Procedures Committee, 08 Feb 2006

Meeting date: Wednesday, February 8, 2006

Official Report 279KB pdf

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Crown Appointees

I welcome to the meeting John Scott, who will speak on behalf of the Scottish Parliamentary Corporate Body. He is supported by Paul Grice and Huw Williams.

I draw members' attention to a letter that we have just received from Tommy Sheridan, expressing some views on the issue, and to correspondence between me, on the committee's behalf, and the Presiding Officer, on the SPCB's behalf, on the question whether any assessment can be made of the quality of the performance of officials who seek reappointment.

John Scott will read a statement on behalf of the SPCB, after which we will fire in with questions.

Good morning. On behalf of the SPCB, I thank the committee for inviting me to give evidence. As you are probably aware, I have only recently taken over SPCB portfolio responsibility for commissioners.

The committee has made a lot of progress in finding a suitable mechanism for considering office-holders for reappointment. The SPCB is grateful for that work and concurs with the committee's view that a competitive reappointment process is not appropriate in the circumstances. We think that a non-competitive administrative procedure would be the most appropriate mechanism. It might aid the committee's consideration of the matter if I set out what the SPCB proposes to do if the committee recommends that option for parliamentary approval.

We suggest that the process of considering office-holders for reappointment should be based on an interview that will be overseen by an independent external assessor. The interview must be meaningful, challenging and fair to ensure that the office-holder is reappointed on merit. Office-holders would be thoroughly questioned on how they had discharged their functions, with due regard to their independence. After all, we must remember that in exercising their functions they are not under the direction or control of the Parliament or the Executive.

The assessment would take account of the annual reports that each office-holder is required under legislation to lay before Parliament and which provide details of the office-holder's activities. If a committee considered it appropriate to invite the office-holder to give evidence in support of the annual report, that evidence, which would be contained in the Official Report, would be available to the reappointment panel. As a result, to facilitate the gathering of evidence, we encourage committees, where appropriate, to consider inviting office-holders to give evidence.

On the question of who would be best placed to undertake such interviews and nominate an individual to the Parliament for reappointment, we consider that the final say in that respect is a matter for Parliament. However, we think that advising the Parliament on any nomination should be a parliamentary body's function and we feel that the SPCB is best placed to undertake the role with the assistance of an independent assessor. That will ensure that the process is rigorous, but fair, and that any such appointment should command the confidence of the Parliament and the public.

Why do we think that the SPCB should take on that role? As you are probably aware, the SPCB has statutory responsibilities in relation to office-holders, including setting their terms and conditions of employment and scrutinising their budget bids. Moreover, the Finance Committee's recent report on stage 2 of the 2006-07 budget process recommended that the SPCB be given a more defined role in approving each office-holder's budget. Overall, we consider that we are best placed to consider the ability and suitability of an office-holder to undertake a second term in office.

I am happy to take questions. I will do my best to answer them, but if I am unable to do so, I hope that the committee will not be upset if I seek the assistance of Paul Grice and Huw Williams.

The main thrust of the correspondence between George Reid and me related to the committee's desire—with, I think, one exception—not to have an open competition for an office-bearer's second stint. On the other hand, we did not want to raise any suspicions of a shoo-in. We simply want a system that will allow a rigorous evaluation of how well the person in question has done. We acknowledge that, as that person is independent, the circumstances are different from those that pertain to the assessment of an ordinary employee of an organisation, because that independence must be genuinely maintained. However, we have proposed that the SPCB should receive some outside advice on how well the person has done. How would your proposals meet our objective of having a rigorous appraisal of how well the person has done?

There is a rigorous set of proposals, and several safeguards would be in place. First, there would be an interview, which we would want to be overseen by an external assessor. We would also want the assessment process to take account of the annual reports that had been laid before Parliament. As I said, we would encourage parliamentary committees to scrutinise and question officials on the reports that they lay before Parliament.

As you said, it is important to remember that the officials are independent of Parliament; therefore, we are talking about an administrative procedure rather than evaluation of their work as commissioners. They are not statutorily open to challenge by us: that is the role that they enjoy in their appointment.

We all receive scrutiny—and, perhaps, judgment—of these officials daily in our postbags. Members receive caseloads, and commissioners and officials are sometimes referred to. The public sit in judgment; we sit in judgment or, at any rate, assessment; and so do the press. There is continuous evaluation of the commissioners while they are in office.

I have two questions, the first of which takes us back a step. It is a very open question, almost a preamble. In the past week, I have twice been surprised by comments on this subject—first, in the chamber, when Alex Neil commented on it; secondly, in conversation with a member of the Standards and Public Appointments Committee who referred to the process as "automatic reappointment". I have not heard that phrase being used in this committee or in the evidence. Would John Scott or anybody else like to comment on the fact that that phrase has been used in the chamber and in private conversation? Can what we are talking about be described in that way?

I am happy to discuss that with you. The process is not one of automatic reappointment; that is not a fair comment. However, the statute allows for the reappointment of officials and that is an obvious thing to do, given the term of their office, if they have conducted themselves satisfactorily while in office in the view of the Parliament and the public. That is where we are at in that regard. Perhaps Paul Grice can expand on that.

I endorse what John Scott has said. The word "automatic" has not featured anywhere in the corporate body's consideration. We accept that this is difficult. We went away and had a long, hard look at the process, respecting the fact that the committee has been wrestling with this difficult conundrum.

The officials in question are created to be independent, yet you want to have an idea of how they have performed before you give them another stint. We understand that and we share the same objectives. The difficulty that we keep coming up against is the fact that, every time we get round to performance appraisal, we hit up against that independence. How does one conduct such an appraisal? John Scott made some good points about that.

We have recently had to reconsider the appointment of the Scottish parliamentary standards commissioner because of the length of the appointment. As an outside observer, I assure you that the oversight of the independent assessor has been very strong and influential in the designing and putting of questions. I have seen the lines of questioning to be put, and there is nothing automatic about the appointment. There are a lot of testing questions.

Another of the issues that we have wrestled with is the fact that the Parliament has the power to remove an office-holder. The committee may want to reflect on the fact that the Parliament has chosen not to remove an office-holder—that must be weighed in the balance. The Parliament has that power, but has chosen not to exercise it. That needs to be factored into the equation.

John Scott made an important point on committees. There is evidence that some committees have scrutinised and questioned officials on their reports. Committees and the Parliament are in a strong position because most, if not all, office-holders are obliged to submit annual reports. That is an existing piece of machinery.

The Scottish Parliamentary Corporate Body felt that in building up a body of evidence over the duration of the office-holder's tenure, someone who came in at the end would probably struggle to demonstrate due process. The corporate body is trying to advise on a system in which the body of evidence will be built up over the three, four and five years. An annual evidence-taking session by a committee would be a very influential and important part of the process.

The key point is that the corporate body does not regard the process as automatic. If it becomes automatic, it becomes meaningless and contrary to what we are trying to achieve. We recognise the conundrum at the heart of the issue, which is difficult to resolve.

The committee is concerned to ensure that any process that we enter into is fair and as transparent as it possibly can be. That is why I, and others, have taken the view that the process must take into account an independent assessment of the incumbent's performance. Our suggestion of an independent assessor appears to have been knocked back on the grounds that the SPCB feels that it is best qualified to make such judgments. Can you offer us a reassurance about the optimal level of transparency in that process? Will others outside the SPCB understand the decision-making process?

We are going round and round the same subject. We believe that there is a lack of understanding or perhaps we are agreeing on the same thing. As Paul Grice said, an independent adviser is involved; Bernard Kingston is helping us with the reappointment of the standards commissioner.

We accept that an independent adviser is involved in conducting the exercise. My concern is to ensure that there is an independent element in the performance assessment of a candidate during the first period of his or her incumbency.

That is the conundrum to which Paul Grice referred. We cannot evaluate candidates' performance as such. It is not for the SPCB or the Parliament to sit in judgment on them because, under statute, we have given them the power to be independent.

No, you have given them a job description and criteria. Anyone can be assessed as to whether they have met the criteria for their job and that is all we are asking for. You are right to say that parliamentarians have had experience of every commissioner, either through individual casework or through their own experience. Members' views of the commissioners are shaded by that experience. That is why the committee, while supporting a non-competitive selection process, was very clear that the postholders' performance should be assessed independently by a management consultant. That is what we are asking for, although you claim that it would not be possible. In other lines of work, people are independently assessed. We cannot understand why the task is regarded as being difficult.

Perhaps Paul Grice might respond more eloquently than I would.

I do not agree with Karen Gillon's suggestion. If the Scottish Parliamentary Corporate Body is involved in the process, it will ensure that anything that is recommended is made to work. However, I would like to indicate a genuine misgiving. We understand what you say. In my job, I am involved in doing a lot of assessments; I myself am assessed. I am part of an organisation in which people are accountable to me and I am accountable to the Presiding Officer and the SPCB.

The difficulty is that Parliament has created commissioners as individuals. Of course, commissioners will be assessed on certain elements of their job description, such as those that relate to the governance of the organisation and financial management. However, in trying to imagine exactly how that process would work, the SPCB has met with some difficulty. For example, if we got some management consultants in, what would they actually do? Would they assess a commissioner's decision making? The SPCB—or any panel that you might recommend—would have the ability to consider the commissioner's financial stewardship and to read any comments that had been made by the committees. However, in terms of the commissioners' performance, what would be looked at? For example, the fundamental job of the Scottish information commissioner is to make decisions in relation to freedom of information requests. We struggled with how an independent person would assess that role.

We accept that the process has to be meaningful and pointed. However, the SPCB found it difficult to imagine exactly what an independent assessor or a management consultant would do that was meaningful, conformed to due process and respected the independent nature of the commissioner. We are not saying that that would be impossible to do; we are saying that we struggled with it. I think that it is honest to report those misgivings to the committee. In essence, we struggled to see how that would work.

I fail to see why this is so difficult. I was responsible for taking the Commissioner for Children and Young People (Scotland) Bill through the Parliament. The children's commissioner has a clear remit, against which I think that she could be independently assessed. She would be assessed not on the decisions that she makes—because she does not have individual cases to deal with—but on the work that she does. For example, she could be assessed on whether she had sought to engage with young people and promote their views and aspirations to the Parliament and to Scotland. That is her remit and what she would be assessed against.

Similarly, the standards commissioner would be assessed on the basis of whether he was doing his job independently and doing what he is supposed to do. He would not be assessed on the basis of the decisions that he makes because, ultimately, those decisions are taken by the Scottish Parliament's Standards and Public Appointments Committee rather than by the standards commissioner.

I cannot see why that concept is difficult for the SPCB to understand. Right now, I am being persuaded to move with Bruce McFee because I would want there to be an element of independent assessment in the process. If that cannot be done, I would have to move towards backing an open competitive selection process. I am not comfortable with leaving a group of parliamentarians—whose judgment will be skewed because of their personal experiences—to make the decisions in isolation without an independent assessment that would enable all members to see how the process has been conducted.

We are here to try to help you reach a view and are certainly not trying to impose our view on the Procedures Committee. There would be no benefit in that. However, it is a fundamental point that, as the commissioners are independent Crown appointees and are not subject to any functional direction or control by the Parliament or the Executive, it would not be appropriate to consider formal performance measures. That is the difficulty. Similarly, external management consultants would have no real power, in statute, to evaluate the commissioners.

On what basis would somebody not be reappointed? From what you have read out, it is clear that the reappointment process would be automatic because you cannot make an assessment based on an evaluation of the job against the criteria.

If you go back to what I said—

Hang on two seconds. You said that the Parliament has not chosen to remove somebody from office. That is true. However, members might have decided that although an office-holder's performance has not been significantly bad enough to remove them from office, it has not been significantly good enough to reappoint them. That is a different benchmark.

We would have to prove that office-holders had done something that merited their removal from office. Not to reappoint somebody is a lower benchmark; it is about how they have done their job. I am slightly concerned that you seem to suggest that you will not be able to evaluate office-holders independently and neither will anybody else, so they will just have to be reappointed—unless they interfere with money.

Since you are simplifying, it is my understanding that that is the position that we have created in the Parliament. That is the best advice that I have had from my officials on the matter, unless they want to tell me differently. We have created commissioners and officials and given them absolute powers. Of course, the office-holders are subject to judicial review; they are also subject to annual reports, on which they can be questioned by parliamentary committees or by Parliament itself.

Karen Gillon was drawing a distinction between assessing whether an office-holder had fulfilled the job description and criticising individual decisions. We cannot criticise individual decisions, whatever we may think of them, because that would impair an office-holder's independence. Is it possible to have a system in which an office-holder would be assessed against the job description rather than on their individual decisions? That seems to be a possible way forward.

I can sense your frustration and I apologise, because we genuinely want to help the committee. To some extent, the only way of finding out what is possible is to go ahead and do it: hire some people and see whether they can assess office-holders' performance. That might be important. If the committee thinks that that is the way ahead, we will defer to it. Whatever the committee decides, the corporate body—if it is to be part of the process, and that is a matter for the committee as well—will do its absolute best to make the process meaningful. Perhaps the only way of finding out whether it can be done is to invite somebody in to make a meaningful assessment of an office-holder's performance.

I take Karen Gillon's point about the objectives being set out in legislation; she knows much more than most about the children's commissioner. Some commissioners' offices—for example the commissioners for standards and FOI—are very heavily casework based. Nonetheless, we could try bringing in independent assessors to see whether that would work. However, we would have to think through what status such assessors would have. What would happen if they made criticisms? Would they be able to recommend a straight, "Yes, you should reappoint" or, "No, you shouldn't reappoint"? If they were to make a commentary on an office-holder's performance, what status would it have?

I do not want to waste the committee's time if it is not persuaded by the corporate body's concerns, even though they are genuine. We thought about inviting independent assessors in, and we do not think that that should not be done, but we genuinely felt that it would be difficult. We did not want to go ahead thinking that independent assessors were a great idea, only to be confronted by the difficult prospect of making it work. Ultimately, perhaps the only way of testing the proposal is to go ahead and do it; if it works, great, and if it does not work, perhaps we will have to revisit it. That is perhaps where we have to leave it.

I assure the committee that if it wants independent assessors to be brought in and it wants the corporate body to be part of the process, we will go into it with the intention of making it work to the best of our ability. However, we genuinely feel that bringing in independent assessors would raise issues that would be difficult to navigate. If we commissioned an independent assessment, we would have to be clear about what it was for and what its boundaries were. We would have to be sure that we did not cross the line that the Parliament has drawn in creating these unique office-holders. They are not like other public officials; they are not even like non-departmental public body appointees, who are accountable to a minister. They have been given independence by Parliament. That is the point that we struggle with when we try to imagine what the process would look like in practice. We are expressing concerns about having an independent assessment rather than saying that it could not or should not be done.

We recognise and welcome your constructive attitude to a matter on which we perhaps have different opinions.

I accept that the office-holders are independent, but they are not above accountability. They use and distribute large sums of public money, so they are accountable for their work. Any independent assessment would be an aid to whichever committee carried out the interview and the reappointment.

The independent assessment would operate in the same way as such procedures operate in other walks of life. It would provide information to the committee, but ultimately the SPCB or another committee of the Parliament would have to recommend to the Parliament whether somebody be reappointed. The Parliament has to make that decision, but it should be based on some level of independent assessment of how the office-holder has done their job. The assessment should be based not on the decisions that they make, but on how they do their job. If we do not have such an independent assessment we could—rightly or wrongly—be accused of making a decision based on the decisions that an office-holder has made rather than on how they have done their job. We would give ourselves protection by ensuring that there was an independent element to the assessment. That would prevent us from being left open to accusations that we voted against the office-holder because we did not like a certain decision that they had made.

Karen Gillon describes the independent assessment as an aid to the decision-making process. My judgment is that the corporate body would probably find that description easier to work with, because the independent assessment would be part of a wider process. If that is what is intended, that is perhaps the description to pursue as it would give the corporate body more comfort. If the independent assessment is a report that may or may not be influential and which is part of a wider process, that may be helpful. The corporate body is sincere in wanting to get the views of committees annually—that would be telling—and to make its own judgment of the person's governance and stewardship. As you said, a significant amount of money is involved—that is not unimportant. If the process has several elements, that might get round some of the difficulties that the corporate body has had over an independent appraisal. I offer those thoughts after having listened to Karen Gillon describe the role of the appraisal.

I thought that this idea was nonsense from the first day that it was mooted. I now detect, with all due respect, an attempt to dance on the head of a pin on the issue. The correspondence from the corporate body, which since November 2004 has had more than a year in which to consider how the process could take place and to form a view on it, reveals that the elements of independent assessment that Mr Grice suggests would be acceptable were ruled out previously.

I take us back to the evidence that was given by Mr Scott. He said that it is not the role of the corporate body to evaluate the work of the sole candidate who would come before it. Mr Grice has said that there will be no formal performance measure and that individuals would not be open to challenge. He suggests that the potential for performance appraisal would clash with their independence. What would a commissioner need to do to fail the interview?

Ultimately, this is a matter for the Procedures Committee and for the Parliament. Following incidents or following the submission of the commissioner's annual report, if it were the will of the Parliament that the commissioner had been found to be unsatisfactory, a motion could be placed in front of the Parliament and the commissioner could be dismissed.

I am sorry, Mr Scott, but that was not the question. I have the right to do that now without the SPCB interviewing any individual. I am asking what the individual commissioner would have to do to fail the interview with the SPCB.

You are asking about a what-if scenario. I do not have the imagination to conjure up what the scenario might be. The officials in question are independent Crown appointees and they have very much been given free rein by the Parliament.

The point is quite difficult. What if someone had absconded with half the money that they were allocated?

That would obviously matter, as Karen Gillon said at the outset. Of course a governance issue or dishonesty would matter. However, on the question of evaluating performance and determining whether decisions have been reached reasonably and satisfactorily, under the legislation that created the posts, those decisions are a matter for the appointees' judgment.

With all due respect, are you saying that if you were reinterviewing an individual with a view to putting his or her name forward for a job for the next five years, you would not evaluate in any way, shape or form their work, methods and process—not their decisions, as Karen Gillon was correct to say—and whether the public were getting value for money from that individual? Do you contend that you would play no part in that? If that were the case, why would you interview such an individual?

If we have changed tack, I assure you that it is because we are genuinely trying to respond to the committee's concerns.

I accept that.

I entirely accept your principled position. I will offer some comfort. Governance and value for money should be evaluated annually and the Finance Committee has reached the view that that process should be stronger and more pointed. That would not wait for a reappointment interview; a track record would exist. The track record might be that a person had not used the money wisely.

You mentioned process. It is easier to evaluate the processes that have been followed, so we would have something to go on. I would expect very poor performance to have been identified and dealt with long before the reappointment process takes place.

Our thinking has been influenced by the framing of the structure for the forthcoming reappointment interview for the Scottish parliamentary standards commissioner. I do not want to say in public what the questions will be, but many of them involve trying to understand how the commissioner intends to perform their role in future. Like John Scott, I cannot speculate on what might be a fail answer, but if somebody failed to give convincing answers about how they would perform their role—if they could not articulate good plans and policies—much of the interview would be about how they would tackle X, Y and Z if they were reappointed for another three, four or five years.

That is why the link back to what committees might have said over the piece will be highly relevant. For example, the question might be asked, "Committee X last year expressed some concerns about this and that in your annual report; what would you do to tackle that if you were reappointed?" If—at one extreme—the answer were, "I don't care," the nomination panel would have grave misgivings, which it would have the opportunity to put to Parliament.

I will pick up another point that you or other members made about the transparency of the process. I accept that there are issues, but the corporate body envisages a report to Parliament—more than a one-line nomination—that it is hoped would give the Parliament some information on the basis of the process, which would at least help parliamentarians who were left with the ultimate decision to judge. If a selection panel had grave or minor misgivings, it could put those to Parliament, which it is hoped would make the process more transparent.

You gave the extreme example of somebody saying that they did not give a stuff. I suspect that most commissioners could come up with a line that was better and that would get them past the SPCB.

We return to how somebody could fail the interview, because what the other answers described to me is a shoo-in in all but name. We are told that the process is to be meaningful and fair, but it will involve no competition, so what is your yardstick? Against what will you measure the guy's or lady's plans?

Although I genuinely accept your points on competition, I return to the point that the track record of performance will be important. An appointee who has been in post for three, four or five years will have a track record and will have established a yardstick. The annual report process is important because it gives us some input against which to measure performance. The annual accounts process, which the Finance Committee envisages as being more rigorous, will provide a track record and to some extent a yardstick. All those examples give us something against which to measure a commissioner's performance.

The question was hypothetical so it was difficult to give an answer, but you are right—I do not suppose that a commissioner, having applied for reappointment, would come along and give a daft answer at interview. We have to rely on whoever makes up the selection panel to ask searching questions and to use their judgment as to whether they are satisfied with what they hear. They will have a lot of evidence to draw on, perhaps specific examples, patterns or challenges that they see ahead for the commissioner. From what I know of the parliamentarians with whom I have worked, they can be quite sceptical naturally and I would hope and expect that they would take some convincing. If they were not convinced, I would expect them not to recommend reappointment.

The guidance on UK and Scottish public appointments of commissioners provides that, where legislation allows for a second term, good practice is for that to be done on an administrative basis, provided that the commissioner's performance is satisfactory. We believe that we as parliamentarians are best placed to evaluate performance over the commissioner's term of office. If we were to ask a management consultant to come in at the end of a term of office, prior to a reappointment process taking place, they would look at a snapshot.

We genuinely believe that the Parliament is the best place to carry out such reviews simply because these are independent Crown appointments and we, as elected members, are independent too. I am sure that the Procedures Committee works in a non-party way, as does the corporate body, to evaluate what has been done and, hopefully, assess that it has been done in the best interests of the Parliament and has carried out the job for which the appointment was made.

I noted the use of the words "performance" and "evaluate", which are absent from the proposal that has been put before us. I leave that on the wall.

You have already said in the correspondence that you would have no objection to some form of assessor, external or otherwise, sitting in on the interview. What would they assess?

One assumes that they would have to assess the commissioner's annual reports in the same way that we would. They would have to assess the same things that we would assess—that is the bottom line. I do not have a list of questions that we would ask in front of me. We do not necessarily want to put into the public domain questions that we might ask candidates who come before us for reappointment—you can understand the obvious reasons for not doing that. However, perhaps Paul Grice will give you an idea of the sort of things that we might ask.

Just before Mr Grice speaks, I say to John Scott that I have a difficulty with his answer. The correspondence from the Presiding Officer says that nobody in Scotland can do the job, but I think that that is in some dispute. It says that the external assessor should not be involved in assessing the candidate's work, but you are now telling us that the assessor could assess the reports, which are clearly about the candidate's work. Which one is it? Will the assessor who the SPCB rightly thinks should sit in on the interview assess the candidate by going through the parliamentary reports of their work, or not?

On one level, it is a matter for the committee to decide on the role of the assessor. At present, only parliamentarians can sit on the panels that make recommendations on nominations. Assessors cannot be part of that. However, that can be changed by the standing orders and that is entirely a matter for the committee.

The only experience we can go on is that with which we are currently engaged under the existing procedure, whereby the independent assessor is not part of the assessment panel, so it is not proper for them formally to assess performance. We have found it to be of great value that they bring an enormous amount of experience of appointment processes. Of course, they are there to make sure that the process is fair and proper, whether it is competitive or non-competitive. Secondly, they are helpful in the framing of questions and getting them right so that they are meaningful. So they have a meaningful role.

If the committee wanted to make an assessor part of a panel, they would be able to perform a different role. Currently, standing orders do not cater for making that initial appointment. There is an issue to do with taking a consistent approach and accepting the committee's view, with which the corporate body agrees, that the reappointment process should be non-competitive. Essentially, the independent assessors are there to assess the process, but it is our experience of the current assessor that, in doing so, they have been very influential in helping to ensure that the questions are pertinent, relevant and properly ordered and help the committee to extract the right information. That is what lies behind our previous comments.

So, essentially, they assess the process.

Yes.

Okay. How will you determine whether you are going to interview a commissioner or one of these individuals or Crown appointees who is finishing their term of office? Will every person who is coming to the end of their first term of office be reinterviewed with a view to reappointment, if they so desire?

As I said earlier, that is the current guidance on best practice. Where the legislation allows for a reappointment, that would be normal good practice, provided that their performance has been satisfactory.

So the only person who could determine whether they got a reappointment interview would be the person who holds the post.

Well, no. If he or she indicated to us that they wanted to stand for a second term of office, we would invite them for a reappointment interview and the reappointment process using an independent adviser would kick in.

Let me repeat my question: is it the case that the only person who would determine whether that individual was to go through the reappointment interview would be the person who holds the post, by virtue of the fact that they would have to say whether they were interested?

If their performance had been satisfactory and there was no good reason for not—

Right. So if their performance—

With due respect, I cannot really see what you are getting at. If the person is not reapplying for the job, why would we set up a whole appointment process?

I am coming to that bit.

You are pursuing a non-issue.

Mr Scott just said that if their performance was adequate—

Satisfactory.

Who makes that judgment and when?

As I said earlier, the evaluation process is on-going. The appointees submit annual reports and are subject to the scrutiny of the public, the press and us as parliamentarians in the work that we carry out on a daily basis. We all have a picture in our own minds about whether they have conducted themselves satisfactorily.

I beg your pardon. Do you mean that if the view of, presumably, the SPCB and its individual members is that the person has not performed satisfactorily, they will not be interviewed?

If the person sought to be reappointed but the corporate body's view was that they had not conducted their tenure of office satisfactorily, they would be interviewed but they might or might not be reappointed.

But they would still be interviewed.

I would think so, yes.

Logically, the short answer would be yes, if the person is eligible for reappointment and they apply, and the Parliament has not chosen to terminate their office. I do not think that the corporate body would set some sort of prequalification. If the incumbent is interested in applying, they are entitled to do so and I would expect the interview panel to grant them an interview.

So the only way in which a person would not be interviewed would be if they said that they did not want to be reappointed.

Yes, or if Parliament had decided in the interim to terminate their appointment, which it has the power to do.

Do you envisage that the MSPs who sit on the corporate body will have some form of scoring mechanism, which is normal in other appointment processes?

Yes, that is likely. Again, I do not want to say too much ahead of measures that are to be introduced shortly, but I expect that the independent assessor will bring expertise on that. I would expect there to be some kind of scoring system for the questions that are framed for any panel. That would be the case for the corporate body or another panel or a panel that featured the corporate body. There will be some sort of objective assessment, although I do not know whether that will involve numbers. I expect the independent assessor to bring expertise on that to the process, from their experience of similar, if not identical, appointment processes elsewhere.

Has any consideration been given to whether the process provides equal opportunity? How does it sit with equal opportunities?

I do not want to reopen what is a quite proper and principled debate about whether we should have competition so, if we assume that the procedure will be non-competitive, equal opportunities will be about following due process and fairness of process. I expect the independent assessor to ensure that the process is fair and that only questions that are relevant to the job are asked, which is a fundamental part of equal opportunities in recruitment. That is how I expect equal opportunities to be delivered in the process.

When such officials take on the responsibilities, for some at any rate, it is part of their conditions of office that they will not be able to have similar employment when they leave office. As it is regarded in the UK as best practice that they should be reappointed subject to a satisfactory re-evaluation, we must also consider their rights under equal opportunities and almost their human rights.

To revert to the previous discussion with Karen Gillon, am I right in thinking that grounds for not reappointing might be that the person had been seen to have neglected a substantial section of their remit; that they took unduly long to make decisions; that their office did not answer letters and was chaotic; or that they were severely criticised by Audit Scotland? Am I right that there would be grounds, quite separate from individual decisions, on which the SPCB could decide that a person was not delivering?

Very much so. We would consider such issues as part of the evaluation process for reappointment.

That almost takes us back to the consideration of annual reports, which one would expect to deal with such issues. I take Karen Gillon's point entirely that there is a difference between the use of the power to remove and general unhappiness. If a committee had, over time, taken evidence and had misgivings, it might put them on the record. If there was no improvement over a period, I would expect a reappointment panel that had such evidence before it to ask searching questions. If the panel was not satisfied that the situation had been or would be turned round, one would expect the panel to reflect carefully on that before it recommended reappointment.

I thank the witnesses, who have dealt with a tricky issue with great honesty. We will try to deal with it with equal honesty when we consider it in due course.