The correspondence from Lord McNally to Sir Roger Gale in two letters, one of which was dated 10th July 2012 and the second 19th October 2012 has been so mistaken on the Continent that publication is needed to ensure that the statements of a general nature made by the then Minister of Justice are no longer taken out of the context to which they now relate.  The manner in which Lord Mc>Nally was forced to condescend to detail by the continuous pressure brought by a journalist  on a MEP is regrettable, as it has in fact rendered a simpler and more effective position for Britons under the fundamental changes brought about by the Regulation unclear.

It is unfortunate that such a position was taken on a matter now outside the actual jurisdiction of the Ministry of Justice in a matter which is one for the Courts, not the Executive.  As the Regulation is not applicable to the United Kingdom, once the Opt Out took effect, the Ministry of Justice has no further say in the issue: it is up to the Courts.

Lord McNally is plain wrong, to put it bluntly.

The point of the Regulation was to eliminate the uncertainty induced by the concept of renvoi to which he refers. He evidently was not briefed upon the mechanics of how that was achieved, nor for that matter as to the provision of English common law concerning the transfer of foreign immovables which in fact resolves the issues which he raises, albeit with a degree of certainty which appears to have eluded him.

He forgot that the aim of the Regulation was to provide one law (a unitary succession) not several (scissionist), under a fundamental right to certainty, which appears to be something with which he is uncomfortable.

The Regulation guarantees European citizens the right to certainty in the planning of their successions. The British national is an EU citizen under the Non-Discrimination and Nationality provisions of the Treaty on the Functioning of the European Union - articles 18 and 20 TFEU in particular- whether or not the Regulation be  applicable within the United Kingdom. The repeated references in the Regulation to citizens therefore as a matter of law, not MEP or MoJ patronage, apply to them in Europe, and the Succession Regulation has to be interpreted in that light to their advantage. The correspondence between Sir Roger Gale, then a MEP, and Lord McNally surprisingly enough makes no reference to that fundamental point of law and entitlement.

Unfortunately, Lord McNally makes unsubstantiated statements as if doctrinal on the second page of his letter of 19th October, 2012 to the effect that UK law does not address the issue of succession to foreign property, which is incorrect both within the context of article 23, defining the scope of the applicable law, once the French or other participating EU Member State courts have taken jurisdiction on an ancillary basis or otherwise; and under the English common law which is the law that article 23 essentially invokes.  The relevance of renvoi in English law is limited to competence, i.e. jurisdictional issues, and only then what law the Court selected is to  apply.  It has no relevance as to what the common law has always said in relation to foreign immovables, which is the law referred to by article 23.1. and 23.2. of the Regulation.

So what is that law? Despite the 1897 and 1925 statutory consolidation, the common law remains that any foreign immovable passes by the prior existing method of direct seisin or direct transfer without reference to a foreign law or to an executor, certainly not by renvoi to a foreign court or to a foreign law which is what Lord McNally chose to effectively state.   It is only the  Private International or Conflict of laws scissionnist régime which performed that miracle and that has  has been abrogated under the Regulation.  Lord McNally unfortunately appears to have assumed that that scissionist facility remains; it does not, at least in Europe, now, and the doctrine of renvoi upon which it was based has been removed for most purposes from the laws of the EU States applying the Regulation, including France.

All it would have taken was reading pages 542-550 in relation to the transfer of legal title by succession of  Megarry and Wade's Law of Real Property Third Edition, readily available at most second hand book shops. The manner in which the legal estate in land passes under common law prior to 1898 is set out at pages 542-550. Dicey in 1908 in the second edition of his work A Digest of the Law of England with reference to the Conflict of Laws at page 307  Rule 63 note 1, and Rule 75 at pages 346-347 confirms that the Land Transfer Act 1897 does not affect any land outside England. Prior to that, describing the Land Transfer Act of 1897, in his work "The Real Representative Law, 1897 being Part I of the Land Transfer Act 1897 and Discussion on Administration thereafter published by William Clowes and Sons Limited in 1898", Amherst Tyssen confirmed what the common law that I am setting out here was then, and,  as it has not been repealed by Parliament,  as a matter of law -not parliamentary or executive patronage- must still remain the substantive law in relation to the transfer on death of foreign immovables. It is that question of the substantive law laid down as applicable to the transfer by articles 23.2. of the Regulation. That law takes precedence over any consideration of renvoi which is effectively curtailed in this instance by article 34.1 and 2.  In short, it is wrong to see the application of the Regulation only from the British Private International Law viewpoint, as if nothing had changed. The fundamental law has changed in Europe to a unitary concept of succession law.  The transfer of the property abroad defined by article 23 takes place by reference to the substantial or material law of England and Wales.  That is the sole law applicable in relation to the mechanics of transfer of foreign land on death.  That transfer takes place before any consideration of the now redundant issue of renvoi by the Continental notary or court can arise under article 34.  Those preferring the mechanics of renvoi to the law may indulge themselves in that outside Europe, but not within the scope of application of the Regulation in Europe.

What is more, Lord McNally infers that a British Citizen can only exercise the option to have the law of their nationality apply if they were resident in a Member State of the European Union in which the Regulation is applicable. Nothing could be further from the truth. British Citizens have European Citizenship as a separate citizenship under the TFEU citizenship rule. Those citizenship rights and rules include the EU Treaty right to reside within the EU, which means, not infers, that they have the right to acquire and dispose of a residence, whether by intestacy or by will, within the EU, as EU, not just British citizens. That means that they have the right as EU, as opposed to British citizens to avail themselves of the rights to certainty and planning to which reference is made at considerants 37 and 38 of the Regulation, and which is its justification. One of the objectives of the Regulation at considerant 80 is "the organisation in advance by citizens of their succession in a Union context". These are expressed to be  EU "citizens" rights, not dependent upon the place from which they are exercised, nor whether the lesser Regulation is applicable in their particular Member State.  It is curious that a Government so devoted to the upholding of citizen rights should have lost sight of its primary objective when i comes to property rights.

The ensuing errors made in interpreting the last letter have led several European commentators to assume, falsely,  that the effective abolition of renvoi brought about in the Regulation at article 34.2. did not apply to UK habitually resident nationals and disabled them from making a option for the law of their nationality in a separate will for their French assets.  The Regulation changes Private International Law by directly effective provisions which apply to residents of third States in relation to their successions within the European Union.

What is worse, in questions of intestate succession, which can arise, Lord McNally's comments, which are not correct, would remove the possibility of arguing the British common law position thus potentially enabling heirs to claim forced heirship alleging a renvoi. That claim is actually prevented at law by other means, but the error of Lord McNally has given rise to uncertainty, not certainty, and to potential strife.

In the wider context of the rights to acquire residences given to British nationals under articles 20 and 21 (inter alia) of the TFEU, such an adverse interpretation constitutes a further obstacle to the freedom of movement of capital of which the succession to immovables is a part.

At the risk of being indelicate, I am not revealing the source of these copies. The somewhat facile attempts to keep these under wraps is certainly neither democratic nor for that matter sensible in any sense of the term.  Ther is enough confusion being caused on the continent by individual publishers  passing themselves and non-lawyers off as legal commentators without that.  Their publication now enables colleagues to curtail adverse Continental misinterpretation of the exact nature of Lord McNally's statements as to the position of the Ministry of Justice over the United Kingdom's negotiation of the Regulation, which is not that of the Courts. The comments of the Minister of Justice are of no legal authority at all in specific cases, if at all, and should not be construed as such by foreign lawyers or commentators seeking to advance their own interpretation of the effect of the Regulation under English law.

It is curious that any initiative of releasing these within Brussels was taken by the MEP in question, as it has in fact been counterproductive to the working through of the best application for British nationals, who remain EU Citizens, the Regulation notwithstanding,  in relation to their French, Italian and other EU properties which was otherwise possible, and now literally has to be fought for point by point.

I am doing no more that writing out elementary points of law in the context in which they are applied.

As Lord McNally points out, succession and succession planning are complicated, and require legal -as opposed to political- advice. It is a shame that he only managed to complicate it further.

Finally, the following comment in the second page of the Letter of Lord McNally of 19th October, 2012 is worth dwelling upon:

" In simple terms, if UK law applies to the succession of an estate and this involves a property which is located overseas, the law in the UK will dictate that the law of the country in which the property is situated should apply. This means that the Regulation does not lessen the difficulties for British citizens who die in the UK or abroad where this involves real property. My officials are currently considering whether improvements can be made through domestic law that could address these problems."

Enough has been said about the error of law caused by overconcentration on renvoi and its scope. The terms "dictate" and "should" employed should be enough to get any lawyer thinking, when it comes from the Executive.

In the absence of publication of any attempt by Ministry of Justice Officials to air their considerations, the answer sought from them by their ex-Minister may simply be that the English common law may not need modification or for that matter "improvement", if it is just simply applied through article 23.2.  The position taken by Lord McNally, supporting the then Secretary of State for the EU  is then officially "qualified" if not disposed of, accordingly. Frankly, it has caused enough chaos as it stands.  Please see other publications and postings for further details on the News or on the  Resources pages of  my Website.

It is curious how an elevated politician is unable to recognise old solutions as being equally valid in the present as it evolves.  Perhaps we should now consider the English common law as repealable in absentia, by ministerial decree? I prefer the guaranteed to some form of ministerial patronage.

It is clear that the law on this issue is now in the hands of Counsel and can be addressed by Counsel's opinion in this area, as it appears, understandably,  to be beyond the remit and therefore the ken of the civil servants entrusted with this task at the Ministry of Justice.  The unfortunate things is that the letters were "leaked" within Europe by journalists as having some semblance of legal authority, which frankly they do not.