REPORT OF THE SELECT COMMITTEE ON MEMBERS OF GOVERNMENT DEPARTMENTS REPORT OF THE SELECT COMMITTEE ON MEMBERS OF GOVERNMENT DEPARTMENTS INTRODUCTION 1. Terms of reference of the Committee At its May 2000 sitting, Tynwald Court resolved: "That a Select Committee of three Members be appointed to consider the responsibilities of members of Government Departments, their appointment and dismissal; and report" 2. Membership of the Committee At the same sitting, we were appointed to serve on the Select Committee; at our first meeting, hon Member of Council, Dr Mann, was unanimously elected as our chairman. 3. Evidence We have taken a significant amount of written evidence which is listed and set out in Appendix 1. C/MGD/mlg We have also taken oral evidence from Mrs B J Cannell MHK, Hon D J Gelling MHK and Hon D North MHK; this evidence is set out in Appendix 2. 4. Scope of the report 4.1 The scope of the report, and our approach to the terms of reference, is encapsulated in the response of our chairman when asked for guidance on the matter by the Hon D I Gelling in giving oral evidence. The exchange was as follows: "Mr Gelling: ... I think I would look for a little bit of guidance: are we looking at generalities here or are we looking at specifics or how far do you actually want to go into this?... Dr Mann: I think it would be correct to say that in terms of the resolution, which is a generality, but as a result of submissions made to us of course an individual case is specifically mentioned. I do not think we are going to avoid the specifics anyway, but I think our total remit has to be general, and in fact we have been at pains to look at the whole scene, the whole mechanism of appointment and dismissal and the way in which an individual operates within a Department. ..." 2 C/MGD/mlg 4.2 It is apparent from the evidence given to us, in particular the oral evidence, that concern and uncertainty was created as a result of the removal of Mrs B J Cannell from office as a member of the Department of Trade and Industry by the Governor in Council. This removal from office followed public criticism on more than one occasion by Mrs Cannell of the development and construction of the new acute general hospital, which was within the responsibility of the Department of Health and Social Security. In the Department of Trade and Industry Mrs Cannell had responsibility for the construction industry, but she had not received from the Minister for Trade and Industry any written or oral formal intimation of dissatisfaction with her Departmental work. These circumstances rather highlighted the legal and political parameters within which members of Government Departments are expected to conduct themselves publicly. 4.3 Consistent with our terms of reference, we have sought to draw on these specific circumstances to further the understanding of the position of members of Government Departments. It was not, in our opinion, appropriate to undertake a complete exploration of the circumstances leading to the removal of Mrs Cannell from her office as a member of the Department of Trade and Industry, but we would say that the various procedures which we recommend in this report had been in place at the time, the train of events which led to the removal from office of Mrs Cannell might have developed in a rather different way. 3 C/MGD/mlg APPOINTMENT AND REMOVAL OF MEMBERS OF GOVERNMENT DEPARTMENTS 5. The present statutory procedure 5.1 Non-ministerial members of Departments are appointed and removed by the Governor in Council (Government Departments Act 1987, s 2) which is the Lieutenant Governor acting upon the advice of Executive Council. The latter has the same membership as the Council of Ministers. Thus the Lieutenant Governor's role in the appointment and removal of these non-ministerial members is purely formal since, at present he acts only on the recommendation of the Council of Ministers. 52 However, the detached apolitical role of the Lieutenant Governor in the appointment of non-ministerial members of Government Departments is perhaps less obvious from the formal statutory procedure than it is in the appointment and removal of Ministers. Ministers are appointed and removed by the Lieutenant Governor, acting on the advice and with the concurrence of the Chief Minister (Council of Ministers Act 1990, s 3). Perhaps as a consequence of being legislation enacted after some experience of the ministerial system, section 3 of the 1990 Act makes it quite clear that the Lieutenant Governor plays a merely formal role. The political responsibility for the appointment and removal of Ministers rests with the Chief Minister who must be satisfied not only that the action is appropriate with respect to the individual but also that an effective and cohesive Council of Ministers is maintained. We consider that there is merit in a statutory procedure which specifies where political responsibility lies. 4 C/MGD/mlg 5.3 We recommend that the statutory procedure for the appointment and removal of non-ministerial members of Departments be amended to provide, with or without the adoption of the ministerial concurrence proposed in paragraph 6, that they are appointed and removed either (i) by the Lieutenant Governor, acting on the advice and with the concurrence of the Council of Ministers, or (ii) by the Council of Ministers. 6. The political and practical aspects 6.1 Although practice will no doubt vary with the personal style of successive Chief Ministers, the present practice seems to be that initial discussions with Members of Tynwald on the possibility of their appointment as non- ministerial members of Government Departments are conducted by the Chief Minister. These discussions appear to emphasise both the appointment strategy of the Chief Minister and the wishes of the proposed appointee, with perhaps rather less emphasis on the wishes of the Minister of the Department in which the non-ministerial appointment is to be made. Similarly, when the proposals for non-ministerial appointments are put to the Council of Ministers, the Minister of the Department in which each non-ministerial appointment is proposed has only one voice in the Council, although no doubt one to which considerable weight would be attached. 6.2 It may be appropriate for the Minister to have a more formal role in the appointment of non-ministerial members of the Department, although it must 5 C/MGD/mlg be recognised that the appointment of non-ministerial members by the Council of Ministers does allow for a wider appreciation of the factors bearing on the whole range of appointments and for a variety of views to be expressed with authority. 6.3 Further matters would require to be considered if the Minister were to have a similar role in the removal of a non-ministerial member of the Department. So, for instance, were a Minister to recommend removal but the recommendation was not accepted by the Council of Ministers, this would be likely to have a detrimental effect on the continuing working relationship between the Minister and the member. It would not be entirely satisfactory to resolve this by giving the member of the Department concerned an opportunity to present his or her view to either the Chief Minister or the Council of Ministers before a decision was taken on the removal from office. Such a procedure would also have the potential of damaging the continuing working relationship of the Minister and Member. It might also give a certain credence to the misplaced notion that the rights of non-ministerial members of Government Departments are analogous to the statutory rights of employees. Such an analogy does not take sufficient account of the public interest dimension in the appointment and removal of parliamentarians from Government posts. 6.4 We do, however, think that there should be an enhanced formal role for the Minister in respect of the appointment and removal of non-ministerial members of the Department. One approach would be to provide non- statutory guidelines which would require the concurrence of the Minister 6 C/MGD/mig before the appointment or removal of an non-ministerial member of the Department. 6.5 We recommend that consideration should be given to including within the statutory procedure for the appointment and removal of a non-ministerial member of a Department that the appointment and removal only be made by the Council of Ministers after consultation with the Minister of the Department. This would require a formal request to the Minister for a view and a formal consideration of the view when it was received. The political expectation would be that the advice of the Minister would normally be accepted; if it were not, the Minister would have the ultimate sanction of resignation. DELEGATION OF RESPONSIBILITIES TO NON-MINISTERIAL MEMBERS OF GOVERNMENT DEPARTMENTS 7. The delegation of responsibilities 7.1 The evidence which we have received demonstrates that the delegation of responsibilities by a Minister to the non-ministerial members of a Department, other than when the Minister is absent from the Island, varies widely between Departments. In some Departments there is virtually no delegation and in others extensive delegation. Furthermore, the nature of the delegation also vary. In some cases delegation is perceived as being subject to a de facto ministerial veto. This is, for instance, considered to be the case in the 7 C/MGD/mlg Department of Trade and Industry, where for certain procedures there is a time lapse between a decision and its implementation which is felt would allow for ministerial intervention.