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HC 1230 Published on 4 September 2011

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House of Commons

Liaison Committee

Select Committees and Public Appointments

First Report of Session 2010–12

Report, together with formal minutes, oral and written evidence

Ordered by the House of Commons to be printed 14 July 2011

Liaison Committee

The Liaison Committee is appointed to consider general matters relating to the work of select committees; to advise the House of Commons Commission on select committees; to choose select committee reports for debate in the House and to hear evidence from the Prime Minister on matters of public policy.

Current membership

Sir Alan Beith MP (Liberal Democrat, Berwick-upon-Tweed) (Chair) The Chair of the following Select Committees are members of the Liaison Committee:

Administration – Rt Hon Sir Alan Haselhurst MP (Conservative, Saffron Walden) Backbench Business – Natascha Engel MP (Labour, North East Derbyshire) Business, Innovation and Skills – Mr Adrian Bailey MP (Labour/Co-op, West Bromwich West) Communities and Local Government – Mr Clive Betts MP (Labour, Sheffield South East) Culture, Media and Sport – Mr John Whittingdale MP (Conservative, Maldon) Defence – Rt Hon James Arbuthnot MP (Conservative, North East Hampshire) Education – Mr Graham Stuart MP (Conservative, Beverley and Holderness) Energy and Climate Change – Mr Tim Yeo MP (Conservative, South Suffolk) Environmental Audit – Joan Walley MP (Labour, Stoke-on-Trent North) Environment, Food and Rural Affairs – Miss Anne McIntosh MP (Conservative, Thirsk and Malton) European Scrutiny – Mr William Cash MP (Conservative, Stone) Finance and Services – John Thurso MP (Liberal Democrat, Caithness, Sutherland and Easter Ross) Foreign Affairs – Richard Ottaway MP (Conservative, Croydon South) Health – Rt Hon Stephen Dorrell MP (Conservative, Charnwood) Home Affairs – Rt Hon Keith Vaz MP (Labour, Leicester East) Human Rights (Joint Committee) – Dr Hywel Francis MP (Labour, Aberavon) International Development – Rt Hon Malcolm Bruce MP (Liberal Democrat, Gordon) Justice – Rt Hon Sir Alan Beith MP (Liberal Democrat, Berwick-upon-Tweed) Northern Ireland Affairs – Mr Laurence Robertson MP (Conservative, Tewkesbury) Political and Constitutional Reform – Mr Graham Allen MP (Labour, Nottingham North) Procedure – Rt Hon Greg Knight MP (Conservative, East Yorkshire) Public Accounts – Rt Hon Margaret Hodge MP (Labour, Barking) Public Administration – Mr Bernard Jenkin MP (Conservative, Harwich and North Essex) Regulatory Reform – Mr Robert Syms MP (Conservative, Poole) Science and Technology – Andrew Miller MP (Labour, Ellesmere Port and Neston) Scottish Affairs – Mr Ian Davidson MP (Labour/Co-op, Glasgow South West) Selection – Geoffrey Clifton-Brown MP (Conservative, The Cotswolds) Standards and Privileges – Rt Hon Kevin Barron MP (Labour, Rother Valley) Statutory Instruments – Mr George Mudie MP (Labour, Leeds East) Transport – Mrs Louise Ellman MP (Labour/Co-op, Liverpool Riverside) Treasury – Mr Andrew Tyrie MP (Conservative, Chichester) Welsh Affairs – David T C Davies MP (Conservative, Monmouth) Work and Pensions – Dame Anne Begg MP (Labour, Aberdeen South)

Powers

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Publications

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Committee staff

The current staff of the Committee are Jacqy Sharpe (Clerk), Philippa Helme (Second Clerk), Paul Evans (Clerk to the National Policy Statements Sub-Committee), Kevin Candy (Senior Committee Assistant) and Lee Chiddicks (Committee Assistant).

Contacts

All correspondence should be addressed to the Clerks of the Liaison Committee, House of Commons, London SW1A 0AA. The telephone number for general enquiries is 020 7219 5675; the Committee’s email address is [email protected]

Select Committees and Public Appointments 1

Contents

Report Page

Summary 3

1 Background 5 Introduction 5 The Constitution Unit findings 6 The Institute for Government findings 6 Recent developments 7

A Statutory Veto 7 Joint recruitment by Parliament and Government 7 An “effective veto” 7 Broadening the scope 7

2 What are pre-appointment hearings for? 8

3 Agreeing the job specification 10

4 Information about other candidates 12

5 Power of veto 14 The Office of Budget Responsibility - an exceptional case? 14 An “effective veto” 15 A power of dismissal? 18

6 Which posts should be subject to the hearings? 19 The current list 19 The IfG’s proposals 19 The Government’s proposals 19 Our proposals 20 Political appointments 21

7 Consolidated guidance 22

Conclusions and recommendations 23 Annex 1: List of pre-appointment hearings held, July 2008 to July 2011 26 Annex 2: Table of proposed categorisations of posts to be subject to pre-appointment hearings 31 Annex 3: Indicative list of posts to be subject to pre-appointment hearings 32 Annex 4: Joint Guidance for Departments and Select Committees 35

Formal Minutes 46

Witnesses 47

List of printed written evidence 47


Summary

In this report we consider the experience of some three years of holding “pre-appointment” hearings by select committees to examine the “preferred candidate” for certain public appointments, before a Minister proceeds to confirm an appointment.

The experiment has been a success and the procedure represents a modest step forward in securing democratic accountability of ministerial decision-making. However, we recommend a number of changes to the system as it stands.

The list of posts to which the procedure applies should be refined. We propose, for the purposes of further discussion, a three-part list. Posts in the first tier are those we consider to be of sufficient constitutional significance as to require a process which is effectively a joint appointment by Government and the House of Commons. Posts in the second tier are those which we propose should be subject to an enhanced and improved version of the current process, and which should be subject to an “effective veto” by the House of Commons or its committees. For posts in the third tier we propose that a pre-appointment hearing should be at the discretion of committees.

The procedure for pre-appointment hearings should be refined to provide for:

• greater consultation between Ministers and committees at the outset of the recruitment process on the definition of the post and the criteria for selection;

• more information to be provided to committees in advance of hearings about the field of candidates from which the preferred candidate has been selected;

• a recognition that it may be appropriate for the Chair of a committee to discuss privately with a Minister any reservations the Committee may have about a candidate before issuing its report and before the Minister proceeds to a decision;

• a resolution of the House of Commons confirming appointments in certain cases.

We annex to this report a draft of proposed guidance to be agreed between this Committee and the Government setting out the new procedures.


1 Background

Introduction

1. In 2008, following an undertaking made in the Governance of Britain Green Paper1 and negotiations between the Cabinet Office and the Liaison Committee, a system of “pre-appointment hearings” by select committees was introduced.2

2. In its final report of the last Parliament, the previous Liaison Committee looked at the findings of research which it had commissioned (jointly with the Cabinet Office) from the Constitution Unit at University College London (UCL) on the operation of the pre-appointment hearings system.3 The research found that the hearings had met their purpose and that they should continue. The Committee agreed with these findings and recommended: a review of the criteria for determining which posts should be subject to pre-appointment hearings which were generally agreed to be inconsistent; that committees should be consulted on the formulation of job descriptions; that there should be provision for a form of conciliation process when committees were minded to recommend against an appointment; and that there should be agreed guidelines between the Liaison Committee and the Government on the purpose, scope and conduct of the hearings.4

3. The new Government, responding after the election in November last year, broadly accepted these recommendations, and agreed to further discussions.5 We decided to hold a short inquiry into how to implement the changes on which there appeared to be consensus, taking account of new research published by the Institute for Government (IfG, an independent think tank) in March 20116 and other recent developments.7

4. We received written evidence from the Commissioner for Public Appointments, the Chair of the Public Chairs’ Forum and the Constitution Unit, UCL.8 We also held an evidence session on 16 June with Lord Adonis and Akash Paun of the Institute for Government and Professor Robert Hazell and Peter Waller of the Constitution Unit as well as the Rt Hon Francis Maude MP, Minister for the Cabinet Office.9 We thank all those who contributed to our inquiry.

1 Cm 7170, July 2007

2 Liaison Committee, First Special Report of Session 2007-08, Pre-appointment hearings by select committees: Government response to the Committee’s First Report of Session 2007-08, HC 594, p 1

3 Liaison Committee, Second Report of Session 2009-10, The Work of Committees in Session 2008-09, HC 426

4 ibid, paras 60-72

5 Liaison Committee, Second Special Report of Session 2010-11, Pre-Appointment Hearings: Further Government Response to the Committee’s Second Report of Session 2009-10 (The Work of Committees in 2008-09) , HC 564

6 Institute for Government, Balancing Act: the right role for parliament in public appointments, March 2011, www.instituteforgovernment.org.uk (hereafter “Balancing Act”)

7 See paras 9 to 13 below

8 QQ 1 to 45

9 QQ 45 to 89

6 Select Committees and Public Appointments

The Constitution Unit findings

5. The Constitution Unit’s research found that the candidates themselves were generally content with the process, both in principle and in practice. Many welcomed the public endorsement of their appointment, which had provided “additional legitimacy” in their new role. Contrary to the fears of many (including the Government), there was no evidence that the addition of pre-appointment hearings had acted as a deterrent to prospective applicants to the posts concerned. The reservations expressed within Government departments about the process mostly related to the addition of an extra stage to what is already a lengthy timetable. Otherwise, they were largely neutral. 10

6. The main reservations about the new arrangements were expressed by committee members themselves to the researchers. The UCL report found that some Members were uncertain about the precise purpose of the hearings and expressed some frustration at the apparent lack of a decisive role in the process of appointment. However, most candidates interviewed by the research team said that they probably would not have taken up the post in the event of a negative report. There were few complaints about how committees had conducted the hearings: “in general the candidates were complimentary about the way the Committee had set about their task”, according to the report.11

7. The UCL research team suggest four options for the future development of pre-appointment hearings:

• a greater role for Parliament: for example, engagement with more than one candidate and a power of veto;

• the status quo, perhaps with some modest adjustments to the appointments subject to hearings and the current process;

• a slight step back: effectively to replace pre-appointment scrutiny with post-appointment or pre-commencement scrutiny;

• a hybrid approach: a greater role for Parliament in a smaller number of appointments.12

The Institute for Government findings

8. The IfG report, published in March this year, examined the operation of pre-appointment hearings so far. It recommended four criteria (which it set out) which should be applied to produce a three-tier list of posts. Category A appointments (about two dozen in their calculation) would be subject to an enhanced process including: early consultation on the definition of the role; an “effective” (not necessarily statutory) veto by a select committee over the appointment; scrutiny of re-appointments; an effective veto by the committee over dismissal; plus a version of the “mediation procedure” proposed by the Liaison Committee. Category B appointments would be subject to procedures which were broadly the same as the present system (plus a requirement for Ministers to justify before

10 See Second Report from the Liaison Committee of Session 2009-10, op cit, Annex 3, pp 68-133, para 3.8

11 ibid, para 3.2

12 ibid, Chapter 6


the committee any decision to ignore their recommendation not to appoint). Category C appointments would be those where committees would be asked whether they wished to invoke the procedure (with an implicit expectation that in most cases they would not). 13

Recent developments

9. There have also been a number of developments in relation to appointments to certain posts.

A Statutory Veto

10. The Budget Responsibility and National Audit Act 2011 makes the appointment and dismissal of the Chair and independent members of the Office for Budget Responsibility (OBR) subject to consent by the Treasury Select Committee.

Joint recruitment by Parliament and Government

11. The recruitment process for the Parliamentary and Health Service Ombudsman was changed better to reflect the parliamentary nature of the role. The recruitment was led by Parliament, in close co-operation with the Government (Cabinet Office and Department of Health). The Government tabled two motions to allow the House of Commons to approve the appointment and remuneration of the candidate which were debated once the Public Administration Select Committee had conducted a pre-appointment hearing with the preferred candidate.14

An “effective veto”

12. The Justice Minister announced to the House in February 2011 that, as part of the wider measures to strengthen the independence of the office of the Information Commissioner, the Government would accept the Justice Committee's conclusion from its pre-appointment hearing on whether or not the preferred candidate for the post of Information Commissioner should be appointed.15

Broadening the scope

13. Although the post of Chair of the BBC Trust is not on the current list of pre-appointment posts the selection of Lord Patten as the new Chair was made subject to a pre-appointment hearing which took place on 10 March.16

13 Balancing Act, pp 26-30

14 Ninth Report from the Public Administration Select Committee, Session 2010-12, Pre-appointment Hearing for the Post of Parliamentary and Health Service Ombudsman, HC 1220-I and II; Votes and Proceedings, 18 July 2011, item 8

15 HC Deb, 16 February 2011, cc 87-88WS

16 Second Report from the Culture, Media and Sport Committee of Session 2010-12, Pre-appointment hearing with the Government’s preferred candidate for the Chairman of the BBC Trust, HC 864-I


2 What are pre-appointment hearings for? 14. The Government’s original rationale for proposing pre-appointment hearings was based on “increasing democratic scrutiny of public appointments”17 and providing “greater public reassurance that those appointed to key public offices are appointed on merit”.18 The Liaison Committee expected committee hearings to focus on “the professional competence and personal independence of the candidate”.19

15. The evidence we received and the research undertaken by the Constitution Unit and the IfG shows not only that these aims have been met but that the pre-appointment hearings have generated some additional benefits. These include adding to the appointee’s legitimacy within their organisation and with the media and the public, and enabling the appointee to meet the select committee at an early stage to discuss their plans and priorities, particularly where accountability to Parliament though its committees is likely to be a significant element of the post.

16. Lord Adonis argued that a select committee scrutiny hearing:

[...] 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.20

17. There is still residual concern in some quarters about the risk that exposure of appointees to select committees will lead to “politicisation” of the process.21 The main reservations have come from the Commissioner for Public Appointments. The current Commissioner, Sir David Normington (himself having been subject to a pre-appointment hearing), believes that “If [select committees] do question the merits of the candidate, they are not only challenging the decision of the panel and the appointing Minister, they are also calling into question the regulatory system itself”.22 Select committees have a dilemma “... reviewing a decision which has already been taken by a properly regulated process”. His predecessor, Dame Janet Gaymer, expressed similar reservations.23

17 Public Administration Committee, Sixth Special Report of Session 2007-08, Parliament and public appointments: Pre-

appointment hearings by select committees: Government response to the Committee’s Third Report of Session 2007-08, HC 515, p 3

18 Liaison Committee, First Special Report of Session 2007-08, Pre-appointment hearings by select committees: Government Response to the Committee’s First Report of Session 2007-08, HC 594, p 1

19 Liaison Committee, HC 384, 2007-08, para 13

20 Q2

21 Public Chairs Forum evidence, point 10, Ev 21; Constitution Unit, An Evaluation of Pre-Appointment Scrutiny Hearings, 22 January 2010 pp 31-32; Balancing Act, pp 20-22

22 Ev 17-18

23 Public Administration Select Committee, Third Report of Session 2007-08, Parliament and public appointments: Pre-appointment hearings by select committees, HC 152,Ev 16-18


18. It is a proper function of Parliament to oversee the role of regulators. In any event, we do not see any contradiction between the role of the Office of the Commissioner for Public Appointments (OCPA) to ensure the conduct of a fair and transparent selection process and select committee scrutiny of how Ministers have arrived at their decision about who the preferred candidate should be for particularly significant posts. They each perform a specific and distinct function.

19. However, the purpose and objectives of pre-appointment hearings would benefit from greater precision which we would characterise as:

• scrutiny of the quality of ministerial decision-making, which is a proper part of ministerial accountability;

• providing public reassurance (in addition to the private processes of the OCPA) that those appointed to key public offices are selected on merit;

• enhancing the appointee’s legitimacy in undertaking their function;

• providing public evidence of the independence of mind of the candidate.

20. In addition, the hearings provide opportunities for exploring the priorities of the candidate on taking up post and for allowing the candidate to understand Parliament’s expectations of the post-holder. It is an appropriate outcome of the kind of discussion which takes place at a pre-appointment hearing for the committee to set out priorities, approaches to the job and areas of interest which it has discussed with the candidate. It may also be appropriate for the report from the committee to refer to any resources, or support, or in-service training needs which the hearing has brought to light.


3 Agreeing the job specification 21. The Code of Practice for Public Appointments provides for consultation with Ministers at a very early point in the planning stage over the selection criteria and the way the process is to be conducted.24 In contrast, select committees have not been consulted up to now on the job or person specification for those public appointments which will also undergo a pre-appointment hearing.

22. A common factor at pre-appointment hearings where select committees have expressed criticism or outright disagreement with the ministerial choice is the fact that the committee has taken a different view about the nature of the post from the department. The case of the Children’s Commissioner is frequently cited as the prime example where the then Children, Schools and Families Committee rejected a candidate.25 However, as the Constitution Unit describes in its written evidence:

... the Committee had an overt disagreement with the Secretary of State over the nature of the role of the Children’s Commissioner and in particular whether the post holder should primarily influence Government from the inside or the outside. It was clear that their negative report was focussed less on the qualities of the candidate - whose professional competence they clearly respected - than on disagreement on the underlying nature of the role.26

23. The Justice Committee, in rejecting the nominee for the post of HM Chief Inspector of Probation, did not think that the core competencies sought by the Ministry of Justice in a successful candidate sufficiently reflected qualities which the Committee thought were particularly important for the job.27

24. The Public Administration Select Committee (PASC) agreed that the preferred candidate for the post of Commissioner for Public Appointments showed the right qualities but doubted the wisdom of the decision to combine the posts of First Civil Service Commissioner and Commissioner for Public Appointments in one person; the Committee complained about the lack of consultation and reserved its position about the move away from appointing outsiders to these posts.28

25. These examples serve to reinforce the recommendation of the previous Liaison Committee that “departments [should] consult the relevant select committee on the job specification of any post that is to be subject to a pre-appointment hearing prior to the start of the recruitment process”.29

24 The Commissioner for Public Appointments’ Code of Practice for Ministerial Appointments to Public Bodies, August

2009, para 3.06

25 Children, Schools and Families Committee, Eighth Report of Session 2008-09, Appointment of the Children’s Commissioner for England, HC 998-I

26 Ev 15

27 Justice Committee, Fifth Report of Session 2010-12, Appointment of HM Chief Inspector of Probation, HC 1021, Appendix E

28 Public Administration Select Committee, Fourth Report of Session 2010-11, Pre-Appointment Hearing: First Civil Service Commissioner and Commissioner for Public Appointments, HC 601

29 Liaison Committee, Second Report of Session 2009-10, The Work of Committees in Session 2008-09 ,HC 426, para 71


26. Peter Waller of the Constitution Unit believed that difficulties of this sort could be overcome in future if there was “... provision for the Committee to be consulted and things discussed with the Committee right at the start”.30 Sir David Normington, the new Commissioner for Public Appointments, favours such a reform which would enable committees “to influence at the outset the criteria for the post, comment on the type of candidate who might be suitable and suggest issues to be explored in the recruitment process”.31

27. There is concern both within and without Parliament that consulting committees in this way could muddy their scrutiny role and undermine the accountability,32 but the Minister for the Cabinet Office, Rt Hon Francis Maude MP, told us he was open to holding informal discussions with committees early in the proceedings:

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.33

He agreed that this could help to clarify for Ministers matters of concern for a select committee.34

28. We welcome the Minister’s willingness to involve committees at an early stage of the recruitment process. It is important, however, that committees are not over-burdened and that it remains clear that this is consultation rather than endorsement. Arrangements should be put in place for committees to be consulted at an early stage of any pre-appointment process on the specification of the job and the criteria against which candidates are to be assessed. The consultation should be neither onerous nor bureaucratic but we would expect it to become generalised and accepted good practice for all major public appointments subject to the pre-appointment process. Where departments have employed “head-hunters” they should be instructed to consult committees about their views of and expectations for a post. Departmental select committees, or other lead committees, should in turn consult cross-cutting committees (the Environmental Audit Committee, the Joint Committee on Human Rights, the Public Accounts Committee and the Public Administration Select Committee) where appropriate. Such arrangements should be incorporated into agreed guidance from the Cabinet Office.35

30 Q 7

31 Ev 18

32 See for example Balancing Act, p 30

33 Q 48

34 Q 60

35 See Annex 4


4 Information about other candidates 29. Prior to a pre-appointment hearing committees are typically provided with the curriculum vitae of the candidate and a copy of the applicant information pack. Committees have expressed frustration over the lack of fuller information about the selection process relevant to the decision they are being asked to make.

30. The Justice Committee, for example, felt that it was not in a position to give its approval to the appointment of the preferred candidate for the post of HM Inspector of the Probation Service in the absence of any knowledge of the field of candidates interviewed and, in particular, whether there were candidates from outside the probation service of suitable quality.36 PASC has previously recommended that select committees should be provided with a brief memorandum on the type of career background and on the experience of the other candidates who made the short-list. This would enable them to make a more informed judgment.37

31. To fill this lacuna in the process the Constitution Unit suggested that committees could be briefed by the department on the background to the appointment before a hearing either orally or in writing to give them a better understanding of the context for the choice of the preferred candidate.38 The aim would be to allow a committee to satisfy itself that due process had been followed, and that the selectors had looked at a sufficiently wide pool of candidates.

32. The IfG agreed that committee deliberations could benefit from receiving anonymised details of the background of the applicants and those shortlisted, as well as further information about the basis on which the final ministerial decision was taken.39

33. The Minister recognised that committees were acting under certain constraints but was not entirely persuaded about the need for a change. He was concerned that committees would want to have the names of shortlisted candidates. However, he was willing to explore how best to contextualise for committees the process from which the preferred candidate had emerged:

So there might be a letter saying, “There were 27 applications, 12 longlisted, four shortlisted. Two were regarded as appointable and I chose X”.40

34. We believe that there is broad agreement that there is scope for improvement in this area. More meaningful information could include information about the other candidates, how the selection process operated, the make-up of the selection panel, how many candidates were shortlisted and what degree of choice was available to the Minister.

36 Justice Committee, Fifth Report of Session 2010–12, Appointment of HM Chief Inspector of Probation, HC 1021, para

8

37 Public Administration Select Committee, Fourth Report of Session 2010–11, Pre–appointment hearing for the dual post of First Civil Service Commissioner and Commissioner for Public Appointments, HC 601, para 3

38 Q 13


40 QQ 75 and 76


35. It is a practice we are pleased to see is beginning to develop. PASC was provided informally with this sort of information prior to its pre-appointment hearing with the preferred candidate for the Chair of the UK Statistics Authority and with a much fuller note by the chair of the selection panel for the Parliamentary and Health Service Ombudsman.41 Information of the kind described was also provided to the Environment, Food and Rural Affairs Committee in advance of its pre-appointment hearing with the preferred candidate for Chair of the Gangmaster Licensing Authority.42

36. The public appointment system is designed to give Ministers a choice over the final candidate. If committees are to hold Ministers properly to account for those decisions they need more information than is presently the case. We recommend that departments should provide committees with an oral or written brief about the conduct of the selection process and the nature of the shortlist in advance of a pre-appointment hearing.

41 Public Administration Select Committee, Ninth Report of Session 2010–12, Pre-appointment hearing for the post of

Parliamentary and Health Service Ombudsman, HC 1220, Appendix 2

42 Environment, Food and Rural Affairs Committee, Seventh Report of Session 2010-12, Pre-appointment hearing: Chair of the Gangmasters Licensing Authority, HC 1400, para 9


5 Power of veto 37. The arrangements established as a consequence of the Governance of Britain Green Paper in 2007 provide for “non–binding” pre-appointment hearings by select committees.43 However recent developments have called into question the advisory nature of the pre-appointment hearings.

The Office of Budget Responsibility - an exceptional case?

38. The Budget Responsibility and National Audit Act 2011 now makes the appointment and dismissal of the Chair and independent members of the OBR subject to consent by the Treasury Select Committee. This has been seen potentially as a “game-changer” for the role of committees within the public appointment process. However, much of the evidence we received saw the OBR appointment case as exceptional. The Constitution Unit, for example, believes that the offer of a veto:

[...] was a decision taken in quite exceptional circumstances, [...] 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.44

Lord Adonis concurred:

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.45

39. The Minister also saw the OBR as different from the broad run of appointments:

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.46

Despite the reservations expressed by witnesses, we see potential scope for the extension of statutory powers of veto in exceptional cases.

40. Another option for distancing certain posts from too close a relationship with the Executive is to bring them closer to Parliament instead. Referring back to the OBR example, Peter Waller believed it would have been preferable 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”.47 The IfG report discusses the

43 Ministry of Justice, The Governance of Britain Green Paper, July 2007, Cm 7170, para 76

44 Q 41

45 Q 6

46 Q 86

47 Q 43


possibility of giving the House formal control of certain appointments.48 The Comptroller and Auditor General (C&AG) has since 1983 been a joint appointment with the Executive, and the Parliamentary Ombudsman has recently been chosen through a selection process led and managed by the House. There are number of posts over which the House should exercise formal control on the pattern provided by arrangements for the appointment of the Comptroller & Auditor General or the Chair of the Office of Budget Responsibility. These should relate specifically to posts where the remit is associated with the functions of Parliament or to holding the Executive to account as a constitutional proxy for Parliament. We recommend below a number of posts which we believe should fall into this category. We note that the Treasury Committee is currently considering the arrangements for the control and accountability of the key economic regulators and will be bringing forward its own recommendations.

An “effective veto”

41. Much of the impetus for committees to exercise an absolute veto over key appointments stems from a feeling that the advisory nature of their recommendations can make the hearings nugatory if Ministers choose to press ahead with an appointment in the face of a committee’s disapproval. Professor Hazell argued, however, that select committees seriously underestimate how much influence they have under the present system.49 Research by the Constitution Unit showed that the majority of preferred candidates would, if faced with an adverse recommendation from a committee, seriously consider their position.

42. Lord Adonis believed that it would be inconceivable for a Minister simply to ignore a negative opinion from a committee:

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.50

That is what ought to be the case, but has not always been so. However, the preferred candidate for the posts of Chair of the UK Statistics Authority recently withdrew her candidature following the pre-appointment hearing with the Public Administration Select Committee and before the Committee had reported.

43. Both the IfG and the Constitution Unit promote the idea of an escalation or mediation process where the Minister should first be expected to explain a decision to proceed with an appointment in the face of a committee recommendation not to do so. Where it was not possible to arrive at a mutually acceptable outcome, the IfG recommended that the whole House should be asked to adjudicate. 51


49 Q 9

50 Q 27

51 Balancing Act, p 28 and Liaison Committee, HC (2009-10) 426, Annex 3, pp 118-9


44. There is, however, some doubt about the extent to which Ministers may be fettered in their discretion to reject an appointee on the advice of a committee. The Cabinet Office guidance on pre-appointment hearings states, at para 7.1:

On receipt of the Committee’s report, Ministers will consider any relevant considerations contained in the report before deciding whether to proceed with the appointment. “Relevant considerations” means any new, relevant facts about the candidate’s suitability for the post. This might include, for example, an undisclosed conflict of interest or other information relevant to the candidate’s application which was not declared during the selection process. 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. “Relevant considerations” does not include any comments or recommendations which are clearly partisan in nature or which are not directly related to the post in question.

It continues, in para 7.2:

… there may be occasions where a select committee recommends against the appointment of a candidate. In such cases, Ministers should give very careful consideration to the committee’s report and to the reasons why the committee considers the candidate to be unsuitable. Where the Minister is minded not to proceed with the appointment, Departments must seek legal advice (including about any parliamentary privilege issues that arise) before any announcement is made.52

45. The Minister identified three outcomes from a pre-appointment hearing which could influence Ministers: a very poor performance in front of the select committee by the candidate; the disclosure of previously unknown facts that are material to the appointment; and a generally strong view from a committee that made a difference to the perceived acceptability of a candidate.53 In such circumstances Mr Maude anticipated that Ministers would engage with a committee over its reservations before it proceeded to issue the critical report.54

46. There remain some unresolved ambiguities in the Cabinet Office guidance. In our view, it must be made clear to candidates that, where an appointment is subject to a pre-appointment hearing, they are entering the competition on the basis of a full understanding and acceptance that an adverse report by a select committee could be fatal to their chances of appointment. Again, recent experience has confirmed the effectiveness of the pre-appointment process. Following an adverse report from the Justice Committee after a pre-appointment hearing with the preferred candidate for the post of Chief Inspector of Probation, the Secretary of State did not make an appointment and re-opened the competition.55

47. The issue of parliamentary privilege could arise in circumstances where a candidate sought to challenge in a court or tribunal a decision by a Minister not to appoint following

52 Cabinet Office, Pre-appointment hearings by select committees: guidance for departments, August 2009

53 Q 46

54 Q 48

55 Justice Committee, HC (2010-12) 1021


an adverse report by a select committee. The application of Article IX of the Bill of Rights means that the grounds for or reasoning behind a committee’s report could not be questioned in any court or tribunal. It must therefore remain clear that, even where the consent of a committee is a necessary condition for an appointment (as in the case of the OBR), the decision to appoint remains that of the Minister and is his or hers to defend. Moreover, the proceedings of a select committee cannot be prayed in aid in any legal challenge.

48. Both the IfG and the Constitution Unit were sceptical about the applicability of the OBR precedent as a model for future embedding of a veto, though for rather different reasons. The Constitution Unit witnesses thought it was both unnecessary and risked muddying the proper division of roles between Parliament and the Executive.56 The IfG did not consider giving the power of veto directly to a Committee was constitutionally appropriate, and recommended that in cases of disagreement between a Committee and a Minister, the matter should be put to the House, or more broadly that all such appointments should be subject to such approval (as with the Chair of the National Statistics Authority, the Ombudsman, the C&AG and certain other statutory appointments).57

49. We recommend that for a top-tier of the most significant public appointments the appointment process should involve not just a pre-appointment hearing but should clearly engage the House as an equal partner. This should include agreement over the terms and conditions of the post including remuneration arrangements before the start of the recruitment process and before the post is advertised.

50. For the next layer of appointments, we agree that the model of an “effective veto” is the right one to follow. The arrangements which underpin such a model will need to make clear that Ministers must properly take account of the advice of a committee in reaching their final decision on appointment.

51. Although there will be the occasional case in which a committee, following a hearing, feels that it must issue a report rejecting the candidate outright, there will be cases when a committee will wish to raise its concerns with a Minister privately, in case they can be satisfied through informal discussion rather than allowing a situation to develop in which a candidate is appointed by the Minister in the face of public rejection by the committee. The present arrangements under which the committee is advised to produce a report as soon as possible after the hearing discourage such an approach. We recommend that, where it concludes that it is appropriate, a committee should raise concerns about a preferred candidate in private discussion with the Minister, as an alternative to issuing a report in the first instance. Depending on the outcome of these discussions, Ministers will want to consider whether or not it is advisable to press ahead with approving the appointment.

52. We do not consider that, for category B and C appointments, the decision of a Minister to press on with an appointment in the face of a committee’s disapproval should

56 Q 43 [Prof Hazell]

57 Balancing Act, p 28


automatically require a resolution of the floor of the House. We think Ministers may well wish to seek such a resolution in these circumstances. If that is not the case, a committee can itself seek to have the matter debated in backbench or government time.

53. It is also important to recognise the effect of a critical report on the individual concerned. Unlike the selection process, the pre-appointment hearing takes place in a very public forum. A negative opinion by a committee should be expressed with due regard to the preferred candidate’s position, and may require the House to accept that information on the committee’s views can be given to the candidate in advance of the publication of a report more widely. There should be no procedural impediment to this happening.

A power of dismissal?

54. The case for Committees to exercise an absolute veto is linked strongly to the notion that, for certain posts, their independence and distance from the Executive needs to be particularly safeguarded. One interesting aspect of the OBR arrangements which has not been much commented on is the provision for a statutory veto on dismissal of the three appointees. This appears to offer a strong protection against arbitrary action or the exercise of undue influence by Ministers which may deserve more consideration.

55. A variant of this device is already available for certain posts over which the House has no power of appointment, such as the Information Commissioner and members of the judiciary who can only be dismissed by a resolution of both Houses. We see merit in broadening the scope of posts over which Parliament has a veto over dismissal of the post-holder. We recommend that the holders of posts falling into our category A should, having been approved by Parliament, require parliamentary control over their dismissal. Where a Minister is minded to take such a step, he or she should as a matter of course consult the appropriate committee as to its view on whether a further resolution of the House is required.


6 Which posts should be subject to the hearings?

The current list

56. The Government agreed with us that the current list of posts subject to pre-appointment hearings is illogical and inconsistent and has offered to work with us to review and agree new criteria and to revise the list of posts suitable for pre-appointment scrutiny. The various criteria and proposals which have been put forward since 2008 are summarised in Annex 2.

The IfG’s proposals

57. The current list of posts subject to pre-appointment hearings already represents a small selection of the most significant appointments. The argument now is whether this category should be divided further, with some appointments being subject to enhanced parliamentary procedures. The IfG recommended that those posts which are judged to be most significant—about 25 in their estimation— should be subject to more stringent forms of parliamentary scrutiny. It goes on to suggest that below these top tier posts those bodies which require day-to-day operational independence from the Executive but carry out less constitutionally significant tasks should be subject to current pre-appointment arrangements. For the remaining bodies, it proposed that government departments should inform select committees before the process of filling a vacancy begins, leaving it to the committee to decide whether or not a pre-appointment hearing and the accompanying processes should be adopted.

The Government’s proposals

58. The Government offered three principles as the basis on which to determine which posts should be subject to pre-appointment hearings:

i. posts which play a key role in regulating Government

ii. posts which play a key role in protecting and safeguarding the public’s rights and interests particularly in relation to the actions and decisions of Government; and

iii. posts where it is vital for the reputation and credibility of the public body in question that the post holder is, and is seen to be, independent of Ministers and Government.

However, they subsequently provided us with a list based on these principles which essentially retains the status quo.58 This is disappointing.

58 Ev pp 22


Our proposals

59. If enhanced parliamentary scrutiny for a small number of top tier posts is to work effectively there is a need for a more discriminating list of particularly significant posts. We have already recommended that certain top-tier posts should be subject to joint appointment between the Government and the House. In our view those posts should be ones which exercise one or more of the following functions:

i. scrutiny of government over matters of propriety, ethics and standards in public life;

ii. uphold and defend the rights and interests of citizens; and/or

iii. stand in the shoes of Parliament by exercising direct scrutiny or control over the activities of Ministers.

60. The Comptroller and Auditor General has been subject to a form of joint appointment for many years now. Two other posts have recently secured similar parliamentary involvement; the Parliamentary Commissioner for Administration and Health Service Ombudsman and the Chair and independent members of the Office of Budget Responsibility. We consider that some additional posts will also fall into the same category. We set out our initial indicative list below as the basis for discussion within select committees and with the Government.

• Chair of the UK Statistics Authority • Information Commissioner • Chair of the House of Lords Appointments Commission • Chair of the Judicial Appointments Commission • First Civil Service Commissioner • Commissioner for Public Appointments • Chair of the Committee on Standards in Public Life • Chair of the Equality and Human Rights Commission

61. We therefore recommend a tri-partite list of posts in which select committees and Parliament more widely will be involved in the selection and appointment process in different degrees.

• Category A posts should become, effectively, joint appointments between Parliament and the Executive (where they are not already). They should be confirmed by a vote on the floor of the House of Commons, and the dismissal of a post-holder before the expiry of his or her term of office should also require ratification by the House if a select committee so recommends. We recommend that gradually, as legislative opportunities arise, arrangements for appointments to these posts should be put on a statutory footing (or that this be done by means of a specific Act of Parliament).


• Category B posts should be subject to an enhanced form of pre-appointment scrutiny, and be subject to an effective veto by a select committee (in other words, if the committee recommended against the appointment of the preferred candidate the onus would be on the Minister to show why the appointment should proceed if he or she were so minded). It would be open to either the Minister or the committee to seek a resolution on the floor of the House if they were unable to agree on the choice of candidate

• Category C posts should be those which are offered to the appropriate committee at the outset of the process of filling the vacancy, so that the committee could choose whether or not to require a pre-appointment hearing.

Our full list of proposed posts in categories A, B and C is at Annex 2 below. We put this initial list forward as the basis for further discussion and refinement. We are aware that the Treasury Committee is currently looking at the economic regulators, and we have not included these at this stage.

Political appointments

62. The issue has been raised in connection with pre-appointment hearings of certain appointments which are made outside the regulatory control of the Office of the Commissioner for Public Appointments, without open advertisement or open competition. The appointments most frequently cited in this context are those of certain ambassadors who are drawn from outside the career diplomatic service and the UK’s EU Commissioner.

63. We recognise that these appointments fall into an entirely distinct category from those regulated by the OCPA. They do not, therefore, lend themselves to the processes we describe in this report for parliamentary involvement in the different stages of regulated public appointments. However, that very lack of public regulation means it is all the more important that there should be some parliamentary oversight of such exercises of ministerial prerogative. We recommend that persons who are offered political appointments, other than appointments of Ministers, made under the exercise of prerogative powers, should have their appointments submitted to scrutiny by an appropriate select committee before the appointment is confirmed. The arrangements for such scrutiny, however, lie outside the immediate scope of this report.


7 Consolidated guidance 64. Pre-appointment hearings have up to now operated under the separate guidance provided by the Liaison Committee to select committees and by the Cabinet Office to government departments. The IfG study concluded that the limited nature of the current guidance may contribute to two distinct problems: insufficient clarity about what hearings should cover and disagreement over what are acceptable lines of questioning.59 The Public Chairs’ Forum also believe that “ensuring clarity around pre-appointment hearings and how they are conducted will be crucial”.60

65. Although the Minister was willing to consider some further changes to current practice he was resistant to the idea of formalising them by inclusion in the guidance, and would “much rather we proceeded in an informal, pragmatic way”.61 He explained that:

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. [...]. I am willing to contemplate minor further steps but, [...] I just think that we should progress very slowly.62

66. This is a disappointing response from the Minister and is in marked contrast to the Conservative Party’s manifesto promise to:

[...] give Select Committees the right to hold confirmation hearings for major public appointments, including the heads of quangos.63

and the Coalition Agreement’s commitment to strengthen parliamentary scrutiny over public appointments.64

67. The Liaison Committee guidelines of February 2008 were prepared in advance of the first pre-appointment hearings. Although committees have broadly adhered to them, they do not fully reflect practical experience of pre-appointment hearings held since then. We have identified in this report some additional changes we would like to see become common practice. The Cabinet Office’s Guidelines of 2009 also need revision in the light both of experience and of the modifications we have proposed to the process in this report. We recommend that the guidance on pre-appointment hearings should be reviewed and updated to reflect what has now become accepted practice as well as these further reforms.

68. It is not acceptable for the the Liaison Committee and the Cabinet Office each to give guidance which does not fully correspond. Therefore we reassert our predecessor Committee’s position in favour of a single consolidated guidance document. We provide a first draft at Annex 4 as the basis for further discussion.

59 Balancing Act, p. 33

60 Ev 17

61 Q 63

62 Q 83

63 Conservative Party, An Invitation to Join the Government of Britain, 2010, p 70

64 The Coalition Agreement: Our programme for Government, May 2010, p 21


Conclusions and recommendations

What are pre-appointment hearings for?

1. It is a proper function of Parliament to oversee the role of regulators. In any event, we do not see any contradiction between the role of the Office of the Commissioner for Public Appointments (OCPA) to ensure the conduct of a fair and transparent selection process and select committee scrutiny of how Ministers have arrived at their decision about who the preferred candidate should be for particularly significant posts. They each perform a specific and distinct function. However, the purpose and objectives of pre-appointment hearings would benefit from greater precision which we would characterise as:

• scrutiny of the quality of ministerial decision-making, which is a proper part of ministerial accountability;

• providing public reassurance (in addition to the private processes of the OCPA) that those appointed to key public offices are selected on merit;

• enhancing the appointee’s legitimacy in undertaking their function;

• providing public evidence of the independence of mind of the candidate.

In addition, the hearings provide opportunities for exploring the priorities of the candidate on taking up post and for allowing the candidate to understand Parliament’s expectations of the post-holder. It is an appropriate outcome of the kind of discussion which takes place at a pre-appointment hearing for the committee to set out priorities, approaches to the job and areas of interest which it has discussed with the candidate. It may also be appropriate for the report from the committee to refer to any resources, or support, or in-service training needs which the hearing has brought to light. (Paragraphs 18, 19 and 20)

Agreeing the job specification

2. We welcome the Minister’s willingness to involve committees at an early stage of the recruitment process. It is important, however, that committees are not over-burdened and that it remains clear that this is consultation rather than endorsement. Arrangements should be put in place for committees to be consulted at an early stage of any pre-appointment process on the specification of the job and the criteria against which candidates are to be assessed. The consultation should be neither onerous nor bureaucratic but we would expect it to become generalised and accepted good practice for all major public appointments subject to the pre-appointment process. (Paragraph 28)


Information about other candidates

3. We recommend that departments should provide committees with an oral or written brief about the conduct of the selection process and the nature of the shortlist in advance of a pre-appointment hearing. (Paragraph 36)

Power of veto

4. There are number of posts over which the House should exercise formal control on the pattern provided by arrangements for the appointment of the Comptroller & Auditor General or the Chair of the Office of Budget Responsibility. These should relate specifically to posts where the remits are associated with the functions of Parliament or to holding the Executive to account as a constitutional proxy for Parliament. (Paragraph 40)

5. We recommend that for a top-tier of the most significant public appointments the appointment process should involve not just a pre-appointment hearing but should clearly engage the House as an equal partner. This should include agreement over the terms and conditions of the post including remuneration arrangements before the start of the recruitment process and before the post is advertised. (Paragraph 49)

6. For the next layer of appointments, we recommend that the model of an “effective veto” is the right one to follow. The arrangements which underpin such a model will need to make clear that Ministers must properly take account of the advice of a committee in reaching their final decision on appointment. (Paragraph 50)

7. We recommend that, where it concludes that it is appropriate, the committee should raise concerns about a preferred candidate in private discussion with the Minister, as an alternative to issuing a report in the first instance. Depending on the outcome of these discussions, Ministers will want to consider whether or not it is advisable to press ahead with approving the appointment. (Paragraph 51)

8. We recommend that the holders of posts falling into our category A should, having been approved by Parliament, require parliamentary control over their dismissal. Where a Minister is minded to take such a step, he or she should as a matter of course consult the appropriate committee as to its view on whether a further resolution of the House is required. (Paragraph 55)

Which posts should be subject to hearings?

9. If enhanced parliamentary scrutiny for a small number of top tier posts is to work effectively there is a need for a more discriminating list of particularly significant posts. We therefore recommend a tri-partite list of posts in which select committees and Parliament more widely will be involved in the selection and appointment process in different degrees.


• Category A posts should become, effectively, joint appointments between Parliament and the Executive (where they are not already). They should be confirmed by a vote on the floor of the House of Commons, and the dismissal of a post-holder before the expiry of his or her term of office should also require ratification by the House if a select committee so recommends. We recommend that gradually, as legislative opportunities arise, arrangements for appointments to these posts should be put on a statutory footing (or that this be done by means of a specific Act of Parliament).

• Category B posts should be subject to an enhanced form of pre-appointment scrutiny, and be subject to an effective veto by a select committee (in other words, if the committee recommended against the appointment of the preferred candidate the onus would be on the Minister to show why the appointment should proceed if they were so minded). It would be open to either the Minister or the committee to seek a resolution on the floor of the House if they were unable to agree on the choice of candidate.

• Category C posts should be those which are offered to the appropriate committee at the outset of the process of filling the vacancy, so that the committee could choose whether or not to require a pre-appointment hearing. (Paragraphs 59 and 61)

Political appointments

10. We recommend that persons who are offered political appointments, other than appointments of Ministers, made under the exercise of prerogative powers, should have their appointments submitted to scrutiny by an appropriate select committee before the appointment is confirmed. (Paragraph 63)

Guidance on the process

11. We recommend that the guidance on pre-appointment hearings should be reviewed and updated to reflect what has now become accepted practice as well as these further reforms. It is not acceptable for the Liaison Committee and the Cabinet Office each to give guidance which does not fully correspond. Therefore we reassert our predecessor Committee’s position in favour of a single consolidated guidance document. We provide a first draft at Annex 4 as the basis for further discussion. (Paragraphs 67 and 68)


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Annex 2: Table of proposed categorisations of posts to be subject to pre-appointment hearings

HMG IfG UCL PASC (2007) Clerks’ note to

Liaison Jan 2011

Posts which play a key role in regulating Govt

There is strong public interest in the vision and priorities of the office holder in question, and in the performance of the organisation.

Where the post-holder is expected to call Government to account - and where a Select Committee can test the candidate’s independence of mind and willingness to criticise Government;

auditors Appointers to public office:

Posts which play a key role in protecting and safeguarding the public’s rights and interests particularly in relation to the actions and decisions of Government

The post in question will require the appointee to play a significant role in public debate and representation of the public interest in dealings with the executive.

Where the post-holder (or organisation) is making decisions which have a strong ethical or moral dimension, for example making decisions based on assessments of public taste or decency. There is potential benefit in a Select Committee asking the candidate about those issues in a public forum;

ombudsmen and complaints investigators:

Regulators of Standards

Post where it is vital for the reputation and credibility of the public body in question that the post holder is and is seen to be independent of Ministers and Government

Perceived and actual independence from government are vital to the effective functioning of the role or body in question, and to its credibility in the eyes of the public and/or the financial markets.

Where the post is particularly high profile in terms of public interest and political debate;

regulators:

Economic Regulators:

The post or body plays a role integral to the conduct of Parliament or the exercise of its key powers and responsibilities.

Where the post holder is making decisions of particular interest to Parliament (for example the House of Lords Appointments Committee);

inspectors: Ombudsmen other than the Parliamentary Ombudsman

Where the post holder is making decisions of direct impact on third parties - whether individuals or private companies.

appointers


Annex 3: Indicative list of posts to be subject to pre-appointment hearings

CATEGORY A: Posts which are in effect joint appointments between the Executive and Parliament subject to approval by resolution of the House of Commons

1. Chair of the UK Statistics Authority 2. Information Commissioner 3. Chair of the House of Lords Appointments Commission 4. Chair of the Judicial Appointments Commission 5. Chair First Civil Service Commissioner 6. Commissioner for Public Appointments 7. Chair of the Committee in Standards in Public Life 8. Chair of the Equality and Human Rights Commission 9. Parliamentary Commissioner for Administration

Notes: The office of Comptroller & Auditor General and of the Chair and independent members of the Office of Budget Responsibility are already regulated by statute as, in effect, joint appointments. The Electoral Commissioners are appointed by Parliament alone. Members of the Monetary Policy Committee of the Bank of England are subject to confirmation hearings by the Treasury Committee following their appointment. The Treasury Committee is currently considering the status of other economic regulators such as the Governor of the Bank of England and the Chair of the proposed Financial Conduct Authority.

CATEGORY B: Posts which are subject to pre-appointment hearings (enhanced process) Economic Regulators

1. Chair of the Competition Commission and Office of Fair Trading

Public Service Regulators 2. Chair of Monitor 3. Chair of the Charity Commission 4. Chair of Ofqual 5. Chair of the BBC Trust 6. Chair of the Care Quality Commission 7. Chair of the Committee on Climate Change 8. Chair of the Food Standards Authority


Utility Regulators

9. Chair of OfCom 10. Chair of OfGem 11. Chair of OfWat 12. Chair of the Office of Rail Regulation 13. Chair of the Civil Aviation Authority

Inspectorates

14. HM Chief Inspector of Constabulary 15. HM Chief Inspector of Prison 16. HM Chief Inspector of Probation 17. HM Chief Inspector of Education, Children’s Services and Skills

Ombudsmen and complaints investigators

18. Local Government Ombudsman 19. Prison and Probation Ombudsman 20. Pensions and Pensions Protection Fund Ombudsman 21. Service Complaints Commissioner for the Armed Forces

CATEGORY C: Posts which are subject to pre-appointment hearings on request BIS

1. Chair of the Higher Education Funding Council for England 2. Chairs of the Research Councils 3. Director of the Office for Fair Access 4. Chair of Postal Services Commission

Cabinet Office

5. Chair of the Advisory Committee on Business Appointments

CLG 6. Chief Fire and Rescue Adviser 7. Chair of the Homes and Communities Agency (subject to the passage of

legislation) 8. Chair of the Homes and Communities Agency’s Regulatory Committee (who

would also be a member of the Agency’s Board)(subject to the passage of legislation)

9. Chair and Deputy Chairs of the Infrastructure Planning Commission (subject to the passage of legislation)

10. Chair of OFTENANT (Tenant Services Authority) (subject to the passage of legislation)

11. Chair of the Audit Commission (subject to the passage of legislation)


12. Chair of the Standards Board (subject to the passage of legislation)

DCMS 13. Chair of S4C

DECC

14. Chair of the Gas and Electricity Markets Authority (GEMA)

DEFRA 15. Chair of Natural England 16. Chair of the Environment Agency 17. Chair of the Gangmaster Licensing Authority 18. Chair of the Agricultural Wages Board* 19. Chair of the Marine Management Organisation 20. Rural Advocate*

DfE

21. Children’s Commissioner for England 22. Chair of the Qualifications and Curriculum Development Agency (subject to the

passage of legislation)

DFID 23. Chair of the Independent Commission for Aid Impact

DH 24. Chair of NHS Commissioning Board (subject to the passage of legislation)

MoJ 25. Chair of the Office for Legal Complaints 26. HM Chief Inspector of the Crown Prosecution Service 27. Prison and Probation Ombudsman

HMT

28. Chair and Members of the Budget Responsibility Committee

DWP 29. Chair of the Social Security Advisory Committee

Other posts may be included in category C following negotiation between a Department and the appropriate select committee.

Note: Political appointments not subject to regulation by the Office of Commissioner for Public appointments are referred to in paragraphs 62 and 63 of the Report.


Annex 4: Joint Guidance for Departments and Select Committees

Draft To be agreed between the Liaison Committee of the House of Commons

and the Cabinet Office

INTRODUCTION 1.1 This guidance provides advice to Select Committees and Departments on pre-

appointment hearings by parliamentary select committees. It sets out the issues that Departments should consider when making appointments to posts subject to pre-appointment hearings, the co-operation that should take place between officials in Departments and on select committees to prepare for such hearings, and provides advice and guidance on the process and on the role of Departments, Ministers and select committees.

1.2 Any questions on the guidance should be directed towards Cabinet Office or the

House of Commons as appropriate. Contact details are as follows:

Propriety and Ethics Team Cabinet Office 70 Whitehall LONDON SW1A 2AS Tel: 020 7276 3541 /0387 /0269

Clerk of Committees* Committee Office House of Commons LONDON SW1A 0AA Tel: 020 7219 3313 *normally contact may be made directly with the Clerk of the relevant departmental select committee

BACKGROUND

2.1 Pre-appointment hearings enable Commons select committees to take evidence

from the preferred candidate for certain, key public appointments before an appointment is confirmed, but after the selection process overseen by the Office of the Commissioner for Public Appointments has concluded. Hearings are in public and involve the select committee taking evidence from the candidate and publishing a report setting out the committee’s views on the candidate’s suitability for the post. Hearings are in most cases non-binding (but see below) but Ministers will consider any relevant observations made by the committee before deciding whether to proceed with the appointment.

2.2 The list of posts agreed between the Cabinet Office and the House of Commons

Liaison Committee as subject to pre-appointment hearings is at [ ]. Departments should note that pre-appointment hearings not only apply to appointments of new candidates. Where it is proposed to extend an


appointment or to re-appoint a candidate to a post which was subject to a pre-appointment hearing, the relevant Committee should be consulted to establish whether it wants to hold any form of confirmation hearing. The expectation is that in most cases the Committee is likely to waive its right to do so – select committees already take evidence from serving post-holders as part of their on-going scrutiny of public bodies and public appointments.

2.3 Different levels of involvement by select committees apply to different posts

listed in Annex A:

• For posts in category A the appointment is a joint process between the Department and the House of Commons, and will sometimes be led by the House. Appointments in this category will be subject to final approval by a resolution of the House of Commons.

• For posts in category B, the Department and the OCPA will conduct the process and the Minister will present the preferred candidate to the Committee for the pre-appointment hearing. For posts in this category, the Government has undertaken to make clear to all applicants that the Minister, in making his or her final choice whether or not to confirm an individual’s appointment, will weigh carefully the comments made by any select committee in its report. Candidates should be clear from the outset that an adverse report from a select committee is a factor that will weigh heavily in a Minister’s final decision. Committees should be consulted from the very beginning of the process of appointment for posts in this category (see below).

• For posts in category C, when a Department proposes to make an appointment, the relevant Committee should be asked by the Minister whether or not the Committee wishes to engage in the same process as for Category B posts. It is anticipated that in most cases the Committee is likely to decline, but where it asserts its right to be involved, the process as for category B posts should be followed, with any local variations negotiated between the Committee and the Minister as appropriate.

THE PROCESS

3.1 For all posts, whether the selection is jointly with Parliament (category A) or by

Departments (categories B and C), there will continue to be a formal selection process, which will be open and transparent and underpinned by the overriding principle of appointment on merit. Where a post is regulated by the Commissioner for Public Appointments, the process will continue to follow the requirements set out in the Commissioner’s Code of Practice for Ministerial


Appointments to Public Bodies65 and in any Practice Directions issued by the Commissioner.

INFORMING SELECT COMMITTEES

General principles 4.1 The Government, supported by the Liaison Committee, is committed to

maintaining a public appointments process that is efficient, effective and proportionate. As such, it is important that Departments liaise with select committees throughout the planning and selection stages to ensure that the introduction of a pre-appointment hearing does not result in a significant delay in making the appointment.

4.2 At the very beginning of the planning stage, the Department should contact the

Clerk of the relevant select committee to inform them that an appointment exercise to a post suitable for pre-appointment scrutiny is due to begin and to discuss the ensuing procedures and their timetabling. This is also a requirement of the Commissioner for Public Appointments’ Code of Practice66. In all cases it will be open to the Committee to decide not to hold a hearing, though it would be most unusual for this not to happen for posts in categories A and B. Departments should always factor in the possibility of a pre-appointment hearing into the planning and timetabling of the appointment. Departments should aim to ensure that the end of the selection stage does not coincide with the beginning of a long parliamentary recess.

4.3 In the majority of cases, it will be for the relevant departmental select committee

to hold the hearing. But there may be occasions where appointments are scrutinised by committees other than the departmental select committee. Any dispute between committees would, ultimately, be resolved by the Liaison Committee. If in doubt, contact the Clerk of Committees, who will be able to assist. Cabinet Office should also be informed.

Category C posts and re-appointments, etc. 4.4 Where a post falls into category C, or is a re-appointment or extension relating

to a post in category B, the Clerk of the relevant select committee should be contacted as soon as the start of the process of recruitment or re-appointment (or extension) is first agreed. (Where it is not clear which is the relevant select committee, the Clerk of Committees should be consulted.) The Minister should write to the Chair of the Committee asking whether the Committee wishes to

65 The Commissioner for Public Appointments’ Code of Practice for Ministerial Appointments to Public Bodies, Office

of the Commissioner for Public Appointments, August 2009. [This is currently being reviewed .]

66 Paragraph 4.10


invoke the pre-appointment hearing process. If the Committee does so wish, the process for category B posts should be followed, with any necessary variations in the case of re-appointments, etc, agreed with the Committee.

Category B posts 4.5 Where a post falls into category B, as soon as a decision to start an appointment

process has been made, the Clerk of the relevant select committee should be contacted. Arrangements should be made for the job description and other draft material to be included in the recruitment pack for the post to be considered by the select committee. The Clerk will ensure that the Committee’s views are communicated to the department within ten working days of receiving the material. (Where this period is likely to fall wholly or partly during a parliamentary recess, arrangements should have been agreed in advance with the Clerk of the Committee to enable a response to be given as soon as is reasonably practical.)

4.6 The Minister should be invited to consider any comments made by the

Committee requesting alterations to the details set out in the recruitment pack. The Minister should write to the Chair of the Committee explaining which of its proposals have been accepted, rejected or accepted in amended form. The Minister may wish to meet the Chair of the Committee to discuss differences of opinion. However, the final decision on the details of the material to be included in the recruitment material rests with the Minister.

Category A posts 4.6 Category A posts will normally be subject to similar processes to those outlined

for Category B posts, but because of their nature as joint appointments between the Government and Parliament there may be variations on the process. In some cases the recruitment process for these posts will be led by the House. The House authorities must be involved in the planning of the recruitment process from the outset.

Advertisements and Information Packs 4.7 Applicants for posts which a Committee has agreed will be subject to a pre-

appointment hearing and the associated processes must be made aware before applying that they will be required to appear before a select committee before the appointment is made. To this end, the advertisement for the post must include a reference to pre-appointment scrutiny. This is also a requirement of the Commissioner for Public Appointments’ Code of Practice67. The following form

67 Paragraph 4.10


of words [has been agreed with the Commissioner and] must be used in any advertisements or other form of publicity:

“In line with Government proposals to increase parliamentary scrutiny of appointments to key posts, the preferred candidate for the post of [insert detail] will be required to appear before a parliamentary select committee prior to appointment, [and the Minister has agreed that the views of the Committee on the suitability of a candidate will be a material consideration in making a final decision on whether to proceed to confirm the appointment].”

The accompanying information pack must also include a reference to pre-appointment scrutiny. This should re-iterate the form of words used in the advertisements. Departments might, however, take the opportunity to explain more about the pre-appointment hearing process, including the fact that although the decision rests with the Minister, the views of the Committee will be a material consideration in his or her decision.

4.8 For posts in category B, the Government will not normally proceed with an appointment in the face of an adverse report by a select committee. This undertaking must be drawn to the attention of all candidates. In some cases, the procedure for appointment will include submitting the name of the preferred candidate for approval by resolution of the House of Commons.

The selection process 4.9 All those involved in the selection process – the appointing Minister, officials,

recruitment consultants (where used), the Independent Public Appointments Assessor (if appropriate) and the selection panel – must be made aware that the post is suitable for pre-appointment scrutiny and of the procedures applying. Recruitment consultants should bring this to the attention of any individuals they encourage to apply. Selection panels should ensure that those short-listed are aware of the possibility of a pre-appointment hearing and any other stages, and understand what is involved.

4.10 The Commissioner for Public Appointments regulates, reports and monitors

public appointments processes to over 10,000 public appointments. These include a number of the posts identified as suitable for pre-appointment scrutiny by Parliament. The appointment process for posts regulated by the Commissioner must continue to follow the Commissioner’s Code of Practice and any Practice Directions issued by the Commissioner. A copy of the Code and published Practice Directions can be found at: www.publicappointmentscommissioner.org. For more information on the


application of the Code of Practice, Departments should consult the Commissioner’s office. Contact details are as follows:

Office of the Commissioner for Public Appointments 3rd Floor 35 Great Smith Street LONDON SW1P 3BQ Tel: 020 7276 2625 Fax: 020 7276 2633 Email: [email protected] Supporting the Candidate

4.11 It is important that candidates appearing before select committees are given sufficient notice of hearings in order to be able to prepare. The Liaison Committee has agreed that this should be at least a week other than by mutual consent: normally a period of three weeks would be the maximum. It is also important that candidates are properly informed about the purpose, format and duration of hearings. Departments should ensure that candidates fully understand the process and are properly briefed and supported, particularly if this is their first time in front of a select committee. Candidates should be encouraged, if they wish, to speak directly to the Clerk of the Committee in advance of the hearing. Committees have undertaken to provide standard briefing to the candidate on what to expect from the session. The candidate should also be informed how long the session is likely to last – normally no longer than ninety minutes.

The devolved administrations

4.12 A number of the appointments to which these procedures apply are made in

consultation with the devolved administrations. Departments should ensure that the relevant devolved administrations are fully involved in the appointments process – for example, in agreeing role profiles and person specifications, by being given the opportunity to put forward names of suitable candidates, by being kept informed of progress throughout the selection exercise and, at the end of the process, consulted on the preferred candidate. The Committee should be made aware that such consultations are taking place, and that the decision on the preferred candidate will also involve inter-governmental consultation. It may be appropriate to inform the relevant select committees for the territorial Secretaries of State as well: this is something which will be done by House of Commons officials.


BEFORE THE PRE-APPOINTMENT HEARING 5.1 Once the formal selection process is complete, and the preferred candidate

identified, the Minister should write to the Chair of the relevant select committee announcing the Government’s preferred candidate. (If the Committee waived its right to hold a pre-appointment hearing, the Chair should still be informed of the result as a matter of courtesy.)This should only take place once all relevant Ministers have given their approval to the preferred candidate. (For certain posts, this will include Ministers in the Devolved Administrations and/or the Prime Minister.) Immediately after informing the committee, the relevant Department might, in consultation with the Committee, issue a short press release announcing the name of the preferred candidate68.

5.2 The Government has agreed to give Committees, where possible, up to three

weeks in which to hold a hearing and publish their report.69 With careful planning, however, and the agreement of the committee concerned, hearings can take place more quickly.

5.3 The Department should provide the Committee with relevant background

information and briefing. This should include the Information Pack (which should have been subject to prior consultation) and a copy of the candidate’s CV. As this information may be published by the Committee, Departments must obtain the candidate’s permission before providing the Committee with their CV.

5.4 The Government has also agreed that, prior to the hearing, the Department will

provide the Committee with anonymised background information on the field of applications: for example the numbers applying, the numbers shortlisted and the number deemed to be at least suitable for the post. On occasions the Committee may seek other information it considers relevant: for example, the number of candidates from the public or private sectors, the numbers from within or outside the civil service, the numbers of applicants by gender, etc. The nature of this briefing is a matter for negotiation with the Committee: once the Department has provided basic written information, the Committee (or its Chair) may seek a private oral briefing to explore the information given in more detail.

5.5 Confidential information relating to the appointments process – for example,

personal information on other applicants, copies of the diversity or political

68 This should be a short, simple press release.This will not replace the fuller Press Release that must be issued when

the appointment is made.

69 Public Administration Select Committee, Sixth Special Report of Session 2007-08, Parliament and public appointments: Pre-appointment hearings by select committees: Government Response to the Committee’s Third Report of Session 2007-08, HC 515.


activity questionnaires, copies of the selection panel’s assessments, etc. – should not be released. THE PRE-APPOINTMENT HEARING

6.1 The Liaison Committee has set guidelines for committees on pre-appointment

hearings. These state that:

• The Chairman should ensure that Members are aware that their questions must remain relevant to the professional competence and personal independence of the candidate.

• Questions eliciting background information about the candidate’s past career and about the selection process for the post are also normally acceptable.

• The candidate will need to be able to withstand parliamentary and public scrutiny should they take up the post, and part of the purpose of the session is to test this. Questioning may therefore be robust, and it may cover some areas that might not be appropriate at interview, such as party political activity. The Chair will intervene, however, if questions are irrelevant, unduly personal or partisan, or discriminatory.

• The candidate should feel able to appeal to the Chair of the Committee if they do not wish to answer a question put to them.

6.2 Immediately after the evidence session, the Committee should meet in private to

agree a report to the House containing its views on the suitability of the candidate. This will ensure both that the evidence is fresh in Members’ minds and that Members who were not present at the evidence do not influence the content of the report. It will also avoid unnecessarily prolonged speculation about a candidate’s fate. The Committee may also wish to instruct the Chairman to write to the relevant Minister with any opinions that it prefers to express privately, to supplement the published report.

6.3 Where the Committee is in agreement with the Minister’s choice of preferred

candidate, its report should be published as soon as possible after the evidence session. Reports should be subject to a 24 hour embargo to allow the candidate and the Minister to prepare a response to any negative comments. They should be provided under embargo only to the candidate and the Minister. Where, for some reason, it is not possible to move with such haste, the Committee has two options. If its decision is to agree with the preferred candidate, it can publish a very short report to that effect in the Votes and Proceedings of the House in extenso. This can then be followed up with a fuller report. Where the Committee is minded to publish an adverse report, it should normally invoke the process of discussion with the Minister set out below.


6.4 Although there will be the occasional case in which the Committee, following a hearing, feels that it must issue a report rejecting the candidate outright, there will be cases when a Committee will wish to raise its concerns with a Minister privately, in case they can be satisfied through informal discussion rather than allowing a situation to develop in which a candidate is appointed by the Minister in the face of public rejection by the Committee. Where it concludes that it is appropriate, the Committee should raise concerns about a preferred candidate in private discussion with the Minister, as an alternative to issuing a report in the first instance. Depending on the outcome of these discussions, Ministers will want to consider whether or not it is advisable to press ahead with approving the appointment.

6.5 In these circumstances, the Committee can agree that the candidate should be

informed of its reservations before a formal report is made to the House. Where the Committee, the candidate and the Minister cannot reach any compromise (for example, the candidate choosing to withdraw), then the Committee should proceed to issue its report and the Minister will then proceed to make his or her decision.

6.6 Where a post falls into category A, and the appointment is subject to ratification

on the floor of the House, Committees will wish to take this into account in deciding whether to enter into private discussions with the Minister in advance of a report being made.

6.6 Pre-appointment hearings provide opportunities for select committees to

explore the priorities of the candidate on taking up post and for allowing the candidate to understand Parliament’s expectations of the post-holder. It is an appropriate outcome of the kind of discussion which takes place at a pre-appointment hearing for the Committee to set out priorities, approaches to the job and areas of interest which it has discussed with the candidate. It may also be appropriate for the report from the Committee to refer to any resources, or support, or in-service training needs which the hearing has brought to light. THE MINISTERIAL DECISION

7.1 In the 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. In these circumstances, Ministers should still give careful consideration to the Committee’s report before proceeding to confirm the appointment.

7.2 Where the mediation process described above has been completed, and the

Committee nonetheless recommends against appointment, Ministers must consider any relevant considerations contained in the report before deciding


whether to proceed with the appointment. “Relevant considerations” means any new, relevant facts about the candidate’s suitability for the post. The Committee’s views on the suitability of the candidate, if negative, will be a relevant new consideration. There may also be occasions where a candidate’s performance in front of the select committee is considered relevant to the post in question. It will be for a Minister to judge whether any comments or recommendations made by the Committee are not relevant considerations, and how they should be weighed in making his or her decision. However, where it has been made clear in advance that the Committee has been invited to exercise an effective veto on appointment if minded to do so, the Minister is effectively being asked to weigh the reasons for proceeding with the appointment rather than for not proceeding with the appointment.

7.3 The Committee’s report is a material fact in the process of reaching a decision,

but the Committee’s procedures and decision cannot be challenged in any court or tribunal outside Parliament. Where the Minister is minded not to proceed with the appointment, Departments may wish to seek legal advice before any announcement is made. Departments’ legal advisers may wish to seek advice from COCAD in the Treasury Solicitor’s Department, and possibly from the Speaker’s Counsel in the House of Commons. Cabinet Office should also be informed.

7.4 The remit of the Commissioner for Public Appointments does not extend to the

pre-appointment hearing process itself. This means, for example, that the Commissioner may not deal with any complaint about the conduct of a pre-appointment hearing by a select committee or about the conclusions or recommendations contained in a committee’s report.

7.5 Once the Minister has made a decision, he or she should formally notify the

Committee Chair of the decision. EXCEPTIONS

8.1 Appointments in category A of the list annexed to this guidance will be

conducted jointly with the authorities of the House of Commons. 8.2 Appointments of the Chair and independent members of the Office of Budget

Responsibility are subject to the procedures laid down in the National Audit and Budget Responsibility Act 2011. This gives the Treasury Committee of the House of Commons a statutory power of veto over these three appointments. The procedures for making these appointments will largely follow those described above, but there will be local variations which should be negotiated with the Clerk of the Treasury Committee. The appointment of the Comptroller & Auditor General is also regulated by statute and is led by the House of Commons.


8.3 Because of their market sensitivity, appointments to the Bank of England’s

Monetary Policy Committee are made by the Chancellor before submitting the candidate to a confirmation hearing before the Treasury Committee.

8.4 It is always open to a select committee to decline to hold a pre-appointment

hearing, or to propose a variation which may amount to a streamlined procedure (for example by omitting the public hearing stage). There may be very exceptional circumstances where a select committee cannot be given the opportunity to hold a hearing for a post which has been identified as suitable for pre-appointment scrutiny – for example, if an appointment must be made urgently and a Committee is unable to meet the timetable required, or if there are unexpected market sensitive issues in relation to the preferred candidate. In such cases, Departments should liaise with the relevant committee to consider alternative arrangements, perhaps inviting the committee to hold a post-appointment hearing at the earliest opportunity.


Formal Minutes

Thursday 14 July 2011

Members present:

Sir Alan Beith, in the Chair

Mr James Arbuthnot Dame Anne Begg Mr Clive Betts Mr William Cash Geoffrey Clifton-Brown Mrs Louise Ellman Natascha Engel Dr Hywel Francis Sir Alan Haselhurst

Margaret HodgeMr Bernard Jenkin Andrew Miller Richard Ottaway Mr Laurence Robertson Mr Graham Stuart Mr Andrew Tyrie Keith Vaz Joan Walley

Draft Report (Select Committees and Public Appointments), proposed by the Chair, brought up and read.

Ordered, That the draft Report be read a second time, paragraph by paragraph.

Paragraphs 1 to 68 read and agreed to.

Annexes and Summary agreed to.

Resolved, That the Report be the First Report of the Committee to the House.

Ordered, That the Chair do make the Report to the House.

Several papers were ordered to be reported to the House for printing with the Report.

Ordered, That embargoed copies of the Report be made available, in accordance with the provisions of Standing Order No. 134.

[Adjourned till Tuesday 6 September at 3.45 pm.


Witnesses

Thursday 16 June 2011 Page

Lord Adonis and Akash Paun, Institute for Government; and Professor Robert Hazell and Peter Waller, The Constitution Unit, UCL Ev 1

Rt Hon Francis Maude MP, Minister for the Cabinet Office Ev 9

List of printed written evidence

1 Professor Robert Hazell and Peter Waller, Constitution Unit, UCL Ev 14

2 Chris Banks CBE, Chair of the Public Chairs’ Forum Ev 16

3 Sir David Normington, Commissioner for Public Appointments and First Civil Service Commissioner Ev 17

4 Constitution Unit, University College London Ev 19

5 Institute for Government Ev 20

6 Cabinet Office Ev 22

Liaison Committee: Evidence Ev 1

Oral evidenceTaken before the Liaison Committee

on Thursday 16 June 2011

Members present:

Sir Alan Beith (Chair)

Dame Anne BeggMr Clive BettsMr William CashDavid T. C. DaviesMrs Louise EllmanMr Bernard JenkinMiss Anne McIntosh

________________

Examination of Witnesses

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

Q1 Chair: Welcome to our witnesses. In order to tryto keep the maximum number of people here beforethe House starts sitting later this morning, we havestarted a little early. We are very grateful to you forcoming in. We are apologetic to Robert Hazellbecause he didn’t have warning of that, but I am surethat we can get him to contribute later.All of you have been involved in doing work on theissue of appointment hearings, at which we arecurrently looking. In the course of that, have youformed a view of what we are really supposed to bedoing in this process? Are we, as I think Committeeswould think, looking at candidates recommended byMinisters on the basis that there might be somecircumstances in which we would think that they werenot a suitable candidate for the job and we wouldrecommend that they were not appointed; or are wedoing what seems to be implied in the letter from theChairman of the Public Appointments Commissionthat was sent to us: this is having a nice friendly chatwith the person whom the Minister is going to appointto 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 AkashPaun, who is a colleague of mine at the Institute forGovernment, and Peter Waller from the ConstitutionUnit. We are going to be joined by Professor Hazellimminently.If I may give an answer to that question, it seems tome that the job of Select Committees is to decidewhether they believe that the candidate who is beingput forward for this significant public office meets thestandard required for the job. It is not simply to havea friendly chat; it is to decide whether they believethat this person has the requisite qualities and abilitiesto be able to undertake the post. I have read the letterfrom Sir David Normington, which I have to say is aclassic “Sir Humphrey” production. It is a verypowerful and very elegant argument for the status quo.

Q2 Chair: Or something before the present statusquo.

Andrew MillerMr Robert SymsJohn ThursoMr Andrew TyrieKeith VazMr John Whittingdale

Lord Adonis: It may be that the Liaison Committeethinks that its job is simply to rubber-stamp the statusquo, but its argument is that any change in the existingsystem of public appointments would be contrary tothe public interest. Surely the whole reason why weare considering the role of Select Committees is thatthis serves another key aspect of the public interest,which is to see that there is proper parliamentaryaccountability for major appointments, and that thereis an acceptability test that is met, policed byparliamentary Committees in respect of the mostsignificant of those public appointments.

Q3 Chair: I apologise to Professor Hazell becausewe did start early. I throw at you what it says in theCabinet Office guidance to Departments on how theyconduct these proceedings. When Ministers areconsidering a report from a Committee on acandidate—and the assumption here is that we aretalking about an adverse report—it says: “‘Relevantconsiderations’ means any new, relevant facts aboutthe candidate’s suitability for the post.” The guidancealso says: “There may also be occasions where acandidate’s performance in front of the SelectCommittee is considered relevant to the post inquestion—although this should be exceptional.”Those are pretty narrow grounds, are they not?Lord Adonis: Of course the guidance itself recognisesthat there may be “new, relevant facts”. Theperformance of a candidate before a parliamentaryCommittee is a fairly substantial issue at stake. As aformer Minister myself, it seems to me that, for thesemajor public appointments that we are talking about,unless a candidate can satisfy the relevantdepartmental Select Committee that they are going tobe able to conduct themselves appropriately and withauthority in public—because these are publicappointments—they are unlikely to be successful inthe job. If they cannot persuade a parliamentaryCommittee that they are up to the job and have therequisite qualities to be able to perform in public withauthority, impartiality and those other qualities thatParliament would expect, I think that is a very

Ev 2 Liaison Committee: Evidence

16 June 2011 Lord Adonis, Akash Paun, Professor Robert Hazell CBE and Peter Waller

significant and legitimate ground for questioning theirability to undertake the post.

Q4 Chair: But that is still only a “new factor” of thatinterview, is it not?Lord Adonis: No, it is more than that. Of course thejudgment that a parliamentary Committee would makeis not going to be based solely on what they say inthe Committee. It will be the impression that theparliamentary Committee forms on the basis of takingstock of them as a candidate in the round.Chair: Do any colleagues want to explore this areafurther?

Q5 Mr Jenkin: May I start on a different tack? Isnot a fundamental problem in all this that, basically,legal responsibility for making virtually all theseappointments is in fact in the hands of theGovernment? When we are dealing with the“Category A” appointments, and where we thinkParliament should be part of the appointment process,don’t we need to change the law to make thiseffective?Lord Adonis: I will start and then perhaps I shouldhand over to my colleagues. In the case of the OBR,of course, there has been a statutory change. It maywell be that one would be looking for statutorychanges in respect of the other “A List” appointmentsthat we set out in our report. However, it is perfectlyreasonable for the Government themselves to say thatthese appointments are “subject to ratification”—orwhatever phrase they wish to use—by the appropriateSelect Committee. If the Government were to makethat clear in the job description and to candidateswhen they apply, it would not be unreasonable for thepost to be withheld if assent from the parliamentaryCommittee was not forthcoming.Peter Waller: The current system is effectivelygeared, as you say, to the Secretary of State makingthe decision. There is no role in legislation in the vastmajority of cases for Select Committees—forParliament—to have a say. What has happened as aresult of what has been agreed is that an additionalpiece of evidence—performance before a SelectCommittee—is now being put in front of the Secretaryof State. You can have other systems, but if you wantto give Parliament a formal role, yes, you have to gofor legislation. You have to start again. There is quitea clear case for that. With any new appointment thatis created in legislation, there should be a real thinkingprocess as to what the appointment is about and whoshould make it.

Q6 Mr Jenkin: Having colleagues who have beeninvolved with pre-appointment hearings, the problemat the moment is that you do feel very “bounced” witha fait accompli decision about a perfectly acceptablecandidate, but without a job description or any idea ofhow to judge the merit of the appointment on anythingexcept that the person in front of you seems to beextremely competent and presentable. In fact, theguidance says in paragraph 7.2: “In the vast majorityof cases, where an open and transparent process hasbeen followed and the candidate selected on merit, theexpectation is that the Select Committee will agree

with the appointment of the Government’s preferredcandidate.” Indeed, it says that the pre-appointmentshould take place only once all the relevant Ministershave 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. Howdo we get past this? It feels as though you are beingused as a rubber stamp in the Committees.Lord Adonis: It clearly would be exceptional not togive assent, but it is cases that need to be looked athere when assessing it. The reason why the TreasuryCommittee agreed with the Chancellor, and then thepower to withhold assent to the appointment of thehead of the OBR was placed in statute, was becauseof a very unsatisfactory case. If the Committee, andindeed the public, had been aware of the fact that SirAlan Budd was proposing to take the post for threemonths in the first instance—essentially to do aholding operation—in my judgment, and the judgmentof almost any reasonable person, that would have beenperfectly reasonable grounds for not agreeing theappointment. This is the history that has led us tobeing where we are. I do not think a parliamentaryCommittee would have any difficulty making ajudgment on a fact of that kind. That is the case thathas led to the veto that is now in statute. There aremany other cases that could be similar and could leadto a parliamentary Committee not thinking itappropriate 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 alwayslikely to be the case that it will very much be theexception that a Committee would recommend againsta candidate. That has been the experience so far in thevast majority of cases. Committees have approved thecandidate put before them. When we considered theimplications of the OBR case and how far one mightextend that precedent, we took the view that whilethere might be certain other cases for which one maywant to place a Committee veto in statute, that shouldbe seen, on the whole, as a last resort. It is ratherunusual, constitutionally, in the Westminster systemfor Committee powers to be placed in statute, as youknow. We thought that that should be avoided otherthan as a last resort.However, we tried to develop this idea of what we callan effective veto, largely on the basis of Governmentstatement or commitment before the fact that they willnot override the clear wishes of Parliament onparticular candidates. There are examples of that, asyou will no doubt recall. Earlier this year, the Ministryof Justice made a clear statement that the next timethe Information Commissioner is appointed, theDepartment would not appoint a candidate that hadnot been approved by the Justice Committee. It hasconceded, in effect, an effective veto, as we would seeit, without needing to go down the legislative route.A similar approach was used for the Chair of theStatistics Authority in 2007. There was no statutorybasis for this, but the candidate, as well as goingthrough pre-appointment scrutiny, was put to a vote inthe House. The Government were clear that had theHouse voted against the candidate, the appointmentwould have been withdrawn. We thought that such anapproach would strike the right balance, in a sense,



between the need for a clear role for Parliament andthat of not going down the legislative route, whichseemed over the top.

Q7 Mr Jenkin: Thank you for that. The other mainquestion is this. At the moment, the Committee isinformed that an appointment is taking place and thenwe are presented with the candidate and their CV—and that is it. What other information shouldCommittees have in order to be able to put thatindividual in a more informed context so that theCommittee has a better sense of how the process isbeing conducted and who else has been interviewed,although not necessarily the names and details?Peter Waller: The Committee should first be involvedright at the stage of the initial recruitment—when therecruitment process starts. One case we had, which insome respects was unfortunate, was with theChildren’s Commissioner. There was cleardisagreement between the then Department—theDCSF1—and the Committee about what the job wasabout and what the terms of reference should be. Thatshould be sorted before you start the recruitmentprocess. I do think that there should be provision forthe Committee to be consulted and things discussedwith the Committee right at the start.

Q8 Mr Jenkin: It should be consulted about the jobdescription, how the job is going to be advertised,what sort of profile the candidate should have andwhat their core skills should be.Peter Waller: Yes. I can also see no reason why theDepartment should not give a fairly full account ofthe process that it has been through and the details ofthe recruitment. It probably should not name the othercandidates, but the Committee should be well briefedon that. That would be the level that you would gofor; that would improve it.

Q9 Mrs Ellman: If the Committee is involved fromthe very beginning, as you have just suggested, MrWaller, does that then make the Committee almostresponsible for the appointment, cutting across thescrutiny role?Professor Hazell: No, because the Committee is beingconsulted simply about the job description and theperson specification. At this stage, none of thecandidates are known. It is to avoid a situation wherea candidate is subsequently appointed as the preferredcandidate and then the Committee in its scrutinyhearing in effect comes forward with a different set ofcriteria, so it is saying rather late in the game, “It’snot necessarily that we don’t like this candidate, butwe think you have got the description of the rolewrong.” If the Committee feels that the role iswrongly described, it needs to make that clear upfront. It was a recommendation of the LiaisonCommittee last year that Select Committees, inrelation to all posts subject to pre-appointmentscrutiny, should be consulted in advance about the jobdescription and person specification.While I am speaking, Chair, may I just add one or twothings in reply to Mr Jenkin? As I hope all membersof the Committee know, we did some research that1 Department for Children, Schools and Families

was commissioned by the Liaison Committee 18months ago. We did a very detailed study of the first20 pre-appointment scrutiny hearings. Our report waspublished by the Liaison Committee last March. Iwholly understand that for you, the Select CommitteeChairs, it feels like a bit of a fait accompli when youare presented with the Government’s preferredcandidate. I would only add two important caveats.One is, coming back to an earlier discussion, that thecandidates are all informed right at the beginning ofthe recruitment exercise that there will be a pre-appointment scrutiny hearing and that if theGovernment propose an appointment, they are, in theGovernment’s parlance, only the “preferredcandidate”. All the candidates who put their namesforward know that they are going to be subject toscrutiny by a Select Committee and that may seriouslyspoil their chances of getting the job.The interesting thing that came out very strongly fromour research was that while you may feel you do nothave very much influence, you seriouslyunderestimate how much influence you have under thepresent system. Of the 20 candidates whom weinterviewed, 16 said that if the Committee hadrecommended against their appointment, they wouldhave thought very seriously about whether to take itup. Some of them said to us in terms, “I would nothave taken it up. I would have been so damaged bythe Select Committee’s report that I could not havedone the job.” Others said, in a more nuanced way, “Iwould have thought really hard about what the SelectCommittee said and why I was not suitable beforedeciding whether or not to take up the appointment.”If I may suggest from the research that we did, that iswhere you have much more influence under thepresent system than I think is perhaps realised.

Q10 Mr Cash: I take a special interest in thisbecause, if you look at the draft list of appointmentssubject to pre-appointment scrutiny, one of the SelectCommittees left out is the one I chair: the EuropeanScrutiny Committee. I have just heard Robert Hazell,who appeared before my Committee quite recently,talking a lot about scrutiny, and the same is appliedto you, Lord Adonis. The issue of scrutiny is quiteimportant. I have just been through the list of theCommittees and the various appointments that aresubject to pre-appointment. I have counted about ninethat come straight inside, to one degree or another, theremit of the European Scrutiny Committee in terms oftheir statutory duties and the extent to which it extendsback to European regulation, the EuropeanCommunities Act and the rest. Did you have anythoughts as to whether the European dimension wouldneed to be taken into account in this area because,after all, so many of our laws are determined at thatlevel?Professor Hazell: If I may go first, there is generalagreement, both in this Committee’s report of last yearand the Government’s response, that the list of the toppublic appointments that should be subject to scrutinyby Select Committees needs revisiting. TheGovernment have agreed to do that, so it is in effectopen to all of you—the Select Committees and theLiaison Committee—to put forward proposals for



further appointments to be subject to pre-appointmentscrutiny and to say which Committees thosecandidates might come before.

Q11 Mr Cash: You are not quite answering myquestion. Given the status of the European ScrutinyCommittee and the extent to which the laws that passbefore us are impinging on the United Kingdom, doyou not agree that the European Scrutiny Committeeshould be given some role? I am not quite sure exactlywhat form it would take; it might be by consultation—I am not certain. None the less, should there be somedegree of interaction to enable the European ScrutinyCommittee to be involved in the process?Lord Adonis: There would be a very clear difficultyin having candidates subject to hearings before orratification by more than one Committee. I cannotmyself conceive of how that could work effectively.

Q12 Mr Cash: If that were the case, do you not agreethat if there is something that falls clearly within theremit of the European Scrutiny Committee, becausethe activities of the person in question are ultimatelydetermined by reference to legislation that comes fromthe European Union, there would be a reasonablygood case, if not a very good case, for the EuropeanScrutiny Committee to be involved in that process?Lord Adonis: It is probably for the Liaison Committeeto decide which it thinks is the appropriate Committeein each case. That would be my answer to that one.

Q13 Mr Cash: Of course there are EuropeanCommissioners at whom we might want to look.There is also this question of COREPER.2 Forexample, there are proposals, so we understand, forMr Jon Cunliffe, who is due to be given a very seniorappointment. I can think of several areas where itmight be a good idea for us, given the considerableexperience that we have in these matters, to be ableto look at and form a judgment about his suitability.Lord Adonis: I felt that that was a rhetoricalquestion, really.

Q14 Mr Cash: No; it is not a rhetorical question; itis 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 LiaisonCommittee itself to decide which Committees shouldhold pre-appointment hearings.

Q15 Chair: It is indeed a matter for this Committee,but it is perfectly proper to ask witnesses if they havea view about it. If they don’t have one, they don’thave to give one.Akash Paun: On the initial question from Mr Cash,there is already the possibility of two Committeesholding a joint session with a candidate. It hashappened to my knowledge on one occasion beforefor the Chair of Ofcom, when the Culture, Media andSport and Business Innovation Skills Committees helda joint session.Chair: That was a joint session, not two hearings.2 Committee of Permanent Representatives in the European

Union

Akash Paun: Yes. To clarify, it was a joint session.There is precedent and there are proceduresestablished to follow that route. Obviously, that wouldbe a matter for discussion among you on the LiaisonCommittee.

Q16 David T.C. Davies: I was going to make thatvery point because I chaired a recent joint SelectCommittee hearing with the Department for Culture,Media and Sport. It worked perfectly well. I was withMr Whittingdale.Lord Adonis: But there is a fundamental differencebetween having one joint Committee and having twoseparate Committees that are holding hearings.

Q17 David T.C. Davies: Technically, it was twoseparate Committees meeting in the same room at thesame time. There were two separate reports.Lord Adonis: I assume that they agreed with eachother.David T.C. Davies: Yes.Lord Adonis: That is very helpful. If they disagreedwith each other, I think you might have had a problemor two.David T.C. Davies: We might have done.Lord Adonis: Frankly, Parliament would look a farceif you had parliamentary Committees that werereaching different opinions on candidates and hadunclear allocations of powers and responsibilitiesbetween them.David T.C. Davies: It is bound to happen sooner orlater though, isn’t it? The law of averages says it isbound to happen sooner or later. I am sure thatParliament will muddle along.Chair: That was a view and not a question.Mr Whittingdale: I have done three pre-appointmenthearings, two of which have been joint hearings withother Committees. In the first one we swapped Chairshalfway through, but that was where the body clearlyhad some responsibilities that were mainly in the areaof one Committee and then of the second. Happily, oneach occasion not everybody turned up. It can becomevery unwieldy if you get a full turn-out from bothcommittees, with some 22 people taking part. Perhapsto address Mr Cash’s point, maybe when there is aEuropean dimension, there could be one or tworepresentatives of the European Scrutiny Committeeattending 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 theEuropean Commission, or indeed Britain’s nominationto the European Court of Justice, should not be subjectto a pre-appointment hearing by Parliament?Lord Adonis: There is no reason of principle, but ofcourse the Government would need to agree to it.

Q19 Chair: Would you favour it?Lord Adonis: Personally I would, but that is verymuch a personal view. I think it would enhanceaccountability in what are very important publicappointments.

Q20 Mr Jenkin: The obvious Committee would bethe European Scrutiny Committee.



Lord Adonis: That, again, would be for the LiaisonCommittee to decide.Chair: That would be a matter for us.Peter Waller: In some respects that is an even strongercase, if I may say so. Those are appointments whichare made on a political basis. You do not go througha Whitehall-dominated process of invitingapplications for European Commissioners and so on.It is a very political appointment and the case forparliamentary scrutiny there seems to me to be reallyrather stronger than in most of the cases we havecovered in the report.

Q21 Mr Jenkin: Would that also apply to things suchas the Secretary-General of NATO or Britain’sambassador to the United Nations? How far does onego down this route?Peter Waller: Yes, the practicalities might get in theway.

Q22 Chair: Mr Waller makes an important point ofwhich we must not lose sight: part of the genesis forthe idea of scrutiny, and indeed the American patternof it, is how you deal with appointments that are madeon political grounds and are not subject to aconventional process. There are now far fewer ofthose, but it seems to me, at any rate—and ProfessorHazell agrees with me—that they are prime candidatesfor a scrutiny process.Professor Hazell: I wholly agree. If you look at theexample of the Foreign Affairs Committee, it is rightthat it has always made a practice of inviting non-diplomatic candidates—i.e. political appointments—to appear before it. It is not something that theGovernment have ever formally agreed to, but theForeign Affairs Committee has made it its practice.Peter Waller: But those, in the eyes of theGovernment, are post-appointment hearings. TheGovernment have never conceded that that is a pre-appointment hearing.Lord Adonis: In cases like this, I suspect that youprobably start by getting the Government to agree tothem as post-appointment hearings and then, in duecourse, the next stage would be to encourage them tomake them pre-appointment hearings.

Q23 Andrew Miller: You have those highly politicalappointments and then you have those very technicalappointments—the Chairs of the Statistics Authority,the Food Standards Agency and so on. Then you havesome that are more of an ombudsman type of role. Inyour view, do those different categories requiredifferent processes, or is there a common threadthrough them?Lord Adonis: We did suggest different processes inour report with what we called the “A List” of publicappointments, where there should be an effectiveparliamentary veto—not simply a pre-appointmenthearing, but going a stage beyond that. We set outcriteria in the report as to why we had selected thoseposts. We do suggest different treatments. However, ifyou are going to extend it to European Commissionersor very significant diplomatic appointments, it wouldbe hard to make an argument in principle for those

appointments not being on a par with those in ourproposed “A List”.

Q24 Miss McIntosh: As regards the EuropeanCommissioners, including those nominated from thiscountry, that clearly is the role of the EuropeanParliament. Would you not have a view that therecould be a conflict?Lord Adonis: It is the role of the Government todetermine who they are going to put forward. It isthen the role of the European Parliament to decidewhether it is going to ratify them. They are two verydistinct roles, are they not? It is the Government whoput forward the candidate. Any pre or post-appointment hearings would be about theGovernment’s nominee or nominees for the post,subject of course to all of the processes that then takeplace in Brussels.

Q25 Miss McIntosh: To clarify that, I think that MrWaller said that the Select Committee should beconsulted at the earliest stage by the Department onthe announcement and the job description beingprepared. Is that your understanding of our presentpowers? I do not want to jump to conclusions, butthere are two appointments coming up for my SelectCommittee where I do not think we have beenformally consulted. That is possibly because—Peter Waller: Following on from our earlier researchreport, the Liaison Committee recommended in itsreport that you should be consulted on terms ofreference, job description and so on right at the outset.Professor Hazell: The Government have not yetconsented to that.Peter Waller: The Government, in a fairly typicalGovernment response, said “We will have to thinkabout that one hard and we are a little worried that itmight make the process even longer.” There is acommon view that the processes here are often just fartoo long. They seem to drag out over several months.Equally, I cannot quite see why the Governmentshould worry about the length it takes on this oneparticular item when they are in control of most of thetimetable themselves. I would suggest that you wantto keep pressing for that. I cannot see a good reasonwhy you should not be given that.

Q26 Miss McIntosh: The current guidelines on howpre-appointment hearings take place allow forcandidates to be questioned as regards professionalcompetence and personal independence. If they areholding more than one public office, are you satisfiedthat the guidelines allow us to question on what otherpositions they hold and whether there is a potentialconflict of interest, or indeed whether they will beavailable to do the work? An interesting appointment,which obviously we were not allowed to look at, wasthe appointment of the Chairman of IPSA,3 whoholds a number of public positions. But, of course, heis so independent that we are not allowed toquestion—Professor Hazell: Without going into that particularcase, I can think of at least one instance where a SelectCommittee pressed a candidate very hard about3 The Independent Parliamentary Standards Authority



whether she could do the post in three days a week.She had other appointments. It seems to me that thatis an entirely proper line of questioning for a SelectCommittee to pursue.

Q27 Chair: There was another recommendation inthis Committee’s report—the Government had to goaway and think about it and they have not yetdelivered their thoughts—that a Committee, instead ofissuing an immediate report saying it did not approvethe appointment of a candidate, should be able to havea private meeting with the Minister to discuss how totake the matter forward, if it was inclined not toapprove a candidate. It might want to seek someassurances or want to know a little more about whatsort of candidates had been on the shortlist—notnecessarily who, individually, but whether this reallywas the most suitable available candidate. Do youhave a view about alternative processes to the present,rather brutal process under which someone who hasgone through a selection process, been recommendedby a Minister and made the subject of a glowing pressrelease about how good they will be in theappointment then has a report about them publishedby a Committee saying, “We don’t think they are theright person for the job”?Lord Adonis: My view is that it should be a matter atthe discretion of the Committee. If it wished to meeta Minister at the point at which it was minded to makea decision but had not made it—if in its judgmentthere was a prior process at that stage—that might bea worthwhile step. As a former Minister, I find italmost inconceivable in such a case that the Chair ofthe Select Committee would not have a private wordwith the Secretary of State anyway. We can get tooformal about these processes. In a case where, clearly,there was a difference of view emerging, I would findit very surprising indeed if the Secretary of State wasnot aware of how the mind of the Committee wasmoving and if there were not discussions taking placebetween the Chair and the Secretary of State beforeany formal decision was taken.Professor Hazell: I strongly agree with that. In a way,it is slightly bizarre that it is the candidate whoappears before the Committee to, as it were, front forthe Secretary of State’s decision. The committee isscrutinising the Government and the Secretary ofState, and the decision by the Secretary of State toappoint candidate X. In effect, the Committee may bequestioning the Secretary of State’s judgment andmight therefore want the Secretary of State to comeand explain that.

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

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

Q29 Mr Syms: The reality is, though, that clearlyParliament would be better informed if somebodycould give a rather straighter answer about how therole was working and whether there ought to bechanges, and if that were factored in even before wegot to the point of advertising for a replacement.Having Parliament involved is relevant only if youhave Parliament involved in more than just simplygiving the nod by actually reviewing how somebodyhas done before you go on to a next-generationcandidate.Chair: Let me just say that I would not want Chairsto 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 area couple of occasions when Committees have doneexactly that. The Public Administration SelectCommittee has recently spoken to Sir Michael Scholarin advance of the next pre-appointment hearing for theChair of the Statistics Authority to do exactly that.The same thing happened with the InformationCommissioner last time round. Yes, of courseCommittees have the ability to do that already. Weconclude that that is a very sensible thing to do.Committees might, in certain cases, even wish to holda wider call for evidence on the nature of the role,particularly when the status or the powers of a postare being changed or, as in the case of the Chair ofthe Statistics Authority, the basis on which the job isbeing offered is being changed. Especially in thosekinds of situations, it is highly sensible to try to gatherthat wider evidence about what the job entails andwhat the Committee should therefore look out forwhen it meets the proposed candidate.Peter Waller: I have two thoughts about that. First,yes, there is obviously every opportunity to have ahearing with an outgoing post-holder. There is a casefor saying that you should be consulted before adecision is made to reappoint. I am thinking along thelines that you have the strongest case for aparliamentary role when Ministers are takingdecisions that could be political. When someone isappointed for the first time, you go through thisdetailed OCPA4 Whitehall process and so on. Whensomeone is coming up for reappointment, it becomesa ministerial decision—“Oh, Minister, do you thinkthat Fred should be reappointed after his first threeyears?” There is a bit of grit that should be put intothe system there of the Select Committee having itsviews sought as to whether Fred has done a good joband ought to be reappointed, or whether theappointment should go forward again.There is one other thing that has not come up, and Ifeed back a little from some of the interviews I didwith Select Chairs. A feeling came through that themore you do on this, the more it is crowding out timeto do other things as Select Committees. It is veryeasy in thinking what you could do to think of lotsand lots of things to do. You will have to decide wherethey sit in your priority. Some Committees, in4 The Office of the Commissioner for Public Appointments



particular, could find themselves doing a heck of a lotof work on this. Is that what you want to do?Lord Adonis: On reappointments, Chair, we say in theInstitute for Government report that “for allappointments where a Select Committee has the rightto hold a pre-appointment scrutiny hearing,Government should make time for a reappointmenthearing on the same terms.” I entirely endorse MrWaller’s point in that regard.

Q30 Chair: At the discretion of the Committee.Lord Adonis: Yes.

Q31 Chair: I want to explore something quiteimportant. There have been some cases in whichlawyers—either for candidates or in the Department—have started to get interested in this process. Areserious legal problems engaged by the process ifsomebody has been offered appointment on terms thatdo not make it entirely clear that the appointmentcould be stopped if the Select Committee disagrees?Lord Adonis: I imagine, Chair, that you are takingyour own legal advice on that point and the SelectCommittees will, too. It seems to me that it is not anissue up until the point at which you are talking abouta formal veto. I thought Professor Hazell’s remarkswere very pertinent here. Most candidates wouldwithdraw, or be persuaded to withdraw, a long waybefore you got to the formal veto. Where you get tothe issue of a formal veto—and we have a good dealto say about how that veto might be exercised, withchecks and balances, in our report—it may be that thelawyers will tell you that in order to exercise a formalveto, you do need new legal powers. I note that, inthe case of the OBR,5 statutory powers were givenin order for a formal veto to be in place.

Q32 Chair: But in the absence of a formal veto, doyou think there is a risk of legal challenge to a processin which a Committee recommends that anappointment should not be made and the Ministersays, “Right, I will go with the Committee,” or, if nota legal challenge, the Department’s lawyers saying,“This is far too risky and you are open to legalchallenge, Minister”?Lord Adonis: I am sure that the Department’s lawyerswill try to browbeat the Committee with that view.You would need to take independent advice onwhether it is a correct view or not.Andrew Miller: It would be more complicated onreappointments.Professor Hazell: Chair, may I make two points?Forgive me, but one I have already made. With regardto all the appointments that are subject to pre-appointment scrutiny, when the post is first advertisedwith the particulars of the job, candidates are informedthat there will be a hearing with the relevant SelectCommittee and that they will be the “preferredcandidate” of the Department. I don’t know what theWhitehall lawyers will say, but I assume they say thatthat is sufficient notice to the candidate that this is astage in the process and the appointment cannot beconfirmed until the Select Committee has had itshearing.5 The Office of Budget Responsibility

May I add something on the veto? Here there is aslight difference of emphasis between our report andthat from the Institute for Government. We do not seea need for a formal veto. This is very much a matterfor the Liaison Committee and also for the House.There is something to be thought through about therelationship between Select Committees and theHouse. When a Select Committee issues a report, it isgiving a report to the House. The House, if it wishes,can then have a debate on the Floor. Interestingly, thatis what happened in the case of the Children’sCommissioner. After the adverse report from theSelect Committee, when the Secretary of State EdBalls said he proposed to make the appointment, anurgent question was tabled and the Speaker allowed itto be heard. The Secretary of State was summoned tothe House to explain and justify his decision.You and the House authorities can think of other waysin which a debate on the Floor could be made intosomething really serious and painful for theGovernment—perhaps it should be something on asubstantive motion with a Division at the end. Thereare lots of possible procedures linking an adversereport from a Select Committee to a process on theFloor of the House that could be very difficult for theGovernment and really force them to explainthemselves and justify their decision withoutnecessarily having an effective veto.Lord Adonis: I endorse the thrust of what ProfessorHazell says. In our report we say: “where thecommittee is firmly against the appointment but theMinister wishes to proceed, we recommend that thematter should be referred to the House of Commonsfor a debate opened by the committee chair. We wouldenvisage referral to the House itself occurring veryrarely, but if this stage were reached, and if theCommons voted against the appointment, then theappointment process would need to be reopened.”In the real world, of course, I imagine that thisappointment would have ceased a good time beforeyou get to that debate and vote. If it got to that debateand vote, there would be, I would hazard, a verystrong case indeed for that appointment not toproceed, if the strength of feeling is so great that yougo into a debate on the Floor of the House ofCommons.

Q33 Mr Whittingdale: You referred earlier to therebeing a stronger case in more political appointmentsfor some kind of Select Committee scrutiny. If youtake that to its ultimate application, it would apply toministerial appointments. While that may beimpractical for members of the House of Commonswho are appointed to ministerial office, what if thepractice of the previous Prime Minister of bringingpeople into Government from the outside were tocontinue? To take an example, Lord Adonis, do youthink you should have been subject to SelectCommittee scrutiny?Lord Adonis: I would have had no difficulty with thatat all. I appeared before the Transport Committeeconstantly. I would have been perfectly content tohave had—

Q34 Mr Whittingdale: As a pre-appointment.



Lord Adonis: Personally, I would have been perfectlycontent with a pre-appointment hearing. It might havecut short my ministerial career to a matter of a fewdays. In fact, I had a very good relationship with theSelect Committee, I am glad to say.

Q35 Mr Whittingdale: Do you think it would be animprovement in practice if that were applied toministerial positions?Lord Adonis: You are talking about a majorconstitutional change. It is a much more radicalconstitutional change than any of these, because whatyou are then doing is fettering the discretion of thePrime Minister in the appointment of members of theGovernment, which has never happened in the past. Imyself am not hidebound by convention. I think youshould look at these things on their merits. There maybe a case for it, but it is well beyond the remit of theissues we are discussing this morning.Akash Paun: While we were talking about politicalappointments before being a good candidate for pre-appointment scrutiny, I think the key principle waspolitical appointments to posts that are normally madeon non-political grounds. The obvious case is that ofambassadors who have been appointed from outsidethe diplomatic service. With Ministers, obviously, thatprinciple does not apply.

Q36 Mr Jenkin: Very briefly, I suppose theappointment of Supreme Court justices would also bebeyond your remit.Lord Adonis: It is not beyond our remit. It is beyondthe report we have written and the issues about whichyou have asked us to appear before the Committee.Professor Hazell: It is something being inquired intoby a Select Committee in the other place—theConstitution Committee of the House of Lords—andwe are about to submit evidence suggesting thatSupreme Court justices should be subject to somekind of scrutiny.

Q37 Mr Jenkin: They are virtually self-appointingat the moment. In terms of briefing the Committeebefore the process starts, who should do that? Shouldit be an informal briefing? Should the head huntercome along and explain how the executive searchagency has been briefed? Should the Committee besatisfied with the way in which the recruitmentprocess is being conducted at the outset?Professor Hazell: Peter Waller’s points are veryrelevant about how much time you want to invest inthis. I am guessing that this would be done bycorrespondence in most cases. The Department wouldsend the proposed job description and personspecification to the Select Committee and say, “Thisnew post is going to be advertised and we would liketo start advertising it from X date. Do you, theCommittee, have any observations on the proposedspec?”

Q38 Mr Jenkin: Before the actual pre-appointmenthearing, should there be an informal briefing of theCommittee—not about the names of who is beinginterviewed, but the sort of people who are being

interviewed? It seems to me that that would makemore sense.Peter Waller: I cannot see any reason why that shouldnot be done. Whether one of the officials talks it allthrough with the Chair of the committee or whetherthere is a memorandum, there are different ways itcould be done. Yes, you could give a full account ofhow this process has gone and so on. That would beperfectly possible.Akash Paun: We similarly took the view that,obviously, carefully anonymised details of the rangeof applications received and those shortlisted, andsome of the characteristics of the shortlist, should begiven to Committees.

Q39 Mr Jenkin: But what I am suggesting is thatmore information would be conveyed informally andverbally to the Committee. As soon as things arewritten down, it is all a hostage to fortune, is it not?Peter Waller: Yes, though Committees to some extentglory in the fact that 99.9% of the things they do arein public, do they not?

Q40 Mr Jenkin: That is not necessarily the case.Finally, on the question of salaries, the Governmentare trying to cut a whole lot of salaries of publicappointments by referencing to the salary level of thePrime Minister. Do you think the Select Committeesshould be interested in that?Lord Adonis: It is a reasonable issue, if they wish toget into it. It may not be the most important issue inrelation to a public appointment.

Q41 Mr Tyrie: I have a couple of quick questions.The first is to Professor Hazell. You are against theveto power. Was it a mistake then for the Treasury andthe Treasury Committee to negotiate the OBR veto?Professor Hazell: Yes. I think it was a decision takenin quite exceptional circumstances, which we detailedin the submission that we made to the Committee lastweek. As you may recall, this time last year, theindependence and integrity of the OBR were beingvery seriously questioned by serious people becauseof what might have been a chapter of small accidents.

Q42 Mr Tyrie: That is the past. What is the damagedone?Professor Hazell: It is now a very interesting pilot. Iwould not want to see more Select Committeesseeking—

Q43 Mr Tyrie: What is the damage done? What havewe lost? That is what I am trying to get at.Constitutionally, in what respect are we worse off thanwe were? If it was a mistake, we must be worse off.Professor Hazell: This is a parliamentary systemwhere the Government make all executive decisionsand Parliament scrutinises them and calls theGovernment to account. I do not think it is rightconstitutionally in a parliamentary system forParliament or a Committee of Parliament to be a co-decision maker.Lord Adonis: I take a much more restricted view ofconstitutional practice. It is up to Parliament to decidewhat the appropriate relation is with Government.



Peter Waller: I would say, briefly, that the mistakewas not to have had a much more thorough debateabout who actually is best placed to recruit andappoint the OBR, and how far the Department shouldbe involved in that.

Q44 Mr Tyrie: By the Treasury.Peter Waller: Yes. To have the old system followedby a veto is clumsy. There should have been a way ofsaying, “Who should make this appointment? What isthe best process to give the guarantee of theindependence of the members?”

Q45 Mr Tyrie: We have now created a system tosupport it, so I think that that point has been covered.Lord Adonis, when I gave a speech in favour ofextending this sort of approach, to my surprise I hadquite a reaction. I thought nobody had noticed theOBR or the MPC6 appointment hearings that hadbeen going on for 14 years in the Treasury. Most of itwas favourable. You have had your stuff out there forsome time now for public consultation. What kind ofresponse have you had and what points are peoplemaking?Lord Adonis: The response we have had has beenbroadly positive, too. The reaction to the speechwhich gave, which of course was at the IfG with avery large audience of those with a deep interest in

6 Monetary Policy Committee

Examination of Witness

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

Q46 Chair: Minister, thank you very much forcoming to join us. We are conscious that a number ofMembers are involved in matters on the Floor of theHouse, which is one of the problems with Thursdaymorning sittings.To start with, we need to get it clear that we are alltalking about the same thing regarding publicappointment hearings. What is this process? Is it, aswe have assumed, a process that can, in somecircumstances, lead to a Minister accepting the viewof a Committee that an appointment should not goahead, or are those circumstances so narrowly definedas to be almost unreal? I am sure you have seen SirDavid Normington’s very interesting and carefullyargued letter in which he is effectively defininghearings as opportunities for Committees to discusshow the person is going to do the job when appointed.Are we looking at something so narrowly defined—asit is in the Cabinet Office’s guidance, which talksabout either new facts which were not previouslyknown coming to light or a bad performance beforethe Committee as being the only grounds on whicha Committee might decide to recommend against anappointment—or is it, as we originally thought, aCommittee sometimes having to set out argumentsabout why this might not be the right person to dothe job?Mr Maude: Sorry; what is the question?

these issues, was positive, including, I might say, fromJack Straw, who was on the panel. I do not think ofhim as necessarily an instinctive radical on theseissues, but he endorsed your proposals warmly.The other point I would make is this. What influencedme in this regard was when we came to look at theissue of the appointments themselves. If you look atappendix A of our report and the proposed “A List”of public appointments, these are hugely importantappointments. Just in your sphere, Mr Tyrie, wedesignated five posts, including the Governor of theBank of England. The Governor of the Bank ofEngland, with the creation of the MPC and theabolition of the FSA,7 is now more powerful than atany time in history. I do not think it is correct thatParliament should not have some substantial role inensuring that that person is a fit and proper person tobe Governor in the current context. I think it is rightthat Parliament should play a role in that regard. Itwould hugely underpin the legitimacy and authorityof the Governor that they took office with independentparliamentary authorisation, as well as theappointment of the Government. That is true of theother posts in your area too.Chair: Let us not go into the posts in detail becausewe have that available to us. I thank our witnessesnow very much for their assistance.

7 Financial Services Authority

Chair: Are we looking at a process in which there area number of grounds on which a Committee and aMinister might agree that the appointment should notgo ahead, or are we looking at a process that isprimarily one of allowing the Committee to talk abouthow the appointee is going to do the job?Mr Maude: Certainly it is an opportunity to talk aboutthe way in which the appointee will do the job andthe circumstances in which Ministers may choose totake account of an adverse recommendation from aSelect Committee. The guidance, and it is onlyguidance, does set that out in relatively narrow terms,as you say. A spectacularly poor performance in frontof the Select Committee would undoubtedly impingeon the Minister’s view of whether that person is rightfor what is, by definition, a kind of public role, andobviously the disclosure of undisclosed facts that arematerial would make a difference. If there wasgenerally a strong view from a Committee that madea difference to the perceived acceptability of acandidate, I think some Ministers would certainlywant to bear that in mind.

Q47 Chair: The two grounds that I have enumeratedare not the only grounds, are they?Mr Maude: This is only guidance. These areministerial appointments and Ministers will make


16 June 2011 Rt Hon Francis Maude MP

appointments—and might sometimes then dis-appoint—on the grounds of their own choosing, whichmay reflect the views of the Select Committee.

Q48 Chair: Have the Government yet formed a viewon one of the recommendations that this Committeemade previously—they went away to think aboutwhen they officially responded—that there may becircumstances in which a Committee, rather thansimply issuing a report, might want to meet a Ministerand discuss privately with him the reservations it has,and therefore have some engagement before decidingwhether to issue the critical report and risk a clashwith the Minister when the appointment goes ahead?Mr Maude: I am very open to that. It seems to me awholly acceptable course. In many cases it will makesense for a Minister at the very beginning of theappointment process to meet—particularly with theChair of the relevant Select Committee—to discussthe role, to talk about the job description and what theexpectations are, and potentially to canvass names, orcertainly to invite suggestions from the Chair aboutnames. The more involvement there is by the SelectCommittee—particularly by the Chair—in a veryinformal way early on, has two advantages. First,Ministers will get useful insights and that will help toshape the job description and the appointment process,and to feed in names. The other thing is that it meansthat Ministers will focus on this early, which they donot necessarily do. Sometimes these appointmentprocesses take on a life of their own.

Q49 Andrew Miller: That was precisely the line Iwas going to go down. It would not require anyfundamental change for that to become the normstraight away. It would give substantially moreconfidence in the process if Chairs were seen to beengaged with the relevant Minister. Is that deliverablenow? 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 samething. Is it going to happen?Mr Maude: I cannot speak for all Ministers. We havesome guidance and procedures and so on.

Q51 Andrew Miller: Would it be yourrecommendation to the Prime Minister that thatchange becomes the norm?Mr Maude: I do not have a completely fully-fledgedview that that is what ought always to be the case. Itis much better to approach this informally andpragmatically, and to encourage the Ministers who areinclined to do this when there is a good workingrelationship—which there should be between theChair of a Select Committee and the relevant Minister.I am in suck-it-and-see mode.

Q52 Keith Vaz: I welcome what the Minister hassaid. It is a very good and open approach that I thinkwill be very helpful. The Home Affairs Committee isin correspondence with the Home Secretary about theappointment 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 nota ministerial appointment—this is an appointment bythe Civil Service Commission—and that therefore wehave no right or authority to be involved in this. Weunderstand this.Mr Maude: Nor do Ministers, as you will know as aformer Home Office Minister.

Q53 Keith Vaz: I never made any appointmentswhen I was a Foreign Office Minister. Do you thinkthat in those kinds of appointments, which obviouslywill require intense scrutiny by a Select Committee,there ought to be the kind of approach that you havementioned—not just for the major appointments, butin terms of agencies of Government Departmentswhen it is absolutely clear that, like with the head ofthe UKBA, there will have to be a very strongrelationship with a Select Committee?Mr Maude: It is a civil service appointment. That isnot a ministerial appointment. It would be improperfor Ministers to make that appointment.

Q54 Keith Vaz: I understand that, but I am talkingabout the relationship with Select Committees. Civilservants do appear before Select Committees.Mr Maude: I understand that. We are talking hereabout discussions between the relevant Secretary ofState—the Minister in charge of the Department—andthe Chair of the Select Committee. If the Minister incharge of the Department is not making theappointment, there is no point in having a discussion,I wouldn’t have thought.

Q55 Keith Vaz: Do you think that that discussionshould be with the Permanent Secretary.Mr Maude: It could be. I honestly do not have a viewabout that. It is not something that had occurred to me.

Q56 Mr Jenkin: Do you think it would bereasonable for a Committee to refuse an appointmenton the basis that the role of the appointment is toscrutinise what the Government does, or some aspectof what the Government does, if the candidate is quiteobviously a Whitehall insider?Mr Maude: I know of no reason why a SelectCommittee should not form a view and make arecommendation on whatever grounds it likes.

Q57 Mr Jenkin: Would that not be arecommendation that a Minister would be obliged toaccept?Mr Maude: No.

Q58 Mr Jenkin: So we are in a situation whereSelect Committees might be makingrecommendations and Ministers are going to ignorethese recommendations.Mr Maude: No. I am just saying that Ministers willnot automatically accept the recommendation, but willread them with interest.

Q59 Chair: In such a case as that, would it not bebetter if the Committee knew whether there were nogood outside applicants for the job or if there weregood outside applicants to be shortlisted—without



knowing the names, of course? It is relevant to theCommittee wondering why an insider has beenoffered this position, is it not?Mr Maude: The extent to which Select Committeesget involved in this process is something I know thatthe Commissioner for Public Appointments will haveviews about. I see no reason why there should not beearly discussion between Ministers, where these areministerial appointments, and the Select CommitteeChair, including potentially canvassing names orcertainly inviting suggestions for names.

Q60 Chair: That was not quite the point I wasasking. If the Committee as a whole is forming a viewin 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, eitherthat it was trawled in such a way that outsiders weregiven an opportunity or that there were some on theshortlist?Mr Maude: Let me put it this way. If there were tobe those early-stage conversations between theMinister and the Select Committee Chair, which couldcertainly revolve around what the job is and what kindof person would be appropriate to do it, such concernmight easily be ventilated at that stage, and if thatwere a strong concern, Ministers would be able tobear it in mind.

Q61 Mr Jenkin: If it was in the Cabinet Officeguidance that that was one of the steps to appointingone from the nominated lists, that would be anextremely good innovation.Mr Maude: I am not committing that it will be in theguidance. At this stage, I think we should be lookingto see how we can explore informal and pragmaticways of trying it.

Q62 Mr Jenkin: But this is not about involving theCommittee in the recruitment process, as, forexample, we have done with the parliamentaryombudsman.Mr Maude: Indeed.

Q63 Mr Jenkin: This is about consulting the SelectCommittee about the recruitment process and theprofile of the candidate that is being sought. Thatwould seem to be a good thing to include in theguidance.Mr Maude: I am not saying that I am going to includein the guidance that there should be discussions at anearly stage with the Select Committee Chair. I see noreason why that should not happen, but I would muchrather we proceeded in an informal, pragmatic way.As I say, to put it in the vernacular, we should suck itand see.

Q64 Mr Jenkin: But guidance is only guidance. It isinformal and pragmatic anyway.Mr Maude: Yes, but we know that guidance tends tobecome more than guidance.

Q65 Mr Jenkin: The guidance says that ifParliament is in recess and you cannot get hold of theCommittee Chair, you are just going to carry on and

make the appointment anyway. How are we going tostop Governments—other Governments of course—from exploiting the recess in order to be able to makeappointments without parliamentary pre-appointmenthearings?Chair: Leave your phone number.Mr Maude: It is not unknown, is it, for Members ofParliament to be available during the recess?

Q66 Dame Anne Begg: What we definitely needmore than anything else is clarity about what exactlythe process is all about. That is partly because it maybe that the Minister defines what the job is differentlyfrom the Select Committee. The pre-appointmenthearing might start off almost on a different premisefrom when the appointment was done. While we haveheard of the clear cases where there was an outcryabout a particular appointment, in general it will notbe as high profile as that and it is more likely to besome minor things, or less serious things, that theCommittee is concerned about. Is there not a dangerthat, without that clarity, we end up wounding thecandidate? It is not a fatal blow, but it undermines theability of that person to go and do the job as theMinister perceived it, as opposed to what theCommittee itself thought the job was about in thefirst place.Mr Maude: The greater the extent to which there canbe 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, butis there not the danger—and it is actually a constrainton the Committee—that, perhaps, it does not writequite as critical a report as it might have wanted tobecause it knows it is not going to write a report thatwill stop the person getting the job, and nor indeeddoes it have a veto anyway? The Committee does notnecessarily want to undermine the individual beforethey even start, when it knows they will get the jobbecause they are on a path that they are going to getthe job?Mr Maude: At the end of it, these are ministerialappointments. Ministers have to take responsibility fortheir appointments. While it always makes sense togather as much commonality of view before you makethe appointment, at the end of it Ministers have tomake the appointments.

Q68 Dame Anne Begg: But you do not think thereis a danger that the individuals will be unable to dothe job because of the ill-defined process that the pre-appointment hearing is at the moment?Mr Maude: Select Committees, in the way theyconduct pre-appointment scrutiny, have aresponsibility to do that in a way that does not inflictdamage on someone who may—or, in all likelihood,will—carry out the role.

Q69 Dame Anne Begg: That then means that theCommittee is trying to do the job with one hand tiedbehind its back. It does not know who the othercandidates were or if this is the best candidate. If itthinks the candidate before it does not have thespecialist expertise it was expecting, it does not know



whether any of the other candidates did at themoment. It is that lack of clear definition that makesalmost a mockery of the process. You might as wellnot have had the pre-appointment hearing.Mr Maude: You say that they are acting with onehand tied behind their back. The burden ofresponsibility 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, asSelect Committees must when they carry out a publichearing, it does tie one’s hands to some extent.

Q70 Chair: But I think Dame Anne was suggestingthat what was tying their hands was lack of knowledgerelevant 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 wereother suitable candidates who have the expertise thatwas required, or whether, in making therecommendation, the selection body was choosingamong candidates none of whom had a high level ofexpertise.Mr Maude: Yes. Unless you go down the path ofmaking this effectively, as Professor Hazell wassaying, co-decision, which you could do—it would bea major constitutional change but you could do that—there will be constraints of that sort.

Q72 Mr Jenkin: I strongly agree with you. This isnot co-decision, but in order for the pre-appointmentprocess to have any sort of sense of conviction behindit, is it not reasonable that a Minister, or indeed theofficial that has been conducting the process orperhaps the executive search agency, shouldinformally and pragmatically brief the Committeebefore the pre-appointment hearing about how thething was conducted, how many people applied, howmany people were shortlisted, how many people wereinterviewed, roughly what was the profile of eachcandidate who was interviewed, and why the decisionwas made? Would not that make a lot of sense?Presumably, if it has all been done correctly, thatwould give the endorsement of the Select Committeemuch 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 doin these circumstances is to talk about names.

Q73 Mr Jenkin: No, I don’t think so. You are quitewrong about that.Mr Maude: That is very high-minded.

Q74 Mr Jenkin: We absolutely recognise that youcannot bring all the names into the public domain.You cannot do that.Mr Maude: I think that if you do not do that, you areinserting another stage in the process. These processesare gummed up and bureaucratic enough anyway.

Q75 Chair: Looking at the pragmatic view, I haveknown cases where Ministers have said, “This was theonly candidate the appointing body would have beenprepared 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 threepeople and simply informally giving this information.What Mr Jenkin is presumably suggesting is that, inkeeping your pragmatic approach, you would behappy to see that develop.Mr Maude: So there might be a letter saying, “Therewere 27 applications, 12 longlisted, four shortlisted.Two were regarded as appointable and I chose X.”

Q76 Mr Jenkin: I would suggest an informal verbalbriefing because as soon as you put things on bits ofpaper they become very limited. I would suggest thatan off-the-record briefing with the Committee beforethe pre-appointment hearing would put it in contextand 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 choosingthe ombudsman. That is what I am going to do withthe Public Administration Select Committee beforevacating the Chair so that the pre-appointment hearingis conducted in my absence. I see absolutely no reasonwhy we should not do that. Incidentally,congratulations to Philippa Helme for havingconducted this process rather more swiftly than manyother public appointments.Mr Maude: Very good.

Q78 Mr Tyrie: Let me follow up on all the questionsthat have just been asked, and in particular AndrewMiller’s. Judging from your early remarks, it soundedas 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 shouldmake clear to his ministerial team that there should bea 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 distanceat all yet. We are looking forward to spotting theterritory that you feel we—Mr Maude: I am not going to go that far.

Q80 Mr Tyrie: How far are you prepared to travelbeyond saying that this is a ministerial appointment?Mr Maude: Not very far really.

Q81 Mr Tyrie: Any distance at all, or shall we goand have a cup of tea?Mr Maude: Yes, that is fine for me. I have said I seeno reason why there should not be, if Ministers andthe Select Committee Chair wish, an early stageconversation of the type I have outlined. I have nowreiterated it a third time.Mr Tyrie: You have said that—Mr Maude: But you want me immediately to say Iam going to ask the Prime Minister to recommend thatit should happen in every case, and I am not going todo that.

Q82 Mr Tyrie: I have asked you something prettymild, Minister. I have said: do you think there shouldbe a predisposition in favour of substantivediscussion, and would you be prepared to have a



substantive discussion with the Prime Minister aboutit?Mr Maude: If the topic arose, I would certainly havea conversation.

Q83 Mr Tyrie: Dear oh dear. If the public arewatching this, which I doubt they are, they wouldnot be—Mr Maude: The public appetite for this is probablyfairly 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 drawingblood from a stone. I am a gradualist in constitutionalmatters. It was a fairly major step to go down the pathof Select Committees conducting pre-appointmenthearings. It aroused a certain amount of controversyand we are still feeling our way with this. I am willingto contemplate minor further steps but, in reality here,there will always be a perfectly healthy and sensibletension between Select Committees that want moreinvolvement and engagement, and something which Iaccept will fall short of co-decision, but will feel morelike co-decision. I just think that we should progressvery slowly.

Q84 Mr Tyrie: Do you think that the arrangementsthat have been put in place for the appointment of theChairman of the OBR were a mistake?Mr Maude: I heard you interrogating Professor Hazellabout that.

Q85 Mr Tyrie: I was not even cross-examining him;I was just asking him questions, Francis.Mr Maude: Exactly, and very courteously as well. DoI think it was a mistake? I think you can distinguishthat case from other cases.

Q86 Mr Tyrie: What is the distinction?

Mr Maude: The distinction is that the body, the Officefor Budget Responsibility, is to some extent embeddedwithin the Treasury and draws on Treasury resources,and yet there is a very strong need for the Chair ofthe OBR to demonstrate clear independence and for itnot to be possible for that person to be seen as aTreasury stooge. You will know better than anyonethat huge amounts hang on what the OBR says aboutthe fiscal projections. That is of massive import. Youcan make a case for distinguishing it from the broaderrun of appointments.

Q87 Mr Tyrie: So where there are cases ofinstitutions that in some way are embedded orenmeshed with the Department, there might be a casefor looking at OBR treatment. We seem to be spottingthis blood from the stone again, do we not?Mr Maude: Yes.

Q88 Mr Tyrie: That was a question asking for asubstantive response.Mr Maude: This is the issue. As soon as you makean exception, you then wish to extrapolate a principlefrom that, and that then gets applied to a whole lotof other appointments. I am not willing to go downthat path.

Q89 Chair: I am going to have to draw theseproceedings to a close. I simply say that when thisCommittee reports, some further discussion will benecessary. I do not think we should continue in asituation where the Cabinet Office guidelines and ourguidelines to Committees do not roughly correspond.I hope we can have a productive discussion at thatpoint.Mr Maude: I feel confident that we can have aconstructive and creative discussion at that stage.Chair: Thank you.


Written evidence

Written evidence submitted by Professor Robert Hazell and Peter Waller, Constitution Unit, UCL

In 2009 we were commissioned by the Liaison Committee and the Cabinet Office to conduct an evaluationof Pre-Appointment Scrutiny Hearings. We studied the first 20 pre-appointment hearings. We interviewed 60people, including the appointees, select committee chairs, members and clerks, recruitment consultants andWhitehall officials. Our report was submitted to the Committee in February 2010, and published with theCommittee’s report on the work of committees in session 2008–09 (HC 426, March 2010).

The Liaison Committee made a number of recommendations as to how the system might be taken forwardin their second report of session 2009–10 (HC 564, November 2010). The Government has already acceptedsome of those recommendations and agreed to consider the remainder.

The recommendations made by the Liaison Committee in their March 2010 report are consolidatory andincremental, aimed at ensuring that pre-appointment hearings continued while remaining essentially advisory.We support that incremental approach.

We are aware, however, that arguments have been made for more radical changes, including giving a formalveto to Select Committees on about 25 of the more important appointments. This was in particular advocatedby the Institute for Government in their recent report Balancing Act (March 2011). The purpose of this note isto make clear that we do not support that approach; and to explain the reasons why.

Our Research

Our research showed that Select Committees have had considerable influence over senior publicappointments through their scrutiny hearings. Our interviews with the candidates and in Whitehall brought outthat the scrutiny hearings:

— Act as a check on political patronage (though the public appointment rules had already largelytackled that problem).

— Help to ensure that independent and robust candidates are appointed.

— Add to the appointee’s legitimacy, within their organisation and with the media and the public.

— Enable the appointee to meet the Select Committee at an early stage to discuss their plans andpriorities.

Our research report set out four broad options, but made no recommendations. We thought that the LiaisonCommittee’s recommendations drawing on the findings of our research were sensible and proportionate incalling for the hearings to be made permanent; for a more coherent list of posts to be subject to hearings; forconsultation with Departments on the job specification for such posts; for improved guidance for all thoseinvolved; and for the need for a private discussion between the Committee and the relevant Secretary of Statewhen the Committee had reservations (HC 426, March 2010 paras 68–72).

The Case Against Extending the Veto

Most of the senior appointments concerned are established in statute as appointments to be made by therelevant Secretary of State. Short of amending legislation, the Secretary of State could not technically allowany Committee to have a formal veto, because this would fetter his discretion. But we do not believe that it isnecessary or desirable for committees to have a veto power for a number of reasons:

— we believe that the current arrangements are effective; and that too many wrong conclusions havebeen drawn from the Children’s Commissioner case (discussed below). A majority of thecandidates whom we interviewed told us that they would not have wanted to accept theappointment in the event of a negative report from a Committee, even if the Secretary of Statewished to proceed. We also believe that a Secretary of State will never be comfortable aboutrejecting a Select Committee recommendation, and will only do so if there are very strong reasons;

— we note that public appointments follow precise procedures under the guidance of OCPA whichfollow well established principles of fair recruitment. We think it entirely reasonable that thepreferred candidate should be subject to a final and rigorous public examination by an appearancebefore a Select Committee, but believe that a candidate’s performance before the Committee shouldbe regarded as an additional piece of evidence rather than being the sole criterion for the finaldecision;

— we are far from clear “what would happen next” if a Select Committee veto was in place and onewas issued. We think it very possible—at least in some cases—that the other short-listed candidateswould not want to proceed with their application. The recruitment process would then need torestart from scratch, leaving an important vacancy at the organisation concerned for many months.We believe the Secretary of State is best placed to consider how damaging this would be;


— we believe that if Select Committees had a formal veto power, they would come under increasingpressure to follow more formal processes in their questioning of the preferred candidate, includingadhering to “good practice” in the context of employment law. We do not think that such processessit comfortably with what we think is the core purpose of any Select Committee—which is tochallenge the executive and hold it to account rather than substitute its own decisions.

— finally, we note that comparisons are sometimes drawn with the USA, and Senate hearings forpublic appointments which undoubtedly have formal veto powers. The critical difference betweenthe UK and US systems is that major appointments in the US are not made following a formaland impartial recruitment process but on the basis of overtly political nominations; and

— it is also worth noting that the veto power in the US causes significant delays, leading to prolongedvacancies; and it is used to extract concessions on unrelated policy matters.

Two Case Studies

Those who support a veto often cite two cases in support of their argument. The first is the appointment ofthe Children’s Commissioner in October 2009, against the advice of the relevant Select Committee. The secondis the grant of veto powers to the Treasury Select Committee in July 2010 in relation to the new Office forBudgetary Responsibility. Both cases are exceptional, and need to be understood in their particular politicalcontext.

Case 1: The Children’s Commissioner

The appointment of the Children’s Commissioner for England in October 2009, notwithstanding a negativereport from the then Children, Schools and Families Committee led many of our Select Committeeinterviewees to express frustration and disillusionment with the process. But it could be argued that itshows the process working as it should, shining a spotlight of scrutiny and forcing the government toexplain and justify its decision.

Moreover, there were special circumstances surrounding this appointment. In particular the Committeehad an overt disagreement with the Secretary of State over the nature of the role of the Children’sCommissioner and in particular whether the post holder should primarily influence Government from theinside or the outside. It was clear that their negative report was focussed less on the qualities of thecandidate—whose professional competence they clearly respected—than on disagreement on theunderlying nature of the role.

Had the veto been in place, then the appointment would clearly not have proceeded. But we believe thatit would have been an illogical outcome for a candidate to have gone through a recruitment process againstone definition of the role, only to be rejected at a late stage because different criteria were then applied.We also think it would have been unfair on the preferred candidate, who at that point had resigned fromher full-time employment to take on the appointment.

We do, however, believe that this case reinforces the recommendation by the Liaison Committee thatDepartments should consult Select Committees on job specifications before public appointments coveredby pre-appointment hearings are advertised (HC 426, para 71).

Case 2: The Office for Budgetary Responsibility

The Office for Budgetary Responsibility was a key part of the Conservatives’ plans for restoringconfidence in the public finances, and the credibility of the forecasts which underlie the Chancellor’staxing and spending plans. It was established in shadow form in May 2010, immediately after the election,but soon ran into controversy about its independence. In the first couple of months there were stories thatit had revised down forecasts about job losses under Treasury pressure; that it had conveniently issuedthose revised forecasts just before Prime Minister’s Questions; and that the first head of the OBR, SirAlan Budd, was leaving because of disagreements with Treasury ministers.

Alistair Darling said that the credibility of the OBR was at stake: “Right from the start the Tories haveused the OBR not just as part of government but as part of the Conservative party. They have succeededin strangling what could have been a good idea at its birth”.

The government was therefore under intense pressure to demonstrate the independence of the OBR. Thiswas the background to the Chancellor’s announcement in July 2010 of his intention to give the TreasurySelect Committee a veto over the appointment of the Chair of the OBR. He proposed to enshrine the newveto power in legislation, but until then, committed not to appoint a candidate who was judged unsuitableby the committee. He later offered the committee a similar veto power over two other members ofthe OBR.

We do not believe that the OBR example should be used as a precedent. Our own view is that a morelogical approach, given the importance of demonstrating the independence of the OBR from the executiveGovernment, would have been for appointments to have been made independently of Ministers, andpossibly by Parliament. We can understand why there was limited time for this—but do not think it shouldbe used as a precedent for other bodies.


Final remarks

The Constitution Unit fully supports the introduction of pre-appointment scrutiny. It remains our view thatit has added to the democratic scrutiny of public appointments. But we also believe that it is likely to be mosteffective when it is reinforces the role of Select Committees in challenging and even harassing the executive.A widespread formal power of veto, in contrast would in our view blur the boundary between strong challengeand executive decision making. Indeed, over time it could risk compromising the independence of SelectCommittees by drawing them into shared decision making. In Gladstone’s famous words, “Your business isnot to govern the country, but … to call to account those who do” (HC deb 29 Jan 1855 col 1202).

10 June 2011

Written evidence submitted by Chris Banks CBE, Chair of the Public Chairs’ Forum

Background

A businessman by background, over the last 15 years, I have become increasingly involved in Public Service,including as a founding member, and subsequently Chair, of the Learning and Skills Council. I have beeninvolved in many appointments at Board level within Arm’s Length Bodies (ALB’s) and as Chair of the PublicChairs’ Forum have been keenly involved in the PCF’s work on Balanced Boards, Select Committees and pre-appointment hearings. The PCF Is a network of Chairs of public bodies committed to improving the efficiencyand effectiveness of public service delivery (www.publicchairsforum.org.uk).

Introduction

The PCF does not present a “single corporate view” on issues, but one of its values is its ability to representa variety of views of public body Chairs from across all parts of the public sector.

In preparing this evidence, we have taken soundings from our members and have conducted a small strawpoll of approximately 15 Chairs. The following section incorporates these views, together with perspectivesexpressed at the recent PCF seminar on select committees, where a discussion on pre-appointment hearingstook place. In the final section of this evidence, I present my own personal view on pre-appointment hearings.

Our findings show that those promoting the role and contribution of pre-appointment hearings have yet towin the debate among Chairs. Whilst the theory behind such hearings may be sound and they may carry clearpotential benefits, many Chairs are yet to be convinced that they will work in practice.

The initial pre-appointment hearings that take place will be crucial in determining opinion and shapingperception, either serving to reinforce or challenge current concerns. It is vital to get this right from the start.

A Sample of Opinion from Chairs1. A clear majority of Chairs surveyed thought that it would be a good idea to have pre-appointment

hearings for a defined list of high profile Chairs.

2. Opinion was less clear cut on the subject of whether pre-appointment hearings would be good for allChairs, with more Chairs than not stating that this would not be the case.

3. One of the most common criticisms of pre-appointment hearings amongst Chairs is the associated riskof politicising the process. Select Committees will want to demonstrate that pre-appointment hearingsare able to provide impartial scrutiny at the highest level.

4. Many Chairs feel that for those positions which are particularly visible, pre-appointment hearingscould help to increase transparency and openness and allow Parliament to have a greater confidencein the appointments process. They could also provide Select Committee members with an opportunityto get to know the person appointed.

5. Pre-appointment hearings could be particularly valuable for positions where there is likely to besignificant ongoing contact with the appointee in the line of Committee business, and where thereforeit could be useful for both sides to meet before the appointment process is complete.

6. Pre-appointment hearings can put further restraint on ministers promoting party candidates.

7. Depending on the type of role that the Chair will be performing, taking part in a pre-appointmenthearing can act as good preparation and training, as many roles will require Chairs to appear beforeSelect Committees when in post. It tests the focus, knowledge and debating skills of the applicant.

8. A clearly defined list of those bodies whose public appointments would be subject to pre-appointmenthearings was deemed to be a good thing by most Chairs, provided that there is a clear and openrationale, and that the list is reviewed regularly.

9. Being subject to a pre-appointment hearing can be intimidating and risks deterring good candidatesfrom taking part. This, together with the anti quango rhetoric prevalent in the media and in politics,risks reducing the number of people willing to take up public appointments. But once candidates havebeen appointed to post, the process has the potential to help reduce the negative perceptions ofunelected appointees and increase political strength in office.


10. MPs are political by nature; therefore the process is at risk of being politicised. There is a danger thatmembers of the Committee will pursue a different, hidden agenda that does not relate to transparencyand openness.

11. Ensuring clarity around pre-appointment hearings and how they are conducted will be crucial. SomeChairs feel that there is a poor understanding in what is expected from hearings on both sides and alack of consistency about each process.

12. There is also a danger that those candidates who are less politically experienced will be at adisadvantage.

13. Select Committee Chairs should be careful to ensure appropriate questioning and a standard of conductthat would be expected in an appointment procedure to ensure, objectivity, fairness and respect aswell as a non-political approach.

14. A number of Chairs felt that members of Select Committees might benefit from some training in howto make the hearings work. They assumed that most MPs would welcome such training as a standardand that this could greatly improve the effectiveness of the process.

It is my personal view that pre-appointment hearings have the potential to add value in certain publicappointments, but not all. I believe that the maximum value in pre-appointment hearings will be for high profileappointments, which carry the greatest importance to the state and operate with the greatest independence fromGovernment, and where the role is likely to expose the appointee to high levels of public scrutiny. In otherwords, where cross-party Parliamentary support is key.

I am supportive of the recommendation made in the Institute for Government’s recently published report,Balancing act—the right role for parliament In public appointments which calls for an “A-list” of top 25 publicappointments, who will be subject to pre-appointment hearings, and where parliament has the right to veto onthese appointments.

The criteria for holding a pre-appointment hearing should be clear and transparent, and the list of thosepublic appointments which are eligible for this should be reviewed regularly.

Managed well, pre-appointment hearings have the potential to increase the transparency of publicappointments. They can also increase public confidence, in turn having a positive impact on the perception ofpublic bodies and the people that are appointed to them.

But while there are obvious advantages to pre-appointment hearings, there are also risks. If not managedcorrectly, there are two dangers I would particularly like to highlight.

The first is duplication with other elements of the selection process. It is important that any hearing doesnot seek to scrutinise the process to date, as there are other mechanisms for doing that (eg role of OCPA), butto concentrate on the candidate.

The second is that there is a danger that the process will become over-politicised and members might betempted to use the opportunity pursue their own (political) agendas. This would not be helpful to the reputationof the hearings.

It would be appropriate to consider measures that could be put in place to mitigate these risks and achievethe desired benefits.

27 May 2011

Written evidence submitted by Sir David Normington, Commissioner for Public Appointments andFirst Civil Service Commissioner

Pre-appointment Hearings

Thank you for your letter of 12 May in which you seek my views on how a regulated public appointmentsprocess and strengthened Parliamentary scrutiny of public appointments can complement each other.

I took up my appointment as Commissioner for Public Appointments and First Civil Service Commissioneron 1 April this year and have been asked to review the public appointments system with a view to developingand implementing proposals for a more proportionate, principled and risk-based regulatory regime for publicappointments. I am currently holding a series of listening exercises with those involved in the publicappointments process before publishing a formal consultation paper this summer, which I will, of course, sendto you and your Committee.

My rote as a regulator is to ensure that Ministerial appointments to the boards of public bodies are made onmerit, after a fair, open and transparent process. I do not envisage in my review moving away from that corepurpose, but I am considering how best to ensure that the regulatory regime fulfils that core responsibility aseffectively as possible.

In that context, it is already clear to me, even at this early stage of my term of office, that Parliamentaryscrutiny of regulated public appointments gives rise to some particular dilemmas—for applicants, for me as a


regulator and for Parliament itself. The regulated process which I oversee is designed to assess applicantsagainst clear criteria and provide the appointing Minister with a choice of suitable candidates—candidates whohave been objectively assessed as capable of doing the job effectively and well. The Minister’s right to choosereflects the fact these am his/her appointments, for which he or she is ultimately accountable to Parliament.But the regulated process which delivers the choice of appointable candidates is free from undue Ministerialinfluence in a way that can give the public the reassurance that merit rather than patronage is the determining.

This means, in plain terms, that, when a successful candidate comes before Parliament for pre-appointmentscrutiny of a regulated appointment, he or she will have been through a fair and open competition, usuallyinvolving a rigorous selection process, and has been judged on merit as a suitable candidate for the post againstthe specification for the job. In addition, an independent assessor, accredited by me, will have been involvedin the competition throughout and signed it off as a proper and fair process, free of political patronage andcronyism.

Against this background, it is very problematic for a Select Committee properly to call into question thesuitability of the chosen candidate for the post. It is not practical tor them to know in detail what happened ateach stage of the competition, who else was in the field and why the particular candidate won against thecompetition. If they do question the merits of the candidate, they are not only challenging the decisions of thepanel and the appointing Minister, they are also calling into question the regulatory system itself. I can wellunderstand the frustration that this causes to Select Committees which find themselves reviewing a decisionwhich has already been taken by a properly regulated process. It can also be very difficult for the successfulcandidate, who can find questions being asked about their suitability for a job which they have won fairand square.

After only eight weeks in my current rote (and some experience of senior public appointments in my previousroles) I do not have any easy solution to this dilemma. But, like my predecessor as Commissioner for PublicAppointments, I would be very concerned about a further extension of both.

The coverage and nature of pre-appointment scrutiny without much greater clarity on its role and purpose.

This might be achieved if Committees were able to focus more on the nature of the role and how it was tobe done, rather on the suitability of the individual candidate. I have three suggestions for how this might work.

First, there is, I think, a case for Select Committees being consulted about significant appointments beforethe process starts. This would enable them to influence at the outset the criteria fm the post, comment on thetype of candidate who might be suitable and suggest issues to be explored in the recruitment process. Theymight subsequently get a report hack on how these issues were tackled in the recruitment process. One of theproblems with the present pre-appointment scrutiny is that Committees sometimes raise these Issues at the endwhen it is too late for anything to be done about them.

Secondly, I wonder whether the pre-appointment hearing might usefully concentrate on how the successfulcandidate intends to approach the job rather than on the candidate’s merits. This would enable the Committeeto make public its views about the issues and priorities needing to be tackled by the new appointee, and if theyhave concerns about these issues to write to the appointing Minister about it or make a formal report. It willalso provide the basis for a Committee’s subsequent scrutiny of the candidate’s performance.

Thirdly, I believe that there are some categories of appointment where, although Ministerial appointments,the successful candidate requires a degree of independence from the Executive in carrying out his or her role.I am thinking here, for example, of regulators and inspectorates. If the regulated process is working properly,the independence of the candidate should have been tested by the selection panel. But there may well be avery legitimate role for Parliament in testing publicly the candidate’s independence of Government in order toreassure itself on this point.

Finally, whatever the outcome of your considerations it is very important that applicants for public bodiesunderstand at the outset the nature of the appointment process, including what any Parliamentary scrutinyinvolves. I hope you will agree that the priority for all of us is to widen the field of potential applicants and toensure the processes we put in place (including the ones I oversee as Commissioner for Public Appointments)are as simple and welcoming as possible to a strong and diverse field of suitable candidates.

25 May 2011


Executive Summary of an Evaluation of Pre-appointment Scrutiny Hearings, prepared for the LiaisonCommittee and the Cabinet Office by the Constitution Unit, University College London, February 2010

1. This report has been commissioned from the Constitution Unit at University College London by theCabinet Office and the House of Commons Liaison Committee.

2. It is a research-based report into the effectiveness of pre-appointment scrutiny hearings, which wereintroduced in 2008 for just over 60 high-profile public appointments. The broad intention was that theGovernment would identify a “preferred candidate” for those roles, in many cases under the supervision of theCommissioner for Public Appointments; and would then invite the relevant House of Commons SelectCommittee to carry out a pre-appointment hearing in public with the preferred candidate. The Committeewould then report back on that hearing to the Secretary of State concerned who would then decide whether toconfirm the appointment. In short, the Committees’ report were to be advisory in nature. This new regime wasintroduced on a pilot basis—hence this evaluation report.

3. Chapter 1 gives a brief overview of the background to the system of pre-appointment hearings; and thediscussions between the Cabinet office and Parliament which led to its introduction.

4. Chapter 2 gives a factual account of experience to date. It shows that by the end of 2009, there had been18 hearings covering 19 appointments; and records the issues discussed in those hearings. It also records thatto date there has been one instance in which a select committee did not endorse the appointment, with apositive endorsement of the candidate in the other 18. In two of those cases, however, the Committee dividedbefore issuing a positive report on the candidate concerned. In the one case where a select committee did notendorse the appointment, namely the Children’s Commissioner for England, the Secretary of State concerneddecided to confirm the appointment of the preferred candidate, identified by an independent recruitment process.That case is discussed throughout this report but examined more fully in Annex A.

5. Chapter 3 covers the heart of our research, namely over 60 interviews with i) Committee Chairs, membersand clerks; ii) preferred candidates, iii) Departmental officials and iv) search consultants. We had an excellentresponse to our request for interviews and have conducted at least three interviews relating to each case—inmany cases more than three. (Many interviews covered more than one appointment.)

6. Chapter 3 records the results of those interviews, grouped around i) Parliamentarians ii) candidates iii)Departmental officials and iv) search consultants. The interviews were carried out on a confidential basis, sowe have given views by category rather than named individuals. We have used quotes extensively to givethe range of views received but sought to disguise individual cases. In broad overview, our research frominterviews shows;

— Parliamentarians have found the new approach frustrating and were overall the most disappointedwith the new approach. They have no real confidence that the Government will take a negativerecommendation seriously. Many, though not all, would like to go further in having a wider rangeof candidates to consider and/or having a power of veto over the preferred candidate;

— The majority of preferred candidates have supported the hearings and felt that they were beneficialto them, as well as justified on “democratic grounds”. The remainder have been neutral rather thanopposed to the hearings. A majority of candidates have also told us that in the event of a negativereport, they would have probably decided not take up the appointment even if the Department hadwanted them to do so;

— Departmental officials were broadly neutral about the hearings, being largely focussed on themechanics of the additional processes involved and the lengthening of the timetable forappointments, while acknowledging these were usually not substantive concerns. They did not feel,however, that there was much value-added in the new approach; and

— Search consultants were mildly negative. Their initial concerns that the new system would be asignificant deterrent to candidates had not been realised, but there were some residual concerns asto the longer term deterrent effect.

7. Chapter 4 supplements this interview-based approach with an analysis of media coverage of the newsystem. It concludes that there has been consistent but modest reporting of most of the appointments and strongreporting of a couple of cases.

8. Chapter 5 gives our conclusions on some of the key issues raised by the new approach. Our principalconclusions as discussed in that Chapter are;

— there has been a positive benefit from the new approach in terms of democracy and transparencyin relation to these appointments—though it has been a modest step not a giant stride;

— there has been no significant deterrent effect to good quality candidates arising from the hearings.Those who might object to them in principal are unlikely to be strong candidates for this sort ofrole in the first place;

— the new system does, however, tend to favour candidates who have previous experience of sectorcommittees, whether through previous experience on public boards or other engagement in publiclife. There are, however, strong pressures favouring such candidates already, especially for rolesof such seniority;


— it is wrong to assume that negative reports will never have any impact, based solely on the factthat in the one case to date, the candidate concerned had their appointment confirmed. A majorityof the candidates we interviewed told us they would have chosen not to take up the post followinga negative report, even if the Department wished them to do so. We also believe that departmentswill take negative reports seriously, even if they will have a starting inclination to confirm thecandidate;

— there is an inherent tension between the formality of the public appointment recruitmentprocesses—which place a high priority on consistent procedures—and the informality ofCommittee hearings which tend not to be constrained in the same way; and

— there is scope for further consideration as to which posts should be covered by hearings.

9. Chapter 6 contains our thoughts on possible ways forward for the Cabinet Office and Parliament toconsider. We discuss various options, notably;

— the case for greater involvement of Committees in the process, as many Parliamentarians wouldwish;

— the case for continuing the current approach, with modest changes and improvements;

— the case for a step back, effectively making hearings “post” rather than pre appointment, thusremoving some of the tensions referred to above; and

— the possibility that Parliament could have greater involvement in a smaller subset of the currentlist of appointments subject to hearings.

Executive Summary and Recommendations from Balancing Act: The Right Role for Parliament inPublic Appointments, Institute for Government, March 2011

Summary

This report explores the involvement of Parliament in the public appointments process. Historically, publicappointments have generally been a responsibility of the executive alone. However, Parliament’s role hasincreased substantially over the past decade. An array of mechanisms has been developed to enable MPs tohold government to account for the appointment decisions it makes. Most notably, the previous Labourgovernment created a new system that sees Commons select committees cross-examining ministers’ preferredcandidates for senior positions in the public sector. The House of Commons also gets to debate and vote oncertain categories of appointment.

Involving Parliament in the public appointments process brings a number of advantages. Cross-partycommittees can assess the independence from government of candidates and test their ability to withstandrobust public scrutiny. Parliamentary scrutiny can also increase the transparency of the appointment processand the democratic accountability of executive functions carried out at “arm’s length” from ministers. For thesereasons we argue in favour of a greater role for Parliament.

There are potential risks too. These include the possibility of deterring prospective candidates, politicisingthe appointments system and introducing delays into the process. Reform therefore involves a balancing actbetween these different factors. Below we make 15 recommendations for reform which we believe wouldmaximise the benefits that parliamentary involvement can bring, without greatly increasing the risks. Ouroverall conclusion is that a stronger Parliament in this area would contribute to more effective government.

Our report is divided into four chapters. First, an introductory chapter places this issue in the context of thebroader relationship between government and Parliament. In chapter 2, we discuss the evolution in recent yearsof Parliament’s involvement in public appointments. Next, in chapter 3, we weigh up the benefits and risks ofinvolving MPs in appointment processes, presenting evidence from our research and previous studies. Finally,in chapter 4, we consider the options for reform, and set out our blueprint for more effective scrutiny.

Recommendations

1. A review of the list of public appointments subject to parliamentary scrutiny should commenceimmediately. This should be carried out by the Liaison Committee and the Cabinet Office on the basis of aclearer set of criteria.

2. In particular, we suggest that parliamentary involvement is most important for posts where some or all ofthe following four criteria apply:

(a) Perceived and actual independence from government are vital to the effective functioning of the roleor body in question, and to its credibility in the eyes of the public and/or the financial markets.

(b) The post in question will require the appointee to play a significant role in public debate andrepresentation of the public interest in dealings with the executive.

(c) There is strong public interest in the vision and priorities of the office holder in question, and in theperformance of the organisation.


(d) The post or body plays a role integral to the conduct of Parliament or the exercise of its key powersand responsibilities.

3. Instead of the current undifferentiated list, we recommend that “variable geometry” be built into thesystem, meaning that those posts scoring most highly on the proposed criteria are subject to more stringentforms of parliamentary involvement.

4. We suggest that for an “A List” group of about 25 of the most important public appointments measuredby the criteria set out above, there should be an effective veto power granted to Parliament. This list would bein addition to appointments to the Office for Budget Responsibility where a formal veto power for the TreasurySelect Committee already applies.

5. For appointments to “A List” posts, the minister should be required to appear before the relevant selectcommittee in the event that the committee has concerns about a proposed appointment following a hearingwith the candidate. Further, as a last resort, appointments should be referred to the House for resolution ifagreement between the minister and committee is not forthcoming.

6. The Liaison Committee should lead on drawing up the “A List” and the criteria for inclusion, afterconsulting as appropriate with select committee members more widely, and it should then seek to reachagreement with the Cabinet Office. Future alterations to the list should also be agreed between the LiaisonCommittee and Cabinet Office.

7. For appointments where a select committee has the right to hold a pre-appointment scrutiny hearing, thecommittee should have the right to hold a hearing on the same terms when the government chooses to reappointa post holder. When the government chooses to not reappoint a post holder eligible for a further term in office,the relevant minister should also be prepared to appear before the committee to explain his or her decision.

8. Parliament should also have an effective veto power over dismissals from top level posts. As is the casefor the executive directors of the OBR, government would need to seek the agreement of the relevant selectcommittee before dismissing an “A List” post holder. If agreement could not be reached, the matter should bereferred to the House.

9. For a second tier of public appointments, which the Liaison Committee should take the lead on drawingup, we recommend a continuation of the current pre-appointment hearing system but with an expectationthat the minister would appear before the committee to explain his or her decision, in the event that thereis disagreement.

10. For these top two categories of public appointment, the relevant committee should also be consulted atthe start of the process about the job and person specification.

11. A single consolidated guidance document should be agreed between the Cabinet Office and the LiaisonCommittee. This should set out more clearly the purpose of pre-appointment hearings (including a greateremphasis on using these hearings as the start of an ongoing accountability relationship). It should also beclearer about what lines of questioning are inappropriate.

12. We further suggest early post-appointment hearings with new ministerial appointees from outsideParliament (“GOATs”).

13. We recommend that when a major public inquiry is being established, the lead department should informthe relevant select committee. The committee should then be given the opportunity to hold a pre-appointmenthearing with the proposed chair of the inquiry.

14. We recommend small changes to the process by which Parliament itself makes certain appointments.Specifically, future candidates selected by a Speaker’s Committee for appointment to the Chairs of the ElectoralCommission or the Independent Parliamentary Standards Authority (IPSA) should appear before a selectcommittee for a pre-appointment hearing before the final decision is taken by the House.

15. Finally, Parliament should be given full control of the appointment process for the Chair of the Houseof Lords Appointments Commission, and joint control with the executive of the appointment process to thepost of Parliamentary Ombudsman, along the lines of the model already operating for the Comptroller andAuditor General.

GOVERNMENT’S DRAFT LIST OF POSTS TO BE SUBJECT TO PRE-APPOINTMENTHEARINGS, JUNE 2011

BIS

Chair of the Higher Education Funding Council for EnglandChairs of the Research CouncilsDirector of the Office for Fair AccessChair of Postal Services CommissionChair of Competition and Markets Authorityi


Cabinet Office

Chair of the Advisory Committee on Business AppointmentsChair of the Charity Commission for England and WalesChair of the Committee on Standards in Public LifeChair of the House of Lords Appointments CommissionChair of the UK Statistics AuthorityFirst Civil Service Commissioner and Commissioner for Public AppointmentsParliamentary Commissioner for Administration (office also held by Health Service Commissioner)

CLG

Chief Fire and Rescue AdviserLocal Commissioners for Administration in EnglandChair of the Homes and Communities Agencyii

Chair of the Homes and Communities Agency’s Regulatory Committee (who would also be a member of theAgency’s Board)ii

Chair and Deputy Chairs of the Infrastructure Planning Commission*Chair of OFTENANT (Tenant Services Authority)*Chair of the Audit Commission*Chair of the Standards Board*

DCMS

Chair of OFCOMChair of the BBC TrustChair of S4C

DECC

Chair of the Committee on Climate ChangeChair of the Gas and Electricity Markets Authority (GEMA)

DEFRA

Chair of Natural EnglandChair of the Environment AgencyChair of the Gangmaster Licensing AuthorityChair of the Water Services Regulatory Authority (OFWAT)Chair of the Agricultural Wages Board*Chair of the Marine Management OrganisationRural Advocate*

DfE

HM Chief Inspector of Education, Children’s Services and SkillsChildren’s Commissioner for EnglandChair of Ofqual—to become Chief Regulator for Ofqualii

Chair of the Qualifications and Curriculum Development Agency*

DFID

Chair of the Independent Commission for Aid Impact

DH

Chair of the Care Quality CommissionHealth Service Commissioner for England (office also held by Parliamentary Commissioner forAdministration)Chair of the Food Standards AgencyChair of the Appointments Commission*Chair of MONITORii

Chair of NHS Commissioning Boardii


MoJ

Chair of the Judicial Appointments CommissionChair of the Office for Legal ComplaintsHM Chief Inspector of PrisonsHM Chief Inspector of ProbationHM Chief Inspector of the Crown Prosecution ServiceInformation CommissionerPrison and Probation Ombudsman

HO

Chair of the Commission for Equality and Human RightsHM Chief Inspector of Constabulary

DfT

Chair of the Office of Rail Regulation

HMT

Comptroller and Auditor GeneralChair and Members of the Budget Responsibility Committee

DWP

Chair of the Social Security Advisory CommitteePensions and Pensions Protection Fund Ombudsman

MoD

Service Complaints Commissioner

NB: Positions that may be abolished as a result of the public bodies reform programme have been marked withan *i Subject to the outcome of the consultation on the creation of the CMA.ii Subject to the passage of legislation.

Printed in the United Kingdom by The Stationery Office Limited09/2011 013492 19585

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