Due Dilligence Matters
Tuesday 9 January 2018
The Toby Young affair is essentially about politics, rather than the rules and procedures of the public appointments process. Yet there remains the question: are there flaws in the process which allowed the debacle to happen, especially in the area of ever-present social media? Without any doubt this row makes a strong case for more extensive due diligence inquiries by departments in any case of doubt about a candidate.
Appointments to members of boards, as opposed to chairs, are largely self-regulated by departments subject to the Government’s Governance Code which I monitor as a regulator. What this means is that vacancies for posts are publicly advertised after the panel agrees a recruitment strategy with ministers, candidates apply and can also be suggested by ministers and special advisers. A short list is then drawn up in relation to the criteria in the advert and interviews are undertaken by advisory assessment panels involving a senior official from the department and an independent member. In the case of Mr Young, the interview panel was chaired by Sir Michael Barber, chair of the Office for Students.
The panel recommended ten candidates as being appointable for the general non-executive posts, including Mr Young. The recommendation of Mr Young was unqualified and very positive. Ministers made clear they were looking for a wide range of experience in addition to the direct higher education background possessed by a majority of the board. Five candidates were chosen and appointed by ministers. This is in addition to the nine board members previously announced and the position earmarked for candidates with student experience,
As Commissioner I only become involved in such appointments of members of boards later, usually, if there is controversy or a complaint. I first heard about Mr Young’s appointment on January 1st and since then my team has been looking at whether it was consistent with the Code.
The changes introduced last year to the Government’s Governance Code giving a greater formal role to ministers made no difference to the choice of Mr Young. Judged by the report of the interview panel, which I asked to see, the procedures have been followed in the formal sense of a fair and open competition. Mr Young also correctly disclosed relevant political activity, notably speaking and canvassing on behalf of a party and candidate, in his case the Conservatives, as well as his relevant educational activities.
The question is whether this was sufficient and whether these procedures are adequate given the strong criticisms expressed in the media and in the Commons on Monday from all sides including by senior Conservative chairs of select committees. The report of the interview panel to ministers made no mention of Mr Young’s history of controversial comments and use of social media. As Sarah Wollaston, chair of the Health Committee and the Liaison Committee of select committee chairs, pointed out yesterday in the Commons; ‘When we apply for jobs, we all say whether or not there is anything in our past that could cause embarrassment’.
Candidates should certainly be asked this question.
Jo Johnson, the then Minister for Universities, Science, Research and Innovation, said that ‘neither he nor the department were aware of the offensive tweets before the appointment was made, but there is nothing unusual about that. Many of the remarks were made years– in some cases, decades- ago and it is not reasonable or proportionate for the Government to trawl through tens of thousands of tweets over many years when making public appointments’.
The problem with that view is that in Mr Young’s case, some of his offensive tweets were unearthed publicly almost as soon as his appointment was announced, and had been the subject of media coverage in the past.
Moreover, the Governance Code requires those holding public office to uphold the Nolan principles of public life and to act in accordance with Government policies on equality and diversity. But how far back should you go? You don’t want to have a hard and fast rule that says people in public life can never have said or written anything controversial, or unpopular, and, maybe, there should be some kind of practical statute of limitation for the sins of youth and college years. But the nature and general unacceptability of the comments also matters, as well as the more recent timing, and that ultimately did for Mr Young.
The main lesson of this episode is that department and interview panels should not just focus on a candidate’s specific suitability for post. They should also press candidates on the potential embarrassment question, as they are already do on conflicts of interest. Any additional points should be included in the material sent to ministers who make the final choice.
Ministers have every right to expect that it be undertaken by their officials– not least, as Mr Johnson found in the Commons on Monday, the first Public Appointment Principle states: ‘The ultimate responsibility for appointments and thus the selection of those appointed rests with ministers who are accountable to Parliament for their decisions and actions’.
Ministerial responsibility means, of course, taking the criticism when an appointment proves to be controversial, as in this case.
Due diligence matters and often saves later difficulties.