working on making the EU instruments better work better for families I'm involved in the council of bars and law societies of Europe on their family law committee and we were very keen to do that it was it was a cooperative collaborative exercise where family lawyers were involved in trying to make it more straightforward for families and I'm hugely disappointed confessing personally that we pulled the plug on it and julia you haven't said anything yet so can we have your contribution then yeah I just I wanted to reflect on george's point I don't come from a legal perspective I'm coming from a children's rights perspective and really want to put across the experience of children and young people in these proceedings of family breakdown which is obviously a really difficult and traumatic time for children and young people and I think as constituents the MSPs there will be more of these cases being brought to you and the uncertainty that brexit is bringing for families with EU connections is absolutely massive and I mean we do see in research that's been done with children and young people the implications on children and young people's mental health even now not knowing what's going to be happening next in terms of brexit and in terms of their rights and the research that we conducted last year actually identified that 10% of babies born in 2016 have a parent who's from the EU and so we are talking about a lot of children and a lot of families who are going to be unaffected by this uncertainty and so that's over 5,000 babies born in 2016 who are affected by this and reflecting on what Janet said about the developments at the EU that's where our research really showed the added value that is coming from the direction of the European Union in terms of children and young people's rights and so the framework that we're talking about at the moment is actually stronger than the Hague framework that we would fall back on in terms of children and young people's rights it's very clear about the need for children and young people to have the right to have their voice heard in court proceedings for example it emphasises their best interests it talks about the timescale of these proceedings which in terms of a child's life is so important and that these things need to be sorted out with certainty quickly and effectively and as Janice kind of touched on there are developments that are going forward at the EU in terms of a recast of the Brussels regulation and this is really drawing from the UN Convention on the Rights of the Child which I know the Scottish Parliament have really displayed a strong commitment to across all parties and they draw from the UN Convention on the Rights of the Child to make sure that the rights of the child absolutely central to these judicial proceedings and because as we're sitting here and kind of get buzzed and kind of brain fried with the number of regulations that are affecting children and young people children and young people don't care about that they care about the right to have their voice heard the right to not have to speak out in front of their parents in terms of cases and the right to have privacy and for certainty and that's the most important thing and that's what we're all lacking I think at the moment. Professor Bowman you wanted to come. Yeah a lot of points I mean I I advised the commission on revising the Brussels 2A I was on the expert group and we did indeed look at rights of the child issues and indeed they are being reinforced in the current recast the trouble is there's a big difference between theory and reality so we might think that EU is wonderful but actually when you do some research and see what actually happens as we did funded by the Nuffield Foundation on the application of the right of the child to be heard the evidence was appalling because actually in in the cases we were looking at which are child abduction cases where you have under EU law an override system which allows the courts of the habitual resonance of the child before the abduction to override a decision by the courts of refuge not to return the child that system requires the child to be heard before you can actually operate it and yet the evidence shows that in most member states of the EU the children are not being heard and override orders are being issued in complete and utter ignorance of their rights of the child that's the real situation so I mean there's a world of difference between EU aspiration and reality on the ground in the member states and we have to be much more savvy about that when you do real research and that was real research looking at what was actually happening in all the member states the picture is one of aspiration often but not reality and whether we're in the EU or not that will be the picture in most of these situations now in the specific terms of children when we're talking about children who've been abducted I honestly believe that the Hague regime is a better regime in the EU regime because of what I've just told you the EU regime creates false hope for parents left behind parents that they'll be able to get their child back using the override mechanism when all the evidence shows the override mechanism simply does not work these states will not actually apply it properly and they won't enforce it and for all the talk of having powerful enforcement mechanisms in the EU it doesn't happen the commission never brings enforcement actions against member states for non-compliance with this area of law it has never happened and they have no intention of doing so I have pushed them hard and said you should be using enforcement actions they ignore me they don't do it that's a political decision on the power of the commission so this is not a priority area for EU law enforcement from a commission perspective so there's no guarantee that these children will get their EU law rights enforced because there's nobody ensuring those rights get enforced that is I'm afraid the harsh realities that we live in better in my view to have the clarity of the Hague convention system which operates in 90 odd states not just in 28 EU states why have a separate regime in Europe unless it's an improvement on the international regime and in child abduction I am sure it is not an improvement in relation to other areas of child law the Hague regime is in my view as I've explained in my evidence just as good if not better than the alternative in terms of maintenance the EU regime is actually based because I negotiated both the EU maintenance regulation and the Hague convention for the UK and Scottish governments because I was a consultant to both in those pleasant days when both governments cooperated together we negotiated the maintenance convention so that you do have a good international regime for child support which now the US has joined in which I'm delighted to say and the EU is a party too and we have therefore a good international regime which works for getting child support we don't need the EU maintenance regulation for that it doesn't add any particular value that's my honest assessment as someone who negotiated both in terms of spousal support we can be thankful that the EU has ensured that the maintenance convention for the EU applies to spousal support when it's independent of child support even though that's not a fundamental requirement of the convention but it's an option and the EU has exercised the option therefore if we were a third state applying the maintenance convention with the EU they would recognise our spousal support financial orders in the European Union under the maintenance convention because they have an obligation to do so that puts us in the same position effectively as we are under Brussels 2A no different the only slight difference as Janice has already pointed out is on conflicts of jurisdiction it's the only area and frankly you can legitimately take a different view on whether a race to the court is better than a race to judgment and it's always been a debate and there is no absolute clarity that one is better than the other The first thing that I wanted to say in response to that was the fact that both the UK Government and the House of Commons Justice Committee have recognised that the EU regulations that are in place are actually stronger they say that they're more sophisticated and effective interaction based on mutual trust between the legal systems and so the fact that that has been brought up by the UK Government I can send the papers to the committee afterwards if it'd be helpful and the House of Commons I think reaffirms to me that there is real kind of strength for children and young people in terms of the gloss that the EU system adds I'd also say that the EU system is something that's constantly evolving and so the fundamental rights agency published a really interesting report back in spring of last year on children's views of the justice system and professionals experiences of the justice system as well and the learning from a lot of this research is going into the development of the recast of Brussels and so yes things aren't perfect at the moment there's a lot to be critical in terms of the EU process but it is reviewing it's revising and it's learning and this is going into the recast and I think really Scotland would be missing out if we didn't look at what's happening in terms of the recast the added value that it adds to our children and young people and their experience in very difficult situations and incorporate that into our learning and thinking and so what Professor Bowman said of the children not being here at her despite their having that being overruled more or less yes definitely and it does happen we we haven't got it right at all so far but in either scenario whether we're talking about EU or Hague there are problems with children getting heard in courts okay and um professor trodders was it next i'd rather hear from the the panelists as much as i can now come back to the committee sport of what professor bowman has said it's absolutely true to say that with regard to parental responsibility matters and maintenance matters there is in the event of a cliff edge brexit there is an alternative international regime that operates to the Hague convention if we're talking about the Hague maintenance convention uh if we're talking about the Hague 1980 abduction convention the Hague 1996 child protection conventions there are these alternative instruments which we could rely on we could sit here and do a line by line word by word comparison of the various instruments and on some points we might say yes brussels is a better regime on others we might say the Hague is a better regime there's no great purpose in doing that i think at this point because it's it's going to be a matter of judgment on on fine points of interpretation i think it's important to recognize that there is an alternative regime in these areas they're not entirely they're not comprehensive however and on the maintenance um the Hague regime is less good than the EU regime insofar as that there are not direct rules of jurisdiction and i think perhaps in the sense of allocation of jurisdiction which court can exercise competence over various matters there are differences between the Hague and the european systems and possibly that is something that is of particular relevance the fact that the Hague does not give us direct rules of jurisdiction is a more significant lack than certain other aspects the other thing that one has to bear in mind is that for those international instruments these Hague conventions that the UK is bound by only by dint of its membership of the european union steps would have to be taken and taken quickly to ensure the continuity of application of those international those Hague instruments in the immediate aftermath of brexit just to ensure that there's no hiatus in the application of the Hague instruments okay i'll bring in rona next and then Daniel thank you computer and yet i think it's really important that we talk about how children will be affected in this but i'd like to ask some questions about that a wee bit later if i could come back to janice's case where you know two cases are being heard in different courts i'm just wondering what the different options are you know to counteract that presumably the legal profession has been pondering this since june 2016 and i'm wondering you know you've highlighted that what may happen but has anything been you know formulated to try and say well how can we if you know if if it's a cliff edge how do we make the best of this the view taken by a group of family law organizations and they were English organizations the flba of my colleagues in the English bar resolution during the solicitors and the international academy of family lawyers was that we shouldn't be rushing to ditch the EU instruments when there may be a cliff edge or a withdrawal bill that gives us the worst of all possible worlds that the solution that they proposed and has been endorsed by the bar in Scotland is to see whether we can continue the current position on at least a transitional basis to give us a breathing space to make sure that these families know where they stand for a period of two or three years that the fear is that will suddenly be left with a quandary particularly with a withdrawal bill that doesn't recognize that these are reciprocal arrangements and tries to implement unilaterally what we've been doing reciprocally so our proposal to you if you would care to adopt it is that we advance that in family law at least we have a longer breathing space with a transitional provision how confident are you that that will be acceptable to everyone involved that's more a political question than a legal question that's the solution proposed by the lawyers the other part of it and again this is the the big political issue is in relation to the court of justice of the european union the court of justice is not involved in substantive family law as far as we're concerned it's simply concerned in assisting us with disputes that arise in relation to implementation on procedure and enforcement and therefore it's not particularly unacceptable in political terms and part of what we've been proposing is the court of justice continues to do this for at least during a transitional period so that we make sure that we're in conformity with all the other jurisdictions implementing these regulations so please will you just give us a breather sorry just just to get back to basics on that in the case that you talked about um where one may be heard in france and one may be heard here if there was a child involved and see the the father had custody in france and the mother wanted custody which court would you know where would that start who would then you know take the proceed the action well there's a whole variety of answers that the basic provision under all international instruments is the place that the child is habitually resident is the most appropriate place there is an issue about divorce proceedings whether people agree to decisions about children being taken in the course of divorce proceedings but i was more concerned in that particular case with the divorce and the financial remedies that follow so custody is something outside that it can be it can be yes all right thank you don't worry i was going to bring in the sea and next and then tanya yeah i think one of the things to bear in mind here is there's lots of different areas and aspects to family law so we have parental responsibility what you've been talking about um the old word custody or where the child lives child abduction where a child is taken by one parent across a border and divorce and the money aspects that go with it and what i tried to make clear in my written evidence is there's a range of answers here for those different areas so in some as professor bowman has pointed out there are hate conventions which can kind of step in and take the place if the EU law falls entirely away and yes there's some differences between the hate conventions and the EU law but they cover substantially the same areas and we could quibble among ourselves about which we like better but child abduction and parental responsibility is to an extent covered by a different international treaty my main concern and i deal mainly with divorce and financial matters is how that's going to be impacted because there isn't an international treaty that springs into place to deal with that and the really difficult question is what do you do because i think there's a range of options none of them are ideal none of them are great the current system we've got is not ideal i think possibly i don't want to speak at anyone's behalf but possibly we would all be or most of us would be agreed here that the route we're heading down now with the EU withdrawal bill is the worst of the possible options for dealing with a solution for for divorce and financial matters because what that will achieve is to replicate the EU law into our national law but the EU law only works because it's reciprocal and what we'll be doing is making it entirely one sided so the Scottish court will need to pay attention to and defer to the other 27 courts but they won't have to defer to or pay attention to us and that's a problem so the EU withdrawal bill you kind of look at it on the face of it there's a solution there oh well let's just replicate the law over but it's not so it's then okay what else do we do do we keep things going transitionally for a period as Janice has suggested do we keep things going permanently as resolution and some of our my English colleagues have suggested where we just replicate the EU law and keep it going on a reciprocal basis which would involve negotiation to achieve that or do we just let it all fall away and fall back on the old scots law of forum non-convenience and try and deal with things in that way and that I think is is where you can debate the pros and cons of that and in part it depends on what the political will is and what is politically achievable so we can tell you what the legal pros and cons are and what we can't perhaps tell you as well what is politically achievable I mean again purely from my point of view when dealing with divorce and financial cases I love arguing forum non-convenience it's really interesting but it's expensive and it can be quite time consuming and it's discretionary so you don't have a clear answer I can't tell a client at the start of this well you know we're going to be dealing with it in the court in Aberdeen or rather than the court in Munich I can't you know you can't then make that call so people have to to get to that to argue and it comes that the balance in the legal system on a lot of issues is between clarity and fairness so do you have a system that is very clear and that gets to a fixed outcome and you can predict what the outcome is going to be or do you have a system that's weighted more towards individual discretionary fairness on a case-by-case basis and that's a difficult balance to achieve so forum non-convenience is fairer but less clear I'll bring Professor Bowman in again I've got Daniel, I've got Ben and I've got Liam Eilish so don't worry you're there but you know the witnesses of who we want to hear predominantly from yes I mean Lucy is right in what she what she has just said just to add a gloss from my experience as a negotiator both for the UK and for the EU on different issues and currently only negotiating for the EU in a commercial context the the it seems to me unlikely that we'll get a bespoke deal simply on Brussels 2a in the future why would the EU agree to that why would the UK agree to it the fundamental problem is that in the long run that would mean accepting the jurisdiction of the Court of Justice when we don't have a judge on that court doesn't seem to be a very rational solution so we can argue about the transitional arrangement it's obvious there's going to be a transitional period unless there's a no deal scenario in that transitional period Brussels 2a and the other regulations will continue to operate at some point they have to stop operating in my view because I don't see any realistic if we if we don't stay in the European Union that's a different proposition but if brexit is to continue it makes no sense whatsoever to try to negotiate a bespoke bilateral deal between the UK and the EU on some aspects of family law the forum for that kind of agreement should be the Hague and we should try and have an international agreement if we want one on divorce issues and that issue should be revisited there the only reason for doing that would be if the UK wanted to remain in the long run as a closely associated state with the EU in relation to the European economic area that's a political decision but even EEA states do not have bespoke deals on family law let's be blunt about that Norway doesn't have it Switzerland doesn't have it Iceland doesn't have it it would be unique and highly unusual and I don't think the EU would invest the time and energy in trying to negotiate it so it's not realistic I think it's not a huge problem as I said earlier to in the sphere of divorce revert to the common law remembering that you would be in exactly the same position as you are currently in relation to being able to get your divorce judgment recognised and forced elsewhere that's my absolutely clear point in terms of the financial provisions because maintenance convention is exactly the same in terms of its scope as the maintenance regulation we're not part of the match window property regime we've no intention of becoming part it's in a hands cooperation regime therefore whether we're in the EU or not in the EU the capacity to get your divorce financial provisions recognised and enforced in other EU states will be exactly the same after Brexit it is now that is the reality the only difference and Janice has pointed it out is there's a difference on conflicts of jurisdiction and that's the only substantive difference and yet sadly the UK committees didn't point that out they didn't do a proper job their evidence wasn't very good nobody asked me for example and they didn't actually come to an objective analysis of the relative merits of the two systems they were driven by in my humble opinion politics and that is not a good thing on this point we should be objective not driven by our views pro or anti-european for the record I voted for remain and I am a committed European but when I come to look at this I wear an objective analytical hat I do not let my politics drive my analysis one small point to reply if one's looking at maintenance one has a question about what is maintenance and we have a very helpful decision of the European Court of Justice which says that maintenance is anything that is awarded having regard to needs and resources for somebody's support so it's not just how much you get a month it can be a lump sum or it can be provision of a house now that is a very helpful decision of the court of justice there is nothing similar in relation to Hague there is no court which can determine between nations what a particular concept means for the purpose of Hague and that's where the EU regime wins out over the Hague regime because there is nothing supranationally to resort to so I don't know in relation to Hague exactly what will be packed in to the concept of maintenance I know what's packed in for the moment in terms of the European regulations and I know that I can go to the court of justice if I want further clarification of that in scots terms but there's a problem there and that's why I do lack some confidence in the solutions that are being put forward thank you daniel thank you my question really sort of follows directly on from from this exchange I mean people getting divorced from other people living outside the EU is not something that's suddenly going to start happening if and I say if because I'm optimistic we don't leave the EU so what what currently happens more when what the practicalities of that for scots divorcing people from other parts of the world I mean what the what the issues that they face and also could I just ask the people here I mean Hague has been referred to quite a bit and I'm sure I'm not the only one who's probably not as up to speed as that as they'd like to be so if somebody would be able to explain that would be quite useful as well on daniel's question there because that was a supplement she was going to ask earlier on because I think there's a lot of terms that are bandied about and just to have the Hague laid out Brussels to the maintenance regulations so the specific regulations we're dealing with and in as plain English as possible so I think that is one of the problems that we talked about earlier on is how people pick this up I think it is so vitally important to look at it and I think that's part of the reason it's lost is because we start bandying about these terms without having it laid out as clearly as possible. Liam, if it's connected, Jess, let's have it all at once. The question I was going to ask was in relation to the Hague convention I think we've had a description of a dynamic process in relation to the EU Brussels regulations. It would be helpful in an explanation of Hague to have a description of how dynamic that process is and that I think the convention referred to date from the 80s and 70s but I'm presuming there's a process whereby updates where it felt to be necessary can be agreed and taken on board. I've been to going to the Hague for 20 odd years and going to Brussels for 20 odd years so I can try and answer from quite a lot of experience of working in both organisations. Now the Hague conference is the Hague conference on private international law. It is the international organisation that deals with private international law, so it's the private international law of the United Nations. It encompasses the whole world. At the moment, not all states in the world are party to the Hague conference, but about 80 states are. Some of the most successful conventions have even more parties than that, so the child abduction convention has over 90 contracting states in the world. That does date from 1980, and that deals with cases where parents are abducting a child from one state to another, one contracting state to another. It's a system that in principle requires the child to be returned to the country from which he or she has been abducted. It works very well. There's a very sophisticated set of case law that has been developed by no unified court but by the senior courts throughout the world. We have very clear jurisprudence from the UK Supreme Court, from the US Supreme Court, from the Canadian Supreme Court, from the Australian High Court, from the French Court de Saint-Saint, from the highest courts in all the major countries in the world. You develop uniform jurisprudence in interpreting international treaties through careful interaction between these highest courts. Sadly, in a European context, the Court of Justice, even when it's interpreting international conventions, doesn't look at the jurisprudence from other countries, takes a unilateralist position, a Europeanist position. It is not notably internationalist, sadly. I say that with a heavy heart, but it's the truth. We have to speak the truth to power sometimes, and that's the problem with the European Union. The Court of Justice views everything from the perspective of European integration. It's politically driven, and it's driven by an agenda of a federal Europe, whether you believe in that or not. That is their raison d'etre. Therefore, even when they're interpreting international treaties, they're not looking for a uniform international interpretation. They're looking for the interpretation that best suits European integration. That is a bit of a conflict of interest in our area. Child abduction is dealt with by the 1980 convention. Parental responsibility and access is dealt with by the Hague 1996 convention, which is growing in its adhesion, but there's a long way to go. However, there are over 40 states, including all the states of the European Union. That convention is very like Brussels 2A. In fact, Brussels 2A is modelled on it because it came after the 1996 convention. It gives a perfectly workable regime for recognising and enforcing orders in relation to parental responsibility and access. In the 40-odd countries, there are parties to it that post-Brexit, if we didn't have a bespoke arrangement, all the EU states would apply Hague 96 with us, and they'd apply Hague 1980 with us. It's part of the EU a key. They're not going to abandon that, so that will be in place. There is no cliff edge. Then we move on to maintenance. That's a more modern regime. It's the 2007 Hague maintenance convention, as I say. I negotiated it. We then built the EU maintenance regulation on the back of that in 2009. However, it basically follows the convention with, Janet's right, with additional direct jurisdiction rules. However, I don't actually see a huge value in direct jurisdiction rules, because we can have our own direct jurisdiction rules. The EU direct jurisdiction rules are not going to change. We know what rules they operate. We can either operate exactly the same rules or we can operate similar rules. There's no big problem of certainty there, because from the point of view of clients, they'll know exactly what the rules are in Europe because it's what's in the EU regulation. You can make your choice. That's not a big problem, whether we're in or out. It makes no difference. Those are the three family law areas, all covered by the maintenance convention that is growing in its popularity. As I say, recently the US has ratified it. Brazil has ratified it. There are a number of countries that are coming on board globally. All the EU countries are party to it because it's part of the EU, a key. They'll stay party to it post Brexit. Janet's right, we have to become an independent contracting state to the maintenance convention, because at the moment we are party because we're a member of the EU. I know that the UK Government is committed to doing that. There's a technical problem about a possible transitional issue, but, hopefully, given that we've got a transitional arrangement, we will be able to make that work and I think that that should be okay. In the family area, in relation to child law, we have three international regimes that apply any way for the UK with many international parties. We have a separate different regime that we have to operate with the EU. If we leave the EU and don't continue with those arrangements, we will just operate the international regime with the rest of Europe. It'll be easier for students, it'll be easier for practitioners, it'll be easier for most people to deal with. If you have to ask very hard questions about whether there is sufficient added value in the EU system to create the justification for having a totally separate regime, which, by definition, has boundary issues as to when regimes apply. In relation to divorce, it's the one area where we don't have a successful international regime. There is a hate convention on divorce and a number of EU member states, including the UK party to it, but it only covers, of course, the question of recognising the divorce itself, which is not generally a controversial issue, even if we don't have any kind of treaty regime because states have their own unilateral rules on recognition and enforcement and it's highly unlikely that you're going to find that any divorce decree granted in Scotland or the rest of the UK will not be recognised in another European country post Brexit in the absence of any treaty framework. We're really talking about money. As I said earlier, when we're talking about money, because Custody's dealt with under the 1996 convention, when we're talking about money, spousal support, which is the bit that's covered by EU law, is also covered by the maintenance convention. That's a fact. The vision line between matrimonial property and maintenance, which the Court of Justice has outlined in a number of cases around the Bougard and others, will be the starting point of the dividing line for the Hague as well because those who negotiated the Hague understood what the current concepts were on the division between maintenance and matrimonial property. It's in the explanatory report. I don't see any difficulty in thinking that, broadly speaking, the Court of Justice broad view of maintenance will be maintained. What I do worry about, frankly, in the future, with the adoption of the enhanced co-operation matrimonial property regulations for many member states but not for the UK, is that there may be a slight diminution from an EU perspective of the definition of maintenance because they may put more back into the matrimonial property side. Even within the EU, that would be a bad problem for us because we're not in the matrimonial property regulation. I'm sure others will want to pick up on it. Rona wanted to come in and Ben wanted to come in and bring a couple of members and then some more witnesses. You were in danger of losing me there, I'm afraid, Professor Bourne. I just wanted to pick up on one point that you mentioned about how it doesn't really matter what regime we choose to use, because there's very little difference in stuff, but what would you say to the things that we've heard about no reciprocity that it's all very one-sided and we can do that, but they don't have to necessarily agree? It's a good point. I didn't get to that. On reciprocity, I wouldn't continue to unilaterally apply a least-pendins rule that the other side is not applying. I don't see any advantage in that. If we have conflicts of jurisdiction in divorce cases, I would like to see us move back to form the unconvenience and make our own decision and encourage in the international sphere—it'll take a long time, I'm not pretending that it's going to be sorted out quickly—but I do think there is room to revisit the issue of divorce in the international sphere and try to get a better regime on conflicts of jurisdiction in the international sphere. That would be the ideal solution, but on a unilateral basis, I think that we should accept that there is quite strong evidence. I can refer you to cases where, as I said earlier, people are exploiting the least-pendins rule because the provision on divorce in different systems in Europe is markedly different. Even within the UK, it's a problem. I don't know. I'd be interested if the practitioners tell me. There's a big incentive, if you can, to go to England if you're a woman rather than go to Scotland, because the English financial provision tends to be more generous to women than to to wives than to any other European regime. There is a well-documented tendency for people to exploit the race to the court and to use the fairly generous jurisdiction rules that exist in relation to divorce to enable, in one case, women to go to England predominantly and men to go or escape to France or Italy or some other European country. That is a real problem. It was identified in the commission's expert group. One solution would have been to create a transfer provision, which we have for child cases, where you can transfer the case from one court to another. Our expert group—I better be careful what I say—there were certainly a number of people in the expert group who favoured a transfer provision. The commission, in the end, did not introduce any changes on divorce in the Brussels 2A, and I'll tell you why, for political reasons, because they were frightened about certain Eastern European countries raising the whole question of same-sex relationships. Even though there's a dynamic approach in the EU, that dynamic approach in family law is tricky because it requires unanimity. Therefore, to get any development in the EU, you need all 27 states, if the UK were opting in, to agree. It's not an easy matter, the dynamism of the EU in this area, because it's a unanimity driven which is exactly the same as the Hague Conference, a consensus-based system. That's quite a direct question to you, Professor Beaumont, but it would be quite good. Lucy, could you come in and notice in your paper that you mentioned mutuality and reciprocity. Is there a difference? Mutuality? Mutuality. I mainly mentioned reciprocity in terms of it, but maybe someone will explain the difference. Two terms are used somewhere. I wanted to pick up on Mr Johnson's question. He asked, how do we deal with divorce cases involving a Scottish person and another country out with the EU? That's something that I deal with quite a lot. The answer is that they're quite difficult and they're quite problematic. There's a variety of ways that you can try and sort things out, so you can hope that everybody's going to be sensible and agree and just negotiate a deal and not argue about which court should be dealing with it. It's problematic in relation to some, if you have a link to a Middle Eastern country, say that the husband is living in Dubai or Abu Dhabi or someplace like that, that they try to use some very quick system to get to a divorce where the wife doesn't have an opportunity to participate and get something through very quickly without financial provision for her, perhaps similar to the Islamic regimes. In that case, you're left with trying to race to get to a decree of divorce here and you have a competing race about who can get to the end goal quickest. Not who can start proceedings in court first, but who can get to the point of having a divorce in financial orders, if that makes sense. That's what we want the most, but the jurisdictions that are more similar to us, for example, in comparison with Norway or maybe the United States, what are the issues, because that would be a more comparable comparison. Absolutely. In those cases, so you have somebody in America, you might end up having an argument about forum non-convenience, which is the most convenient forum, which is the best place to hear the case, looking at where the assets are, where the witnesses are, where everybody is, where the parties have the most links. We can run that argument in the Scottish court and the Scottish court then says, well, yes, we agree we're best place to deal with it or no, we're not. One of the difficulties with that is that a court in Alabama isn't bound to really follow that. They may say, well, no, actually, you may think you're best place to deal with it, but we don't agree. We're going to keep plowing on and run the divorce here and then we end up with these parallel proceedings, which is expensive and difficult. I mean, flexibility must also exacerbate that risk. So, I mean, thinking about Ireland, which would probably be one of the jurisdictions that this would come up most, it might be quite difficult to determine actually where are people living, where are those assets, because actually people are living between two places, potentially, is that? Yeah, Ireland currently, we're on the Lizpinden system to first pass the post, but if it went back to forum non-convenience, if you had people with quite equal links split between countries, then, yeah, it becomes a judgment call. I've also had cases where, frankly, it's just become a stalemate, because nobody can afford to run these kinds of jurisdiction arguments, very interesting to lawyers, not very interesting to the spouses, and it just kind of sits there until somebody eventually gives in. So, there isn't a great, effective way of looking at that. How big a problem would that be if we were operating it within the European Union? As you say, the countries are closer, so you might argue it would be bigger. I do wonder actually if Scots tend to emigrate other places rather than within the EU, so I'm not certain. I'd be quite interested to know how big a problem in terms of numbers of cases it would be. There would certainly be more cases clogging up courts, making very interesting work for lawyers, but not so much for families going through it. I wanted to come back as well on a point that Professor Bowman raised about England and Scotland, so I'm dual-qualified in Scots and English law. I deal with cases that go through the English courts as well as the Scottish courts. Yes, there's a lot of cases where husbands would quite like to be dealing with things in Scotland and wives would quite like to be dealing with things in England. Occasionally the other way round, but that's the stereotype. The EU rules don't operate between England and Scotland comprehensively through the regulations, so the regulation Brussels 2A deals with where you can divorce. That doesn't operate between England and Scotland and instead there's an internal UK law. It's the place you last live together that determines it, so that is a definite fixed rule, which works quite clearly and quite well. The maintenance regulation, due to the way that that's been implemented between Scotland and England in an internal UK matter, does operate between Scotland and England, and that causes some problems. There are some cases at the moment where divorce and division of assets are being dealt with in one court and spousal maintenance are being dealt with south of the border. That makes very little sense to me, but that's something that we can fix internally, and I know that this isn't really the purpose of the committee, but the flaws and discrepancies between how things work between England and Scotland are a real day-to-day bug pair in my job. It's not well thought through how we implement EU law between our respective countries and how that flows. I'm going to bring in two members now. If you could bring your questions together, that would be good. Ben, then John. I'll seek to try to bring the theoretical and the practical together in my questions as well, but I'd like to direct my questions particularly to Professor Crothers and to Janet Scott QC. On those points, it's been stated by Juliet Harris that, as the withdrawal bill is drafted at present, there will be disadvantages for individuals with a family dispute going through the Scottish courts. I wondered if there are any other disadvantages that either of you see from a theoretical and a practical perspective. I thought that it was really interesting to listen to Professor Beaumont's points around the Hague conventions. What interests me is whether the Hague conventions can guarantee protection. I don't mean to quote you selectively, Professor, but you stated that it should be okay with a number of areas and that there would be a gap with regard to divorce. I just wondered if it could be clarified whether Hague conventions can guarantee protection for Scots on exit day. Lastly, on the point of reciprocity, it's my understanding that there are a number of changes to family law from an EU level, expected to commence a number of weeks or months after exit day. I just wondered what challenges they present in terms of divergence. I'm curious, because we're nearing the end, about 11.15 we'll be aiming to bring the debate to a conclusion. It's just a very brief point and it's about two terms that we hear quite often on the committee, and that is access to justice and legal certainty. Maybe looking at the present situation is at the panel's view that there is access to justice at the moment because there is legal certainty or is that not the case? I'll try and make it a little, but there's been quite a lot raised during the meeting. Even if I can't get an answer to the questions, I think that it's just important to ask them anyway, because, like I say, a lot of the points that I was going to ask have been covered. It was just about the domestic law that we have here in Scotland, especially in relation to family law, how much of that is based on EU regulation or directive and what impact will that have when we leave? Obviously, as part of the negotiations that are taking place at a UK level, we have a separate legal system in Scotland. If an agreement is reached in terms of the UK as a whole, what impact can you see that having in terms of Scots law and in terms of development of law in the future? I was really interested to hear about all the input that you've had, Professor Beaumont, in terms of a lot of those directives. It seems like the UK does play quite an important role in the direction of law and how it's formulated now and moving into the future. How can we have an impact on that and in terms of the withdrawal bill? Obviously, we've heard today that there's going to be gaps in relation to that. How confident are you that some of the issues that you've raised are being looked at? Are you able to feed into that process? Is there, I suppose, anything that we can do at this level in terms of trying to influence some of that in specific relation to Scots law here? We'll try and draw on the points that have been made. We'll start with the first one, which is Ben Ray's practical theoretical disadvantage of Brexit. I think that what I would urge on this committee is to look at the profile of family law, because it's rather a long way down the list when one looks at trade negotiations and so on. This is really important for our citizens within Scotland and within the UK. Can we raise the profile of family law, please? The next thing to say is that what we're looking at here is essentially about procedure. It's about where you litigate and what happens at the end of the litigation. We don't have any challenge to the integrity of Scots law as it's ministered in Scottish courts in the middle. But family law, as the committee will be aware, is a very fast-moving field. We are having rapid development in what we view as a family in the shape of modern families. We have an issue as to how responsive our procedures are to that. If one thinks in terms of the Hague conference, Professor Bowman spoke very eloquently about that. We have a group of people who sit down who, on an international basis, formulate a treaty to which member states can sign up. They either sign up or they don't. Some treaties are much more successful than others because some are well signed up to and others have very few signatures. These are very contentious areas. What we have within Europe is a much more hands-on position where there are fewer states. Admittedly, it's very hard for the 27 states to formulate a position on some of these issues. However, we have actually got to a point where there is greater legal certainty and therefore, as Lucia was explaining, there is less distress because you can actually tell people what the situation is. One of the things that has been left out from the academic perspective is the number of times that I can sit down with a person and say, this is what will happen. Don't waste your money. You don't see those sorts of negotiations and advice in the international research on the cases that have actually launched forth. These things have a big effect behind the scenes. As regards the recasting, what we have at the moment is essentially a third development of the way that this particular regulation dealing with procedure and enforcement is going. As Juliette has explained very eloquently, that has taken on board a lot of the issues arising from the UN Convention on the Rights of the Child, which will be difficult now to go back into in the Hague and to work on that. There was a really bright point there. We don't know where we will stand with that recasting because we don't know when it will come into force. We don't know how it's going to be dealt with in terms of a withdrawal bill. We don't know if we're going to be ossified in the current regulation or whether we'll be able to take on board the developments that Juliette was talking about. I don't know if that picks up some of the answers. Anyone else on the access to justice and legal certainty point of view that they want to Professor Carlos? In response to Mr McPherson's question, I think from the UK citizen point of view, what is the impact of the withdrawal bill as drafted? A subject that we've already mentioned, but just to emphasise it again, there will be a loss of reciprocity on the existing solution because the UK will apply a lopsided version of the Brussels to beast regulation on parental responsibility and on the maintenance regulation. We will continue to honour on current drafting our existing obligations, but the other member states will not because they cannot, in terms of the wording of those regulations, be reciprocal in their application, so that will be a disadvantage to UK citizens. The second disadvantage, potentially, is that on the basis of the withdrawal bill, we would take a snapshot of those regulations as they stand on Brexit day. Those regulations, EU laws, not something that is fixed in tablets of stone, will change from time to time. We will have a version of it as it stands in March 2019, while all the other jurisdictions develop in line with the case law and such other regulations, as they might decide to recast. The lopsided nature of it will give a very imbalanced set of rights to UK citizens. In contrast to what Professor Bowman has said, but in line with the House of Commons Justice Committee report and the House of Lords EU Committee report, I would very much favour that the UK Government tries to negotiate with EU 27 some agreement, not just on Brussels to be. It is, as Professor Bowman has said, completely naive to imagine that the EU would enter into a bespoke agreement on one regulation. However, we have a whole suite of EU regulations in this area, which have given us a very sophisticated set of rules for cross-border problems for families, but also for consumers, employees and businesses. Looking in the round at the whole suite of those regulations, it would be possible, in line with what the House of Lords and House of Commons committees have favoured, to try to negotiate some sort of bilateral solution whereby we retain all the great benefits of speed and more limited costs that the EU regulations have brought. I would support that as the current negotiating position. Would there be a guarantee on the Hague conventions available to Scots on exit day, if there was a hard fix? There is no guarantee in terms of the operation of the Hague conventions. There is no single court of overarching interpretative jurisdiction in the way that we have the court of justice of the EU with the European regulations. No guarantee can be given, but all the courts of contracting states could be trusted to implement and operate the Hague conventions as they have been doing to this date. I would not give a guarantee on it. I just want to pick up on two points. The first is Mr Finnie's question. Is there greater access to justice at the moment because there is certainty? I was trying to point out earlier that, if you have a very discretionary system about fairness, it is very easy to lod that and see how wonderful it is. However, if it means that clients coming through my door cannot afford to litigate, then there is little point in having that. I see this because I deal with English cases, which are much more discretionary, and the Scottish cases where the domestic law is much more certain. I sometimes have English cases where somebody has a wonderful case if they can afford £10,000 to take it to a final hearing, but they cannot. The Scottish system would serve them better because it is more certain. That is a comparison of that. If you then extend that out and say that we would first pass the post rules, do they give greater access to justice because they are more clear? Everybody knows where they stand, even if it is perhaps not the fairest system on a case-by-case basis. I think that it arguably is. Having said that, I do not like the first pass of the post system. I do not think that it is fair, but it might be the best of a bad set of options. Julie, do you want to ask something? I just briefly wanted to recap on the fact that all of these conversations are around children and young people's experiences. We are talking about children being taken to another country, children being separated from their parents, children going through really traumatic points in their lives. No matter what happens, whether we are talking about Hague, whether we are talking about Brussels, a really important thing for the Justice Committee to look at for the negotiations of the UK Government to address is where is the child in this discussion. How can we make sure that whatever procedures are in place, the children's views are heard, they are taken into account and their best interests are central to proceedings? We know that that produces the best outcomes for children and young people. We know that that is the best thing for your families, for your constituents. I urge the committee, I agree with Janice, to raise the profile of family law in these Brexit discussions, but raise the profile of children and young people because their voices really are not being heard and they are essential in family law processes. I will be very brief. I was asked earlier and I did not answer about the dynamic nature of the Hague. I can say that the Hague will not be constantly revising its conventions. That is not the way that it operates, that is not the way that international law tends to operate. You can say that, and I accept that one of the advantages of the EU system, if we were still in the EU, is that you can constantly revise. However, you cannot do bespoke deals with the EU on a constant revision basis. Let us be honest, you are either in the EU and then you can do all those things and be a full player. If we are going to have Brexit, there are implications and you cannot mimic the EU from outside, that is the reality. Some people are trying to mimic it from outside. In the long run, that will not work. That is why, in the long run, transitional arrangements to one side, we have to get used to the idea, I think, in family law areas, that we will not be operating an EU-based system. The rational thing is to operate an international system and try to make that international system work well. I am involved in the Hague at the moment as a chair of an expert group trying to get a radically new idea on family agreements to promote family agreements, which is not very good within the EU system or the international system. There is an opportunity to try to get a new convention in the future, which will encourage family agreements, which are the real way to protect child rights, not to fight, not to have disputes, but to resolve as sophisticated adults who have had their own relationship broken down but, for the sake of the children, to sort things out in a proper way and then have a system whereby those agreements will be recognised and enforced across the world, which we do not have at the moment. We have no system of promoting agreements, either within the EU or externally. That is true. That is the reality, and we need to try to improve it. The one forum that is looking at it at the moment is the Hague, not the EU. Are we content to leave it there with the clock has beaten us? One thing is absolutely crystal clear. If anyone thought that family law would not be contentious, we now know that most certainly that is not the case. I thank all the witnesses for their evidence today, which is invaluable to the committee, and we will use that to see how we move forward. I now suspend to allow for a change of witnesses in the five-minute come for a break. Agenda item 3 is around table evidence session on Brexit and civil, commercial and consumer law. The purpose of the round table is to explore issues around civil, commercial and consumer law in the context of the UK and the United Kingdom's departure from the European Union. I welcome all of today's witnesses to this round table session and start, as we did with the previous round table session, by asking you all to introduce yourselves. I am Margaret Mitchell, I am the convener of the committee. I am Gail Scott, I am one of the clerks of the committee. Jenny Mbaix and I am also a clerk. I am Jason Freeman, I am a legal director at the competition and markets authority, taking many with consumer law. Good morning, Ben Macpherson, member of the Scottish Parliament for Edinburgh Northern and Leith. Frank Johnson, the partner with Denkins. John Finnie MSP, Highlands and Islands. Graham Payton, I represent the Society of Chief Officers of Trading Standards in Scotland. Liam McArthur, MSP for Orkney. James Muir, QC from the Faculty of Advocates. Peter Seller, advocate with the Faculty of Advocates. Liam Kerr, MSP for the North East Scotland region. Maurice Corry, MSP for the West Scotland region. Paul Bowman, Professor of EU and private international law at the University of Aberdeen. Mada Gougeon, MSP for Angus North and Merth. Janine Carruthers, Professor of private law at the University of Glasgow. Daniel Johnson, MSP for Edinburgh Southern. Fiona Macai, MSP for Strathkelvin and Bearsden and deputy convener of the committee. I thank you all for your written submissions. I noticed someone was trying to press their speaker button for the microphone. You don't need to do that. As soon as I call your name, then your microphone will automatically come in. Just as in the last session, we were looking for good cross kind of dialogue so that the witnesses can, if you like, add to challenge or question whatever someone else has said, then that would be really what we're aiming for, a flow and a flexibility and not a rigid kind of evidence session, although obviously everything that is said is in the public domain. But in order to make sure it doesn't deteriorate into jambos, I'm sure it wouldn't, then if everything could go through the chair, then that would be very helpful. So can I perhaps, again as we said in the family law session, then EU law and the whole Brexit issue has the potential to be very technical, to be very complicated. So our aim is to distill it into a conversation that is reasonably understood where the issues are understood and where we can get really good evidence to move forward. So if we could perhaps begin, and if I could begin by asking the witnesses, if they could explain in their opinion the size of the issue in terms of civil commercial and consumer law in Brexit and what they consider is the likely impact for consumers and businesses in Scotland. Who would like to start with that Professor Bowman this time? I can't begin to give you an answer on the scale of the problem, not being a practitioner, that would be a little bit presumptuous of me. I can try to outline what the legal issues are, at least from the private international perspective and others can add in some of the legal issues, which are not so directly private international law folks from the competition and markets authority, for example. In private international law, the issues are, as Jeanine said to a previous session, basically always three points, which court will hear a case of jurisdiction, which law will govern the dispute, applicable law and on what basis do you recognise and enforce foreign judgments. In private international law, it is really quite simple in that sense that there are these three issues. In the civil and commercial field in Europe, we have harmonised rules on all those issues, and we have one instrument that deals with jurisdiction and recognition enforcement of judgments—that is the Brussels 1A regulation, as it is now. We have two instruments in the field that deal with applicable law, the Rome 1 regulation on contract and the Rome 2 regulation on non-contractual obligations. The EU regime has developed over many years, starting with the Brussels Convention in 1968, so there is a long history in this field. In the applicable law side, it started with its own convention in 1980. When the Treaty of Amsterdam came in in 1997, there was a movement across from making treaties between the EU States conventions to having EU regulations, and that is why now this area is governed by EU regulations and it is governed by Brussels 1A regulation, Rome 1 regulation and Rome 2 regulation. The system for jurisdiction and recognition enforcement of judgments is very simple because of the progress that has been made over the years in the Brussels 1A context. We have quite clear rules for applicable law in Rome 1 and Rome 2. What will the effect of Brexit be? That depends, of course, on the nature of the deal that might be done. Let us assume that, after any transitional period, there is no special deal between the EU and the UK in this area. What would happen is that you would fall back on potentially a broader European regime that applies to some Eftar countries called the Lugano Convention. At the moment, the UK is a party to the Lugano Convention as a member state of the EU, so the Lugano Convention applies to Norway, Switzerland and Iceland, as well as all the EU States. If we want to remain a party to the Lugano Convention, which is current UK Government policy in public domain, then we would need to get the consent of all the other contracting states, and potentially the easiest route for doing that would be if we were a member of Eftar, the European Free Trade Association. If we are in Lugano, the changes in relation to Brussels 1A are not enormous because Lugano is based on the Brussels 1 regulation from 2001, whereas we now have in Europe a modified version of that from the Brussels 1A regulation in 2012. On most matters, that is not a big deal. The one big deal and I negotiated the Brussels 1A regulation for the Scottish and UK Governments in the council. The big change that we won and we were pleased to win in Brussels 1A was dealing with choice of court agreements. If the parties have agreed to resolve their dispute in Edinburgh, if we apply the new Brussels 1A regime, if one of those parties renais on that deal and goes to Italy to try to litigate there in the hope of drawing out the whole process and getting a settlement because Italian courts are slow, under the new system of Brussels 1A, the Scottish court can go ahead and hear the case, and the Italian court has to stop hearing the case until the Scottish court has decided because the Scottish court was chosen. Under the Lugano convention, indeed the system is the traditional first come first serve system in Europe, whereby if the Italian court receives first, it decides whether the choice of court agreement was valid or not, and it can take years and you have a slow process. There is that important difference between Lugano convention and the Brussels 1A regime, and it would certainly be a disadvantage being in the Lugano regime rather than Brussels 1A on that point. The other area of applicable law isn't a problem because Rome 1 and Rome 2 are applied by EU states unilaterally. The rules in Rome 1 and Rome 2 that identify which law applies to a dispute will be applied in the future by EU states in the same way whether we are a member of the European Union or not. We can unilaterally continue to apply Rome 1 and Rome 2, which is the current plan, so there would be no change. There is no conceivable problem on applicable law. The problems are on jurisdiction and recognition enforcement of judgments. To complete the picture, if we can't stay in the Lugano system, which is possible, because there are voices—Professor Hess, for example, from Germany, is raising his voice saying, we don't want the UK in Lugano, because if we are not full member of the EU, you won't really comply with court of justice decisions and therefore we don't want you. I was at the Lugano experts meeting. I didn't hear that kind of voice being raised there at the official meeting. I was there invited by the Swiss Government as an expert, as a professor, to be at that meeting. I would say in all honesty that there is more of amongst the states that were there, more of an openness to the UK staying in the Lugano system. I hope that that would be the case if the UK decides, as it currently does, to try to be in Lugano. I will have to work out how to make that happen. If, for some reason, we are not in Lugano, what do we have? We have only one bit of an international regime at the moment. That is the Hague Choice of Court Agreements Convention, which means that when there is an agreement between the parties as to jurisdiction, that will be respected vis-à-vis the EU, because the EU is a party to the Hague Choice of Court Convention. If we leave, we will become a party, and that is Government policy. Therefore, it would apply between the UK and the EU. However, that leaves all the cases where the parties have not got a choice of court agreement. At the moment, we have no rules, international rules, for recognition and enforcement of our judgments in the rest of Europe in that scenario. However, I am currently an independent expert for the EU negotiating in the Hague a new convention on recognition and enforcement of judgments. It is in a fairly advanced stage, one more special commission and then a diplomatic session, so it should be finished next year. It is currently EU policy to support that convention, therefore I have every reason to believe that, in due course, the EU will ratify that convention. I hope that the UK would, in its new out-of-EU form, ratify the convention. Then it would have between the UK and the EU a perfectly workable recognition and enforcement regime to deal with making sure that judgments given in Scotland are recognised in Germany or that German judgments are recognised in Scotland. However, it is not going to be in place immediately following Brexit. It will take a few years, so there will be, if we have a hard Brexit, a gap in the recognition and enforcement of commercial judgments that are not based on choice of court agreements. I will ask you what you do in your spare time, but I won't. On the current wording of the withdrawal, the effect of repeal of the European Communities Act 1972 will be that the European private international law regulations in this area cease to have effect in the UK of the instruments that Professor Bowman referred to. The most significant is the Brussels 1 recast regulation on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. Looking at this practically from the point of view of the UK business, consumer, employer, the Brussels framework provides great advantages to such parties. The Brussels regime, which was designed to support the internal market, constitutes a set of agreed rules of jurisdiction in civil and commercial matters. It is flowing from the principle that a judgment on a civil and commercial matter that is issued by a court in one member state will be recognised and enforced in all other member states, with certain exceptions, but the principle is basically one of reciprocal recognition and enforcement. That portability of a judgment, if a Scottish consumer employee or business gets a judgment in one member state court, is portable and can be enforced across the EU. That is a great advantage. When Brexit happens, even if the UK adopts the wording of the recast regulation into domestic law, we cannot bring about the reciprocity that we currently enjoy. Even if a Scottish court is prepared to recognise a judgment issued by a French court, we cannot ensure that a French court will reciprocate vis-à-vis the Scottish judgment. The consequences of that for businesses, consumers and people who currently operate under the terms of the recast regulation will be prejudicial. The current scheme of the withdrawal bill will not be effective to ensure reciprocity for businesses and consumers, and that is a flaw of the current proposal as far as the private international law is concerned. That is focusing on the recast Brussels regulation. One could point to a raft of other regulations dealing with more procedural matters. Instruments such as the insolvency regulation, where the same reciprocity cannot be brought about simply by the actings of the UK Government alone. If there is any hope of preserving the benefits of the European regulations, that would have to be done on a bilateral basis with EU 27. It is not something that the withdrawal bill can achieve on its own. Taking that point from the withdrawal bill as drafted and the potential for commercial and consumer uncertainty, I want to touch on Graham Payton's point in his evidence that, at the point of exit, the UK's participation in its own convention may cease, and those protections will no longer be available to UK consumers. That could have a major impact on consumer confidence to buy goods and services from Europe. I would be really interested to hear more on that point and the impact for consumers here in Scotland and across the rest of the UK. Mr Johnson, I wondered, from a commercial contract drafting position as a representative of a commercial law firm, what are the impacts at the moment for solicitors trying to agree transactions for clients? How is uncertainty affecting the economy in that way, in the transactional activity and the considerations that are having to be made in current contract drafting in order to try and mitigate the vast uncertainty that the withdrawal bill is currently creating at the moment? If I could just touch on that point very briefly, my, as I made clear when I accepted the invitation, my interest is primarily consumer law within the domestic context of the UK. I am, however, aware that certainly more in the commercial enterprises have been in our looking at how they can safeguard and achieve a degree of certainty in terms of entering into contracts. That is certainly not the case in relation to the consumer position, which is obviously less able to take positive steps to secure their interests. The point that Professor Carothers and Professor Bowman have made about the ability to enforce a judgment abroad is critical from the consumer interest. Obviously, it was Lord Stair that said that a right without a remedy is like a bee without a sting. And a right without an effective, accessible and cost effective remedy is really not sufficient to safeguard the consumer interest. Thank you. I made that point on the jurisdiction of consumer contracts purely because, as a trade and standards professional, we advise consumers on their rights and remedies under laws that currently stand. My understanding of the jurisdiction of consumer contracts under Rome conventions, although Jason is probably a bit better up, has a good deal more knowledge than I do, is that under current arrangements, a consumer has got the right to raise an action against a European business in their own court. They also keep their domestic rights under consumer contracts, as opposed to those offered in the foreign jurisdiction. If that changes, then the rights of consumers, depending on where they buy goods from, will differ. That presents a danger of divergent rights for consumers as we leave the EU. That also gives us an issue of trying to advise consumers going forward, depending on the jurisdiction from which they bought products. Do you want to add anything? Yes, there are a couple of points that I think would be useful to make at this stage. The first is just to take a step back and look at the whole corpus of consumer law and to emphasise the widespread harmonisation that has taken place on consumer law at EU level. In terms of the substance of the law that exists at the moment across the UK and across the EU, the unful commercial practice directive in particular carried out a huge amount of harmonisation of our laws. Other instruments such as the consumer rights directive have harmonised cross-border distance contracts, as well as domestic distance contracts and, of course, laid down various other rules. There are other more sector-specific harmonised laws that exist. All of those laws will, in principle, be transferred, as I understand, into UK law at the point of exit. However, the UK Government would be able to diverge from those, and there may be, after Brexit, the reality of divergence between UK law as it is at the date of exit and, of course, EU law as it develops. There are a number of legislative proposals in train at the moment in the EU, or at least policy proposals, which may become legislative and some legislative proposals, which are likely to change EU law. That will mean there's a choice for the UK as to whether we implement those changes, which we would be able to do as a sovereign country, or whether we don't implement those changes and then divergence would occur. Is that going to be important? In the context of purely domestic transactions, clearly it wouldn't make a huge amount of difference. Our law would remain the same, there would be less cost to business in affecting those changes. However, businesses dealing into the EU would then have to deal with different systems. Where there are those differences, and a consumer is dealing with a business based outside the UK in the EU, such as a big online platform at Amazon or eBay, which is Domestad in Luxembourg, there will be a question of which law applies to that contract, and how would you go about enforcing your rights in the event that you had a problem? Would you be applying UK law and be able to bring your case in the UK courts, or would you not? I feel that others have addressed that point already. The other point, which I think it's worth talking about, is cross-border public enforcement. The rules that exist at the moment, in respect of Roman Brussels regulations, will also, we understand, apply to public enforcement. That's on the basis that our enforcement actions brought under part eight of the enterprise act would be a civil and commercial matter, and therefore they would be covered by the rules that apply to give the UK courts jurisdiction where there are UK consumers affected. Generally speaking, to apply UK law, except in the context of a contract where a choice of law clause has been made when, as Graham has already mentioned, the consumer can't be deprived of their mandatory protections under UK law under the system. That was found by the CJU in a case called VFK and Amazon about looking at the position for Austrian consumers and the facts that apply to UK consumers. In that context, if we or trading standards wish to bring proceedings against a business-based elsewhere in the EEA, subject to funny little differences between Lugano and the other laws, generally speaking, we would expect to be able to bring those proceedings in the UK serving out of our jurisdiction without a problem and being able to enforce our judgment, generally speaking, without a problem. Having said that, in the CMA, we do think about what might be the case if we can give effect to UK rulings without needing to rely on international conventions or regulations. The reason that we do that is because often we may wish to bring proceedings against a company who is not in the EU at all, so we do think about the possibility to serve out with the courts permission, which we believe we generally speaking can do, where there are UK consumers and we believe that UK courts would be prepared to accept jurisdiction where there are UK consumers in a foreign business. We don't believe that the UK courts would decline jurisdiction. Given the realities of modern international trade, there are likely to be UK-based intermediaries who can be prevailed upon to disrupt businesses' activities, particularly if we have obtained the court order against that business, which would mean that we wouldn't necessarily have to serve or enforce any judgments overseas. For example, being able to take down a website or ask for blocking of a website or disruption of payment processes just under the usual enforcement of an injunctive type remedy, provisions that exist in UK's civil procedure rules, and I believe that they would also be obtained in Scottish procedure rules as well. We have looked at the position in the absence of there being international conventions. The position for public enforcement is not as bleak as it might otherwise be, because we think that generally speaking, we would be able to extend reach. I am very happy to answer questions on all that, because I appreciate that there is quite a lot of material there. I will not do it, absolutely. Before I bring in Lee McArthur, yes, James Slewn from the Faculty of Sciences. Yes, I just wanted to introduce one or two points. The issue of confidence is key here, because the great majority of consumers are, I am afraid, unaware of what their rights are under most of these provisions. Businesses are perhaps more aware of what their obligations are to consumers, but it appears to me—and I did look at the statistics in Scotland about the number of cases about enforcement of judgments and so on coming into the Scottish jurisdiction—and they barely figure at all not even a little pimple in the bar charts that you get published annually. Therefore, it seems to me that the international perspective of the CMA and the ability to cooperate with other regulatory agencies around the EU is going to be key, because you are going to have to have some element of consumer confidence. The concern is that if the transitory provisions are not clear and effective, then by the time we are definitely out of the EU, the pass may have been sold. Of course, that is not just an issue for Scotland's consumers, it is an issue for Scotland's businesses. If I am a consumer in Germany, I am thinking of flying to Scotland, am I going to use a UK-based airline or am I going to prefer to use Lufthansa or a German one, where I can be clear that it is somebody that I understand and I will be able to? All of these issues of confidence are key, and that is why the way in which those negotiations are handled in the next 12 months, and the outcome of the withdrawal agreement and looking forward seems to me to be key. Follows on a little bit from that, but it was more in response to what Professor Carruthers was saying earlier. Previously, we have heard that there being more of an incentive and a mutual benefit to be gained on both sides from continued collaboration in the sphere of criminal justice. It is less clear to me whether something similar exists in relation to what we are discussing today. I mean, I think what James Muir has just talked about might be suggested that perhaps there is, but I would be interested to know whether the view of the experts here is that there is more of an incentive to find some form of agreement post Brexit, whether through Lugano or whatever it may be, than perhaps we are led to believe by some of the evidence that we have received. Who would like to address that one, Professor Carruthers? Professor Carruthers? One of the considerations is what makes a particular jurisdiction attractive for people to litigate in or to agree to litigate in in future, even if they do not actually bring that to litigation. The British Institute of International and Comparative Law in London has done quite a bit of research on what makes places attractive to litigate in. The possibility of having secured a judgment in one jurisdiction and then being able to take that to another country and to enforce that judgment abroad is something that makes a court, a forum particularly attractive. It is one consideration that there are many other considerations. From a UK perspective, what makes Scotland or a higher number of cases, what makes England an attractive forum in which to litigate is the fact that you can then take that judgment and, in principle, in theory, at least enforce it elsewhere. From the legal services sector perspective, there is a sense that if you take away the ability through this European scheme to be able to enforce a judgment across the EU, that might be one consideration that makes Scotland or England less attractive in which to litigate. Possibly the practitioners are probably better placed to be saying whether that impact is being seen. Is it having any significant effect in Scotland at present when people are looking at drafting commercial contracts? Is it a concern with clients? In theory, it is a consideration, but whether in practice it is so, that is for others to comment on. First, I think that it is important to clarify that the Rome Convention does not apply. Let's be clear about that. The Rome Convention does not apply to any contract after 2009, and it only applies to applicable law. It has not got anything to do with jurisdiction. First of all, the regime at the moment, as Jason has outlined, is that consumer contracts are governed by the Brussels 1A regulation in terms of jurisdiction and recognition enforcement, and they are governed by the Rome 1 regulation in terms of applicable law. The combination is that a consumer can indeed sue the business in his own habitual residence, and he can normally apply his own law unless he agreed to a contract that gave a choice of law clause to the business's law, in which case it is a combination of the foreign law—let's say Luxembourg law, if it is Amazon—and Scots law in relation to the mandatory aspects of Scots law, which is an extremely complicated system, but that is the system that we have. Post Brexit, what would the system be? Unilaterally, we would continue to apply Brussels 1A and Rome 1. The consumer would still be able to sue Amazon in Scotland. The consumer would be applying Scots law in combination with Luxembourg law, if that was the law that was chosen in the agreement, in the same way as they currently do. Nothing would change. The only thing that would change is whether that judgment would be capable of being recognised and enforced in Luxembourg. As Jason has pointed out, in practice, consumers do not engage in litigation. The fact is that it is too expensive. It just does not happen. So private litigation for consumers is a non-issue. Let's be blunt about it. Only Jason can help consumers. It has to be public litigation, and that will continue. As he rightly points out, public litigators are big enough and strong enough to be able to enforce an English or a Scottish judgment against a European company without needing to take the judgment to Luxembourg. So again, in practical terms, I do not see any diminution—likely serious diminution—in the rights of consumers because of Brexit. If we are talking about commercial transactions between two companies, let's be honest, there is not that much international business coming to Edinburgh because of choice of court clauses. Let's be honest. It goes to London on a vast scale. It has been going to London on a vast scale long before we were members of the European Union because London is the global capital of commercial litigation. It has been pre-joining the European Union and, in my view, will continue to be post-leaving the European Union. We are envied by our partners in Europe, like a share of the business. The business goes to London, either for arbitration or for choice of court, if it is big commercial transactions. There is no European centre that can attract that business because none of them at the moment offer English language litigation, and that is the key. Dublin might be able to, but not on the same scale. From what you have described, there is almost an in-built incentive for the other 27 member states to expose as big a difference between the UK and the EU approach to this as possible in order to claw back some of that commercial advantage. That is what Professor Hess would like. That is what I said. There is an incentive for hardball to be played by Europe to stop us getting our judgments recognised and enforced there, which means keeping us out of Lugano, not giving us a bespoke deal. That is true. That is the hardball approach. Not everyone plays hardball. There are plenty of people out there who would like to be co-operative with us and would continue to want us to be partners in Lugano. I do not see, frankly, much again reason for a bespoke deal. Why? Because you would have to accept the binding jurisdiction of the Court of Justice to have a bespoke deal, and that, in my view, would be a mistake. I say that again, as a committed European, because you should only accept the binding jurisdiction of the Court of Justice if you are a full member of the EU and you have a judge on the court and you influence its development. It makes no sense, in my view, to be in that position from outside the EU. Lugano is the compromise where you take due account of the Court of Justice's rulings, like Norway has to at the moment and Switzerland has to, but they are not bound by the decisions of the Court of Justice, and they do not always follow them. That is the reality. Therefore, I would say that there is a good case in this current UK Government position for commercial business to stay in Lugano so that business confidence will continue to use English choice of court clauses. However, my own view is that that is not a big deal because in relation to choice of court, which is where businesses are actually choosing London, we have the Hague convention, which is just as good as Lugano—in fact, marginally better than Lugano—not quite as good as Brussels 1A, but Brussels 1A, frankly, for me is not an option unless we stay in the EU. The real options in the real world are Lugano or the Hague, and if that is your choice and you want to protect London market—it is not Edinburgh, it is not Scottish, but London—you want to protect London market for commercial court, I would argue that the Hague convention is a better solution than Lugano because all the EU partners are party to the Hague, so they have to recognise and enforce a judgment coming from London based on a choice of court clause, and they have to give way to London, whereas under Lugano, as I explained earlier, because of the Gaza decision, they do not have to give way to London. There is no real point of view of party autonomy, no big value in staying in the Lugano system. I am an advocate of, from this point of view, if you like a hard Brexit, stay out of the civil judicial corporation mechanism, fly in the international scheme because we are big enough to play in that scheme in justice context, if not Scotland. That is my honest assessment. He mentioned that there was not likely to be much of a diminution in consumer rights, which goes back to the average consumer of the individual person going to a court here in Scotland and taking a case. That is much a question of access to justice in terms of how much it costs to take that. I know that there was a point made in the earlier session about that as well. Just a small point there, we do pay a lot to the courts for our day in court in Scotland. You pay nothing when you are in the European courts, and I realise that those would be in different circumstances, but there are no court fees for your day there. I agree entirely, though, with regard to the issue of the choice of courts. This is really a London thing. Scotland sometimes gets or attracts business, but it is predominantly an English-driven service, which we also know that the UK Government is rather keen to champion. I say that because the official paper from the UK Government mentioned UK law and UK jurisdiction and UK courts, which, of course, as a sensitive Scots lawyer, you realise is not quite right, and the focus there is clearly on London courts and English law. Standing back from what an average consumer, a private individual, would be doing, we have to bring back in the public law remedies or the public enforcement powers. At the EU level, the private consumer can rely upon a myriad and complex matrix of different types of powers and enforcement, whether it is through the European Commission or through co-operation via national authorities, etc. Those are almost a failsafe mechanism to protect the consumer. Either they go to court, unlikely as that is, or they rely upon what has been decided from a regulator in a public point of view, and they can call upon authorities to come in on their side. I raise a question. What are we losing when we Brexit? What reciprocity will we be losing? Will we be able to continue to piggyback on the Rapex recall systems? Will we also be able to continue to participate in the Solvet system? Will we have access to all the information on biocidal products, on cosmetics, on chemicals, on toys, etc? What will happen after that? That is as much a part of consumer protection as asserting your own individual rights in a court. Could you elaborate on the solvent and the other thing that you mentioned? You go so quickly and then we are not. Of course. There are a few directives and regulations that have been adopted at the EU harmonised level that put in place systems of co-operation among all the member states so that if there is a faulty good, which is made by, for instance, an Italian producer but is sold throughout the European Union, there will be. It is a weekly update, a weekly bulletin, and every day, as an example, you can go on and they will show you exactly what product has got a problem with it. I checked yesterday apart from anything else, and there is one of these funny eyebrows, children's toy. It is flammable, apparently, so there is a recall. What happens is that there will be a recall, a statutory recall process put in place so that all the retailers, etc., will have to take the measures to recall the offending item. The producers, obviously, or the importers, because if it is an American producer, then it will be its importer that will be on the hook for this. They have to take measures, etc. That is an example, that is RAPEX system. That is an example of a system, which is a harmonised system, which is there to protect the consumer from dodgy faulty defective products. I thought that it would be helpful to go into a little bit more detail on the provisions for cross-border enforcement collaboration that exists and, indeed, the opportunities that exist at the moment for us to be able to enforce UK law overseas. The European system devised a piece of legislation called the Injunctions Directive a number of years ago now, which has been updated in about 2009. It originally came into force in about 2000. It created the Part 8 enforcement regime, part 8 of the Enterprise Act, and it permitted enforcers such as the CMA and other public enforcers to have standing in courts elsewhere in the European economic area so that we could bring cases to enforce rights on a collective level overseas. It is important not to overemphasise the importance of that. The only enforcer who has brought a cross-border case in that way was the Office of Fair Trading twice in Belgium and in the Netherlands, and those were difficult and inexpensive cases to bring. Whereas it is a useful fall-back position, it is not ideal. Indeed, the European legislator accepted this and devised the Consumer Protection Cooperation Regulation, which is also in the process of being revised at the moment, but it is the law that lays down several features that have been implemented into UK law, a minimum set of investigation powers, and the requirement to collaborate with other enforcers who, in the event that we have a request for investigative assistance, or we wish to make a request for investigative assistance, then there will be a mutual obligation to collaborate and to carry out that sort of investigation. For example, if I have a business based in Slovakia, for example, which is sending mass-marketed mailings to the UK and we want to know what is going on in their office, we could request the Slovak Consumer Protection Authority to carry on on-site inspection and to find out what is going on there. We could, if we decided to, then request the Slovak Consumer Protection Authority to bring enforcement proceedings against that body to stop them from sending those misleading mailings into the UK, for example. It is a reasonably effective bilateral cross-border enforcement mechanism, and we would be hopeful that either that system will remain available to the UK after Brexit or a similar arrangement will be put in place on a bilateral basis between the UK and the EU, because we do not think that it is in anybody's interest, really, for there to be an enforcement gap whereby British businesses would be able to mislead, say, French consumers, and there would not be the mechanisms for cross-border enforcement. That is not in anyone's interest in the EU, and it is also not in our interest for that to take place when it is coming the other way. We think that it should be negotiable to replicate those provisions going forwards. The other thing that the CPC network has been developing recently is a way of working where we are tackling a common problem together. This would be a big business or a big issue that is going on across the EU, and we need to co-ordinate on a European level. There have been four such joint actions that have taken place so far. There was a joint action on children's apps and games, a joint action on car rental, a joint action on social media, and a slightly more light touch joint action on airline terms and conditions, which was not co-ordinated to the same level. However, those are useful ways of tackling things on a regional level, and likewise we think that it should be reasonable to negotiate continued access to that sort of collaboration going forwards, so that big problems that are affecting consumers all across the European area can continue to be dealt with in those quite effective ways. Can I explain the difference between directive and regulation? Does one trump the other, and will that have any impact whether the legislation that we are looking at is a regulation or a directive in the Brexit context? Well, I think that the difference can be quite technical, and a regulation is generally directly applicable and just applies across the European Union, and tends not to require specific implementing acts unless there's some mechanism. Like in the case of the CPC regulation, we had to implement the powers provisions, because it just said that members have to ensure that these powers exist, but it didn't give the enforcers the powers. A directive is binding us to the effect that it seeks to achieve, but there's usually a need for direct implementation of the directive by the UK, so it's a slightly different legal framework. But in practical terms, personally, I don't think there's a huge amount of difference between, say, the unfair commercial practice directive. Had that been a regulation, like the geoblocking regulation, it would probably have been drafted in exactly the same way, so there's not a huge amount of difference. First of all, I'd just like to remind members of my register of interests and that I am a director of a company with retail interests in the west end of Edinburgh. The reason I stated that is because we've talked a lot about consumers, we've talked a lot about big business. Following on from James Muir's comment about the German traveller using a UK website to book his flights, the UK's online retail is much better developed than the rest of the EUs. Last time, I checked about double the volume or proportion of retail sales going online as compared to the rest of Europe. What are the implications for online retail and small and medium-sized businesses wanting to sell into Europe as a result of those sorts of changes? Given that, right now, if you comply with UK regulations, you know that you can just sell away. I'm just wondering what perspectives people might have on that impact. Frank, have I got the right name? I'm sorry that you should have been Graham. I can't see your badge on here. Graham. It's an interesting point because, concrecently, sales are affected both with Europe and abroad for consumers based in the UK on an online basis. Regulating that sector is challenging, particularly if we're not within a larger geographic and economic group, so there are challenges there. A lot of the, in this point, does relate to the point that Jason made, that where there are risks emanating from abroad and where there are emerging risks that are emanating from abroad is really very helpful if those can be dealt with at source through organisations like the Consumer Protection Cooperation Network, where national enforcement bodies can speak to each other, share information, share intelligence, and address those sources of consumer harm at the source in the country from which they emanate. Now, Graham. I'll answer that if I could elaborate on a comment that Peter made about RAPEX. RAPEX is the system that we use as a representative of the enforcement and market surveillance authorities in Scotland, the 31 local authorities, enforcement and market surveillance authorities. RAPEX is one of the systems that we use to identify consumer products that have a problem. There's also another system called ICACS, which allows us to see other market surveillance activities by other market surveillance authorities across Europe. That informs what we do. There's also another system called RASIF, which is similar to RAPEX, but it's for food and animal feed. Again, with regards to animal feed, we get alerts that there may be a problem and we can take action to remove them from the marketplace. There are other bodies that we currently rely on for consumer protection and training standards, which underpins that kind of regulation in addition to RAPEX and things like that, called WELMEC, which is the Western European legal metrology body, which sets the standards for legal metrology. There's also SEN and CENELEC, which are the European standardisation bodies for standardisation and for electrotechnical standardisation. Those create standards that underpin our product safety law. If product safety law and legal metrology law are diverse, if we leave the EU, will we still participate in the bodies that set the technical standards that underpin our legislation and our ability to enforce it? That comes back to Daniel's point. If we cannot participate in those standard bodies and those standards cease to be across a European standard, which is applicable across the EU and only applicable to the UK, we have two positions. One is where we have a divergence of standards across the EU and the UK, so you have two different standards for the same piece of legislation that adds a burden on business in order to trade in Europe. You might have a different standard. It also means that if we leave the UK, the customs union bit, which allows you to import goods into the EU, the first point in which the goods come into the EU is where it gets checked. Once it gets through that point, it can go anywhere in the EU. If we are not in that anymore, that means that any goods that come into the EU will possibly get redirected to the UK port for that assessment for compliance with British law before it can come into the country and be sold. That would mean that small business enterprises could become an importer or an exporter, where, in fact, they are not so defined at the moment. That could be an additional burden that small business enterprises do not appreciate yet. I did make that point in one of my paragraphs, paragraph 20. Perhaps it is more lucidly pointed out. We can certainly refer to that point when we are looking back at the report. Peter. I have just been saying that it will depend upon the product that you are producing in the West End and sending to France to the consumer. At the moment, it can do so relatively seamlessly if it is a regulated product. A lot of the products that we make are now highly regulated. I mentioned toys and cosmetics as examples. If it is regulated, then when we are outside the European Union, we will be a third country exporter. We come into the import-export issues and the difference in statutes is going to be quite significant because it means that you are no longer a distributor throughout the European Union. You are an exporter into the European Union and you will have to change your relationship going back to another question about commercial contracts. You will have to change your relationship with your importer, the person in Rotterdam or the person in Antwerp. If you are receiving it and declaring it for customers' purposes, it becomes the importer. Their job is no longer simply just a distributor or a non-word distributor. They have a whole load of different obligations depending on what the law is. If I were to go into the world that I inhabit a bit too often, it is biocidal products regulation. That is mosquito repellence. It is detal. It is anything that kills things when you are not applying it to a field for agricultural purposes, roughly speaking. If you are looking at mosquito repellence and you are selling that in the EU, you are highly regulated. You have to go through all sorts of hoops and hurdles, and if you do not do that, you are committing a crime. In a post-Brexit world, your importer will have to adopt all those obligations and be able to have the paperwork to show to whichever authority—if it is in Belgium and then to the Belgian authorities—that they have complied with the BPR, which means having pretty well done a lot of discussions with people in Helsinki, because that is where the European Chemicals Agency is and has a certain role in looking after biocidal products, et cetera. There is a whole different dynamic in terms of your legal responsibilities, your legal obligations and who you are to discharge them to beyond or in addition to declaration for customs and having to pay a tariff. I wonder if we could move on then having looked at some of the problems, some of the legislation. We have heard about the current situation and the consequences of Brexit. Is there a plan? Are there a suite of options on how we will deal with these matters after Brexit? How far advanced are plans to say, is there an option? What would the best option be for dealing with the changes that are going to take place? What are the various options? Are there any? It might be an impossible question. Is there something in your papers? Make a point, which is more of a regulatory point rather than a strictly legal one, that when we leave the EU in certain sectors—for example, the financial services sector, which is authorised and regulated by the Financial Conduct Authority—it would seem to me unlikely that the FCA would ignore emerging risks to consumers that are being identified by consumer authorities in Europe. It would seem to me unlikely that it will ignore the interpretations applied to certain matters by the European Court in the way that it goes about implementing its obligations in terms of protecting consumers within the UK. It is more of a regulatory point, but it is an important one, because particularly where there is a financial ombudsman service, for example, which is free of charge for use to the consumer, and where the FCA is a very proactive regulator, it will be very keen to identify risks where consumers within the UK are being harmed, even though perhaps they are seeing the first signs of that harm emerging in the EU. Professor Bowman? We are almost straying into trade law, which is not my area of expertise, but I make a very general point, which I hope is incorrect. It is very hard for people to plan on the future trading arrangements with the EU until we have the final deal that the UK hopes to agree on a trade deal, because it is precisely those kinds of issues that are encompassed in the trade deal. Whether you will have complete regulatory alignment in any particular sector, which would mean that there is no change, if I understand correctly, and other areas, we will probably begin some kind of potential regulatory divergence. Therefore, for people trying to plan, I do not know how you plan until the trade deal is finished, and we have no idea what will be in the trade deal at the end of the day, and I think that that is life. There are certain things that you can anticipate. There may be problems, but you will not know the nature of those problems until the trade deal is finalised. That is different from civil justice issues. You have an EU law trade issue there and the impact of leaving the customs union in the single market and how far we diverge from the customs union in the single market in the trade deal. The closer we are to the customs union in the single market, the less these trade problems will arise, the more we diverge, the more they will arise more. On the other hand, and you state the obvious, if you then have the freedom to create different trading arrangements with the rest of the world, if, and it is a big if, you have enough of those new trading arrangements with the rest of the world, the cost-benefit analysis might be a positive, not a negative. We do not know that yet. That is a long-term view rather than a short-term view. In the long term, you could shift your balance of trade. After all, pay attention to the fact that we all know that, in goods trade, we do very badly with the rest of the EU. It is only in services that we do well. Pure trade terms are involvement in the EU is not a big success in balance of payments terms, even though we have a single market. For the individual traders, it is easy, but is it necessarily working for UK PLC? That is a bigger question. That is a question that we also have to be concerned about. There is that side of it that, if UK PLC might do better in the international market rather than in the European market, then in the long run, switching our attention to the international market rather than the EU, it might be a good thing. I am no expert, I am not an economist. I am just pointing out that that is a very big picture rather than the technical legal aspects. I do not think that we can address the technical legal aspects of trade issues until we know what the trade deal will be. On the civil justice side, which is the issue about jurisdiction, applicable law, recognition and enforcement of judgments, I have said already that there will be a gap for commercial to commercial companies in being able to enforce their judgments against other EU companies. How big an issue that is is the big question, because recognition enforcement is not needed very often. Usually, you get your judgment and the other side pays up, but it is very rare to have to do cross-border enforcement. Although I would like to see an improved cross-border enforcement regime, and in fact I am negotiating one in the hay, which I think would do the job from a recognition and enforcement point of view in the future, if we do not have a bespoke European deal or if we do not stay in the Gano. I am not sure, trying to be objective, that for business to business relationships, the lack of a bespoke EU civil justice deal, i.e. harmonised rules on jurisdiction and recognition enforcement is a huge issue from a business point of view. Rona Cymru, then I will bring in James. I just wanted to expand on that a wee bit and ask maybe some of our other panellists on if there is no deal is the outcome, what effect do you think that would have on Scottish businesses and consumers? Do we just carry on and maybe go international trading as Professor Bowman has been suggesting or what would be the outcome of that? We asked more generally, James, you wanted to pick up on the point that Professor Bowman had made. Yes, and I think perhaps it plays back to your point as well. The answer is that people have looked at these from different models. People have analysed consumer law, what happens if we adopt the EEA, stay in that or negotiate ourselves in that, what happens if we are falling back on a WTO, World Trade Organization model, and of course we know that the aim is for some bespoke model and of course it is difficult to look at the consequences of a bespoke model until, as Professor Bowman says, you can actually read it. But I think there has been a concern expressed widely over the last year or so that consumer protection has not figured sufficiently in the UK Government's papers on this that it wasn't one of the main principles that was laid down early on and therefore I think there is a need for people to articulate consumer protection particularly. I say that because, and I said it before, the irony of all of this is that the point at which the British consumer will best understand what being in the EU means is at the point that we're leaving and it's at that point that people are going to turn around and say, well, hang on, have I lost that? Remember those roaming charges that I didn't have to pay? Are they back on now? Or, you know, the denied boarding issues or the package travel issues or we've heard it geoblocking the right to have access to digital services as you travel around the EU and I think that's the key point that you don't want the consumer to wake up on a particular point, start reading stories in the press about how they've been let down by the process. What can you do about it? You know, what can be done now about that? I'll take your point entirely. Well, the answer is to bring it up the agenda and you've heard from Janet Scott earlier the same on family. But these are issues that will affect real people because we're not going to leave the global marketplace. We're still going to be buying things on the internet, sourcing things, travelling into Europe and people are going to, we've got a huge tourism industry, people are going to be travelling here. So it seems to me that the more and also just to make the point that much of the EU law on this is not simply minimum standards which leave states to put in higher standards but is harmonisation. So it's actually the same throughout the European Union and therefore the closer that you can remain with what the law is elsewhere it seems to me the better. The difficulty with that of course is that if you don't accept the interpretative judgments of the court of justice then there is bound to be an element of divergence. That's a whole question about how you direct the courts as to the manner in which they should treat court of justice, jurisprudence, for the future. As an enforcer, as I previously said, a lot of the laws that we enforce are directives or from regulation. If there's simply a lifting shift in, then maybe these won't immediately impact, we'll still be able to do legal metrology work, we'll still be able to enforce the law of the Weights and Measures Act, we'll still be able to consume protection of regulations, they'll all still be there. It's when the divergencies begin to happen that will cause problems for enforcement bodies. Certainly the regulations that brought in Roman charges, the regulations that brought in compensation for delayed, cancelled or refused boarding, are often EU regulations that they will have to be brought into British law so that they affect immediately from an enforcement point of view. It won't be that stark, especially given the additional transition period that appears to be negotiated at the moment, but, ultimately, if our technical standards started to diver from Europe, that was going to cause issues. It's going to cause issues for consumers, it's going to cause issues for business, additional burdens on running two different standards, producing two different goods for different markets. The question becomes, will European businesses bother manufacturing to the British standard, which will result in a dropping consumer choice, probably a good result if they did manufacture a stark increase in prices to consumers, because the opportunity that they have, the cost to business, will go up and it will get passed on. There are a great many issues further down the line that you can see that if we go through, if we are not part of the single market, the customs union, if we are part of those, then great, that makes my job very much easier, but if we are not, then it introduces a whole new maelstrom of potential outcomes, which I understand from my colleagues in Bays, they are spending hours trying to work out what those could possibly be. Until they get some sort of steer from those above or the outcomes that Aims or the British Government become apparent to them, they won't be able to predict exactly which one it's going to be or which of them it's going to be, which means that, to an extent, this is to a larger extent guesswork. Ben, very briefly, on that being in Peter and any concluding comments. Thank you, convener. It's just related to what Mr Peter has just said, which was around, you stated quite clearly there that maintenance of membership of the single market and the customs union would provide that added continuity that would be beneficial for consumers and businesses. I just wondered if others wanted to comment on that point, because that being a political area of discussion at the moment. Peter, you did want to make a comment. I'm not sure if it was in that point. Maybe it's related. I wanted to pick up on a specific comment, a specific question about whether or what we can do from a consumer protection, so looking at it from us around the table as individuals, what can we do to try and maintain the level of protection that we have become accustomed to and that we can look forward to continuing to improve frankly at the European level. I personally haven't seen much by way of the type of lobbying that you would hope to see. I've kept quite a close eye on the exiting the EU committee as an example. You have lots of witnesses who come before that committee from the CBI, for instance, and from other industry organisations. I haven't seen one from which, for instance. I'm not saying that they're not behind the scenes making their point, but I haven't seen it personally that widely broadcast, not least because it's difficult, because you're representing a very generic, you're representing the entire population effectively and it's not a subtle nuanced position that you can lobby. In terms of the cliff edge, if we go without a trade deal, without a bespoke deal, what we fall back to are the WTO terms of trade. Within the WTO terms of trade, forgetting tariffs, et cetera, you have got agreements such as the technical barriers to trade agreement, the phytosanitary and sanitary products agreement. They all deal with any barriers that are put up by WTO members to the import or the selling of products, so that you can imagine beef hormone, for instance, if there's an issue with beef hormone and we ban it here, well that would be a WTO matter, but the critical thing here is that the consumer has no say in that process whatsoever. So whenever we hear about WTO disputes, you'll hear it, the words are bullying an airbus or as bananas, which is chiquita or whatever it is, this is not an individual who's taking the case. It is left very much at the governmental level. In terms of a fallback falling off that cliff edge, immediately what I say is that the consumer is right down in the back of the queue of concerns. I'm going briefly again then James. I'm going to expect the panel to report that the House of Lords produced a couple of months back on the protecting consumers at Brexit, which was perhaps what the Commons is missing. I would also point out that the Chartered Trading Standards Institute has convened what is called a think tank to consider how all the various changes will affect trading standards law, most of which are detailed here, but it would include animal health and welfare. Hopefully that report will be produced certainly within the next 69 months and it may direct thoughts with the panel. James. Two short points first on the single market. It's interesting that in the last several years, much of the EU's work on consumer protection has really had at its basis the expansion of the single market rather than perhaps coming at it from the consumer rights end. Indeed, there are some who are critical of the EU for putting the business side ahead of individual consumer rights. The other point that I would make is that it may come down also to resources in this country, because if we are having to set up offices ourselves, and I think that there was an announcement just a day or so ago about a new office of product safety, for example, it will require resources to be put in to ensure that, for example, regulatory agencies are able to co-operate internationally, as has been the case to date. I'm afraid that, as with other sectors of the economy, you can't underestimate the need to put the resources in, particularly during the period of transition when confidence may go through a bumpy period. I would stress that. That really concludes our round table. I thank you all very much for setting out some of the issues very clearly. What isn't clear, of course, is what trade deal we're going to eventually end up with. I understand a lot that this is speculation that you have come with, looking at the various scenarios and trying to address them. I thank you all very much for your attendance today. It's been very worthwhile in trying to put this in perspective, and the committee will look at this report and see where we go from there. If I could now suspend briefly to allow the witnesses to leave. Four is Brexit and family law witness expenses. To ask members if they are content to delegate responsibility to meet our range for the Scottish parliamentary corporate body to pay on request witness expenses on the Brexit and family law session. Are we agreed? We are all agreed. Thank you. Agenda item number five, Brexit civil, commercial consumer law, witness expenses and again to ask members if they are content to delegate responsibility to meet our range for the Scottish parliamentary corporate body to pay on request witness expenses for this round table session. Are you all agreed? We are all agreed. Thank you very much for that. We now move into private session. That concludes the public part of today's meeting. Our next meeting will be on Tuesday 6 February when we have an evidence session on remand and a round table evidence session on alternative dispute resolution.