I beg to move Amendment No. 366, in page 17, line 23, leave out 'An' and insert 'No'.

With this it will be convenient to discuss Amendment No. 367, in page 17, leave out lines 24 and 25.

The Clause sets out the jurisdiction of the so-called supreme court. In its present form, it provides for final appeals in civil cases in Scotland, which currently lie to the House of Lords, to lie instead to the new supreme court. Amendments Nos. 366 and 367 would, in effect, delete that provision by amending clause 37 so that no final appeal in civil cases in Scotland would lie to the supreme court. I made a detailed speech on Second Reading setting out my thoughts on the clause and it would not be appropriate to go over the same ground at length today, but I shall state briefly the principal reasons behind the amendments.

First, the amendments would end the 18th-century anomaly whereby final right of appeal in Scots criminal law cases lies—quite properly—in Scotland, but final appellate jurisdiction in Scots civil law cases still lies south of the border. In post-devolution Scotland, that arrangement is illogical, unnecessary and undesirable. The second reason relates to the structure of the court and the system that will be operated as a result. In Scotland, serious concerns have been voiced by senior legal figures about the negative impact that the new supreme court system will have on the integrity of Scots law. I submit that those concerns have not been sufficiently addressed in the Bill.

It is clear that the new supreme court will not be entirely distinct and separate in all respects from the administration of justice south of the border, as is required by the 1707 treaty of Union. We see, for example, that the new Lord Chancellor—a Department for Constitutional Affairs Minister—will not only be responsible for appointing the chief executive of the supreme court but will retain some functions relating to the working of the judiciary in England. In addition, funding for the supreme court will, in effect, come within the DCA's overall budget. The proposals for the court therefore fall foul of the treaty of Union by not providing a system that is entirely distinct and separate in all respects from the administration of justice south of the border.

It is time to repatriate to post-devolution Scotland final appellate jurisdiction in Scots civil law cases. The Bill as it stands represents a missed opportunity, which the amendments are designed to rectify. Given the constitutional importance of the matter, it is a great pity that no other Scottish Member from the other parties has bothered to turn up to this key debate, just as they did not turn up for Second Reading.

As the hon. Lady knows, I am not a Scottish Member, but does she agree with me that it is incredible that there are no Conservative Back Benchers present? After the fuss they made yesterday about the constitutional importance of the Bill, they cannot be bothered to turn up to listen to this important debate.

I had not noticed that, so I am grateful to the hon. Gentleman for pointing it out. It is indeed rather odd, given that the Conservatives argued at great length on Second Reading for the time for consideration of this important Bill to be extended. Not only are there no Conservative Back Benchers present, but the sole Scottish Tory MP, the so-called Shadow Secretary of State for Scotland, Mr. Duncan, has not bothered to turn up either.

Given the constitutional importance of the Clause and the fact that it relates directly to the integrity of the Scots legal system, I shall seek to divide the Committee on the Amendment.

I oppose the amendments. I do so, first, for selfish reasons. English law has benefited enormously from the Scots' contribution in terms of both personnel and the substantive law. For their contribution of personnel, we need only look at the great jurist Lord Reid—a Scottish Law Lord, a former Advocate-General, I believe, and a Member of this House. For their contribution to the substantive law, I mentioned on Second Reading the case of Donoghue v. Stevenson: we have benefited because civil cases have come from Scotland and, conversely, Scotland has benefited as well. Because of the way in which jurisdictional limits operate in courts in England, the smaller cases, but cases that none the less involve important points of principle, do not always come to the highest courts. The Scots civil cases that come to the House of Lords provide that opportunity for law making. Returning to personnel, Lord Rodger of Earlsferry, an eminent Law Lord, is an example of one who can bring that dimension of Scots law—the heritage from Roman law—to decision making in our highest court of appeal.

When considering devolution cases, the House of Lords and the Privy Council have been highly sensitive to the Scottish dimension. Not only has there been a substantial Scottish presence on the relevant appellate body but there has been a Majority of Scottish judges deciding devolution cases in the Privy Council. Let me quote a Scottish advocate, Aidan O'Neill QC, who wrote:

"The somewhat surprising (and surely unintended) result of this might be thought to be an effective Scottish take-over of England law when matters of Convention rights are raised in the UK Privy Council".

I simply do not understand the rationale behind the amendments.

The hon. and learned Gentleman will be aware, since he has quoted a senior advocate, of the serious concerns expressed by the Faculty of Advocates about the proposals in general. As for his specific point about the composition of the panel and the number of judges, the faculty expressly called for a Majority of Scottish judges on the panel dealing with Scottish cases.

As I said, that has happened in a number of the important devolution cases. I repeat, I cannot see the rationale for the amendments.

I endorse every word that the hon. and learned Gentleman has said. I agree that the fact that there is in the Law Lords at present, and will be in the supreme court, the ability to apply common principles to civil jurisdiction in England and in Scotland has been of inestimable advantage to the development of our jurisprudence over the centuries. The fact that the two systems are different but based on the same philosophical principles means that the tension in differences of approach can be examined and ideas that start in one country can be adopted by the other. Such things are what the substance of being a united kingdom is all about, but at the same time they allow within the framework of the devolution settlement—and did so even before devolution, as can be seen in the preservation of the sole right to criminal jurisdiction in Scotland—the autonomy of the different parts. That is one of our great national success stories.

I disagreed profoundly with Annabelle Ewing when she described the arrangement as an 18th-century anomaly. She might think it anomalous today, but it certainly was not anomalous in the 18th century. It was the logical thing to do in view of the desire of the two Parliaments coming together, and that desire has continued ever since. If the Amendment is pressed to a Division, I shall vote against it.

I support entirely the thrust of the arguments made by Mr. Grieve and Ross Cranston against the amendments. There are huge benefits in a system that allows one of the Lords of Appeal in Ordinary—under the Bill, they will become supreme court justices—to come from Scotland. They have always played a significant part, and have made a contribution. Scotland has been well represented at that level. The last Lord Chancellor but one was a Scot. The highest reaches of the United Kingdom legal decision-making process has benefited from Scottish participation.

The logic of the argument made by Annabelle Ewing is that there would be no such participation, and Scots would not be nominated at that level. That is an implication of independence— a country pulls itself away entirely—but we have benefited greatly from that mixture.

The hon. Gentleman will be aware that the Bill includes an express provision that the judgments of the new court outwith their jurisdictional aspects are not to be binding but merely persuasive. How do his arguments sit in light of that fact?

With respect to the hon. Lady, that is not particular in relation to Scotland. There has never been perfect unity—we are a united kingdom to which four different countries contribute. The Scottish position is different from the Northern Irish and the Welsh position. Like my colleagues, I believe that it is better to take the Scottish contribution to our legal system up to the top. We have benefited significantly from that contribution, and some of the greatest jurists have been Scots. The United Kingdom should continue to benefit from that at the highest possible level.

I agree with everyone who has spoken except, of course, Annabelle Ewing. It is a pity that she decided to divide the Committee before hearing the rest of the debate.

Is the Minister aware that the Scottish Parliament has had an opportunity to debate this fully? Scots law will be protected under Clause 37.

My hon. Friend is right. On 19 January, the Scottish Parliament passed a Sewel motion endorsing the establishment of a UK supreme court, with 63 votes in favour and 56 against. That was the decision of the Scottish Parliament, I am glad to report.

The amendments would simply remove Scottish civil appeals from the jurisdiction of the UK supreme court. Clause 37, and schedule 8, which it introduces, make provision for the jurisdiction of the new supreme court. We propose that its jurisdiction will be the same as the jurisdiction of the Appellate Committee of the House of Lords in appeals from England, Wales, Scotland and Northern Ireland, together with the jurisdiction of the Judicial Committee of the Privy Council in relation to devolution issues. The supreme court will be a superior court of record, as are the House of Lords and the Judicial Committee of the Privy Council.

Clause 37 is critical, because it ensures that current jurisdictional arrangements are preserved, thereby ensuring consistency in approach between the new and the old regimes for people seeking a judgment from the highest court in the land. Those arrangements include the appeal process and the types of appeal from each jurisdiction, including leave requirements and routes of appeal.

The Minister would be hard pressed to find one Sewel motion that has not been passed by the Labour-Liberal Scottish Executive. However, can he explain to senior legal figures in Scotland and to me what on earth is the logic of sending a final appeal down to a court in London, when the judgment is not binding on any other part of the UK? The opposite also obtains. What is the logic of that in post-devolution Scotland?

It is the same logic that applies to any part of the United Kingdom that sends its appeals to that court or to the new supreme court. The hon. Lady could make the same argument for any other part of the United Kingdom, and the change that she has proposed would not be beneficial. As my hon. and learned Friend Ross Cranston pointed out, it could be detrimental. The hon. Lady suggested that the passing of a Sewel motion is a minor irrelevance, but it is democracy. In fact, it is the choice of the people of Scotland themselves who, through their elected representatives, backed the creation of a UK supreme court. That was Scotland's choice, and I am glad that it was passed by the Scottish Parliament.

The decision to transfer the devolution jurisdiction of the Judicial Committee of the Privy Council to the supreme court will create a single apex to the UK's judicial systems. Previously, that was not possible, because of the need to avoid the constitutional absurdity of a court hearing a dispute between the UK Parliament and a devolved Administration where the court is a Committee of one of the parties—in other words, the UK Parliament. I forgot to mention it earlier, but that is another reason for creating a supreme court and removing an existing anomaly.

In discussing the proposed repatriation of civil appeals, it is significant, as I said, that a Sewel motion was passed. There is a 300-year-long tradition for appeals in civil matters legitimately to come to a UK-wide court of appeal. The hon. Lady's arguments about the Act of Union of 1707 are misguided, and nothing in the Bill is inconsistent with it. The overriding fact in this debate is that the Bill preserves the essential nature of appeals to the House of Lords. The route of appeal will lie, from the same courts, in the same cases and in the same way, to the supreme court, just as it does to the House of Lords. I therefore urge the Committee to agree to the Clause unamended and to reject the amendments.

Briefly, I have not heard anything in our short debate that obviates the need either for the amendments or for a Division, which I shall still seek. Scots law is entirely separate and is devolved to the Scottish Parliament. We have a new political structure in the United Kingdom, which the Minister may not yet have caught up with. He used the Sewel motion as a purported justification for the Clause, but it is a political mechanism, and provides no justification for the provisions of the Bill that, as I explained in detail, we are seeking to amend. Fifty-five Sewel motions have been passed since 1999. They represent devolution in reverse and are not to be commended.

The Minister referred to the treaty of Union, but he has failed on Second Reading and in Committee to address the specific concerns expressed by senior legal figures in Scotland about the compatibility of the Bill's proposals with that treaty. The proposed new system and structure will not be entirely distinct and separate from the administration of justice south of the border, and he did not seek to deal with those specific points at all. I therefore seek to divide the Committee on Amendment No. 366.

Question put, That the amendment be made:—

The Committee divided: Ayes 4, Noes 411.

Question accordingly negatived.

Question proposed, That the clause stand part of the Bill.

Briefly, Clause 37 and schedule 8, which it introduces, together provide for the jurisdiction of the UK supreme court, and transfer over the current arrangements, ensuring that they are preserved. Effectively, that is what clause 37 does, and I commend it to the Committee.

Question put and agreed to.

Clause 37 ordered to stand part of the Bill.

Schedule 8 agreed to.