The new rules
Friday 16 December 2016
For the last two decades, the appointment of non-executive chairs and members of the boards of public bodies has involved a balance of two principles. First, that ministers should be fully involved and decide whom to appoint. Second, that a list of appointable candidates should be drawn up on a basis of merit and on fair and equal terms for all.
These Nolan principles, named after the first chair of the Committee on Standards in Public Life, have guided public appointments since 1995.
The practical application of these principles has developed considerably since then, being streamlined and made more proportionate by Sir David Normington, my predecessor as Commissioner for Public Appointments. Further far-reaching changes are now being introduced to the Governance Code by ministers. This follows a review of public appointments in 2015-16 by Sir Gerry Grimstone, who recommended a shift to a more self-regulatory system in which ministers would play a more central part, underpinned by greater transparency. This provoked considerable controversy and a critical report by the Public Administration and Constitutional Affairs Committee of the Commons which argued that the safeguards built up by Lord Nolan were being demolished.
On appointment in spring 2016, the Government had already accepted the thrust of the Grimstone proposals and that formed the starting point and framework for my subsequent discussions with the Government in a process understandably lengthened by the Brexit referendum, the change of Prime Minister and minister responsible for public appointments, and the need for consultation within Whitehall. The discussions with, first, Matthew Hancock and, then, Chris Skidmore, and their Cabinet Office officials, have been harmonious and constructive over what is now the Government’s Code, not mine, underpinned by a joint commitment to a fair and open process.
I fully accept that ministers should have a central role in agreeing the job and person specifications, in suggesting possible candidates, in reviewing short lists and in making the final decision. Ministers are, after all, accountable for appointments which should not be taken by groups of wise men or women, let alone by myself as Commissioner, whose role is to be a regulator. However, to provide public assurance, to avoid charges of cronyism and to encourage a wide range of candidates, the checks and balances created by the Nolan report remain crucial and desirable. Merit can seem an elusive concept but it is essential that candidates are assessed on the same basis to judge whether they are appointable.
There is no one means of achieving this balance. But the principles are clear. In my discussions since May, not all my suggestions have been accepted but some significant improvements on the original proposals have been agreed. In particular, the key Nolan principle of fairness- stating that ‘selection processes should be fair, impartial and each candidate must be assessed against the same criteria for the role in question’– has been reinserted in the Code, having been left out of the Grimstone review. Moreover, the shift in powers from the Commissioner to ministers over key features of the process has been qualified. So instead of the Commissioner merely being notified of cases when ministers want an exemption from the normal process of competition or if they want to appoint someone judged unappointable by an interview panel, they will now have to consult me in good time before an announcement is made to allow me to express my views.
The most important change brought about by the government in the Governance Code is the abolition of Public Appointment Assessors ( PAAs), people with a long and distinguished career in the public, private and voluntary sectors, who were appointed by the Commissioner to chair the panels for high profile appointments. These mainly cover the chairs of public bodies and public office holders, what are now described as ‘significant appointments’. As I have found, PAAs do an excellent and largely under-appreciated job in overseeing the competitions, chairing the appointment panels and preparing balanced reports of recommendations for ministers.
In future, independent assurance in competitions for these ‘significant appointments’ will be provided by Senior Independent Panel Members ( Senior IPMs) appointed by ministers, but, as Commissioner, I will be consulted on this ahead of the process starting. The government has made clear that these Senior IPMs must be individuals who are familiar with senior recruitment, the Public Appointments Principles and the Governance Code.They should also be independent of the department and of the body concerned and should not be currently politically active. At present, the government proposes to define the latter as not being employed by a party, holding a significant office in a party, standing as a candidate, having publicly spoken on behalf of a party, or having made significant loans or donations to a party ( above the £7,500 annual level published by the Electoral Commission). For these Senior IPMs alone, I would have favoured a tighter definition of having no political party links at all. The new Code does, however, provide scope for consultation about the particular individuals proposed as Senior IPMs.
I hope and expect a number of former PAAs to be asked to be Senior IPMs under the new system.
The new arrangements are being underpinned by a more transparent system as recommended in the Grimstone report whereby everyone can follow the progress of a competition and see who is on the interview/assessment panel, via a web-tracker on the Cabinet Office website. I am grateful for the efforts of the Cabinet Office in developing this important innovation which started to go live on December 1st, 2016. I am hopeful that greater transparency will improve the timeliness and quality of data about appointments.
I have focussed so far on the formal rules in the Code but what will really matter is the spirit with which ministers and departments interpret and implement this framework. There are bound to be glitches and transitional problems as departments deal with the unfamiliar. I am, however, encouraged by my experience so far under the existing Code. There have been relatively few problems and I hope this will continue under the different, new Code.
We will have, in particular, to see how consultation by ministers works, as opposed to the present requirement for the Commissioner to give his consent. The changes I have negotiated will permit a two stage process of, first, private consultation and discussion with departments; and, then second, if no agreement can be reached, I reserve the right to express my doubts publicly and to inform the relevant Commons Select Committees.
Both under the old and the new Code, there are questions about relations between sponsoring departments and public bodies, notably over consultations with chairs over appointing non-executive members of Boards to ensure a desirable balance of skills. Moreover, reappointments can sometimes be done in a messy way without the mandated appraisal of the performance of Board members. There is also still some way to go to ensure timely succession planning well ahead of a vacancy arising. Last minute, or even post-vacancy, appointments can be just as disruptive as when competitions take too long.
These changes of procedure are ultimately secondary to generating a greater supply of high quality, and above all, more diverse candidates for public appointments- which I will write much more about in a future blog. One of my roles is to champion greater diversity, even though I can only recommend, and have few levers, since the real power lies with ministers and departments. But despite good intentions, some improvements in application processes, and a marked and sustained rise in the number of women joining the Boards of public bodies, too many people from BAME or disabled backgrounds feel excluded from public appointments.
I have had roughly fifteen meetings with groups and individuals with experience in gender, ethnic and disabled issues. I have already made some suggestions to ministers about how to improve and open up the appointments process, and I know they want to make progress here.
The real test, however, of public confidence in the appointments process will be the outcomes.