Select Committee on Public Administration Appendices to the Minutes of Evidence


Memorandum by Alex Neil, Member of the Scottish Parliament (MSP) (PAP 7)

  Please find enclosed a copy of my response to the Public Administration Select Committee's consultation paper, Public Appointments and Patronage: Issues and Questions. The response focuses on my Members' Bill, the Public Appointments (Parliamentary Approval) (Scotland) Bill, which was put before the Scottish Parliament in February 2002. I have also included extended background evidence for submission, which outlines the parliamentary processes used to scrutinise the Bill.

  I would like to make it clear that I would welcome the opportunity to come before the Select Committee, if it so requested, to discuss any aspect of my submission.

PUBLIC APPOINTMENTS AND PATRONAGE CONSULTATION

Background

  Alex Neil MSP introduced the Public Appointments (Parliamentary Approval) (Scotland) Bill in the Scottish Parliament in 2001 and the Bill was debated and rejected at Stage 1 in February 2002. A copy of this debate can be accessed at:

  http://www.scottish.parliament.uk/official_report/session-02/sor0207-01.htm

  The objective of the Public Appointments (Parliamentary Approval) (Scotland) Bill was to increase the accountability of certain specified agencies and non-departmental public bodies (NDPBs) to the Parliament. The Bill provides that nominations, or recommendations for appointments to specified agencies and NDPBs made by the Scottish Executive, are subject to the approval of the Scottish Parliament. The Bill as introduced and associated documents can be accessed at:

  http://www.scottish.parliament.uk/parl_bus/bills/b32s1.pdf

  http://www.scottish.parliament.uk/parl_bus/bills/b32s1en.pdf

  http://www.scottish.parliament.uk/parl_bus/bills/b32s1pm.pdf

  The Scottish Parliament's Local Government Committee and Equal Opportunities Committee produced the Stage 1 Report on the Bill and recommended, by division, that the Bill and its general principles should not be approved by the Scottish Parliament. The Committee Stage 1 Report can be accessed at:

  http://www.scottish.parliament.uk/official_report/cttee/local-02-03-01.htm

  Although the Bill was not passed, there can be no doubt that it forced a radical change in the Scottish Executive's attitude towards the public appointment process. When the idea for the Bill was first introduced, recommending a stronger role for Parliament, the Executive was clearly against any reform: in their Consultation paper, Appointments to Public Bodies in Scotland, they wrote, "excessive Parliamentary scrutiny might have a deterrent effect on the number of candidates coming forward. It might also be perceived as extending politicisation of the appointments process".[1]

  However, in order to thwart the Neil Bill from progressing, the Scottish Executive dramatically changed its position just days before the Bill was to be debated and introduced an alternative set of proposals, thus buying off their Liberal Democrat Scottish Executive partners. The Public Appointments Bill succeeded in forcing the Scottish Executive to suddenly support change: the deputy Minister for Finance and Public Services said, "we also want to enhance, rather than avoid, parliamentary scrutiny . . . we envisage there will be new roles for the Parliament in the appointments system".[2]The Scottish Executive has since started to consult on a Public Appointments and Public Bodies Bill, the paper for which sets out their alternative plans. It can be accessed at:

  http://www.scottish.gov.uk/consultations/government/Sccr.pdf

  The Scottish Executive's proposals primarily call for the establishment of a Scottish Commissioner for Public Appointments appointed and funded by the Scottish Parliament, a Public Appointments Parliamentary subject Committee and an annual report on Public Appointments in Scotland.

How the Public Appointments Bill would have worked

  Although the Bill would have largely been shaped and defined through the Parliament's Standing Orders, it was envisaged that Parliamentary Committees would hold hearings to confirm or veto public appointments to specified agencies. It is entirely possible that a specific Public Appointments Committee could be established for this purpose, but it could also be the case that each subject committee would deal with appointments to agencies falling within their remit. For example, the Enterprise and Lifelong Learning Committee would hold a hearing to appoint the new chairs of Scottish Enterprise, Highlands and Islands Enterprise and the Scottish Tourist Board.

  The Scottish Parliament would hold compulsory hearings for every appointment as chair to the bodies under the Bill's remit. Hearings for board member appointments would be called as and when required, i.e. when a Committee felt that cronyism had played a part in a particular appointment. In these circumstances, the Scottish Parliament would have 28 days to decide whether it wanted to hold a hearing or not.

  Responsibility for the selection process and choice of candidate would still lie with the Scottish Executive Minister. Even if Parliament decided to veto a particular appointment, it would still be up to the Minister in question to bring forward another suitable candidate. There is therefore no question of ministerial accountability being radically weakened.

Would Parliamentary Hearings deter people from applying for public appointments and politicise the system?

  Parliamentary confirmation hearings, in theory, provide the necessary frontline scrutiny that would overcome the prevailing culture of cronyism in the UK public appointments process. It is therefore both useful and important, within the context of the Public Administration Select Committee's investigation, to understand the arguments against such a procedure.

  The Bill was rejected, in the Local Government Committee Stage 1 report, by division, for six reasons. Two of the main arguments will be briefly outlined and discussed while additional comments on the Committee's other conclusions are included as Annex A.

The Bill would deter people from diverse backgrounds from applying for public appointments

  There is no evidence to substantiate the argument regarding deterrence. The Executive claimed that their Consultation paper, Appointments to Public Bodies in Scotland, February 2000, identified such a concern, but they were unable to back up this vague assertion with any concrete data.

  Moreover, when Dame Rennie Fritchie, the UK Commissioner for Public Appointments, gave evidence to the Local Government Committee in January 2002, she claimed she had spoken to people about the Bill and found they perceived confirmation hearings as another "hurdle", that would put them off from applying.[3] It was significant that when she was later asked to give her opinion on the public's low level of confidence in the public appointment system, she said she was unable to comment. In other words, while Dame Fritchie was able to tell the Committee that the wider public would be deterred from applying for positions under the Bill, she would not say why their level of confidence in the system was so low. It was therefore clear that Dame Fritchie had only been offering an individual opinion and was unable to substantiate her claim that the Bill would act as a deterrent.

  In the submissions to the Local Government Committee, a wide variety of organisations and groups voiced their support for the Bill, none of which referred to it as a deterrent. Written submissions in support of the Bill were received from the Equal Opportunities Commission Scotland, the Commission for Racial Equality, the British Federation of Women Graduates, Democratic Audit UK, the Scottish Civic Forum, Glasgow City Council, the Educational Institute of Scotland, the Council of Scottish Local Authorities and a number of individual members of the public. From this list alone, it is clear that the issue of deterrence was not the problem or barrier the Executive and Dame Rennie Fritchie made it out to be.

The Bill will lead to the politicisation of the appointments process

  This is an entirely misleading argument put forward by the opponents of the Bill, because the system is already politicised. In fact, it would be very difficult to create a more politicised process than the one already in operation, where the selection of a candidate is the sole responsibility of one Minister—one politician.

  Internationally, other countries already practice open scrutiny at Parliamentary level. The Ontario Legislature in Canada has a Public Appointments Committee that holds confirmation hearings and it carries out its role in a professional and non-partisan way, for the most part. The Parliamentary Approval Bill also borrows from the US Congress model, which has been known to create political dramas and conflict.

  However, the Bill adopts the best features of the US system and includes safeguards against politicisation and questions of a personal nature. The Bill carefully sets out what is and what is not acceptable in terms of the questioning and treatment of a candidate.[4] Moreover, the Bill protects against any backlog, which is another feature of the US system, because all nominations must be confirmed or vetoed within 28 days except in special circumstances.

Conclusion

  At the moment, if you were to ask someone on the street what he or she thinks of the public appointments process they would probably say that it is about who you know, not what you know. The public has an entirely negative impression of public appointments.

  The public must be able to trust the system. The only way to start building confidence is to bring appointments under the democratic spotlight, which means the Executive's power of patronage must be countered by a parliamentary power of scrutiny. If the Parliament had the power to confirm or reject a candidate, then the Minister would select candidates knowing full well that his or her decision was going to be scrutinised. This in itself would protect against the abuse of patronage.

  Without the enabling power of a veto, whether that veto is in the hands of Parliament or an independent Commission for Public Appointments, there can be no guarantee that patronage will not continue to be abused. The veto is the reform required in order to establish a fair and transparent system of public appointments where people are appointed by merit, not by their mates.

Annex A: Other Comments on the Conclusions of the Local Government Committee's Stage 1 Report on Public Appointments (Parliamentary Approval) (Scotland) Bill

The Bill could render nominees for public appointments more vulnerable to discrimination than would otherwise be the case.

  The Committee is concerned that the Parliament is not bound by the same equality law as the Executive is. The Legal Office confirmed much of this in its advice to the Local Government Committee.[5] However, the Legal Office makes it perfectly clear that, "the definition of a public authority is based on the definition of public authority as given by Human Rights Act 1998 and it is widely accepted that this includes the Scottish Parliament. In other words the Scottish Parliament is subject to a duty not to act in any manner which constitutes discrimination".[6]The Committee therefore accepted that, "under the bill the parliament is required to consider any statutory requirement concerning the person appointed and this would include the application of anti-discrimination legislation as it applies to the Scottish Minister".[7]In other words, the idea that a committee of MSPs would turn down an individual because of their race, gender, religion or other such issue is ludicrous. It is difficult to see why the Committee stated this as a reason for the Bill to fall.

The Bill will slow down key appointments

  The Committee decided to side with the Executive, who argued that having to allow for an additional 28, or in extreme circumstances 56 day, delay under the proposed bill would damage the appointment process.[8] In so doing, the Committee decided to ignore the submissions from Scottish Civic Forum and Glasgow City Council who both specifically commented that they believe concerns about delays had been overstated.[9] Also, of the other 12 submissions in favour of the Bill, none of them raised this as a point of concern.

  Moreover, the Committees actually contradict each other on this issue. The Equal Opportunities Committee concluded that, "the contra-argument to the Bill, set out by the Scottish Executive that the confirmation process would have a detrimental effect due to the additional time, IS NOT ACCEPTED".[10]Yet the Local Government thinks it will lead to "damaging delays in key appointments".[11]It is nonsense to suggest this as a good reason to reject the Bill and, as the Scottish Civic Forum point out in their submission, the Executive could easily plan ahead for any delays that might arise from this Bill, as they do just now with the current process. [12]

  The Committee Report also contradicts itself when it accepts the validity of the Bill's Financial Memorandum.[13] In accepting the Financial Memorandum, it accepts that the estimates made in it are correct too. The memorandum states that there will be, on average, 38 appointments per year to confirm which comes to about per subject committee. This does not fit with the conclusion that system will be delayed and overloaded.

  The Local Government Committee has completely ignored the advice of the experts on this issue. The Subordinate Legislation Committee, which deals solely with technical aspects of legislation concluded that, "the procedures described are entirely suited to standing orders rather than statutory instrument or primary legislation".[14]

The Bill will blur the lines of ministerial accountability.

  The Committee Report suggested that if a minister's nominee was rejected, then they would have to go back and select someone who was not their first choice. However, the minister would still be accountable for the new nominee's actions, even though it is not the person they wanted. This would be seen as unfair. In saying that, is it not true that if a committee decides that statutory requirements have not been followed, or it is clear that the nominee in front of them has been tapped on the shoulder, it is entirely right for the committee to reject that candidate—whether that nominee was the minister's first choice or not? The rejection of a nominee would be the outcome of parliamentary scrutiny, and there is no point in having the power of veto if no one is prepared to use it, provided it is exercised objectively and fairly.


1   Appointments to Public Bodies in Scotland: Modernising the System Consultation Paper, Feb 2000, Scottish Executive, pp 23-24. Back

2   Local Government Committee 3rd Report 2002, Stage 1 Report on Public Appointments (Parliamentary Approval) (Scotland) Bill page 80 column 2661. Back

3   Local Government Committee 3rd Report 2002, Stage 1 Report on Public Appointments (Parliamentary Approval) (Scotland) Bill, p 70, column 2641. Back

4   Public Appointments (Parliamentary Approval) (Scotland) Bill as introduced, part 2 Issues for Consideration. Back

5   Local Government Committee 3rd Report 2002, Legal Advice, Annex D, p 116. Back

6   Local Government Committee 3rd Report 2002, Legal Advice, Annex D, p 116. Back

7   Local Government Committee 3rd Report 2002, paragraph 57, p 12. Back

8   Local Government Committee 3rd Report 2002, paragraph 62, p 13. Back

9   Local Government Committee 3rd Report 2002, paragraph 64, p 13. Back

10   Local Government Committee 3rd Report 2002, paragraph 18, p 20. Back

11   Local Government Committee 3rd Report 2002, paragraph 67, p 14. Back

12   Local Government Committee 3rd Report 2002, p 108, Annex D. Back

13   Local Government Committee 3rd Report 2002, paragraph 85, p 16.<ea3>The Bill will depend excessively on changes to the Parliament's Standing Orders, which cannot be scrutinised at this stage. Back

14   Local Government Committee 3rd Report 2002, paragraph 8, p 24. Back


 
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