Examination of Witnesses (Questions 60-79)
RT HON
JOHN MCFALL
MP AND MS
JANET GAYMER
CBE
6 DECEMBER 2007
Q60 Mr Burrowes: Perhaps to use the
words of our esteemed Chairman here, is there not a fundamental
concern that, in terms of any major appointments, the partisan
character in select committees will always try to further its
collegiate character? Have you found that?
John McFall: No, I have not found
that. Almost every report that the Treasury Committee has put
out since 2001 since I started chairing it has been unanimous,
so we look at it not in any partisan way, but we spend a lot of
time, when we come to our reports, negotiating them and refining
them, as you know yourselves as a committee, but putting all the
issues that really matter. There is one report before us at the
moment which is extremely crucial and that is the issue of financial
stability following the Northern Rock situation. Now, as Chairman,
I want to ensure that we get proposals there which are unanimous,
otherwise, they are of little value, so I think it is the responsibility
of a chairman to work with his or her committee members to ensure
that. I do not see that partisan issue, if that is what you mean.
Q61 Mr Burrowes: We are wonderfully
collegiate on this Committee, but when there is the character
in terms of an appointment process, particularly a high-profile
appointment, it does generate partisanship in terms of the questioning
which is going to be hard to control from the Chair and could
well lead, particularly if there is a lack of teeth at the end
of the process in terms of any binding recommendations on the
Government, to more questions than answers.
John McFall: Well, people on the
Committee come from different angles, of course they will. When
we have a hearing on a particular subject, I am familiar with
the personalities of my members and I know where somebody will
come from in a different area, and I allow them that opportunity.
Let me give you an example. When the Chancellor came before us,
we had one member of our Committee, David Ruffley from Bury St
Edmunds, and he loved, above anything, being a terrier to the
Chancellor and every time interrupting him and making his life
as miserable as possible. As Chairman, did I allow David Ruffley
to get on with it? Of course, because that is a democratic issue.
Did Gordon Brown, when he was sitting here, have as good a time
as I am having this morning? No, he did not have, but that is
part of the democratic process.
Q62 Mr Burrowes: But it is wholly
different if we have Janet Gaymer before us as part of the pre-appointment
process and, if there are any partisan points that may come in,
that may well lead to questions being raised about the confidence
in the particular appointment which cannot be easily answered.
I will just bring in Janet here because the Committee on Standards
in Public Life have raised this issue in terms of concerns and
caution about having a direct involvement in the process and I
am not sure whether you share their concerns.
Ms Gaymer: Well, this is this
issue about perceived politicisation. One of my major concerns
about public appointments is that the public do not have a clear
understanding about public appointments, public appointment processes,
who does what and so on and so forth. Indeed, we did some research
in my office in 2003 through MORI and one of the issues that came
up in the course of that research was a perception on the part
of the public that, as soon as politicians were involved in an
appointments process, it is almost a direct step to a perception
of politicisation even to the point where the appointment itself
is made by the minister, so that is a very, very difficult area
indeed, it seems to me, and clearly the further you involve a
political influence of whatever kind in the process the more you
run that risk. I was just going to say, listening particularly
to the last few exchanges, what struck me is that what we are
talking about is actually the distinction between selection and
accountability and where selection stops and accountability starts.
What I am hearing from John McFall is that he sees the role of
a select committee as the beginning of the accountability process,
the selection process having concluded. Am I right?
John McFall: Yes, I made that
point.
Ms Gaymer: I thought I would vocalise
that because I think it is quite helpful in terms of trying to
work out what the purpose is.
John McFall: If you have any concerns
yourselves, one suggestion I have is that you, if time permits
and it is possible, invite Sir Michael to the Committee to ask
for his views and look at the pre-appointment hearing.
Chairman: That is a useful suggestion.
David's quotation of my talking to the Committee on Standards
in Public Life in the mid-1990s, and one has to be careful what
one says, was referring to the prospect of if we went to real
confirmation hearings and then it was a warning about that, so
it is a million miles away from what we are discussing here, I
think.
Mr Burrowes: The Committee on Standards
in Public Life are keen to use it.
Chairman: Yes, I noticed that they have
quoted it.
Q63 Mr Burrowes: Just to clarify
one point, Janet, you said that you may be more open to select
committee involvement in appointments which have not been subject
to a clear system of merit-based appraisal, where those appointments
do not have a transparent process, so as far as those people who
are appointed without a transparent process are concerned, it
seems to me there has to be an argument for some sort of confirmation.
Can you give details of those particular appointments that do
not have merit-based appraisals and do not have that transparency
that could merit the appointment?
Ms Gaymer: Well, this was the
point I was making earlier. It is actually a distinction between
OCPA-regulated processes and processes which are not OCPA-regulated
because a lot of the appointments that are on the list in the
Green Paper did follow a process and in fact the process in many
cases tried to follow an OCPA process, but they were not OCPA-regulated
processes, and that is the distinction.
Q64 Chairman: I am conscious, John,
that you have to get away. Unless you have anything else to say
to us, and you have been very, very helpful, I would be very happy
for you to leave, but we will keep Janet for a few more minutes,
if we may. Is there anything else that you think we ought to know
before you go?
John McFall: I think the advice
I have got for Janet is to relax and discuss this with the politicians
and you can get a good answer!
Ms Gaymer: I do not think regulators
do relaxation!
Q65 David Heyes: I think a lot of
the ground I wanted to cover we went through in some detail when
you were here in June and there is little point in repeating that.
Just going back a few moments, this issue of recognising that
there is a movement from the recruitment process into a testing
of accountability process, I thought that came as an insight to
you. Am I making too much of this?
Ms Gaymer: Not an insight as such
but, listening to the exchange this morning, I have been banging
on about if you are going to have these pre-appointment hearings
you need to be crystal clear what their purpose is. I think what
has happened this morning is the definition of what that purpose
is has started to evolve, I will put it no higher than that.
Q66 David Heyes: Can I press you
a bit on some of the things you were saying earlier. You mentioned
conversations you had with recruitment consultants and they, to
some extent, informed your view about the fear of people being
put off because of personal scrutiny. Was that formalised in any
way? Have you got documentation on that?
Ms Gaymer: No, purely anecdotal.
I have regular meetings with recruitment consultants, it is something
that I instituted when I became Commissioner and I see them on
a fairly regular basis. When I knew that this proposal was being
made, I asked them, "What is your view about this, do you
think it will have an effect on candidates applying?" and
they said they thought it would.
Q67 David Heyes: What was the question
you put to them? What was the context that you described that
you were seeking a view on?
Ms Gaymer: The proposal, the discussion
about pre-appointment hearings that had happened in the summer.
Q68 David Heyes: Was it clear to
them from you that here we were talking about a very small number
of very high level posts, that you would have an expectation of
people who were skilled in operating in a political environment,
for instance?
Ms Gaymer: Some people were not.
I think one of their concerns was where you are trying to attract
someone from the private sector into the public sector, indeed
I have done it myself so I know the thought process that goes
on, you are moving into a completely different environment and
obviously you will do research and so on and so forth but it is
going to inform your view. If you are looking at a range of opportunities,
if you are looking at a range of choices and you are going to
make a career move and you are saying to yourself, "Okay,
private sector, private sector, public sector, public sector,
or whatever" it is going to inform your view, I can see that.
Q69 David Heyes: I think despite
your continuing misgivings about the direction we are going in,
you said you would be pragmatic. You recognise you have to go
with it.
Ms Gaymer: I am a pragmatist,
yes.
Q70 David Heyes: You have to go with
it. I think I heard you say, just as I came into the meeting,
in recognition of that you would need to make some changes to
your regulatory code.
Ms Gaymer: Yes.
Q71 David Heyes: Can you give us
an idea of what that might involve? Perhaps, firstly, why is that
necessary and then what might it be?
Ms Gaymer: One of my principles
is openness and transparency. I do not want anyone to go into
an OCPA regulated process and be taken by surprise and be exposed
to something that was not obvious at the beginning. One of the
first things I would have to do, if the appointment was an appointment
which might be subject or would be subject to a pre-appointment
hearing, would be to make that clear at the very beginning of
the process. In my own case, had I known that the appointment
would be subject to a pre-appointment process I would have decided
at the very beginning of the process whether it was appropriate
for me to continue with the application. That is very, very important,
to make that clear at the beginning and indeed, therefore, to
explain what the purpose of the hearing is. Again, that would
be relevant. I would need to make it clear that I would have no
jurisdiction to investigate any complaint from a candidate arising
from a pre-appointment hearing because my jurisdiction does not
run to this kind of environment, so that is clear. I would need
to explain to candidates, or make sure that it is explained to
them, the extent of independent scrutiny in the process, namely
that that independent scrutiny, which is also one of my principles,
would effectively end at the selection panel stage of the process
because then there would be a pre-appointment hearing afterwards.
I would also have to be crystal clear, which is why these kinds
of sessions are so helpful, about where the selection process
starts, and this process of accountability starts because I think
candidates deserve to know that. Then it is up to them to make
up their own minds how they deal with that. Those kinds of issues,
I have started to churn them around, having had the Green Paper,
but it is those kinds of issues.
Q72 David Heyes: Before I give it
back to the Chairman, what you have described I think might serve
to put people off, would that not be a concern for you?
Ms Gaymer: I am in the business
of openness and transparency, I am not prepared to hide anything.
If there is a process people need to know what it is, what they
are expected to achieve, what the criteria are, what they need
to achieve to get appointment on merit and that is what I am there
for.
Q73 Mr Prentice: I am interested
in what you said a few moments ago about people not trusting politicians
to make appointments. The Green Paper that we have been talking
about, The Governance of Britain, talks about regional
ministers advising the Secretary of State for Business Enterprise
and Regulatory Reform on the appointment of regional development
chairs and boards. One of the big concerns that we have had for
years and years is that there is a regional tier of quangos which
are not democratically accountable. So there would not be any
problem about involving the regional ministers that have now been
appointed in the appointment of the Regional Development Agency
chairs, would there?
Ms Gaymer: I am very pleased that
you have raised that because we have already encountered problems
in terms of clarifying the role of regional ministers in these
processes. You will know that I have sent out a consultation paper—
Mr Prentice: I have it here.
Ms Gaymer: —on the issue
of ministerial involvement to try and get to the bottom of some
of these issues and to be clear at the beginning about how they
should be handled ahead of time. For example, we have had a case
where a regional minister in the middle of the process wanted
to add an extra criterion to the selection of candidates and we
had to say, "Sorry, don't do that, you have to set out the
criteria at the beginning, it is not appropriate suddenly to change
the rules of the game ...", if I can put it that way, use
that allusion again, "... half way through the process".
Q74 Mr Prentice: What if that had
been done at the beginning though?
Ms Gaymer: Fine, at the beginning.
The aim of the consultation is to sit down and say, "Okay,
we have got a Green Paper which says regional ministers should
have an advisory role, completely understandable given their role,
greater connection to the regions but how should that role be
exercised in an open way so that we can show it is not `interference',
it is being involved in the process in an advisory capacity but
the minister at the end of the day makes the decision".
Q75 Mr Prentice: Yes, so they are
all just process issues then.
Ms Gaymer: They are process issues,
yes.
Q76 Mr Prentice: On something completely
different, why is it that you are responsible for Ofcom but not
the other utilities? It seems very complicated to me.
Ms Gaymer: This is something that
I have mentioned, and I know my predecessor has mentioned before
you in the past. My remit depends primarily upon the classification
of the body itself. That classification is done in the Cabinet
Office and we are informed whether the body falls within the classification
or does not. I do not know, quite frankly, why I am responsible
for Ofcom and not for other similar utility regulators. I do know
that at the moment the Cabinet Office is reviewing the list and
is indeed looking at that particular area, for example, energy
and water, should I be responsible for energy and water or should
I not?
Q77 Mr Prentice: Do you know the
criteria that they are using?
Ms Gaymer: Only very broadly in
terms of classification of whether it is an NDPB,[5]
advisory, executive and so on and so forth. We do not get involved
in the classification ourselves. Quite frankly, what struck me
when I first became Commissioner, and I must admit it has become
stronger over the months, was that if you accept that appointment
on merit after an open and transparent process is a good thing
for public appointments then why does that principle not apply
to all public appointments and you only exempt from that list
appointments that have specific issues about them which you may
wish to say, "Sorry, that is not right for that group".
At the moment what we have is an opt-in system as opposed to an
opt-out system and I think it is one of the reasons why the whole
area of public appointments is such a mystery to a large part
of the public community out there.
Q78 Mr Prentice: Yes, because one of
the groups and a growing group that has opted out or been opted
out are the NHS foundation trusts.
Ms Gaymer: Yes, absolutely.
Q79 Mr Prentice: The Government's
intention is to have every hospital trust a foundation trust by
the end of next year, I think.
Ms Gaymer: Yes.
5 Non-departmental Public Body Back
| 
