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Mr. Desmond Browne (Kilmarnock and Loudoun): The hon. Gentleman's analysis of the membership of the

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Judicial Committee is very interesting, but does he have one jot of evidence to suggest that that has influenced the decisions of that body at any time?

Mr. Salmond: The hon. Gentleman is on very dangerous ground. For example, only two out of more than 100 Judicial Committee members are women. We hope to achieve more gender equality in the Scottish Parliament than is evident in this place. It is particularly important to recognise that only two women serve on the Judicial Committee--and the hon. Gentleman would do well to appreciate that fact. It is not good enough to say that it does not matter that there is a huge gender imbalance on the Committee, an imbalance in terms of the nationalities and backgrounds of members, or that the average age of members is 67. In the normal course of events, those aspects would affect members' outlook on the various disputes that they were asked to resolve. Furthermore, I do not think that a committee that is so dramatically unrepresentative of the legal profession--never mind of society as a whole--is best placed to judge important political disputes between the Scottish and Westminster Parliaments.

I must be fair to the Minister, who has written to me in some detail about this matter. I shall share with the House some arguments that he has advanced.

Mr. Heald: I have read new clause 18, which talks about decisions regarding vires and legislative competence. They are not political issues, but issues of law. Is the hon. Gentleman seriously advocating establishing a political court?

Mr. Salmond: I have said that the requirements for serving on the court would be judicial office or judicial qualifications. A body that adjudicates on political disputes must be seen to be fair and balanced in terms of its background and the way in which it reflects both sides of the argument. If it is not, many people will believe that the body has predetermined notions about what judgments should be arrived at. If the House will allow me to reveal who the Minister says might hear such matters, we might make some progress in examining possible flaws in the Bill.

Mr. Browne rose--

Mr. Salmond: I shall give the hon. Gentleman one more go, and then I must proceed as time is limited.

Mr. Browne: I have one more question before we move from the terms of the new clause and the qualifications for membership of the constitutional court. Is the hon. Gentleman suggesting that those who have been registered as solicitors in Scotland for 15 years, and possibly never practised, and those who have been members of the Scottish or English Bars for 10 years, and possibly never practised, will be qualified to sit on the court?

Mr. Salmond: Is the hon. Gentleman suggesting that being the Leader of the House, which is one of the qualifications for being a member of the Judicial Committee of the Privy Council, is necessarily a good qualification for membership of that body? Our argument is that some legal qualifications--some background and

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training in the law--might be a useful requirement. The Judicial Committee of the Privy Council seems to be made up of people who were hangovers from the Governments of Lady Thatcher. I am not certain that that is a suitable panel to move into the new politics that we are trying to develop between the Scottish Parliament and the Westminster Parliament.

In his letter to me, the Minister stated:

that is important, as it rules out a substantial number of members of the Judicial Committee--

    "who hold or have held the Office of Lord of Appeal in Ordinary or high judicial office in the UK. This would include past and present judges of the Court of Session who are Privy Councillors. Membership of the JCPC for devolution hearings is therefore more restricted than for other hearings. For example, the present and former Lord Presidents of the Council will not be eligible to sit, nor will Commonwealth judges."

Clearly, that does not deal with my points about gender inequality or the background of the judges.

The Minister continued:

If I can compress what the Minister told me in his letters, that means that, in key cases, Scots judges may not be involved in the decision and, if they are, they will certainly be in a minority. An understanding of Scots law does not seem to be a requirement for deciding the legitimacy of Acts of the Scottish Parliament. That, to me, is unacceptable.

Our proposal would, in contrast, produce a more balanced court, which would include a wider range of expertise and understanding of Scots and constitutional law and be democratically appointed by both Parliaments. The composition of any panel of judges would be decided by the court as a whole. It is unlikely that all 14 judges would sit in judgment in any one case. The figure is likely to be five, as in the Government's proposal, but two or three of them would have some familiarity with the Scottish legal system. I am surprised that, as a member of that fine profession, the hon. Member for Kilmarnock and Loudoun (Mr. Browne) does not seem to think that that would be a useful requirement.

We are debating the way in which disputes between the two Parliaments can be arbitrated fairly. It is not good enough to pick an existing institution for whatever purpose, however it was formed and whatever elements it contains. The development of the Judicial Committee of the Privy Council has been complex, like Topsy. We should examine the best practice elsewhere in Europe--the German constitutional court is an extremely useful example--and see how that can be transported to meet the requirements of fair arbitration between the Scottish and Westminster Parliaments.

If hon. Members are uncomfortable with the notion that the Parliaments should have equal standing in nominating members of the court, that betrays an attitude that regards the Scottish Parliament as subservient and the

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Westminster Parliament as its master--far better to move to a balanced situation, where both Parliaments enjoy equal and mutual respect in the resolution of disputes.

Mr. Browne rose--

Mr. Salmond: I have given way twice to the hon. Gentleman, and I shall not give way again, or his hon. Friends will get crowded out.

Mr. McLeish indicated assent.

Mr. Salmond: I saw the Minister nodding vigorously when I refused that intervention.

This debate, and the attitude towards such a proposal, is a touchstone in determining whether hon. Members regard the Scottish Parliament as a real Parliament, entitled to real respect, or as akin to a subservient council, which this Parliament and its institutions could dispose of as they will.

6.45 pm

Mr. Heald: Perhaps I should declare an interest, as I think that I would be technically qualified to be a member of the court proposed by the hon. Member for Banff and Buchan (Mr. Salmond). Listening to his argument as it unrolled, one felt increasingly uneasy at what he was suggesting. He was proposing a court that was not a court, but a political body, with representatives fighting for each country. Such a body could be influenced by feelings of national pride.

One of our proudest boasts about British courts is that they have not been partial. Our judges have been able to consider the law and make decisions uncluttered by concerns about politics, patriotism and so on. It would be a great pity if we set up a kangaroo political court to deal with the issues under discussion. It is in the interests of all the countries in the family of the United Kingdom that we should have the sort of courts that we have enjoyed in Scotland, England and Wales--courts that are impartial and on whose judgment one can rely.

As a barrister, I practised in the courts in England and Wales for many years. I often did not like the decisions that judges made, but I never had the slightest doubt that they were doing their duty, concerned to reach a proper decision on the facts and the law.

Mr. Salmond: First, is the spokesman for the official Opposition unaware that some members hold office on the Judicial Committee by virtue of political office? Secondly, would he describe the German constitutional court as a kangaroo court, given the system of nomination to it, which is similar to what we propose?

Mr. Heald: The Lord Chancellor does not sit in court doing a political job; he does the job of a judge. To suggest that members of the court are acting in a political role is so far from the truth that it beggars belief.

Many hon. Members want to speak in the debate, so I shall be brief. The Opposition proposed that the House of Lords Appellate Committee should be the arbiter in these matters. That would deal with some of the hon. Gentleman's complaints. For example, there would be

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fewer members of the panel, there would not be judges from New Zealand, and there would be strong representation of the excellent Scottish judges we have.

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