Pre-Valedictory speech to the UCL Constitution Unit on Public Appointments

Blog post by Peter Riddell

Thursday 29 April 2021

Public appointments matter since arms length bodies are responsible for running, regulating or advising on large swathes of British life – from national museums and galleries via prisons, charities, social mobility and human rights to scientific research and the NHS. My role as Commissioner for Public Appointments over the past five years has been to oversee appointments made by ministers to non-executive positions on the boards of more than 300 UK bodies and 55 Welsh Government bodies (since I am also Commissioner for the Welsh Government in Cardiff). This works out at between 1,800 and 2,200 appointments and reappointments a year (though fell to just under 1,600 in the politically disrupted year of 2019-20), I don’t make any appointments myself – my concern is with the process of appointment and to ensure both fair treatment for applicants and to encourage as wide a range of applicants as possible to apply.

My overall experience has been positive though with undeniable frustrations. The changes introduced in January 2017 following the Grimstone review the previous year altered the Commissioner’s role from being an active participant in the process to being a regulator and, as Sir David Normington, my predecessor, correctly forecast, meant that my influence would have to be exercised more publicly. I use the word influence since the real power to make appointments has always lain with ministers. Before the Grimstone review the Commissioner’s role was more overt; since then it has been more indirect but it has still existed- partly thanks to some important changes I negotiated between the publication of the review in spring 2016 and the completion of the Government’s new Governance Code (replacing the Commissioner-owned Code) at the end of that year: notably embodying the concept of fairness in the Code and ensuring that my office is consulted at key stages of the appointments process and can see relevant papers to carry out investigations.

The process has been satisfactory for the vast majority of those involved – even though it has taken longer on average, sometimes much longer, than the Grimstone three month aspiration between the closure of applications and announcement, as my office’s thematic review pointed out in 2019. These delays risk alienating candidates and discouraging strong potential appointees from applying. Ministers need to pay more attention to the concerns of candidates and those appointed, often those with the private sector experience they want to attract.

Overall, the handling of appointments has been improved by a new system of annual compliance and audit. This involves self-assessments by departments which make the appointments, audit visits and an assessment followed by contacts between me and
Permanent Secretaries. The aim has been to create a spirit of cooperation and a culture of improvement, with some success judging by our latest audit. That has been a largely unheralded positive achievement, entirely due to the efforts of my excellent two person team.

The other main advance has been in my role as champion of diversity, an important theme of our annual audits. I have been active in supporting and encouraging initiatives to broaden the range of candidates applying and being appointed. In the last reporting year the number of women appointed to the boards of public bodies was more than 50 percent of the total – though still only a third of chairs – while ethnic minorities accounted for 15 percent. Those declaring disabilities are still less than 7 percent and much more needs to be done to implement the proposals made two and a half years ago by Lord Holmes of Richmond. Overall, thanks to some high quality candidates and the commitment of departments, the diversity performance of public bodies is much better than in the private and voluntary sectors. The Cabinet Office is committed to updating its Diversity Action Plan with a broader definition of diversity looking also at a range of views and social and geographical diversity. I hope this broader definition will not undermine the long-established goals and that seeking a range of views will not mean just views acceptable to ministers.

Any revised diversity and inclusion strategy also needs to consider remuneration. My office recently published a thematic review which showed not only that a half of appointments are not paid at all but there is an inconsistent relationship between time commitment and pay. The variations are quite startling but offering financial support may help reduce some of the disincentives to disadvantaged groups from applying.

The experience of Covid has also offered a way to achieve more diversity and inclusion. Remote meetings have not only been successfully adopted across Whitehall for interviewing and appointing but have become the norm common for the boards of public bodies. I believe that, post-Covid, boards should consider half and half physical and remote meetings of boards during a year – not hybrid meetings since those present in the room always have an advantage over those joining remotely. Such a mixed approach reduces the inconvenience and cost of being board members for many currently underrepresented groups such as the disabled, those with caring responsibilities and people who live a long way from London and other big centres. There is strong interest, and support, for this approach in Whitehall which could boost diversity and inclusion on all definitions.

I have wanted to stress these positive aspects of the current system since they have tended to be overshadowed by the arguments over politicisation – a term which confuses more than it clarifies. There are two aspects – first, who does the appointing; and, second, who is appointed. The original Nolan report 26 years ago summed up the essence of the process; ‘responsibility for appointments should remain with ministers, advised by committees which include independent members’. It has therefore been inherently political. Appointment on merit has always been qualified by ministerial choice. Contrary to the assertions of some, there has never been a so-called golden age when appointments were made in a non-political way just on merit. Similarly, it has never been an unconstrained system of political patronage. The process of competition – judging applications in relation to the published job and person specifications – is about competence. It does not produce a single recommended candidate; it is about presenting a list of appointable candidates to ministers for a final decision. Critics claim this is a charade since politicians allegedly choose whom they want. That is certainly what some, but not all, ministers and special advisers would like. It is frustrating that I cannot prove that this view is a gross over-simplification but my experience has shown that the advisory interview panels do act in a robust way in judging who is appointable and who not. Allies of ministers are not always assessed as appointable. Some are not even interviewed though panels have to explain to ministers why a recommended candidate is not worth interviewing. In many cases, of course people suggested by ministers are judged appointable but it is not automatic.

Over the past 18 months, the present Government has actively sought to appoint allies to the boards of public bodies. This is not the first time this has happened, Such attempts tend to go in waves. And there is nothing in the Code, or, indeed, past practice, against appointing people with political links. Many former ministers have proved to be effective chairs of public bodies. It is perfectly understandable that ministers want to appoint allies and those who agree with their goals to executive arms length bodies. Past Labour as well as Conservative Governments have appointed people with clear party backgrounds and ties. What is different now is the breadth of the campaign and the close engagement of 10 Downing Street.

But just as political activity should not be a bar to appointment, so it should not be a qualification. We need a wide range of people and views on public body boards: pluralism rather than partisanship. The key should be whether or not someone is judged appointable. To put this in perspective, in recent years well under 10 percent of appointees have declared significant political activity – many of them members of locally based justice and health bodies. This is despite misleading headlines about high percentages of Labour supporters being appointed- assertions which are based solely on the share of the very small minority declaring political links and which ignore that the vast majority of appointees are, like the rest of the population, non-political.

The advisory interview panels are central to the integrity of the process and this is where I have been publicly expressing worries in recent months. Ministers are in a strong, even dominant, position in public appointments but some are now seeking to tilt the process even further to their advantage. First, there have been leaks that Number 10 favours certain candidates even before a competition starts. This matters mainly because it deters good candidates from putting their names forward – and there is anecdotal evidence of such a chilling effect. Ministers insist that they deplore such leaking but it has not stopped some of their advisers. Second, ministers have tried to undermine the independence of interview panels. For significant appointments, that is mainly the chairs of public bodies, a Senior Independent Panel Member is chosen after consultation with me- someone who has no ties to the sponsoring department and no reported party activity. For a long period this worked well and harmoniously. But in the past year there have been a few cases of ministers trying to appoint SIPMs such as Conservative peers who clearly breach this rule. Fortunately, official guidance has clarified the meaning of the Code. However, there have been cases of ministers seeking to pack interview panels – most blatantly in the case of the Office for Students but also in other cases by appointing non-executive members of their departmental boards who are political allies. This can weaken the independent element which the Nolan report emphasised. A further problem has been the proliferation of unregulated appointments made by ministers, as opposed to the list of regulated appointments in the Order in Council, available on my website. Some appointments – for instance, in response to the Covid pandemic, such as Kate Bingham’s role as head of the UK Vaccine Task Force are fully justified, and short-term reviews are rightly excluded from my remit. But there is uncertainty about the number and nature of these unregulated appointments and how they are made. For instance, there is an unclear balance between direct ministerial appointment to, and competition for, non-executive members of departmental boards whose character has recently changed substantially.

The question is balance. Ministers will always, and rightly, take the final decisions. Indeed, in some respects there is a case for them becoming more publicly accountable for appointments.
But some changes can, and should, be made to ensure a better balance:

1. Senior Independent Panel Members should have a specific duty of reporting to the Commissioner, as some already do informally, about the conduct of significant competitions.
2. The Commissioner should be consulted on the composition of all members of interview panels for all significant appointments to ensure a fair balance.
3. A limited number of regulators concerned with ethics, standards and appointments in public life should be appointed in a more independent manner and differently from the chairs and members of bodies with executive responsibilities, where ministers reasonably have the main say. Interview panels for such regulators should have a majority of fully independent members, while the relevant Commons committee could have a veto, as in the case of the Office for Budget Responsibility. (The issue of appointment is related to the question of whether the role and powers of such regulators should be enshrined in primary legislation as opposed to Orders in Council.)
4. Due diligence is central to public appointments, especially as almost all roles are part-time and remunerated accordingly. Therefore appointees are likely to have other roles and sources of income – both inevitable and desirable if busy people below retirement age are to be attracted. Due diligence needs to be transparent at all stages. Moreover, the growth of social media has meant that tweets and the like are crawled over and even the most casual tweet and retweet can be used in decision-making over an appointment. The key here is proportionality and relevance, keeping in mind the purpose of the body. Candidates must be given the chance to explain their public comments; this is how conflicts of interest can be managed. However, once appointed, it is reasonable that members of boards should constrain their public comments.
5. The provision in the Code for ministers to be able to appoint candidates judged unappointable by an interview panel should be removed. It has not so far been invoked and, if used, would undermine the credibility of anyone appointed.
6. It should become routine practice for Select Committees to consult the Commissioner over preferred candidates for designated pre-appointment hearings in order to receive an assessment about the integrity of the competition. At present, I do this occasionally on my own initiative. Similarly, committees ought to be more willing to summon Secretaries of State to explain and justify controversial selections, instead of just leaving the candidate on their own
7. Departments should publish a list of all their non-regulated appointments – the tsars, reviewers, envoys, taskforce leads – as well as their regulated appointments – in order to build greater transparency about who is doing this important work on behalf of the government, as well as how they are appointed.

None of these suggestions challenges the basic principles of the Governance Code, or the centrality of ministers in deciding who to appoint. But these ideas might help to ensure that competitions are seen to be fair and have a strong independent element. That is central to public confidence and credibility.

Rt Hon Peter Riddell 29 April 2021