Written evidence submitted by the Commissioner for Public Appointments (QPD0003)

1. The Commissioner for Public Appointments (the “Commissioner”) is providing this evidence to address the aspect of the Committee’s inquiry that is considering how the chairs of public bodies are appointed.

2. Under the Public Appointments Order in Council 2013 the Commissioner is responsible for regulating the appointment of the chairs and other Ministerially-appointed board members of public bodies that are within his remit (those listed in Schedule 2 to the Order).[1]

3. The Commissioner’s responsibilities are to promote economy, efficiency, effectiveness, diversity and equality of opportunity in the procedures for making these public appointments with the object of maintaining the principle of selection on merit. He does this principally by publishing a Code of Practice which those making public appointments must follow when making appointments.

4. The Code of Practice was substantially revised by the current Commissioner, Sir David Normington, in 2012 and a less process-focussed, more principles-based approach introduced. That approach has three core principles:-

• the requirement for fairness in selection processes,
• the principle of openness requiring information about roles, their requirements, and the selection process to be made public available; and
• an overriding principle of selection on merit – where Ministers are provided with a choice of high quality candidates, drawn from a strong and diverse field, whose skills, experience and qualities have been objectively judged by an independent panel to best meet the needs of the particular role in question.

5. The principle of giving Ministers a choice of the most meritorious candidates has been central to the public appointments system since the office of Commissioner for Public Appointments was created following the recommendations of the Nolan Committee in 1995.[2]

6. The Nolan Committee’s report considered the issue of appointments to ‘Quangos’ and concluded that “the ultimate responsibility for appointments should remain with Ministers” (paragraph 29) but that Ministers should discharge this responsibility within the framework that “all public appointments should be governed by the overriding principle of appointment on merit” (paragraph 35). The report also stressed the importance of an independent element on the selection committee or panel advising the Minister (paragraph 48).

7. In the current public appointments system a selection panel must be established to assess candidates objectively against the published selection criteria which will have been agreed with the relevant Minister. In the case of appointments to the Chairs of public bodies, that independent selection panel is chaired by a Public Appointments Assessor appointed by the Commissioner.

8. The Code of Practice sets out the input that Ministers may make to the appointment process. Given that responsibility for appointments ultimately rests with Ministers, the Code allows Ministers to play a full and active part in the early stages of a selection process (including agreeing the selection process, the selection criteria and the advertising strategy) and ensures they are kept informed of progress throughout. They are, however, not allowed to substitute their judgement for that of the selection panel and are therefore not permitted to add or remove candidates from the process.

9. At the end of the selection process the chair of the selection panel is required to produce a report of the process, confirming that it was conducted in accordance with the Code of Practice, and providing the relevant Minister with a list of those candidates that the panel believe have the necessary skills, experience and qualities to undertake the role. The Minister is then able to choose who to appoint from this list of ‘appointable’ candidates and can take whatever factors they believe are relevant into consideration before deciding who to appoint.

Political activity

10. It has, therefore, always been possible, since the office of Commissioner for Public Appointments was established, for Ministers to appoint people with political backgrounds to the boards of public bodies. If a candidate can demonstrate to the selection panel that that they have the skills, experience and qualities necessary for the role, and if previous political activity or experience is no bar to doing that job well, it is possible for their name to go forward to the Minister as one of those who can be appointed.

11. The current Code of Practice for Ministerial Appointments to Public Bodies recognises this. It says (at paragraph 4.2):-

“Political activity in itself is no bar to appointment. To allow the panel to explore such activity with the candidates in the context of their ability to perform in the role, candidates should declare any significant political activity (which includes holding office, public speaking, making a recordable donation, or candidature for election) which they have undertaken in the last five years. This information will only be provided to the panel for those applicants selected for interview.”

12. The number of people appointed to public appointments who declare a political affiliation is relatively low and has declined recently as the table below shows. On average just over 12% of public appointees have declared a political affiliation over the past ten years (although the figure has been as high as 20%). In 2012-13 only 9% declared an affiliation – 98 out of the 1087 regulated public appointments in that year.

13. A number of important public body chair roles are also subject to a pre-appointment hearing by a Parliamentary Select Committee. In the Commissioner’s view this additional stage in the appointment process should provide an additional check on the ability of someone with a political background to act with the required independence, particularly where the role in question requires somebody who is able to act demonstrably independently of the executive, for example where they are regulating something the executive does.

Reappointments

14. The process described above relates to the appointment of new chairs (or members) of public bodies. It has always been the case that the decision as to whether to reappoint an incumbent chair or member of a board (or extend their term of office) is entirely one for the relevant Minister, provided that no reappointment is made without a satisfactory performance appraisal and that no individual serves in any one post for more than ten years.

15. The Commissioner also has the power on request to approve the interim appointment of a chair or member of a public body without a fair and open competition where he believes it would be in the public interest to do so. In nearly all cases these would be short term appointments (up to a maximum of around two years) and are only usually agreed in exceptional circumstances (for example, whilst a permanent chair is recruited or as a transitional or emergency measure).

Recent controversy

16. Finally, the recent controversies following the decision of the Secretary of State of Education not to reappoint the Chair of OFSTED have undoubtedly been blown out of proportion. However, the risk is that they feed a public perception that appointments are increasingly politicised and put off people of talent from applying. While the facts do not support the perception of politicisation, it is important that the Government is aware of the risks and does everything possible to reinforce the view that merit and talent, not political affiliation, are the key to a successful public appointment.

April 2014