Examination of Witnesses (Questions 1-19)
RT HON
JOHN MCFALL
MP AND MS
JANET GAYMER
CBE
6 DECEMBER 2007
Q1 Chairman: Let me call the Committee
to order and welcome our witnesses this morning. It is very kind
of you to come along and see us. We wanted to ask you about the
proposal that we should have pre-appointment hearings. We asked
you, Janet, because obviously you are responsible for the integrity
of the public appointments process and, therefore, you will have
views about this and involvement in it. John, as Chairman of the
Treasury Committee and, I am delighted to say, a former member
of this Committee, we are very pleased to have you along because
your Committee has had some experience of having hearings of this
kind, so we wanted to draw upon the views and experiences of both
of you. Would both, or either, of you like to say something by
way of introduction?
Ms Gaymer: First
of all, thank you very much for inviting me back to talk about
this. It is an evolving subject, so thank you, I appreciate it.
We have moved on obviously since I was in front of you in June
because we have had the Green Paper containing various proposals
which I understand are still at a formative stage and subject
to consultation, so I think this is a very good time obviously
to have this hearing. Some of the queries which I raised when
I was last before you have to some extent been addressed in the
Green Paper and I think it might be quite helpful just to get
those out of the way so that we can focus on the issues that are
still outstanding. The Green Paper makes it very clear that what
we are looking at are positions in which Parliament has a particularly
strong interest because of the office-holder's exercise of statutory
or other powers in relation to public rights and interests, but
it does make the point that those are positions which are not
subject to oversight by me or some other form of independent scrutiny,
and I think that starting position is quite important in terms
of going down this road. The Paper also makes clear that, in the
context of language, we are talking now about pre-appointment
and post-appointment hearings, not confirmatory hearings, so I
have told myself that I must now not talk about confirmatory hearings,
I am talking about pre-appointment and post-appointment hearings,
and I think that is important because of the experience in the
States of those types of confirmatory hearings. The Paper also
makes clear that the pre-appointment hearing is not intended to
be binding, so the suggestion is that there is no right of veto
on the part of the select committee, which was certainly one of
my issues. I was not clear whether there was going to be a specific
right of veto, although of course select committees would expect
ministers to take into account what they have said, having interviewed
the candidate. I think it also makes it clear that the hearings
are going to cover the candidates' suitability for the role, their
key priorities and the process used in selection— we may
well come back to that— that the list to which these hearings
will apply is under review, and I suspect we will also talk about
that, and that post-appointment hearings are actually going to
be used for what are called "market-sensitive" and certain
other appointments, including some utility regulators, and I think
there are some issues there in terms of identifying that group.
For example, in my own case, I do regulate appointment processes
for Ofcom, but I do not regulate appointment processes for other
regulators and indeed that issue, I know, is under review at the
moment by the Cabinet Office which is looking at the list of the
appointments I regulate, so there are some shading issues there
that I think need to be looked at. Having said all that, unfortunately
I still have the concerns I articulated to you last time and they
are primarily four-fold: first, the concern about the pool of
candidates, whether this will put off potential candidates; secondly,
the issue about length of process, the concern that it may lengthen
the process, although I appreciate that in the case of Sir Michael
Scholar's hearing, that was very rapid in fact; thirdly, this
question of perceived politicisation of the process, the very
fact that a select committee is involved in some way because I
have concerns about the public's perception of public appointments
in that context, and I know Mr McFall has already said this, that
perception is everything in politics, and it is true of public
appointments as well, so that is an issue; and last, but not least,
is the concern (we had quite a talk about last time), this issue
of inappropriate questioning and potential legal consequences
thereof.
Q2 Chairman: That is a very crisp
introduction to the whole set of issues, so thank you very much
for that. John, you have experience of the Monetary Policy Committee
appointments and you have experience of the Statistics Board Chair
appointment. Listening to Janet and reflecting upon your own direct
experience of this so far, what do you make of it all?
John McFall: Well, I see this
as a welcome step for select committees in principle, Chairman,
in that it is the start of a process of continuing accountability.
Let us take the MPC[1]
appointments, as you mentioned. Indeed, our Committee has made
comment on the time-lag on appointments to the MPC and I would
suggest that, as a result of those continuing comments, the then
Chancellor in his statement in the summer recognised that and
made changes to the appointments process. We also came out with
a document at the time, The MPC Ten Years On on that, so
I think the issue of a pool of candidates is important to have.
I think you can have a confidential pool of candidates without
people being exposed to public glare because, if you are going
for the MPC and your name is made public, there are problems with
your present employment and maybe future employment because the
MPC appointments are three years only, although we have made a
comment on that and also the tenure. The length of process, Janet
has made a comment on that, but, when we found out about the appointment
of Sir Michael Scholar, I think we went into gear very quickly
and within a week or so we had the hearing for Sir Michael Scholar,
and I think that ties up with the perceived politicisation because
Sir Michael Scholar is the father of Tom Scholar who is the Chief
of Staff at Number 10 Downing Street. As Chairman, I specifically
asked the question of Sir Michael Scholar, did his son know that
he was in for this job and did he have any contact with him, and
Sir Michael was very clear and above board that the first the
son had heard about it was after the appointment process, so that
put to bed the issue of politicisation. Nowhere in any press commentary
after that was there any mention of Sir Michael Scholar and his
son and that relationship, so I think we dealt with that very
well. In terms of inappropriate questions, well, I think it is
up to the chairman to ensure that there are not inappropriate
questions. When members of the MPC come before us, we are very
clear in saying that we are interested in their independence and
professional competence and it is those criteria by which we judge
and, if you lay down the criteria by which you are questioning
individuals, then I think that deters the politicisation.
Q3 Chairman: Thank you very much for
that. Listening to you both, I think there are perhaps two different
things we need to think about: firstly, which sort of posts we
are talking about and what is the basis for those sorts of posts;
and, secondly, sort of conduct and process issues in relation
to that, and perhaps in our minds we could keep that clear. Could
I start with the first one because we have to get our heads round
this. Are you content, Janet, with the list of appointments as
given in the Government's Green Paper? Does that seem to be a
reasonable category of appointments?
Ms Gaymer: I am going to give
you two answers to this in quick succession. The list given in
the Green Paper, none of those is an OCPA-regulated[2]
appointment, so, consistent with my principle that, if there is
no process, then someone ought to be checking them out, that list
looks okay. It does not unfortunately remove some of the concerns
I have articulated about the effect on candidates, for example,
and I am very conscious that my own post is in that list, so I
am afraid it is a terrible lawyer's answer, it is a yes and no
answer. The logic is fine, but what will be the effect in practice?
Q4 Chairman: We had this discussion with
you back in June, but we can have it in a more concrete way now
because at least we have got a list, and it was all a bit sort
of ethereal earlier on, but is it your proposition that this process
should only apply to appointments which are not OCPA-regulated?
Ms Gaymer: Effectively, yes. If
there has been a properly regulated selection process, then I
have to ask the question: what is the point of the pre-appointment
hearing? I can see the relevance of the post-appointment hearing
because it is sensible when someone has taken up the post, they
have opened up the cupboards, they have looked inside, they have
checked themselves against their first impressions and then a
meaningful debate can take place with a select committee about
whether it was what they expected, what they want to do and so
on and so forth. My concern is this confusion, I think, that might
occur about whether the hearing before the select committee is
somehow some part of the selection process. Just to give you some
examples, if a post, which was OCPA-regulated, then came in front
of a select committee and that hearing was part of the selection
process, or seemed to be, I would have to be crystal clear in
my code of practice at the start of the exercise that that hearing
was going to take place, that I did not regulate any aspect of
it, that, if anyone had a complaint about the hearing, that was
not a matter for me to deal with and that what happened in that
hearing was fair game. Actually, just pausing there, the questions
put to Michael Scholar about political activity would not have
been permitted in a selection panel under the OCPA code of practice,
so you can start to see the sorts of dangers that arise in terms
of people's confusion about which is a regulated process and then
what the hearing is. Also, one general concern that I put to you
last time was that, if there has been a regulated selection process
and then there is a further hearing, the concern is that that
may then make people ask, "Well, what was wrong with the
previous selection process?" and in some way that may be
brought into disrepute overall.
Q5 Chairman: I do not think your
position is the Government's position though.
Ms Gaymer: That is what I want
to clarify today because I think it is important.
Q6 Chairman: If I look at what the
Government has said, it talks about positions in which Parliament
has a particularly strong interest because the office-holder exercises
statutory or other powers in relation to protecting the public's
rights and interests. Well, that is a wonderfully sort of ill-defined
description that these are important public posts, that is what
it says, in which Parliament has an interest. Then it says, "Some
of these appointments are not subject to oversight by the Commissioner
for Public Appointments", indicating that some will be, so
the Government are not saying that these appointments are only
going to be ones that are not OCPA-regulated, they are saying
that they are ones that are of great public interest in which
Parliament has a role, so in a sense you are not in step with
what the Government's position is, are you?
Ms Gaymer: I am seeking to clarify
what the Government's position is, quite frankly, which is the
purpose of consultation and, I think, this hearing because I want
to be crystal clear what the purpose of that hearing is, lest
it creates confusion in those who are regulated by my process
in the general round of things. It is worth just adding here also,
which confuses the picture still further, that there are processes
that are run by departments that are not regulated by OCPA, but
who seek to act in accordance with the OCPA code, and in fact
we have had some very recent examples of this. We were asked,
for example, to supply independent assessors for appointments
processes for police authorities and there were a huge number
of these. Now, we had no resources to do that, they were not within
our remit, the Home Office obviously wanted to follow the principles
of the code, wanted to have independent scrutiny as part of the
process and we said, "Sorry, not our job", so there
are a whole range of processes out there and people are trying
to do it right. They want to do it in accordance with the code,
it is not a formally regulated process and they try to sort of
create their own process and sometimes involve independent assessors,
so there is a sort of grey area there in the middle.
Q7 Chairman: Let me ask both you
and John, you have identified some of the problems with this process,
and we will come back to that, but what value does it add to the
process of being appointed to a public post to have Parliament
involved?
John McFall: If I can just say
from the parliamentary point of view, I think the value of pre-appointment
hearings is three-fold: first of all, it is in public and the
selection process was in private; it provides information regarding
the public accountability of that post-holder because that post-holder
is not accountable to a minister, but he or she is independent,
so there has to be an element of public accountability for that
individual; and it also demonstrates the skills of the nominee.
I consider also that it sets the agenda for subsequent select
committee scrutiny of post-holders when they take the post. I
mentioned the issue of Sir Michael Scholar and his son, but that
did not get any press comment at all and it was a fairly legitimate
question to put on the agenda because it could have set hares
racing afterwards with people saying, "Well, here's a select
committee that had an individual in front of them and they never
asked that question. It is the most blindingly obvious question
they can ask. This is incompetence", so what are we going
to do? On the record, Sir Michael answered and we moved on, the
caravan moved on.
Q8 Chairman: Janet is saying that
this was quite improper.
Ms Gaymer: No, I am not saying
it is improper, but I questioned its usefulness at that time.
Q9 Chairman: You said it would not
be permissible under—
Ms Gaymer: If it were part of
the selection process. That is why I am saying to you that I think
it is important to be crystal clear about what the purpose of
this hearing is. There is all the difference in the world between
a hearing which is tacked on to the end, so to speak, of a selection
process and forms part of it, although, admittedly, that is reduced
by the position that the decision is non-binding, and a hearing
which seeks, as I understand it from what John is saying, to say
to the individual, "Well, I want to see if you are really
an independent person, I want to hear what your vision for the
body is and I want to hear what your thoughts are about running
it". What was interesting, I thought, about the Michael Scholar
hearing was that, for example, there were questions about the
budget of the Statistics Board and Michael Scholar, who had only
been told the previous day that he was the nominee for the appointment,
said, "I can't answer that question. It's too soon. I've
done the reading round the post, but I can't answer that question.
All I can do is tell you what I've learnt preparing for the interview
and so on". It leads me to the view, and it is a personal
view, that it must be better, therefore, to see this person post-appointment
when they have gone through their induction, they have gone in,
they have looked at the place, they have checked whether their
first impressions were correct and then a meaningful discussion
can take place with the select committee, if that is the purpose
of the select committee hearing, which is why I keep coming back
to this question: what is the purpose of the hearing?
John McFall: The issue was, I
think, very different from the Treasury Select Committee's point
of view. We subsequently endorsed Sir Michael unanimously and
that is very important. We had the debate on the floor of the
House of Commons and anyone had the opportunity to come in and
speak their soul. Parliament itself endorsed Sir Michael and I
think that is a good process from Parliament. In terms of his
independence, and I think it was very important to demonstrate
his independence, Sir Michael was an eminent former civil servant,
Permanent Secretary in the Welsh Office, amongst other posts,
and he had spent many years in the Civil Service. He comes into
a job in statistics where statistics is a big, political issue.
On the floor of the House any day you will get debates about the
Government spinning the health statistics or the crime statistics
or whatever else, so we need an independent individual there.
We questioned his independence on that and I think the questioning
went along the lines of, "Sir Michael, you've been in the
Civil Service for many years. Will you adopt the culture of the
Civil Service?" He said that, when he retired, he took a
vow of silence and did not speak, unlike some other civil servants,
or write books or get money from it. We said, "Sir Michael,
your culture needs to change now. You have kept your mouth closed
for many years and that is admirable in your position, but, if
in statistics there was a need for you to say something, are you
going to speak up on this issue?" and he said he would speak
up, thereby demonstrating his independence as well and that brings
comfort to parliamentarians.
Q10 Chairman: Having to—and
I am trying to avoid saying, "run the gauntlet of"—appear
in front of a parliamentary committee for certain kinds of posts,
is that not the kind of test that someone applying for such a
post ought to be able to pass because that is very much part of
the job?
Ms Gaymer: That sounds like part
of the selection process and yes, it is.
Q11 Chairman: But you do not have
it as part of the selection process.
Ms Gaymer: Well, in that case
it must be absolutely clear about that, that it is not part of
the selection process, and what it is.
Q12 Chairman: But surely the compromise
has been arrived at which is that, as it were, a committee can
express a reservation if it is not happy with someone that it
sees, but it will not be formally part of the process, so it is
the best of both worlds.
Ms Gaymer: I think if that is
made crystal clear, that is a lot better than being silent about
it. Again I come back to this issue about perception. It is very
important that, whatever procedure is adopted, everyone is absolutely
open and transparent about what the hearing is, what it is doing,
what its purpose is and that it fulfils that purpose, and that
is my main concern.
Q13 Chairman: Perhaps I can just
give you one example which is that this Committee has asked in
the last few weeks that we might have some involvement with the
new appointment to the chairmanship of the Committee on Standards
in Public Life, which seemed to us to be a major public appointment
and it passes the Government's description of the kind of post
that should be involved here. Why would you feel it undesirable
for the Committee to be involved in a post of that kind in a way
that is described by the Government?
Ms Gaymer: Let me take the specific
example that you have mentioned. The suggestion that you be involved
in that appointment came when the appointment process was in mid-flow.
My job effectively is to ensure fair play in the appointments
process for public appointments and that is supported by all the
principles in my code, in particular, openness and transparency.
What that means in practice is that, when a process starts, the
candidates and those involved in it know what the rules of that
process are and you do not change the rules half-way through,
and, had suddenly a requirement for a pre-appointment hearing
been introduced into that process, that would, therefore, have
been a breach of my code, as it currently stands, which is why
I think it would have been a bad idea with the current appointment,
so that is a question of timing. Just assuming for one moment
that this proposal is put in place, that there is a proposal that
there should be pre-appointment hearings for OCPA-regulated processes
or some of them, the first thing I would do would be to amend
my code of practice and I would deal with the sort of practical
issues I have already mentioned to you, so I would want to be
clear with candidates at the very beginning of the process that
there may be a pre-appointment hearing at the end and that that
hearing is not a process regulated by me, so I cannot hear complaints
relating to it, so I butt out, so to speak, at the point of the
selection panel before it goes through to the select committee.
I would need to explain to candidates in some way, or at least
those conducting the process would need to explain to candidates,
how independent scrutiny is being dealt with where there is a
pre-appointment hearing by a select committee, in other words,
where the independent scrutiny is in that process because there
would have been an independent assessor involved all the way through
to the point of the select committee. Overall, I would need to
be crystal clear about what the role of the selection panel itself
was at that particular point in the process before it goes through
to the pre-appointment hearing. Now, all these things that I have
described can be done. I can put those into my code of practice
and so on and so forth, so it is doable in that sense. All I am
really saying to you is that, if you do go down that road and
the Government does go down that road so that some OCPA-regulated
processes are subject to pre-appointment hearings, it is very,
very important that all these other issues are also addressed
at the same time.
Q14 Chairman: It is a bolt-on bit
for certain public appointments. That is what it is. In the example
that I gave to you, my understanding was that the person who was
going to be appointed to this post was very happy to engage in
a pre-appointment hearing, so the fact that it was not contained
in the OCPA rules if it was thought to be a good thing, if the
candidate was very happy about it and if it added some value to
the process, why on earth would we not do it?
Ms Gaymer: Well, unfortunately
sometimes these questions are asked at the time of the interview.
The selection panel would say to a candidate in the final group,
"Would you be happy to go in front of a select committee
for a pre-appointment hearing?" At that time in the selection
process, candidates are unlikely to say no. They are in a situation
where it is extremely difficult if they are being interviewed
for a job, whereas it is important that at the beginning of the
process everyone knows what is going to happen and so on and so
forth. Otherwise, you may find yourself in a situation where you
do not have people who want to do it, but who go all the way through
the process and then decide, "I'm not sure I fancy this",
and then withdraw at the last stage, and you find that you have
not quite got the pool and range of candidates perhaps you hoped
you had.
Q15 Chairman: I sense, John, that
you are not terribly taken with this argument.
John McFall: No. Mention was made
earlier about the Green Paper and I think the Green Paper is just
a start and I think Parliament needs to get more involved, whether
we start discussing that at the Liaison Committee or individual
select committees discuss it themselves. Frankly, if anyone who
is up for an independent post cannot defend himself or herself
in public, then I do not think they should be getting the post
in the first place, so a pre-appointment hearing should be a cakewalk
for anyone in a position like that. Also, I think that coming
before a select committee strengthens the individual. I mentioned
Sir Michael, the father of Tom Scholar, the Chief of Staff, President
of St John's College, Oxford, so he was going to do the job in
a three-day week, an ex-civil servant, so there was a bunch of
issues which the press could get their teeth into and say the
Select Committee has not done, but there has not been a whimper
since Sir Michael has been to our Committee and it has strengthened
his position.
Q16 Chairman: This Committee went
to the United States recently to look at a number of things, including
this issue, and of course we discovered that there are difficulties
with the way in which confirmation hearings happen in the United
States and people are very critical about aspects of them, but
we had an interesting meeting with a group of people who had been
through this process, a number of different roles in life, and
what was striking was that one of them said to us, "But it
makes a big difference that we are not just a creature of the
Administration, that in a sense we are approved by the American
people because we have been approved by the Senate", so there
is an argument, and I think John is really saying this, that there
is this added dimension to the post which comes from having been
through that kind of process at the end. Do you not accept that?
Ms Gaymer: I said this in June,
that I can see the argument for a democratic check and I am not
arguing with that. All I am saying is that I think you need to
be very clear what you are doing, when you are doing it and what
the ground rules are. Just in answer to John's point about these
people should not be there if they cannot cope with this, I agree
with you, but basically, these will not be shrinking violets,
and I said this to you in June. What worries me is not that, but
that there will be some people where, because of their particular
personal circumstances, having a pre-appointment hearing will
cause difficulties, personal difficulties.
Q17 Chairman: I am still trying to
get to the core of your position because I thought you started
off by saying that you were not happy about OCPA-regulated posts
falling under this new arrangement.
Ms Gaymer: I would prefer they
did not, yes.
Q18 Chairman: But I thought now you
were saying that, as long as there was clarity about it—
Ms Gaymer: That is my secondary
position!
Q19 Chairman: So you have a primary
position and a secondary position?
Ms Gaymer: Yes. My first position
is that, and let me crystal clear about this, I would prefer it
if OCPA-regulated processes were not subject to pre-appointment
hearings for all the reasons I have articulated to you before
and some of them again this morning. If, however, it is government
policy, and I am told that they will be subject or some of them
will be subject to pre-appointment hearings, I am giving advance
notice that I am going to have to make some changes to the OCPA-regulated
process and I will continue to reiterate the concerns that I have
already reiterated now three times, I think, in front of you about
this issue.
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