Select Committee on Public Administration Appendices to the Minutes of Evidence

Memorandum by the Law Commission (PAP 33)

  On 13 March the Public Administration Select Committee published a paper on Public Appointments and Patronage and invited responses to a number of issues and questions.

  I should like to record my own views, as Chairman of the Law Commission, in relation to some of the questions posed. I recognise that the Committee has indicated that all memoranda will be treated as evidence to the Committee and may be published as part of its final report.

  The Law Commission is an advisory non-departmental public body, governed by the Law Commissions Act 1965. The Commission was set up to keep the law of England and Wales under review and to recommend reform when it is needed. Our law is, of course, a combination of the common law—decisions of the higher courts—and statute law enacted or authorised by Parliament. Sometimes those decisions and statutes go back many centuries. Substantial reform of the law is a task for Parliament. Proposals for reform may well not be satisfactory, however, unless they are preceded by research and by wide consultation with experts and with those who may be affected by the reforms. Our job is to carry out this research and consultation and to modernise, improve and simplify the law by formulating proposals on a systematic basis for consideration by Parliament.

  The 1965 Act requires the Lord Chancellor to appoint just five Commissioners (of whom one is the Chairman). The Act further requires that the Commissioners be chosen from those who are either a holder of judicial office, or a barrister, or a solicitor or a teacher of law in a university. The Lord Chancellor also considers the specialist skills, experience and expertise of prospective Commissioners against the requirements of the Commission's programme of work. Appointments are for a period of three years for the Chairman and five years for the Commissioners. These appointments may be extended.

  Relatively few of the Committee's questions relate to a body like the Law Commission, but below is a list of those which do (however tenuously), together with my responses. I am following your numbering system.


2.   What problems might arise if elections were held for membership of some public bodies, instead of the current system of appointments?

  The skills, knowledge and experience needed to be a Law Commissioner are very specialist, as the detailed job description, eligibility and criteria for appointment demonstrate. Those appointed need to be "of a high level of professional achievement, experience and ability, who can make a significant contribution to reform and development of the law", as the advertisement stated on the last occasion.

  There is a thorough system for appointment of Law Commissioners (apart from the Chairman), involving open advertisements and competitive selection by means of sift and an interview by a panel of three, making recommendations to the Lord Chancellor. The Chairman of the Commission is always a High Court judge and is selected by the Lord Chancellor from among the High Court judges.

  This system ensures that those interested apply and that the most suitable candidates are appointed, on the basis of merit, following a thorough and evidence-based process.

  In my view it would be totally unsatisfactory for candidates to have to stand for election for appointment as a Chairman or Commissioner. Those who voted for candidates might well lack the detailed specialist knowledge necessary to judge who was the best candidate for the job. In addition, I very much doubt that the best candidates would put themselves forward if they knew that the appointment was to be made by election, which might or might not result in appointment based upon merit.

  Finally, a body like the Law Commission, with similar purposes, exists in most Commonwealth countries. Most of them operate under legislation similar to the Law Commissions Act 1965. I am not aware of any such body elsewhere whose members are elected.

5.   Government departments publicise public appointments, assess applications and draw up shortlists for interview. Independent assessors take part in the process and appointments are made on merit. Is this a sensible devolution of power to departments or does it cause problems and create unfairness?

  I believe this is a sensible devolution of power to the Lord Chancellor's Department, which, over the years, has built up an extensive knowledge of the work of the Law.

  Commission and the kind of candidates who are best suited to the work of Commissioner. This knowledge helps them to draw opportunities to the attention of a wide range of potential candidates; to scrutinise applications shrewdly; and to assess those who appear (on paper) to be best qualified for appointment. Suitability is subsequently tested at interview and the involvement of an independent assessor helps to ensure that decisions take into account all relevant factors and follow a thorough and fair process.


8.   What part, if any, should politicians (the Lord Chancellor in particular) play in the public appointments process?

  It already falls to the Lord Chancellor to appoint Law Commissioners. Appointment as a Commissioner (but not as the Chairman) is through open competition. The Lord Chancellor's decision is based on advice from a selection panel comprised on the last occasion by the Director-General (Policy) of the Lord Chancellor's Department, myself as Chairman and an independent member with long experience of personnel work. (That independent member was a former Civil Service Commissioner and Equal Opportunities Commissioner, who also acted as independent assessor for the Office of the Commissioner for Public Appointments.) The Lord Chancellor has the depth of knowledge necessary to make these appointments to an independent body. I am not convinced that members of the public would be more satisfied if politicians were to influence the appointment process, but would have thought they might prefer the process to be independent and detached from political activity.

9.   Is there any evidence to suggest that there is political bias in the public appointments process?

  I am not aware of any such evidence but would hope that any instances would be brought to the attention of the Commissioner for Public Appointments in order to prevent any unfairness.

11.   What role, if any, should Parliament play in public appointments?

  I do not think that Parliament should play any part in public appointments, apart perhaps from ensuring that Ministers are accountable to Parliament for the processes.

12.   Do you believe that an independent appointments commission should be introduced instead of ministerial appointments?

  I see advantages in the Lord Chancellor being responsible for Law Commission appointments, as under the Law Commissions Act, not least because the Lord Chancellor is a lawyer and the Law Commission posts are specialist legal posts.


13.   Is there evidence to suggest that the current system is not attracting applications from the widest pool of candidates?

  I am not aware of any such evidence. Steps are taken to attract applications from all those who may be statutorily qualified for appointment.


17.   What improvements, if any, should be made in the way in which advertising or publicising public appointments are made?

  I believe there have been a number of improvements in the advertising/publicising process in recent years. Advertisements appear in a wider range of suitable publications and on Internet websites. Full details of the job description, eligibility and criteria for appointment and terms of appointment are provided. Law Commissioners not infrequently address legal conferences and explain the nature of their work.

18.   What is your understanding of the role of the Commissioner for Public Appointments, Dame Rennie Fritchie?

  As I understand it, the Commissioner for Public Appointments plays a very large part in ensuring that appointment policies and procedures are open, fair and transparent. Appropriate policies and procedures lead to effective appointments, on merit, and help to prevent allegations of bias/unfairness/discrimination/favouritism/conflicts of interest.


25.   Should every candidate, even important people for high level appointments, be asked to complete application forms and attend interviews in the normal way?

  (1)  As a general principle, every candidate should fill in an application form and attend interviews in the normal way. It is important to ensure that a selection panel has at their disposal comprehensive and up-to-date information. Application forms help the selection panel to compare and contrast candidates' competencies and they form the basis for questions at interview. They also help a panel to know, before drawing up the short-list of candidates for interview, why candidates believe themselves to be suited for appointment. At interview the candidates may then expand upon what they have said on paper and enable a panel to judge whether they have the necessary interpersonal skills as well as the technical knowledge and expertise required.

  (2)  However, it is important that this process should be directed to the overriding objective, which is to find the best candidate for the job. Potential candidates for Commissioner appointments are likely to come from a small pool (leading practitioners or practitioners in a specialist area). They will usually have existing positions or practices, which are fulfilling and remunerative. They may need some persuasion to apply for a new post at the Commission, and will not wish to spend a lot of time and effort without any assurance of a successful result. Accordingly, the procedure must be as simple and convenient as possible.

  (3)  Conversely, it must not be too restrictive. There may be candidates of quality outside the obvious pool and the procedure should be designed to give them a proper chance. One of the rules I have found particularly obstructive in this respect is the requirement to judge applicants, solely on the material in the application and the interview, possibly supplemented by follow-up questions to the named referees. This is presumably intended to ensure a level playing field, but paradoxically it has the opposite result. The more prominent applicants will probably be known to us in any event. What is much more important is to get a rounded, objective picture of less well-known applicants. They may have good credentials on paper, and their chosen referees can usually be expected to speak well of them. However, that is a very one-sided picture, to which an interview can only add a snap-shot view. One must be able to consult more generally to give them a fair chance.

Sir Robert Carnwath, CVO

Chairman, The Law Commission

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