1.Since 1995 public appointments in the UK have been regulated according to principles drawn up by Lord Nolan and the Committee on Standards in Public Life. The Committee was set up in 1994 by a Prime Ministerial announcement. Lord Nolan and the Committee on Standards in Public Life was asked by the then Prime Minister, Sir John Major, to:
Examine current concerns about standards of conduct of all holders of public office, including arrangements relating to financial and commercial activities and make recommendations as to any changes in present arrangements which might be required to ensure the highest standards of propriety in public life.
A principal area of examination for the Committee in its first report (the Nolan report) was the question of appointments to Quangos (Quasi Autonomous Non-governmental bodies).
2.Prior to the Nolan report, each Government department had been responsible for making its own appointments to Non-Departmental Public Bodies (NDPB) and NHS bodies. As the Nolan report acknowledged, the “role of the central departments - the Treasury and the Office of Public Service and Science (OPSS) in the Cabinet Office - is limited to issuing guidance and maintaining a list of potential candidates.” The Public Appointments Unit (PAU) in the OPSS also produced a ‘Guide to Public Appointments Procedures’, which included “mandatory requirements for advising Ministers; advice on maintaining candidate lists/databases, advertising, executive search consultants and interviewing; examples of good practice; and sources of additional information.” While Government departments were recommended to consult the PAU when making appointments, they were not required to do so and, at the time of the Nolan report, the majority of departments maintained their own lists of appointments and some produced their own guidance.
3.The Nolan report noted that a number of concerns had been raised about the existing public appointments process, particularly about the lack of openness and transparency as to how candidates were recruited and appointments made, and regarding the propriety of the appointments process, and noted that:
There is much public concern about appointments to Quango Boards and widespread belief that these are not always made on merit.
Although it found no strong evidence to support perceptions of bias, the report noted concerns expressed by some about the lack of a clear system of checks and balances:
If decisions [about appointments] are not made on a personal and party basis - or even on caprice and whim - it is [according to some critics] largely because of the good sense of those in office, rather than because the system prevents such abuses. We share some of this concern, particularly about the absence of independent checks and balances, not least because suspicions of bias remain nearly impossible to prove or disprove. The resulting uncertainty does not provide solid ground on which to build public confidence in the system.
In evidence to PACAC, Sir David Normington, who was at the time of the Nolan report a civil servant, told us that these concerns had merit. He told us that the pre-Nolan system had other disadvantages, including decreasing the diversity of appointments:
I was a civil servant in the 1990s, before 1995, when there was no regulation and I do remember it. It was a very informal time. People’s names popped rather surprisingly out of hats. People got together and said, “Do you know anybody who could have this role?” I don’t exaggerate. Sometimes there was selection panels and sometimes there was not but it was a wholly informal system and—this is really important—[the people] who we saw appointed, some of them very good, were mainly white men of a certain age from a certain background.
4.In addition, the Nolan report argued that “the main weakness” in the public appointments regime was “the absence of effective external scrutiny” with “no mechanism for the regular review of the work of individual departments and no means of identifying failures of system or practice.” The Nolan report stated that the perception of bias in appointments was ‘quite widespread’ and that appointments ‘came from a narrow circle of business people’. This view is borne out by contemporary debates in Parliament: in the House of Lords, for example, Lord Morris of Castle Morris singled out the Welsh Office for criticism:
The Welsh Office has appointed a total of 1,261 people to those bodies; and, not surprisingly, 82 per cent of those appointed were male. Even when a token woman is occasionally appointed it often gives rise to the suspicion that it is another party political appointment, as when a constituency secretary to a Welsh Office Minister was appointed to the board of the South Glamorgan Health Authority, and, after protests in Parliament led by Welsh Labour Members, felt obliged to tender her resignation. The remark attributed in the press recently to the noble Baroness, Lady Denton, to the effect that she had never knowingly appointed a Labour supporter to any of the jobs under her wing would cause very little surprise in the hills and valleys of Wales.
5.While the Nolan report concluded that Ministers should remain accountable for public appointments, it did recommend a set of checks and balances on this exercise of Ministerial power:
In addition, the Public Appointments process would operate under the Seven Principles for Public Life proposed by the Nolan report:
Box 1: The Seven Principles of Public Life
(1)Selflessness: Holders of public office should act solely in terms of the public interest.
(2)Integrity: Holders of public office must avoid placing themselves under any obligation to people or organisations that might try inappropriately to influence them in their work. They should not act or take decisions in order to gain financial or other material benefits for themselves, their family, or their friends. They must declare and resolve any interests and relationships.
(3)Objectivity: Holders of public office must act and take decisions impartially, fairly and on merit, using the best evidence and without discrimination or bias.
(4)Accountability: Holders of public office are accountable to the public for their decisions and actions and must submit themselves to the scrutiny necessary to ensure this.
(5)Openness: Holders of public office should act and take decisions in an open and transparent manner. Information should not be withheld from the public unless there are clear and lawful reasons for so doing.
(6)Honesty: Holders of public office should be truthful.
(7)Leadership: Holders of public office should exhibit these principles in their own behaviour. They should actively promote and robustly support the principles and be willing to challenge poor behaviour wherever it occurs.
6.The Nolan principles remain as important today as they were when they were first announced in 1995. There was a consensus amongst the witnesses to our Inquiry, including both advocates and critics of the Grimstone report, in favour of these principles. It is absolutely clear that public trust depends upon the retention of the Nolan Principles in full. Any reform of the public appointments process must build upon, and strengthen, these principles if it is to command the public’s confidence and support.
7.The Government took forward the Nolan recommendations for Public Appointments through the Public Appointments Order in Council 1995, establishing the post of a Commissioner for Public Appointments. The current powers and remit of the Commissioner for Public Appointments can be found in the Public Appointments Order in Council 2015. The Commissioner’s responsibilities include:
8.The types of appointments that fall within the remit of the Commissioner for Public Appointments include:
In addition, the Commissioner may, at the request of a Minister of the Crown, carry out such additional functions relating to appointments (whether public or otherwise) as may be agreed between the Minister and the Commissioner. However, the Commissioner is not responsible for making appointments himself. Rather he provides information about the availability of public appointments and deals with the procedures for responding to queries relating to appointments that fall outside his remit, for example civil service or judicial appointments. The running of the appointments process is the responsibility of the relevant Government department.
9.Since the post and office of the Commissioner was established in 1995, there have been four Commissioners for Public Appointments. Between 2011 and April 2016, Sir David Normington held the role alongside the post of First Civil Service Commissioner.
10.During Sir David’s tenure, he made a number of changes to the role of Commissioner and to the appointments process. These changes included:
The Government agreed with Sir David’s reforms. It established a Centre for Public Appointments, which now sits within the Cabinet Office. The Centre says that it “provides leadership and guidance to departments both to improve the quality of the appointments process and also to widen the pool of candidates applying for vacancies”. It has responsibility for promoting public appointments, improving diversity, developing policy and supporting talent.
11.Whilst Sir David’s reforms have had an impact, in his evidence to the Grimstone review, he said that they had had less impact than he had initially hoped. Sir David said:
It has, however, been a slow process getting Departments to use their new discretions. Few put real effort into attracting a more diverse field preferring to depend on conventional advertising or headhunters. The selection process is often left in the hands of sponsor teams, which have no experience of recruitment and/or with junior officials whose responsibility for appointments is one of many. Some Departments have found it convenient to stick to the prescription of the previous Code as a comfort blanket; some have continued to use their previous list of assessors as independent members, rather than using the requirement to engage an independent member to bring wider perspective and challenge to the Department. This has also coincided with a period of retrenchment in the resources available in Departments for public appointments. A number of central units in Departments, which had real expertise in public appointments and which I had hoped would drive the change, have been abolished.
Sir David said that he was preparing a new code for public appointments, when the Grimstone review was announced, which would have helped deal with some of these issues.
12.Sir Gerry Grimstone said that Sir David had done a “tremendous job within the experience of his background”. The Rt Hon Matthew Hancock MP, Minister for the Cabinet Office and Paymaster General, also paid tribute to Sir David’s work, saying that “Sir David reduced some of the bureaucracy around the system and that was commendable and it made progress but the system remains much too bureaucratic and unclear.”
13.Sir Gerry Grimstone and the Minister rightly commended Sir David Normington for his work as Commissioner for Public Appointments. Sir David’s work has made the system of appointments much more efficient than it was in the past while retaining its independence and conformity with the Nolan principles. Sir David’s approach has been widely endorsed and his 2012 reforms have simplified the system. The Government and Sir Gerry Grimstone have judged prematurely that these reforms will necessarily fail, before Departments have fully implemented them.
14.One of the Commissioner’s main responsibilities is to publish the Code of Practice that sets out the regulatory framework for public appointments that fall under the Commissioner’s remit. As the Commissioner for Public Appointments’ website explains, “the Code is based on three core principles - merit, openness and fairness - and sets out the essential requirements for meeting those principles.” The most recent Code of Practice (prepared by Sir David) was published in 2012. As the Public Administration Select Committee reported in 2011, this (then draft) code simplified the process of public appointments, made clear what procedures (such as an interview panel) were essential and sought to make the entire process more efficient. The Government, in its response to Sir David’s suggested new code, welcomed “the draft Code which focuses on the key principles and elements of process and practice which government departments should adhere to when making public appointments.”
15.As emphasized by the Nolan report in 1995, Ministers are ultimately responsible for public appointments and under the existing appointments system are involved at every key stage of the appointment process, including making the final choice from the list of appointable candidates that they are presented with by the Interview Panel. The Panel must include an independent member, a senior official (charged with communicating the Minister’s views to the Panel) and a Chair (either appointed by the Minister or an assessor from the Public Appointment’s Commission). The Panel prepares a report covering all the individuals interviewed, Ministers are entitled to meet with all the appointable individuals and they can be informed of all stages of the appointment process. Ministers currently should be:
Finally, at the conclusion of the process, the Minister may choose not to appoint any of the appointable candidates and re-run the competition.
16.There is a broad consensus in favour of Ministers being ultimately responsible for public appointments. The Nolan report, for example, emphasized that Ministers are ultimately responsible for making public appointments and the Committee on Standards in Public Life has considered this principle on two occasions since the Nolan principles were introduced. In 2005, the Committee said that Ministers should be involved in appointments as they were “the legitimate embodiment of ministerial responsibility and accountability and the requirement to make excellent merit-based appointments.” In its 2005 report, the Committee reaffirmed its support for the public appointments system as created in 1995, making recommendations to simplify the process and give more confidence to the public.
17. In 2011, the Committee returned to the issue and said
The ultimate responsibility for public appointments remains with Ministers. It is important that the regulatory framework assists them in ensuring that appointments are based on merit, that they are transparent and that there is an independent element involved.
The most recent Commissioner for Public Appointments, Sir David Normington, is also strongly in favour of Ministers continuing to play a key role in the appointments process. According to Sir David:
It is essential for the health of the democratic process and the effective conduct of Government that Ministers make the final decision on who is to sit on the boards of these bodies and it is inevitable and desirable that they should choose people who are willing to work within the policy framework of the Government of the day.
18.Flexibility for Ministers in the existing public appointments process is provided by a number of specific exemptions where Departments have the ability to appoint without following the Code in every respect. As Sir David Normington has explained, “the Commissioner also has an overriding power to grant exemptions where it is justified by the public interest. These are usually used where there is an urgent business need or an unexpected resignation or illness.” The Minister cited, as an example of an exceptional appointment, the appointment of an interim chair of the Environment Agency after the resignation of Sir Phillip Dilley in January 2016.
19.The Commissioner can and has used his powers of exception to make appointments, at the request of Ministers, without a competition where there is an overriding public interest in filling a role quickly, or where there is an outstanding candidate with unique skills and knowledge. According to Sir David:
Provided this is used sparingly and there is complete transparency about why the appointment is being made without a competition, I do not see why it could not be used in more cases. It might help to meet Ministers’ concerns that sometimes a competition is unnecessary when everyone agrees that there is a highly suitable candidate.
20.Appointments to public office are rightly ministerial appointments and Ministers must retain the ability to have the final say on appointments. However, it is equally imperative that Ministers make public appointments in a properly regulated environment, with a strong Commissioner for Public Appointments equipped with the powers required to maintain the Nolan principles and public confidence in the appointments process. This is compatible with the ability of Ministers to appoint candidates who they are confident will be able to work within the framework of present Government policy, and as Sir David’s comments show, that can be achieved within the present system.
1 For more background on the Committee for Standards in Public Life see L. Maer, Committee on Standards in Public Life, House of Commons Library Briefing Papers, May 2015.
2 Standards in Public Life, First Report of the Committee on Standards in Public Life, May 1995, Terms of Reference.
3 Standards in Public Life, First Report of the Committee on Standards in Public Life, May 1995, p.68.
4 Standards in Public Life, First Report of the Committee on Standards in Public Life, May 1995, p.68–69.
5 Standards in Public Life, First Report of the Committee on Standards in Public Life, May 1995, p.69.
6 Standards in Public Life, First Report of the Committee on Standards in Public Life, May 1995, p.6.
7 Standards in Public Life, First Report of the Committee on Standards in Public Life, May 1995, p.71.
8 Standards in Public Life, First Report of the Committee on Standards in Public Life, May 1995, pp.70, 74.
9 Hansard HL Deb, 19 January 1994, .
10 Standards in Public Life, First Report of the Committee on Standards in Public Life, May 1995, p.10–11.
11 , August 2015.
12 , August 2015.
14 Centre for Public Appointments,
15 Review of the Office of Public Appointments Commissioner (OCPA), Note from Sir David Normington, Public Appointments Commissioner and First Civil Service Commissioner, September 2015, p.10.
19 The Commissioner for Public Appointments, Code of Practice for Ministerial Appointments to Public Bodies, 1 April 2012.
20 Public Administration Select Committee, Public Appointments: Regulation, Recruitment and Pay, p.7.
21 Public Administration Select Committee, Public Appointments: regulation, recruitment and pay: Government Response to the Committee’s Fourteenth Report of Session 2010–12, p.3.
22 Standards in Public Life, First Report of the Committee on Standards in Public Life, May 1995, p.11.
25 Standards in Public Life, First Report of the Committee on Standards in Public Life, May 1995, p.11.
26 Committee on Standards in Public Life, Getting the Balance Right: Implementing the Standards of Conduct in Public Life, Tenth Report, Cm 6407, January 2005, p.21.
27 Committee on Standards in Public Life, Getting the Balance Right: Implementing the Standards of Conduct in Public Life, Tenth Report, Cm 6407, January 2005.
28 Committee on Standards in Public Life, Response to the Review of Public Appointments Regulation, September 2011, p.2.
29 Review of the Office of the Commissioner for Public Appointments, Note by Sir David Normington, Public Appointments Commissioner and First Civil Service Commissioner, p.8.
30 Review of the Office of the Commissioner for Public Appointments, Note by Sir David Normington, Public Appointments Commissioner and First Civil Service Commissioner, p.4.
32 Review of the Office of the Commissioner for Public Appointments, Note by Sir David Normington, Public Appointments Commissioner and First Civil Service Commissioner, p.8.
5 July 2016