Constitutional Reform Bill (UK Legislation)

– in the Scottish Parliament at 4:05 pm on 19th January 2005.

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Photo of Trish Godman Trish Godman Labour 4:05 pm, 19th January 2005

The next item of business is a debate on motion S2M-2119, in the name of Cathy Jamieson, on the Constitutional Reform Bill, which is United Kingdom legislation. I give the minister a minute to get his papers in order.

Photo of Hugh Henry Hugh Henry Labour 4:17 pm, 19th January 2005

The proposals in question are important. There are implications for the administration of justice in Scotland and for the highest court of law in the United Kingdom. For that reason, the Executive lodged a motion for a full plenary debate on 29 January last year, which welcomed the creation of the new court. Following a wide-ranging debate on the proposals as they then stood, the Parliament agreed to the motion.

The bill was introduced to the House of Lords in February last year. As a result of the constitutional importance of the issues, the House of Lords has given careful consideration to the proposals for almost a year. Today's debate, which takes place following consideration of the bill by the House of Lords and a second reading in the House of Commons on Monday, proceeds on a motion under the Sewel convention, which applies because certain aspects of the proposal to establish a supreme court touch on areas that are within the legislative competence of the Scottish Parliament. Those areas relate to the rights of appeal in civil cases from the Court of Session on non-devolution issues.

The bill must not be seen in a narrow sense, but in its wider context. It is part of the process of modernising the legal system, which is pretty antiquated in places. The bill also deals with reform of the office of the Lord Chancellor and will create a judicial appointments commission for England and Wales, which—like our Judicial Appointments Board for Scotland—will consider in an objective, transparent and impartial way the appointment of appropriate people to become judges.

The process of modernising the justice system is to be welcomed, and we support and encourage it. In Scotland, the review of the High Court by Lord Bonomy and the review of summary justice by Sheriff Principal McInnes are consistent with the drive towards a modern and responsive system of justice that serves the people of Scotland.

Photo of Pauline McNeill Pauline McNeill Labour

Does the minister agree that although it is important to modernise our law, it is also important that Parliament ensure that it protects the jurisdiction and framework of Scots law? Does he agree that we should do so when we modernise the constitutional framework?

Photo of Hugh Henry Hugh Henry Labour

I agree entirely with Pauline McNeill that it is fundamentally important that we protect Scotland's legal system and the important aspects of our judicial system. Indeed, that is why we have fought so hard to make changes, some of which have followed consideration by members of the Justice 1 Committee. I am pleased that such changes have been developed.

The proposals for the new supreme court will remove an indefensible and unsatisfactory legacy of the way the House of Lords operated in the past. The most senior judges are also members of the upper house of the UK Parliament, which is not a sensible way to operate in a modern democracy. Those who make the law and those who interpret the law should not be the same people.

The present arrangements in the House of Lords arose because of an historical accident. They lack transparency and lead to confusion in the public's perception of the two entirely different roles of members of the House of Lords. No one is suggesting that law lords have acted in a way that is not independent or impartial, but the current arrangements run the risk of being seen as lacking impartiality; it is right that we address that. I believe that we all support the independence of the judiciary, so I would be surprised if any member of Parliament defended the status quo in the House of Lords in that respect.

We must also ensure, as Pauline McNeill said, that the independence and integrity of Scots law are maintained. The separate nature of the Scottish legal system is an important part of how Parliament can operate differently, reflecting the needs and aspirations of the Scottish people. We have examined the proposals carefully to ensure the continued integrity of Scots law. Some of the specific issues have, quite properly, been of concern to members. Those include questions about the process of appointing Scottish judges. Should there be a quota of judges? Should there be a majority of Scottish judges in all cases coming from Scotland? Those issues were explored by the Justice 2 Committee last spring and in its resumed consideration last month.

Photo of Margaret Mitchell Margaret Mitchell Conservative

Can the minister confirm that the changes are being made because there is a perception that there could be a problem, rather than because there is a problem? That being the case, does he agree that perception should be taken into account when making declarations in the "Code of Conduct for Members of the Scottish Parliament"?

Photo of Hugh Henry Hugh Henry Labour

That is a farcical and spurious question, and I do not intend to indulge it with an answer.

All those issues were explored by the Justice 2 Committee. The Lord Advocate gave evidence to the committee on two occasions as well as giving evidence to the House of Lords Select Committee on the Constitutional Reform Bill. The conclusion of the Justice 2 Committee was to agree the case for the establishment of the supreme court and to agree that it should take on the current jurisdiction of the House of Lords. The views of the Justice 2 Committee in its two reports are broadly similar to the views of the Executive. The committee supported the underlying principle of eliminating confusion about the roles of the House of Lords, which sits both as a court and as a legislature.

The Justice 2 Committee, however, raised two related issues that we do not agree with. First, it proposed that there should be enshrined in legislation the requirement for a Scottish majority in the supreme court for cases that emanate from Scotland that give rise to devolution issues. In his evidence to the Justice 2 Committee, the Lord Advocate explained why that was not appropriate. Devolution issues under the Scotland Act 1998 are questions that, by their nature, raise matters of UK-wide constitutional importance, including issues involving the European convention on human rights and matters relating to the reserved-devolved divide. Indeed, all the cases from Scotland that have thus far involved devolution issues and which have been considered by the Judicial Committee of the Privy Council have raised ECHR questions. In our view, it would be wrong to create, in effect, a separate Scottish jurisdiction within the supreme court by legislating for a mandatory Scottish majority in cases that, by definition, have broader constitutional importance.

Secondly, the committee noted the continuing concern of the Faculty of Advocates that Scottish majorities in cases coming from Scotland would require the use of additional inner house judges as opposed to permanent Scottish appointees. The Lord Advocate pointed out that that is no different from the present position, which has not given rise to problems with the quality of additional judges who have been brought in from Scotland. Also, there is no case, based either on population or level of business, for requiring that three out of 12, or 25 per cent, of the permanent judges be Scottish. There is also no case for artificially increasing the total number of judges to 15 simply to get three permanent Scottish judges; moreover, the use of additional judges would mean that the new court would take away a disproportionate number of valuable and skilled judges from Scotland.

In conclusion, it is key that the Justice 2 Committee supported the creation of the supreme court, despite its concerns. It did not feel strongly enough to reject the principle. The time has come for the creation of a new supreme court that will be clearly independent from the UK Parliament and that will recognise the separate identity of the Scottish legal system. The bill gives us the opportunity to play our part in that overdue reform, and I hope that Parliament will support the motion.

I move,

That the Parliament agrees the principle of having a clear and transparent separation between the judiciary and the legislature and agrees that provisions in the Constitutional Reform Bill establishing a Supreme Court, and provisions consequential thereto, so far as they relate to matters within the legislative competence of the Parliament, should be considered by the UK Parliament.

Photo of Kenny MacAskill Kenny MacAskill Scottish National Party 4:24 pm, 19th January 2005

The motion is opposed on two counts: on the procedural basis that it is the wrong way to deal with the matter and on the principled basis that it is simply the wrong thing to do. Our opposition to the constant Sewelling of matters that are important to Scottish life and the impact of that on the responsibilities of the Scottish Parliament is well known.

The motion is, however, worse than many that have preceded it. Justice is a devolved issue and our legal system is unique. Its independence is even preserved within the acts of union. In 1707, the Scottish Parliament was abolished—not re-established. Decisions were being made by an oligarchy rather than a democracy and the Scottish Government was winding down rather than gearing up. Notwithstanding those things, those who passed the acts of union ensured the preservation of the distinctiveness of our society and the uniqueness of our legal system.

That was also at a time when John Rawls had not written on the rule of law, nor had Thomas Paine written "The Rights of Man". More important, we had neither incorporated the European convention on human rights into our system, nor had we established the European Court of Justice. Whatever logic existed after the union of Parliaments has lost its relevance since the establishment of the European Union, which negates the responsibility of this Parliament to address administration of justice and renders redundant the post of Minister for Justice—it is amazing that she is not here.

Those are simply the procedural points. What of the fundamental principle of how we administer justice in our nation, with its unique system and distinctive society? A supreme court is to be created, not because the Scottish system cries out for it or because the Scottish judiciary seeks it, but because the Lord Chancellor in London wants it. Whether in principle or in practice, it is not what Scotland wants but what the Lord Chancellor seeks to impose. The Lord Advocate—I am surprised also by his absence—is the prosecutor for a UK minister and policy, not the agent for the Scottish legal system or the defender of its uniqueness.

Photo of Pauline McNeill Pauline McNeill Labour

I have criticisms of the process and the motion that is before us, but would the SNP remove the option for citizens to go to the House of Lords? It would be useful for the Parliament to hear the SNP's view.

Photo of Kenny MacAskill Kenny MacAskill Scottish National Party

Ultimately, we have to ensure parity. We have a court of ultimate appeal in Scotland and people have the right to go to the Hague and the European Court of Justice about other matters. I believe that it would be best to change the procedures by repatriating the ultimate powers of the House of Lords to the High Court of Justiciary and the other courts in Scotland that have served us well.

As I said, the House of Lords is an anachronism from 1707. We live in the European Union after the treaties of Maastricht, Amsterdam and Nice. Now is the time to see how we work our distinctive system, not just how it integrates with London. We have to demonstrate that we accept that we are part of the European Union whose laws we have accepted. I do not think that it is logical to create a supreme court in London; it is logical to create a supreme court here in Scotland and to integrate it with other systems that we are now duty-bound to accept because of our membership of the EU.

I said, too, that there is no logic in maintaining an anachronism. The reserving of final rights of appeal to the House of Lords was done when the Scottish Parliament was being abolished. The empire was just starting and the EU as we know it had not evolved. Even then, it was made clear that Scottish matters needed to be distinct. So why, when our Parliament is re-established, when it is affected and influenced as much as it is by European and international conventions, should we abdicate responsibility to a different legal system?

I am not arguing that a United Kingdom requires a unitary legal system; I am arguing that there is an anachronism in that the final court of appeal for civil matters remains in London when the court of ultimate appeal for criminal matters rests in Scotland. That was then; this is now. We have a devolved legislature, the ECHR, the European Court of Justice and other international bodies. Why not end—rather than maintain—the anachronism of the final court of civil appeals being in the House of Lords or the supreme court in London when the final court of criminal appeals is in the High Court of Justiciary in Edinburgh.

The motion cannot be supported on the basis that civil justice is a reserved matter and criminal justice is devolved. Both matters are devolved and are the responsibility of this Parliament. It cannot be argued that it is right on the basis that there is more UK civil law than criminal law, not when drugs and firearms are covered by UK legislation but form a substantial, if not majority, part of serious crime. The notion is absurd. This motion is the wrong procedure. It is wrong in principle and I oppose it.

Photo of Annabel Goldie Annabel Goldie Conservative 4:30 pm, 19th January 2005

I commence with an attempt to be positive. Unlike my opponents on other benches, my party does not disagree with the use of the Sewel procedure, although we are unable to support today's motion.

This Westminster bill has demonstrated a relevant and, I hope, constructive role for the Scottish Parliament committee system in respect of reserved matters. I thank the minister for the comments that he made in his speech. It was indeed the case that the Executive wisely postponed lodging a Sewel motion because of the strange genesis of the legislation and the unusual procedure invoked at Westminster, in which the bill was referred to a select committee of the House of Lords, with the ensuing uncertainty about the bill's shape. That was a sensible course of action to take, because it enabled the Justice 2 Committee to hold an inquiry and produce a report in May last year. Although I disagreed then and I disagree now with the substantive policy content of the bill, the Justice 2 Committee's report was a useful contributor to the debate.

As will be seen from the Justice 2 Committee's second report on the Sewel motion, which was published last week, it is encouraging that many of the points in the earlier report were picked up and addressed. There might well be a useful procedural example of good committee practice to be found in all this and I pay tribute to my committee colleagues and the clerks to the Justice 2 Committee for the work that was accomplished.

However, I speak in this debate as my party's justice spokesman and I reiterate my party's concern about the bill. What is being proposed is one of the most substantial and radical reforms of the constitution and the British legal system for centuries, yet it has not proceeded on the report of a royal commission; it is not in response to an escalating wave of discontent about the current system; and it is not the consequence of joint representations from the law societies of Scotland, England and Wales. The only specific instances of discontent of which I am aware are that the SNP just wants rid of the House of Lords and Labour does not think that the current system is good. I do not think that those are good enough reasons to tear up the UK's system of justice. The present arrangements are not broke, so why this political fix?

Photo of Hugh Henry Hugh Henry Labour

I note the opposition of Annabel Goldie's party at Westminster to the principle of the proposed supreme court. However, if she opposes the proposal along with the Scottish nationalists, will she reflect on the strange and paradoxical situation in which the Conservatives in this Parliament would find themselves, if and when the proposal goes through at Westminster? We could have situations in Scotland in which we would deny people the opportunity of that further appeal; in effect, she would achieve what the Scottish nationalists seek to obtain.

Photo of Annabel Goldie Annabel Goldie Conservative

I do not follow that line of argument because if the current proposals are implemented, a change that will not be for the better will be achieved. My point is that the current system has been proven to work well. For the benefit of the minister, I will expand on that as I proceed.

The Executive has made great play of the ECHR and the need for a clear separation of judiciary and legislature—indeed, the minister referred to that. However, I submit that the evidence that such a separation is compromised at present is tenuous and unconvincing. It is reported in The Herald today that a panel of five judges has rejected the appeal of three men against convictions and sentences imposed by temporary sheriffs appointed by the Lord Advocate after the incorporation of the ECHR by the Scotland Act 1998, yet such shrieval appointments were thought defective at the time. That is why I submit that the whole basis of the bill is unsound. The change is not necessary and the case for change has not been made. That is why my party is opposed to the bill and unable to support the motion.

Photo of Mike Pringle Mike Pringle Liberal Democrat 4:34 pm, 19th January 2005

The Liberal Democrats are and have been in favour of the establishment of a supreme court. In fact, our 2001 Westminster manifesto said:

"We will transfer the judicial functions currently undertaken by the House of Lords to a new Supreme Court."

The criticism might be that its establishment has taken too long.

Last March and April, the Justice 2 Committee took evidence on the bill from a range of witnesses, including Lord Cullen and Colin Boyd, and, as others have pointed out, reported in May 2004. As we all know, the bill was then most unusually referred to a special select committee of the House of Lords. As the bill is now nearing the end of its passage, this is the appropriate time to consider a Sewel motion on it.

Some time ago, my colleague, the vice-convener of the Liberal Democrats, Robert Brown, wrote to the Lord Chancellor suggesting that much of the apprehension over a supreme court diluting the Scottish legal system could be overcome by establishing the court in Scotland. Indeed, in a previous speech in the chamber, I suggested that the old Midlothian Council building outside the High Court would make an excellent site and hoped that Westminster would give it serious consideration. Even at this late stage, MPs could still decide to take the court on circuit outside London.

The committee's earlier report reflected the considerable concern that was expressed, not least by the Lord President, that the existence of a UK supreme court would, over time, dilute the separate identity of Scots law. That issue was addressed by the House of Lords during the bill's third reading in December 2004 and we have heard that an amendment that deals with those concerns has been tabled.

That said, the committee also heard evidence on two other substantive issues of concern that have already been referred to: the appointment process for new law lords and the number of judges who would sit on Scottish cases. The original proposal was doomed to fail. How could anyone accept the proposal that a minister—and not a particularly senior one at that—should choose from a shortlist that was submitted to him or her? Following a very sensible amendment procedure, the bill now requires a selection commission to recommend a single candidate that the minister will accept or reject—I have to say that he or she will need a pretty good reason to adopt the latter course.

Another amendment requires the selection commission to

"ensure that between them the judges will have knowledge of, and experience of practice in, the law of each part of the United Kingdom".

In his evidence, the Lord Advocate explained that such a provision would recognise the current informal understanding that two of the twelve judges will be Scottish.

Normally, there will be five judges on a bench; in Scottish cases, two of those judges will be Scottish. Although the committee suggested that, in such cases, the majority of judges should be Scottish, the Lord Advocate argued successfully that such an approach was not appropriate for a number of reasons. For example, given the size of our population and the very low number of such cases, having more than two Scottish judges on the bench is not warranted. Moreover, the Lord Advocate pointed out that Scottish cases often have a UK-wide interest and that they almost always raised UK-wide ECHR issues.

Senior court judges can be temporarily appointed to ensure that there could be a Scottish majority if that were deemed preferable. However, I ask the minister to explain a little more about what will happen when Scottish cases come before a bench of five, nine or even 12 judges. I know that the Faculty of Advocates still has huge concerns, which the committee has brought to the attention of the Executive, the House of Lords and the House of Commons for their further consideration.

Taking all that into consideration, I recommend the motion in the name of the minister to the Parliament and hope that all members will support it.

Photo of Trish Godman Trish Godman Labour

We move now to the open debate. I call Bill Butler. Mr Butler, I will give you a very tight four minutes.

Photo of Bill Butler Bill Butler Labour 4:38 pm, 19th January 2005

Thank you for your generosity, Presiding Officer.

I rise to support Cathy Jamieson's motion. From their close reading of the Justice 2 Committee's report, members will be aware that a majority of committee members agreed with the case for including devolved matters in the bill. Obviously, the Conservatives, the Scottish National Party and the Scottish Socialist Party all dissented on the basis of the policy itself. Although I disagree with their position and feel that concerns about the policy have been adequately met, I accept that the points of substance and principle that they have raised continue to cause them problems. I intend to focus on those points instead of on the narrow question of the use of the Sewel convention.

The chamber will recall that the Justice 2 Committee's earlier report, which was produced in May 2004, raised a number of concerns about the bill. In the evidence that he gave on 14 December 2004, the Lord Advocate was able to refer to a number of developments that have occurred between then and now in relation to those initial concerns.

First, the committee expressed concern that the existence of a UK court could lead over time to a dilution of the separate identity of Scots law. I am glad that the Lord Advocate has been able to give detailed reassurance on that point. He has been able to point to an amendment, which is already well advanced, that would

"clarify that a decision in an appeal from England is not determinative of Scots law."

The committee was appreciative of that reassurance and thanked the Lord Advocate for it.

Another development that gave all members of the committee comfort relates to the procedure for the selection process for supreme court judges. I welcome the amended procedure, which will require the selection commission to recommend a single candidate—rather than a shortlist—for ministers to accept or reject. I feel that that is more sensible and transparent.

It would be fair to say that the composition of the supreme court in Scottish cases is a matter of substance, upon which there was a considerable amount of discussion, to say the least. From my point of view, improvements have been effected by the amendment to clause 18(5), in so far as that clause now requires that the selection commission

"must ensure that between them the judges will have knowledge of, and experience of practice in, the law of each part of the United Kingdom".

I accept that that amendment does not go as far as the recommendation in the committee's earlier report, which expressed a desire for

"a majority of Scottish judges in all Scottish cases".

I am also aware of the Faculty of Advocates continuing concern on that particular point.

Nevertheless, I am content to accept the Lord Advocate's assurance—as noted in the committee's report—that the intention behind the amendment is

"to give explicit recognition to the current informal understanding which ensures that two of the twelve judges on the Appellate Committee have knowledge and experience of Scots law."

I also concur with the Lord Advocate's point that

"it would be wrong to write in stone inflexible arrangements that would mean that one would, in effect, have two jurisdictions within one court."—[Official Report, Justice 2 Committee, 14 December 2004; c 1242.]

I wish to voice my welcome for the Executive's decision to fund the supreme court—or to provide its share of the funding—from the Justice Department's budget rather than from a levy on court fees, and for the various amendments that ensure that

"the administration of the court ... will be free from ministerial control."—[Official Report, House of Lords, 14 December 2004; Vol 667, c 1237.]

That is vital. I further welcome the Lord Advocate's commitment, which was also welcomed by the Lord President, to legislate for continued judicial independence.

Given the progress that has been made in meeting many of the concerns articulated in Parliament last January and in the Justice 2 Committee's earlier report, I commend the motion in the minister's name.

Photo of Trish Godman Trish Godman Labour

I call Margo MacDonald, who has, I regret to say, only two minutes.

Photo of Margo MacDonald Margo MacDonald Independent 4:42 pm, 19th January 2005

You do not regret that as much as I do, Presiding Officer.

I prefer to ask questions, rather than make a long speech. On Bill Butler's second-last point, I want to ask him whether he agrees with Lord Cullen's view that, despite the amendment, the arrangement would not be satisfactory to the practitioners of English law, so it should not be satisfactory to the practitioners of Scots law.

Nobody argues that separating the judiciary and the legislature is anything other than absolutely the right thing to do. Therefore, why has the Government baulked at doing so? In spite of the brave words about the independence of the judges who will be attached to the supreme court, the court will remain the responsibility of the Department for Constitutional Affairs and a minister who will be answerable to the House of Commons. That is not independence. Did that happen because the Government made a hash of that part of constitutional reform, in line with its efforts at reforming the Lords, or is this simply another example of Blairism and its known fondness for controlling everyone who might think differently from the great man himself?

I am aware that some lawyers think that the proposals might constitute a breach of article 19 of the act of union 1707. I will not even bother to ask the minister to give me the Executive's view on that question, because I doubt very much if it gave even a passing thought to the importance of keeping faith with the people who enshrined the independence of Scots law in the new political partnership that they forged with England. All I ask is that the minister should quietly examine the rationale for having a legislature that represents and reflects the distinctiveness of the Scottish nation. Without a history that lives on in our contemporary assumptions about and expectations of social order, custom and practice and justice, how can this place be anything other than a regional assembly as opposed to a national Parliament?

Why a Sewel motion? There have been umpteen changes since the idea of the supreme court was first mooted, so we could have done with a full debate. We will grow as a Parliament and as a body of people if we debate the hard questions. Why not repatriate civil appeals to Scotland? It makes more sense than taking criminal appeals to England. There is an illogicality at the very heart of the proposition and, if there is time, I ask the minister to answer my questions.

Photo of Bill Aitken Bill Aitken Conservative 4:45 pm, 19th January 2005

I find myself in the highly unusual and extremely uncomfortable position of agreeing in part with what Kenny MacAskill said, but perhaps I should stress our points of disagreement with the SNP line.

First of all—in accordance with what is now customary SNP practice—Kenny MacAskill berates the Sewel system. Our objection to today's motion is not based on the fact that it is being dealt with under the Sewel procedure, which we accept and go along with; our objection is that the legislation is completely unnecessary. That is not to say that there is not an increasing difficulty with the way in which the Parliament deals with things by means of Sewel motions. I put on the record my view that that matter will have to be examined.

Turning to the principal point of this afternoon's debate, our objection is, as I said, quite simply that the legislation is not necessary. Legislation and changes to the law are prompted by public pressure and there was absolutely no pressure from the public to change the existing system. It has worked perfectly satisfactorily for centuries, so why change it? In his address to us, the minister was certainly unable to give any justification for the changes. Having looked quite closely at the arguments that were canvassed in the House of Commons, I can see absolutely no reason why members of the Commons thought that they should legislate either. It appears that Tony Blair, in pursuit of the great god of modernity, decided that the existing system was not good enough.

In his address to us this afternoon, Hugh Henry made various arguments, all of which were spurious. Is he suggesting, for example, that the existing law lords are not acting with complete integrity? Clearly he is not. Is he suggesting that they are in some way compromised by their membership of the House of Lords or that they are showing anything other than scrupulous impartiality? He does not appear to be saying that at all, so what is the specific problem? Quite simply, it is the fact that Tony Blair is somebody who can leave nothing alone. The Minister for Communities will recall that, about an hour and a half ago, I was berating him for not changing. Down south, it appears that Tony Blair and his cohorts can leave nothing alone, no matter how satisfactorily it works. No matter how public satisfaction and public faith in an institution are demonstrated, Tony Blair has to change it.

Of course, a supreme court probably sounds very sexy for the soundbites, and it is a continuation down the road of Americanisation that Tony Blair is keen to pursue. However, the bill is basically an attack on the independence of Scots law. It really is not good enough for changes to be brought into play that are completely and totally unnecessary. There is an economic cost to the changes and absolutely no demand for them whatsoever. Kenny MacAskill pointed out that they may result in the Deputy Minister for Justice making himself redundant, which we would all regret. Basically, unless the minister—and his colleagues—are prepared to stand up and protect some of the basic principles of Scots law, he might as well not be here at all. The bill is bad legislation and we should kick it out today.

Photo of Stewart Maxwell Stewart Maxwell Scottish National Party 4:49 pm, 19th January 2005

My colleague Kenny MacAskill covered our objections to the supreme court in principle and in relation to procedure, so I will direct most of my remarks at the Sewel procedure and the Sewel motion that we are debating today.

It has been said in this afternoon's debate that we are discussing a Sewel motion, but I think that it is more accurate to say that we are actually discussing yet another Sewel motion—in other words, this is becoming a weekly event. Last week it was gambling, this week it is Scots law and next week it will be the lottery. Who knows what will come after that? It is a never-ending story.

What other country in the world would hand over control of its legal system to another country, and what Parliament would hand over control of its legal system to another Parliament? Indeed, what parliamentarians would willingly surrender control of their legal system to the whims of parliamentarians in another Parliament? The answer to that question is parliamentarians who have no self-belief, no confidence in their own country and their fellow citizens and no ambition for their country—in other words, the members of the various British nationalist parties who inhabit this Parliament and who will defend neither Scotland's interests nor, in this case, Scots law.

In this Parliament, we are constantly told that Scotland's interests will be defended by Scottish MPs in Westminster and that we should not worry about Sewel motions because Scottish Labour, Liberal and Tory MPs are fighting our corner in London. Perhaps we should look at the facts. On Monday, when the Constitutional Reform Bill had its second reading in the Commons, how many Scottish Labour MPs spoke in that important debate? None. Perhaps they had an excuse; perhaps they all turned up but were not called to speak. However, that is not the case. Only one back-bench Labour MP bothered to turn up, and he only popped in for about 10 minutes—10 minutes out of a debate that lasted from 3.30 in the afternoon until 10 at night. That is not a case of Scottish Labour MPs defending Scottish interests; it is a case of Scottish Labour MPs ignoring Scottish interests.

What about the Scottish Liberal Democrat MPs? Were they any better? Of course not—just like the Labour MPs, not one Scottish Liberal Democrat MP bothered to speak in the debate and only one turned up for a few minutes.

Last—and also least—the lone Scottish Tory MP, Peter Duncan, did not even consider the issue to be important enough to turn up for or vote on. So much for the idea that Scottish Labour, Liberal Democrat and Tory MPs are the defenders of Scotland.

However, the unionists in this Parliament will tell us that, even if Scottish MPs are not present, we can rely on MPs from the rest of the United Kingdom to watch out for our interests. Here is an example of what they think. Responding to the suggestion that Scottish law should be decided in Scotland by Scottish courts, the Tory front bencher, Jonathan Djanogly, asked:

"how would the court command more respect by moving from the nation's seat of power to less prestigious surroundings?"—[Official Report, House of Commons, 17 January 2005; Vol 429, c 649.]

That attitude makes it clear that MPs from the rest of the United Kingdom could not care less about Scottish interests. They view Scots law as inferior and Scotland as some sort of political and actual backwater.

Scottish matters should be dealt with in Scotland, devolved matters must be dealt with in Scotland and Scots law should be dealt with by Scottish judges in Scottish courts. Anything less is unacceptable.

Once again, we have seen that we cannot trust Scottish Labour, Scottish Liberal Democrats or Scottish Tories. They will not defend Scotland's interests in Westminster; we must do that here in Scotland's Parliament. What was the purpose of setting up a Scottish Parliament if we are to send Sewel motions to Westminster week after week so that that Parliament can rule on devolved matters? We are continually told that the Executive parties want Scottish solutions to Scottish problems. If that is the case, why on earth are they asking Westminster to rule on devolved matters? We must do that here in Scotland's Parliament. That is why we were elected and sent here.

I urge the Parliament to vote against the motion.

Photo of Hugh Henry Hugh Henry Labour 4:53 pm, 19th January 2005

I will start by dealing with Stewart Maxwell's points about the Sewel procedure. He asks what country would hand over control to another country. I remind Stewart Maxwell that the issue concerns giving power to our country and to our Parliament with our representatives. It is hardly our fault that the Scottish National Party at Westminster is irrelevant and ineffective. I suggest that Stewart Maxwell has a cheek to talk about anyone not turning up in the House of Commons. I remind Parliament that SNP members did not bother to turn up to vote for a minimum wage that protects low-paid workers in this country, although I give the SNP credit for turning up in 1979 to vote with the Tories to bring down a Labour Government. [ Interruption. ]

Photo of Hugh Henry Hugh Henry Labour

The opposition of Bill Aitken and the Conservatives seems to be more about harking back to their desire to retain the House of Lords in the form in which it has existed for so many centuries. They want the House of Lords to stay as it is. [ Interruption. ]

Photo of Hugh Henry Hugh Henry Labour

I sympathise with the Presiding Officer; it is difficult to control the rabble on the SNP benches.

Mike Pringle was right to raise concern about whether the separate nature of the Scottish legal system will continue to be recognised, but when we consider the case in principle for the supreme court, we should acknowledge that what the bill contains is an advance on the current position in several ways.

The first, which Bill Butler mentioned, is related to the issues that, as Annabel Goldie indicated, the Justice 2 Committee raised. During its consideration in the House of Lords, the bill was amended to ensure that, as part of the selection process for judges, the appointing commission

"must ensure that between them the judges will have knowledge of, and experience of practice in, the law of each part of the United Kingdom".

That is an important safeguard as far as the Scottish position is concerned. The bill requires that the membership of the court must comprise judges who have not merely acquired a good knowledge of Scots law, but who have experience of practice in Scots law. The bill sets out that safeguard for Scotland in statute for the first time.

The second way in which the bill is an advance was also dealt with by Bill Butler. The Lord President of the Court of Session raised concerns that the creation of the new supreme court might lead to an anglicisation of Scots law. Cases that emanate from Scotland that are at present decided by the House of Lords are binding only in relation to Scotland and cases that emanate from England and Wales that are decided in that way are binding only in relation to England and Wales. The Lord President was keen to ensure that the current position regarding the binding effect of decisions would continue. Like the Justice 2 Committee, we saw the benefit of having a declaratory provision to ensure that decisions would be binding only in relation to the jurisdiction from which they came and a clause to that effect was agreed to during the third reading of the bill in the House of Lords on 20 December. That, too, is a safeguard for Scottish interests that is set out in statute for the first time.

The third way relates to some of the concerns that the House of Lords raised on the governance arrangements for the new court, to which Margo MacDonald alluded. Unfortunately, I do not have time to pick up on Margo MacDonald's other points. The UK Government tabled amendments to establish the supreme court as an independent statutory body with its own chief executive, who will be an accountable officer who is responsible in his or her own right. The court will have independent financing from the consolidated fund. Although the Secretary of State for Constitutional Affairs will be responsible for ensuring that the new court has adequate funding and that funding will be ring fenced. It will be up to the chief executive to determine how to utilise those resources to ensure that the court's administration is effective. Even though the criticism that the Department for Constitutional Affairs is an English department was never fair, I hope that the amendments offer reassurance.

Those issues are important, but the underlying issue is the principle of whether this Parliament supports the creation of a respected, transparent and modern court that is worthy of its place at the apex of the legal system and is independent from the House of Lords. Unlike the Tories, we do not want the House of Lords to continue in the same old tired way.

Photo of Hugh Henry Hugh Henry Labour

We have a choice. By supporting the proposed reform, we can create a court that befits its role in dealing with legal cases of the highest importance—cases that affect the lives and liberties of us all. Alternatively, we can reject the new court and send a signal that portrays the Scottish legal system not as open, mature and innovative, but as insular and backward looking.

Photo of George Reid George Reid None

The minister is in his final minute.

Photo of Hugh Henry Hugh Henry Labour

If we reject the motion, we will not stop the supreme court coming into existence. It must and will exist to deal with Scottish devolution issues, as well as cases from the other jurisdictions that make up the United Kingdom. The Conservatives have not addressed the fundamental problem of what would happen if they were successful—which they will not be—in persuading the Parliament to reject the motion. As a modern Parliament, we should support the creation of a modern court to operate at the top of the UK legal system.