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Mr. Dalyell: What we are discussing is an embryo, if not an actual, proto-constitutional court. If we are embarking on that road, there ought to be a statement at the Dispatch Box from the Prime Minister and no other Minister, because that is entirely new in British politics. The decisions taken by the court would, frankly, be political decisions. Do not tell me that there could be any meaningful argument without it being highly political. To set up a court to take quasi and actual political decisions requires a statement from my right hon. Friend the Prime Minister at the Dispatch Box, outlining the Government's policy on these matters.

I have one question to my hon. Friend the Minister. If there is a constitutional court, what is the Government's view of what would be decided by that court? We ought to hear the scope of any such body which, as I said, will be new in British politics. In the short time available, I hope that my hon. Friend will deal with that question.

Mr. Wallace: There is a case for a constitutional court. In the context of the many constitutional changes that are taking place, the country should have a constitutional court. However, the new clause is not some kind of touchstone, a virility symbol for the Scottish Parliament. A touchstone should be crafted somewhat better than new clause 18.

There is not just the technical point of whether one has to qualify under all four headings. For example, the Lord Advocate should not be a member of the court. His role should be to plead before the court, not to be a member of it. There is also no provision for the composition of the court in any given case, and Scottish representation might still not necessarily be achieved.

My biggest concern is that the new clause falls foul of the danger--to which the hon. Member for Banff and Buchan (Mr. Salmond) referred--that the system could develop like Topsy. A constitutional court will ultimately be needed because there will be questions of vires between the Welsh assembly and the House, between the Scottish Parliament and the House, and on human rights, freedom of information and Northern Ireland. If we are to go ahead, we should do so properly, not on the basis of just one dimension of the evolving constitutional argument.

That was the thinking in the Scottish Constitutional Convention when we considered whether we should opt for a constitutional court or the Judicial Committee of the Privy Council. The view was taken that a constitutional court, while ultimately being the desirable end point, could not be achieved in the context of the Scotland Bill. Therefore, the JCPC was chosen as the best of what was there.

Is there any way of ensuring that, in any sitting of the JCPC, there is Scottish representation? It is a question not of justice being done, but of it being seen to be done. Lawyers here will no doubt accept that those who sit on the Judicial Committee will act judicially, but try to explain that if a decision went against the position taken

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by the Scottish Parliament and the JCPC did not contain a single Scot. It would no doubt be legally right, but try to explain that to a sceptical population who would, no doubt, see some conspiracy there.

Dr. Godman: On the last question raised by the hon. and learned Member for Orkney and Shetland (Mr. Wallace), I remind him that the composition of the tribunal inquiring into Bloody Sunday has been broadly accepted by the families of the men and youths who were shot on that terrible day. The judge who will chair the tribunal is an English Law Lord and the other two jurists are from elsewhere in the Commonwealth.

I think that I was the first in the House to ask the Secretary of State to give sympathetic consideration, with his ministerial colleagues, to the setting up of a constitutional court. New clause 18 states:


It goes on to talk exclusively of Scotland and England. I know that I shall be reminded that we are debating the Scotland Bill, but I believe that there will be a massive vote in support of the yes campaign in the referendum in Northern Ireland on 22 May, and the House will shortly afterwards debate a Northern Ireland Bill. What then of the new clause which states:


    "There shall be a Constitutional Court in the United Kingdom."?

Would that have to be amended to include judges from the Northern Ireland judiciary? If the clause had referred to a British constitutional court, that might be a different matter.

Mr. Salmond: Let me put the hon. Gentleman's mind at rest. If the Minister tells me that he accepts the principle of a constitutional court, I shall be amenable to accelerating the time scale this evening.

Dr. Godman: I am suggesting that the new clause should be withdrawn until we reach that Northern Ireland legislation concerning the setting up in Northern Ireland of an assembly which I hope will be more akin to the Scottish Parliament than to the Welsh assembly.

Mr. McLeish: The Government recommend that the House reject new clause 18 proposed by the Scottish National party.

Again, the issue should not be seen in the context of current parliamentary or Government circumstances at Westminster plus what we shall have at Holyrood. The nationalists try to pretend that we are moving towards some independence model. The basis of this settlement is devolution, not federalism, which is basically the model adopted, quite legitimately, by the SNP to frame some of its ideas. The measure is not about independence; it seeks to allow issues concerning vires to be resolved in the most constructive and effective way possible.

It is dangerous to suggest that we introduce politics into the court; that we introduce a kind of Scotland-England issue into the court. At the end of the day, we need to consider the legality surrounding a particular issue, not to politicise everything. That may be the nationalists' wish, but it does not lead to good or sensible government.

The Government reject new clause 18 and the consequential amendments. The new clause would create a constitutional court to replace the role currently

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provided for the Judicial Committee of the Privy Council in determining questions concerning the legislative competence of the Scottish Parliament.

Before dealing in detail with the SNP's proposal for a constitutional court, I shall discuss the existing arrangements that are within the Bill's competence. The policy that the Bill reflects was summarised in chapter 4 of the White Paper. It recognised that, from time to time, the Scottish Executive and the UK Government would take different views of the Scottish Parliament's legislative powers. In most cases, we expect that they should be able to resolve such views quickly and amicably.

The Government recognised that, at times, there would be disputes and that it would be necessary to have a mechanism to resolve such disputes. The Government consider that the JCPC would be the appropriate body ultimately to resolve such issues.

The Government do not support the proposed creation of a constitutional court. It is not necessary to try to create a new structure. The JCPC already exists. It has vast experience of dealing with constitutional issues from the Commonwealth. It is ideally placed to resolve any disputes about vires.

It is wrong to suggest, as hon. Members have, that issues will not be fairly considered and will be dominated by an English bias. The JCPC is an impartial body. I have no doubt that each case will be decided on its merits after careful consideration of the facts of the case. Of course, the decision of the JCPC will be final.

Mr. Salmond: Will the Minister confirm that it is possible under the arrangements that he is defending for a devolution case to be judged by the JCPC with no Scottish judge on that committee?

Mr. McLeish: It is our intention that that will not happen. Our intention is to ensure that the JCPC considers issues on their merit. We are talking about issues of vires. We are not trying to introduce politics into every conceivable decision. The veiled threat from the nationalists this evening is: "Beware of the Scottish Parliament because, when we are members of that body, we will talk about cross-border public bodies and there will be trouble for the first person whom we invite who does not come." That has been stated.

Because the constitutional court may have English judges, there is some suggestion that we cannot resolve matters as vires, that we have to politicise everything. That is a dangerous attitude. It is not constructive and it does not augur well for the good sensible government that Scotland requires from the first day the Scottish Members of Parliament are elected.

Mr. Grieve: Does the Minister accept that I, as an English Member of Parliament, would not mind if five Scottish members of the JCPC determined such issues? That is completely irrelevant.

7 pm

Mr. McLeish: The point has been made. The Government have no doubt that each case will be decided on its merits after careful consideration.

Clause 94 provides that, for this purpose, the JCPC will be composed of members who hold or have held the office of Lord of Appeal in Ordinary or high judicial office in

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the UK. That will include the judges of the Court of Session who are Privy Councillors. It is difficult to imagine how the members of any constitutional court could be better qualified.

The Government's approach is based on the belief that such issues should be decided as a matter of law, not of politics. Involving this House and the Scottish Parliament in the election of members of a constitutional court would inevitably politicise the process and raise questions about the independence of the court's members--would they be genuinely free to make up their minds, or would they be beholden to the body that elected them?

The involvement of the Lord Chancellor and theLord Advocate--members of their respective Administrations--could also politicise the process of dispute resolution. Indeed, the suggestion that the Lord Advocate should be a member of the court ignores the fact that, as Law Officer to the Scottish Executive, he would be responsible for instituting and defending proceedings for the determination of a devolution issue. Under the model in the new clause, there would be an initial conflict of interest. It is nonsensical to suggest that he could present the case for the Scottish Executive and then rule on it.

I was interested in whom else the SNP considers appropriate to hear such cases. Although there are many eminent advocates, solicitors and law professors with considerable experience in the legal system, I admit that the combined judicial experience of the Judicial Committee would be difficult to equal. It is hard to escape that conclusion in terms of competence in law and legal issues.

The Government believe that there should be a mechanism to ensure independent consideration of devolution issues. In the Judicial Committee, the Bill provides that. I urge the hon. Member for Banff and Buchan (Mr. Salmond) to ask leave to withdraw the motion.


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