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Mr. David Trimble (Upper Bann) (UUP): I wish to ask a question about terminology, although the Minister may have dealt with it in earlier proceedings on the Bill. The phrase "Supreme Court" in new clause 5 refers to the body that will unfortunately replace the House of Lords in its judicial capacity, but does not refer to the Supreme Court of Northern Ireland, which presumably will require a new name in the same way as the Supreme Court of England and Wales will require a new name. What will the new name of the Northern Ireland body be?
By making the change to schedule 3 to the 1998 Act, new clause 5 will ensure that the position of the new UK supreme court will exactly reflect the current status of the judicial function of the House of Lords, so the status of the final court of appeal for Northern Ireland will not be altered. The new clause reflects and preserves existing devolution arrangements, so I hope that the Committee will accept that it is effectively a consequential aspect of the wider principles that we debated earlier.
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
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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 liesquite properlyin 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 Chancellora Department for Constitutional Affairs Ministerwill 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.
Keith Vaz (Leicester, East) (Lab): 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.
Annabelle Ewing: 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, the hon. Member for Galloway and Upper Nithsdale (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.
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Ross Cranston: 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 Reida 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 lawthe heritage from Roman lawto 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".
Annabelle Ewing: 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.
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 settlementand did so even before devolution, as can be seen in the
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preservation of the sole right to criminal jurisdiction in Scotlandthe autonomy of the different parts. That is one of our great national success stories.
I disagreed profoundly with the hon. Member for Perth (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.
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