Select Committees and Public Appointments

House of Commons Liaison Committee

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

HC 1230 Published on 4 September 2011 by authority of the House of Commons London: The Stationery Office Limited £14.50

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 The powers of the Committee are set out in House of Commons Standing Order No 145. The Standing Orders are available on the Internet via www.parliament.uk.

Publications The Reports and evidence of the Committee are published by The Stationery Office by Order of the House. All publications of the Committee (including press notices) are on the Internet at http://www.parliament.uk/business/committees/committees-a-z/commons- select/liaison-committee/.

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]

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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

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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.

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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

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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

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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

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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

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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.

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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

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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

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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 39 Balancing Act, pp 32-3 40 QQ 75 and 76

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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

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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

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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

48 Balancing Act, pp 35-6 49 Q 9 50 Q 27 51 Balancing Act, p 28 and Liaison Committee, HC (2009-10) 426, Annex 3, pp 118-9

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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

Select Committees and Public Appointments 17

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

18 Select Committees and Public Appointments

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.

Select Committees and Public Appointments 19

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

20 Select Committees and Public Appointments

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).

Select Committees and Public Appointments 21

• 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.

22 Select Committees and Public Appointments

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

Select Committees and Public Appointments 23

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)

24 Select Committees and Public Appointments

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.

Select Committees and Public Appointments 25

• 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.

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)

26 Select Committees and Public Appointments None None Recommendation Positive (with Division recommendations on the process) Positive (stated intention to hold Dr Bowe time commitment) members present the committee) 4 (of 11) CMS 9 (of 11) 6 Positive None ry 2009 6 (of 14) Positive None ober 2008 7 (of 14) Positive None ril 2009 9 (of 11) Positive None 22 July 2008 7 (of 11) Positive None 21 April 2009 12 (of 14) Positive None ly 2008 to July 2011 r Michael Scholar 18 July 2007 6 (of 14 on Lord (Michael) Jay of Lord (Michael) Ewelme Dr Colette Bowe 13 January 2009 Sir Michael Pitt 7 (of 11) BER; 16 March 200 ntment hearings held, Ju ntment hearings held, Health Public Administration (PASC) Baroness Young Justice Enterprise and Culture, Media and Sport 08 May 2008 Elizabeth France Justice (of 11) 6 Communities and Local Government 21 Oct Positive Christopher Graham Home Affairs Transport 27 Janua Sir Denis O’Connor None Anna Walker 29 Ap Post Post Chair, Statistics Board Treasury Committee Chair, Care Quality Commission Lords Chair, House of Si Appointments Candidate Commission Chair, Office for Legal Complaints Chair, Ofcom of hearing Date Number of Joint Business and Information Commissioner Chair, Infrastructure Commission Planning of HM Inspector Constabulary Rail Chair, Office of Regulation Annex 1: List of pre-appoi

Select Committees and Public Appointments 27

2 1 – – None expressed about candidate’s independence) Recommendation Division (of 14) Positive None members present 2009 11 (of 14) Positive None 2009 7 (of 14) Positive None ly 2009ly 2009 6 (of 11) 4 (of 13) Positive Positive 3 None 20 July 2009 7 (of 11) Positive None Dr Alan Gillespie Sir Tom Blundell 05 May 13 May 2009Professor Michael Sterling 6 13 Ju and Dr Robert Upton Pauleen Lane Dr Maggie Atkinson 12 October 2009 Dr Jane Martin 9 (of 14) Poul Christensen Negative (concerns 12 October 2009 25 November 6 (of 11) Positive 2 Innovation, Innovation, Universities, Science and Skills Innovation, Universities, Science and Skills Health Innovation, Universities, Science and Skills Lord Rooker Communities and Local Government and Schools Children, 06 Ju Families Communities and Local Government Environment, Food and Rural Affairs Post Post and Chair, Economic Social Research Council Committee Chair, Biotechnology and Biological Sciences Research Council Candidate Standards Chair, Food Agency and Chair, Science Facilities Technology Council of hearing Date Deputy Chairs, Number of Infrastructure Commission Planning Children’s Commissioner Local Government Ombudsman Chair, Natural England

28 Select Committees and Public Appointments 1 – None None 6 None recommended that there be regular should feedback from stakeholders and periodic peer review) reviews of CQC by the committee) Recommendation Division about concerns candidate’s business appointments) by annual appraisal stakeholders and peers) (of 14) Positive (supported an members present 10 8 (of 11) annual Positive (proposed 09 8 (of 11) Positive (expressed r 2010 9 (of 13) Positive None 2010 (of 14) 7 Positive (the Committee 25 October 2010 10 (of 13) Positive None Graham Wardand Graham Parker 11 October 2010 9 (of 11) Positive None PASC Justice Lord Lang Justice Mike Fuller Health 26 November 20 Nicholas Hardwick 12 January 2010 Treasury 10 March 8 Dame Jo Williams International Development Robert Chote 09 September 20 Treasury 21 Septembe Professor Stephen Nickell Post Post Chair, Advisory Business on Council Appointments Committee HM Chief Inspector Crown Prosecution Service Chief Inspector of Candidate Prisons Chair, Care Quality of hearing Date Commission Number of Chair, Office of Budget Responsibility Chief Commissioner, Independent Aid Commission for Impact Additional Members of the Budget Responsibility Committee

Select Committees and Public Appointments 29

1 – 2 None None selection The Justice “ Recommendation Division expressed about process) direct his lack of social experience in security policy) Justice issued the following statement on 12 July 2011: Secretary has not decided to proceed with the appointment of Diana Fulbrook OBE as HM Chief Inspector of Probation. A fresh recruitment exercise will due course take place in and interim be arrangements will made for covering the Chief Inspector's duties.”) members present 6 (of 11) Positive (serious concerns 1 (of 11) 6 about Positive (concerns nuary 2011 5 (of 14) Positive None 11 May 2011 (of 14) 8 Negative (the Ministry of Lord Chris Patten 10 March 2011 (of 11) 9 Postive PASC Justice Sir David Normington and Culture, Media Sport 16 November 2010 Christopher StephensWork and Pensions Deep Sagar 31 Ja Justice 30 March 201 Diana Fulbrook Post Post First Civil Service Commissioner and Commissioner for Appointments Public Committee Chair of the Judicial Appointments Commission Candidate Chair of the BBC Trust. Security Chair, Social Advisory Committee of hearing Date HM Chief Inspector of Probation Number of

30 Select Committees and Public Appointments None issued. Implicit issued. Implicit Recommendation Division Positive negative opinion (concerns about candidate’s independence). to Candidate decided None stand down (of 11) No report members present 6 (of 11) CMS y 2011 (of 14) 9 Positive None ly 2011ly 2011 4 (of 11) Positive 8 (of 11) Positive None None Huw Jones 24 May 2011 (of 12) WA; 9 Justice Joint Welsh Affairs and and Culture, Media Nigel Newcomen Sport PASC 17 Ma EFRA Dame Janet FinchPASC 28 June 2011 Margaret McKinlay 7 05 Ju Dame Julie Mellor 06 Ju Post Post Prisons and Probation Ombudsman for Wales England and Committee Chairman of the S4C Authority Chair of the UK Candidate Statistics Authority of hearing Date Chair of the Gangmasters Number of Authority Licensing Parliamentary Commissioner for Administration and Health Service Ombudsman

Select Committees and Public Appointments 31

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 There is strong public Where the post-holder auditors Appointers to a key role in interest in the vision and is expected to call public office: regulating Govt priorities of the office Government to holder in question, and account - and where a in the performance of Select Committee can the organisation. test the candidate’s independence of mind and willingness to criticise Government;

Posts which play The post in question will Where the post-holder ombudsmen and Regulators of a key role in require the appointee to (or organisation) is complaints Standards protecting and play a significant role in making decisions investigators: safeguarding the public debate and which have a strong public’s rights representation of the ethical or moral and interests public interest in dimension, for particularly in dealings with the example making relation to the executive. decisions based on actions and assessments of public decisions of taste or decency. There Government is potential benefit in a Select Committee asking the candidate about those issues in a public forum;

Post where it is Perceived and actual Where the post is regulators: Economic vital for the independence from particularly high Regulators: reputation and government are vital to profile in terms of credibility of the the effective public interest and public body in functioning of the role political debate; question that or body in question, and the post holder to its credibility in the is and is seen to eyes of the public and/or be independent the financial markets. of Ministers and Government

The post or body plays a Where the post holder inspectors: Ombudsmen role integral to the is making decisions of other than the conduct of Parliament particular interest to Parliamentary or the exercise of its key Parliament (for Ombudsman powers and example the House of responsibilities. Lords Appointments Committee);

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

32 Select Committees and Public Appointments

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

Select Committees and Public Appointments 33

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)

34 Select Committees and Public Appointments

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.

Select Committees and Public Appointments 35

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 Clerk of Committees* Cabinet Office Committee Office 70 Whitehall House of Commons LONDON SW1A 2AS LONDON SW1A 0AA Tel: 020 7276 3541 /0387 Tel: 020 7219 3313 /0269 *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

36 Select Committees and Public Appointments

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 ongoing 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

Select Committees and Public Appointments 37

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

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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

Select Committees and Public Appointments 39

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

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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.

Select Committees and Public Appointments 41

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.

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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.

Select Committees and Public Appointments 43

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

44 Select Committees and Public Appointments

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.

Select Committees and Public Appointments 45

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.

46 Select Committees and Public Appointments

Formal Minutes

Thursday 14 July 2011

Members present:

Sir Alan Beith, in the Chair

Mr James Arbuthnot Margaret Hodge Dame Anne Begg Mr Bernard Jenkin Mr Clive Betts Andrew Miller Mr William Cash Richard Ottaway Geoffrey Clifton-Brown Mr Laurence Robertson Mrs Louise Ellman Mr Graham Stuart Natascha Engel Mr Andrew Tyrie Dr Hywel Francis Keith Vaz Sir Alan Haselhurst 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.

Select Committees and Public Appointments 47

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 evidence

Taken before the Liaison Committee on Thursday 16 June 2011

Members present: Sir Alan Beith (Chair)

Dame Anne Begg Andrew Miller Mr Clive Betts Mr Robert Syms Mr William Cash John Thurso David T. C. Davies Mr Andrew Tyrie Mrs Louise Ellman Keith Vaz Mr Bernard Jenkin Mr John Whittingdale Miss Anne McIntosh ______

Examination of Witnesses

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

Q1 Chair: Welcome to our witnesses. In order to try Lord Adonis: It may be that the Liaison Committee to keep the maximum number of people here before thinks that its job is simply to rubber-stamp the status the House starts sitting later this morning, we have quo, but its argument is that any change in the existing started a little early. We are very grateful to you for system of public appointments would be contrary to coming in. We are apologetic to Robert Hazell the public interest. Surely the whole reason why we because he didn’t have warning of that, but I am sure are considering the role of Select Committees is that that we can get him to contribute later. this serves another key aspect of the public interest, All of you have been involved in doing work on the which is to see that there is proper parliamentary issue of appointment hearings, at which we are accountability for major appointments, and that there currently looking. In the course of that, have you is an acceptability test that is met, policed by formed a view of what we are really supposed to be parliamentary Committees in respect of the most doing in this process? Are we, as I think Committees significant of those public appointments. would think, looking at candidates recommended by Ministers on the basis that there might be some Q3 Chair: I apologise to Professor Hazell because circumstances in which we would think that they were we did start early. I throw at you what it says in the not a suitable candidate for the job and we would Cabinet Office guidance to Departments on how they recommend that they were not appointed; or are we conduct these proceedings. When Ministers are doing what seems to be implied in the letter from the considering a report from a Committee on a Chairman of the Public Appointments Commission candidate—and the assumption here is that we are that was sent to us: this is having a nice friendly chat talking about an adverse report—it says: “‘Relevant with the person whom the Minister is going to appoint considerations’ means any new, relevant facts about to see how he is going to do the job? the candidate’s suitability for the post.” The guidance Lord Adonis: Chair, would you like me to respond? also says: “There may also be occasions where a Chair: Yes, if you would. candidate’s performance in front of the Select Lord Adonis: Perhaps I could also introduce Akash Committee is considered relevant to the post in Paun, who is a colleague of mine at the Institute for question—although this should be exceptional.” Government, and Peter Waller from the Constitution Those are pretty narrow grounds, are they not? Unit. We are going to be joined by Professor Hazell Lord Adonis: Of course the guidance itself recognises imminently. that there may be “new, relevant facts”. The If I may give an answer to that question, it seems to performance of a candidate before a parliamentary me that the job of Select Committees is to decide Committee is a fairly substantial issue at stake. As a whether they believe that the candidate who is being former Minister myself, it seems to me that, for these put forward for this significant public office meets the major public appointments that we are talking about, standard required for the job. It is not simply to have unless a candidate can satisfy the relevant a friendly chat; it is to decide whether they believe departmental Select Committee that they are going to that this person has the requisite qualities and abilities be able to conduct themselves appropriately and with to be able to undertake the post. I have read the letter authority in public—because these are public from Sir David Normington, which I have to say is a appointments—they are unlikely to be successful in classic “Sir Humphrey” production. It is a very the job. If they cannot persuade a parliamentary powerful and very elegant argument for the status quo. Committee that they are up to the job and have the requisite qualities to be able to perform in public with Q2 Chair: Or something before the present status authority, impartiality and those other qualities that quo. Parliament 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 their with the appointment of the Government’s preferred ability to undertake the post. candidate.” Indeed, it says that the pre-appointment should take place only once all the relevant Ministers Q4 Chair: But that is still only a “new factor” of that have given their approval to the preferred candidate. interview, is it not? This is clearly, from the Government’s point of view, Lord Adonis: No, it is more than that. Of course the going to be largely a rubber-stamping exercise. How judgment that a parliamentary Committee would make do we get past this? It feels as though you are being is not going to be based solely on what they say in used as a rubber stamp in the Committees. the Committee. It will be the impression that the Lord Adonis: It clearly would be exceptional not to parliamentary Committee forms on the basis of taking give assent, but it is cases that need to be looked at stock of them as a candidate in the round. here when assessing it. The reason why the Treasury Chair: Do any colleagues want to explore this area Committee agreed with the Chancellor, and then the further? power to withhold assent to the appointment of the head of the OBR was placed in statute, was because Q5 Mr Jenkin: May I start on a different tack? Is of a very unsatisfactory case. If the Committee, and not a fundamental problem in all this that, basically, indeed the public, had been aware of the fact that Sir legal responsibility for making virtually all these Alan Budd was proposing to take the post for three appointments is in fact in the hands of the months in the first instance—essentially to do a Government? When we are dealing with the holding operation—in my judgment, and the judgment “Category A” appointments, and where we think of almost any reasonable person, that would have been Parliament should be part of the appointment process, perfectly reasonable grounds for not agreeing the don’t we need to change the law to make this appointment. This is the history that has led us to effective? being where we are. I do not think a parliamentary Lord Adonis: I will start and then perhaps I should Committee would have any difficulty making a hand over to my colleagues. In the case of the OBR, judgment on a fact of that kind. That is the case that of course, there has been a statutory change. It may has led to the veto that is now in statute. There are well be that one would be looking for statutory many other cases that could be similar and could lead changes in respect of the other “A List” appointments to a parliamentary Committee not thinking it that we set out in our report. However, it is perfectly appropriate to give assent to a candidate put forward, reasonable for the Government themselves to say that even with the full authority of the Government. these appointments are “subject to ratification”—or Akash Paun: If I could just add to that, it is always whatever phrase they wish to use—by the appropriate likely to be the case that it will very much be the Select Committee. If the Government were to make exception that a Committee would recommend against that clear in the job description and to candidates a candidate. That has been the experience so far in the when they apply, it would not be unreasonable for the vast majority of cases. Committees have approved the post to be withheld if assent from the parliamentary candidate put before them. When we considered the Committee was not forthcoming. implications of the OBR case and how far one might Peter Waller: The current system is effectively extend that precedent, we took the view that while geared, as you say, to the Secretary of State making there might be certain other cases for which one may the decision. There is no role in legislation in the vast want to place a Committee veto in statute, that should majority of cases for Select Committees—for be seen, on the whole, as a last resort. It is rather Parliament—to have a say. What has happened as a unusual, constitutionally, in the Westminster system result of what has been agreed is that an additional for Committee powers to be placed in statute, as you piece of evidence—performance before a Select know. We thought that that should be avoided other Committee—is now being put in front of the Secretary than as a last resort. of State. You can have other systems, but if you want However, we tried to develop this idea of what we call to give Parliament a formal role, yes, you have to go an effective veto, largely on the basis of Government for legislation. You have to start again. There is quite statement or commitment before the fact that they will a clear case for that. With any new appointment that not override the clear wishes of Parliament on is created in legislation, there should be a real thinking particular candidates. There are examples of that, as process as to what the appointment is about and who you will no doubt recall. Earlier this year, the Ministry should make it. of Justice made a clear statement that the next time the Information Commissioner is appointed, the Q6 Mr Jenkin: Having colleagues who have been Department would not appoint a candidate that had involved with pre-appointment hearings, the problem not been approved by the Justice Committee. It has at the moment is that you do feel very “bounced” with conceded, in effect, an effective veto, as we would see a fait accompli decision about a perfectly acceptable it, without needing to go down the legislative route. candidate, but without a job description or any idea of A similar approach was used for the Chair of the how to judge the merit of the appointment on anything Statistics Authority in 2007. There was no statutory except that the person in front of you seems to be basis for this, but the candidate, as well as going extremely competent and presentable. In fact, the through pre-appointment scrutiny, was put to a vote in guidance says in paragraph 7.2: “In the vast majority the House. The Government were clear that had the of cases, where an open and transparent process has House voted against the candidate, the appointment been followed and the candidate selected on merit, the would have been withdrawn. We thought that such an expectation is that the Select Committee will agree approach would strike the right balance, in a sense, Liaison Committee: Evidence Ev 3

16 June 2011 Lord Adonis, Akash Paun, Professor Robert Hazell CBE and Peter Waller between the need for a clear role for Parliament and was commissioned by the Liaison Committee 18 that of not going down the legislative route, which months ago. We did a very detailed study of the first seemed over the top. 20 pre-appointment scrutiny hearings. Our report was published by the Liaison Committee last March. I Q7 Mr Jenkin: Thank you for that. The other main wholly understand that for you, the Select Committee question is this. At the moment, the Committee is Chairs, it feels like a bit of a fait accompli when you informed that an appointment is taking place and then are presented with the Government’s preferred we are presented with the candidate and their CV— candidate. I would only add two important caveats. and that is it. What other information should One is, coming back to an earlier discussion, that the Committees have in order to be able to put that candidates are all informed right at the beginning of individual in a more informed context so that the the recruitment exercise that there will be a pre- Committee has a better sense of how the process is appointment scrutiny hearing and that if the being conducted and who else has been interviewed, Government propose an appointment, they are, in the although not necessarily the names and details? Government’s parlance, only the “preferred Peter Waller: The Committee should first be involved candidate”. All the candidates who put their names right at the stage of the initial recruitment—when the forward know that they are going to be subject to recruitment process starts. One case we had, which in scrutiny by a Select Committee and that may seriously some respects was unfortunate, was with the spoil their chances of getting the job. Children’s Commissioner. There was clear The interesting thing that came out very strongly from disagreement between the then Department—the our research was that while you may feel you do not DCSF1—and the Committee about what the job was have very much influence, you seriously about and what the terms of reference should be. That underestimate how much influence you have under the should be sorted before you start the recruitment present system. Of the 20 candidates whom we process. I do think that there should be provision for interviewed, 16 said that if the Committee had the Committee to be consulted and things discussed recommended against their appointment, they would with the Committee right at the start. have thought very seriously about whether to take it up. Some of them said to us in terms, “I would not Q8 Mr Jenkin: It should be consulted about the job have taken it up. I would have been so damaged by description, how the job is going to be advertised, the Select Committee’s report that I could not have what sort of profile the candidate should have and done the job.” Others said, in a more nuanced way, “I what their core skills should be. would have thought really hard about what the Select Peter Waller: Yes. I can also see no reason why the Committee said and why I was not suitable before Department should not give a fairly full account of deciding whether or not to take up the appointment.” the process that it has been through and the details of If I may suggest from the research that we did, that is the recruitment. It probably should not name the other where you have much more influence under the candidates, but the Committee should be well briefed present system than I think is perhaps realised. on that. That would be the level that you would go for; that would improve it. Q10 Mr Cash: I take a special interest in this because, if you look at the draft list of appointments Q9 Mrs Ellman: If the Committee is involved from subject to pre-appointment scrutiny, one of the Select the very beginning, as you have just suggested, Mr Committees left out is the one I chair: the European Waller, does that then make the Committee almost Scrutiny Committee. I have just heard Robert Hazell, responsible for the appointment, cutting across the who appeared before my Committee quite recently, scrutiny role? talking a lot about scrutiny, and the same is applied Professor Hazell: No, because the Committee is being to you, Lord Adonis. The issue of scrutiny is quite consulted simply about the job description and the important. I have just been through the list of the person specification. At this stage, none of the Committees and the various appointments that are candidates are known. It is to avoid a situation where subject to pre-appointment. I have counted about nine a candidate is subsequently appointed as the preferred that come straight inside, to one degree or another, the candidate and then the Committee in its scrutiny remit of the European Scrutiny Committee in terms of hearing in effect comes forward with a different set of their statutory duties and the extent to which it extends criteria, so it is saying rather late in the game, “It’s back to European regulation, the European not necessarily that we don’t like this candidate, but Communities Act and the rest. Did you have any we think you have got the description of the role thoughts as to whether the European dimension would wrong.” If the Committee feels that the role is need to be taken into account in this area because, wrongly described, it needs to make that clear up after all, so many of our laws are determined at that front. It was a recommendation of the Liaison level? Committee last year that Select Committees, in Professor Hazell: If I may go first, there is general relation to all posts subject to pre-appointment agreement, both in this Committee’s report of last year scrutiny, should be consulted in advance about the job and the Government’s response, that the list of the top description and person specification. public appointments that should be subject to scrutiny While I am speaking, Chair, may I just add one or two by Select Committees needs revisiting. The things in reply to Mr Jenkin? As I hope all members Government have agreed to do that, so it is in effect of the Committee know, we did some research that open to all of you—the Select Committees and the 1 Department for Children, Schools and Families Liaison Committee—to put forward proposals for Ev 4 Liaison Committee: Evidence

16 June 2011 Lord Adonis, Akash Paun, Professor Robert Hazell CBE and Peter Waller further appointments to be subject to pre-appointment Akash Paun: Yes. To clarify, it was a joint session. scrutiny and to say which Committees those There is precedent and there are procedures candidates might come before. established to follow that route. Obviously, that would be a matter for discussion among you on the Liaison Q11 Mr Cash: You are not quite answering my Committee. question. Given the status of the European Scrutiny Committee and the extent to which the laws that pass Q16 David T.C. Davies: I was going to make that before us are impinging on the United Kingdom, do very point because I chaired a recent joint Select you not agree that the European Scrutiny Committee Committee hearing with the Department for Culture, should be given some role? I am not quite sure exactly Media and Sport. It worked perfectly well. I was with what form it would take; it might be by consultation— Mr Whittingdale. I am not certain. None the less, should there be some Lord Adonis: But there is a fundamental difference degree of interaction to enable the European Scrutiny between having one joint Committee and having two Committee to be involved in the process? separate Committees that are holding hearings. Lord Adonis: There would be a very clear difficulty in having candidates subject to hearings before or Q17 David T.C. Davies: Technically, it was two ratification by more than one Committee. I cannot separate Committees meeting in the same room at the myself conceive of how that could work effectively. same time. There were two separate reports. Lord Adonis: I assume that they agreed with each Q12 Mr Cash: If that were the case, do you not agree other. that if there is something that falls clearly within the David T.C. Davies: Yes. remit of the European Scrutiny Committee, because Lord Adonis: That is very helpful. If they disagreed the activities of the person in question are ultimately with each other, I think you might have had a problem determined by reference to legislation that comes from or two. the European Union, there would be a reasonably David T.C. Davies: We might have done. good case, if not a very good case, for the European Lord Adonis: Frankly, Parliament would look a farce Scrutiny Committee to be involved in that process? if you had parliamentary Committees that were Lord Adonis: It is probably for the Liaison Committee reaching different opinions on candidates and had to decide which it thinks is the appropriate Committee unclear allocations of powers and responsibilities in each case. That would be my answer to that one. between them. David T.C. Davies: It is bound to happen sooner or Q13 Mr Cash: Of course there are European later though, isn’t it? The law of averages says it is Commissioners at whom we might want to look. bound to happen sooner or later. I am sure that There is also this question of COREPER.2 For Parliament will muddle along. example, there are proposals, so we understand, for Chair: That was a view and not a question. Mr Jon Cunliffe, who is due to be given a very senior Mr Whittingdale: I have done three pre-appointment appointment. I can think of several areas where it hearings, two of which have been joint hearings with might be a good idea for us, given the considerable other Committees. In the first one we swapped Chairs experience that we have in these matters, to be able halfway through, but that was where the body clearly to look at and form a judgment about his suitability. had some responsibilities that were mainly in the area Lord Adonis: I felt that that was a rhetorical of one Committee and then of the second. Happily, on question, really. each occasion not everybody turned up. It can become very unwieldy if you get a full turn-out from both committees, with some 22 people taking part. Perhaps Q14 Mr Cash: No; it is not a rhetorical question; it to address Mr Cash’s point, maybe when there is a is a very straight one. I can see you jibbing. The word European dimension, there could be one or two “Europe” obviously has a traumatic effect on you. representatives of the European Scrutiny Committee Lord Adonis: It is surely a matter for the Liaison attending as joint members of the main Committee. Committee itself to decide which Committees should hold pre-appointment hearings. Q18 Mr Jenkin: Just to clarify this issue of principle, is there any reason why Britain’s nominations for the Q15 Chair: It is indeed a matter for this Committee, European Commission, or indeed Britain’s nomination but it is perfectly proper to ask witnesses if they have to the European Court of Justice, should not be subject a view about it. If they don’t have one, they don’t to a pre-appointment hearing by Parliament? have to give one. Lord Adonis: There is no reason of principle, but of Akash Paun: On the initial question from Mr Cash, course the Government would need to agree to it. there is already the possibility of two Committees holding a joint session with a candidate. It has Q19 Chair: Would you favour it? happened to my knowledge on one occasion before Lord Adonis: Personally I would, but that is very for the Chair of Ofcom, when the Culture, Media and much a personal view. I think it would enhance Sport and Business Innovation Skills Committees held accountability in what are very important public a joint session. appointments. Chair: That was a joint session, not two hearings. 2 Committee of Permanent Representatives in the European Q20 Mr Jenkin: The obvious Committee would be Union the European Scrutiny Committee. Liaison Committee: Evidence Ev 5

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

Lord Adonis: That, again, would be for the Liaison appointments not being on a par with those in our Committee to decide. proposed “A List”. Chair: That would be a matter for us. Peter Waller: In some respects that is an even stronger Q24 Miss McIntosh: As regards the European case, if I may say so. Those are appointments which Commissioners, including those nominated from this are made on a political basis. You do not go through country, that clearly is the role of the European a Whitehall-dominated process of inviting Parliament. Would you not have a view that there applications for European Commissioners and so on. could be a conﬂict? It is a very political appointment and the case for Lord Adonis: It is the role of the Government to parliamentary scrutiny there seems to me to be really determine who they are going to put forward. It is rather stronger than in most of the cases we have then the role of the European Parliament to decide covered in the report. whether it is going to ratify them. They are two very distinct roles, are they not? It is the Government who Q21 Mr Jenkin: Would that also apply to things such put forward the candidate. Any pre or post- as the Secretary-General of NATO or Britain’s appointment hearings would be about the ambassador to the United Nations? How far does one Government’s nominee or nominees for the post, go down this route? subject of course to all of the processes that then take Peter Waller: Yes, the practicalities might get in the place in Brussels. way. Q25 Miss McIntosh: To clarify that, I think that Mr Waller said that the Select Committee should be Q22 Chair: Mr Waller makes an important point of consulted at the earliest stage by the Department on which we must not lose sight: part of the genesis for the announcement and the job description being the idea of scrutiny, and indeed the American pattern prepared. Is that your understanding of our present of it, is how you deal with appointments that are made powers? I do not want to jump to conclusions, but on political grounds and are not subject to a there are two appointments coming up for my Select conventional process. There are now far fewer of Committee where I do not think we have been those, but it seems to me, at any rate—and Professor formally consulted. That is possibly because— Hazell agrees with me—that they are prime candidates Peter Waller: Following on from our earlier research for a scrutiny process. report, the Liaison Committee recommended in its Professor Hazell: I wholly agree. If you look at the report that you should be consulted on terms of example of the Foreign Affairs Committee, it is right reference, job description and so on right at the outset. that it has always made a practice of inviting non- Professor Hazell: The Government have not yet diplomatic candidates—i.e. political appointments— consented to that. to appear before it. It is not something that the Peter Waller: The Government, in a fairly typical Government have ever formally agreed to, but the Government response, said “We will have to think Foreign Affairs Committee has made it its practice. about that one hard and we are a little worried that it Peter Waller: But those, in the eyes of the might make the process even longer.” There is a Government, are post-appointment hearings. The common view that the processes here are often just far Government have never conceded that that is a pre- too long. They seem to drag out over several months. appointment hearing. Equally, I cannot quite see why the Government Lord Adonis: In cases like this, I suspect that you should worry about the length it takes on this one probably start by getting the Government to agree to particular item when they are in control of most of the them as post-appointment hearings and then, in due timetable themselves. I would suggest that you want course, the next stage would be to encourage them to to keep pressing for that. I cannot see a good reason make them pre-appointment hearings. why you should not be given that.

Q23 Andrew Miller: You have those highly political Q26 Miss McIntosh: The current guidelines on how appointments and then you have those very technical pre-appointment hearings take place allow for appointments—the Chairs of the Statistics Authority, candidates to be questioned as regards professional the Food Standards Agency and so on. Then you have competence and personal independence. If they are some that are more of an ombudsman type of role. In holding more than one public office, are you satisfied your view, do those different categories require that the guidelines allow us to question on what other different processes, or is there a common thread positions they hold and whether there is a potential through them? conflict of interest, or indeed whether they will be Lord Adonis: We did suggest different processes in available to do the work? An interesting appointment, our report with what we called the “A List” of public which obviously we were not allowed to look at, was 3 appointments, where there should be an effective the appointment of the Chairman of IPSA, who parliamentary veto—not simply a pre-appointment holds a number of public positions. But, of course, he hearing, but going a stage beyond that. We set out is so independent that we are not allowed to criteria in the report as to why we had selected those question— posts. We do suggest different treatments. However, if Professor Hazell: Without going into that particular case, I can think of at least one instance where a Select you are going to extend it to European Commissioners Committee pressed a candidate very hard about or very significant diplomatic appointments, it would be hard to make an argument in principle for those 3 The Independent Parliamentary Standards Authority Ev 6 Liaison Committee: Evidence

16 June 2011 Lord Adonis, Akash Paun, Professor Robert Hazell CBE and Peter Waller whether she could do the post in three days a week. Lord Adonis: They used to. I don’t think they do any She had other appointments. It seems to me that that more. They stopped it. A few were indiscreet. They is an entirely proper line of questioning for a Select all got published, didn’t they, by Matthew Parris? Committee to pursue. Q29 Mr Syms: The reality is, though, that clearly Q27 Chair: There was another recommendation in Parliament would be better informed if somebody this Committee’s report—the Government had to go could give a rather straighter answer about how the away and think about it and they have not yet role was working and whether there ought to be delivered their thoughts—that a Committee, instead of changes, and if that were factored in even before we issuing an immediate report saying it did not approve got to the point of advertising for a replacement. the appointment of a candidate, should be able to have Having Parliament involved is relevant only if you have Parliament involved in more than just simply a private meeting with the Minister to discuss how to giving the nod by actually reviewing how somebody take the matter forward, if it was inclined not to has done before you go on to a next-generation approve a candidate. It might want to seek some candidate. assurances or want to know a little more about what Chair: Let me just say that I would not want Chairs sort of candidates had been on the shortlist—not to think that they are not free to do that now. Indeed, necessarily who, individually, but whether this really they do in some cases. was the most suitable available candidate. Do you Akash Paun: We do note in the report that there are have a view about alternative processes to the present, a couple of occasions when Committees have done rather brutal process under which someone who has exactly that. The Public Administration Select gone through a selection process, been recommended Committee has recently spoken to Sir Michael Scholar by a Minister and made the subject of a glowing press in advance of the next pre-appointment hearing for the release about how good they will be in the Chair of the Statistics Authority to do exactly that. appointment then has a report about them published The same thing happened with the Information by a Committee saying, “We don’t think they are the Commissioner last time round. Yes, of course right person for the job”? Committees have the ability to do that already. We Lord Adonis: My view is that it should be a matter at conclude that that is a very sensible thing to do. the discretion of the Committee. If it wished to meet Committees might, in certain cases, even wish to hold a Minister at the point at which it was minded to make a wider call for evidence on the nature of the role, a decision but had not made it—if in its judgment particularly when the status or the powers of a post there was a prior process at that stage—that might be are being changed or, as in the case of the Chair of a worthwhile step. As a former Minister, I find it the Statistics Authority, the basis on which the job is almost inconceivable in such a case that the Chair of being offered is being changed. Especially in those the Select Committee would not have a private word kinds of situations, it is highly sensible to try to gather with the Secretary of State anyway. We can get too that wider evidence about what the job entails and formal about these processes. In a case where, clearly, what the Committee should therefore look out for there was a difference of view emerging, I would find when it meets the proposed candidate. it very surprising indeed if the Secretary of State was Peter Waller: I have two thoughts about that. First, not aware of how the mind of the Committee was yes, there is obviously every opportunity to have a hearing with an outgoing post-holder. There is a case moving and if there were not discussions taking place for saying that you should be consulted before a between the Chair and the Secretary of State before decision is made to reappoint. I am thinking along the any formal decision was taken. lines that you have the strongest case for a Professor Hazell: I strongly agree with that. In a way, parliamentary role when Ministers are taking it is slightly bizarre that it is the candidate who decisions that could be political. When someone is appears before the Committee to, as it were, front for appointed for the first time, you go through this the Secretary of State’s decision. The committee is detailed OCPA4 Whitehall process and so on. When scrutinising the Government and the Secretary of someone is coming up for reappointment, it becomes State, and the decision by the Secretary of State to a ministerial decision—“Oh, Minister, do you think appoint candidate X. In effect, the Committee may be that Fred should be reappointed after his first three questioning the Secretary of State’s judgment and years?” There is a bit of grit that should be put into might therefore want the Secretary of State to come the system there of the Select Committee having its and explain that. views sought as to whether Fred has done a good job and ought to be reappointed, or whether the Q28 Mr Syms: We are talking about appointments. appointment should go forward again. We have had a brief discussion about getting in at an There is one other thing that has not come up, and I early stage on designing what a post would be. If we feed back a little from some of the interviews I did have an existing role where somebody has been in with Select Chairs. A feeling came through that the post for three years and they have announced that they more you do on this, the more it is crowding out time are retiring, do you think there is an argument for the to do other things as Select Committees. It is very Select Committee interviewing the retiree—the holder easy in thinking what you could do to think of lots of the post—before they advertise for a replacement? and lots of things to do. You will have to decide where they sit in your priority. Some Committees, in In the British diplomatic service, famously, UK ambassadors send their valedictory no-holds-barred— 4 The Office of the Commissioner for Public Appointments Liaison Committee: Evidence Ev 7

16 June 2011 Lord Adonis, Akash Paun, Professor Robert Hazell CBE and Peter Waller particular, could find themselves doing a heck of a lot May I add something on the veto? Here there is a of work on this. Is that what you want to do? slight difference of emphasis between our report and Lord Adonis: On reappointments, Chair, we say in the that from the Institute for Government. We do not see Institute for Government report that “for all a need for a formal veto. This is very much a matter appointments where a Select Committee has the right for the Liaison Committee and also for the House. to hold a pre-appointment scrutiny hearing, There is something to be thought through about the Government should make time for a reappointment relationship between Select Committees and the hearing on the same terms.” I entirely endorse Mr House. When a Select Committee issues a report, it is Waller’s point in that regard. giving a report to the House. The House, if it wishes, can then have a debate on the Floor. Interestingly, that Q30 Chair: At the discretion of the Committee. is what happened in the case of the Children’s Lord Adonis: Yes. Commissioner. After the adverse report from the Select Committee, when the Secretary of State Ed Q31 Chair: I want to explore something quite Balls said he proposed to make the appointment, an important. There have been some cases in which urgent question was tabled and the Speaker allowed it lawyers—either for candidates or in the Department— to be heard. The Secretary of State was summoned to have started to get interested in this process. Are the House to explain and justify his decision. serious legal problems engaged by the process if You and the House authorities can think of other ways somebody has been offered appointment on terms that in which a debate on the Floor could be made into do not make it entirely clear that the appointment something really serious and painful for the could be stopped if the Select Committee disagrees? Government—perhaps it should be something on a Lord Adonis: I imagine, Chair, that you are taking substantive motion with a Division at the end. There your own legal advice on that point and the Select are lots of possible procedures linking an adverse Committees will, too. It seems to me that it is not an report from a Select Committee to a process on the issue up until the point at which you are talking about Floor of the House that could be very difficult for the a formal veto. I thought Professor Hazell’s remarks Government and really force them to explain were very pertinent here. Most candidates would themselves and justify their decision without withdraw, or be persuaded to withdraw, a long way necessarily having an effective veto. before you got to the formal veto. Where you get to Lord Adonis: I endorse the thrust of what Professor the issue of a formal veto—and we have a good deal Hazell says. In our report we say: “where the to say about how that veto might be exercised, with committee is firmly against the appointment but the checks and balances, in our report—it may be that the Minister wishes to proceed, we recommend that the lawyers will tell you that in order to exercise a formal matter should be referred to the House of Commons veto, you do need new legal powers. I note that, in for a debate opened by the committee chair. We would the case of the OBR,5 statutory powers were given envisage referral to the House itself occurring very in order for a formal veto to be in place. rarely, but if this stage were reached, and if the Commons voted against the appointment, then the Q32 Chair: But in the absence of a formal veto, do appointment process would need to be reopened.” you think there is a risk of legal challenge to a process In the real world, of course, I imagine that this in which a Committee recommends that an appointment would have ceased a good time before appointment should not be made and the Minister you get to that debate and vote. If it got to that debate says, “Right, I will go with the Committee,” or, if not and vote, there would be, I would hazard, a very a legal challenge, the Department’s lawyers saying, strong case indeed for that appointment not to “This is far too risky and you are open to legal proceed, if the strength of feeling is so great that you challenge, Minister”? go into a debate on the Floor of the House of Lord Adonis: I am sure that the Department’s lawyers Commons. will try to browbeat the Committee with that view. You would need to take independent advice on Q33 Mr Whittingdale: You referred earlier to there whether it is a correct view or not. being a stronger case in more political appointments Andrew Miller: It would be more complicated on for some kind of Select Committee scrutiny. If you reappointments. take that to its ultimate application, it would apply to Professor Hazell: Chair, may I make two points? ministerial appointments. While that may be Forgive me, but one I have already made. With regard impractical for members of the House of Commons to all the appointments that are subject to pre- who are appointed to ministerial office, what if the appointment scrutiny, when the post is first advertised practice of the previous Prime Minister of bringing with the particulars of the job, candidates are informed people into Government from the outside were to that there will be a hearing with the relevant Select continue? To take an example, Lord Adonis, do you Committee and that they will be the “preferred think you should have been subject to Select candidate” of the Department. I don’t know what the Committee scrutiny? Whitehall lawyers will say, but I assume they say that Lord Adonis: I would have had no difficulty with that that is sufficient notice to the candidate that this is a at all. I appeared before the Transport Committee stage in the process and the appointment cannot be constantly. I would have been perfectly content to confirmed until the Select Committee has had its have had— hearing. 5 The Office of Budget Responsibility Q34 Mr Whittingdale: As a pre-appointment. Ev 8 Liaison Committee: Evidence

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

Lord Adonis: Personally, I would have been perfectly interviewed? It seems to me that that would make content with a pre-appointment hearing. It might have more sense. cut short my ministerial career to a matter of a few Peter Waller: I cannot see any reason why that should days. In fact, I had a very good relationship with the not be done. Whether one of the officials talks it all Select Committee, I am glad to say. through with the Chair of the committee or whether there is a memorandum, there are different ways it Q35 Mr Whittingdale: Do you think it would be an could be done. Yes, you could give a full account of improvement in practice if that were applied to how this process has gone and so on. That would be ministerial positions? perfectly possible. Lord Adonis: You are talking about a major Akash Paun: We similarly took the view that, constitutional change. It is a much more radical obviously, carefully anonymised details of the range constitutional change than any of these, because what of applications received and those shortlisted, and you are then doing is fettering the discretion of the some of the characteristics of the shortlist, should be Prime Minister in the appointment of members of the given to Committees. Government, which has never happened in the past. I myself am not hidebound by convention. I think you Q39 Mr Jenkin: But what I am suggesting is that should look at these things on their merits. There may more information would be conveyed informally and be a case for it, but it is well beyond the remit of the verbally to the Committee. As soon as things are issues we are discussing this morning. written down, it is all a hostage to fortune, is it not? Akash Paun: While we were talking about political Peter Waller: Yes, though Committees to some extent appointments before being a good candidate for pre- glory in the fact that 99.9% of the things they do are appointment scrutiny, I think the key principle was in public, do they not? political appointments to posts that are normally made on non-political grounds. The obvious case is that of Q40 Mr Jenkin: That is not necessarily the case. ambassadors who have been appointed from outside Finally, on the question of salaries, the Government the diplomatic service. With Ministers, obviously, that are trying to cut a whole lot of salaries of public principle does not apply. appointments by referencing to the salary level of the Prime Minister. Do you think the Select Committees Q36 Mr Jenkin: Very briefly, I suppose the should be interested in that? appointment of Supreme Court justices would also be Lord Adonis: It is a reasonable issue, if they wish to beyond your remit. get into it. It may not be the most important issue in relation to a public appointment. Lord Adonis: It is not beyond our remit. It is beyond the report we have written and the issues about which you have asked us to appear before the Committee. Q41 Mr Tyrie: I have a couple of quick questions. The first is to Professor Hazell. You are against the Professor Hazell: It is something being inquired into veto power. Was it a mistake then for the Treasury and by a Select Committee in the other place—the the Treasury Committee to negotiate the OBR veto? Constitution Committee of the House of Lords—and Professor Hazell: Yes. I think it was a decision taken we are about to submit evidence suggesting that in quite exceptional circumstances, which we detailed Supreme Court justices should be subject to some in the submission that we made to the Committee last kind of scrutiny. week. As you may recall, this time last year, the independence and integrity of the OBR were being Q37 Mr Jenkin: They are virtually self-appointing very seriously questioned by serious people because at the moment. In terms of briefing the Committee of what might have been a chapter of small accidents. before the process starts, who should do that? Should it be an informal briefing? Should the head hunter Q42 Mr Tyrie: That is the past. What is the damage come along and explain how the executive search done? agency has been briefed? Should the Committee be Professor Hazell: It is now a very interesting pilot. I satisfied with the way in which the recruitment would not want to see more Select Committees process is being conducted at the outset? seeking— Professor Hazell: Peter Waller’s points are very relevant about how much time you want to invest in Q43 Mr Tyrie: What is the damage done? What have this. I am guessing that this would be done by we lost? That is what I am trying to get at. correspondence in most cases. The Department would Constitutionally, in what respect are we worse off than send the proposed job description and person we were? If it was a mistake, we must be worse off. specification to the Select Committee and say, “This Professor Hazell: This is a parliamentary system new post is going to be advertised and we would like where the Government make all executive decisions to start advertising it from X date. Do you, the and Parliament scrutinises them and calls the Committee, have any observations on the proposed Government to account. I do not think it is right spec?” constitutionally in a parliamentary system for Parliament or a Committee of Parliament to be a co- Q38 Mr Jenkin: Before the actual pre-appointment decision maker. hearing, should there be an informal briefing of the Lord Adonis: I take a much more restricted view of Committee—not about the names of who is being constitutional practice. It is up to Parliament to decide interviewed, but the sort of people who are being what the appropriate relation is with Government. Liaison Committee: Evidence Ev 9

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

Peter Waller: I would say, briefly, that the mistake these issues, was positive, including, I might say, from was not to have had a much more thorough debate Jack Straw, who was on the panel. I do not think of about who actually is best placed to recruit and him as necessarily an instinctive radical on these appoint the OBR, and how far the Department should issues, but he endorsed your proposals warmly. be involved in that. The other point I would make is this. What influenced me in this regard was when we came to look at the Q44 Mr Tyrie: By the Treasury. issue of the appointments themselves. If you look at Peter Waller: Yes. To have the old system followed appendix A of our report and the proposed “A List” by a veto is clumsy. There should have been a way of of public appointments, these are hugely important saying, “Who should make this appointment? What is appointments. Just in your sphere, Mr Tyrie, we the best process to give the guarantee of the designated five posts, including the Governor of the independence of the members?” Bank of England. The Governor of the Bank of England, with the creation of the MPC and the Q45 Mr Tyrie: We have now created a system to abolition of the FSA,7 is now more powerful than at support it, so I think that that point has been covered. any time in history. I do not think it is correct that Lord Adonis, when I gave a speech in favour of Parliament should not have some substantial role in extending this sort of approach, to my surprise I had ensuring that that person is a fit and proper person to quite a reaction. I thought nobody had noticed the be Governor in the current context. I think it is right OBR or the MPC6 appointment hearings that had that Parliament should play a role in that regard. It been going on for 14 years in the Treasury. Most of it would hugely underpin the legitimacy and authority was favourable. You have had your stuff out there for of the Governor that they took office with independent some time now for public consultation. What kind of parliamentary authorisation, as well as the response have you had and what points are people appointment of the Government. That is true of the making? other posts in your area too. Lord Adonis: The response we have had has been Chair: Let us not go into the posts in detail because broadly positive, too. The reaction to the speech we have that available to us. I thank our witnesses which gave, which of course was at the IfG with a now very much for their assistance. very large audience of those with a deep interest in

6 Monetary Policy Committee 7 Financial Services Authority

Examination of Witness

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

Q46 Chair: Minister, thank you very much for Chair: Are we looking at a process in which there are coming to join us. We are conscious that a number of a number of grounds on which a Committee and a Members are involved in matters on the Floor of the Minister might agree that the appointment should not House, which is one of the problems with Thursday go ahead, or are we looking at a process that is morning sittings. primarily one of allowing the Committee to talk about To start with, we need to get it clear that we are all how the appointee is going to do the job? talking about the same thing regarding public Mr Maude: Certainly it is an opportunity to talk about appointment hearings. What is this process? Is it, as the way in which the appointee will do the job and we have assumed, a process that can, in some the circumstances in which Ministers may choose to circumstances, lead to a Minister accepting the view take account of an adverse recommendation from a of a Committee that an appointment should not go Select Committee. The guidance, and it is only ahead, or are those circumstances so narrowly defined guidance, does set that out in relatively narrow terms, as to be almost unreal? I am sure you have seen Sir as you say. A spectacularly poor performance in front David Normington’s very interesting and carefully of the Select Committee would undoubtedly impinge argued letter in which he is effectively defining on the Minister’s view of whether that person is right hearings as opportunities for Committees to discuss for what is, by definition, a kind of public role, and how the person is going to do the job when appointed. obviously the disclosure of undisclosed facts that are Are we looking at something so narrowly defined—as material would make a difference. If there was it is in the Cabinet Office’s guidance, which talks generally a strong view from a Committee that made about either new facts which were not previously known coming to light or a bad performance before a difference to the perceived acceptability of a the Committee as being the only grounds on which candidate, I think some Ministers would certainly a Committee might decide to recommend against an want to bear that in mind. appointment—or is it, as we originally thought, a Committee sometimes having to set out arguments Q47 Chair: The two grounds that I have enumerated about why this might not be the right person to do are not the only grounds, are they? the job? Mr Maude: This is only guidance. These are Mr Maude: Sorry; what is the question? ministerial appointments and Ministers will make Ev 10 Liaison Committee: Evidence

16 June 2011 Rt Hon Francis Maude MP appointments—and might sometimes then dis- £2 billion to look after. We were told that this was not appoint—on the grounds of their own choosing, which a ministerial appointment—this is an appointment by may reflect the views of the Select Committee. the Civil Service Commission—and that therefore we have no right or authority to be involved in this. We Q48 Chair: Have the Government yet formed a view understand this. on one of the recommendations that this Committee Mr Maude: Nor do Ministers, as you will know as a made previously—they went away to think about former Home Office Minister. when they officially responded—that there may be circumstances in which a Committee, rather than Q53 Keith Vaz: I never made any appointments simply issuing a report, might want to meet a Minister when I was a Foreign Office Minister. Do you think and discuss privately with him the reservations it has, that in those kinds of appointments, which obviously and therefore have some engagement before deciding will require intense scrutiny by a Select Committee, whether to issue the critical report and risk a clash there ought to be the kind of approach that you have with the Minister when the appointment goes ahead? mentioned—not just for the major appointments, but Mr Maude: I am very open to that. It seems to me a in terms of agencies of Government Departments wholly acceptable course. In many cases it will make when it is absolutely clear that, like with the head of sense for a Minister at the very beginning of the the UKBA, there will have to be a very strong appointment process to meet—particularly with the relationship with a Select Committee? Chair of the relevant Select Committee—to discuss Mr Maude: It is a civil service appointment. That is the role, to talk about the job description and what the not a ministerial appointment. It would be improper expectations are, and potentially to canvass names, or for Ministers to make that appointment. certainly to invite suggestions from the Chair about names. The more involvement there is by the Select Q54 Keith Vaz: I understand that, but I am talking Committee—particularly by the Chair—in a very about the relationship with Select Committees. Civil informal way early on, has two advantages. First, servants do appear before Select Committees. Ministers will get useful insights and that will help to Mr Maude: I understand that. We are talking here shape the job description and the appointment process, about discussions between the relevant Secretary of and to feed in names. The other thing is that it means State—the Minister in charge of the Department—and that Ministers will focus on this early, which they do the Chair of the Select Committee. If the Minister in not necessarily do. Sometimes these appointment charge of the Department is not making the processes take on a life of their own. appointment, there is no point in having a discussion, I wouldn’t have thought. Q49 Andrew Miller: That was precisely the line I was going to go down. It would not require any Q55 Keith Vaz: Do you think that that discussion fundamental change for that to become the norm should be with the Permanent Secretary. straight away. It would give substantially more Mr Maude: It could be. I honestly do not have a view confidence in the process if Chairs were seen to be about that. It is not something that had occurred to me. engaged with the relevant Minister. Is that deliverable now? Is what you are suggesting going to happen? Q56 Mr Jenkin: Do you think it would be Mr Maude: There is nothing to stop that happening. reasonable for a Committee to refuse an appointment Ministers could choose— on the basis that the role of the appointment is to scrutinise what the Government does, or some aspect Q50 Andrew Miller: That is not quite the same of what the Government does, if the candidate is quite thing. Is it going to happen? obviously a Whitehall insider? Mr Maude: I cannot speak for all Ministers. We have Mr Maude: I know of no reason why a Select some guidance and procedures and so on. Committee should not form a view and make a recommendation on whatever grounds it likes. Q51 Andrew Miller: Would it be your recommendation to the Prime Minister that that Q57 Mr Jenkin: Would that not be a change becomes the norm? recommendation that a Minister would be obliged to Mr Maude: I do not have a completely fully-fledged accept? view that that is what ought always to be the case. It Mr Maude: No. is much better to approach this informally and pragmatically, and to encourage the Ministers who are Q58 Mr Jenkin: So we are in a situation where inclined to do this when there is a good working Select Committees might be making relationship—which there should be between the recommendations and Ministers are going to ignore Chair of a Select Committee and the relevant Minister. these recommendations. I am in suck-it-and-see mode. Mr Maude: No. I am just saying that Ministers will not automatically accept the recommendation, but will Q52 Keith Vaz: I welcome what the Minister has read them with interest. said. It is a very good and open approach that I think will be very helpful. The Home Affairs Committee is Q59 Chair: In such a case as that, would it not be in correspondence with the Home Secretary about the better if the Committee knew whether there were no appointment of the Head of the UK Border Agency. good outside applicants for the job or if there were That is a very important job, with a budget of almost good outside applicants to be shortlisted—without Liaison Committee: Evidence Ev 11

16 June 2011 Rt Hon Francis Maude MP knowing the names, of course? It is relevant to the make the appointment anyway. How are we going to Committee wondering why an insider has been stop Governments—other Governments of course— offered this position, is it not? from exploiting the recess in order to be able to make Mr Maude: The extent to which Select Committees appointments without parliamentary pre-appointment get involved in this process is something I know that hearings? the Commissioner for Public Appointments will have Chair: Leave your phone number. views about. I see no reason why there should not be Mr Maude: It is not unknown, is it, for Members of early discussion between Ministers, where these are Parliament to be available during the recess? ministerial appointments, and the Select Committee Chair, including potentially canvassing names or Q66 Dame Anne Begg: What we definitely need certainly inviting suggestions for names. more than anything else is clarity about what exactly the process is all about. That is partly because it may Q60 Chair: That was not quite the point I was be that the Minister defines what the job is differently asking. If the Committee as a whole is forming a view from the Select Committee. The pre-appointment in the circumstances that Bernard Jenkin described— hearing might start off almost on a different premise that it is undesirable for an insider to have this job— from when the appointment was done. While we have ought it not to know, when the job is advertised, either heard of the clear cases where there was an outcry that it was trawled in such a way that outsiders were about a particular appointment, in general it will not given an opportunity or that there were some on the be as high profile as that and it is more likely to be shortlist? some minor things, or less serious things, that the Mr Maude: Let me put it this way. If there were to Committee is concerned about. Is there not a danger be those early-stage conversations between the that, without that clarity, we end up wounding the Minister and the Select Committee Chair, which could candidate? It is not a fatal blow, but it undermines the certainly revolve around what the job is and what kind ability of that person to go and do the job as the of person would be appropriate to do it, such concern Minister perceived it, as opposed to what the might easily be ventilated at that stage, and if that Committee itself thought the job was about in the were a strong concern, Ministers would be able to first place. bear it in mind. Mr Maude: The greater the extent to which there can be a common view of what the job involves the better. Q61 Mr Jenkin: If it was in the Cabinet Office It would avoid the risk that you identify. guidance that that was one of the steps to appointing one from the nominated lists, that would be an Q67 Dame Anne Begg: That is just one example, but extremely good innovation. is there not the danger—and it is actually a constraint Mr Maude: I am not committing that it will be in the on the Committee—that, perhaps, it does not write guidance. At this stage, I think we should be looking quite as critical a report as it might have wanted to to see how we can explore informal and pragmatic because it knows it is not going to write a report that ways of trying it. will stop the person getting the job, and nor indeed does it have a veto anyway? The Committee does not Q62 Mr Jenkin: But this is not about involving the necessarily want to undermine the individual before Committee in the recruitment process, as, for they even start, when it knows they will get the job example, we have done with the parliamentary because they are on a path that they are going to get ombudsman. the job? Mr Maude: Indeed. Mr Maude: At the end of it, these are ministerial appointments. Ministers have to take responsibility for Q63 Mr Jenkin: This is about consulting the Select their appointments. While it always makes sense to Committee about the recruitment process and the gather as much commonality of view before you make profile of the candidate that is being sought. That the appointment, at the end of it Ministers have to would seem to be a good thing to include in the make the appointments. guidance. Mr Maude: I am not saying that I am going to include Q68 Dame Anne Begg: But you do not think there in the guidance that there should be discussions at an is a danger that the individuals will be unable to do early stage with the Select Committee Chair. I see no the job because of the ill-defined process that the pre- reason why that should not happen, but I would much appointment hearing is at the moment? rather we proceeded in an informal, pragmatic way. Mr Maude: Select Committees, in the way they As I say, to put it in the vernacular, we should suck it conduct pre-appointment scrutiny, have a and see. responsibility to do that in a way that does not inflict damage on someone who may—or, in all likelihood, Q64 Mr Jenkin: But guidance is only guidance. It is will—carry out the role. informal and pragmatic anyway. Mr Maude: Yes, but we know that guidance tends to Q69 Dame Anne Begg: That then means that the become more than guidance. Committee is trying to do the job with one hand tied behind its back. It does not know who the other Q65 Mr Jenkin: The guidance says that if candidates were or if this is the best candidate. If it Parliament is in recess and you cannot get hold of the thinks the candidate before it does not have the Committee Chair, you are just going to carry on and specialist expertise it was expecting, it does not know Ev 12 Liaison Committee: Evidence

16 June 2011 Rt Hon Francis Maude MP whether any of the other candidates did at the had a very difficult choice between two or three moment. It is that lack of clear definition that makes people and simply informally giving this information. almost a mockery of the process. You might as well What Mr Jenkin is presumably suggesting is that, in not have had the pre-appointment hearing. keeping your pragmatic approach, you would be Mr Maude: You say that they are acting with one happy to see that develop. hand tied behind their back. The burden of Mr Maude: So there might be a letter saying, “There responsibility does tie one’s hands to some extent. were 27 applications, 12 longlisted, four shortlisted. Chair: I did not hear your last words there. Two were regarded as appointable and I chose X.” Mr Maude: If you carry a burden of responsibility, as Select Committees must when they carry out a public Q76 Mr Jenkin: I would suggest an informal verbal hearing, it does tie one’s hands to some extent. briefing because as soon as you put things on bits of paper they become very limited. I would suggest that Q70 Chair: But I think Dame Anne was suggesting an off-the-record briefing with the Committee before that what was tying their hands was lack of knowledge the pre-appointment hearing would put it in context relevant to the decision they felt they had to make. and be a very sensible way of proceeding. Mr Maude: I do not think I really understand. Mr Maude: I can take that away and consider it.

Q71 Chair: It is the question of whether there were Q77 Mr Jenkin: I have been on the panel choosing other suitable candidates who have the expertise that the ombudsman. That is what I am going to do with was required, or whether, in making the the Public Administration Select Committee before recommendation, the selection body was choosing vacating the Chair so that the pre-appointment hearing among candidates none of whom had a high level of is conducted in my absence. I see absolutely no reason expertise. why we should not do that. Incidentally, Mr Maude: Yes. Unless you go down the path of congratulations to Philippa Helme for having making this effectively, as Professor Hazell was conducted this process rather more swiftly than many saying, co-decision, which you could do—it would be other public appointments. a major constitutional change but you could do that— Mr Maude: Very good. there will be constraints of that sort. Q78 Mr Tyrie: Let me follow up on all the questions Q72 Mr Jenkin: I strongly agree with you. This is that have just been asked, and in particular Andrew not co-decision, but in order for the pre-appointment Miller’s. Judging from your early remarks, it sounded process to have any sort of sense of conviction behind as if you did think there should be consultation, it, is it not reasonable that a Minister, or indeed the particularly with the Chair. You reiterated that twice, official that has been conducting the process or I think. Do you think that the Prime Minister should perhaps the executive search agency, should make clear to his ministerial team that there should be informally and pragmatically brief the Committee a predisposition in favour of substantive consultation? before the pre-appointment hearing about how the Mr Maude: I am not going to go that far. thing was conducted, how many people applied, how many people were shortlisted, how many people were Q79 Mr Tyrie: I had not noticed you go any distance interviewed, roughly what was the profile of each at all yet. We are looking forward to spotting the candidate who was interviewed, and why the decision was made? Would not that make a lot of sense? territory that you feel we— Presumably, if it has all been done correctly, that Mr Maude: I am not going to go that far. would give the endorsement of the Select Committee much more authority. Is that not perfectly reasonable? Q80 Mr Tyrie: How far are you prepared to travel Mr Maude: I understand the point you are making, beyond saying that this is a ministerial appointment? but we all know that actually what people want to do Mr Maude: Not very far really. in these circumstances is to talk about names. Q81 Mr Tyrie: Any distance at all, or shall we go Q73 Mr Jenkin: No, I don’t think so. You are quite and have a cup of tea? wrong about that. Mr Maude: Yes, that is fine for me. I have said I see Mr Maude: That is very high-minded. no reason why there should not be, if Ministers and the Select Committee Chair wish, an early stage Q74 Mr Jenkin: We absolutely recognise that you conversation of the type I have outlined. I have now cannot bring all the names into the public domain. reiterated it a third time. You cannot do that. Mr Tyrie: You have said that— Mr Maude: I think that if you do not do that, you are Mr Maude: But you want me immediately to say I inserting another stage in the process. These processes am going to ask the Prime Minister to recommend that are gummed up and bureaucratic enough anyway. it should happen in every case, and I am not going to do that. Q75 Chair: Looking at the pragmatic view, I have known cases where Ministers have said, “This was the Q82 Mr Tyrie: I have asked you something pretty only candidate the appointing body would have been mild, Minister. I have said: do you think there should prepared to put forward from those on the shortlist,” be a predisposition in favour of substantive which is a very different situation from saying they discussion, and would you be prepared to have a Liaison Committee: Evidence Ev 13

16 June 2011 Rt Hon Francis Maude MP substantive discussion with the Prime Minister about Mr Maude: The distinction is that the body, the Office it? for Budget Responsibility, is to some extent embedded Mr Maude: If the topic arose, I would certainly have within the Treasury and draws on Treasury resources, a conversation. and yet there is a very strong need for the Chair of the OBR to demonstrate clear independence and for it Q83 Mr Tyrie: Dear oh dear. If the public are not to be possible for that person to be seen as a watching this, which I doubt they are, they would Treasury stooge. You will know better than anyone not be— that huge amounts hang on what the OBR says about Mr Maude: The public appetite for this is probably the fiscal projections. That is of massive import. You fairly limited, to be honest. can make a case for distinguishing it from the broader Andrew Miller: It is “Yes Minister”. run of appointments. Mr Tyrie: If you heard the previous session— Mr Maude: You will find it is slightly like drawing Q87 Mr Tyrie: So where there are cases of blood from a stone. I am a gradualist in constitutional institutions that in some way are embedded or matters. It was a fairly major step to go down the path enmeshed with the Department, there might be a case of Select Committees conducting pre-appointment for looking at OBR treatment. We seem to be spotting hearings. It aroused a certain amount of controversy this blood from the stone again, do we not? and we are still feeling our way with this. I am willing Mr Maude: Yes. to contemplate minor further steps but, in reality here, there will always be a perfectly healthy and sensible Q88 Mr Tyrie: That was a question asking for a tension between Select Committees that want more substantive response. involvement and engagement, and something which I Mr Maude: This is the issue. As soon as you make accept will fall short of co-decision, but will feel more an exception, you then wish to extrapolate a principle like co-decision. I just think that we should progress from that, and that then gets applied to a whole lot very slowly. of other appointments. I am not willing to go down that path. Q84 Mr Tyrie: Do you think that the arrangements that have been put in place for the appointment of the Q89 Chair: I am going to have to draw these Chairman of the OBR were a mistake? proceedings to a close. I simply say that when this Mr Maude: I heard you interrogating Professor Hazell Committee reports, some further discussion will be about that. necessary. I do not think we should continue in a situation where the Cabinet Office guidelines and our Q85 Mr Tyrie: I was not even cross-examining him; guidelines to Committees do not roughly correspond. I was just asking him questions, Francis. I hope we can have a productive discussion at that Mr Maude: Exactly, and very courteously as well. Do point. I think it was a mistake? I think you can distinguish Mr Maude: I feel confident that we can have a that case from other cases. constructive and creative discussion at that stage. Chair: Thank you. Q86 Mr Tyrie: What is the distinction? Ev 14 Liaison Committee: Evidence

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 evaluation of Pre-Appointment Scrutiny Hearings. We studied the first 20 pre-appointment hearings. We interviewed 60 people, including the appointees, select committee chairs, members and clerks, recruitment consultants and Whitehall officials. Our report was submitted to the Committee in February 2010, and published with the Committee’s report on the work of committees in session 2008Ð09 (HC 426, March 2010). The Liaison Committee made a number of recommendations as to how the system might be taken forward in their second report of session 2009Ð10 (HC 564, November 2010). The Government has already accepted some of those recommendations and agreed to consider the remainder. The recommendations made by the Liaison Committee in their March 2010 report are consolidatory and incremental, 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 formal veto to Select Committees on about 25 of the more important appointments. This was in particular advocated by the Institute for Government in their recent report Balancing Act (March 2011). The purpose of this note is to 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 public appointments through their scrutiny hearings. Our interviews with the candidates and in Whitehall brought out that the scrutiny hearings: — Act as a check on political patronage (though the public appointment rules had already largely tackled 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 and priorities. Our research report set out four broad options, but made no recommendations. We thought that the Liaison Committee’s recommendations drawing on the findings of our research were sensible and proportionate in calling for the hearings to be made permanent; for a more coherent list of posts to be subject to hearings; for consultation with Departments on the job specification for such posts; for improved guidance for all those involved; and for the need for a private discussion between the Committee and the relevant Secretary of State when the Committee had reservations (HC 426, March 2010 paras 68Ð72).

The Case Against Extending the Veto Most of the senior appointments concerned are established in statute as appointments to be made by the relevant Secretary of State. Short of amending legislation, the Secretary of State could not technically allow any Committee to have a formal veto, because this would fetter his discretion. But we do not believe that it is necessary 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 have been drawn from the Children’s Commissioner case (discussed below). A majority of the candidates whom we interviewed told us that they would not have wanted to accept the appointment in the event of a negative report from a Committee, even if the Secretary of State wished to proceed. We also believe that a Secretary of State will never be comfortable about rejecting 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 which follow well established principles of fair recruitment. We think it entirely reasonable that the preferred candidate should be subject to a ﬁnal and rigorous public examination by an appearance before a Select Committee, but believe that a candidate’s performance before the Committee should be regarded as an additional piece of evidence rather than being the sole criterion for the ﬁnal decision; — we are far from clear “what would happen next” if a Select Committee veto was in place and one was issued. We think it very possible—at least in some cases—that the other short-listed candidates would not want to proceed with their application. The recruitment process would then need to restart 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; Liaison Committee: Evidence Ev 15

— we believe that if Select Committees had a formal veto power, they would come under increasing pressure to follow more formal processes in their questioning of the preferred candidate, including adhering to “good practice” in the context of employment law. We do not think that such processes sit comfortably with what we think is the core purpose of any Select Committee—which is to challenge 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 for public appointments which undoubtedly have formal veto powers. The critical difference between the UK and US systems is that major appointments in the US are not made following a formal and 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 prolonged vacancies; 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 of the Children’s Commissioner in October 2009, against the advice of the relevant Select Committee. The second is the grant of veto powers to the Treasury Select Committee in July 2010 in relation to the new Office for Budgetary Responsibility. Both cases are exceptional, and need to be understood in their particular political context. Case 1: The Children’s Commissioner The appointment of the Children’s Commissioner for England in October 2009, notwithstanding a negative report from the then Children, Schools and Families Committee led many of our Select Committee interviewees to express frustration and disillusionment with the process. But it could be argued that it shows the process working as it should, shining a spotlight of scrutiny and forcing the government to explain and justify its decision. Moreover, there were special circumstances surrounding this appointment. In particular 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. Had the veto been in place, then the appointment would clearly not have proceeded. But we believe that it would have been an illogical outcome for a candidate to have gone through a recruitment process against one 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 from her full-time employment to take on the appointment. We do, however, believe that this case reinforces the recommendation by the Liaison Committee that Departments should consult Select Committees on job specifications before public appointments covered by 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 restoring confidence in the public finances, and the credibility of the forecasts which underlie the Chancellor’s taxing 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 that it had revised down forecasts about job losses under Treasury pressure; that it had conveniently issued those revised forecasts just before Prime Minister’s Questions; and that the first head of the OBR, Sir Alan 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 have used the OBR not just as part of government but as part of the Conservative party. They have succeeded in 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. This was the background to the Chancellor’s announcement in July 2010 of his intention to give the Treasury Select Committee a veto over the appointment of the Chair of the OBR. He proposed to enshrine the new veto power in legislation, but until then, committed not to appoint a candidate who was judged unsuitable by the committee. He later offered the committee a similar veto power over two other members of the OBR. We do not believe that the OBR example should be used as a precedent. Our own view is that a more logical approach, given the importance of demonstrating the independence of the OBR from the executive Government, would have been for appointments to have been made independently of Ministers, and possibly by Parliament. We can understand why there was limited time for this—but do not think it should be used as a precedent for other bodies. Ev 16 Liaison Committee: Evidence

Final remarks The Constitution Unit fully supports the introduction of pre-appointment scrutiny. It remains our view that it has added to the democratic scrutiny of public appointments. But we also believe that it is likely to be most effective 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 challenge and executive decision making. Indeed, over time it could risk compromising the independence of Select Committees by drawing them into shared decision making. In Gladstone’s famous words, “Your business is not 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 been involved in many appointments at Board level within Arm’s Length Bodies (ALB’s) and as Chair of the Public Chairs’ 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 efﬁciency and 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 represent a 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 straw poll of approximately 15 Chairs. The following section incorporates these views, together with perspectives expressed at the recent PCF seminar on select committees, where a discussion on pre-appointment hearings took 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 to win the debate among Chairs. Whilst the theory behind such hearings may be sound and they may carry clear potential 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 shaping perception, either serving to reinforce or challenge current concerns. It is vital to get this right from the start.

A Sample of Opinion from Chairs 1. 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 all Chairs, 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 risk of politicising the process. Select Committees will want to demonstrate that pre-appointment hearings are able to provide impartial scrutiny at the highest level. 4. Many Chairs feel that for those positions which are particularly visible, pre-appointment hearings could help to increase transparency and openness and allow Parliament to have a greater confidence in the appointments process. They could also provide Select Committee members with an opportunity to get to know the person appointed. 5. Pre-appointment hearings could be particularly valuable for positions where there is likely to be significant ongoing contact with the appointee in the line of Committee business, and where therefore it 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-appointment hearing can act as good preparation and training, as many roles will require Chairs to appear before Select 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-appointment hearings was deemed to be a good thing by most Chairs, provided that there is a clear and open rationale, and that the list is reviewed regularly. 9. Being subject to a pre-appointment hearing can be intimidating and risks deterring good candidates from 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 have been appointed to post, the process has the potential to help reduce the negative perceptions of unelected appointees and increase political strength in office. Liaison Committee: Evidence Ev 17

10. MPs are political by nature; therefore the process is at risk of being politicised. There is a danger that members of the Committee will pursue a different, hidden agenda that does not relate to transparency and openness. 11. Ensuring clarity around pre-appointment hearings and how they are conducted will be crucial. Some Chairs feel that there is a poor understanding in what is expected from hearings on both sides and a lack of consistency about each process. 12. There is also a danger that those candidates who are less politically experienced will be at a disadvantage. 13. Select Committee Chairs should be careful to ensure appropriate questioning and a standard of conduct that would be expected in an appointment procedure to ensure, objectivity, fairness and respect as well as a non-political approach. 14. A number of Chairs felt that members of Select Committees might benefit from some training in how to make the hearings work. They assumed that most MPs would welcome such training as a standard and 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 public appointments, but not all. I believe that the maximum value in pre-appointment hearings will be for high profile appointments, which carry the greatest importance to the state and operate with the greatest independence from Government, and where the role is likely to expose the appointee to high levels of public scrutiny. In other words, 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 public appointments, who will be subject to pre-appointment hearings, and where parliament has the right to veto on these appointments. The criteria for holding a pre-appointment hearing should be clear and transparent, and the list of those public appointments which are eligible for this should be reviewed regularly. Managed well, pre-appointment hearings have the potential to increase the transparency of public appointments. They can also increase public confidence, in turn having a positive impact on the perception of public 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 managed correctly, 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 does not seek to scrutinise the process to date, as there are other mechanisms for doing that (eg role of OCPA), but to concentrate on the candidate. The second is that there is a danger that the process will become over-politicised and members might be tempted to use the opportunity pursue their own (political) agendas. This would not be helpful to the reputation of the hearings. It would be appropriate to consider measures that could be put in place to mitigate these risks and achieve the desired benefits. 27 May 2011

Written evidence submitted by Sir David Normington, Commissioner for Public Appointments and First 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 appointments process 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 Commissioner on 1 April this year and have been asked to review the public appointments system with a view to developing and implementing proposals for a more proportionate, principled and risk-based regulatory regime for public appointments. I am currently holding a series of listening exercises with those involved in the public appointments process before publishing a formal consultation paper this summer, which I will, of course, send to you and your Committee. My rote as a regulator is to ensure that Ministerial appointments to the boards of public bodies are made on merit, after a fair, open and transparent process. I do not envisage in my review moving away from that core purpose, but I am considering how best to ensure that the regulatory regime fulﬁls that core responsibility as effectively as possible. In that context, it is already clear to me, even at this early stage of my term of ofﬁce, that Parliamentary scrutiny of regulated public appointments gives rise to some particular dilemmas—for applicants, for me as a Ev 18 Liaison Committee: Evidence

regulator and for Parliament itself. The regulated process which I oversee is designed to assess applicants against clear criteria and provide the appointing Minister with a choice of suitable candidates—candidates who have been objectively assessed as capable of doing the job effectively and well. The Minister’s right to choose reﬂects 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 Ministerial inﬂuence 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-appointment scrutiny of a regulated appointment, he or she will have been through a fair and open competition, usually involving a rigorous selection process, and has been judged on merit as a suitable candidate for the post against the speciﬁcation for the job. In addition, an independent assessor, accredited by me, will have been involved in the competition throughout and signed it off as a proper and fair process, free of political patronage and cronyism.

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

After only eight weeks in my current rote (and some experience of senior public appointments in my previous roles) I do not have any easy solution to this dilemma. But, like my predecessor as Commissioner for Public Appointments, 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 to be 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 before the process starts. This would enable them to inﬂuence at the outset the criteria fm the post, comment on the type of candidate who might be suitable and suggest issues to be explored in the recruitment process. They might subsequently get a report hack on how these issues were tackled in the recruitment process. One of the problems with the present pre-appointment scrutiny is that Committees sometimes raise these Issues at the end when 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 successful candidate intends to approach the job rather than on the candidate’s merits. This would enable the Committee to make public its views about the issues and priorities needing to be tackled by the new appointee, and if they have concerns about these issues to write to the appointing Minister about it or make a formal report. It will also 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 a very legitimate role for Parliament in testing publicly the candidate’s independence of Government in order to reassure itself on this point.

Finally, whatever the outcome of your considerations it is very important that applicants for public bodies understand at the outset the nature of the appointment process, including what any Parliamentary scrutiny involves. I hope you will agree that the priority for all of us is to widen the ﬁeld of potential applicants and to ensure 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 Liaison Committee: Evidence Ev 19

Executive Summary of an Evaluation of Pre-appointment Scrutiny Hearings, prepared for the Liaison Committee 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 the Cabinet Office and the House of Commons Liaison Committee. 2. It is a research-based report into the effectiveness of pre-appointment scrutiny hearings, which were introduced in 2008 for just over 60 high-profile public appointments. The broad intention was that the Government would identify a “preferred candidate” for those roles, in many cases under the supervision of the Commissioner for Public Appointments; and would then invite the relevant House of Commons Select Committee to carry out a pre-appointment hearing in public with the preferred candidate. The Committee would then report back on that hearing to the Secretary of State concerned who would then decide whether to confirm the appointment. In short, the Committees’ report were to be advisory in nature. This new regime was introduced 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 the discussions 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 been 18 hearings covering 19 appointments; and records the issues discussed in those hearings. It also records that to date there has been one instance in which a select committee did not endorse the appointment, with a positive endorsement of the candidate in the other 18. In two of those cases, however, the Committee divided before issuing a positive report on the candidate concerned. In the one case where a select committee did not endorse the appointment, namely the Children’s Commissioner for England, the Secretary of State concerned decided 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, members and clerks; ii) preferred candidates, iii) Departmental officials and iv) search consultants. We had an excellent response to our request for interviews and have conducted at least three interviews relating to each case—in many 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, so we have given views by category rather than named individuals. We have used quotes extensively to give the range of views received but sought to disguise individual cases. In broad overview, our research from interviews shows; — Parliamentarians have found the new approach frustrating and were overall the most disappointed with the new approach. They have no real confidence that the Government will take a negative recommendation seriously. Many, though not all, would like to go further in having a wider range of 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 beneficial to them, as well as justified on “democratic grounds”. The remainder have been neutral rather than opposed to the hearings. A majority of candidates have also told us that in the event of a negative report, they would have probably decided not take up the appointment even if the Department had wanted them to do so; — Departmental officials were broadly neutral about the hearings, being largely focussed on the mechanics of the additional processes involved and the lengthening of the timetable for appointments, 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 a significant deterrent to candidates had not been realised, but there were some residual concerns as to the longer term deterrent effect. 7. Chapter 4 supplements this interview-based approach with an analysis of media coverage of the new system. It concludes that there has been consistent but modest reporting of most of the appointments and strong reporting of a couple of cases. 8. Chapter 5 gives our conclusions on some of the key issues raised by the new approach. Our principal conclusions as discussed in that Chapter are; — there has been a positive benefit from the new approach in terms of democracy and transparency in 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 of role in the first place; — the new system does, however, tend to favour candidates who have previous experience of sector committees, whether through previous experience on public boards or other engagement in public life. There are, however, strong pressures favouring such candidates already, especially for roles of such seniority; Ev 20 Liaison Committee: Evidence

— it is wrong to assume that negative reports will never have any impact, based solely on the fact that in the one case to date, the candidate concerned had their appointment confirmed. A majority of the candidates we interviewed told us they would have chosen not to take up the post following a negative report, even if the Department wished them to do so. We also believe that departments will take negative reports seriously, even if they will have a starting inclination to confirm the candidate; — there is an inherent tension between the formality of the public appointment recruitment processes—which place a high priority on consistent procedures—and the informality of Committee 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 to consider. We discuss various options, notably; — the case for greater involvement of Committees in the process, as many Parliamentarians would wish; — 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, thus removing some of the tensions referred to above; and — the possibility that Parliament could have greater involvement in a smaller subset of the current list of appointments subject to hearings.

Executive Summary and Recommendations from Balancing Act: The Right Role for Parliament in Public Appointments, Institute for Government, March 2011 Summary This report explores the involvement of Parliament in the public appointments process. Historically, public appointments have generally been a responsibility of the executive alone. However, Parliament’s role has increased substantially over the past decade. An array of mechanisms has been developed to enable MPs to hold government to account for the appointment decisions it makes. Most notably, the previous Labour government created a new system that sees Commons select committees cross-examining ministers’ preferred candidates for senior positions in the public sector. The House of Commons also gets to debate and vote on certain categories of appointment. Involving Parliament in the public appointments process brings a number of advantages. Cross-party committees can assess the independence from government of candidates and test their ability to withstand robust public scrutiny. Parliamentary scrutiny can also increase the transparency of the appointment process and the democratic accountability of executive functions carried out at “arm’s length” from ministers. For these reasons we argue in favour of a greater role for Parliament. There are potential risks too. These include the possibility of deterring prospective candidates, politicising the appointments system and introducing delays into the process. Reform therefore involves a balancing act between these different factors. Below we make 15 recommendations for reform which we believe would maximise the beneﬁts that parliamentary involvement can bring, without greatly increasing the risks. Our overall 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 the broader relationship between government and Parliament. In chapter 2, we discuss the evolution in recent years of Parliament’s involvement in public appointments. Next, in chapter 3, we weigh up the beneﬁts and risks of involving 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 commence immediately. This should be carried out by the Liaison Committee and the Cabinet Office on the basis of a clearer set of criteria. 2. In particular, we suggest that parliamentary involvement is most important for posts where some or all of the following four criteria apply: (a) 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. (b) 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. (c) There is strong public interest in the vision and priorities of the office holder in question, and in the performance of the organisation. Liaison Committee: Evidence Ev 21

(d) The post or body plays a role integral to the conduct of Parliament or the exercise of its key powers and responsibilities. 3. Instead of the current undifferentiated list, we recommend that “variable geometry” be built into the system, meaning that those posts scoring most highly on the proposed criteria are subject to more stringent forms of parliamentary involvement. 4. We suggest that for an “A List” group of about 25 of the most important public appointments measured by the criteria set out above, there should be an effective veto power granted to Parliament. This list would be in addition to appointments to the Office for Budget Responsibility where a formal veto power for the Treasury Select Committee already applies. 5. For appointments to “A List” posts, the minister should be required to appear before the relevant select committee in the event that the committee has concerns about a proposed appointment following a hearing with the candidate. Further, as a last resort, appointments should be referred to the House for resolution if agreement 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, after consulting as appropriate with select committee members more widely, and it should then seek to reach agreement with the Cabinet Office. Future alterations to the list should also be agreed between the Liaison Committee and Cabinet Office. 7. For appointments where a select committee has the right to hold a pre-appointment scrutiny hearing, the committee should have the right to hold a hearing on the same terms when the government chooses to reappoint a 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 case for the executive directors of the OBR, government would need to seek the agreement of the relevant select committee before dismissing an “A List” post holder. If agreement could not be reached, the matter should be referred to the House. 9. For a second tier of public appointments, which the Liaison Committee should take the lead on drawing up, we recommend a continuation of the current pre-appointment hearing system but with an expectation that the minister would appear before the committee to explain his or her decision, in the event that there is disagreement. 10. For these top two categories of public appointment, the relevant committee should also be consulted at the 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 Liaison Committee. This should set out more clearly the purpose of pre-appointment hearings (including a greater emphasis on using these hearings as the start of an ongoing accountability relationship). It should also be clearer about what lines of questioning are inappropriate. 12. We further suggest early post-appointment hearings with new ministerial appointees from outside Parliament (“GOATs”). 13. We recommend that when a major public inquiry is being established, the lead department should inform the relevant select committee. The committee should then be given the opportunity to hold a pre-appointment hearing 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 Electoral Commission or the Independent Parliamentary Standards Authority (IPSA) should appear before a select committee 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 House of Lords Appointments Commission, and joint control with the executive of the appointment process to the post of Parliamentary Ombudsman, along the lines of the model already operating for the Comptroller and Auditor General.

GOVERNMENT’S DRAFT LIST OF POSTS TO BE SUBJECT TO PRE-APPOINTMENT HEARINGS, JUNE 2011 BIS Chair of the Higher Education Funding Council for England Chairs of the Research Councils Director of the Ofﬁce for Fair Access Chair of Postal Services Commission Chair of Competition and Markets Authorityi Ev 22 Liaison Committee: Evidence

Cabinet Ofﬁce Chair of the Advisory Committee on Business Appointments Chair of the Charity Commission for England and Wales Chair of the Committee on Standards in Public Life Chair of the House of Lords Appointments Commission Chair of the UK Statistics Authority First Civil Service Commissioner and Commissioner for Public Appointments Parliamentary Commissioner for Administration (ofﬁce also held by Health Service Commissioner)

CLG Chief Fire and Rescue Adviser Local Commissioners for Administration in England Chair of the Homes and Communities Agencyii Chair of the Homes and Communities Agency’s Regulatory Committee (who would also be a member of the Agency’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 OFCOM Chair of the BBC Trust Chair of S4C

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

DEFRA Chair of Natural England Chair of the Environment Agency Chair of the Gangmaster Licensing Authority Chair of the Water Services Regulatory Authority (OFWAT) Chair of the Agricultural Wages Board* Chair of the Marine Management Organisation Rural Advocate*

DfE HM Chief Inspector of Education, Children’s Services and Skills Children’s Commissioner for England Chair 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 Commission Health Service Commissioner for England (ofﬁce also held by Parliamentary Commissioner for Administration) Chair of the Food Standards Agency Chair of the Appointments Commission* Chair of MONITORii Chair of NHS Commissioning Boardii Liaison Committee: Evidence Ev 23

MoJ Chair of the Judicial Appointments Commission Chair of the Ofﬁce for Legal Complaints HM Chief Inspector of Prisons HM Chief Inspector of Probation HM Chief Inspector of the Crown Prosecution Service Information Commissioner Prison and Probation Ombudsman

HO Chair of the Commission for Equality and Human Rights HM Chief Inspector of Constabulary

DfT Chair of the Ofﬁce of Rail Regulation

HMT Comptroller and Auditor General Chair and Members of the Budget Responsibility Committee

DWP Chair of the Social Security Advisory Committee Pensions 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 with an * i Subject to the outcome of the consultation on the creation of the CMA. ii Subject to the passage of legislation.

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