Plenary, 29 Jan 2004

Meeting date: Thursday, January 29, 2004

Official Report 686KB pdf

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Supreme Court

Good morning. The first item of business is a debate on motion S2M-828, in the name of Cathy Jamieson, on modernising the court system and a new supreme court, and two amendments to that motion.

I welcome this opportunity for members of the Scottish Parliament to have a full debate on the United Kingdom Government's proposal for the creation of a new supreme court with a UK-wide jurisdiction. I am sure that the public galleries and the chamber will fill up as the morning progresses and that people will listen with interest. It is important to remember that the new court will take on responsibility for appeals from Scotland on devolution issues and in other civil appeal cases and so is of significance and importance for Scotland, the Scottish people and the Scottish Parliament.

Here in Scotland we take a pride in our unique legal system, which I believe is of central importance in making devolution work and in making this Parliament effective. We all recognise the importance of maintaining the distinctiveness and independence of the Scottish legal system. However, that is not what this debate is about. Scots law is not under attack.

We should see this debate in the context of what the UK Government and the Scottish Executive are doing to modernise our legal system and replace outmoded laws and practices. Let us remember that good progress has already been made here in Scotland as part of that on-going modernising process. We have made progress on the adoption of an open system for the appointment of judges, legislating for freedom of information and reforming land law.

The determination of the UK Government to reform institutions such as the House of Lords is part of that process and we in Scotland should endorse and support that determination.

Order. I am sorry about the howl round the chamber. It is being checked and will be cut as quickly as possible. In the meantime, we have to continue.

Thank you, Presiding Officer.

The Lord Advocate and I have been active in working with Lord Falconer and with judges both here in the Court of Session and in the House of Lords to consider the implications for Scotland. We have also engaged with the Law Society of Scotland and the Faculty of Advocates, and last week the Lord Advocate gave an important speech to the Law Society on the subject. My officials have worked closely with the Department for Constitutional Affairs to ensure that the Scottish perspective is taken into account in developing the proposal.

Yes, this reform package is targeted at old, established institutions and practices, but it is important to remember that the proposals analyse the case for updating them. That has led to radical steps to bring the second chamber of the UK Parliament up to date.

As well as considering whether the House of Lords should operate as a Parliament and as a court, the UK Government is, quite properly, considering arrangements in England for the appointment of Queen's counsel and judges. I am pleased to say that, with our Judicial Appointments Board for Scotland, we are acknowledged to be ahead of the UK Government in our processes for judicial appointments.

Modernisation of the judiciary and public services in the context of the proposed supreme court is intended to put the relationship between Government, the legislature and the judiciary on a modern footing, reflecting public expectations in the 21st century.

The proposals are clear in their intention of reinforcing the independence and transparency of the judicial system. The independence of judges in their decision-making—deciding cases without fear or favour—is central to our democratic society, and the Executive and, I am sure, the Parliament, support that fundamentally.

As the Secretary of State for Constitutional Affairs has said and as the Lord Advocate said in his speech to the Law Society last week, in supporting the creation of the new court, we are not making any criticism of how judges in the House of Lords or elsewhere have carried out their judicial duties.

Separation of the Parliament from the judiciary is a long-established principle, but it is one that is potentially compromised for as long as the House of Lords sits simultaneously as a court and as part of Parliament. That is a matter of principle. That accident of history is no longer acceptable and it would surprise me to hear any MSP today argue that it is.

We support these long-overdue steps towards the modernisation of the institutions of Government. We see clear benefit in the separation of the two roles of the House of Lords. It will increase confidence in the judicial process, make the court system more transparent and avoid the confusion that can arise in knowing what is meant when we hear the term "the House of Lords". It will counter the risk of the public perception of a lack of adequate independence in the House of Lords when it sits as a court.

How do we think that those processes are best brought about? When the First Minister welcomed the proposals last summer he made two important points. First, on the creation of the proposed new court, he emphasised the commitment of the Executive to ensuring the maintenance and enhancement of Scotland's constitutional position and the unique nature of the Scottish justice system. Secondly, he said that the creation of the new UK-wide institution will strengthen the union, with Scotland as a vital and equal partner.

We believe that the creation of a new supreme court with the same jurisdiction as the current House of Lords, and including the Judicial Committee of the Privy Council, is the best and most efficient way forward in delivering the modernisation process.

Will the minister give way?

I would like to move on briefly and then I will take an intervention.

The UK Government's proposals have encouraged debate and discussion on the issue in Scotland, which is good. However, let us also be realistic enough to recognise that this is a coherent package of reform, which is best delivered by the proposed bill, within a timescale that maintains the momentum for reform and with the support of the Executive and the Parliament.

The minister talked about the relationship between the Parliaments and the House of Lords. She and her party support the UK signing up to the proposed European constitution. Will she say what effect articles 6 and 28.3 of the draft European constitution will have on the proposed supreme court? Will the proposed court of justice take precedence over the proposed supreme court?

I will say more about the Scottish constitutional position. I am not surprised that Phil Gallie has raised that point, because we all know that he is absolutely in favour of everything that happens in Europe. I am sure that he will want to develop his points later.

I will move on to other issues; I will pick up the point on the links with the European justice system later. It is right that we have the opportunity to address the constitutional position, but let us remember that the debate is not simply about the Scottish civil court system.

Despite what Scottish National Party members say—or what I expect them to say—I do not believe that there are real concerns that having an appeal in a civil case to the House of Lords is eroding the integrity of the Scottish legal system. It will come as no surprise to the SNP to hear me say that. In the almost 300 years in which that right has existed, we have seen no evidence of the so-called erosion of Scots law because of the existence of a civil right of appeal, nor has there been any outcry demanding action in that respect.

We should recognise that a UK-wide jurisdiction will remain necessary for resolving devolution issues. It cannot be right for a Scottish court alone to determine UK-wide, constitutionally important issues on matters such as the reserved-devolved divide.

There are those who would argue that the right to appeal in civil cases should not extend to taking a case to the House of Lords. Adam Ingram has proposed a bill about the repatriation of civil appeals and it is his right to do so. However, we believe that the current appeal right is important and benefits Scotland and Scots law. There is value in hearing the contributions of judges from other jurisdictions within the UK and I believe that there is value to the English system in hearing the contributions of our judges.

Will the minister give way?

I want to move on at the moment.

We must be open and receptive to ideas and influences from other parts of the UK and—in the modern world—from beyond the UK. Judge David Edwards said:

"In law as in agriculture, if you allow no fresh water into your fields, they will become stagnant and progressively less productive."

At this point I will allow in fresh water—I hope.

I have a simple question. If all that the minister said is true for civil law, why is it not true for criminal law?

I will deal with that point as I go through my speech.

We have to recognise that the appeal right is valuable and important. To remove it would, in our view, restrict the rights of access to justice that are currently available to and enjoyed by the people of Scotland. I recognise the fact that the SNP will not take that view; however, I would like to move on.

We should also remember that, in civil cases, significant areas of the legal systems of Scotland and England are common to both systems. There is merit in ensuring consistency in the decisions of judges when that is the case. For that reason, we do not believe that the case is made for repatriation of such appeals to Scotland.

Concern has been raised about criminal cases, in relation to which fewer significant areas of the legal systems are common. Members will recognise that—I am sure that the SNP will make this point—in Scotland, our system of criminal justice is fundamentally distinct from the English one. Not every part of our legal system is different, of course, but because of the differences I see no reason to change the current arrangements so as to permit an appeal to the new supreme court in criminal cases. That is not what is proposed by the UK Government. As I have said, we believe that the separation of the House of Lords as a legislature from the House of Lords as a court is an important improvement. It is also important that we keep the issue in perspective. In a typical year, the number of cases that go to the House of Lords is in single figures.

I want to answer some of the questions that have been asked about the constitutionality of the proposals. Concerns have been raised by well-respected legal figures and we have considered them extremely carefully. In his speech last week, the Lord Advocate fully addressed those points; he did so in more detail than I have time to do today. Nevertheless, I shall try to cover them briefly. Concerns have been expressed that the proposed bill may be unconstitutional, because of the claim of right or the treaty of union, and that it will be flawed because the court will be funded by the Department for Constitutional Affairs. Concern has also been raised about the appropriate number of Scottish judges.

We have looked closely at all those issues and believe that either the concerns are misplaced or, in some cases, people have not had full regard to the practical arrangements that it is proposed to put in place. We do not believe that the claim of right is an entrenched constitutional document, as some people have suggested. People should look at it closely and see whether all of it is relevant to the 21st century. As the Lord Advocate pointed out last week, the claim of right asserted the protestant ascendancy and outlawed popish books. I question whether that is relevant in a modern, multifaith, tolerant Scotland. The treaty of union is different. It is important to respect the treaty of union fully and ensure that it is not infringed on. A new supreme court, taking cases from all the legal jurisdictions of the UK, is consistent with the treaty of union.

Let me address concerns about funding and the question of the number of judges. The proposal for the creation of a new supreme court for the UK does not impact on the integrity and independence of Scots law and does not make it subservient to the English court system. Like the Appellate Committee of the House of Lords and the Judicial Committee of the Privy Council, the proposed new supreme court will be a UK court and will have separate funding and separate administration from the courts in England and Wales. All judges' salaries ultimately come from general taxation. I do not believe that judicial independence will be compromised by which particular Government department provides judges' funding.

Equally, we do not believe that there have been any constitutional or practical difficulties based on the number of Scottish judges who sit in the House of Lords at present. There has been no significant evidence of damage to Scots law because the existing arrangements do not provide for a majority of Scottish judges in Scottish House of Lords cases. Scotland's share of the number of judges reflects the independence of the Scottish legal system. Could we justify having more than two out of 12 judges when Scots law covers just one in 11 of the population? I am sure that that point will be raised in the debate and that we will have further discussion on it.

There is a misconception as to how Scottish cases can be allocated. We do not believe in artificial quotas of judges or that the allocation of judges to cases should be prejudged. We believe that the court must be flexible in how it goes about its business. The proposals for using additional judges from the Court of Session allow additional Scottish representation on a supreme court bench. If a civil case was before the court on a matter in which Scots law is significantly different from English law, a Scottish majority might be appropriate and could be accommodated. We support such flexibility.

I am sorry, but I am just about out of time.

The issues about numbers of judges must not be a distraction from the benefits of creating a new supreme court. At the highest levels of the court system, we must look forward. We must create a respected bench of judges that is truly representative of this country and responsive to its needs in the 21st century. The House of Lords, as it stands at present, does not deliver that. The procedures for appeals to the House of Lords are antiquated and outmoded. As an institution, the House of Lords runs the risk of becoming discredited unless steps are taken to modernise its structure in a way that is independent of the UK Parliament. In one of Europe's most modern Parliaments, we can and should support that aim. To stand in the way of progress would risk sending a narrow-minded, self-serving message purporting to promote Scotland and Scotland's interests. That would be a mistake.

Will the minister give way?

I am coming to my last sentence.

Instead, we have the opportunity to be open, positive and constructive in the establishment of a modern, forward-looking court. We should back, not block, those reforms.

We will not accept the SNP's amendment. There is much in the Conservative amendment with which we could agree; however, we felt that, because of the way in which it was structured, it took too much out of the motion. Therefore, with regret, we cannot accept it. I urge Parliament to support the motion.

I move,

That the Parliament believes that it is a cardinal feature of a modern democratic state that the judiciary should be separated from the legislature and therefore supports the creation of a new supreme court believing that it will strengthen the independence of the judiciary.

There is sufficient time this morning, and I would encourage dialogue and interventions.

I will be happy to take interventions, Presiding Officer.

The central question that I want to address is this: should there be a continued right of appeal in Scottish civil cases to a court south of the border, or does the current shake-up present us with an opportunity to modernise our system and repatriate Scottish justice? Before we rush to a modern-day judgment about what, if any, jurisdiction a UK supreme court should have in Scottish civil cases, it is instructive, not to mention interesting, to have a look at the history of the House of Lords' Scottish jurisdiction. That history shows that it was neither planned nor ever set in stone.

Does the member agree that that has never stopped it from working extremely well?

I will come on to my objections to the House of Lords' current system, which, in the interests of consensus, are not too far removed from those that have been expressed by the minister. However, first I want to go back in time and look at the earlier days of the House of Lords' Scottish jurisdiction.

Notwithstanding the treaty of union—about which we will, no doubt, hear much this morning—there has been a right of appeal to the House of Lords since the earliest days of the union, when the UK Parliament succeeded to the power of the old Scottish Parliament to hear appeals from the Court of Session and exercised that through the House of Lords. That succession was deeply controversial at the time. One of the earliest Scottish cases to be heard in the House of Lords—the 1711 case of James Greenshields—led to a motion in the legislative House of Lords for the repeal of the Acts of Union. It is an interesting but little-known fact that that motion won the support of the majority of the surviving Scottish politicians who had voted for the union in 1706; however, sadly, their will was thwarted by the English majority—a sad sign of things to come.

It is important to appreciate the fact that the House of Lords' jurisdiction in Scottish cases was not immediately confined to civil matters. In his speech to the Law Society of Scotland last week, the Lord Advocate mentioned the fact that criminal appeals have never gone beyond the High Court of Justiciary. I hesitate to offer the Lord Advocate lessons in legal history—

Oh, go on.

Okay. On that fact, the Lord Advocate is plain wrong. Appeals from the High Court were heard by the House of Lords until it chose to decline jurisdiction in 1876. I am sure that the minister will be aware that it was not until the Criminal Procedure (Scotland) Act 1887 that the position of the High Court of Justiciary as the highest court in Scottish criminal matters was formally enacted. Therefore, the position in respect of Scottish appeals has changed over time and has evolved as Scottish interests have dictated. We should not shy away from making further changes now if they are in the interests of our justice system.

I turn briefly to the treaty of union. Those who question whether the supreme court would fall foul of the treaty are within their right to do so, even if the Lord Advocate questions the soundness of their judgment. However, as I am sure that it is not beyond the wit even of the present Government to design a court that would stay true to the intentions of the treaty, that is not a point on which it is useful or helpful to dwell.

Instead, I want to focus on whether we have an opportunity here and now in Scotland to modernise our system of justice. I return to the issue raised by Annabel Goldie. The UK Government is right to strip the House of Lords of its judicial function. The confusion of legislative and judicial functions in one institution—especially an institution as lacking in democratic legitimacy as the House of Lords—is indefensible. If the best replacement for the House of Lords in England and Wales is thought to be a supreme court, that is all well and good.

Does the member accept that one of the problems with the democratic legitimacy of the House of Lords is that under the reform proposals of the Westminster Government it will have no more democratic legitimacy in the future than it had in the past?

I agree entirely with Alasdair Morgan. In my view, the House of Lords should be abolished lock, stock and barrel, but that is not the subject of today's debate.

It is entirely appropriate for England and Wales to decide that they want a supreme court. For the purposes of the debate, I will make a concession. I even accept that it makes sense for the supreme court to take over the Privy Council's role in determining devolution disputes—at least as an interim measure, until Scotland is independent and that role becomes entirely redundant.

Given her support for Scotland's independence, her determination, in such circumstances, to take Scotland into the European Union and her aim of abandoning the House of Lords, would the member feel comfortable if the appeal court sat within the European Court of Justice?

Later I will make a specific point about the European Union and return to the issue that Phil Gallie has raised. The trend in Europe towards the intended harmonisation of laws is a pertinent issue when we are discussing the proposed supreme court.

I was talking about the supreme court that the UK Government intends to establish. As an interim measure, it would make sense for the role of the Judicial Committee of the Privy Council to be combined with a supreme court. The fundamental point is that we should decide what is best for Scotland when it comes to our domestic law. We should take this opportunity to make any changes that would be for the better.

One of those changes should be to bring to an end the quirk of history—it is nothing more—that has resulted in the different treatment of civil and criminal cases in Scotland. Bizarrely, the UK Government's consultation paper, which was published in the summer of last year, did not consult on that central question—it did not even seek views on that point. It simply tried to justify the status quo and argued that the new supreme court should inherit the right of the House of Lords to hear Scottish civil cases, but that criminal appeals should continue to be disposed of here in Scotland.

The argument for not allowing the supreme court to hear criminal appeals from Scotland is sound, as there are considerable differences between Scottish and English criminal law. I have no difficulty in accepting that as a justification for not altering that part of the status quo. However, the implication that flows from the proposition is that there are no considerable differences between Scottish and English civil law, which is manifestly not the case.

I want briefly to examine the arguments for continuing to send civil appeals south of the border that have been made in the consultation document—such as it was—by the Lord Advocate and by the minister this morning. The first of the arguments was aired in the consultation paper and repeated by the Lord Advocate when he said last week:

"The Scottish legal system benefits from the exposure of our legal practices and principles to friendly but critical examination by members of another legal discipline … As a legal system in a small country on the edge of Europe, we must be conscious of the risk of becoming … inward-looking."

I make the passing observation that if that is true of our civil law, why is it not true of our criminal law?

The point that the Lord Advocate was making is quite worrying. He was saying that without the House of Lords—which hears only about eight Scottish cases a year, on average—Scots law would be insular. With the greatest respect to the Lord Advocate, that is a load of utter rubbish. Scots law is not, never has been and—with or without the House of Lords or its successor—never will be insular. Scottish judges, like judges in every other jurisdiction in the world, draw daily on decisions in other jurisdictions. To suggest that without a civilising influence from south of the border Scots law would be parochial and inward looking is to insult centuries of Scottish legal tradition.

I agree with the Lord Advocate that we should not have a system that makes Scots law insular. Does the member consider that there may be wider benefits in being part of a larger court that includes judges from England, Wales and Northern Ireland?

I concede that in these days of greater European harmonisation and mutual recognition of laws, there are benefits in having a court that includes judges not just from Scotland, England and Northern Ireland, but from every country in the European Union. That court is called the European Court of Justice. If Scotland were independently represented on that court, our interests would be much better protected there. The argument that the Scottish legal system would be insular without the House of Lords or a supreme court does not hold water, as it defies the experience of centuries of a very proud legal tradition. The suggestion is unworthy of the Lord Advocate.

Will the member give way?

Will the member give way?

I must make progress now. I have been very generous in taking interventions.

The second argument that has been made is that the House of Lords ensures consistent UK-wide interpretation of the application of UK statutes and of common-law issues that are substantially the same north and south of the border. That may be so, but the logical inconsistency of the argument is quite breathtaking. We cannot ignore the fact that the High Court of Justiciary frequently decides cases on the basis of UK-wide criminal legislation, without any reference to the House of Lords. To the best of my knowledge, the sky has not yet fallen in on the Scottish criminal justice system. The argument does not bear critical examination.

The third and final argument to which I want to refer is a defensive argument, rather than a positive one. The suggestion is that we have nothing to fear from a supreme court. We have survived 300 years of appeals to the House of Lords and Scots law is still standing. That may be the case partly because so few appeals go there. As I said earlier, on average only eight cases a year are referred to the House of Lords; in only two of those are verdicts overturned. That led Hector MacQueen, the dean of Edinburgh University school of law, to say:

"It is thus far from clear that, were the appeal from the Court of Session to the House of Lords not to survive in a new supreme court, any major injustice would result for the Scottish people."

Who can be sure that in this litigious age, with a new high-profile court, the number of appeals would not rise? Who can be sure that the current convention of the House of Lords that non-Scottish law lords do not deliver opinions on matters of Scottish common law will survive? I am sure that from time to time it causes irritation among Scottish judges that unanimous decisions of the Court of Session can be overturned by two Scottish law lords. Who can be sure that even the convention to which I have referred, which is an important protection for Scottish common law, would survive in the supreme court, or that the ability, cited by the Lord Advocate, of the House of Lords to distinguish between the different legal systems in the UK and adapt accordingly would be transferred to the new court?

That brings me back to the point that Phil Gallie made. The new supreme court will be a creature of the UK Parliament, which raises questions about the independence of the judiciary. It will also operate within an EU that is intent on legal harmonisation. Can we be sure that the supreme court will be able—or even want—to resist the pressure to harmonise English and Scottish law? In reality, Scots law may have a great deal to fear from the supreme court.

If not the supreme court, what should be the final court of civil appeal in Scotland? Should it be the inner house of the Court of Session, a larger bench of judges or, indeed, a separate Scottish supreme court? We would have to find a different name for such a court, because supreme courts already exist in Scotland. I am sure that that matter has not passed the Department for Constitutional Affairs by, although perhaps it has. I confess to being open minded on this issue—I do not have a fixed view on it. However, I believe passionately and fundamentally that it should be a matter for the Scottish Executive to consult on and for this Parliament—not another Parliament—to decide.

The time is right for change. We should grasp the opportunity that is afforded by the shake-up south of the border to end a glaring anomaly in our judicial system and to repatriate Scottish justice.

I move amendment S2M-828.1, to leave out from "believing" to end and insert:

"for England and Wales; considers, however, that its creation affords an opportunity for the modernisation and repatriation of Scotland's justice system, including an end to the historic anomaly that allows civil, but not criminal, cases to be appealed to a UK court and, having established that principle, calls on the Scottish Executive to consult on whether the Inner House of the Court of Session or a higher appellate authority within Scotland should be the final court of appeal in Scottish civil cases."

I, too, am pleased to take part in the debate, and I thank the Executive for ensuring that it is occurring early in the new year. The subject is extremely important. We recognise that any legislative change in respect of a supreme court will be the responsibility of Westminster, but it is vital from the Scottish standpoint that we influence the debate to secure the best outcome for Scots law, Scottish civil litigance, and, in relation to devolution issues, the Scottish people.

At this early stage, I regard myself as departing pretty well totally from Nicola Sturgeon's argument. The nub of the issue is that the SNP is not interested in a UK structure. Nicola Sturgeon said that she would like to get rid of the House of Lords and have what would be—however she might consider it—a completely insular system of law in Scotland.

Will the member take an intervention?

I want to expand my point. I listened with, I think, a great deal of patience to Nicola Sturgeon and I am at an early stage in my argument.

It seems to me important to recognise that it will be difficult to find a sustainable argument that bridges the political differences about what the suitable or sensible adjustments to the existing structures might be. I make that general point from the beginning.

The general proposition in the Executive's motion is that the judiciary should be separated from the legislature. If that means that the judiciary should be free from Government interference or influence—or both—and should feel able to discharge its judicial obligations freely and impartially, there is not a scintilla of difference between my party and the Executive. What I do not know is whether that aspiration will be served by the proposal—in so far as it exists—to create a supreme court. It is just a proposal; there is no draft bill.

I want to consider the process that has brought us to this point. I am not in the habit of conferring credit on the Scottish Executive, but if the Scottish Minister for Justice or the Lord Advocate had contemplated a change to our legal institutions, particularly to structures that have existed for centuries, I think that there would have been what is by now a familiar process. The First Minister would have given a well-trailed speech to a community. That would have been followed by a ministerial odyssey as his colleagues rushed off around Scotland to speak to people. Then we would have had a consultation process. We might even have had a general debate in Parliament on the proposed principles of change. Indeed, one of the justice committees might have been asked to undertake an inquiry. Finally, a bill would have been published. I probably would still have disagreed with the Executive, but at least a debate would have taken place, nobody would have been ignorant of what was proposed and an extensive range of views would have been exchanged before the parliamentary process commenced.

What is proposed in the case that we are considering is one of the most substantial and radical reforms of the constitution and the British legal system for centuries. Has it proceeded on the report of a royal commission? No. Is it in response to an escalating wave of discontent about the current system? Not as far as I am aware. The only specific instances of discontent that we have heard are that Nicola Sturgeon just wants rid of the House of Lords and the minister does not think that the current system is good. Is the proposed change a consequence of joint representations from the law societies of Scotland, England and Wales and their respective judiciaries? I do not believe so.

As we are well aware, the proposals stem from a Cabinet reshuffle at Westminster last summer, which abolished the ministerial office of Lord Chancellor and created a vacuum that necessitated a consultation—of four months, no less—to consider how to replace structures that have been in place for centuries. I do not make my points in a mood of trite humour. It is important to understand the process that has brought us to this stage. Unless we are alert to the process's manifest deficiencies, we are in grave danger of coming to simple and, arguably, erroneous conclusions.

I will consider briefly the current structures. The highest court of appeal for civil cases in Scotland is the Appellate Committee of the House of Lords. There are 12 law lords, of whom two are usually of Scottish origin. The special nature of Scots law and the need to protect that within the UK was enshrined in article 19 of the Act of Union 1707, which specifically excluded the jurisdiction of English courts over Scottish cases. That is not just a tedious historic statistic; it is one of the all-protecting guardians of the stature of Scots law.

On a broader front, as members of the House of Lords, judges, like appointed bishops, are free to take part in debates. Far from regarding that as a deficiency, I think that it is an attribute. It is not a coincidence that many people consider the debates in the House of Lords to be well informed and eloquently argued and that that chamber benefits from the constituents of intellect, wisdom and experience. Under the current proposals, that will virtually be lost. Further, we should not underestimate the significance of judges' being able to express in debate views and opinions for the record. There will be no channel for that to happen under the new proposals.

What I would like is specific evidence of how the current system is failing.

For the clarity of the record, is Annabel Goldie arguing that the confusion of legislative and judicial functions in one institution remains, in this day and age, at all defensible?

That depends on whether we accept that there is confusion. Nicola Sturgeon's argument is that there is. My argument, as I said in my earlier intervention on her, is that whatever the patent inconsistencies of the current system may be, it works. All I am asking for is evidence that the system does not work; I have not had such evidence so far.

Will the member give way?

If Mr Swinney does not mind, I am getting a bit—sorry, I beg his pardon. I mean Mr Swinburne. I am getting just a little tight for time.

I want to know where the instances of the judiciary being influenced by Government or of its impartiality being compromised under the present system are. Indeed, the evidence is to the contrary and is very dramatic and recent—the Hutton inquiry. Did the Prime Minister have difficulty in finding a robust, competent, independent figure to lead that inquiry under the present system? Of course he did not.

I turn now to the proposed change in the appellate function for Scottish cases. Because the proposed new structure would exist predominantly to serve England and Wales, it is vital that its Scottish component should be based on an informed appointments system that is knowledgeable about the Scottish judiciary. The appointment of any Scottish judges or panel members should require, at best, the knowledge of the First Minister. Indeed, there is an argument that the appointments should emanate from the Judicial Appointments Board for Scotland and not from the proposed appointments commission. Surely a mechanism could be found to achieve that, because only in a structure such as that could there be confidence in the ability of the proposed new supreme court to determine Scottish appeals and devolution cases fairly and competently.

I turn now to my amendment. On the effect on Scots law of appeal decisions emanating from any supreme court, it is essential that decisions that are appropriate only to England and Wales are not binding in Scots law—hence the amendment in my name. That simply reaffirms existing practice. We must make it crystal clear that unless specific provision is made, that will not happen. We are talking not just about a proposed neat construction of a supreme court; we are talking about a fairly massive dismantlement of the constitution, with all the precedents, practices and conventions that have attached to it, some of which now have the force of judicial precedent.

I am unable to support the SNP amendment because, frankly, it is irrelevant to the debate. We have a legal system that operates within a UK framework. Some law is appropriate only to Scotland, but UK-wide law covers other issues and it seems—

Will the member take an intervention?

I am sorry, but I am running out of time and, in fairness to the Presiding Officer, I must proceed.

There is an abundance of time this morning.

In that case, with the Presiding Officer's usual compassion and indulgence, I will let Nicola Sturgeon in.

I am a great believer in logical consistency, which I am sure is always evident in my speeches in the chamber. The logical conclusion of Annabel Goldie's position on the UK framework is that we should also allow criminal appeals to go to a supreme court. Is she arguing that that change should be made?

No, I am not, but I am grateful to Nicola Sturgeon for raising a valuable point. I have always felt that there is a genuine distinction between criminal law and civil law in Scotland. Nicola Sturgeon will be aware that the situation that, as I understand it, induced the creation of the criminal appeal court in Scotland was the Oscar Slater case, which demonstrated the deficiencies of the system at that time. However, in Scotland criminal law is significantly founded upon common law, which is completely different from that in England and Wales, and on the principles of Justinian, which are also irrelevant to the legal system of England and Wales. Therefore, I have always been able to make a complete separation between how the two systems in Scotland are treated. The criminal appeal court in Scotland has worked well, and we must recognise that it was introduced—heavens above—getting on for nearly 80 years ago. I see no reason to disturb that court. We must also recognise that civil law in Scotland has developed and evolved in a manner that is to be expected.

To return to my starting point on the SNP's position, we are where we are. We are within a UK framework and there are extensive areas of law that affect the whole UK. Therefore, I think that the SNP proposal is inappropriate and that, if it were adopted, it would result in the Scottish legal system becoming insular, as the Lord Advocate said.

Interestingly—and I would have thought that the Scottish nationalists would applaud this—there have been appeal cases. The appeal of Donoghue v Stevenson in the 1930s, involving the famous snail in the ginger beer bottle in the Paisley café, determined such an important point of law that it was applied not just on a UK basis but worldwide. To me, that is a refreshing illustration of how significant Scots law is. Where an important legal principle is involved, because of what we all acknowledge to be the sound underpinning principles of Scots law, the benefit can be conveyed to a wider audience than just Scotland and the United Kingdom. That application of the best principles of Scots law would not apply under the nationalists' proposal.

In general, I do not consider that the Executive has made the case for change, but if change is to happen, vital safeguards must be incorporated to protect the Scottish interest.

I move amendment S2M-828.2, to leave out from "it is" to end and insert:

"in the event of a United Kingdom Supreme Court being created, the Scottish Executive needs to ensure both that Scottish judges are appointed to sit in all civil appeals from Scotland and that decisions of the Supreme Court in non-Scottish cases are not binding in Scots law except in so far as the law determining such cases is applicable on a United Kingdom basis."

I welcome today's debate, although it is always daunting to follow behind lawyers in taking on such issues. I make that my opening remark on the issue, so that members do not expect a history of the judicial process of the House of Lords from me. Nicola Sturgeon has done us proud on that one so far.

It is right to see the matter—as the Minister for Justice did in her speech—as part of the continuing modernisation of our judiciary and processes. This is not just about what will happen with a supreme court; it involves the Executive's on-going work in the area. The Parliament's two justice committees have also been working on the issue in the past few weeks.

We are talking today about modernising the court system and about the new supreme court. We have had four lady speakers in the debate and we have a perfect gender balance in the chamber this morning, but no one has yet mentioned the fact that the judiciary has a gender imbalance. Would the new, modern court rectify that?

It is unusual for me to find myself in agreement with John Swinburne but, for once, I do. Nicola Sturgeon said that we should seize the opportunity not only to do some of the things that we have been hearing about in connection with setting up the supreme court but to make the supreme court more reflective of all the component parts of the United Kingdom and to improve on the current systems. The supreme court is a good opportunity to increase representation not only of women but of our ethnic minorities.

We support the proposal for the creation of a new court, subject to adequate protections to preserve the independence of Scots law. The new supreme court should not do anything to change the relationship between English and Scots law, as it will replace existing bodies at United Kingdom level, some of which have been in operation for hundreds of years without many problems, as we have heard from other members.

In 2001, the Liberal Democrat manifesto committed our party to transferring judicial functions from the House of Lords to a supreme court. Our party shares the concerns that Annabel Goldie outlined about the manner in which the matter has been handled. The manner in which this was done at Westminster is not the manner in which it would have been done by the Scottish Executive, and that is probably putting it kindly. This is an important issue and an important change to practices that have been in place for hundreds of years. Those practices might well not be right, but we must have a proper, full consultation to find out whether the way forward is what the Government proposes. Some of the issues that the Law Society of Scotland, the Faculty of Advocates, the SNP and other parties have raised are certainly worthy of serious consideration not only by the Scottish Executive but by the Westminster Government.

The time is ripe for a supreme court, as can be seen if we consider the wider spectrum of what is happening and the greater moves towards a federal United Kingdom. If we consider devolution to Parliaments and Assemblies around the kingdom, the introduction of human rights legislation, the reform of the House of Lords itself—it does not go far enough, but it tinkers around the edges if nothing else—and the on-going modernisation of our court system, we see that now is the right time to consider the formation of a supreme court. We agree with much of what the minister has said, with the Executive's views and with the United Kingdom proposals. We feel strongly that there should be no reduction in Scottish influence or input or in the proportionate number of Scottish judges who serve in the supreme court.

We share some of the concerns that are outlined in Annabel Goldie's amendment and I am pleased that the minister has said that it will not be accepted simply on a technicality. We should be vigilant in ensuring that, if the supreme court is considering a peculiarly Scottish case, there is no question of Scottish judges being in the minority. Obviously, they should be in the majority, and we need in-built flexibility in the system to allow temporary judges to come in and take on those responsibilities.

Does Margaret Smith concede that the proposals go nowhere near giving us that option? They simply suggest that the presence of two Scottish law lords might continue.

With respect, that is the point of our holding this type of debate. I detect that there is general concern on all sides of the chamber about some of these points, and it is for the Executive to reflect those concerns in its consultation response and in on-going dialogue with the UK Government. I do not think that anyone in the chamber would think that, if the supreme court was considering a peculiarly Scottish case, anything other than a majority of Scottish judges should be involved. My understanding of the system is that there would be flexibility to allow temporary judges to be brought into the frame to do just that. That is the point that I was making, and I think that it is an important one.

There is a view in Scotland among some members of the judiciary that having two Scottish judges as law lords in the House of Lords already places a burden on the Scottish judiciary that it can ill afford. That would also be a concern in relation to the supreme court. Taking additional judges out of the system to temp in the supreme court would place even more burdens on a Scottish judiciary that even the minister would accept is already seriously overworked.

I am quite well aware of the burdens that there already are on our judges. We have to see the question in the context of how often the situation is likely to arise. There are only eight or 10 cases a year in which we are likely to be faced with anything like that dilemma; it would not be happening every week. However, we must have safeguards in place to ensure that the situation can be dealt with.

Does Margaret Smith agree with the point that we made in our consultation response? We said:

"The Executive believes it essential that, at any one time, the membership of the new Court should comprise not fewer than two people suitably qualified in Scots law and experienced in its administration … This requirement should not exclude the possibility of appointing more than two or of reserves being Scottish, if appropriate."

Does she agree that that goes some way towards addressing the points of concern that she has raised?

Yes. I welcome that clarification and the minister's earlier comments. The situation would arise in a small number of cases, but we need that kind of flexibility. I also concur with the two points made in Annabel Goldie's amendment. We must ensure that Scottish judges are appointed to sit on all civil appeals from Scotland, and that decisions of the supreme court in non-Scottish cases are not binding in Scots law, except in so far as the law determining such cases is applicable on a UK basis. The reason why we are in agreement with the idea that civil cases should be heard on appeal at a UK level in a new supreme court is because a vast range of cases would be heard on the basis of UK legislation. We are talking about cases of commercial law and taxation law. We see that as being perfectly acceptable.

Will the member take an intervention?

No, I would like to make progress.

We are concerned to ensure that there is input in the appointment of the supreme court judges from our own, independent Judicial Appointments Board for Scotland. We think that it is important that the judges are appointed on merit and we think that the system must be open and transparent.

We welcome whole-heartedly the separation of powers between the judiciary and the legislature. In a modern democracy, it is important that no supreme court judge should sit as a member of any Parliament or Assembly in the country. We agree that the supreme court should take over from the Appellate Committee of the House of Lords the role of highest court of appeal. As we have heard, a number of aspects of civil law are covered by UK-wide legislation, so we believe that the proposition is reasonable.

Criminal cases should continue to be dealt with in Scotland by the High Court. That would protect and preserve the law of criminal procedure that is unique to Scotland and would keep the interpretation of Scots criminal law in Scotland. I agree with the points that Annabel Goldie made on that subject in response to Nicola Sturgeon.

Will the member give way?

I think that the member can allow a final intervention.

Does Margaret Smith consider that any problems are caused for Scottish law because we do not have a UK ultimate court of appeal to ensure consistent interpretation of legislation, for example the Misuse of Drugs Act 1971?

To be honest, I am probably not qualified to talk about that on the hoof. I do not think that there will be a problem of consistency and that has not been the case historically. The proposal is a more modern response that contains an in-built propensity towards a certain amount of consistency. I note that the Lord Advocate has said that there may be an argument for having a greater number of judges to allow levels of consistency to improve further. I note that, in the Liberal Democrat party policy on the issue, we say that we are concerned about the whole question of precedent. We do not have the ability to change precedent at the moment, but we think that the issue should be considered and that we should consider increasing the number of judges to develop precedent in the new supreme court. There are ways in which we could tackle consistency.

Surprisingly, like the SNP, we agree that devolution issues, which are currently determined by the Judicial Committee of the Privy Council, should be dealt with by the new supreme court. In a devolved United Kingdom, that would seem to be a pragmatic, workable, federal solution.

Of course, the SNP does not agree with the proposal for a supreme court. Underlying that is the fact that the SNP does not agree with the United Kingdom. The SNP wants to deny the links between Scotland and England and to deny the links between Scots and English law. In fact, the SNP not only wants to destroy the United Kingdom, but proposes that we should act as if the union has already been destroyed and does not exist. The United Kingdom does exist, and the proposals represent an attempt to develop a judicial framework that acknowledges its diversity. In many cases, common UK statute applies; in others, particularly in criminal law, there are crucial differences.

I have raised the Liberal Democrats' concerns. My final point is that we would like to see the supreme court sited in Scotland, specifically in Edinburgh—that might make up for some of the jobs that keep being taken away from us. We agree with the minister that Scots law is not under attack from the proposal. We think that there would be no better way to show that than in bricks and mortar, by siting the supreme court here in Edinburgh.

We move to the open debate. As there is quite a lot of flexibility, I can compensate members fully for interventions. However, members will understand that I might need to tighten things up a bit later on, depending on how things go.

I think that DCAf—the Department for Constitutional Affairs—is the most interesting acronym that I have heard for a while. For ages, every time I heard lawyers talk about it, I wondered what they were talking about. It meant something else to me.

We have been asked to consider constitutional reform and a supreme court for the United Kingdom. I agree, probably with all members who have spoken, that the debate is crucial. We need to ensure that the Scottish Parliament shapes the future of the new set-up for the United Kingdom.

The current arrangements in Scotland work well. However, we live in times of great constitutional change. The decision to reform the House of Lords and to separate the functions of the Appellate Committee means that we are being asked to consider a new constitutional arrangement.

In general, the thinking on the subject is to be welcomed. We should not miss an opportunity to modernise our system where that is appropriate. Equally, we should not miss the opportunity to protect the traditions, treaties and other aspects of the system that people would expect us to protect and that we think are important to our law. Our present system ensures that there is a distinctly Scottish dimension to our law, whether civil or criminal. The House of Lords may be the court of last instance for Scottish civil cases, but it is not English law but Scots law that is applied.

Annabel Goldie referred to the famous case of Donoghue v Stevenson, which is a Scottish case that is applied more generally in the UK. There are many such instances of Scots law having been adopted and, indeed, favoured. There is the case of Black v Carmichael, which members may know as the famous wheel-clamping case. We were much more imaginative in Scotland and found a way to outlaw the practice of wheel clamping, whereas that was not possible in England. Much can be learned from Scots law.

All of us are surprised by the number of devolved issues that we have found going to the Privy Council. When the arrangements were set up under the Scotland Act 1998, I am not sure whether we thought that quite so many lawyers would attempt to mount challenges to criminal cases on the basis of human rights. Perhaps we should have realised that in advance. However, good decisions have come out of that practice, too.

We have differences in Scotland. For instance, we have the right to seek leave to appeal to the House of Lords. That is an individual right and it is not afforded outwith Scotland. I hope that there is agreement that we should retain that particular aspect of our arrangements.

The Scottish Parliament's objective should be to ensure that there is no detriment to our present system. I believe what Scottish ministers said this morning and that they will ensure that. I believe that they will resist any aspect of the system that dilutes the application of Scots law. I trust Scottish ministers to make that clear in the debate with the Department for Constitutional Affairs.

I do not like the title "supreme court", although I cannot think of a better one. I am also not comfortable with the notion of

"a single apex to the UK's judicial system",

which is the phrase that is used in the consultation document. We must refine the language and the proposal, which is what the debate is all about.

Nevertheless, the document is quite sensitively written. With reference to the proposals for the Privy Council, it uses language such as,

"On balance, the Government believes that it would be right to transfer the jurisdiction … to the new Supreme Court",

which leaves the door open for us to consider whether we think that that is the wrong decision. I welcome that sensitivity.

I am pleased with what I heard the minister say about the appointment of judges. It is right that we should have a flexible system. We also need assurances that we will have enough flexibility to ensure that, where decisions are distinctly Scottish, the right people make them. I am pleased to have received those assurances.

I am clear that the decisions of the supreme court should not be binding on Scottish cases in so far as English law is not binding at present. I think that that is agreed, but I would like to ensure that I am right on that point.

Nicola Surgeon mentioned civil cases going not to the supreme court but to the Court of Session. I believe that most ordinary Scots would not want to see any change made to the present arrangements. At the moment, people have the right to go to the House of Lords and it would be difficult to take that right away from them.

It would be a good proposition if the supreme court—if that is what it is to be called—sat around the country. That would mean that it would sit in Scotland on occasion. I do not think that that is the most important aspect of the proposal—the most important aspect is to get the system right—but it would be a good gesture if the court were to do that. I believe that concessions have been made and that it might be able to sit in Edinburgh or Glasgow. Indeed, Karen Whitefield might argue that it should sit in Airdrie or Shotts, which would be fair enough.

Certain benefits would derive from a larger court. We are talking about eminent judges from England, Wales and Northern Ireland who have a lot to offer. Notwithstanding what I said earlier about the need to protect our own law, we should listen to what they have to say.

We should not miss any opportunity for Scots law to influence the body of law in the UK. I hope that that is widely accepted. We must ensure that, where we think that we do things better, we have the right to influence the law. That is true not just of our influence over other law in the UK; we should take that approach in the European Union. Of course, the real supreme court is the European Court of Justice, because it is supreme in all matters. Whether we like it or not, decisions made there must be applied in the whole of the UK. We should be more proactive and less defensive when we do things better here than they do in other countries in Europe.

I finish on the appointment of judges. John Swinburne made the point—with which Margaret Smith agreed, and with which we all agree—that we have made great progress in Scotland on the appointment of judges, for which we have a new panel that has been operating for 18 months or so. We have to allow that to bed down before we assess its impact. The Parliament will want to assess the extent to which the gender balance is changing, the extent to which people from different backgrounds are becoming judges and the extent to which racial minorities are being represented in the judiciary. We have got the mechanism right for that to happen. We as politicians must keep an eye on the situation to ensure that those things happen.

I welcome the debate.

I, too, will deal with the jurisdiction of the proposed supreme court in civil cases. I accept that some mechanism is necessary to deal with devolution issues. As Nicola Sturgeon said, we have got our own medium-term solution to that problem.

Medium term?

Yes, it is the next election.

The minister said that we have our own unique legal system, but one of the unique features of that system is not one of which we should be proud—how many other countries give the final court of appeal to another jurisdiction? Why do we do that?

Long before I ever came into politics, I was interested in history. I was always puzzled by the seeming anomaly that the treaty of union, which allegedly preserved the Scottish legal system, simultaneously granted civil appeals to the House of Lords, which was and remains an overwhelmingly English institution. I was somewhat puzzled, therefore, that the Lord Advocate—who managed to be the subject of a very flattering article in The Herald today, entitled "Lawman with mission to modernise"; I am unsure whether all members have had the chance to read it—should wish to preserve an anomaly that resulted from the political machinations of more than three centuries ago.

It has been alleged that the Act of Union 1707 has something to do with our being in the current situation, but the act did not give the right of appeal to the House of Lords; it is silent on that. A D Gibb, in his work "Law from Over the Border" said:

"It is a historical mystery as yet unsolved what the Commissioners for negotiating the Union really intended to do about the right of appeal."

Some people say that the union commissioners wanted civil appeals to go south of the border, but just left it out of the treaty for their own reasons.

I will go back to a case before the one to which Nicola Sturgeon referred. The first appellant who tried to lodge such an appeal was the Earl of Roseberie in his case versus Sir John Inglis, about which it is said:

"It appears … when the appeal was presented the officers of the House of Lords did not know what to do with it. The officers of the Court of Session, for their part, were unwilling to give the appellant copies and extracts for use in the House of Lords".

Clearly, it was not seen as an inevitable consequence of the treaty of union at that stage that such appeals should go south of the border.

The second reason that is quoted for the current situation, to which the minister referred, is the claim of right put forward by the convention, when James VII had left the country and was replaced by William II, to use his proper Scottish title. That was nothing to do with appeals. It was part of the power struggle between the Court Party and the rest of the convention, and the unwillingness to be subject to a Court of Session that was packed with the King's appointees.

I argue that neither of those reasons has any relevance or validity in today's Scotland.

I accept that there could be confusion, or worse, when the legislative and judicial functions are combined in one body, as they are at the moment in the House of Lords, even though we know that the House of Lords for all appeals purposes is totally separate from the legislative House of Lords. With due deference to my colleagues, I say that that problem is more theoretical than real; it hardly justifies the emphasis that the minister placed on it in her speech. I suspect that the minister is using that argument because there are not many other convincing arguments for the proposed change.

The Executive presented the proposal as part of its modernising agenda, but it is entirely separate from that agenda and stands or falls on its own merits. I have a suspicion—on this I agree with Annabel Goldie—that the proposal stems more from Labour's botched attempt to reform the House of Lords than it does from anything else.

Members can read "Constitutional reform: a Supreme Court for the United Kingdom" and see some of the hugely compelling reasons why we have to change. For example:

"the Law Lords' administration works in cramped conditions: one Law Lord does not even have a room. The position in the Palace cannot be improved without asking other peers to give up their desks."

Our hearts bleed for those people down there. Clearly, we have to change the constitution, instead of just getting a couple of extra desks into the Palace of Westminster. What absolute nonsense. I do not see that the accommodation problems in the Palace of Westminster justify a situation that, according to the Faculty of Advocates, would threaten to undermine the independence of Scots law.

Reference has been made to the number of Scots judges, and it is clear that the current situation is not satisfactory. According to "The Legal System of Scotland":

"Scots-trained judges have rarely constituted a majority of those sitting in a particular case. In fact, there are still Scottish appeals where only one, or sometimes no, Scots-trained judge is sitting."

The proposal will not improve that situation very much, because although there may well be two Scots law lords on the panel, that will not guarantee the presence of that number on any particular case, which is the important point.

I will not mention criminal appeals, because that matter has been well dealt with, but the proponents of the measure have not made the case why there should be a difference between criminal appeals and civil cases. By supinely accepting the product of a flawed reform of the House of Lords, we are missing an opportunity to investigate the process of appeal in Scots civil cases, and to examine whether that final tier of appeal is necessary.

It has been argued that wanting to retain appeals in Scotland is somehow insular. The Executive makes that argument every time that it wants to transfer out of Scotland responsibility for decisions that it should be making. By the same logic, anything that we do in this Parliament is insular. If we took the Executive's argument to its logical conclusion, we would do away with this Parliament altogether. I suspect that that is one of the reasons why the Conservatives use that argument so often.

This has been an excellent debate, with a lot of good speeches. If I may, I instance Pauline McNeill's speech in particular.

I apologise to the chamber, as I will have to leave shortly after my speech to speak at a conference. I am sorry about that, because I would have liked to hear what happens afterwards.

I hold a curious affection for the current appeal arrangements: the Lord Chancellor, who is not just part of the judiciary, but is part of the legislature and the executive all at the same time; the Judicial Committee of the Privy Council; the rather curious—not modern, but traditional—arrangement for the Appellate Committee of the House of Lords; and orders and decorations of the once-great British empire all round. The system is entirely anachronistic, entirely odd and, as Annabel Goldie rightly said, it worked rather well, but it is entirely unsuitable for a modern liberal state and it is right that it should be modernised and sorted out.

Of course, the Prime Minister made a total and utter hash of it, as indeed he has done with the whole issue of House of Lords reform. To abolish the lord chancellorship as a by-blow of a ministerial reshuffle, especially after spending all that money on the wallpaper, was senseless. The Prime Minister did not consult the judges, the lawyers, the Scottish Executive or anyone else about it. The only redeeming feature is the fact that, not for the first time, he took over a long-standing Liberal Democrat theme by proposing the creation of a United Kingdom supreme court. The central policy is, of course, right.

My colleague Alan Beith, the chair of the Select Committee on the Lord Chancellor's Department, said:

"These are fundamental and potentially valuable reforms but they seem to have been worked out on the back of an envelope".

With a Scottish Parliament, devolved Assemblies for Wales, Northern Ireland and London and moves towards English regional devolution, we are well down the road to establishing a federal or quasi-federal system. Such a system is used by most normal democratic countries—to coin a phrase—in Europe, the Commonwealth and throughout the world. Indeed, it was the arrangement that the Scottish commissioners who negotiated the union would have preferred back in 1706-07.

I know that federalism is Liberal Democrat policy, as Margaret Smith indicated. Is the member not over-egging the custard in saying that we are moving towards a federal system at the moment? It is clear that we are not.

It is clear that we are moving towards a federal system much faster than we are moving towards independence. That is the central point.

There is no sign that the Government has thought through what a UK federal union would require, or the further fruition of its devolution policy.

Does the member accept that a supreme court is usually introduced when there is a written constitution, which we do not have?

I accept that that is the case, but we have considerable sections of a written constitution. Much play has been made of the treaty of union; there is also the European convention on human rights and the Scotland Act 1998 and associated documents. We must go further, but we are well on the way towards having a written constitution; the Liberal Democrats support that.

The institutions for a federal union—and even for the sort of lop-sided federalism that we are moving towards—would include a UK supreme court, which would consider civil appeals and devolution and ECHR issues. It might be appropriate for the court, in its consideration of devolution issues, to have powers to challenge Westminster legislation—a suggestion that I think Gordon Jackson has made.

In my view, the Lord Advocate was right to give a robust response to the Faculty of Advocates and others who suggested that the proposal was contrary to the treaty of union. It is clear that the proposal is no more contrary to the treaty of union than is the civil jurisdiction of the House of Lords.

It is instructive to read out article 19 of the Act of Union, which Annabel Goldie mentioned. It says that

"no Causes in Scotland be cognoscible by the Courts of Chancery, Queens-Bench, Common-Pleas, or any other Court in Westminster-hall".

I will explain in passing that the House of Lords did not sit in Westminster hall—that was why, historically, it was able to take jurisdiction for civil appeals. The article goes on to say that

"the said Courts, or any other of the like nature after the Union"—

which I would interpret as meaning English domestic courts—

"shall have no power to Cognosce, Review or Alter the Acts or Sentences of the Judicatures within Scotland, or stop the Execution of the same".

It is certainly a little odd that a 300-year-old act, which was passed when we did not have democratic institutions in the modern form or anything like the present structure of government, should be the touchstone for deciding such matters, but the excerpt emphasises the independence of the Scottish system, to which I, as a Scottish lawyer, am highly committed. That is an important point.

A suitable way of demonstrating the complete independence of the UK supreme court and of establishing a visible symbol of a balanced partnership between England, Scotland and the other nations and regions of the UK would be to locate the court in Edinburgh. I made that suggestion to the Lord Chancellor a while ago. Scots law is well placed to be at the centre of the UK legal system, because of its historic connections with England and the continent. Edinburgh could provide a fitting home—possibly in the old Royal High School building—and support services for the supreme court. That would send a clear message that the court respected the different legal traditions within the UK.

I am conscious that the Scottish National Party does not go along with that proposition. Although it would bring an important institution to Scotland, it does not fit in with the nationalists' long-term objective of independence. That raises the question why they have bothered to take part in the debate in the first place.

I will finish on a few more technical matters, on which I agree with the Faculty of Advocates. The court should not be run by the Department for Constitutional Affairs, which runs the English court system, but should have a separate court organisation that is funded by Westminster and is answerable to the court itself. Regardless of its permanent location, the court should go on circuit. It should also have at least three full-time judges with expertise in Scots law; a normal panel would have five judges. The Executive response on that aspect is a little weak. I support the Law Society of Scotland's argument for a pan-UK independent judicial appointments arrangement.

I agree with the motion; the creation of a UK supreme court should enhance the independence of the judiciary. However, that independence was arrived at not by dint of a theoretical separation of powers, but by dint of practical and hard-won liberties that were established after the revolution of 1688. The Westminster Parliament must get its proposal right. We in this Parliament have a considerable interest in the matter and we must examine the legislation closely and ensure that our requirements are satisfied. Any other outcome would be a constitutional disaster to succeed the dog's breakfast with which the Government began the changes. I support the motion.

Given the fact that so many lawyers have spoken, as a non-lawyer I approach the debate with a degree of trepidation.

The Lord Advocate said, in his lecture to the Law Society of Scotland conference on 21 January, that the current proposals on and around the creation of a new supreme court presented us with

"the opportunity to rationalise the present Byzantine and archaic procedures which take devolution issues to the Judicial Committee of the Privy Council and other appeals to the House of Lords."

To someone with no legal training, such as me, that is as fine an example of litotes as I have heard for some considerable time.

To my untutored eye, some aspects of the debate are fiercely esoteric and best left to the initiated. I intend to do my best to focus on the central democratic impetus that is driving the proposed reform—the need to ensure, in a modern democracy, that the separation of the judiciary from the legislature and executive is clear and unambiguous.

Before I turn to the central focus of the proposal, I will say a word about the manner in which the Westminster Government announced its intention to consult on the establishment of a new supreme court for the UK in June last year. Commentators and members such as Annabel Goldie, Alasdair Morgan and Margaret Smith referred to that announcement as the messy outcome of a botched Cabinet reshuffle. It would be fair to say that the handling of the matter could have been better—that is another example of litotes. However, that should not blind us to the essentially positive nature at the core of the proposed reform.

As members will know, the Government's proposals involve reshaping the highest level of the judicial system and removing the jurisdiction of the Appellate Committee of the House of Lords, the functions of which will be placed in the hands of the new supreme court, which will be separate from Parliament. At present, the functions of the highest courts are divided between the Appellate Committee of the House of Lords and the Judicial Committee of the Privy Council. I believe that such a situation raises concerns about the transparency and independence of the judicial system. It is vital that systems are put in place that will lessen the possibility of judges' decisions being perceived to spring from any political motivation.

In my opinion, the Executive has been absolutely correct to stress, in its response to the consultation, a welcome for a supreme court that would assume the functions of the Appellate Committee of the House of Lords and take on the decision-making role in relation to the powers of the devolved administrations. I share—and I believe that we should all share—the concern about the current anomalous situation in which the House of Lords can sit as a court within a legislative body and, when it does so, be headed by the Lord Chancellor, who is a member of the Government. That situation is deeply unsatisfactory.

The Executive is right to emphasise the importance of the principle of the separation of powers within a developed democracy. I share the view that there is

"widespread acceptance of the desirability of separating powers between the three pillars of the state: the judiciary, the executive and the legislature".

I believe that the establishment of a supreme court would make that separation self-evident and that such a body would better fit the constitutional context of the 21st century.

A UK-wide supreme court would be particularly helpful in cases in which breaches of the ECHR, whether under the Human Rights Act 1998 or by operation of section 57(2) of the Scotland Act 1998, are involved. Consideration of such matters by the same court would aid consistency of approach and eliminate the risk of conflicting judgments on issues of constitutional importance.

My support for the creation of a supreme court rests, to a large extent, on the need for a modernised, clearly defined separation of powers. The actions of those who administer justice on behalf of society must not only be beyond reproach, but be seen to be beyond reproach. I acknowledge freely that there are sincerely held concerns about, for example, the proposed appointments process, the proposed number of Scottish judges on appeals, which has been mentioned, and the possibility of Scots law being submerged. However, on balance, I believe that the Lord Advocate was right when he concluded his recent lecture by saying:

"In a modern democratic society the highest court should be clearly separated from the legislature. I also welcome the opportunity which the new proposal gives us in Scotland to modernise the arrangements for Scottish appeals so that we can have a single source of authority at the highest level. I have no fears that Scots law will be submerged in that process. On the contrary, I look forward to the new arrangements enabling Scots law to continue to make its distinctive contribution to the common law systems of the world and to the civil law systems of the European community."

I commend the Lord Advocate's words on that occasion and the Executive's motion.

I mention my interest as a non-practising Queen's counsel. I am glad to have the opportunity to say a few words this morning, because I contributed on 25 June when we debated the subject of modernising justice in general.

As Bill Butler noted, there was considerable controversy at the time of the UK Cabinet reshuffle, because it appeared that there had been virtually no consultation of legitimate Scottish interests and that the reshuffle had important implications for Scotland. Indeed, it was noticed only half way through that controversial reshuffle that the Lord Chancellor's office could not be abolished without legislation. To try to deal with such important subjects in a reshuffle was opportunism, and I gently remind the Prime Minister of his own words that opportunism is not leadership. I am glad that, since then, the Lord Advocate has become involved and has made it clear where he believes Scottish interests lie.

During the debate in June, I requested that judges from Scotland who are highly qualified in Scots law and well experienced in the Scottish legal system's rules of evidence and procedure be appointed to the supreme court. To be frank, if cases with a Scottish input were under consideration, they could not be dealt with effectively if no one who was fully qualified in Scottish law was present. Also, the appointment of judges from Scotland to a supreme court must be done through a system that is clearly distinct from the appointments commissions in the jurisdictions of England, Wales and Northern Ireland.

I ask for reassurances from the Solicitor General on a number of points. First, I ask for reassurance that the appointing commission for the supreme court will be independent and that it will contain representation from a person or persons who are highly qualified in Scots law. It follows that a sufficiency of Scottish law lords should be appointed to ensure that somebody with the utmost expertise in Scots law is readily available to make any contribution that is necessary. At present, there are two such law lords, Lord Hope and Lord Rodger, each of whom has been Lord President of the Court of Session.

The Law Society of Scotland suggests that the supreme court should have at least three full-time members from Scotland and that the number of judges should be increased to 15, along with an additional panel. I ask the law officers and the First Minister to consider sympathetically all such representations on the system for appointments. In particular, the Law Society recommends that the selection of members of the new court should be set out in a statutory code of practice that is subject to parliamentary approval.

Secondly, I mention the roles of the Prime Minister and the First Minister. I note that there is a proposal that they should be consulted on appointments and I contend that all such appointments should be made solely on merit, should not be political appointments, should not be subject to politicisation and should not be solely the result of prime ministerial patronage. I also suggest that there should not be a quota system and I submit that the Scottish interest can be protected only by the involvement of the Judicial Appointments Board for Scotland and the First Minister's knowledge.

My third point relates to the Act of Union 1707. The Law Society of Scotland has asked that special care be taken to comply with article 19 of the treaty of union and to protect the judicial and administrative independence of the Scottish judicial system. That issue needs to be kept in mind and to be considered properly, because the act should not be amended accidentally or by default and the matter should be handled professionally and deliberately.

I ask for confirmation that sufficient resources will be made available to the supreme court in respect of the new building, its accessibility, its library, computers and judicial offices, as well as its having sufficient properly trained staff. The Faculty of Advocates has suggested that there should be established a distinct supreme court service that would be funded by block grant from Parliament and subject to the ultimate control of the court. The faculty believes that that would guarantee the court's actual and apparent independence.

I hope that the Solicitor General for Scotland will be able to say where it is proposed that the new supreme court will be located and when it is anticipated that it will start its operations in earnest.

The Lord Advocate, in a recent speech, gave a reassurance:

"I have no fears that Scots law will be submerged in that process. On the contrary, I look forward to the new arrangements enabling Scots law to continue to make its distinctive contribution to the common law systems of the world and to the civil law systems of the European community."

I wish the Lord Advocate and the Solicitor General for Scotland well in their task of ensuring that that will happen.

Like other members, I welcome the opportunity to take part in the debate. The creation of a supreme court represents a small part of Labour's continuing modernising agenda; Labour is not only modernising the House of Lords as a legislative body, but transforming its judicial function. Along with many others, I am clear that there is a need for the proposal. The time has come for a more obvious separation between those who create legislation and those who administer justice on our behalf, and the creation of a supreme court that is separate from the House of Lords will send a clear signal to the public that our courts are entirely separate from our Government. That is fundamentally a more important point than could be addressed by putting a few additional desks into the House of Lords.

Much has been said about the value of the Scottish legal system. It is right that we should be proud of that system and protect its integrity, but it is also right that we should regard the system as open to change and development. I do not accept that the proposed supreme court represents a threat to our legal system. In fact, I believe quite the opposite: the proposed supreme court, which will reflect the central features of the Appellate Committee of the House of Lords in terms of jurisdiction in civil cases, can and will strengthen Scottish, English and UK civil law.

As the Lord Advocate pointed out in his recent speech to the Law Society, which has been much quoted this morning, the current system allows English and Scots law to benefit from the experience of judges in both countries. He said:

"The Scottish legal system benefits from the exposure of our legal practices and principles to friendly but critical examination by members of another legal discipline".

The same could be said to be true for England and Wales.

I believe firmly that, for the many occasions when civil law in Scotland, England and Wales is similar, there would be a direct benefit from a system that allowed a common ruling to be made. As I understand it, where there is a clear difference between the legal systems, the supreme court will be able to take that into account when reaching its decisions.

There are those who take great delight in turning this matter into a constitutional argument for separation from the rest of the United Kingdom. As ever, those people are more concerned with isolating Scotland than they are with improving public services. They are more concerned with scoring political points than they are with improving our justice system. At a time when the world is becoming ever-more interconnected, those people advocate the destruction of our strong links with our nearest neighbours. We on the Labour benches know that that is not the way forward for a modern and dynamic Scotland. I agree with the minister that the creation of the new UK supreme court will strengthen the union. Unlike members on other benches, I think that that is a good thing.

There is a need to discuss the number and national composition of the judges who are appointed to the supreme court. Members have highlighted those issues today. I do not see the necessity of having a majority of Scottish judges in all Scottish cases, especially if the results of the case could apply throughout the United Kingdom. In some cases, a Scottish majority could prove detrimental to advocating the extension of a ruling across the United Kingdom. I welcome the proposals for flexibility in the composition of the court when it is dealing with cases in which Scots law is significantly different from that of the rest of the UK. I seek assurances that that flexibility will indeed be central to the proposals. I welcome the Lord Advocate's remarks on the appointment of judges to the supreme court. I agree with him that the First Minister should be consulted by the Prime Minister before recommendations are made to the Queen.

The Parliament has considered, and will continue to consider, important measures that are designed to create a judicial system fit for the 21st century. Efforts to improve the Procurator Fiscal Service, to provide enhanced rights for victims and witnesses and to establish a judicial appointments board are all part of that process. The creation of a more transparent and more independent supreme court is to be welcomed in that context. I hope that members will be able to set aside constitutional wrangles on this occasion and recognise that the proposals represent a positive step forward for Scotland and the United Kingdom as a whole. I am happy to support the Executive motion and encourage others to do so.

I would agree with the minister on one thing. The House of Lords is an anachronism and it should not have a role in the governance of a modern Scotland. What is more, the House of Lords has proved to be fallible in the few decisions that it has had to make on Scots law, most notably in the recent case of Sharp v Thomson, in which English law concepts were applied to overturn the decision of a Scottish court, creating so much consternation in legal circles that the Scottish Law Commission has recommended that the decision be overturned by statute. If Annabel Goldie were here, I would suggest to her that the ginger beer has gone very flat indeed. I would also suggest that, apart from by those Scots lawyers who enjoy their days out at Westminster, appeals to the House of Lords will not be missed.

Last week, I, too, attended the Lord Advocate's lecture in the Signet library. I found his defence of the Government's proposals for a UK supreme court to be unconvincing and his attack on proposals to repatriate the right of appeal in civil cases from the House of Lords to the inner house of the Court of Session to be patronising. Nicola Sturgeon has already quoted from the Lord Advocate's contribution to the Scottish cringe, but I think that it is worth repeating. The Lord Advocate said:

"As a legal system in a small country on the edge of Europe, we must be conscious of the risk of becoming self-centred and inward-looking."

I seem to recall those same sentiments being expressed many times by those who battled hard over the years to prevent the re-establishment of the Scottish Parliament.

The Lord Advocate also claimed:

"the presence of Scottish judges in the supreme court, whether it is the current House of Lords or the proposed new institution, opens a two-way window for us into the worldwide family of common law systems."

Excuse me—I am not a lawyer—but has not the Scottish legal tradition, unlike its English counterpart, been part of the European main stream from time immemorial? Surely, given our membership of the European Union, all the various European legal institutions are much more relevant as vehicles for our interaction with the wider world. Disparaging attitudes to Scotland and its institutions seem to be entrenched in UK Government circles. Why does the consultation paper on the proposals for the supreme court make no mention of the legislative competence of the Scottish Parliament in devolved judicial matters? The paper makes it clear that the powers of the Appellate Committee of the House of Lords will transfer to the supreme court, but that proposal is apparently not for debate and is not subject to consultation.

Given that arrogant disregard for the Scottish experience, it is little wonder that senior figures in the Scottish legal establishment have been sounding the alarm bells. Lord Hope of Craighead summed up the situation accurately. He said:

"There are two quite distinct things at stake. The first is the integrity of the Scottish legal system, which was protected by the Act of Union and has always been respected up until now … The second is the devolution system".

The question is what the Parliament will do to counter those threats. To my mind, we should first oppose the whole kit and caboodle of what is being proposed. Taking the judiciary out of the legislature and placing it under the control of an arm of the Executive in the form of the Department for Constitutional Affairs is no constitutional advance. Secondly, and perhaps more pertinently, given that this is a devolved question, we should abolish the practice of sending appeals to the House of Lords and repatriate them, as the SNP amendment suggests. I serve notice to the Scottish Executive today that, if it refuses to take on board our amendment, I intend to introduce a member's bill for that purpose. The proposal is already lodged.

Like other members, I hesitate, as a lay person, to contribute to the debate. I am conscious that many members have direct experience of the Scots legal system. Nevertheless, I will comment on a number of the basic, underlying principles behind the proposal for a supreme court, although I run the risk of intruding on what has at times seemed like a private argument among lawyers.

The minister spoke about modernising our constitution, about the need to have a judiciary that is clearly independent of the state and about the need for transparency. I have no difficulty with any of those principles and I have no problem with the principles underpinning the creation of the supreme court. I recognise that, in a modern, progressive society, we need to have confidence in our judiciary and we need to ensure that it is independent of the Government. I therefore accept that the overlap between the legislature and the judiciary that exists in the Appellate Committee of the House of Lords is no longer appropriate.

I acknowledge that, as Nicola Sturgeon said, the proposals present an opportunity to consider what arrangements are best suited to our needs. That does not mean that I agree with repatriating all civil cases to Scotland, because I am mindful that the right of appeal in civil cases to the House of Lords has served us well in the past 300 years. Nevertheless, we need to reflect on the advantages and disadvantages of various approaches and this debate is particularly helpful in giving us an opportunity to do so.

Jackie Baillie is coming from a user or constituent angle with respect to civil law, rather than from a legal angle. In the parts of today's debate that I have been present for, I have not heard any reference to the difficulties that individuals face in getting access to civil law. Does Jackie Baillie have any thoughts on that?

I thank Phil Gallie for that intervention. I could probably fill several minutes with reflections on that matter.

There is time for that.

I am not going to be tempted, Presiding Officer, but thank you for the offer. As I am not a user of the House of Lords and am not likely to be a user of the proposed supreme court, there are others who could better reflect on the opening up of our justice system to ensure better access. However, I am sure that, if Phil Gallie considers what the Labour-led Executive has done to modernise the legal system and to make it more accessible to the people whom it should be serving, he will agree that it has done a tremendously good job.

Do not go too far.

Phil Gallie is always welcome to stand up and agree with me.

It is important to debate the issues that Phil Gallie has raised, but I want to focus on the numbers in the court. Annabel Goldie helpfully outlined the current arrangements. There are 12 law lords, who generally sit in panels of five to hear cases, and there is the Appellate Committee, which operates a constitutional convention that ensures that at least two members of the committee are Scottish judges. I note that the Executive is comfortable for that arrangement to continue. In its response, the Executive said:

"it is essential that, at any one time, the membership of the new Court should comprise not fewer than two people suitably qualified in Scots law and experienced in its administration."

I ask the Executive whether it is proposed that we are simply to rely on that historical convention or whether it is intended to express that arrangement in statute.

On that point, I point out that, at the end of the part of the response that Jackie Baillie refers to, we said:

"There should be adequate safeguards based in statute".

That confirms the Executive's position and will help to ensure that there will be at least two suitably qualified people in the new court.

The overall number of judges is less important than the balance that is needed when individual cases under Scots law are dealt with. The flexibility of being able to add additional members is helpful and means that whether there are three, four, five or however many Scottish law lords as permanent members of the court becomes less of an issue. My concern is not dissimilar to Margaret Smith's, however. There is much to be said for the principle of ensuring that, when individual cases under Scots law are before the court, a majority of judges who are sitting on the panel should be Scottish law lords.

I acknowledge the points made by the minister and Nicola Sturgeon about the practicality of such an arrangement and the additional burden that that might place on judges. However, I feel that, given the limited number of cases—I believe that eight was the figure cited—and the ability to use additional members, the burden should not be unduly onerous, particularly in the context of five-member panels in which the majority would be three.

I am persuaded by the comments of Pauline McNeill and the minister about the experience that judges from England, Wales and Northern Ireland can bring to our reflections. We should not close our minds to learning from other jurisdictions. Equally, we should be proud to reflect to others our knowledge and experience of the best tenets of Scots law.

For me, the key question is balance. We need to ensure that there is no unintended erosion of our legal system. I recognise that, although that might not always have been an issue and certainly was not an issue in the past, that does not automatically mean that everything will remain unchanged in the context of a new supreme court. I ask members to reflect on that important point again.

Bill Butler was absolutely right to highlight the benefit of consistent decision making across all cases relating to breaches of the ECHR. That consistency will come from the supreme court. It is clearly advantageous not to have differing decisions in what are important constitutional matters.

We have heard that the decisions of the supreme court in relation to the rest of the UK will not be binding on Scots law but will be seen as being highly persuasive. Perhaps the difference is too subtle for me to understand, but I am not sure that something that is highly persuasive is that far from being a must-do. I am sure that the Solicitor General will shed some light on that matter for the benefit of us poor souls who know no better.

Like Pauline McNeill, I acknowledge the work that ministers have done in ensuring that the well-respected system of Scots law is not diminished but enhanced by the proposals and I will support the Executive's motion.

Members often start their speeches by saying that they take great pleasure in participating in the debate, but I am not sure that I can say that this morning, as I came along totally unprepared to speak. However, members will know that I am never one to miss an opportunity to mention the effects of Europe on this country.

The proposals on the supreme court and on the removal of political influence should come as no great surprise to us, because we have all lived through such a process with respect to our local district courts and our sheriff courts—individuals who were appointed to serve in those courts had to be removed because of the perceived political influence in their appointments. We have been here before and here we are again.

One of my frustrations relates to the fact that we are talking about a supreme court in the UK. Earlier, I asked the Minister for Justice about the ways in which article 6 and article 28.3 of the draft European constitution will affect the supreme court if or when it comes into being. I leave that question on the table, as the European constitution could make any debate that we have in this chamber totally irrelevant.

I took the opportunity to ask Jackie Baillie about ease of access to the civil law. I recognise that that matter might be seen as being quite separate from the subject of this debate, but I am not quite sure what assistance in the form of legal aid is available to people who want to take cases into the appeals process or—in future, perhaps—to the supreme court. If the Solicitor General could comment on that, I would be much obliged.

I understand that, when I was out of the chamber, John Swinburne raised the issue of gender balance. I am not greatly in favour of gender balance if it is achieved through manipulation and I have to commend Elish Angiolini, who, despite all the ideas of male supremacy in the legal profession, has risen to her position purely on merit and has done a good job as Solicitor General. Perhaps that is a lesson to all members who have considered manipulation to give one sex or the other an advantage. Elish Angiolini has made it in her profession on her merit, as I am sure have the other ladies in the chamber.

Will the member give way?

Will the member give way?

Of course.

Ms Goldie will be followed by Ms Baillie.

Does the member agree that it is extremely important never to patronise ladies who have attained positions in their sectors of activity on the basis of merit?

I would hate it to be thought that I was being patronising, because I certainly did not intend to be. I have said before that the Lord Advocate and the Solicitor General have done a good job in the main. Saying that is certainly not an attempt to patronise. I would hate to think that Miss Goldie or anybody else would dare to think that I would take such a line.

I rarely associate myself with Annabel Goldie's remarks, but I do so entirely on this occasion. Is Phil Gallie suggesting that the small number of women Conservative members somehow relates to the fact that other women in his party lack merit?

No. We want far more women who could use their extensive talents in the Conservative party, but who choose to use those talents in other ways, to come forward. We would like those talents to be used in the chamber. Perhaps such women will be here in the future. I point to our successes in South Ayrshire Council, where we have almost achieved, purely through merit and without manipulation, the gender balance that Jackie Baillie seeks. That does not involve patronising anybody.

I think that Mr Gallie should return to the subject of the debate.

On a serious note, I will make a point about political influence, which Annabel Goldie mentioned. I understand that the Prime Minister and the First Minister will have input into judicial appointments to the supreme court. That input is a political influence, which seems to cut across the responsibility to meet European judicial requirements. Perhaps the Solicitor General could comment on that when she responds to the debate.

I thank the Presiding Officer for allowing me at a late stage to speak in the debate.

We come now to closing speeches. We have a little bit of time in hand, so I can still be fairly flexible with the indicative timings.

Like Jackie Baillie, I am no lawyer. Members might have heard before that my only legal experience comes from sitting in the district court. I am not sure whether that qualifies me to talk about legal matters.

Many people who are following the debate might wonder why we are discussing the topic. I am sorry that the children who were in the public gallery have gone, because I wondered what they made of the debate, which has been technical—they might have been confused by much of the language. My constituents would probably consider the UK supreme court of importance only to the constitutional and legal anoraks in the chamber.

Pauline McNeill said that she did not like the name "supreme court". I do not like it, either. The words bring to mind the Supreme Court of the United States, which I understand has a completely different function. Perhaps somebody should consider a different name for the UK court.

The proposed supreme court is of fundamental importance to our constitution and I am glad that we are discussing it. As my two Liberal Democrat colleagues Margaret Smith and Robert Brown said—this relates to what Annabel Goldie said, too—the suggestion of a supreme court was first made in and lifted straight from our 2001 general election manifesto. When we first thought about the proposal, we had no concern for whether enough office space was available or whether judges would have a place to sit when they were working. Alasdair Morgan mentioned that point.

At present, a panel that comprises full voting members of the UK legislature sits as the highest court in the land for some cases. Liberal Democrats recognise and accept that that situation is unsustainable. I agree that we need to sever the links between the court and the House of Lords and I have considerable sympathy with Nicola Sturgeon's view about whether we need the House of Lords.

I agree with others who said that members of the court should not sit or vote in the House of Lords. Members of the court who came from the House of Lords could return there when their term of office expired and the House of Lords would benefit from their expertise. However, members of the court who had not previously been members of the House of Lords should not automatically be appointed to that chamber at the end of their term.

I agree entirely with Robert Brown's point about the botched House of Lords reform. It was a shame that the reform was not mentioned in the Labour Party's general election manifesto, but neither were tuition fees, and look what has happened with them this week. A more frank and full discussion would have been preferable before the farce of the reshuffle last year, to which members have referred. The supreme court policy was announced as a fait accompli alongside other changes and was followed by consultation. Something went wrong there. However, I agree that the proposal is fundamentally good.

We must keep a sense of proportion about the supreme court's effect on our constituents. Nicola Sturgeon and other members referred to the numbers of cases from Scotland that have been brought to the House of Lords—in the past few years, those numbers have almost always been in single figures. Why should those few cases not go to the supreme court? A valuable tradition has been built up.

Does the member believe that the limited number of appeals to the House of Lords has anything to do with individuals' means to fund appeals?

No, that is not right. My point is that few cases go to the House of Lords, but that they have merit in going there in respect of civil matters. The low figure does not take away from the fact that individuals can take that action.

The new court must not be part of the judicial system of England and Wales. It must be above both Scots and English law. The court would be the perfect place to deal with UK-wide constitutional issues. The suggestion that that function should be removed from the Judicial Committee of the Privy Council is sensible.

Given what the member just said, does he still agree that the supreme court must not undermine Scots law and that it should not be able to set Scots law precedents unless it is dealing with a case under Scots law?

I accept that entirely. The House of Lords and the law lords are not bound by precedent, as Margaret Smith said. The consultation document suggests that that situation will continue. However, for clarity and consistency, I suggest that the supreme court should follow precedent and that that precedent should be able to be overruled only by a larger bench than the one that set it.

Any supreme court system should mirror the separation of the legislature and the judiciary and I am not convinced that interference is needed from the Prime Minister. The appointments commission would be composed of distinguished lay people, members of the judiciary and recruitment experts and would make a single recommendation. Lord James Douglas-Hamilton talked about how that process would work. I agree with him that the commission will have to be seen to be above all other influences. I do not understand what political interference is needed in judicial appointments.

How will the court sit? I agree that a panel system should be retained. However, in Scottish or Northern Irish appeal cases, it is important to have the possibility of a Scottish or Northern Irish majority on the panel. Members have talked about numbers. I am not sure that I am worried about whether more than two Scottish law lords should be appointed to the new court. Indeed, if more than two Scottish law lords were appointed, expertise would be taken away from Scotland that could be better used in Scotland, particularly given the small number of cases that would go to the supreme court. Having enough Scottish justices of the supreme court—or whatever they will be called—permanently employed is not practicable, but I agree with other members that we must consider the matter. There could be separate, national representation in the small number of cases that would go to the new court, with judges with particular expertise being brought in—I will refer to that matter in a moment. It seems sensible to allow a small number of people who have expertise in various aspects of the law to be used to give a majority if a case relates to a Scottish matter in particular.

I do not think that any member has referred to the suggestion that there should be a compulsory retirement age of 70 or 75 for supreme court judges. Those details can be worked out later. Retired members could be considered for the reserve panel, although in a world in which most of us retire earlier than that, I do not understand why judges should be much different from everyone else. There is also a good argument for appointing long-standing legal academics, barristers and solicitors to the supreme court.

Mike Pringle should remember that we are sitting in a Parliament to which a senior pensioner has been elected. In the light of what he has said about judges retiring, what does he have to say about politicians retiring at a certain age?

Whether politicians retire is often up to voters. In most professions, people retire when they are 60 or 65. In the current system, judges can go on well beyond the age of 70, which is not right in this day and age.

An expansion in the possible pool of available members would also allow judges who have an acknowledged expertise in a specific area of law—and in devolution matters in particular—to sit in the court.

Robert Brown, Lord James Douglas-Hamilton and other members have spoken about the independence of the new supreme court. The court must be completely independent and devoid of all political interference and it must have its own budget.

Margaret Smith and Robert Brown talked about the possibility of the court sitting in Edinburgh on some occasions. I would welcome jobs coming to Edinburgh, as the Executive seems to be intent on sending jobs out of Edinburgh. Perhaps we should welcome the new supreme court—or whatever it will be called—to Edinburgh and perhaps the old Midlothian County Council chambers, which the Parliament now uses as its committee rooms, would be a good location for it. The council chambers would be a fine building in which to house the new court whenever we finally move to Holyrood.

I welcome discussion of such an important issue but deeply regret how the issue has been introduced for discussion—Margaret Smith also said that and Bill Butler reinforced it. We are having this debate not as a result of any failures in the existing practice that the law lords use to hear civil appeals nor as a result of any discontent with the Judicial Committee of the Privy Council having jurisdiction over devolution cases. Indeed, we are not even having the debate as a result of any clamour for change from the public, despite the impression that Nicola Sturgeon has given. We are debating the implications of the establishment of the new supreme court now in large measure because, following a botched Cabinet reshuffle—to which Alasdair Morgan, Robert Brown, Mike Pringle and other members referred—Tony Blair unilaterally decreed that there would be a supreme court and followed that prime ministerial diktat by announcing a consultation. That was the process by which he could ensure, to use the words of the starship Enterprise's Jean-Luc Picard, that he would "make it so".

Perhaps such an approach is not surprising from the man who, on coming to power, gave us cool Britannia, which has now sunk without trace, and from a man who has shown scant regard for parliamentary democracy or the best of British—or, indeed, Scottish—traditions. In the absence of any overwhelming reason for change, there is a need to guard against the perception that we are being asked to embark on the establishment of a supreme court merely for the sake of change, particularly in the light of the Minister for Justice's press release on the subject. The Minister for Justice said that she is in favour of plans for

"a modern Scottish Parliament to back a modern Supreme Court"

and mentioned

"a Scottish Parliament born from bold and radical constitutional reform".

That leads to the conclusion that the concept of change and being different is foremost in her mind, rather than possible improvements to the court system and, indeed, the concept of separating powers.

I am unclear what the member is suggesting. Is she saying that an overlap between the judiciary and the state is acceptable? It is clear that that is not the Executive's position.

I am not clear exactly what the member is referring to. [Interruption.] If the member listens, she will hear my reply. My point is that there is no overwhelming need for change, as the system is working well. Perhaps there might be a need for change as things evolve, but no overwhelming case has been made for that at the moment.

I want to move on, if the member does not mind.

I am not persuaded that the creation of a supreme court will strengthen the independence of the judiciary. That is a vacuous argument, as our judges are independent and jealously guard their independence. As Annabel Goldie pointed out, finding an independent judge to chair inquiries such as the Hutton inquiry or the Holyrood inquiry, for example, is not a problem. That is a testimony to our judges' independence.

There is a glaring contradiction at the heart of Margaret Mitchell's argument. I agree with what she says about the independence of the judiciary. Such independence is a fundamental principle of our legal system. However, how can she argue that the judiciary is independent when the people in the House of Lords who make the law also interpret and apply the law? Such a confusion between the judicial and legislative functions of the House of Lords is one thing that makes the position so unacceptable. Margaret Mitchell should reflect on the logical coherence of her argument during the remainder of her speech.

The pure and simple point is that things work in practice. One needs to know no more than that. All that is being proposed thereafter is change for the sake of change.

I must press on.

The independence that I mentioned is strengthened by the fact that the law lords—who are otherwise referred to as lords of appeal in ordinary—work full-time on the judicial business of the house and receive a salary. That salary is not paid by the House of Lords, but comes directly from the consolidated fund, which is revenues that are held in the Bank of England's exchequer account. There must be concern—which Pauline McNeill voiced this morning—about the proposal that the salaries for the new supreme court judges will be administered and resourced by the Department for Constitutional Affairs. In fact, there is a real danger that the proposals could lead to the politicisation of the judiciary over time rather than strengthen its independence. The consultation document proposes that the appointments commission recommend new judges for the Prime Minister to appoint or, if the Scottish Executive has its way, the Prime Minister would appoint new judges in consultation with the First Minister. The Law Society of Scotland and the Faculty of Advocates do not support that provision. We support the involvement of the Judicial Appointments Board for Scotland, with the knowledge of the First Minister.

Furthermore, the consultation refers to the competence of judges and the Scottish Executive says that members of the appointments commission should have an understanding of "judicial qualities". Such comments certainly require clarification to ensure that there is no attempt to introduce political correctness as opposed to concentrating on a judge's ability. To say that judges must be representative is not a judicial notion, but a political notion. The background of any judge is irrelevant—what matters is their ability to apply and interpret the law.

If a UK supreme court is to be established, the Scottish Executive must ensure that, in the first instance, Scottish judges are appointed to sit on all civil appeals from Scotland. I am encouraged by the minister's comments about flexibility in that regard. The Executive must also ensure that decisions of that supreme court in non-Scottish cases are not binding in Scots law—except in so far as the law that determines such cases is applicable on a UK basis. I support our amendment.

It has been an interesting debate, if only to witness Phil Gallie being chastised by his colleague Annabel Goldie. It must be concerning to Annabel Goldie that it appears that Phil Gallie is no longer aware when he is speaking out of turn in the chamber. It has also been interesting to receive a history lesson on the Scottish legal system. As is often the case in justice debates that are of a technical nature, those of us who do not have legal backgrounds get our defence in early. Although—unlike many who have spoken before me this morning—I do not know all the technicalities of our legal system, I ask members to bear with me and I will do my best.

Judging by the minister's opening speech, one could be forgiven for getting the impression that the consultation document was considered for some time, that much discussion took place and that consultation occurred with a variety of parties on what should be contained in the document. In reality, however, as several members from Annabel Goldie to Alasdair Morgan highlighted, the consultation document comes on the back of a botched reform of the House of Lords and a botched reshuffle that saw Derry Irvine getting his jotters. If the Westminster Government is having problems over the reform of the House of Lords—and I know that it does not have its problems to seek at present—I have a simple solution to suggest: abolish the House of Lords. As I have said before in the chamber, the House of Lords is probably the most expensive form of day care for the elderly in the world. If we are committed to modernising our constitution within the UK—as unionists would say—the Government should abolish the House of Lords.

I support the principle in the consultation document of separating the legislative process from the executive branch of government. That point of principle seems to have been lost on Margaret Mitchell. One of the concerning matters about the consultation document is that it appears to have been written to justify the decision that has already been made to have a UK supreme court. It is not a consultation document that is intended to generate meaningful discussion about the desirability, composition or jurisdiction of such a supreme court. If we had such a meaningful consultation process, it is likely that its outcome would be different from the proposed reforms in the consultation document.

Given the proposals that are in the document, it is relevant for us to ask whether, if the Appellate Committee of the House of Lords is to be replaced by a new UK supreme court, we should continue to send civil appeals south of the border. Given that we are able to deal with appeals on criminal matters in Scotland and that we have done so successfully since 1876, as my colleague Nicola Sturgeon pointed out, why should we not be able to deal with civil appeals in Scotland?

The main argument that has been put forward this morning as to why civil appeals should not be dealt with in Scotland is that referring civil appeals to a UK supreme court would expose Scots law to the experience of judges from other jurisdictions. As Alasdair Morgan pointed out, that is the same argument that was exercised when there was a proposal to establish the Scottish Parliament. It was argued that such a Parliament would be parochial and insular and not internationalist and outward looking, which is what our legal system is today. Given that as many as eight cases a year are referred to the Appellate Committee in the House of Lords, we must question what the big issue is. The second argument that has been put forward today is that a UK supreme court would provide greater consistency in considering those cases. However, as Nicola Sturgeon highlighted, it does not appear to cause a problem when criminal matters are considered under the Misuse of Drugs Act 1971.

The reality is that the continued referral of civil appeals to the House of Lords or to any future UK supreme court is an anomaly that should end. Even the detail in the consultation document on the proposed supreme court does not clarify how it will operate.

We have had the window-dressing approach from Robert Brown, who said that the supreme court could be based in Scotland and others have talked about how many members of the Scottish benches would sit on that court. Pauline McNeill said that the automatic right of appeal on civil matters, which we have at present, should continue with any new UK supreme court. However, the consultation document is entirely silent on whether that right, which has been enshrined in Scots law for many centuries, will continue under a UK supreme court.

If the document is about modernising our legal system, it seems rather strange that its authors should choose to preserve the anomaly of civil matters being considered south of the border. The Scottish Parliament has a duty to listen when the most senior legal figures in Scotland raise serious concerns about the proposals contained in the consultation document. I ask members to support the amendment in Nicola Sturgeon's name.

I am grateful for the opportunity to participate in the debate, particularly as it was unexpected. The Lord Advocate offers his apologies to Parliament because he has been detained in court on a continuing appeal. As a rather poor substitute, I hope that I will be able to explain the position as I see it from my perspective as a lawyer. As is well known, the law is far too important to be left to lawyers to deal with. That is why I welcome the opportunity for Parliament to engage in a serious and detailed debate about a momentous change to the constitution of this country that cannot be understated.

As a student in politics and law, I found it somewhat bemusing to go from a class where I studied Locke and Montesquieu to a constitutional law class where the principles of the separation of powers were somehow eclipsed by the integration of the court and the legislature in the House of Lords. It is a puzzle and an enigma that has troubled me ever since. It is therefore a tremendous privilege to be part of what I consider to be an exciting constitutional development.

I am pleased that we have this opportunity to have a vigorous debate on the wide-ranging issues. I recognise the importance of the reforms of the House of Lords and I echo the minister in supporting the process of modernisation of government and its judicial processes. Annabel Goldie questioned whether it was truly a matter of principle or whether we were simply tinkering with something that ain't broke. We are doing much more than changing for change's sake. We are dealing with fundamental issues of principle that many constitutional lawyers would recognise. There is certainly consensus in Parliament today about the need to recognise the significance of the separation of powers.

As the Lord Advocate said in his speech to the Law Society of Scotland last week, the current arrangements of the House of the Lords are labyrinthine, Byzantine, archaic and somewhat esoteric. If the law is to be accessible to and understood by the people whom it serves, it is vital that we consider not simply what is suitable and appropriate for those who work in the system but what serves the community.

The case for separating the functions of the House of Lords is, in my humble submission, overwhelming. The proposed reform is consistent with the principle of separation of powers, which is a cardinal feature of our British constitution and indeed of any modern democracy. A situation in which the highest court in the land sits as part of the legislature has long been seen as unusual, to say the least. However, the inevitable pressure to reanalyse the institutions—

I am grateful to the Solicitor General for taking my intervention. It is quite important to establish just what principle we are talking about. Does she agree that, when we talk about the separation of powers, we are discussing the issue that I mentioned in my speech of the judiciary being neither compromised nor influenced by Government interference? That is the reality that we need to address, and the idea that structures obstruct such a process might be a red herring.

There is no doubt about the impartiality or independence of those who sit on the Appellate Committee of the House of Lords. Indeed, I think that, on occasion, its judicial decisions can be described as masterpieces. The question is the structure and the appearance of that impartiality and the difficulties that that issue creates. That very issue has been acknowledged even by those who have carried out the function. Lord Bingham recently described the difficulties of sitting on the Appellate Committee. For example, the committee shares committee rooms, chambers and facilities with the legislature. On occasion, the committee will sit in the chamber of the House of Lords itself. Moreover, lobbyists in the House of Lords might lobby a judge on a matter that he has just considered in a debate.

Judges themselves have been aware of these difficulties and, as a result, have imposed on themselves the convention that they will not participate in debates that might be seen as sensitive or controversial. Such a self-imposed protocol is unsatisfactory in a modern democracy. With the ECHR's pressure and momentum, it must be quite clear that justice not only is done, but is seen to be done. The intimate and intricate fabric that weaves our judiciary and our political legislature together in the House of Lords is not satisfactory and is crying out for modernisation and change.

This morning's debate has been interesting. Indeed, it was particularly interesting, not because of the question whether Phil Gallie's compliments were patronising, but because of his points about the status of the supreme court's decisions. Clearly the European Communities Act 1972, which brings into effect EU treaties, has an impact on Parliament's general supremacy. There will be no change in that regard in relation to the supreme court's decisions.

Nicola Sturgeon understandably referred to the repatriation of civil cases. She will forgive me if I do not dwell on the matter but, after all, we are dealing with the status quo. However, as a lawyer, I think that it would probably be naive to suggest that our jurisdiction has not been enriched by decision making on civil appeals in the House of Lords. Equally, we have benefited English jurisdiction by sharing Scottish expertise in that context. The House of Lords has presented a showcase for Scottish jurisprudence, of which the Donoghue v Stevenson case is a very good example. It is perhaps somewhat unfortunate that the fine town of Paisley is now remembered internationally for a deteriorating snail in a glass of ginger-beer instead of for its other fine qualities. I am sure that Hugh Henry will put that right.

I am not quite sure why the Solicitor General feels constrained to discuss the status quo. After all, this should be—and has been—a wide-ranging debate. Is she seriously suggesting that the cross-fertilisation of ideas and legal principles and practices that has taken place between the English and Scottish jurisdictions would somehow cease if Scotland no longer sent civil appeals south of the border? Such cross-fertilisation happens between jurisdictions all over the world and I do not know why, in changed circumstances, it would not continue between the jurisdictions north and south of the border.

It is not that cross-fertilisation would cease. However, we have benefited as considerably from the level of legal expertise of the lords of appeal in ordinary in the House of Lords as they have from Scottish contributions. It is important for Scots law to be seen not in terms of an adherence to tradition and history but in its contemporary context. We need a constitutional set-up that reflects our 21st century needs and the introduction of a supreme court will facilitate that aim.

Annabel Goldie asked for my views on the binding nature of supreme court decisions. I suggest that there will be no change in that respect. I have no difficulty with the section of the Conservative amendment that refers to the continuum of a situation in which the supreme court's decisions would be binding in respect of decisions on Scottish matters and highly persuasive in respect of decisions on other matters that it might deal with. It would be very difficult for a Scottish court to reject out of hand a decision involving an interpretation of a UK-wide statute, simply because the likely outcome of such a rejection would be an appeal to the House of Lords—at the moment—or to the supreme court.

Will the Solicitor General give way?

No. I still have a great deal of summing up to do before I finish.

Members made many worthwhile points. For example, Karen Whitefield and Bill Butler mentioned the importance of a vibrant and developing constitution. I believe that the development of the supreme court engenders and is part of that vital process.

Margaret Smith expressed concern about the court's composition and Lord James Douglas-Hamilton referred to the importance of maintaining the integrity of the appointments process. I do not agree with the proposal that a majority of Scottish judges in the court should sit on Scottish cases. It is not necessary for us to influence the process by such means; indeed, it would be unfortunate if an English panel of judges that sat on the same point reached a different decision from that of a supreme court in which a majority of Scottish judges sat on Scottish cases. It is important that any UK supreme court has a consensus on the important issues that it will have to consider. Of course, legal aid will be available for those who appeal to the supreme court in the same way as it is available to those who appeal to the House of Lords.

The appointments process is a delicate issue and requires a balance to be struck while ensuring that it retains its integrity. We in Scotland are ahead of England and Wales in having our own Judicial Appointments Board. Moreover, I am reassured by the Lord Chancellor's statements that every measure will be taken to ensure the supreme court's integrity and its independence from any suggestion of executive influence. The court will also have a separate administration within the Department of Constitutional Affairs, which I should remind the Parliament is a UK department, not an English or Welsh one.

The development of a supreme court contains a great deal not just for anorak lawyers but for everyone in the country to be excited about. It will improve access, understanding and this country's ability to have a fair and transparent system of justice that delivers what it sets out to deliver.

We are a little early but I propose that, with the chamber's agreement, we continue our business.