Memorandum by the Law Commission (PAP
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 lawdecisions of the higher
courtsand 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
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
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
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
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