HC Deb 09 February 2004 vol 417 cc1131-44 4.10 pm
The Parliamentary Under-Secretary of State for Constitutional Affairs (Mr. Christopher Leslie)

With permission, I should like to repeat a statement made in the other place by the Lord Chancellor and Secretary of State for Constitutional Affairs on the proposed new UK supreme court.

On 14 July we published for consultation our proposals to establish a supreme court for the United Kingdom. We published last week a summary of responses, and today I am setting out our plans in detail—a key element of our comprehensive programme of constitutional modernisation and reform, aimed at enhancing the credibility and effectiveness of public institutions and increasing trust and accountability.

Just as our proposals on the judicial functions of the office of Lord Chancellor rest on the separation of powers between the judiciary and the Executive, so too with our court system: we believe that the time is right to make a clear and transparent separation between the judiciary and the legislature. By creating a supreme court, we will separate fully the final court of appeal from Parliament.

Nothing in the proposal intends or implies any criticism of the way in which the current Appellate Committee or its members have discharged their functions. They are not in the other place today, because they are at work hearing cases. They have asked for it to be made clear that they do not intend any discourtesy by their absence: indeed, it is another manifestation of the singular consequences of situating our highest court within the legislature. The Government take the view that, as part of our plans to sustain and enhance the vital independence of the judiciary, the present position is no longer sustainable. The time has come for the UK's highest court to move out from under the shadow of the legislature.

The Government have been in close consultation with the Law Lords since these proposals were announced and they are aware of the detailed proposals being put before Parliament today. We will introduce legislation to create a supreme court. Under our proposals, the supreme court for the United Kingdom will replace the existing system whereby the Law Lords operate as a Committee of the House of Lords. The supreme court will exercise the same appellate jurisdiction as the Appellate Committee exercises, in respect both of the courts from which appeals may lie and of reviews by appellate petition. There will be no changes to the rules governing leave to appeal.

The supreme court will also take over the jurisdiction of the Judicial Committee of the Privy Council in respect of devolution issues under the Scotland Act 1998, the Government of Wales Act 1998 and the Northern Ireland Act 1998. The creation of a separate and freestanding supreme court does not in any way imply the creation of a new body of United Kingdom law. Being the ultimate court of appeal in the UK does not mean that the court hears "UK appeals".

As is currently the case with hearings in the Appellate Committee, decisions made in an appeal from a court in one of the three jurisdictions within the UK will he of binding effect only within that jurisdiction, and of persuasive effect in the others. Only on devolution issues, as at present, will the decisions of the court be binding in all legal proceedings. The avenues of appeals from Scottish courts will remain the same for the supreme court as they were for the House of Lords, so that only Scottish civil appeals will be heard by the new supreme court. The final court of appeal for criminal cases in Scotland will continue to be the High Court of Justiciary.

As the key objective is to achieve a full and transparent separation between the judiciary and the legislature, it follows that justices of the supreme court, other holders of full-time judicial office, or retired justices of the supreme court who continue to sit, will no longer be entitled to sit or to vote in the House of Lords, or to participate in the work of Parliament for as long as they hold their judicial appointment. The same will apply to the Lord Chief Justice, the Lord President of the Court of Session and the Master of the Rolls. I pay tribute to the valuable contribution to the work of the other place that they and the Law Lords have made.

Judges of the new supreme court will be known as "Justices of the Supreme Court". We propose that the first 12 justices will be those holding office as Lords of Appeal in Ordinary at the commencement of the new supreme court. Two of them are from Scotland and one from Northern Ireland, so their appointment would ensure an appropriate balance of expertise across the UK at the creation of the new court, as well as providing continuity. Qualifications for appointments will be unchanged.

Appointments will be made on the recommendation of a new supreme court appointments commission, to be convened when there is an actual or impending vacancy. The composition of the commission—consisting of members of the appointments commissions from across the United Kingdom, with Members of Parliament and the Government ineligible for membership—guarantees nominations free from political interference and influence. The president of the supreme court will chair the appointments commission and the deputy president will also be an ex-officio member. That will ensure a proper balance of lay and judicial input to its deliberations. The commission will consider candidates eligible for appointment by reference to criteria that have been approved by Parliament, subject to the overriding principle of merit. It will have a duty, each time it meets, to survey the field of all eligible candidates across the three jurisdictions and focus on the most meritorious.

The commission will recommend to the Secretary of State a minimum of two and a maximum of five candidates for each vacancy. On receipt of the nominations, the Secretary of State will be under a statutory duty to ensure that the court has, among its members, sufficient knowledge and expertise of the law in each United Kingdom jurisdiction. In doing so, he will be required to consult the senior judiciary in each of those three jurisdictions. The Secretary of State will then submit a name from the shortlist to the Prime Minister, who will make a recommendation to Her Majesty accordingly. There will also be an obligation to canvass the views of the First Minister of Scotland, the First Minister of Wales and the First Minister and Deputy First Minister of Northern Ireland, if responsibility for criminal justice matters has been devolved to the Northern Ireland Assembly.

The requirement for a longer shortlist than is presented to the Secretary of State for vacancies for judicial offices in England and Wales derives from the UK-wide jurisdiction of the supreme court. Justices of the supreme court must be the best available in the UK as a whole, but the court must always contain the necessary breadth of experience of each constituent jurisdiction. To balance those requirements, it will he necessary for the Secretary of State to consult on a wider range of candidates. It is envisaged that there would never be less than two Scottish justices, and there would normally be one justice from Northern Ireland.

The supreme court will be administered as a distinct constitutional entity. Special arrangements will apply to its budgetary and financial arrangements to reflect its unique status, and it will present annual reports, which will be made available not only to the Westminster Parliament, but to the Scottish Parliament, the Northern Ireland Assembly and the National Assembly for Wales. The chief executive, who will be appointed through fair and open competition, will be responsible for accounting for the court's finances and will report on a day-to-day basis directly to the justices of the court. The court will have a staff of its own, working to that chief executive.

The supreme court will stand at the apex of the judicial systems of England and Wales, Scotland and Northern Ireland. As such, it is appropriate that it should be based in London, as the capital city of the United Kingdom. However, it may be appropriate, on occasion, to hear cases—such as devolution cases, or cases raising issues specific to Scottish or Northern Ireland law—in other parts of the United Kingdom. However, it would be for the president of the supreme court to decide when it would be appropriate for it to sit elsewhere.

It is clearly important that the new supreme court should be housed in an appropriate building. I have therefore commissioned an extensive property search to identify suitable locations. That search has been based upon a statement of requirements that has been discussed and agreed with the Law Lords and has considered a wide range of options—both commercial sites and those already on the Government estate. An evaluation is currently being conducted to identify the preferred location. I will seek the views of the Law Lords, the First Ministers of the devolved Administrations and the Lord President of the Council before any final decision is made. Until that process has been completed, it could be prejudicial to our commercial position to disclose all the details. However, I will undertake to inform both Houses of the preferred option at an appropriate time.

There will be other opportunities for debate and scrutiny of those proposals in both Houses. I also look forward to receiving the report of the Select Committee on Constitutional Affairs, which will comment not only on the supreme court, but on the judicial appointment commission for England and Wales. I believe that those proposals will result in a supreme court that will be, in the words of the noble and learned Lord Steyn, a badge of independence and neutrality … a potent symbol of the allegiance of our country to the rule of law".

Mr. Alan Duncan (Rutland and Melton) (Con)

I am grateful to the Minister for early sight of the statement. I do not ever want to say that the House should not have statements, but my gratitude is somewhat tempered by our growing despair at the piecemeal manner in which the Government's proposals are unfolding.

The proposals' origins lie in a farcical reshuffle in which the Prime Minister's approach to constitutional matters was paraded as fact and then immediately transformed into fiction. The Lord Chancellor was publicly sawn in half by the Prime Minister—no mean feat, I have to say—and then magically reappeared in a puff of smoke. There then followed a private deal with an incumbent judge, which bypasses proper parliamentary procedures or which, at the very least, has pre-empted them. That was then followed by a statement.

Now, a matter of 14 days later, we have another statement. Apart from an ill-attended debate in Westminster Hall on the supreme court, there has been no debate at all in the House, no public debate on the proposals—let alone any public call for them—and only on Thursday, for the first time, will there be the debate in the Lords, which is long overdue. There have been consultation documents and published reactions to them, but no comprehensive response whatsoever from the Government to that consultation process.

This statement today gives the impression that the Government are making it all up as they go along. It contains no intellectual coherence at all; rather it contains many practical dangers and backward steps. It is a mess. Once again the Government show that they are incapable of understanding the difference between judicial independence and the separation of powers. They use the concepts interchangeably and therefore nonsensically. We have never had the separation of powers, and the Government's illogical appetite for establishing the separation of powers will come at the expense of the effective judicial independence that we already enjoy.

The title of supreme court—in a facile replication of an American name—is itself a misnomer. A supreme court is supreme because it sits in adjudication of any dispute's conformity to the supreme authority of a written constitution. We have no such constitution, and therefore have nothing against which the supremacy of a court has to measure up. Indeed, this very statement admits, "The supreme court will exercise the same appellate jurisdiction as the Appellate Committee exercises". Why then this needless upheaval?

Is there not another logical fallacy in the Government's position when they say, as if they think they are making a valid point, that "the key objective is to achieve a full and transparent separation between the judiciary and the legislature"? That is an absurd notion. The insinuation is that there is some sort of parliamentary influence over the courts. There quite clearly is not. But the influence of judges, with all their expertise within Parliament, is important, and that is going to disappear.

May I add in passing that it is a bit rich for the Lord Chancellor to say that the Law Lords mean no discourtesy by being absent today because they are sitting in court? It is a most obvious discourtesy that the Lord Chancellor should make his statement when they have no option but to be absent. To describe this diary conflict as "another manifestation of the singular consequences of situating our highest court within the legislature" is a comment of such unparalleled triviality that it leaves the distinct impression that the Lord Chancellor is taking the mickey.

This proposal may separate the judges from the legislature—and for no apparent benefit at all—but it is a perilous step backwards because it will extend the influence of the Executive over the judges. How can it be said that this proposal enhances either the separation of powers, or the independence of the judiciary, when the role of the Secretary of State, probably by then an ambitious youngster on the make sitting in this House— [HON. MEMBERS: "Oh!"]—has been made central to the proposed judicial appointments procedure? Is it not the case that he will be able to exercise substantial discretion in selecting supreme court judges, and that he will be doing this from a highly politicised office? How is this an improvement on the present role of the Lord Chancellor in the selection of Law Lords, when he is circumscribed by having taken the judge's oath and by the conventions of his ancient office? Why do the Government have such contempt for convention when it has been shown to work so well over such a long period? Is it not the case that whereas the Lord Chancellor takes the judge's oath, the Secretary of State will not? What does the Minister understand by that? Is it not the case that the Lord Chancellor can accept no further political office and is therefore likely to protect judicial independence, whereas a future Secretary of State, who would probably sit in this House, would be subject to no such restriction?

Will the Minister clarify the position of the Judicial Committee of the Privy Council? It will continue to deal with appeals from overseas and other matters, so any possible savings from amalgamating the two bodies will not now arise. Will he now drop any such claim?

What is the Government budget for the court building and for staffing the supreme court? Will the Minister confirm that the net cost, apart from judicial salaries, of running the existing Appellate Committee is in the order of a mere £200,000? Will he not accept that, especially in the absence of any perceived need for the proposal, even if it costs only a fraction of the dome it risks bringing discredit and derision to the entire project? How much will the chief executive of the new court be paid? The way things are going, that person's salary alone will double the current net costs of the court.

The Government proposals are a hotch-potch of utterly shallow design. Changes of this magnitude should ideally enjoy consensual support. At the very least, they should have been argued for, shown to be necessary and proved to be better than what they replace. The Government owe it to the country to allow this House pre-legislative scrutiny of the entire package instead of making this fragmented series of announcements.

The whole enterprise is a classic new Labour construct: it wins a momentary headline; it projects an image of radical momentum; it brings no benefit to anyone; it has shallow intellectual roots; it will probably cost a fortune; and it pollutes a proven structure with the taint of party politics. I say to the Government, "Nice try but bin it—you're wrong".

Mr. Leslie

Well, powerful stuff there, which did not include a single proposal from the Opposition about where they want to take the constitution in this country, whether they would repeal a new supreme court and whether they would reinstate the office of Lord Chancellor. We must find out a little bit more from the Opposition before their conservatism, which is cloaked by the hon. Gentleman's fine language, is exposed to the wider population. [Interruption.] The Opposition obviously do not want to see any change, believe that the status quo is sufficient and do not see any particular problem with a politician sitting at the heart of the judiciary. [Interruption.]

Mr. Speaker

Order. The Under-Secretary must be heard.

Mr. Leslie

I cannot make out whether the hon. Gentleman is saying that there has been too much scrutiny of the proposals—he bemoans our bringing them to the House for debate—or whether he is saying that there has not been enough scrutiny. On the one hand he attacks the Government for making sure that there is an opportunity to scrutinise the proposals in quite a lot of detail, but on the other he attacks the scrutiny as piecemeal. He must carefully think through his line of attack. It is right to give the details, and the time has come to separate the judiciary from the legislature, not only because the change brings clarity and transparency, but because, more importantly, it creates a more effective Parliament and final court of appeal, which will enable both entities to focus on their core roles.

The hon. Gentleman asked a number of questions, one of which was about the title, "supreme court". Somehow he sees the title "supreme court" as inexorably connected with a written constitution, but that is not the case. We can have a supreme court—in effect, our highest court of appeal—and that is what we propose.

The hon. Gentleman raises concerns about how the Executive are perhaps extending their influence over the judiciary, but nothing could be further from the truth. We intend to do precisely the opposite by removing Ministers' powers to be involved in the nomination process for the supreme court. It is also important to take the highest court of appeal out of the political realm by removing it from Parliament. If that is not enhancing independence, I do not know what is.

The hon. Gentleman mentioned the Judicial Committee of the Privy Council, and said that there was no particular issue on that. However, under that system, if there were to be an appeal on a devolution case that involved the National Assembly or the Scottish Parliament it would be heard, absurdly, by a Committee of the United Kingdom Parliament. That is not a sustainable position, which is why, by removing the highest court of appeal from Parliament, we are seeking to enable a more independent approach, and end that potential conflict of interests.

The hon. Gentleman asked a number of questions on the building. As I have explained, we are searching for a potential location for the new supreme court. He focused on the cost, and it is proper that we take value for money into account, but we must also consider the quality of the facilities required by the highest court in our land. I happen to believe that the justice and court system is an exceptionally important part of our country and deserves the very best facilities available.

The hon. Gentleman needs to reconsider his stance. Parliament makes the laws and the judiciary must apply them. We need that separation of powers, and this forward-looking. modernising step is overdue. I am glad that we can take it now.

Mr. Tam Dalyell (Linlithgow) (Lab)

Inquiries that I have made to the apex of the Scottish legal establishment suggest that the Scottish position has been carefully addressed and that the establishment in Edinburgh is satisfied, so I thank my hon. Friend the Minister for that. However, is it not essential to the creation of a truly UK body that it be administered and financed separately from the English court system? Is this body to be run through the Department for Constitutional Affairs?

Mr. Leslie

I am grateful to my hon. Friend for his comments on our conclusions on the relationship between the Scottish jurisdiction and the UK supreme court. It is indeed important that we have absolute respect for the three distinct jurisdictions in our country, and his second point touched on that. We do not want the United Kingdom supreme court to become subservient to the England and Wales jurisdiction, and that is not our proposal. As far as possible within the accounting rules that Parliament expects, we want that supreme court to have a separate accounting officer and separate budgetary arrangements. Although there will have to be some accountability to Parliament for all the taxpayers' money that is expended, we recognise the unique position of the UK supreme court in that respect.

Mr. Mark Oaten (Winchester) (LD)

I thank the Minister for his advance notice of the statement. Does he recognise, however, that although my party supports the move towards a supreme court, much good will has been lost through the Government's approach to consultation on the exercise? The proposals are designed to build trust in the system, but the Government will need to consult much more properly and widely in the months ahead if they are to gain the trust of the judicial system and Members of Parliament.

On today's announcement, why do the Government want to require up to five names to be put to the Prime Minister? Does the Minister not acknowledge that that could lead to greater interference from the Prime Minister and accusations in the media over his reasons for choosing certain individual names from the list of five? Would it not be better to stick with the suggestion of having just two names in the first place? Does the Minister have concerns over the loss of expertise? We fully support the planned break in the link between the Lords and the justices, but current knowledge could then be lost from the other place. With that in mind, do the Government plan that those who have served as justices of the supreme court will be able to be appointed to the House of Lords afterwards? There might then be concerns, however, over accusations of political involvement because the Prime Minister had chosen certain individuals who had served as justices of the supreme court. Further to that, does the Minister have any plans to set an age of retirement for the new justices?

Finally, the new building will be controversial. Will the Minister explain why it has to be sited in London, and will he assure us that the building will not be entirely new, with all the costs involved in that, but will be an existing site?

Mr. Leslie

I thank the hon. Gentleman for his approach, which is slightly more constructive than that of the official Opposition. He asked why London is the preferred location. It is an obvious thing to say. but given that London is the capital city of the United Kingdom, it should be the main permanent base for the supreme court. However, it would be open to the president of the supreme court to decide, if required, that the court could occasionally sit elsewhere. I will not rule out or rule in new buildings or refurbished buildings at this stage, as that would be prejudicial to commercial consideration of the matter.

The hon. Gentleman asked about the age of retirement. We propose that 70 should be the normal retirement age for justices of the supreme court, and 75 if they are on the reserve or supplemental list. As for his comments about whether we should remove sitting judges from the second Chamber, I believe that it is right to do so, particularly if we want to underline the separation of the legislature and the judiciary. There is, of course, scope in the proposals for retiring justices to enter the House of Lords after they have concluded their contribution to the justice system. A shortlist of two to five names is necessary in these particular circumstances, given that appointments cover three jurisdictions—Northern Ireland, Scotland, and England and Wales. We need to ensure that we have the capability to reflect the full breadth of knowledge required for all those jurisdictions, and there is scope for that in the shortlisting process. The nomination process will, however, be taken out of politicians' hands, and that is a major step forward.

Mr. David Kidney (Stafford) (Lab)

Will there be pre-legislative scrutiny of the draft legislation in due course? Looking ahead to the time when the Judicial Committee of the Privy Council loses its UK devolution work load, will my hon. Friend say something about the sustainability of its remaining work load, which consists of the cases that it takes from some Commonwealth countries? In particular, have those countries said anything about his proposals?

Mr. Leslie

On the latter point. the Judicial Committee of the Privy Council will still be required as long as Commonwealth countries need that final court of appeal to be available for their own legal systems. It is a matter for them whether they wish to use it or end such usage. Recently, for example, New Zealand decided not to continue with that relationship, but to end it. However, we will sustain the Judicial Committee of the Privy Council for those purposes. Pre-legislative scrutiny is not currently part of the proposals. There have been five months of consultation on proposals for the supreme court. The period from the beginning of that consultation to the end of legislative consideration will involve about 18 months-worth of scrutiny. It is important that we look at the details but also make progress as soon as we can.

Mr. Douglas Hogg (Sleaford and North Hykeham) (Con)

Does the Minister accept that he is proposing change to an institution that does not require change? In fact, it is working admirably. He has spoken about advancing credibility, improved independence, greater effectiveness and enhanced trust, but does he not understand that the Judicial Committee possesses all those things now, and nothing that he has said will reinforce them? Surely the truth is that we are hearing arguments in favour of change for the sake of change, and are tinkering around with accepted institutions. Such tinkering will increase cost, extend political interference in the choice of senior justices and ultimately bring the system through which we administer the law into disrepute.

Mr. Leslie

I am sorry that the right hon. and learned Gentleman takes that view. Improved independence for our judiciary is a cause well worth striving for, and his considerations about cost should not override that—not that the process would necessarily be costly. There is a need for change, as I have said, and not just because the role of the justices is blurred—are they legislators or they are acting in a judicial capacity? There is currently a self-denying ordinance under which Law Lords cannot speak adequately or vote on particular proposals. If they do so, they disqualify themselves from involvement in certain legal matters. That proves that there is a requirement to act, and we need to do so.

Keith Vaz (Leicester, East) (Lab)

I strongly welcome my hon. Friend's statement and the detail that he has given to the House. It must be right that the Prime Minister and the Secretary of State should be involved in the selection process. That is the nature of democratic accountability. However, will my hon. Friend clarify two points? First, will the person chairing the selection panel be judicially qualified. Secondly, my hon. Friend told the House that the Law Lords were aware of the statement, so can he confirm that the Lord Chancellor will meet the Law Lords to discuss the detail that has been given to the House? As he knows, they were split 50:50 in favour of or against the reforms. It is extremely important that they are fully on board in terms of these proposals.

Mr. Leslie

It is important that my noble Friend the Secretary of State and I engage in debate with all involved in Parliament, not least with the Law Lords as they currently work. We shall continue to have that dialogue and ensure that we refine our proposals. It is important that we have the final passage of the recommendation from my right hon. Friend the Prime Minister to the Queen to make the appointment.

A justice of the supreme court is an important appointment to make and all actions in the name of the Crown need to go through Ministers so that somebody can be accountable to Parliament for that action, even if Ministers are effectively taking the nomination and selection process from a shortlist from an independent appointments commission. It is envisaged that we shall have the president of the supreme court chairing the appointments panel, so I can satisfy my hon. Friend that there will be legal qualification in that respect in overseeing the work that is carried out. I know that we will continue to work together with my hon. Friend to make sure that we scrutinise these proposals as legislation emerges.

Mr. A. J. Beith (Berwick-upon-Tweed) (LD)

I welcome the fact that the statement addresses a number of concerns that came up in the public evidence sessions that were held by the Constitutional Affairs Committee. May I have some assurance that the more detailed points that the Committee will put in its report tomorrow will be considered carefully in the context of legislation, including our concern about the budget of the supreme court? Will the Minister give an assurance that the Department for Constitutional Affairs, which is effectively an English Department for this purpose, will have no role in the budget of the supreme court? Above all, will the hon. Gentleman listen to the voices of Labour Members as well as Members from other parts of the House who are asking, "Why the rush?" If this is so important, should we not take the necessary time to get it right, by scrutinising legislation in draft and then moving on to do the job properly?

Mr. Leslie

I believe that we are taking the necessary time to get this right. There has been a great deal of consideration, not least from the Select Committee that the right hon. Gentleman chairs, which proves that point. We have had five months of consultation on the document that was published in the summer. I look forward to receiving and reading the report that his Committee will publish tomorrow. The Department for Constitutional Affairs is not just an English Department; it is a UK Department and is capable of being involved in UK issues as well as its devolution responsibilities. I understand the right hon. Gentleman's concern about the budgetary arrangements that we put in place to protect the UK position of the supreme court. In our proposals we want to ensure exactly that. We want a separate accounting arrangement and a separate chief executive and staff who belong to the UK supreme court. We are trying our best to ensure that we satisfy that point.

Mr. Clive Soley (Ealing, Acton and Shepherd's Bush) (Lab)

My hon. Friend will know that I am a strong supporter of the continuing reform of the British constitution, which is long overdue. Bearing in mind the complexity of the issue, will he tell us a little more about the relationship between the appointments commission and the political process to achieve that? If, as I understand it, between two and five names are to be put forward to the Secretary of State, and then one name to the Prime Minister, will both the Secretary of State and the Prime Minister have any powers other than to accept or reject those names? In other words, is there an opportunity for discussion, or is it simple acceptance or rejection of the process? If that has not yet been considered, can we address that issue in the near future?

Mr. Leslie

I am grateful to my hon. Friend for highlighting a particular point of importance that we shall need to discuss as the legislation progresses. My understanding is that the shortlist from the supreme court's appointments commission of between two and five names is precisely to ensure that the Secretary of State can reflect the need for a wide knowledge of all the jurisdictions on the supreme court in his choice, and a single name will go forward to the Prime Minister and then to Her Majesty. My understanding is that the shortlist will be a final shortlist from the appointments commission, but again we need to consider that as the legislation progresses.

Peter Bottomley (Worthing, West) (Con)

I hope that the Minister will confirm that the only time that we did not have a Lord Chancellor was when the Government decided to interfere with the present arrangements for appeals in the Judicial Committee of the House of Lords.

Who responded to the Government's consultation with the recommendation that between two and five names should be put forward for a member of the Cabinet to decide which single name should be recommended by the Prime Minister to the Queen?

Why could the Minister not have held the statement back for at least one day so that the Select Committee's report could have been published in advance of the Government's statement?

Mr. Leslie

We need to ensure that when we have proposals we bring them before Parliament, and that is precisely why I made the statement today.

The hon. Gentleman goes through some of the history of the office of Lord Chancellor, but to have the Lord Chancellor as the head of the judiciary is unsustainable given the political nature of that appointment—and if hon. Members seriously consider that the Lord Chancellor is not a political figure they have not truly understood the nature of that appointment.

I think that we had 174 responses to the consultation, and a number of key stakeholders believed that the appointment at this particular level required the involvement of the Prime Minister in making the final proposal to the Queen, and the responses have been published in a document to which the hon. Gentleman has access.

Mr. Frank Doran (Aberdeen, Central) (Lab)

I welcome my hon. Friend's statement, which I hope will lead us to the correction of a long-standing political and legal anomaly in our system. I particularly welcome the possibility that the supreme court will meet in Edinburgh. That is important, and I hope that that will not be an unusual event when the new court gets under way. As a Scots lawyer no longer in practice, I should say that we take a particular pride in the influence that Scots law has had on the development of English law and the transfer of principles south of the border, and that has usually been done through the House of Lords. The most famous case was that of Donoghue v. Stevens in 1932—one Scots lawyer had to mention it, so I will be the one—which radically reformed the English law on duty of care in contracts, and still influences the law. Will the opportunity for that beneficial flow continue in the new system?

Mr. Leslie:

My learned Friend the Member for Lewisham, East (Ms Prentice) informs me that the case to which my hon. Friend refers involved a snail in ginger beer, but I shall look into that case law. I understand and respect his point about the court having the opportunity to sit in places other than London and we do not want to rule that out. It would be for the court to determine where it wanted to sit, but it would be able to sit in Edinburgh.

Mr. Alistair Carmichael (Orkney and Shetland) (LD)

Does the Minister recall that in the debate on 16 December I brought to his attention the evidence of Lord Hope of Craighead to the Constitutional Affairs Committee—namely, that what the Government anticipated amounted to an amendment of the Court of Session Act 1988, which is within the provenance of the Scottish Parliament? Has the Minister formed a view on Lord Hope's opinion and, if so, what role does he anticipate there being for the Scottish Parliament in the Bill's passage?

Mr. Leslie

We have not brought forward our own Bill at this stage, so we do not have details about any consequential arrangements, Sewel motions or other legislative requirements in the Scottish Parliament. I am sure that, in consultation with the Scottish Executive, we will be able to ensure that any requirements for legislation are pursued and brought forward. I know that the Scottish Parliament would want to scrutinise the matter to which the hon. Gentleman refers, on which I shall no doubt continue my dialogue with him.

Mr. Jim Cunningham (Coventry, South) (Lab)

Will my hon. Friend be a little clearer about the housing of the supreme court? Can he tell us how many buildings are on any list that he may have and what he estimates to be the running costs, both in revenue and capital terms?

Mr. Leslie

I want to ensure that the House has an opportunity to look at our proposals, but I know that my hon. Friend will understand that, at this stage, not least given that we are moving forward with legislation shortly, it would be potentially prejudicial to our commercial position if we were to reveal all the different potential sites that we were considering, in case the costs then escalated or, conversely, location opportunities were closed off to us. I hope that he will understand that we do not wish to go into such detail at this stage, but I intend to ensure that we have the opportunity to disclose our preferred location to the House and explore those matters in more detail at the appropriate time.

Mr. Edward Garnier (Harborough) (Con)

Does the Minister accept my happiness about his acceptance that no criticism of the current Law Lords is implied by his statement? Will he further accept that the proposals are based on a complete misunderstanding of our constitutional history and the theory of the separation of powers? The Law Lords in no sense operate under the shadow of the legislature, but are a useful adjunct to it and gain much from their membership of it. Does he accept that the only result of what is proposed will be a huge and unnecessary additional expense that he has not condescended to detail to us? Would not the millions of pounds that he is bound to have to spend on this exercise be better spent on establishing a purpose-built commercial court that will attract millions of pounds in inward investments from overseas and/or on legal aid?

Mr. Leslie

I know that the hon. and learned Gentleman will be aware in a professional context of many of the requirements for improvement and modernisation throughout the legal system. We are looking at the commercial court arrangement, which is a matter for England and Wales in particular, but I do not believe that he is right to say that we have misunderstood the need for reform of our constitution. I believe that it is an important principle that we should have greater clarity between the different branches of our constitution and allow the judiciary and Parliament to focus on their core roles. That makes for a more effective Parliament and a more effective final court of appeal. The blurring that exists does not give any credence to the idea that we have the justice system for the 21st century that I believe this country deserves.

Mrs. Ann Cryer (Keighley) (Lab)

Will my hon. Friend clarify one point? Did he say that, where Commonwealth countries currently use the Judicial Committee of the Privy Council as a final court of appeal, they would be able in future to develop a home-grown variety of that final court of appeal? If that is the case, I shall have some anxieties, as a number of those countries retain the death penalty.

Mr. Leslie

I have to tell my hon. Friend that I do not believe that it is for us to dictate to Commonwealth countries the nature of their justice system. If they choose to retain the final right of appeal to the Judicial Committee of the Privy Council, that is their right, but if they choose to move away from that arrangement, we should also respect that decision. I believe that that is the correct position to take, and I hope that she will understand that.

Mr. Eric Forth (Bromley and Chislehurst) (Con)

Although I am broadly sympathetic to the Minister's argument for the concept of a separation of powers, may I ask him to reconsider the need for a written constitution at this stage, not only to protect us against the depredations of Governments with large majorities, but to clarify the relationship between our judicial system and his proposed supreme court, and, for example, the European Court of Justice? I should be grateful if he would say another word about how he believes that relationship will develop. Furthermore, given his proposal that there should be an age limit of 70 for supreme court justices, does he see any read-across to Members of Parliament in that regard, and if not, why not?

Mr. Leslie

One reform at a time, Madam Deputy Speaker—[Interruption.] We have no proposals on that matter. The age limit of 70 reflects as closely as we can the current arrangements on the Appellate Committee, and our proposals make good sense. We do not propose to have a written constitution at this stage, but the package of reforms and changes that we are putting before the House is sufficiently ambitious and wide ranging to give the right hon. Gentleman plenty to consider. This Parliament is sovereign on all matters. We choose to delegate some of our legislative considerations to European bodies and elsewhere, but, again, we do not propose any change to the relationship between our highest court of appeal and the European Court of Justice.

Mr. Michael Weir (Angus) (SNP)

Despite the comment of the hon. Member for Aberdeen, Central (Mr. Doran), the House of Lords has not always had a beneficial effect on Scots law. I refer him to the case of Bartonshall Coal Company v. Reid and its effect on workmen's compensation—[Interruption.] Look it up; it would interest Labour Members. Given that the Minister said that the new supreme court would deal only with Scottish civil appeals and that such appeals will be binding only in Scotland, what is the sense in having these heard in London? Is not the logic of the proposal that Scots law should be repatriated to Scotland, where it belongs? If the Minister goes ahead with this crazy scheme, will he at least assure us that any Scots appeal will be dealt with only by justices who have a thorough knowledge of Scots law, so that we do not get a repetition of the Reid case?

Mr. Leslie

While Scotland remains a part of the UK, those civil appeals should continue to go to the UK supreme court. I do not believe that it would be right to change that.

Mr. Alex Salmond (Banff and Buchan) (SNP)

Why not?

Mr. Leslie

Having that appeal to the UK supreme court can be of benefit to the whole of the UK—even in Scottish civil cases—because we all have opportunities to learn from the interpretations and applications made by those justices.