Memorandum from the Commissioner for Public
Appointments
INTRODUCTION
1. This Paper has been prepared in response
to a request by the Public Administration Select Committee at
its hearing on 6 December 2007 at which the Commissioner for Public
Appointments gave evidence. The Commissioner was asked by the
Committee to state her concerns about the proposals for Parliamentary
scrutiny of certain public appointments set out in the Green Paper,
"The Governance of Britain" and any suggestions for
changes in these proposals.
BACKGROUND
2. In July 2007 the Government published
a Green Paper entitled "The Governance of Britain" with
the stated aim of achieving a new constitutional settlement which
"entrusts Parliament and the people with more power".
In particular, the Green Paper proposes that the time is now right
to seek to involve Parliament in the appointment of key public
officials. The Green Paper notes that there are a number of positions
in which Parliament has a particularly strong interest because
the officeholder exercises statutory or other powers in relation
to protecting the public's rights and interests. Some of these
appointments are not subject to oversight by the Commissioner
for Public Appointments or other form of independent scrutiny.
In respect of such appointments it is suggested that there should
be a non-binding pre-appointment hearing by the relevant Select
Committee which would deal with the particular candidate's suitability
for the relevant role, his or her key priorities and the process
used in selection. In the light of the Report from the relevant
Committee, Ministers would decide whether to proceed with the
appointment.
3. In relation to market sensitive and certain
other appointments, including the Governor and the two Deputy
Governors of the Bank of England, the Chairman of the Financial
Services Authority, and some utility regulators, once the relevant
appointment has been approved, the relevant Select Committee will
be invited to convene a hearing with the nominee before he or
she takes up post. The aim overall of both these pre-appointment
and post-appointment hearings is to ensure greater accountability
than currently exists.
PARLIAMENTARY SCRUTINY
AND PUBLIC
APPOINTMENTS
4. In 1995, the first Committee on Standards
in Public Life (under the chairmanship of Lord Nolan) rejected
Parliamentary scrutiny of appointments in favour of setting up
the office of the independent Commissioner for Public Appointments
to regulate, monitor and report on appointment processes. In relation
to the question of perceived political bias, the Committee concluded
that except in very limited circumstances it was neither necessary
nor desirable to make political affiliation a criterion for appointment.
However it would be useful if a candidate were asked to declare
any significant political activity that might be considered to
be a matter of public record. This information would not be made
public unless the candidate was appointed. This would in turn
help to restore public confidence.
5. Currently there is no formal Parliamentary
scrutiny of the public appointments within the Commissioner's
remit. These are in the region of 10,000 appointments made by
Ministers to just over 1,000 public bodies in England and Wales.
Instead the Commissioner monitors compliance with her Code of
Practice in relation to these appointments by means of the use
of Independent Assessors who are engaged in all stages of the
selection process to ensure that there is independent scrutiny
throughout; by means of regular audits, publication of her Annual
Report and being herself subject to the scrutiny of the Public
Administration Select Committee.
6. In relation to political activity, all
candidates for appointment to positions within the Commissioner's
remit are asked to declare any significant political activity
which may be considered to be a matter for public record (candidates
are not required to divulge personal or private information such
as membership of political parties or voting preferences). This
information is not disclosed to the selection panel and is not
made public unless the candidate is appointed.
7. These measures are designed to ensure
that all public appointments within the remit of the Commissioner
are made on merit and that political activity plays no part in
the selection process.
PRE-APPOINTMENT
HEARINGS
8. Accountability to Parliament is an important
constitutional principle which the Commissioner fully supports.
She understands that there may be concern about lack of oversight
in relation to certain positions which involve the officeholder
exercising statutory or other powers, which may affect the public's
rights and interests, and suggests that those which have not been
subject to any form of scrutiny, whether by her or some other
independent body, are deserving particularly of further scrutiny.
9. However, the Commissioner does have concerns
about the introduction of non-binding pre-appointment hearings
by relevant Select Committees, some of which she has already articulated
when giving evidence to the Public Administration Select Committee
on 19 June and 6 December 2007. She also foresees practical and
other difficulties which ought to be taken into account in relation
to the further use of such hearings.
10. The Commissioner's main concerns in
relation to such hearings are set out below:
(i) Reduction of the pool of candidates
According to information given to the Commissioner
by recruitment consultants and others, and according to her own
experience, the Commissioner is concerned that candidates for
appointment may be dissuaded from applying for public appointments
if the appointment is subject to a public hearing by a Select
Committee. Some of the issues which might affect candidates' views
on whether to apply for appointment might include the perception
of potential reputational risk to the candidate or the candidate's
current employer, the effect on the candidate's current position
if, for perfectly acceptable reasons, the candidate is disinclined
to inform the current employer of the application for a public
appointment or if the act of so doing becomes public knowledge
and may have regulatory or share dealing consequences (for example
if the employer is listed on the Stock Exchange). Any reduction
in the pool of available candidates for public appointments may
run the risk of hampering efforts to widen the pool of candidates
for public appointments generally and in particular with a view
to increasing the diversity of candidates.
These concerns do not relate to the robustness
of candidates and their ability to stand up to public scrutiny.
The types of individuals who would be likely candidates for public
appointments, particularly those regulated by the Commissioner,
would be well used to appearing in public and dealing with the
type of examination proposed by the Select Committee. Nor would
the above concern necessarily be addressed by the Chairman of
the Select Committee specifying those confidential issues about
which questions should not be asked. For example, the very fact
that an individual had applied for a particular position might,
for perfectly proper reasons, need to be kept confidential until
the unconditional acceptance of the position had been confirmed.
(ii) Perceived politicisation of appointments
processes
An appointments process which includes a hearing
by a Select Committee may be seen to be politicised even though
questioning of any nominee for appointment is kept within predetermined
guidelines such as those relating to competence or qualifications.
In the case of processes regulated by the Commissioner, the aim
is to appoint on merit after an open and transparent process without
any suggestion of political bias (unless political representation
is part of the constitution of the body concerned). The asking
of questions about political activity, as occurred in the recent
hearing of the appointment of Sir Michael Scholar as the Chair
of the new independent Statistics Board, would not be permitted
as part of an appointments process regulated by the Commissioner.
Even if the purpose of the Select Committee hearing were to be
made clearer (as recommended below), the risk would remain that
the asking by politicians of questions about political activity
and other matters might be seen by the public as politicising
appointments processes overall, even though the questioning was
intended to establish independence and lack of political bias.
This would be an unfortunate consequence, given the efforts made
during the last 12 years, since the Report of the Nolan Committee,
in order to eliminate the perception of politicisation of public
appointments processes.
These concerns are supported by research conducted
by the Commissioner's office by MORI in February 2005, which did
not support the involvement of politicians in public appointments
processes.
In his evidence to the Public Administration
Select Committee on 6 December, the Right Honourable John McFall
MP noted that in the recent questioning of Sir Michael Scholar
by the Treasury Select Committee, Sir Michael Scholar had been
asked about his son who is the Chief of Staff at No.10 Downing
Street. He noted that nowhere in any press commentary after that
was there any mention of Sir Michael Scholar and his son and that
relationship, and that the questioning "put to bed"
the issue of politicisation. The fact that Sir Michael Scholar
was the father of Tom Scholar, the Prime Minister's Chief of Staff
was reported in the Financial Times on 24 July, the Committee
having found Sir Michael to be a suitable candidate, who demonstrated
his commitment to the independence, integrity and importance of
statistics.
(iii) The asking of inappropriate questions
There may be a risk that inappropriate questions
(such as those relating to a candidate's private life) which would
not be permitted in a selection interview might be asked. This
may be so even if the Select Committee has a strong chairman.
Mr McFall noted in his evidence to the Public Administration Select
Committee that these concerns may be dealt with by establishing
clear criteria for questioning before the hearing. He further
noted that when members of the Monetary Policy Committee came
before the Treasury Select Committee, the Committee was clear
in saying that it was interested in their independence and professional
competence. Later in his evidence, Mr McFall suggested that one
of the justifications for pre-appointment hearings was the demonstration
of the skills of the nominee and later in his evidence added that
a Select Committee would be trying to assess "whether the
nominee is of the requisite standard", making it clear that
it was important that "a Select Committee does not try to
ape a selection board". The Green Paper proposes that Select
Committee pre-appointment hearings would cover "issues such
as the candidate's suitability for the role, his or her key priorities,
and the process used in selection". A number of these issues
such as competence, skills and suitability for the role are typically
dealt with during selection processes. If independence is a criterion
for a position, this is also dealt with in the selection process.
The risk is, therefore, that the purpose of a hearing by a Select
Committee may become unclear. It is, therefore, essential that
the purpose of any such hearing should be clarified and made clear
to all concerned at the outset.
The Chairman of the Public Administration Select
Committee has suggested that pre-appointment hearings constitute
a compromise so that 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—thus giving the best of both worlds.
The Commissioner has concerns that this will lead to confusion
of purpose and ultimately may bring the selection process into
disrepute. This may be the position even if, as proposed by Mr
McFall in his evidence, a pre-appointment hearing should be seen
as the beginning of the accountability process, the selection
process having concluded. This is a fine distinction and the Commissioner
has concerns that this distinction may be or become eroded in
time, for example, by inappropriate or inconsistent questioning
by Select Committees and will have the unintended consequence
of eroding public confidence in appointment processes whether
or not they are regulated by the Commissioner.
(iv) The effect on timing of the appointments
process
The time taken to complete a public appointments
process may be extended if, for example, the appointment process
falls during periods when the House is not sitting or difficulties
are encountered in ensuring that all participants in the hearing
may attend on a given day at a given time. Mr McFall has also
publicly noted that appointments processes might need to be extended
in order to allow time for Ministers to reflect on the conclusions
reached by the relevant Select Committee. The hearing conducted
in relation to Sir Michael Scholar's appointment was conducted
in a timely fashion, although Sir Michael was unable to respond
to certain questions about the position to which he had been nominated
since these were premature. In this respect the Commissioner notes
that a post-appointment hearing held, say, within six months of
appointment, would offer a candidate and the relevant Select Committee
a better opportunity to have a meaningful discussion about the
particular appointment and the candidate's views on it or the
organisation to which the appointment relates. Timetabling issues
may also be addressed as suggested below, by clear rules in this
regard.
(v) The role of Ministerial accountability
The Committee on Standards in Public Life under
Lord Nolan stated that ultimate responsibility for appointments
should remain with Ministers. The principle of Ministerial responsibility
is a principle of the Commissioner's Code of Practice. Where the
public appointment is regulated by the Commissioner, the Minister
is usually offered a choice of two appointable candidates. Since
the views expressed by a Select Committee as a result of a pre-appointment
hearing would not be binding on the Minister, the Minister would
retain choice. However, if the Minister were to disagree with
the view of the relevant Select Committee, which has already occurred
in the past, there is a longer term risk that, if such instances
become a regular feature, the system overall will be brought into
disrepute and public trust in the appointments process eroded.
While there is an argument that confirmation of appointment following
a pre-appointment hearing may lend legitimacy to a candidate's
appointment and assist the candidate in the subsequent discharge
of his duties, it would be important for the Select Committee
concerned not to feel constrained in any way subsequently to criticise
the candidate's performance, having originally endorsed the candidate's
appointment. If a candidate were not to be confirmed by the Select
Committee but subsequently appointed by the Minister, then the
subsequent questioning of the appointee by the Select Committee
would no doubt be particularly rigorous. If a candidate were not
to be confirmed both by the relevant Select Committee and the
Minister, then the manner in which the appointments process would
be rerun would need to be clarified. In any event the appointments
process would be likely to be lengthened.
(vi) Effect on OCPA regulated processes
If pre-appointment hearings were to be required
in relation to appointments processes already regulated by the
Commissioner, the Commissioner is concerned that the current confusion
on the part of the public about the role of the Commissioner,
the extent of her remit and the coverage of her processes may
be worsened at a time when the Commissioner is seeking to be more
open and explicit about her role in dealings with both the public
and users of the process. She is also anxious to reduce perceived
bureaucracy and emphasis on "process" in the appointments
process within her remit. (She notes in this respect that Regional
Ministers are to be involved in certain regional appointments
in an advisory role which will complicate these processes further).
Importantly, the Commissioner would need to amend
her Code of Practice in order to take into account any pre-hearing
appointment process which does not fall within her remit. In particular,
she would need to make it clear in her Code of Practice that such
a pre-appointment hearing did not form part of a process regulated
by her; that such a hearing would not be subject to any form of
independent scrutiny (which is one of the Seven Principles which
underpins her Code of Practice); that she would have no jurisdiction
to hear any complaint from any member of the public concerning
the conduct of any such hearing; that, contrary to the provisions
in her Code, such a hearing may include questions about political
activity and that she would not investigate any complaints of
political bias in relation to the public appointments process
as a whole if instigated by reference to such questioning. Finally,
she would need to clarify what her role would be in the event
of a process regulated by her not resulting in an appointment
by reason of views expressed by a Select Committee prior to a
Minister's decision not to appoint a candidate otherwise deemed
appointable by the selection panel. She would also need to explain
what procedures would apply if more than one appointable candidate
had been identified (as is usually the case) before the Minister
was asked to make a final decision.
11. POST-APPOINTMENT
HEARINGS
As already indicated, the Commissioner supports
the principle of Parliamentary scrutiny and considers that all
public servants who have stewardship of public funds should be
accountable to Parliament for the manner in which they discharge
their duties in order to provide a democratic check on the discharge
of public functions. As noted above, the Commissioner suggests
that there may be a more meaningful debate between a Select Committee
and an appointee once the appointee has begun to discharge his
or her duties and is in a position to discuss strategy and plans
for the future of the public body in question from a more informed
basis. This form of post-appointment hearing would have the advantage
of avoiding the difficulties identified above in relation to hearings
held before the appointment has been confirmed. This type of scrutiny
already occurs in relation to certain appointments and Select
Committees already have the right to call for witnesses at any
time. However, the Commissioner suggests that there is scope for
making this process of post-appointment scrutiny more formal,
open and transparent—for example, by requiring that, if
requested, appointees should appear in front of the relevant Select
Committee within a certain period following appointment.
12. GENERAL OBSERVATIONS
As well as articulating her concerns about the
proposals contained in the Green Paper, the Commissioner has been
asked by the Public Administration Select Committee to suggest
any changes which she might propose in relation to the proposals.
Accordingly, a number of general observations follow.
(i) Practical considerations
If the proposals in the Green Paper for pre-appointment
hearings proceed, there are a number of practical considerations
which, in the Commissioner's view, should be taken into account,
namely:
— ensuring that Select Committees are fully
and accurately informed about the bodies within their remit;
— ensuring that Select Committees have
received accurate and up-to-date information about the particular
appointment which is to be the subject of the pre-appointment
hearing and that any issues relating to confidentiality of information
and data protection have been addressed;
— ensuring that Select Committees have
adequate time and administrative support in order to question
candidates for appointment in a proper fashion;
— ensuring that Select Committees behave
consistently generally. In this respect, Select Committees may
wish to consider preparing a separate Code of Practice which might
give guidance on the purpose of the pre-appointment hearing and
considerations to be borne in mind in relation to the formulation
of questions including the role of Parliamentary privilege;
— ensuring that the overriding principle
of appointment on merit is safeguarded unless the appointment
is expressly identified as being an exception to this principle;
and
— ensuring that the legal consequences
of introducing non-binding pre-appointment hearings into the appointments
processes for posts which may already be subject to a statutory
framework are considered and any legal implications addressed.
In order to ensure that public appointments processes
are not unduly extended, the Commissioner proposes that there
should be a period during which any pre-appointment hearing should
take place, failing which the approval of the appointment by the
Minister or otherwise may proceed. This would be particularly
important if the process were urgent or it was anticipated that
the process would be occurring during a period when Parliament
was not sitting. Any timetable may also need to take into account
any period of reflection by the Minister on the appointment required,
following the Select Committee's recommendations.
(iii) Monitoring and review of process
Although Select Committees have had the power
to scrutinise certain appointments since 2002, the formalisation
of pre-appointment hearings may be viewed as experimental in nature.
As suggested when she gave evidence to the Public Administration
Select Committee on 6 December, the Commissioner believes that
the manner of their implementation should concentrate on quality
rather than quantity in the first instance. This may, in any event,
be the case in practice, given the sequential expiry dates of
the fixed terms of key public appointments. In any event it would
be appropriate to set a period or periods of time within which
to review the effect of pre-appointment hearings. For example,
an attempt may be made to measure any reduction in the pool or
diversity of candidates, although in practice it will be extremely
difficult to identify those candidates who did not proceed with
an application for a public appointment at all and whose reason
was the need to attend a pre-appointment hearing. The outcome
of the process may offer a greater insight, for example, if there
are increasing numbers of candidates with public sector backgrounds
who are used to Parliamentary scrutiny.
(iv) Clarification of roles and purpose
As the Commissioner indicated in her evidence
to the Public Administration Select Committee, in her view it
is essential that the purpose of a pre-appointment hearing is
made clear at the outset of any appointments process. It would
also be helpful to indicate the likely areas of questioning, so
that candidates can make an informed decision before embarking
on a public appointment process whether or not regulated by the
Commissioner. Similarly, efforts should be made to ensure that
the Chairs of Select Committees understand the purpose of pre-appointment
hearings and control questioning accordingly.
(v) Processes regulated by the Commissioner
For the reasons articulated in this Paper, the
Commissioner would prefer that processes regulated by her should
not be subject to pre-appointment hearings. However, if a decision
is made by the Government that this will be the case, she will
need to amend her Code of Practice in the manner indicated above,
after appropriate consultation. Accordingly, the timetable for
introduction of pre-appointment hearings in relation to processes
within the Commissioner's remit should allow for this process.
It would be a breach of the Commissioner's Code if an appointment
process were to be commenced on the basis that there was to be
no pre-appointment hearing and then a pre-appointment hearing
were to be introduced later in the process. Accordingly, this
set of circumstances is to be avoided, if at all possible.
13. APPOINTMENT
ON MERIT
The Green Paper notes that public bodies at
arms' length from Ministers play an important role in public life.
The Commissioner welcomes this statement as well as the Green
Paper's stated intention to build on previous improvements in
public appointments processes. The principle of appointment on
merit after an open and transparent process should, in the Commissioner's
view, apply to all public appointments processes unless there
are exceptional reasons justifying an alternative process to be
adopted. Many Government Departments seek to apply the principles
and procedures set out in the Commissioner's Code to appointments
to bodies which currently do not fall within her remit. If pre-appointment
or post-appointment hearings by Select Committees lead to an improvement
in public appointments processes, then this would be a worthy
outcome. If, however, these changes lead to a reduction in the
pool and diversity of candidates, increasing the complexity of
the process and the perception of politicisation of appointments
processes, these would be unwelcome unintended consequences which
would run the risk of reversing much of the progress made during
the last 12 years. The Commissioner hopes that this will not be
the case but that the principle of appointment on merit after
an open and transparent process will in due course be made obligatory
for all public appointments processes, including those not within
her current remit, subject to there being an appropriate proportionate
regulatory regime and provision for exceptional arrangements where
an alternative process should be adopted. In any event, she welcomes
any measures which are designed to bolster public confidence in
public appointments processes.
December 2007
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