Examination of Witnesses (Questions 20-39)
RT HON
JOHN MCFALL
MP AND MS
JANET GAYMER
CBE
6 DECEMBER 2007
Q20 Mr Liddell-Grainger: Janet, if
you were in a position now where you were going to start again,
would you be prepared to come in front of a select committee to
be questioned?
Ms Gaymer: I have asked myself
this question, particularly when I saw my post on the list, and,
in the particular circumstances I was in at the time when my post
was advertised, I do not think I could have applied for the post,
no.
Q21 Mr Liddell-Grainger: I think
that is very interesting because I think that shows you are a
wimp and I think you should—
Ms Gaymer: Well, I would like
to defend myself and explain why.
Q22 Mr Liddell-Grainger: All of us
here have scrutiny. If I want to get at John or I disagree with
John, I can either stand up in the House and ask him to give way
or I can get him in the lobbies and say, "John, I think that
was a load of ... ", and the same goes with Tony and everyone
in here. I do not see why, regardless of what you say, you should
not be open to scrutiny by the democratically elected people of
this country.
Ms Gaymer: Post-appointment, I
agree, but can I just explain to you why I would not have applied
because I think it is important to understand because it puts
into context some of these discussions. At the time when my post
was advertised, I was the Chair of an international law firm.
In that job, I was the guardian of probity and, more importantly,
the face of the firm, so I was the guardian of the firm's reputation.
If I had come in front of a select committee at the time when
I was still Chair of my law firm, and in public, I would have
had to ask myself the question, "If there had been an adverse
reflection on my reputation, would it have affected my firm's
reputation?" and I have to say, on reflection, I think, bearing
in mind the responsibilities to my partners and my firm and the
job that I was doing, I would not have taken that risk.
Chairman: That is a good answer, Ian,
is it not?
Q23 Mr Liddell-Grainger: I think
it is a cop-out. I think it is a complete cop-out. I am sorry,
I think that is a terrible answer and I will tell you why.
Ms Gaymer: That is the truth.
Q24 Mr Liddell-Grainger: We all come
from various sectors, business or whatever, and our reputation
is on the line, as anyone else's is on the line. We want to know
that the person, you or any other person, that is being appointed
is of the highest level. Now, if we cannot ask you about your
background, and you have had, I think it is, 30 years' experience
in the private and public sector which is an enormous time to
be involved, why should we not ask you questions? If there is
a certain area which you find it difficult to answer, I suspect
there is a way, a mechanism where you could say, rather like Commander
Yates of the Yard, except he leaked before we got it, "There
are areas where we cannot talk about that", and that is fine,
but do not just say, "I'm sorry, we can't do it". I
think that is wrong, is it not?
Ms Gaymer: I can only tell you
it from my perspective at the time that I was contemplating this
job. The added reason is one of confidentiality, but I think the
most important one was this issue of reflection on the firm.
Q25 Mr Liddell-Grainger: There are
certain things which are confidential, we understand that. The
Government is going down this route. Are you going to consider
your position?
Ms Gaymer: In what way?
Q26 Mr Liddell-Grainger: Do you think
you are now so out of step with what the Government requires that
maybe the time has come to look at what you want to do?
Ms Gaymer: I hope that I am contributing
to an informed debate about this issue, which I think is a very,
very important issue. I do believe in the democratic check and
I do believe that those occupying public office should be prepared
to answer for themselves and be subject to scrutiny, so I am not
quarrelling with any of that. All I am saying is that, taking
into account what I have experienced so far of the public appointments
process, I am sharing with you what I think might be issues which
should be addressed, and I hope that my contribution is received
in that way.
Q27 Mr Liddell-Grainger: If that
is the case, why do you not prepare a paper for this Committee
to say what your concerns are and where you would change it in
government and we will talk to the Government about it? Is that
not open to scrutiny?
Ms Gaymer: I would be happy to.[3]
Mr Liddell-Grainger: It is just a thought.
I do not know. I am just sort of suggesting.
Q28 Chairman: Have these problems
surfaced, John, when you have been doing the MPC?
John McFall: Let me try and help
Janet, and hopefully she feels she can apply for any other post
that comes up. The twin criteria are independence and professional
competence, it is on those issues and only on those issues, and
the example is the MPC that you have mentioned, that we ask candidates.
We establish the criteria beforehand and when witnesses come before
us, as, for example, the major investment banks came before the
Treasury Select Committee this week, they sent us a letter, saying
that there were certain areas that they would not be able to talk
about, so before the meeting I brought that to the attention of
my colleagues in private and, if any of them had been foolish
enough to overstep the line, as Chairman, I would have said, "Look,
we have agreed this", and none of them did. The rules are
established beforehand and, therefore, we eliminate the issue
of inappropriate questions. If Janet felt that her position with
the law firm was threatened in certain areas, I am sure a letter
to the Committee, discussion with the clerks and discussion with
the members would ensure that that was no longer the case. Is
she independent? That is nothing to do with the law firm. Does
she have professional competence? That is very important and we
can go over that with Janet.
Q29 Chairman: Is that not the answer?
Ms Gaymer: I do not think it would
have addressed the confidentiality issue I also had at the time,
I have to say.
John McFall: Yes, but the investment
banks that came before us this week specifically wrote to us about
issues of confidentiality which they did not want to be questioned
on and they were not questioned on them.
Q30 Mr Prentice: I am still not clear
in my own mind what the questions were that were put to Sir Michael
Scholar that you thought were too political.
Ms Gaymer: Well, the position
in relation to an OCPA-regulated process, and this goes right
back to Nolan, is that the selection panel does not ask questions
about political activity. What happens is that a form is filled
in by candidates and they will set out their political activity.
That is detached and it is not shared with the selection panel,
so they do not have that in front of them. The aim of that is
to ensure that, at the moment when the selection is made, it is
not tainted by any awareness of political activity or otherwise.
It is a basic Nolan requirement, that there should be no perception
of political affiliation forming part of the selection decision.
Q31 Mr Prentice: It sounds like the
code should be amended if the object of the exercise is to test
the independence of the individual concerned.
Ms Gaymer: But that question would
be asked by reference to the criteria of the post. If a criterion
of the post was independence, then clearly relevant questions
would be asked. There are some appointments, and in fact the Committee
on Standards in Public Life is one of them, where the members
of the body itself are drawn from political parties. They are
exceptions, but in fact the majority of appointments are not,
but they are appointments made against criteria which are set
at the beginning and those are the criteria that are used for
the purpose of the questioning.
John McFall: I think we have to
remind ourselves here of where we started this process in 1995
with the Nolan process. It was because it was perceived that there
were too many appointments by the Government of the day of supporters
of their cause and, therefore, we are going down that road of
ensuring that there is an independence, so I think a question
about political affiliation is very important. Can I say about
Sir Michael, he was unperturbed by the questions and he was quite
jolly after we had had the discussion with him, so we have made
people feel better when they came before us, Chairman, rather
than worse.
Q32 Chairman: Is that not a good
point, Janet, that, if you roll the clock back, as John has just
done, to where we came in with all of this, it was to stop patronage
and it was to secure robust independence in these posts, so an
activity like a pre-appointment hearing will contribute to that
objective, will it not, rather than diminish it?
Ms Gaymer: Provided that the actual
act of selecting the individual has been free from political bias,
yes.
Q33 Mr Liddell-Grainger: This is
surreal. If there was a problem with political patronage, and
in this room there are four members of the Labour Party and two
members of the Conservative Party, if we thought for a second,
David and I, that this was a stitch-up to try and get somebody
in, we would be furious. Tony's neck would be on the line because
it had been caught and it would appear in The Daily Record—
John McFall: The Daily Mail!
Q34 Mr Liddell-Grainger: Even better!
You are going upmarket already, John! It should be us who make
that decision. We can spot political interference, you know we
can, that is our job. Why have you got this sort of phobic thing
of not allowing this to happen?
Ms Gaymer: I go back to this point
of establishing the purpose of the hearing, whether this is a
selection process or not. For the selection panel, in the decision
to select, the final individual should be free from any perception
of political bias before the start. Now, the hearing may be doing
something completely different and in fact I think, from what
I am hearing, that it is, but then I am saying that, if it is
doing something completely different, you need to be very clear
about that. That is all I am saying.
Q35 Mr Liddell-Grainger: John has
made the point very clearly that he sees nothing wrong with it
and I cannot see anything wrong with it, but John has actually
done it, he is the proof of the pudding, are you not, John, and
you have said quite categorically that there have been no problems?
John McFall: I do not know about
the pudding! I refer to a speech I made to the Constitution Unit
Conference on Thursday 18 October and I covered the point, I think,
that Janet is making. I said that, in such circumstances, it is
important that a select committee does not try to ape a selection
board. Select committees do not know who the other candidates
for the post were, so a select committee is not reaching a decision
as to whether the nominee is the best candidate. That would be
impossible without knowing more about the other candidates. Rather,
a committee is trying to assess whether the nominee is of the
requisite standard.
Q36 Mr Liddell-Grainger: One of the
points you made, Janet, is over the legal consequences. Now, you
made the point of whether the level of intrusion through questioning
of a person's personal life might impact on the European Convention
on Human Rights. Now, to me, that is again a complete cop-out
because, if a person puts themselves up, I am sorry, but we get
people in front of select committees and we do not expect them
to go running off to Strasbourg, saying, "They've infringed
my human rights because they've asked me some intrusive questions".
That is the job of a select committee. Now, why do you think that
somebody is going to be so terribly offended that we are going
to have a two-year court battle in Europe?
Ms Gaymer: I think the issue here
is who makes the final decision and I think this problem needs
looking at a little more deeply, the relationship between the
select committee and the minister who makes the final decision.
There are two possible claims. There is the claim for judicial
review of the minister's decision and there is the possibility
of a claim in front of an employment tribunal. Now, I think there
are different considerations in each type of claim, but at the
end of the day both claims will focus on who made the final decision
and what was taken into account in reaching that decision, so
the linkage between what the select committee says and then what
the minister does may be quite important.
Q37 Mr Liddell-Grainger: The final
decision is for the minister, and in America the final decision
is the presidential one, so it is ultimately for the minister,
but surely the minister may turn round and say, "Under the
chairmanship of John", or Tony, "the Committee has looked
at it. I accept", or "I don't accept".
Ms Gaymer: I am sorry, I am now
looking at it through almost a quasi-legal lens. That is true
obviously, the minister does make the final decision, but, if
that decision were to be challenged, then questions arise as to
what sort of considerations went into the decision and also indeed
what legal system would apply to it, and that is where European
law would come in.
Mr Liddell-Grainger: As far as I can
see, it would be a jolly good thing because the sooner we get
to the bottom of some of these things that are going on.
Q38 Mr Prentice: On this very point,
at the beginning you talked about inappropriate questioning and
you said that legal issues may arise. Given that we are covered
by absolute privilege here, what kind of legal issues would arise?
Ms Gaymer: Let me say straightaway,
I am not here in my capacity as a lawyer and I am certainly not
giving legal advice. All I can give you is an informed view from
a rather unusual vantage point, I suppose.
Q39 Mr Prentice: It would be weird,
would it not, if legal proceedings were initiated based on what
was said here where we are all covered by absolute privilege and
it cannot be challenged in the courts?
Ms Gaymer: I may be wrong about
this, I am not an expert on parliamentary privilege, so there
is no point in my trying to give you a detailed answer, but the
only thing I do know is that it is a very arcane area of the law
and it would be a very brave person who said that they knew the
answer one way or the other, so I am just copping out on that
one.
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