Procedures Committee, 07 Dec 2004

Meeting date: Tuesday, December 7, 2004

Official Report 218KB pdf

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Commissioner for Public Appointments

Agenda item 3 is the start of our inquiry relating to the commissioner for public appointments. We are examining the process that the Parliament must put in place in order to consider the documents that the commissioner is required to submit under the Public Appointments and Public Bodies etc (Scotland) Act 2003. I am pleased to welcome Karen Carlton, who is the first commissioner for public appointments in Scotland. We have received an advance copy of your submission, which is helpful to committee members. I invite you to make some brief comments before we proceed to questions.

I am here today to inform the committee's work on developing procedures for parliamentary consideration of consultation documents and reports. I would like to take a few moments to outline to the committee the statutory consultations with which I will engage with the Parliament, the reports of non-compliance that I may need to bring to the Parliament and my views on the options available to the Parliament in order for it to address both issues.

The legislation that created my post outlines four key requirements of the commissioner. The first is for the commissioner to prepare, publish and revise a code of practice for ministerial appointments to public bodies in Scotland, in consultation with the Parliament, and to do so in two stages. First, an interim code of practice must be produced. Until my appointment in June this year, ministerial appointments to public bodies in Scotland were regulated by the code of practice produced by the commissioner for public appointments, Dame Rennie Fritchie. To comply with the requirement to produce a code of practice and to ensure that, while we prepare the new Scottish code, we have a framework in place to guide the appointments process, I plan to adopt Dame Rennie's code as the interim code for Scotland. I am currently consulting with the Parliament on the adoption of this interim code.

My next consultation will be about the adoption of the new Scottish code. I anticipate that the new code will depart from the interim code, reflecting the processes that have been adopted in Scotland and the requirements of our legislation. For example, I anticipate that our code will be more specific about the methods and practices to be used in making appointments—how vacancies are published and how applications are encouraged. It will be a detailed document, designed to ensure that the people of Scotland are served by a fair, open and transparent public appointments process that commands confidence. The code will require support from everyone involved in making ministerial appointments, so I would welcome active participation in the consultation process.

The note prepared for the committee by the senior assistant clerk outlines the options that are open to Parliament for engaging in consultation about the code of practice and the equal opportunities strategy, which is the second requirement placed on me by the legislation. Paragraph 10 of the note describes the formal mechanism for informing the Parliament about a consultation—by laying the consultation document before Parliament. I favour that option for informing the Parliament about consultation on the code and the equal opportunities strategy. The formal nature of the act of laying documents before Parliament reinforces the importance of the statutory consultation and provides a public record of it.

I do not think that the convention that documents are not made publicly available prior to being laid before Parliament is necessarily restrictive. On the dates on which the code and equal opportunities strategy are laid before Parliament, I would forward copies to others who are involved in the consultation and post a copy on the office of the commissioner for public appointments in Scotland website.

An alternative method of informing Parliament would be for receipt of the consultation documents to be recorded in section H of the Business Bulletin, as described in paragraph 12 of the note. That does not appear to give the same significance to the consultation process as the formal laying of documents before Parliament, but it would be acceptable. The third option, which is outlined in paragraph 11 of the note, appears to be used for issues that need to be brought before members urgently. Although I regard consultation about the code of practice and equal opportunities strategy as important, I consider that consultation is best effected in a measured way and need not be addressed urgently.

On consulting Parliament, option 1 in the note suggests informing members about the consultation document via the Business Bulletin, but that might mean that, although members are informed, few are active in the consultation. A member might wish to lodge a motion to make their views known, but the Parliamentary Bureau might decide that the motion should not be debated. Option 2 is for a mandatory debate, but that would give one member the power to hold up the consultation process. Option 3 is for a debate on the consultation, but that would require parliamentary time, which could be devoted to more pressing matters. Moreover, there is doubt about who would lodge the motion for debate.

The most suitable way of holding meaningful consultation with the Parliament as a whole is through a lead committee, as outlined in paragraphs 18 to 20 of the note. That would offer all members the opportunity to comment without overburdening the extremely busy parliamentary timetable. Members of the lead committee would build up a degree of knowledge about the public appointments process, which would be invaluable when considering revisions to the code, the equal opportunities strategy and non-compliance with the code. I have considered which committee should lead the consultation on public appointments issues. The consultation that preceded the passing of the Public Appointments and Public Bodies etc (Scotland) Act 2003 suggested that a public appointments committee should be established, but I believe that that is no longer a viable option due to the pressure of parliamentary business and the fact that the workload for such a committee is unlikely to be high.

I ask the Procedures Committee to consider extending the remit of the Standards Committee to include public appointments. The Parliament might consider that to be appropriate, as we are dealing with the standards by which people are appointed to the boards of public bodies. The Standards Committee would lead the consultation about the code that governs public appointments and the consultation about the strategy to ensure equality of opportunity in the attraction and appointment of candidates.

The legislation also requires me to report to the Parliament any case in which the code of practice has been materially breached and Scottish ministers have failed, or are likely to fail, to act on that breach. Examples of the type of action that I may require to report to Parliament include unwillingness to follow the commissioner's code, interference with a particular appointments round and appointment of a candidate who has failed to demonstrate that he or she is the most suitable candidate for the post. Again, I think that the most suitable method of addressing such breaches is through a lead committee and that it would be appropriate for the committee that I consult about the code and the equal opportunities strategy to consider cases of non-compliance with the code. The Standards Committee has in place procedures for breaches of the code of conduct for MSPs and those procedures could be adapted to deal with breaches by ministers in failing to address non-compliance with the code of practice. If the Standards Committee becomes the lead committee for the consultation, its members will build up a body of knowledge about the public appointments process, which will be invaluable when they consider breaches of the code.

On informing the Parliament about material breaches of the code of practice, I recommend that reports are not laid before Parliament but given to the lead committee and considered in private. There are three reasons why I recommend privacy. First, such reports are likely to contain personal information about the people who are involved in the appointments round. Secondly, if the person appointed is a suitable candidate, even though inappropriate procedures were used to make the appointment, confidence in the person could be damaged if information about the appointments process is communicated to the full Parliament. Finally, confidence in the public appointments process could be compromised.

However, in the interests of openness and transparency, I believe that a summary of the case and findings, highlighting the process followed rather than the individual appointed, could be published by the Standards Committee, were it to become the lead committee, and in my annual report. I recognise that reporting to a committee in that way on a breach of the code would require arrangements to be in place should I need to report on an appointments round during the summer recess.

In summary, I consider the most suitable method of consulting the Parliament to be via the laying before Parliament of a consultation document that is referred to a lead committee for consideration and I believe that reports of material breaches of the commissioner's code of practice should be made directly to the same lead committee.

Thank you for that extremely helpful opening statement.

I have questions about the role of the Standards Committee and about the extent to which you have been able to liaise with that committee about any role that it might have in future. How will it be clear to people who might wish to make a complaint about an appointments process that they should go to the commissioner rather than appealing straight to the committee? Do you think that any work will be done to ensure that people do not go away with that sort of misapprehension?

I shall answer the second question first. No one would appeal directly to the committee, whichever lead committee were chosen. The process is quite clear. We already have a complaints process. That process will be detailed on my website once the website is finalised. Any complaint that I referred to the committee would have been thoroughly investigated by me in advance, so I would be the first port of call for any complainant, whether a member of the panel or an applicant.

If anybody went directly to the committee, they would obviously be referred straight back to you.

Absolutely.

The answer to the first question that you asked is no, because I thought it inappropriate to investigate what the Standards Committee might do until I had made my proposal to the Procedures Committee today.

Thank you for providing a copy of your submission. In the final sentence of your paragraph on the interim code of practice, you say:

"I am currently consulting with the Parliament about the adoption of this interim code."

What is the relationship between the procedure for adopting the interim code and the procedure that you outline later for adopting the new Scottish code?

I do not think that there is any strong relationship. The adoption of an interim code is a measure that must be taken, but in the absence of any formal procedure to consult the Parliament, the Presiding Officer is consulting the parties and a motion has been lodged by the Deputy Presiding Officer for adoption of the interim code. However, I would not expect that process to be mirrored when we go into the full consultation on the new Scottish code and on the equal opportunities strategy.

My next comment is on your feeling that consulting via committee would enable consultation with the whole Parliament. Could you outline how you see that working?

My understanding is that any member can contribute to a consultation by the committee and that all members would be informed through the Business Bulletin that the consultation was happening.

Do you envisage the committee producing a final report on that consultation?

I would hope so. I would hope that the committee would produce recommendations.

Would one option be for the Parliament to debate the report, with the report being proposed, as committee reports are, by the convener of the committee? Might that allow the Parliament to have a chance to give the clear and unambiguous endorsement of the code that was envisaged at stage 3 of the bill? Given that several Procedures Committee reports have been discussed by the Parliament but have taken only about 15 minutes of parliamentary time, might that be a way of ensuring that there is proper parliamentary scrutiny by the committee, followed by an unambiguous endorsement by the Parliament of the results of that scrutiny?

My understanding is that that would be a decision for the Parliamentary Bureau. However, I would welcome the kind of debate that you have described, because I could only be in favour of an unambiguous endorsement of my code of practice by the whole Parliament.

The suggestions that you make are eminently sensible and I share your view that the Parliament as a whole should endorse the code at some point on a motion from the convener of the lead committee. Mark Ballard is right that that does not need to be a long debate, but it needs to happen to ensure that the Parliament has ownership of the code that it is setting in place. I am content with the proposals that you have outlined; they make sense to me. As a former member of the Standards Committee, I can see how they would fit and I am happy to support them.

When do you anticipate publishing your draft code and laying it before the Parliament?

We have a timetable in place. Given the parliamentary recesses, the most sensible time to produce it seems to be immediately after the Easter recess, so the plan is to publish it in the week of 11 April. I hope that the consultation might be effected within a couple of months, but that might not be possible—I am liaising with one or two colleagues on that at the moment. When the United Kingdom commissioner's code was revised, the process took a year, but I hope that the process in this case will not take as long as that. We have started the process. We are doing a lot of the early consultation with the independent assessors, who operate on my behalf daily, so I hope that, when I bring the code to the Parliament, it will be a robust document that has benefited from scrutiny. Therefore, I hope to have a consultation period of about two months.

Do you have any concerns about the laying of non-compliance reports during parliamentary recesses, particularly the long summer recess? There are times when the office of the clerk is not open for the formal laying of documents, although such times are relatively few, so that should not cause too much of a problem.

That could be an issue, although some of the appointments rounds can last between six and nine months—they are not effected quickly. However, if I was aware of an issue, whatever lead committee is established might be required to be reconvened in an emergency over the summer recess.

I thank Karen Carlton for her evidence. If all witnesses were as helpful, we would have a much easier time.

We must now consider the options for parliamentary consideration of statutory consultations and reports by the commissioner. There is a note on the matter from the senior assistant clerk, to which Karen Carlton referred in her evidence. I welcome any comments, but I think that what Karen Gillon said is right—the public appointments commissioner's proposals seem to make eminent sense.

We should stipulate wherever we can that the Parliament should debate the lead committee's report. That should be in our report. I am not sure what the standing orders say about recalling committees. I think that it is possible, but we should check that that is the case, because an emergency might arise during the summer recess that would mean that a committee would have to be recalled.

Committees can meet during the recess. It is not normal, but it happens. It certainly happened that one committee of which I was a member had to have an extra meeting before the start of the summer term to complete some business on time.

Paragraph 20 of the note by the senior assistant clerk mentions amending the standing orders. Would we need a new procedure for dealing with consultations? If, as well as getting into the issue of the code, we have to come up with a new procedure in standing orders for dealing with consultations, that seems a complex matter.

We are talking about dealing with statutory consultations where acts of the Scottish Parliament require consultation with the Parliament on a document. We would probably want a procedure that would apply to other statutory consultations. The logical way in which to deal with statutory consultations is probably to start with the laying of the document. The document would then be referred to the bureau, which would determine how to deal with it.

How does that fit in with the timescale that was discussed? The proposal is to have the new Scottish code produced by the end of the Easter recess. Would we have time between now and Easter to discuss new standing orders and then get a debating slot in the chamber to allow the changes to be made?

Given that we are talking about relatively straightforward changes, I think that we would be able to persuade the Executive to give us a short debate at some point. We would not necessarily have to use our committee time. That should be possible, as we would be implementing Executive legislation. I am keen to put a strong case to the Minister for Parliamentary Business that we be given a short debating slot on an appropriate day to get the changes through.

Would that be the only standing orders change?

The other one would be to extend the remit of the Standards Committee to include public appointments, but, again, that is relatively straightforward.

Would we need to check what the standing orders said about recalling committees?

I am certain that committees can meet during the recess. In fact, I am sure that this committee met during the recess once, because we wanted to deal with changes to standing orders relating to First Minister's question time. I think that we had a meeting a week before the Parliament resumed. I am pretty certain that committees can meet during the recess, but we will obviously check that.

Given the timescale, would it be appropriate for us to write now to the Standards Committee and to the Minister for Parliamentary Business to let them know what we are intending and to get their views so that we can press ahead early in the new year?

I was intending to recommend that we inform the minister and that we write to the convener of the Standards Committee suggesting that that committee adopt the commissioner's proposal. I hope that we will have a draft report for our next meeting. I do not think that we have to wait until January.

I am not sure that I could commit to that timescale.

It would be appropriate to give the Standards Committee time to consider the options.

I was hoping to be able to consider our draft report along with any response that we had received from the minister and the Standards Committee.

Paragraph 27 states:

"One option would be for the Bureau to refer the report to a committee for consideration and the preparation of a response."

Would that be covered by an extension of the remit of the Standards Committee to include dealing with breaches of the code? Is there a decision to be made or has the decision already been made, in that we have agreed that the Standards Committee will be responsible?

If we extend the remit of the Standards Committee to include public appointments, I do not think that reports of non-compliance would have to be referred individually. We would want the standing orders to make it clear that non-compliance reports would go straight to the Standards Committee.

The impression given in paragraph 27 is that the bureau would still be referring things on a piecemeal basis.

My preference is that the standing orders would state that non-compliance reports would go directly to the Standards Committee, partly because of the confidentiality issues that the commissioner mentioned, which are important. The reports need to be treated on the same basis as standards commissioner reports are and go straight to the Standards Committee for consideration.

Will we recommend that a report on the draft code be debated by Parliament? Do we agree to adopt what the commissioner is suggesting and write to the Standards Committee to seek its view? Do we agree to write to the appropriate minister, who I presume would be the Minister for Parliamentary Business, although perhaps it is the Minister for Finance and Public Service Reform?

Members indicated agreement.