3Conclusion
Wider reflections on the role
48.The Secretary of State’s immediate response to our initial post-hearing letter made us concerned about the Government’s regard for Parliament’s legitimate, well-established role in pre-appointment scrutiny. Cabinet Office guidance states “On receipt of the committee’s report, Ministers will consider the report before deciding whether to proceed with the appointment”. The letter we sent to the Secretary of State immediately following the hearing with Baroness Stowell represented the considered view of all Members of the Committee who participated in the exercise, who had worked hard to follow established procedures to scrutinise a public appointment of substantial significance, especially at this time of crisis for the charity sector.
49.The Secretary of State’s quick response to our initial letter showed scant regard for both due process, and for Parliament’s role in public appointments. The Commission is accountable to Parliament, not the Government of the day. There is an established role for select committees in the public appointment process, for good reasons. Ministers should, therefore, listen to their advice, rather than proceed regardless on as if committees’ careful work had never happened.
50.A Select Committee’s role in the appointment process is advisory but historically the influence of committees has been strong. Select Committee advisory decisions have only rarely been set aside by appointing Ministers (three times out of nine negative committee reports over the course of the 100 or so hearings held since 2005). However, the most recent of these three cases—the July 2016 appointment of the Chief Inspector of Ofsted despite the Education Committee’s objection—was very similar to our own. The Government continued with the appointment regardless despite a unanimous negative Committee report. We must ensure this is not becoming a trend.
51.The way in which the 2016 Grimstone Review was implemented gave extra powers to Ministers over public appointments, effectively awarding them an override power and the freedom, if they chose, to appoint people deemed unappointable.42 It is all the more crucial that Parliament can ensure that ministerial powers in the public appointment process are not misused. The Government has a duty to take Parliament’s views seriously, and to respond to them in a carefully considered fashion. The Secretary of State must now show, in his response to this report, that he is capable of demonstrating a thoughtful, judicious and well-considered approach to the exercise of his statutory duties.
52.In 2011 the Liaison Committee recommended that the procedure for pre-appointment hearings should be refined to provide for a resolution of the House of Commons confirming appointments in certain cases.43 The Treasury Committee is currently the only committee with such an arrangement.44 Following an agreement confirmed in a letter between the then Chair, Andrew Tyrie, and the then Chancellor, George Osborne, should the Committee recommend that the appointment (in this case of the chief executive of the Financial Conduct Authority) be put as a motion to the whole House, the Government will make time for the motion and respect the decision of the House.45
53.We think the time may have arrived at which it would be of benefit to both the Government and the House if arrangements for responding to pre-appointment hearings were put on a surer and clearer footing. We intend to consult with other interested committees with a view to bringing forward a new Standing Order which, in the event of a negative finding by a committee in relation to a proposed public appointment, would trigger an automatic ninety-minute debate on the floor of the House where Ministers would have the opportunity to set out their arguments for disagreeing with a Committee and the House as a whole would have the opportunity for coming to a decision on whose arguments it found more persuasive. We are sure the Government would welcome the opportunity to reassure the public that all major public appointments are made on the basis of an unimpeachably fair and open process, and that the candidates would be strengthened in their ability to deliver what was being asked of them (often a very challenging task) by the knowledge that they had been endorsed by the House of Commons.
42 In 2016, following a review led by Sir Gerry Grimstone, the Government established a review of the public appointments process, recommending that a number of changes be made to the system. Changes to the role of the Commissioner were recommended, with many of the Commissioner’s formal powers within the public appointments process removed (for example removing the power to appoint independent assessors to an interview panel). In “exceptional occasions” ministers may decide “that a full appointments process is not appropriate or necessary” (although various safeguards are applied to this power.
43 LC, ‘Select Committees and Pre-Appointment reports’ (2011)
44 Other Select Committees possess other forms of veto power over public appointments made by the Government. Some of these powers exist in legislation; for example, under Section 1, Chapter 44 of the National Audit Act 1983, the Prime Minister cannot table a motion for the appointment of the Comptroller and Auditor General without the agreement of the Chair of the Public Accounts Committee. Other types of veto power are simply de facto conventions between the Government and the House. In 2011, for example, the Government announced that it would accept the Justice Committee’s conclusion on whether or not the candidate for Information Commissioner should be appointed (the DCMS Committee is now responsible for the ICO, and this power effectively remains).
27 February 2018