52nd REPORT: ROME III — CHOICE OF
LAW IN DIVORCE
Letter from Rt Hon Baroness Ashton of
Upholland, Parliamentary Under Secretary of State, Department
for Constitutional Affairs to the Chairman
I am writing to respond to the Committee's report
published on 7 December and to bring the Committee up to date
with the state of play on the proposal on jurisdiction and applicable
law in matrimonial matters ("Rome III").
I was pleased to receive the Lords Report which
was which added further detail to the helpful comments in your
letter of 2 November 2006.[43]
First, I can confirm that the Government decided
that the on this occasion the UK should not exercise its power
under our Protocol to Title IV of the TEC to opt-in to the negotiations
on this proposal. It is a matter of record that the Republic of
Ireland did not opt-in either.
Turning to the Report, we broadly agree with
the comments made by the Committee and have the following additional
comments.
APPLICABLE LAW
The Government considers that there would be
significant difficulties in applying foreign law. It agrees that
there are shortcomings in the ideas put forward to assist courts
in applying foreign law.
PRACTICAL NEED
The Government has questioned the practical
need for this proposal since the Green Paper stage. It agrees
that the evidence put forward by the Commission to justify this
proposal has not done so. We share the Committee's doubts as to
the adequacy of the impact assessment.
RUSH TO
COURT
The Government shares the doubts expressed by
the Committee as to whether the new regulation would prevent rush
to court where there is no agreement between the parties. A number
of countries also share our doubts about whether there really
is a rush to court in other than a very few cases.
SUBSIDIARITY AND
PROPORTIONALITY
We agree with the Committee that although the
power exists under Article 65(b) TEC to promote the compatibility
of rules concerning the conflict of laws, that the Commission
must nonetheless make the case for such action. Among the issues
the Commission should demonstrate is that "the measure is
necessary for the proper functioning of the internal market".
The Government shares the Committee's view that this has not been
demonstrated.
We note that the Committee was impressed by
arguments to the effect that were the jurisdictional rules to
be improved then it might not be necessary to harmonise applicable
law rules. This is a matter that would require further study.
I am grateful for the trouble that you and the
members of your Committee have put in to studying this proposal.
The UK is keeping a watching brief as the proposal
is considered in the Council working group. Other delegations
are also experiencing difficulties with the proposed rules on
applicable law but do not share our ability not to opt-in. There
must be a real risk that one or more of them may veto the proposal,
given the requirement of unanimity, unless some accommodation
can be found.
15 February 2007
Letter from the Chairman to Rt Hon Baroness
Ashton of Upholland
Thank you for your letter of 15 February setting
out the Government's Response to the Committee's Report, Rome
III-choice of law in divorce (52nd Report, 2005-06, HL 272).
This was considered by Sub-Committee E (Law and Institutions)
at its meeting on 7 March. We are pleased to note such a large
measure of agreement between the Committee and the Government
on this matter. The Committee was also interested to learn that
a number of other delegations are having difficulties with the
Commission's proposal. This confirms reports in the specialist
press.
We would be grateful if you would keep us informed
of developments.
8 March 2007
43 Correspondence with Ministers, November 2006-April
2007. Rome III (11818/06). Back
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