To be published as HC 1230-i

House of COMMONS



Liaison Committee

Scrutiny of public appointments by select committees

Thursday 16 June 2011

Lord Adonis, Akash Paun, Professor Robert Hazell CBE and Peter Waller

RT HON Francis Maude MP

Evidence heard in Public Questions 1 - 89



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Oral Evidence

Taken before the Liaison Committee

on Thursday 16 June 2011

Members present:

Sir Alan Beith (Chair)

Dame Anne Begg

Mr Clive Betts

Mr William Cash

David T. C. Davies

Mrs Louise Ellman

Mr Bernard Jenkin

Miss Anne McIntosh

Andrew Miller

Mr Robert Syms

John Thurso

Mr Andrew Tyrie

Keith Vaz

Mr John Whittingdale


Examination of Witnesses

Witnesses: Lord Adonis and Akash Paun, Institute for Government, and Professor Robert Hazell CBE and Peter Waller, Constitution Unit, UCL, gave evidence.

Q1 Chair: Welcome to our witnesses. In order to try to keep the maximum number of people here before the House starts sitting later this morning, we have started a little early. We are very grateful to you for coming in. We are apologetic to Robert Hazell because he didn’t have warning of that, but I am sure that we can get him to contribute later.

All of you have been involved in doing work on the issue of appointment hearings, at which we are currently lo oking. In the course of that , have you formed a view of what we are really supposed to be doing in this process? Are we, as I think C ommittees would think, looking at candidates recommended by Ministers on the basis that there might be some circumstances in which we would think that they were not a suitable candidate for the job and we would recommend that they were not appointed; or are we doing what seems to be implied in the letter from the Chairman of the Public Appointments Commission that was sent to us : this is having a nice friendly chat with the person whom the Minister is going to appoint to see how he is going to do the job?

Lord Adonis: Chair, would you like me to respond?

Chair: Yes, if you would.

Lord Adonis: Perhaps I could also introduce Akash Paun, who is a colleague of mine at the Institute for Government, and Peter Waller from the Constitution Unit. We are going to be joined by Professor Hazell imminently.

If I may give an answer to that question, it seems to me that the job of Select Committees is to decide whether they believe that the candidate who is being put forward for this significant public office meets the standard required for the job. It is not simply to have a friendly chat; it is to decide whether they believe that this person has the requisite qualities and abilities to be able to undertake the post. I have read the letter from Sir David Normington, which I have to say is a classic "Sir Humphrey" production. It is a very powerful and very elegant argument for the status quo.

Q2 Chair: Or something before the present status quo.

Lord Adonis: It may be that the Liaison Committee thinks that its job is simply to rubber-stamp the status quo, but its argument is that any change in the existing system of public appointments would be contrary to the public interest. Surely the whole reason why we are considering the role of Select Committees is that this serves another key aspect of the public interest, which is to see that there is proper parliamentary accountability for major appointments, and that there is an acceptability test that is met, policed by parliamentary Committees in respect of the most significant of those public appointments.

Q3 Chair: I apologise to Professor Hazell because we did start early. I throw at you what it says in the Cabinet Office guidance to Departments on how they conduct these proceedings. When Ministers are considering a report from a Committee on a candidate-and the assumption here is that we are talking about an adverse report-it says: "‘Relevant considerations’ means any new, relevant facts about the candidate’s suitability for the post." The guidance also says: "There may also be occasions where a candidate’s performance in front of the Select Committee is considered relevant to the post in question-although this should be exceptional." Those are pretty narrow grounds, are they no t?

Lord Adonis: Of course the guidance itself recognises that there may be "new, relevant facts". The performance of a candidate before a parliamentary Committee is a fairly substantial issue at stake. As a former Minister myself, it seems to me that, for these major public appointments that we are talking about, unless a candidate can satisfy the relevant departmental Select Committee that they are going to be able to conduct themselves appropriately and with authority in public-because these are public appointments-they are unlikely to be successful in the job. If they cannot persuade a parliamentary Committee that they are up to the job and have the requisite qualities to be able to perform in public with authority, impartiality and those other qualities that Parliament would expect, I think that is a very significant and legitimate ground for questioning their ability to undertake the post.

Q4 Chair: But that is still only a "new factor" of that interview, is it not?

Lord Adonis: No, it is more than that. Of course the judgment that a parliamentary Committee would make is not going to be based solely on what they say in the Committee. It will be the impression that the parliamentary Committee forms on the basis of taking stock of them as a candidate in the round.

Chair: Do any colleagues want to explore this area further?

Q5 Mr Jenkin: May I start on a different tack? Is not a fundamental problem in all this that, basically, legal responsibility for making virtually all these appointments is in fact in the hands of the Government? When we are dealing with the "Category A" appointments, and where we think Parliament should be part of the appointment process, don’t we need to change the law to make this effective?

Lord Adonis: I will start and then perhaps I should hand over to my colleagues. In the case of the OBR, of course, there has been a statutory change. It may well be that one would be looking for statutory changes in respect of the other "A List" appointments that we set out in our report. However, it is perfectly reasonable for the Government themselves to say that these appointments are "subject to ratification"-or whatever phrase they wish to use-by the appropriate Select Committee. If the Government were to make that clear in the job description and to candidates when they apply, it would not be unreasonable for the post to be withheld if assent from the parliamentary Committee was not forthcoming.

Peter Waller: The current system is effectively geared, as you say, to the Secretary of State making the decision. There is no role in legislation in the vast majority of cases for Select Committees-for Parliament-to have a say. What has happened as a result of what has been agreed is that an additional piece of evidence-performance before a Select Committee-is now being put in front of the Secretary of State. You can have other systems, but if you want to give Parliament a formal role, yes, you have to go for legislation. You have to start again. There is quite a clear case for that. With any new appointment that is created in legislation, there should be a real thinking process as to what the appointment is about and who should make it.

Q6 Mr Jenkin: Having colleagues who have been involved with pre-appointment hearings, the problem at the moment is that you do feel very "bounced" with a fait accompli decision about a perfectly acceptable candidate, but without a job description or any idea of how to judge the merit of the appointment on anything except that the person in front of you seems to be extremely competent and presentable. In fact, the guidance says in paragraph 7.2: "In the vast majority of cases, where an open and transparent process has been followed and the candidate selected on merit, the expectation is that the Select Committee will agree with the appointment of the Government’s preferred candidate." Indeed, it says that the pre-appointment should take place only once all the relevant Ministers have given their approval to the preferred candidate. This is clearly, from the Government’s point of view, going to be largely a rubber-stamping exercise. How do we get past this? It feels as though you are being used as a rubber stamp in the Committees.

Lord Adonis: It clearly would be exceptional not to give assent, but it is cases that need to be looked at here when assessing it. The reason why the Treasury Committee agreed with the Chancellor, and then the power to withhold assent to the appointment of the head of the OBR was placed in statute, was because of a very unsatisfactory case. If the Committee, and indeed the public, had been aware of the fact that Sir Alan Budd was proposing to take the post for three months in the first instance-essentially to do a holding operation-in my judgment, and the judgment of almost any reasonable person, that would have been perfectly reasonable grounds for not agreeing the appointment. This is the history that has led us to being where we are. I do not think a parliamentary Committee would have any difficulty making a judgment on a fact of that kind. That is the case that has led to the veto that is now in statute. There are many other cases that could be similar and could lead to a parliamentary Committee not thinking it appropriate to give assent to a candidate put forward, even with the full authority of the Government.

Akash Paun: If I could just add to that, it is always likely to be the case that it will very much be the exception that a Committee would recommend against a candidate. That has been the experience so far in the vast majority of cases. Committees have approved the candidate put before them. When we considered the implications of the OBR case and how far one might extend that precedent, we took the view that while there might be certain other cases for which one may want to place a Committee veto in statute, that should be seen, on the whole, as a last resort. It is rather unusual, constitutionally, in the Westminster system for Committee powers to be placed in statute, as you know. We thought that that should be avoided other than as a last resort.

However, we tried to develop this idea of what we call an effective veto, largely on the basis of Government statement or commitment before the fact that they will not override the clear wishes of Parliament on particular candidates. There are examples of that, as you will no doubt recall. Earlier this year, the Ministry of Justice made a clear statement that the next time the Information Commissioner is appointed, the Department would not appoint a candidate that had not been approved by the Justice Committee. It has conceded, in effect, an effective veto, as we would see it, without needing to go down the legislative route.

A similar approach was used for the Chair of the Statistics Authority in 2007. There was no statutory basis for this, but the candidate, as well as going through pre-appointment scrutiny, was put to a vote in the House. The Government were clear that had the House voted against the candidate, the appointment would have been withdrawn. We though that such an approach would strike the right balance, in a sense, between the need for a clear role for Parliament and that of not going down the legislative route, which seemed over the top.

Q7 Mr Jenkin: Thank you for that. The other main question is this. At the moment, the Committee is informed that an appointment is taking place and then we are presented with the candidate and their CV-and that is it. What other information should Committees have in order to be able to put that individual in a more informed context so that the Committee has a better sense of how the process is being conducted and who else has been interviewed, although not necessarily the names and details?

Peter Waller: The Committee should first be involved right at the stage of the initial recruitment-when the recruitment process starts. One case we had, which in some respects was unfortunate, was with the Children’s Commissioner. There was clear disagreement between the then Department-the DCSF-and the Committee about what the job was about and what the terms of reference should be. That should be sorted before you start the recruitment process. I do think that there should be provision for the Committee to be consulted and things discussed with the Committee right at the start.

Q8 Mr Jenkin: It should be consulted about the job description, how the job is going to be advertised, what sort of profile the candidate should have and what their core skills should be.

Peter Waller: Yes. I can also see no reason why the Department should not give a fairly full account of the process that it has been through and the details of the recruitment. It probably should not name the other candidates, but the Committee should be well briefed on that. That would be the level that you would go for; that would improve it.

Q9 Mrs Ellman: If the Committee is involved from the very beginning, as you have just suggested, Mr Waller, does that then make the Committee almost responsible for the appointment, cutting across the scrutiny role?

Professor Hazell: No, because the Committee is being consulted simply about the job description and the person specification. At this stage, none of the candidates are known. It is to avoid a situation where a candidate is subsequently appointed as the preferred candidate and then the Committee in its scrutiny hearing in effect comes forward with a different set of criteria, so it is saying rather late in the game, "It’s not necessarily that we don’t like this candidate, but we think you have got the description of the role wrong." If the Committee feels that the role is wrongly described, it needs to make that clear up front. It was a recommendation of the Liaison Committee last year that Select Committees, in relation to all posts subject to pre-appointment scrutiny, should be consulted in advance about the job description and person specification.

While I am speaking, Chair, may I just add one or two things in reply to Mr Jenkin? As I hope all members of the Committee know, we did some research that was commissioned by the Liaison Committee 18 months ago. We did a very detailed study of the first 20 pre-appointment scrutiny hearings. Our report was published by the Liaison Committee last March. I wholly understand that for you, the Select Committee Chairs, it feels like a bit of a fait accompli when you are presented with the Government’s preferred candidate. I would only add two important caveats. One is, coming back to an earlier discussion, that the candidates are all informed right at the beginning of the recruitment exercise that there will be a pre-appointment scrutiny hearing and that if the Government propose an appointment, they are, in the Government’s parlance, only the "preferred candidate". All the candidates who put their names forward know that they are going to be subject to scrutiny by a Select Committee and that may seriously spoil their chances of getting the job.

The interesting thing that came out very strongly from our research was that while you may feel you do not have very much influence, you seriously underestimate how much influence you have under the present system. Of the 20 candidates whom we interviewed, 16 of said that if the Committee had recommended against their appointment, they would have thought very seriously about whether to take it up. Some of them said to us in terms, "I would not have taken it up. I would have been so damaged by the Select Committee’s report that I could not have done the job." Others said, in a more nuanced way, "I would have thought really hard about what the Select Committee said and why I was not suitable before deciding whether or not to take up the appointment." If I may suggest from the research that we did, that is where you have much more influence under the present system than I think is perhaps realised.

Q10 Mr Cash: I take a special interest in this because, if you look at the draft list of appointments subject to pre-appointment scrutiny, one of the Select Committees left out is the one I chair: the European Scrutiny Committee. I have just heard Robert Hazell, who appeared before my Committee quite recently, talking a lot about scrutiny, and the same is applied to you, Lord Adonis. The issue of scrutiny is quite important. I have just been through the list of the Committees and the various appointments that are subject to pre-appointment. I have counted about nine that come straight inside, to one degree or another, the remit of the European Scrutiny Committee in terms of their statutory duties and the extent to which it extends back to European regulation, the European Communities Act and the rest. Did you have any thoughts as to whether the European dimension would need to be taken into account in this area because, after all, so many of our la ws are determined at that level?

Professor Hazell: If I may go first, there is general agreement, both in this Committee’s report of last year and the Government’s response, that the list of the top public appointments that should be subject to scrutiny by Select Committees needs revisiting. The Government have agreed to do that, so it is in effect open to all of you-the Select Committees and the Liaison Committee-to put forward proposals for further appointments to be subject to pre-appointment scrutiny and to say which Committees those candidates might come before.

Q11 Mr Cash: You are not quite answering my question. Given the status of the European Scrutiny Committee and the extent to which the laws that pass before us are impinging on the United Kingdom, do you not agree that the European Scrutiny Committee should be given some role? I am not quite sure exactly what form it would take; it might be by consultation-I am not certain. None the less, should there be some degree of interaction to enable the European Scrutiny Committee to be involved in the process?

Lord Adonis: There would be a very clear difficulty in having candidates subject to hearings before or ratification by more than one Committee. I cannot myself conceive of how that could work effectively.

Q12 Mr Cash: If that were the case, do you not agree that if there is something that falls clearly within the remit of the European Scrutiny Committee, because the activities of the person in question are ultimately determined by reference to legislation that comes from the European Union, there would be a reasonably good case, if not a very good case, for the European Scrutiny Committee to be involved in that process?

Lord Adonis: It is probably for the Liaison Committee to decide which it thinks is the appropriate Committee in each case. That would be my answer to that one.

Q13 Mr Cash: Of course there are European Commissioners at whom we might want to look. There is also this question of COREPER. For example, there are proposals, so we understand, for Mr Jon Cunliffe, who is due to be given a very senior appointment. I can think of several areas where it might be a good idea for us, given the considerable experience that we have in these matters, to be able to look at and form a judgment about his suitability.

Lord Adonis: I felt that that was a rhetorical question, really.

Q14 Mr Cash: No; it is not a rhetorical question; it is a very straight one. I can see you jibbing. The word "Europe" obviously has a traumatic effect on you.

Lord Adonis: It is surely a matter for the Liaison Committee itself to decide which Committees should hold pre-appointment hearings.

Q15 Chair: It is indeed a matter for this Committee, but it is perfectly proper to ask witnesses if they have a view about it. If they don’t have one, they don’t have to give one.

Akash Paun: On the initial question from Mr Cash, there is already the possibility of two Committees holding a joint session with a candidate. It has happened to my knowledge on one occasion before for the Chair of Ofcom, when the CMS and BIS Committees held a joint session.

Chair: That was a joint session, not two hearings.

Akash Paun: Yes. To clarify, it was a joint session. There is precedent and there are procedures established to follow that route. Obviously, that would be a matter for discussion among you on the Liaison Committee.

Q16 David T.C. Davies: I was going to make that very point because I chaired a recent joint Select Committee hearing with the Department for Culture, Media and Sport. It worked perfectly well. I was with Mr Whittingdale.

Lord Adonis: But there is a fundamental difference between having one joint Committee and having two separate Committees that are holding hearings.

Q17 David T.C. Davies: Technically, it was two separate Committees meeting in the same room at the same time. There were two separate reports.

Lord Adonis: I assume that they agreed with each other.

David T.C. Davies: Yes.

Lord Adonis: That is very helpful. If they disagreed with each other, I think you might have had a problem or two.

David T.C. Davies: We might have done.

Lord Adonis: Frankly, Parliament would look a farce if you had parliamentary Committees that were reaching different opinions on candidates and had unclear allocations of powers and responsibilities between them.

David T.C. Davies: It is bound to happen sooner or later though, isn’t it? The law of averages says it is bound to happen sooner or later. I am sure that Parliament will muddle along.

Chair: That was a view and not a question.

Mr Whittingdale: I have done three pre-appointment hearings, two of which have been joint hearings with other Committees. In the first one we swapped Chairs halfway through, but that was where the body clearly had some responsibilities that were mainly in the area of one Committee and then of the second. Happily, on each occasion not everybody turned up. It can become very unwieldy if you get a full turn-out from both committees, with some 22 people taking part. Perhaps to address Bill’s point, maybe when there is a European dimension, there could be one or two representatives of the European Scrutiny Committee attending as joint members of the main Committee.

Q18 Mr Jenkin: Just to clarify this issue of principle, is there any reason why Britain’s nominations for the European Commission, or indeed Britain’s nomination to the European Court of Justice, should not be subject to a pre-appointment hearing by Parliament?

Lord Adonis: There is no reason of principle, but of course the Government would need to agree to it.

Q19 Chair: Would you favour it?

Lord Adonis: Personally I would, but that is very much a personal view. I think it would enhance accountability in what are very important public appointments.

Q20 Mr Jenkin: The obvious Committee would be the European Scrutiny Committee.

Lord Adonis: That, again, would be for the Liaison Committee to decide.

Chair: That would be a matter for us.

Peter Waller: In some respects that is an even stronger case, if I may say so. Those are appointments which are made on a political basis. You do not go through a Whitehall-dominated process of inviting applications for European Commissioners and so on. It is a very political appointment and the case for parliamentary scrutiny there seems to me to be really rather stronger than in most of the cases we have covered in the report.

Q21 Mr Jenkin: Would that also apply to things such as the Secretary-General of NATO or Britain’s ambassador to the United Nations? How far does one go down this route?

Peter Waller: Yes, the practicalities might get in the way.

Q22 Chair: Mr Waller makes an important point of which we must not lose sight: part of the genesis for the idea of scrutiny, and indeed the American pattern of it, is how you deal with appointments that are made on political grounds and are not subject to a conventional process. There are now far fewer of those, but it seems to me, at any rate-and Professor Hazell agrees with me-that they are prime candidates for a scrutiny process.

Professor Hazell: I wholly agree. If you look at the example of the Foreign Affairs Committee, it is right that it has always made a practice of inviting non-diplomatic candidates-i.e. political appointments-to appear before it. It is not something that the Government have ever formally agreed to, but the Foreign Affairs Committee has made it its practice.

Peter Waller: But those, in the eyes of the Government, are post-appointment hearings. The Government have never conceded that that is a pre-appointment hearing.

Lord Adonis: In cases like this, I suspect that you probably start by getting the Government to agree to them as post-appointment hearings and then, in due course, the next stage would be to encourage them to make them pre-appointment hearings.

Q23 Andrew Miller: You have those highly political appointments and then you have those very technical appointments-the Chairs of the Statistics Authority, the Food Standards Agency and so on. Then you have some that are more of an ombudsman type of role. In your view, do those different categories require different processes, or is there a common thread through them?

Lord Adonis: We did suggest different processes in our report with what we called the "A List" of public appointments, where there should be an effective parliamentary veto-not simply a pre-appointment hearing, but going a stage beyond that. We set out criteria in the report as to why we had selected those posts. We do suggest different treatments. However, if you are going to extend it to European Commissioners or very significant diplomatic appointments, it would be hard to make an argument in principle for those appointments not being on a par with those in our proposed "A List".

Q24 Miss McIntosh: As regards the European Commissioners, including those nominated from this country, that clearly is the role of the European Parliament. Would you not have a view that there could be a conflict?

Lord Adonis: It is the role of the Government to determine who they are going to put forward. It is then the role of the European Parliament to decide whether it is going to ratify them. They are two very distinct roles, are they not? It is the Government who put forward the candidate. Any pre or post-appointment hearings would be about the Government’s nominee or nominees for the post, subject of course to all of the processes that then take place in Brussels.

Q25 Miss McIntosh: To clarify that, I think that Mr Waller said that the Select Committee should be consulted at the earliest stage by the Department on the announcement and the job description being prepared. Is that your understanding of our present powers? I do not want to jump to conclusions, but there are two appointments coming up for our Select Committee where I do not think we have been formally consulted. That is possibly because-

Peter Waller: Following on from our earlier research report, the Liaison Committee recommended in its report that you should be consulted on terms of reference, job description and so on right at the outset.

Professor Hazell: The Government have not yet consented to that.

Peter Waller: The Government, in a fairly typical Government response, said "We will have to think about that one hard and we are a little worried that it might make the process even longer." There is a common view that the processes here are often just far too long. They seem to drag out over several months. Equally, I cannot quite see why the Government should worry about the length it takes on this one particular item when they are in control of most of the timetable themselves. I would suggest that you want to keep pressing for that. I cannot see a good reason why you should not be given that.

Q26 Miss McIntosh: The current guidelines on how pre-appointment hearings take place allow for candidates to be questioned as regards professional competence and personal independence. If they are holding more than one public office, are you satisfied that the guidelines allow us to question on what other positions they hold and whether there is a potential conflict of interest, or indeed whether they will be available to do the work? An interesting appointment, which obviously we were not allowed to look at, was the appointment of the Chairman of IPSA, who holds a number of public positions. But, of course, he is so independent that we are not allowed to question-

Professor Hazell: Without going into that particular case, I can think of at least one instance where a Select Committee pressed a candidate very hard about whether she could do the post in three days a week. She had other appointments. It seems to me that that is an entirely proper line of questioning for a Select Committee to pursue.

Q27 Chair: There was another recommendation in this Committee’s report-the Government had to go away and think about it and they have not yet delivered their thoughts-that a Committee, instead of issuing an immediate report saying it did not approve the appointment of a candidate, should be able to have a private meeting with the Minister to discuss how to take the matter forward, if it was inclined not to approve a candidate. It might want to seek some assurances or want to know a little more about what sort of candidates had been on the shortlist-not necessarily who, individually, but whether this really was the most suitable available candidate. Do you have a view about alternative processes to the present, rather brutal process under which someone who has gone through a selection process, been recommended by a Minister and made the subject of a glowing press release about how good they will be in the appointment then has a report about them published by a Committee saying, "We don’t think they are the right person for the job"?

Lord Adonis: My view is that it should be a matter at the discretion of the Committee. If it wished to meet a Minister at the point at which it was minded to make a decision but had not made it-if in its judgment there was a prior process at that stage-that might be a worthwhile step. As a former Minister, I find it almost inconceivable in such a case that the Chair of the Select Committee would not have a private word with the Secretary of State anyway. We can get too formal about these processes. In a case where, clearly, there was a difference of view emerging, I would find it very surprising indeed if the Secretary of State was not aware of how the mind of the Committee was moving and if there were not discussions taking place between the Chair and the Secretary of State before any formal decision was taken.

Professor Hazell: I strongly agree with that. In a way, it is slightly bizarre that it is the candidate who appears before the Committee to, as it were, front for the Secretary of State’s decision. The committee is scrutinising the Government and the Secretary of State, and the decision by the Secretary of State to appoint candidate X. In effect, the Committee may be questioning the Secretary of State’s judgment and might therefore want the Secretary of State to come and explain that.

Q28 Mr Syms: We are talking about appointments. We have had a brief discussion about getting in at an early stage on designing what a post would be. If we have an existing role where somebody has been in post for three years and they have announced that they are retiring, do you think there is an argument for the Select Committee interviewing the retiree-the holder of the post-before they advertise for a replacement? In the British diplomatic service, famously, UK ambassadors send their valedictory no-holds-barred-

Lord Adonis: They used to. I don’t think they do any more. They stopped it. A few were indiscreet. They all got published, didn’t they, by Matthew Parris?

Q29 Mr Syms: The reality is, though, that clearly Parliament would be better informed if somebody could give a rather straighter answer about how the role was working and whether there ought to be changes, and if that were factored in even before we got to the point of advertising for a replacement. Having Parliament involved is relevant only if you have Parliament involved in more than just simply giving the nod by actually reviewing how somebody has done before you go on to a next-generation candidate.

Chair: Let me just say that I would not want Chairs to think that they are not free to do that now. Indeed, they do in some cases.

Akash Paun: We do note in the report that there are a couple of occasions when Committees have done exactly that. The PASC has recently spoken to Sir Michael Scholar in advance of the next pre-appointment hearing for the Chair of the Statistics Authority to do exactly that. The same thing happened with the Information Commissioner last time round. Yes, of course Committees have the ability to do that already. We conclude that that is a very sensible thing to do. Committees might, in certain cases, even wish to hold a wider call for evidence on the nature of the role, particularly when the status or the powers of a post are being changed or, as in the case of the Chair of the Statistics Authority, the basis on which the job is being offered is being changed. Especially in those kinds of situations, it is highly sensible to try to gather that wider evidence about what the job entails and what the Committee should therefore look out for when it meets the proposed candidate.

Peter Waller: I have two thoughts about that. First, yes, there is obviously every opportunity to have a hearing with an outgoing post-holder. There is a case for saying that you should be consulted before a decision is made to reappoint. I am thinking along the lines that you have the strongest case for a parliamentary role when Ministers are taking decisions that could be political. When someone is appointed for the first time, you go through this detailed OCPA Whitehall process and so on. When someone is coming up for reappointment, it becomes a ministerial decision-"Oh, Minister, do you think that Fred should be reappointed after his first three years?" There is a bit of grit that should be put into the system there of the Select Committee having its views sought as to whether Fred has done a good job and ought to be reappointed, or whether the appointment should go forward again.

There is one other thing that has not come up, and I feed back a little from some of the interviews I did with Select Chairs. A feeling came through that the more you do on this, the more it is crowding out time to do other things as Select Committees. It is very easy in thinking what you could do to think of lots and lots of things to do. You will have to decide where they sit in your priority. Some Committees, in particular, could find themselves doing a heck of a lot of work on this. Is that what you want to do?

Lord Adonis: On reappointments, Chair, we say in the Institute for Government report that "for all appointments where a Select Committee has the right to hold a pre-appointment scrutiny hearing, Government should make time for a reappointment hearing on the same terms." I entirely endorse Mr Waller’s point in that regard.

Q30 Chair: At the discretion of the Committee.

Lord Adonis: Yes.

Q31 Chair: I want to explore something quite important. There have been some cases in which lawyers-either for candidates or in the Department-have started to get interested in this process. Are serious legal problems engaged by the process if somebody has been offered appointment on terms that do not make it entirely clear that the appointment could be stopped if the Select Committee disagrees?

Lord Adonis: I imagine, Chair, that you are taking your own legal advice on that point and the Select Committees will, too. It seems to me that it is not an issue up until the point at which you are talking about a formal veto. I thought Professor Hazell’s remarks were very pertinent here. Most candidates would withdraw, or be persuaded to withdraw, a long way before you got to the formal veto. Where you get to the issue of a formal veto-and we have a good deal to say about how that veto might be exercised, with checks and balances, in our report-it may be that the lawyers will tell you that in order to exercise a formal veto, you do need new legal powers. I note that, in the case of the OBR, statutory powers were given in order for a formal veto to be in place.

Q32 Chair: But in the absence of a formal veto, do you think there is a risk of legal challenge to a process in which a Committee recommends that an appointment should not be made and the Minister says, "Right, I will go with the Committee," or, if not a legal challenge, the Department’s lawyers saying, "This is far too risky and you are open to legal challenge, Minister"?

Lord Adonis: I am sure that the Department’s lawyers will try to browbeat the Committee with that view. You would need to take independent advice on whether it is a correct view or not.

Andrew Miller: It would be more complicated on reappointments.

Professor Hazell: Chair, may I make two points? Forgive me, but one I have already made. With regard to all the appointments that are subject to reappointment scrutiny, when the post is first advertised with the particulars of the job, candidates are informed that there will be a hearing with the relevant Select Committee and that they will be the "preferred candidate" of the Department. I don’t know what the Whitehall lawyers will say, but I assume they say that that is sufficient notice to the candidate that this is a stage in the process and the appointment cannot be confirmed until the Select Committee has had its hearing.

May I add something on the veto? Here there is a slight difference of emphasis between our report and that from the Institute for Government. We do not see a need for a formal veto. This is very much a matter for the Liaison Committee and also for the House. There is something to be thought through about the relationship between Select Committees and the House. When a Select Committee issues a report, it is giving a report to the House. The House, if it wishes, can then have a debate on the Floor. Interestingly, that is what happened in the case of the Children’s Commissioner. After the adverse report from the Select Committee, when the Secretary of State Ed Balls said he proposed to make the appointment, an urgent question was tabled and the Speaker allowed it to be heard. The Secretary of State was summoned to the House to explain and justify his decision.

You and the House authorities can think of other ways in which a debate on the Floor could be made into something really serious and painful for the Government-perhaps it should be something on a substantive motion with a Division at the end. There are lots of possible procedures linking an adverse report from a Select Committee to a process on the Floor of the House that could be very difficult for the Government and really force them to explain themselves and justify their decision without necessarily having an effective veto.

Lord Adonis: I endorse the thrust of what Professor Hazell says. In our report we say: "where the committee is firmly against the appointment but the Minister wishes to proceed, we recommend that the matter should be referred to the House of Commons for a debate opened by the committee chair. We would envisage referral to the House itself occurring very rarely, but if this stage were reached, and if the Commons voted against the appointment, then the appointment process would need to be reopened."

In the real world, of course, I imagine that this appointment would have ceased a good time before you get to that debate and vote. If it got to that debate and vote, there would be, I would hazard, a very strong case indeed for that appointment not to proceed, if the strength of feeling is so great that you go into a debate on the Floor of the House of Commons.

Q33 Mr Whittingdale: You referred earlier to there being a stronger case in more political appointments for some kind of Select Committee scrutiny. If you take that to its ultimate application, it would apply to ministerial appointments. While that may be impractical for members of the House of Commons who are appointed to ministerial office, what if the practice of the previous Prime Minister of bringing people into Government from the outside were to continue? To take an example, Lord Adonis, do you think you should have been subject to Select Committee scrutiny?

Lord Adonis: I would have had no difficulty with that at all. I appeared before the Transport Committee constantly. I would have been perfectly content to have had-

Q34 Mr Whittingdale: As a pre-appointment.

Lord Adonis: Personally, I would have been perfectly content with a pre-appointment hearing. It might have cut short my ministerial career to a matter of a few days. In fact, I had a very good relationship with the Select Committee, I am glad to say.

Q35 Mr Whittingdale: Do you think it would be an improvement in practice if that were applied to ministerial positions?

Lord Adonis: You are talking about a major constitutional change. It is a much more radical constitutional change than any of these, because what you are then doing is fettering the discretion of the Prime Minister in the appointment of members of the Government, which has never happened in the past. I myself am not hidebound by convention. I think you should look at these things on their merits. There may be a case for it, but it is well beyond the remit of the issues we are discussing this morning.

Akash Paun: While we were talking about political appointments before being a good candidate for pre-appointment scrutiny, I think the key principle was political appointments to posts that are normally made on non-political grounds. The obvious case is that of ambassadors who have been appointed from outside the diplomatic service. With Ministers, obviously, that principle does not apply.

Q36 Mr Jenkin: Very briefly, I suppose the appointment of Supreme Court justices would also be beyond your remit.

Lord Adonis: It is not beyond our remit. It is beyond the report we have written and the issues about which you have asked us to appear before the Committee.

Professor Hazell: It is something being inquired into by a Select Committee in the other place-the Constitution Committee of the House of Lords-and we are about to submit evidence suggesting that Supreme Court justices should be subject to some kind of scrutiny.

Q37 Mr Jenkin: They are virtually self-appointing at the moment. In terms of briefing the Committee before the process starts, who should do that? Should it be an informal briefing? Should the head hunter come along and explain how the executive search agency has been briefed? Should the Committee be satisfied with the way in which the recruitment process is being conducted at the outset?

Professor Hazell: Peter Waller’s points are very relevant about how much time you want to invest in this. I am guessing that this would be done by correspondence in most cases. The Department would send the proposed job description and person specification to the Select Committee and say, "This new post is going to be advertised and we would like to start advertising it from X date. Do you, the Committee, have any observations on the proposed spec?"

Q38 Mr Jenkin: Before the actual pre-appointment hearing, should there be an informal briefing of the Committee-not about the names of who is being interviewed, but the sort of people who are being interviewed? It seems to me that that would make more sense.

Peter Waller: I cannot see any reason why that should not be done. Whether one of the officials talks it all through with the Chair of the committee or whether there is a memorandum, there are different ways it could be done. Yes, you could give a full account of how this process has gone and so on. That would be perfectly possible.

Akash Paun: We similarly took the view that, obviously, carefully anonymised details of the range of applications received and those shortlisted, and some of the characteristics of the shortlist, should be given to Committees.

Q39 Mr Jenkin: But what I am suggesting is that more information would be conveyed informally and verbally to the Committee. As soon as things are written down, it is all a hostage to fortune, is it not?

Peter Waller: Yes, though Committees to some extent glory in the fact that 99.9% of the things they do are in public, do they not?

Q40 Mr Jenkin: That is not necessarily the case.

Finally, on the question of salaries, the Government are trying to cut a whole lot of salaries of public appointments by referencing to the salary level of the Prime Minister. Do you think the Select Committees should be interested in that?

Lord Adonis: It is a reasonable issue, if they wish to get into it. It may not be the most important issue in relation to a public appointment.

Q41 Mr Tyrie: I have a couple of quick questions. The first is to Professor Hazell. You are against the veto power. Was it a mistake then for the Treasury and the Treasury Committee to negotiate the OBR veto?

Professor Hazell: Yes. I think it was a decision taken in quite exceptional circumstances, which we detailed in the submission that we made to the Committee last week. As you may recall, this time last year, the independence and integrity of the OBR were being very seriously questioned by serious people because of what might have been a chapter of small accidents.

Q42 Mr Tyrie: That is the past. What is the damage done?

Professor Hazell: It is now a very interesting pilot. I would not want to see more Select Committees seeking-

Q43 Mr Tyrie: What is the damage done? What have we lost? That is what I am trying to get at. Constitutionally, in what respect are we worse off than we were? If it was a mistake, we must be worse off.

Professor Hazell: This is a parliamentary system where the Government make all executive decisions and Parliament scrutinises them and calls the Government to account. I do not think it is right constitutionally in a parliamentary system for Parliament or a Committee of Parliament to be a co-decision maker.

Lord Adonis: I take a much more restricted view of constitutional practice. It is up to Parliament to decide what the appropriate relation is with Government.

Peter Waller: I would say, briefly, that the mistake was not to have had a much more thorough debate about who actually is best placed to recruit and appoint the OBR, and how far the Department should be involved in that.

Q44 Mr Tyrie: By the Treasury.

Peter Waller: Yes. To have the old system followed by a veto is clumsy. There should have been a way of saying, "Who should make this appointment? What is the best process to give the guarantee of the independence of the members?"

Q45 Mr Tyrie: We have now created a system to support it, so I think that that point has been covered.

Lord Adonis, when I gave a speech in favour of extending this sort of approach, to my surprise I had quite a reaction. I thought nobody had noticed the OBR or the MPC appointment hearings that had been going on for 14 years in the Treasury. Most of it was favourable. You have had your stuff out there for some time now for public consultation. What kind of response have you had and what points are people making?

Lord Adonis: The response we have had has been broadly positive, too. The reaction to the speech which gave, which of course was at the IFG with a very large audience of those with a deep interest in these issues, was positive, including, I might say, from Jack Straw, who was on the panel. I do not think of him as necessarily an instinctive radical on these issues, but he endorsed your proposals warmly.

The other point I would make is this. What influenced me in this regard was when we came to look at the issue of the appointments themselves. If you look at appendix A of our report and the proposed "A List" of public appointments, these are hugely important appointments. Just in your sphere, Mr Tyrie, we designated five posts, including the Governor of the Bank of England. The Governor of the Bank of England, with the creation of the MPC and the abolition of the FSA, is now more powerful than at any time in history. I do not think it is correct that Parliament should not have some substantial role in ensuring that that person is a fit and proper person to be Governor in the current context. I think it is right that Parliament should play a role in that regard. It would hugely underpin the legitimacy and authority of the Governor that they took office with independent parliamentary authorisation, as well as the appointment of the Government. That is true of the other posts in your area too.

Chair: Let us not go into the posts in detail because we have that available to us. I thank our witnesses now very much for their assistance.

Examination of Witness

Witness: Rt Hon Francis Maude MP, Minister for the Cabinet Office, gave evidence.

Q46 Chair: Minister, thank you very much for coming to join us. We are conscious that a number of Members are involved in matters on the Floor of the House, which is one of the problems with Thursday morning sittings.

To start with , we need to get it clear that we are all talking about the same thing regarding public appointment hearings. What is this process? Is it, as we have assumed, a process that can, in some circumstances, lead to a Minister accepting the view of a C ommittee that an appointment should no t go ahead , or are those circumstances so narrowly defined as to be almost unreal? I am sure you have seen Sir David Normington’s very interesting and carefully argued letter in which he is effectively defining hearings as opportunities for C ommittees to discuss how the person is going to do the job when appointed. Are we looking at something so narrowly defined - as it is in the Cabinet Office’s guidance , which talks about either new facts which were not previously kno wn coming to light or a bad performance before the C ommittee as being the only ground s on which a C ommittee might decide to r ecommend against an appointment - o r is it, as we originally thought, a C ommittee sometimes having to set out arguments about why this might not be the right person to do the job?

Mr Maude: Sorry; what is the question?

Chair: Are we looking at a process in which there are a number of grounds on which a Committee and a Minister might agree that the appointment should not go ahead, or are we looking at a process that is primarily one of allowing the Committee to talk about how the appointee is going to do the job?

Mr Maude: Certainly it is an opportunity to talk about the way in which the appointee will do the job and the circumstances in which Ministers may choose to take account of an adverse recommendation from a Select Committee. The guidance, and it is only guidance, does set that out in relatively narrow terms, as you say. A spectacularly poor performance in front of the Select Committee would undoubtedly impinge on the Minister’s view of whether that person is right for what is, by definition, a kind of public role, and obviously the disclosure of undisclosed facts that are material would make a difference. If there was generally a strong view from a Committee that made a difference to the perceived acceptability of a candidate, I think some Ministers would certainly want to bear that in mind.

Q47 Chair: The two grounds that I have enumerated are not the only grounds, are they?

Mr Maude: This is only guidance. These are ministerial appointments and Ministers will make appointments-and might sometimes then dis-appoint-on the grounds of their own choosing, which may reflect the views of the Select Committee.

Q48 Chair: Have the Government yet formed a view on one of the recommendations that this Committee made previously-they went away to think about when they officially responded-that there may be circumstances in which a Committee, rather than simply issuing a report, might want to meet a Minister and discuss privately with him the reservations it has, and therefore have some engagement before deciding whether to issue the critical report and risk a clash with the Minister when the appointment goes ahead?

Mr Maude: I am very open to that. It seems to me a wholly acceptable course. In many cases it will make sense for a Minister at the very beginning of the appointment process to meet-particularly with the Chair of the relevant Select Committee-to discuss the role, to talk about the job description and what the expectations are, and potentially to canvass names, or certainly to invite suggestions from the Chair about names. The more involvement there is by the Select Committee-particularly by the Chair-in a very informal way early on, has two advantages. First, Ministers will get useful insights and that will help to shape the job description and the appointment process, and to feed in names. The other thing is that it means that Ministers will focus on this early, which they do not necessarily do. Sometimes these appointment processes take on a life of their own.

Q49 Andrew Miller: That was precisely the line I was going to go down. It would not require any fundamental change for that to become the norm straight away. It would give substantially more confidence in the process if Chairs were seen to be engaged with the relevant Minister. Is that deliverable now? Is what you are suggesting going to happen?

Mr Maude: There is nothing to stop that happening. Ministers could choose-

Q50 Andrew Miller: That is not quite the same thing. Is it going to happen?

Mr Maude: I cannot speak for all Ministers. We have some guidance and procedures and so on.

Q51 Andrew Miller: Would it be your recommendation to the Prime Minister that that change becomes the norm?

Mr Maude: I do not have a completely fully-fledged view that that is what ought always to be the case. It is much better to approach this informally and pragmatically, and to encourage the Ministers who are inclined to do this when there is a good working relationship-which there should be between the Chair of a Select Committee and the relevant Minister. I am in suck-it-and-see mode.

Q52 Keith Vaz: I welcome what the Minister has said. It is a very good and open approach that I think will be very helpful. The Home Affairs Committee is in correspondence with the Home Secretary about the appointment of the Head of the UK Border Agency. That is a very important job, with a budget of almost £2 billion to look after. We were told that this was not a ministerial appointment-this is an appointment by the Civil Service Commission-and that therefore we have no right or authority to be involved in this. We understand this.

Mr Maude: Nor do Ministers, as you will know as a former Home Office Minister.

Q53 Keith Vaz: I never made any appointments when I was a Foreign Office Minister. Do you think that in those kinds of appointments, which obviously will require intense scrutiny by a Select Committee, there ought to be the kind of approach that you have mentioned-not just for the major appointments, but in terms of agencies of Government Departments when it is absolutely clear that, like with the head of the UKBA, there will have to be a very strong relationship with a Select Committee?

Mr Maude: It is a civil service appointment. That is not a ministerial appointment. It would be improper for Ministers to make that appointment.

Q54 Keith Vaz: I understand that, but I am talking about the relationship with Select Committees. Civil servants do appear before Select Committees.

Mr Maude: I understand that. We are talking here about discussions between the relevant Secretary of State-the Minister in charge of the Department-and the Chair of the Select Committee. If the Minister in charge of the Department is not making the appointment, there is no point in having a discussion, I wouldn’t have thought.

Q55 Keith Vaz: Do you think that that discussion should be with the Permanent Secretary.

Mr Maude: It could be. I honestly do not have a view about that. It is not something that had occurred to me.

Q56 Mr Jenkin: Do you think it would be reasonable for a Committee to refuse an appointment on the basis that the role of the appointment is to scrutinise what the Government does, or some aspect of what the Government does, if the candidate is quite obviously a Whitehall insider?

Mr Maude: I know of no reason why a Select Committee should not form a view and make a recommendation on whatever grounds it likes.

Q57 Mr Jenkin: Would that not be a recommendation that a Minister would be obliged to accept?

Mr Maude: No.

Q58 Mr Jenkin: So we are in a situation where Select Committees might be making recommendations and Ministers are going to ignore these recommendations.

Mr Maude: No. I am just saying that Ministers will not automatically accept the recommendation, but will read them with interest.

Q59 Chair: In such a case as that, would it not be better if the Committee knew whether there were no good outside applicants for the job or if there were good outside applicants to be shortlisted-without knowing the names, of course? It is relevant to the Committee wondering why an insider has been offered this position, is it not?

Mr Maude: The extent to which Select Committees get involved in this process is something I know that the Commissioner for Public Appointments will have views about. I see no reason why there should not be early discussion between Ministers, where these are ministerial appointments, and the Select Committee Chair, including potentially canvassing names or certainly inviting suggestions for names.

Q60 Chair: That was not quite the point I was asking. If the Committee as a whole is forming a view in the circumstances that Bernard Jenkin described-that it is undesirable for an insider to have this job-ought it not to know, when the job is advertised, either that it was trawled in such a way that outsiders were given an opportunity or that there were some on the shortlist?

Mr Maude: Let me put it this way. If there were to be those early-stage conversations between the Minister and the Select Committee Chair, which could certainly revolve around what the job is and what kind of person would be appropriate to do it, such concern might easily be ventilated at that stage, and if that were a strong concern, Ministers would be able to bear it in mind.

Q61 Mr Jenkin: If it was in the Cabinet Office guidance that that was one of the steps to appointing one from the nominated lists, that would be an extremely good innovation.

Mr Maude: I am not committing that it will be in the guidance. At this stage, I think we should be looking to see how we can explore informal and pragmatic ways of trying it.

Q62 Mr Jenkin: But this is not about involving the Committee in the recruitment process, as, for example, we have done with the parliamentary ombudsman.

Mr Maude: Indeed.

Q63 Mr Jenkin: This is about consulting the Select Committee about the recruitment process and the profile of the candidate that is being sought. That would seem to be a good thing to include in the guidance.

Mr Maude: I am not saying that I am going to include in the guidance that there should be discussions at an early stage with the Select Committee Chair. I see no reason why that should not happen, but I would much rather we proceeded in an informal, pragmatic way. As I say, to put it in the vernacular, we should suck it and see.

Q64 Mr Jenkin: But guidance is only guidance. It is informal and pragmatic anyway.

Mr Maude: Yes, but we know that guidance tends to become more than guidance.

Q65 Mr Jenkin: The guidance says that if Parliament is in recess and you cannot get hold of the Committee Chair, you are just going to carry on and make the appointment anyway. How are we going to stop Governments-other Governments of course-from exploiting the recess in order to be able to make appointments without parliamentary pre-appointment hearings?

Chair: Leave your phone number.

Mr Maude: It is not unknown, is it, for Members of Parliament to be available during the recess?

Q66 Dame Anne Begg: What we definitely need more than anything else is clarity about what exactly the process is all about. That is partly because it may be that the Minister defines what the job is differently from the Select Committee. The pre-appointment hearing might start off almost on a different premise from when the appointment was done. While we have heard of the clear cases where there was an outcry about a particular appointment, in general it will not be as high profile as that and it is more likely to be some minor things, or less serious things, that the Committee is concerned about. Is there not a danger that, without that clarity, we end up wounding the candidate? It is not a fatal blow, but it undermines the ability of that person to go and do the job as the Minister perceived it, as opposed to what the Committee itself thought the job was about in the first place.

Mr Maude: The greater the extent to which there can be a common view of what the job involves the better. It would avoid the risk that you identify.

Q67 Dame Anne Begg: That is just one example, but is there not the danger-and it is actually a constraint on the Committee-that, perhaps, it does not write quite as critical a report as it might have wanted to because it knows it is not going to write a report that will stop the person getting the job, and nor indeed does it have a veto anyway? The Committee does not necessarily want to undermine the individual before they even start, when it knows they will get the job because they are on a path that they are going to get the job?

Mr Maude: At the end of it, these are ministerial appointments. Ministers have to take responsibility for their appointments. While it always makes sense to gather as much commonality of view before you make the appointment, at the end of it Ministers have to make the appointments.

Q68 Dame Anne Begg: But you do not think there is a danger that the individuals will be unable to do the job because of the ill-defined process that the pre-appointment hearing is at the moment?

Mr Maude: Select Committees, in the way they conduct pre-appointment scrutiny, have a responsibility to do that in a way that does not inflict damage on someone who may-or, in all likelihood, will-carry out the role.

Q69 Dame Anne Begg: That then means that the Committee is trying to do the job with one hand tied behind its back. It does not know who the other candidates were or if this is the best candidate. If it thinks the candidate before it does not have the specialist expertise it was expecting, it does not know whether any of the other candidates did at the moment. It is that lack of clear definition that makes almost a mockery of the process. You might as well not have had the pre-appointment hearing.

Mr Maude: You say that they are acting with one hand tied behind their back. The burden of responsibility does tie one’s hands to some extent.

Chair: I did not hear your last words there.

Mr Maude: If you carry a burden of responsibility, as Select Committees must when they carry out a public hearing, it does tie one’s hands to some extent.

Q70 Chair: But I think Dame Anne was suggesting that what was tying their hands was lack of knowledge relevant to the decision they felt they had to make.

Mr Maude: I do not think I really understand.

Q71 Chair: It is the question of whether there were other suitable candidates who have the expertise that was required, or whether, in making the recommendation, the selection body was choosing among candidates none of whom had a high level of expertise.

Mr Maude: Yes. Unless you go down the path of making this effectively, as Professor Hazell was saying, co-decision, which you could do-it would be a major constitutional change but you could do that-there will be constraints of that sort.

Q72 Mr Jenkin: I strongly agree with you. This is not co-decision, but in order for the pre-appointment process to have any sort of sense of conviction behind it, is it not reasonable that a Minister, or indeed the official that has been conducting the process or perhaps the executive search agency, should informally and pragmatically brief the Committee before the pre-appointment hearing about how the thing was conducted, how many people applied, how many people were shortlisted, how many people were interviewed, roughly what was the profile of each candidate who was interviewed, and why the decision was made? Would not that make a lot of sense? Presumably, if it has all been done correctly, that would give the endorsement of the Select Committee much more authority. Is that not perfectly reasonable?

Mr Maude: I understand the point you are making, but we all know that actually what people want to do in these circumstances is to talk about names.

Q73 Mr Jenkin: No, I don’t think so. You are quite wrong about that.

Mr Maude: That is very high-minded.

Q74 Mr Jenkin: We absolutely recognise that you cannot bring all the names into the public domain. You cannot do that.

Mr Maude: I think that if you do not do that, you are inserting another stage in the process. These processes are gummed up and bureaucratic enough anyway.

Q75 Chair: Looking at the pragmatic view, I have known cases where Ministers have said, "This was the only candidate the appointing body would have been prepared to put forward from those on the shortlist," which is a very different situation from saying they had a very difficult choice between two or three people and simply informally giving this information. What Mr Jenkin is presumably suggesting is that, in keeping your pragmatic approach, you would be happy to see that develop.

Mr Maude: So there might be a letter saying, "There were 27 applications, 12 longlisted, four shortlisted. Two were regarded as appointable and I chose X."

Q76 Mr Jenkin: I would suggest an informal verbal briefing because as soon as you put things on bits of paper they become very limited. I would suggest that an off-the-record briefing with the Committee before the pre-appointment hearing would put it in context and be a very sensible way of proceeding.

Mr Maude: I can take that away and consider it.

Q77 Mr Jenkin: I have been on the panel choosing the ombudsman. That is what I am going to do with the Public Administration Select Committee before vacating the Chair so that the pre-appointment hearing is conducted in my absence. I see absolutely no reason why we should not do that. Incidentally, congratulations to Philippa Helme for having conducted this process rather more swiftly than many other public appointments.

Mr Maude: Very good.

Q78 Mr Tyrie: Let me follow up on all the questions that have just been asked, and in particular Andrew Miller’s. Judging from your early remarks, it sounded as if you did think there should be consultation, particularly with the Chair. You reiterated that twice, I think. Do you think that the Prime Minister should make clear to his ministerial team that there should be a predisposition in favour of substantive consultation?

Mr Maude: I am not going to go that far.

Q79 Mr Tyrie: I had not noticed you go any distance at all yet. We are looking forward to spotting the territory that you feel we-

Mr Maude: I am not going to go that far.

Q80 Mr Tyrie: How far are you prepared to travel beyond saying that this is a ministerial appointment?

Mr Maude: Not very far really.

Q81 Mr Tyrie: Any distance at all, or shall we go and have a cup of tea?

Mr Maude: Yes, that is fine for me. I have said I see no reason why there should not be, if Ministers and the Select Committee Chair wish, an early stage conversation of the type I have outlined. I have now reiterated it a third time.

Mr Tyrie: You have said that-

Mr Maude: But you want me immediately to say I am going to ask the Prime Minister to recommend that it should happen in every case, and I am not going to do that.

Q82 Mr Tyrie: I have asked you something pretty mild, Minister. I have said: do you think there should be a predisposition in favour of substantive discussion, and would you be prepared to have a substantive discussion with the Prime Minister about it?

Mr Maude: If the topic arose, I would certainly have a conversation.

Q83 Mr Tyrie: Dear oh dear. If the public are watching this, which I doubt they are, they would not be-

Mr Maude: The public appetite for this is probably fairly limited, to be honest.

Andrew Miller: It is "Yes Minister".

Mr Tyrie: If you heard the previous session-

Mr Maude: You will find it is slightly like drawing blood from a stone. I am a gradualist in constitutional matters. It was a fairly major step to go down the path of Select Committees conducting pre-appointment hearings. It aroused a certain amount of controversy and we are still feeling our way with this. I am willing to contemplate minor further steps but, in reality here, there will always be a perfectly healthy and sensible tension between Select Committees that want more involvement and engagement, and something which I accept will fall short of co-decision, but will feel more like co-decision. I just think that we should progress very slowly.

Q84 Mr Tyrie: Do you think that the arrangements that have been put in place for the appointment of the Chairman of the OBR were a mistake?

Mr Maude: I heard you interrogating Professor Hazell about that.

Q85 Mr Tyrie: I was not cross-examining him; I was just asking him questions, Francis.

Mr Maude: Exactly, and very courteously as well. Do I think it was a mistake? I think you can distinguish that case from other cases.

Q86 Mr Tyrie: What is the distinction?

Mr Maude: The distinction is that the body, the Office for Budget Responsibility, is to some extent embedded within the Treasury and draws on Treasury resources, and yet there is a very strong need for the Chair of the OBR to demonstrate clear independence and for it not to be possible for that person to be seen as a Treasury stooge. You will know better than anyone that huge amounts hang on what the OBR says about the fiscal projections. That is of massive import. You can make a case for distinguishing it from the broader run of appointments.

Q87 Mr Tyrie: So where there are cases of institutions that in some way are embedded or enmeshed with the Department, there might be a case for looking at OBR treatment. We seem to be spotting this blood from the stone again, do we not?

Mr Maude: Yes.

Q88 Mr Tyrie: That was a question asking for a substantive response.

Mr Maude: This is the issue. As soon as you make an exception, you then wish to extrapolate a principle from that, and that then gets applied to a whole lot of other appointments. I am not willing to go down that path.

Q89 Chair: I am going to have to draw these proceedings to a close. I simply say that when this Committee reports, some further discussion will be necessary. I do not think we should continue in a situation where the Cabinet Office guidelines and our guidelines to Committees do not roughly correspond. I hope we can have a productive discussion at that point.

Mr Maude: I feel confident that we can have a constructive and creative discussion at that stage.

Chair: Thank you.

Prepared 24th June 2011