---

Annabelle Ewing (Perth) (SNP): I preface my comments by saying for the record that, like the hon. Member for Stafford (Mr. Kidney), I am a non-practising solicitor, albeit of the Scottish variety.

I shall focus my remarks on the detail of part 3, which deals with the proposals for the new so-called United Kingdom supreme court. Much has been said about the way in which the proposals came forth. It is certainly true that their timing was the direct result of the botched reshuffle in June 2003. As the right hon. Member for Berwick-upon-Tweed (Mr. Beith) said, at the time of the announcement of the creation of a supreme court, it had
 
17 Jan 2005 : Column 631
 
been forgotten that final appellate civil jurisdiction—appeals in civil matters—still lay with the House of Lords. That fundamental issue had been entirely forgotten down here in Westminster.

There was no prior consultation with the Scottish Parliament and Scottish Ministers, which was a breach of the devolution concordats, which exist to deal, inter alia, with issues such as the important proposed changes to devolved areas of Scots law. At the time of the furore in Scotland when the proposals were first announced, the Scottish First Minister was asked his views on the failure on the part of the Prime Minister and the Westminster Parliament to consult him. He said simply that there was "absolutely no reason whatsoever" for the Prime Minister to have consulted him on such a major constitutional change. That says an awful lot about the limited lengths to which Scotland's First Minister will go to stand up for the Scotland's interests, a key aspect of which is the independence of the Scottish legal system.

The substance of the proposals has caused much controversy in Scotland. On the one hand, the proposals represent a missed opportunity to end the 18th-century anomaly whereby final appellate jurisdiction in civil cases lies south of the border, while on the other, serious questions remain about the compatibility of the proposals with the founding constitutional document of the Union between Scotland and England—the 1707 treaty of Union. On the first point—that an opportunity has been missed to repatriate to Scotland final appeals in civil cases—in post-devolution Scotland, where the Scottish Parliament has jurisdiction over both criminal and civil law matters, why is it deemed necessary, desirable or logical that final appeal in civil cases lie south of the border? There has never been a final appeal to the House of Lords in criminal cases in Scotland and it does not seem sensible to continue the anomaly in Scottish civil law. That is especially important when seen in the context of the specific proposals made in the Bill, which states—probably for the first time in statute—that the final judgments of the new supreme court are not to be binding outwith their respective jurisdictions. It has been said that the judgments will enjoy persuasive effect, but if they are not to be binding outwith their respective jurisdictions, why on earth do we need to go to London to have a final appeal heard in a Scottish civil law case? That makes no sense in post-devolution Scotland.

The fact that civil appeals lie with the House of Lords is simply an historical quirk. Now, in 2005, we have the ideal opportunity to end the anomaly and repatriate to Scotland final appellate jurisdiction in civil cases. That view has been echoed by many in Scotland both within and outwith legal circles. Professor Black, the renowned and respected professor of Scots law at Edinburgh university, described the present system of sending final appeals in civil cases to London as "crazy". He added:

"I've always thought that civil appeals should be decided in Scottish courts . . . A UK supreme court should only be for constitutional issues".

I agree entirely, with the proviso that, when Scotland reclaims her independence, there will be no need for so-called devolution issues to be dealt with by a UK constitutional court—the UK supreme court—which
 
17 Jan 2005 : Column 632
 
is to take over jurisdiction in such matters from the Judicial Committee of the Privy Council. When Scotland reclaims her independence, the writ of the UK supreme court will not run in Scotland.

Mr. Beith: Presumably, the hon. Lady's proposal is for a further tier of appeal in the Scottish system to replace the supreme court.

Annabelle Ewing: Because Scottish law is devolved to the Scottish Parliament, it would be for the Scottish Parliament to decide whether and in what way any appeal in civil matters should lie from the inner house of the Court of Session. I am sure that it is not beyond the Scottish Parliament's wit to come up with a satisfactory solution.

I mentioned concerns about the compatibility of the proposals with the treaty of Union. A post facto consultation process was embarked upon but, in effect, the decisions had already been taken: the consultation was not on whether appeals should lie south of the border, but in what form the appeals should be made, whether there should be an automatic right of appeal or leave given to appeal, and so on. The fundamental issue was not addressed because the Government had already made their decisions. During that consultation, concerns were expressed by senior Scottish Law Lords, including Lord Hope of Craighead. The Faculty of Advocates in Scotland made a detailed submission, which was a devastating critique of the consultation document. I am sure that the Minister is aware of that and that he read it assiduously. However, if the Bill is not to fall foul of the treaty of Union, any appeal in a Scottish case south of the border must be heard in a court that is entirely separate and distinct from the English legal system. Having seen the detail of the proposals on the supreme court in the Bill, I am not satisfied that the requirements in the treaty of Union have been met. Key concerns about the funding arrangements, as well as the administration and operation of the supreme court, were raised by the Faculty of Advocates.

The funding of the supreme court will come out of the overall budget of the Department for Constitutional Affairs. When I asked the Minister about that, he simply said that the DCA was a UK Government Department. That was not the best answer to give, as all Whitehall Departments for the Westminster Parliament are viewed as UK Government Departments, and the DCA has little writ in Scotland, given that it is concerned mostly with the justice system in England and Wales. He therefore did not convincingly rebut my point. As for the administration of the new supreme court, we know from the Bill that its chief executive will be appointed by the successor to the Lord Chancellor—a DCA Minister—who will retain some functions relating to the workings of the judiciary in England and Wales. It cannot be argued, therefore, that the supreme court is entirely separate and distinct in all aspects from the English legal system, which raises serious questions about whether the Bill's proposals for a UK supreme court are compatible with the founding constitutional document that thirls Scotland to control from London.

In conclusion, we have heard much tonight about the separation of powers which, for the record, I favour. I also favour a written constitution and a Bill of Rights.
 
17 Jan 2005 : Column 633
 
However, the key provisions of the Constitutional Reform Bill on the UK supreme court are unacceptable to my party not only because they represent a missed opportunity to end an 18th-century anomaly and repatriate final appellate jurisdiction in civil cases to Scotland but, given that they provide for a system that is not entirely separate and distinct from the English legal system, because they impinge on the integrity of Scots law. I was elected to Westminster to stand up for the interests of my country and, as a result, I cannot vote for a Bill that will do down the integrity of the legal system of Scotland.

8.38 pm

Sir Patrick Cormack (South Staffordshire) (Con): I am sure that the hon. Member for Perth (Annabelle Ewing) will forgive me if I do not follow her Scottish remarks in detail. Her speech and that of the right hon. Member for Berwick-upon-Tweed (Mr. Beith) were extremely fine, as they were of an exemplary length, and I shall try to emulate that.

I begin with an apology to the House and an expression of regret. I apologise for missing some speeches. As you know, Mr. Deputy Speaker, I am a member of the House of Commons Commission, and I had to attend an important meeting with Mr. Speaker. I was therefore undertaking House business, so I hope that colleagues will understand why I missed one or two speeches. I regret the fact that few Members are present in the Chamber to debate an issue of such extraordinary importance. It is particularly regrettable that the Government have run out of speakers.

Those of us who care about the Chamber—the forum and cockpit of the nation—will have to address this issue extremely carefully. What we need in the new Parliament—I suppose, as most of us do, that the present Parliament is nearly at its end—is a real determination to have the Chamber populated for major debates. When I first entered the House, and for many years afterwards, any major debate, especially a major constitutional debate, would have seen the Benches if not packed, at least respectably full throughout.

The Bill began in a most unfortunate way, as many right hon. and hon. Members have said. It was classic back-of-the-envelope stuff. A major constitutional reform of this nature should have been preceded by a White Paper, and preferably by a Green Paper before that. There should have been a draft Bill for both Houses to consider in detail. The proposals should have been clear, coherent and deliverable. What happened in the wake of that extraordinary reshuffle a couple of years ago did none of those things. So we were left, especially in the House of Lords, with a dog's breakfast.

We all owe an enormous debt of gratitude to the other place for the way in which it has tackled the Bill. It went through its own special procedures and it has now produced something for us that is, to a degree, coherent. We owe also a particular debt of gratitude to the Lord Chief Justice. The hon. and learned Member for Redcar (Vera Baird) has cited him on a number of occasions. I do not think that his enthusiasm was necessarily quite as great as she said, but he has behaved in an impeccably constitutional manner. Like the famous Irishman in the story, he would not have started there. However,
 
17 Jan 2005 : Column 634
 
confronted with what was a potential constitutional crisis he brought to bear his patience, his wisdom, his determination and his eloquence. He has played a major part in creating the Bill that is before us. It is very much a curate's egg of a Bill, in that it is good in parts.

---