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Kevin Brennan: Is the right hon. Gentleman aware that, prior to this arrangement, the line of responsibility was even more obscure, in the sense that all the civil servants in the Wales Office were on secondment from the civil service of the National Assembly for Wales?
Mr. Maude: As I have said, it should not be impossible for these arrangements to be worked out. However, we now have a new set of arrangements that is, so far as I am aware, unprecedented in Whitehall, and people need to know what is happening. I would be surprised if the First Division Association were not pretty concerned about this, and were not raising the issue with the Government even as we speak. That is yet another example of issues that have not been thought through properly, and need to be resolved in a way that will comfort both civil servants and the House.
The position of the Secretary of State for Health is a new departure as well. The Secretary of State for Transport is a Scottish Member of Parliament, but most transport responsibilities in Scotland have been devolved, although a number are genuinely UK-wide. For the first time, we are faced with the much-anticipated scenario of a Scottish Member of Parliament effectively presiding as an English Minister over matters that do not affect his constituency in any way. This is not quite the West Lothian question; rather, it is an extension of it.
There is no constitutional impropriety in the situation. It is not morally reprehensible. But it is another arrangement that has not been thought through properly and will introduce tension. It is likely to cause growing resentment. Our unwritten, evolving constitution has been able to adapt and respond to anxieties and resentment among those whom we are elected to govern.
Kevin Brennan: The right hon. Gentleman's argument is perhaps slightly weakened by the fact that even when
his party was represented in Welsh constituencies, it chose to appoint Members with English constituencies to rule over Wales as Secretaries of State.
Mr. Evans: Labour criticised that at the time.
Mr. Maude: As my hon. Friend says, the Labour party was very critical indeed. The situation is slightly different now, however. In those days we were being governed, for better or worse, as a unitary country, with no devolved legislatures or assemblies. Any new legislation affecting Scotland or Wales—on health, for example—had to be passed by the House of Commons, and all Members were able to vote on it here. Now the Secretary of State will not be able to vote on any legislation affecting his constituents, but will propose and implement legislation affecting the bulk of the United Kingdom—in other words, England. As I have said, that is not constitutionally improper, but I predict that it will be an increasing source of tension, anxiety and resentment.
Mr. Bryant : The right hon. Gentleman, who is making some intelligent and sensible points, seems to accept that the reshuffle has no moral implications. His central charge, like that of the shadow Leader of the House, seems to be that by its very nature it has led to constitutional changes. But every reshuffle in the House's history has led to constitutional changes. A major change took place in 1940 when Stafford Cripps was made ambassador to Moscow, and there was no consultation beforehand.
Mr. Maude: There was a war on at the time. The appointment of a sitting Member of Parliament as an ambassador has never been repeated in peacetime, because it would be constitutionally improper. No permanent change was made in the constitutional arrangements then. However, I do not want to be drawn down that path.
The hon. Gentleman is right in saying that reshuffles have frequently involved changes in the machinery of government. I do not criticise the Prime Minister for deciding to make changes in dispositions in Whitehall: that is a perfectly proper prime ministerial function, which is carried out by means of Orders in Council and implemented swiftly afterwards. What has been done in relation to the Secretaries of State for Wales and Scotland could have been done in the same way had it not been for the quaint idea of putting their offices in a newly created Department. That does not fit neatly into a system of changes in the machinery of government to which we are entirely accustomed. I am not saying that this is the end of the world—the constitution is not tottering—but the position is needlessly unclear, and the opportunity to garner a consensus for some of the changes has been lost. That is regrettable.
I have no deep-seated belief that nothing in the Lord Chancellor's role can be changed. There are some perfectly proper issues involving the separation of powers which have never caused any great problem, but those who like things to be neat and to conform to a constitutional textbook have been agitated by such developments in the past, and they present a tempting target to those who like fiddling with constitutional matters.
One reason why no major problem has been caused in the past is that the office of Lord Chancellor has something to do with the arguably absurd ceremonial and dress involved, which confers a certain "otherness" on the holder of that office. The Lord Chancellor has never been an ordinary politician. He may have been one once—many Members of the House of Commons have been elevated to the other place and become Lord Chancellor—but once the robes of office are assumed, he takes on responsibilities that differ from those of an ordinary Cabinet Minister.
I have no particular objection to the establishment of a judicial appointments commission. I would have some concerns over who sat on the commission and whether it was pursuing a particular agenda, but I think that a properly designed system that had been subject to proper consultation could work quite well. One reason why bias and partiality in the appointment of judges has never been a major issue is the fact that the Lord Chancellor, who is responsible for making those appointments, makes them in a detached way, not as an ordinary member of the Cabinet. If anything, Lord Chancellors have tended to compensate for the possibility of being accused of making partial appointments by veering in the other direction.
The existing system has worked very well. I do not object to the new system, whatever it may be, but we should not justify its creation by saying that a huge problem exists and needs to be resolved. It is at the most a third-order issue.
Keith Vaz (Leicester, East): I am sorry that I was not present for the beginning of the right hon. Gentleman's speech, but the Select Committee on the Lord Chancellor's Department—if it is still called that—visited Edinburgh this morning, and met members of the Judicial Appointments Board of the new Scottish Executive. The system works up there: it is possible to have a separate judicial appointments commission instead of the previous post of Lord Advocate. In the light of what the right hon. Gentleman has just said, does he accept that we should have such a body, and is that now Conservative party policy?
Mr. Maude: The hon. Gentleman knows perfectly well that what I utter is not necessarily Conservative party policy, although it may become it. I am merely reflecting, as the motion invites us to do, on what took place last week, and which has—whatever Labour Members may say—caused a minor explosion among those who are concerned with the state of our government and our constitution. It is not necessary to have perfect answers to such matters.
The hon. Gentleman defends the new system in Scotland by saying that it seems to work all right—or some such phrase—but frankly, that is not praising it to the skies. He says that it has not been a disaster, and there is no reason why it should be; however, the old system was not a disaster, either. There has been what the new Leader of the House would doubtless describe as a modest tidying up; it does not affect matters hugely.
The question of a supreme court is something of a third-order issue. What is a supreme court, other than the highest court in the land? The exception is a country with a written constitution, in which such a court is
actually the guardian—the custodian—of that constitution. We do not have a written constitution, and the new supreme court will not have that function as such; it will simply operate, as the House of Lords currently does in its appellate role, as the highest court in the land. That will look neater and more like other systems, but in fact the current system has worked perfectly well.
Mr. Tyler: The right hon. Gentleman says that we do not have a written constitution, but it is more accurate to say that we do not have a comprehensive written constitution. Of course, several issues have been addressed in statute, such as devolution to Scotland, Wales, Northern Ireland and London; and now, conceivably, devolution to regional assemblies will be so addressed. Indeed, our relationship with Europe, which will be written down, may well be a constitutional issue in future. I accept his general point, but he is not being quite fair in his analysis.
Mr. Maude: We do not have a formal, comprehensive written constitution, but if the new European constitution is implemented, we will for the first time have a written constitution; it will simply not be one designed and made in Britain. That is a pity, really, but be that as it may. The supreme court issue is a relatively minor one, but it will please constitutional aficionados.
My main point concerns not the detail of the proposed changes, some of which have been made and all of which are perfectly defensible, in their way. In fact, if the Government had approached this issue in a sensible and sensitive way, they could easily have gathered together some consensus for such changes. However, the way in which this has been handled is redolent of a Government who are losing the plot. When the Prime Minister reflects on the aftermath—the harvest—of last week's reshuffle, he may conclude that this was the time when the dusk started to come in.
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