Policy Exchange Policy Reforming Public Appointments Reforming Public Appointments Reforming Michael Pinto-Duschinsky and Lynne Middleton Reforming Public Appointments Michael Pinto-Duschinsky and Lynne Middleton Policy Exchange is the UK’s leading think tank. We are an educational charity whose mission is to develop and promote new policy ideas that will deliver better public services, a stronger society and a more dynamic economy. Registered charity no: 1096300. Policy Exchange is committed to an evidence-based approach to policy development. We work in partnership with academics and other experts and commission major studies involving thorough empirical research of alternative policy outcomes. We believe that the policy experience of other countries offers important lessons for government in the UK. We also believe that government has much to learn from business and the voluntary sector. Trustees Daniel Finkelstein (Chairman of the Board), Richard Ehrman (Deputy Chair), Theodore Agnew, Richard Briance, Simon Brocklebank-Fowler, Robin Edwards, Virginia Fraser, Edward Heathcoat Amory, David Meller, George Robinson, Robert Rosenkranz, Andrew Sells, Charles Stewart-Smith and Simon Wolfson. About the Authors Michael Pinto-Duschinsky is senior consultant on constitutional affairs to Policy Exchange. He is the author of two previous Policy Exchange studies: Paying for the Party: Myths and realities in British political finance (2008) and Bringing Rights Back Home: Making human rights compatible with parliamentary democracy in the UK (2011). He is president of the International Political Science Association’s research committee on political finance and political corruption, was a member of the UK Commission on a Bill of Rights, 2011-12, a founder governor of the Westminster Foundation for Democracy, a director of the International Foundation for Electoral Systems, consultant to the Policy Planning Staff of the Foreign & Commonwealth Office, Home Office, Cabinet Office and the Committee on Standards in Public Life. He has been an adviser on constitutional and related matters to the Electoral Assistance Division of the United Nations, Commonwealth Secretariat, Organisation for Economic Cooperation and Development, European Union, Council of Europe, and Organisation for Security and Cooperation in Europe, After gaining first class honours in Philosophy, Politics and Economics at Oxford, an MA at Cornell University and a doctorate at Nuffield College, Oxford, he spent his academic career at Merton College, Oxford, Pembroke College, Oxford and Brunel University. Lynne Middleton works at Policy Exchange as a research fellow. Following a degree at Leeds University in history and politics, she undertook postgraduate studies at King’s College, London in Terrorism, Security and Society. She has worked at Demos, the International Centre for the Study of Radicalisation and Political Violence and as a research analyst at the International Centre for Security Analysis. © Policy Exchange 2013 Published by Policy Exchange, Clutha House, 10 Storey’s Gate, London SW1P 3AY www.policyexchange.org.uk ISBN: 978-1-907689-67-3 Printed by Heron, Dawson and Sawyer Designed by Soapbox, www.soapbox.co.uk 2 | policyexchange.org.uk Contents Acknowledgements 5 Executive Summary 6 1 Introduction 12 Complexity, technicality, ambiguity and secrets 16 The big picture 19 2 The Rules: Past and Present 20 The Old Corruption and pre-1995 reforms 20 New rules proposed in 1995: the merit principle 23 Reforms under the Labour governments of 1997-2010 24 How appointments are currently made: the main actors 26 How appointments are currently made: the selection process 28 3 The Appointments System in Practice 30 How much leeway do the appointment rules allow ministers? 30 Why have there been more appointees with Labour Party backgrounds? 32 Does the appointment of ‘tsars’ permit ministers to evade the public appointment rules? 33 Are senior civil servants able to bypass the normal competitive examination procedures? 35 Examples of appointments under the coalition government 36 Policy implications of some recent judicial appointments 40 Conclusions and recommendations 44 4 Diversity 48 The main ‘protected’ characteristics of diversity: gender, ethnicity and disability 48 Forgotten dimensions of diversity 53 Is the policy of promoting diversity consistent with appointment on merit? 60 Conclusions and recommendations 64 5 Conclusions and List of Recommendations 70 Appendices 1 Posts subject to pre-appointment hearings 74 2 Interviewing panels for selected appointments 77 3 Policy Tsars 78 4 Analysis of Ministry of Justice appointment competitions, 2011-12 82 Bibliography 84 policyexchange.org.uk | 3 List of Figures and Tables Figures Figure 1: Contrasting trends in diversity Figure 2: The dearth of appointees from manual and intermediate occupations – lay magistrates Figure 3: The dearth of individuals from manual and intermediate occupations among those responsible for participating in the selection process for public appointees Figure 4: Comparative disadvantage Figure 5: Annual number of appointees with declared Conservative, Labour and Liberal Democrat affiliations Figure 6: Public versus private sector backgrounds of top appointees Figure 7: Socio-economic backgrounds of top appointees Figure 8: Percentage of magistrates by occupation Boxes Box 1: What are public appointments? Box 2: Some key appointments 2010-2013 Box 3: Rules for appointments to quangos proposed by the Committee on Standards in Public Life, First Report 1995 Box 4: Bus driver magistrates: a model scheme to promote occupational diversity among holders of public appointments Box 5: Operation Black Vote: Magistrates Shadowing Scheme Tables Table 1: Declared party political activity of those appointed and reappointed to positions governed by the Office of the Commissioner for Public Appointments in England and Wales. Table 2: Declared political activity of persons appointed and reappointed to positions governed by the Office of the Commissioner for Public Appointments in England and Wales, 1996-2013. Table 3: Women in British Public Life and Professions Table 4: Members of Ethnic Minorities in British Public Life and Professions Table 5: Contrasting Trends: The falling percentage of working class MPs versus the rising percentage of female and ethnic minority MPs. Table 6: Employment sector of persons winning 53 of the top public appointments and employment sector of the ‘selectorate’ Table 7: Posts Subject to Pre-Appointment hearings Table 8: Interviewing panels for selected appointments Table 9: Policy Tsars Table 10: Analysis of Ministry of Justice appointment competitions, 2011-12 4 | policyexchange.org.uk Acknowledgements Our greatest debt of gratitude is to Dean Godson, now director of Policy Exchange. Before he took up this position, he worked tirelessly and with great foresight to establish at Policy Exchange a constitutional affairs unit. The objective was to make it possible to review and, if necessary, to challenge many of the fashionable reforms of the British Constitution and broadly but not unthinkingly to defend the Westminster Model. Mark MacGregor, Nick Faith, Elisha Walia and Matt Smith of Policy Exchange all gave valuable advice and help. We warmly thank officials at the Office of the Commissioner for Public Appointments, the Judicial Appointments Commission, Judicial Office Magistrates HR Team, the Justices’ Clerk for Greater Manchester, Ministry of Justice, Foreign & Commonwealth Office, Ministry of Justice, Cabinet Office, Houses of Parliament, Magistrates’ Association, Operation Black Vote, the Commissioner for Public Appointments, ministers, Special Advisers, Common Cause, and Professor Matthew Flinders. We are particularly grateful to those who prepared data. They are not responsible for any errors or for our conclusions. policyexchange.org.uk | 5 Executive Summary Since 1995, government ministers have been restricted in their powers to appoint the heads of major public bodies such as the chair and members of the British Broadcasting Corporation Trust, the Court of Directors of the Bank of England, the UK Atomic Energy Authority, NHS Trusts, the chair and members of the Equality and Human Rights Commission and many more so-called ‘Arms Length Bodies’ or ‘quangos’ (Quasi-Autonomous Non-governmental Organisations). These appointments are now made by a complex system in which the Office of the Commissioner for Public Appointments (OCPA) plays a central role. This body was set up in 1995 by John Major’s Conservative administration to ensure that appointees were chosen on ‘merit’ and not because they were ‘cronies’ of the governing political party. Nevertheless, government ministers retain the ultimate responsibility for making appointments and have a role in the selection process. The Labour governments of Tony Blair and Gordon Brown introduced an additional feature. Though appointments were still to be made on merit, the selection process also was to promote equal opportunity and a diversity of appointees. Moreover, since 2005, there have been even more severe limitations on the Minister of Justice (the ‘Lord Chancellor’) in the appointment of judges. Policy Exchange set up a study of the new appointments system as part of its Constitutional Affairs project to investigate concerns about the way this was working. Two particular concerns were that it had excessively changed the power relationship between ministers and senior civil servants to the advantage of the latter, and that so