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On 10 June, the Commissioner for Public Appointments in Scotland laid before the Parliament a draft revised code of practice on ministerial appointments. On 1 July, the commissioner reported to the Parliament on the appointment of the convener of the Advisory Committee on Sites of Special Scientific Interest. I welcome Commissioner Karen Carlton to today’s meeting to answer questions about the two reports. I am glad that she is here.
The current code requires that ministers have a choice of candidates from whom to make their appointment decision. At the moment, the proposals in the new code confirm that ministers should still have a choice. However, on a number of occasions over the past years it has become apparent at some point during an appointment round that there would not be a choice of candidates for the minister. On those occasions, civil servants have taken the minister’s view on whether they would be happy to proceed without a choice. On each occasion, the minister has said yes.
Is such an approach likely to disadvantage any individual? Can you provide the committee with an example to indicate where the parameters may change and where it would be advisable for only one candidate to be presented to ministers?
I refer to cases where specific scientific or legal expertise is required or where the post, by statute, must be filled by a particular type of individual, such as an advocate or a chief constable. Clearly, if only one person in that category chooses to apply, there is no point in insisting that ministers must have a choice.
So they almost select themselves.
As long as they meet the requirements of the post. The current and proposed codes make it absolutely clear that the people who best meet the requirements of the post should be presented to ministers. It might well happen that at the end of the appointment round the selection panel is quite clear that one person is much more suited to the post than others and that it might be appropriate simply to present that person to the minister. On certain occasions, it might not be necessary to provide a choice and the minister’s view on what is most appropriate to that particular appointment might be taken at the start of the round.
I see.
In the proposed code there is a hint—indeed, perhaps more than a hint—that it is up to the selection panel to choose any fair, open and transparent method of selection for interview, which implies that you might move away from the normal written application. That seems quite a departure from traditional practice. Can you tell us a bit more about the thinking behind that?
I have already tried to encourage the Scottish Government to move away from what is the traditional practice—a practice that, I have to say, is not always best suited to the target audience. We carried out a lot of research on this issue in support of my work on the equality and diversity strategy “Diversity Delivers”, and from that it is clear that certain groups of people favour different types of application. For example, some people might not feel comfortable putting their suitability for a post in writing. Indeed, there are certain roles for which that approach would be entirely appropriate. I have already mentioned the statutory requirements for a chief constable or an advocate. One particular body in the regulatory framework requires to have someone with learning difficulties to be on the board. It is really important to tailor the application method to the group of aspiring candidates.
I can readily understand that, and indeed I understand why you suggested not having a written application in the case of the post that required someone with learning difficulties. However, I would have thought that such cases were pretty exceptional. Do you see such a provision as being exceptional rather than an overall encouragement to move away from the traditional albeit loosened-up system that you have described?
I imagine that the approach of asking for expressions of interest and going straight to interview would be taken rarely. However, the option of a tailored CV or shorter application form could be offered to people more generally.
I have a question about the competence of panel members to assess applicants and their knowledge of equality and diversity issues. How do you envisage potential panel members being supported and trained to acquire the necessary skills?
There are two approaches. One is a form of self-assessment, which determines whether people who are going to participate in panels are already able to do so. You will see that the proposed new code requires those who undertake assessment to be competent in the use of the application and assessment methods chosen by the panel, and knowledgeable about equality and diversity and the impact of the chosen application and assessment method on the group of people whom they wish to apply.
Do you envisage a general induction for panel members once they have been selected?
At the moment, quite a good briefing happens at the panel pre-meeting. I will run code familiarisation workshops. The code will be published on 1 April but not implemented until 1 September, to allow six months for the training that I will be doing. The Government has not yet indicated whether it wants to do some initial training of the kind that we have discussed but, if it believes that such training would be appropriate, there would be time to do it.
I have a question about the introduction of a new requirement for ministers to keep a written record of the reasons for their appointment decisions. You identify that as being intended to address concerns that that part of the process has not been sufficiently open. Will you provide some background details on that so that we can understand the concerns that led you to propose the new requirement and how you envisage the provisions working in practice?
Yes, of course. The current code requires ministers to record their appointment decisions, but it is explicit only about recording the reasons for appointment; while they have to record the decision about whom not to appoint, they do not have to record their reasons for that. That is not appropriate for a number of reasons, the main one being that, if we want to give constructive feedback to people who have not been selected, the more information we can provide them with the better.
Would that information be recorded in a standard format, so that you could judge it? With appointment panels that I have been on, there has been a standardised form for the organisation. Is that the type of thing that you are thinking about, so that you can compare like with like?
At present, it is up to the Government to decide how the sponsor team members record decisions. However, I will produce guidance on the code and I am certain that it will offer as many helpful suggestions as possible. You are right that, at present, some form of pro forma sheet record is kept that says what the requirements of the post are and how each person measured up at the application and interview stages. That has been a requirement to date. On the candidate submission, although submissions to ministers are private and I do not interfere with how they are presented, I know that they are presented in the same sort of format. They make plain what the minister said was required in the position and what the process was, and they set out the people who best meet the requirements. I am certain that there will be guidance on the format and the way in which the information can best be expressed.
To follow that up, from your description, the purpose of the record is twofold. The first is to provide to candidates who ultimately are not successful feedback on the process right up to the minister’s decision. The second purpose is so that the information is available if you are asked to investigate a complaint. Do you envisage the information being more generally available?
That would be hard to do, because of current legislation. If the record contained personal data about an individual, I would not anticipate its being made public in any way. A candidate submission details reasons for appointing and for not appointing. At present, when a minister makes an appointment decision, there is usually an explanation as to why the person who has been chosen is the most appropriate. That might well be based on information in the candidate submission, and it is presented with the individual’s permission. However, I do not envisage the written records being open to the public more generally.
I am anxious to ascertain whether, under freedom of information legislation, the information would be FOIable, because given that the code would require that information to be kept, people would know that it had to exist and therefore they would go looking for it. For the reasons that you have set out, on the face of it, the information would not be FOIable, but in certain circumstances people might pursue the information fairly heavily and, if it were not available, they might begin to wonder what the point of the process was if they could not ultimately see what the ministerial decision was based on.
My understanding is that any information can be accessed by the individual concerned if they make a subject access request under the provisions of the Data Protection Act 1998. Other individuals cannot, under freedom of information legislation, request particular data about an individual. You will know that, when people are mentioned in material that has been released under freedom of information, there is a lot of redaction so that they cannot be identified individually. I imagine that, if the information that we are discussing were to be the subject of FOI requests, so much would be redacted that it would not be a useful piece of paper.
Thankfully, in Scotland and in the United Kingdom as a whole, public appointments have been largely depoliticised because of the processes that have been put in place, of which you are the guardian. However, that has not always been the case. When the bill that established the public appointments system went through the Parliament, there was a lot of debate about whether there should be confirmation hearings by committees. It occurs to me that if the information is known to be available, there is a danger that that could repoliticise appointments, as those who disagree with a particular appointment might say, “We know that there is a statement somewhere and we will try to get it through the political process.” Is there any danger of that?
Probably, there is. It is worth considering.
Finally, given the point that we touched on earlier about the way in which ministers are advised about appointments and the panel process that leads up to the paperwork going to the minister, there will be circumstances in which the minister is told that two candidates from the shortlist of candidates who were interviewed are completely suitable for the post and that the minister’s choice is completely free and open. In other cases, the panel will say that one person meets the criteria slightly more than the other, but it is marginal, so there is a slightly weighted opinion. When the recommendation is exactly equal, in the end, that comes down to very fine political judgments by the individual minister as to whom to appoint.
Presumably, the minister will have a reason for picking A over B.
Indeed.
That is what will be recorded.
Or may not be recorded.
I have made a note of the point. It is an important point to consider.
Notwithstanding what Mr Peacock attributes to civil servants and their talents—or otherwise—I wonder whether such statements will be of any use to individuals who have cause to make a complaint about a public appointment process in which they were unsuccessful and who feel that they were discriminated against in some way or who are unhappy with the process. Will such individuals be able to access the comments and to use them as part of the complaints process?
At the moment, if a complainant makes a complaint to the Government and is not satisfied with the way in which it is handled, they come to me. I analyse the information and decide whether each stage of the process followed the code and whether there is evidence that what happened at each stage was appropriate and met the principles and practices that the code sets out. At this point, I intend that process to remain. If a complainant comes to me, I will review what happened at each stage and determine whether decisions and actions were code compliant.
Could they get a copy of the statement pertaining to them?
They could certainly be given the information. It will be up to the Government to decide how to treat that information, but people could certainly be given, as feedback, information about the contents of the statements that were made.
Would that be given verbally and/or in writing?
At the moment, it is given in a mixture of both ways. Often, a standard letter goes out with some information. If people request more detailed feedback, that can be provided by phone.
I turn to the question of verification—checking of references and so on—on which there seems to be a subtle change. At the moment, a decision needs to be taken about whether to take references and to make disclosure checks. It is proposed that there be a general requirement for Scottish ministers to verify that the person to be appointed is a fit and proper person. The draft code requires ministers to verify the information and confirm that the applicant’s conduct
The reason is that I was surprised to find that so few references are taken up—even to check that an individual is who he or she says they are when they apply. Not checking prior to making an appointment does not seem wise in terms of due diligence. It is proposed that it should be a requirement of the process that the minister is satisfied that the individual to be appointed is a fit and proper person. As you said, there is a list of areas on which they must be satisfied before they make an appointment.
That sounds like a more general and less specific requirement. I do not think that the minister is required to take up references; he is required in a general way to verify information, which is not quite the same thing. Why do you not just say, “Take up references and check the person out,” or something?
One of the reasons why we did not insist on references in the previous code is that they are notoriously unreliable. References that are written by a third party offer subjective judgment, and the only way in which a reference can be used under the current code is if it provides verification that a person is who they say they are and has done what they say they have done. Subjective third-party inference has no place in the public appointments process. I have not used the word “references” because increasingly in the public and private sectors references are not used. What I am saying is that the minister is now responsible for ensuring that the person is a fit and proper person. You will see that the proposed code states that that requires
And you would audit that from time to time.
Yes.
I would like to ask you a broader question that perhaps goes beyond the code. The code is formulaic, in that it details the procedures and so on that must be followed. One of the issues that the committee and you have come across in the past has involved the magic circle of people who materialise for appointment and manoeuvre themselves around the available posts. Will the code—or any work that you are doing—be able to widen that pool of applicants? Have you made any progress on that?
That is an interesting issue. You will not be surprised to learn that, among the public bodies that fall within my regulatory responsibility, there is a wide variety of views about the importance of equality and diversity. The comment has been made that the only thing that matters is outcome, and that it might not be appropriate for me to have an applicant focus in the code. That is a view from one extreme end of the spectrum. At the other end of the spectrum, some people are more concerned with diversity than merit. It is difficult to determine where the balance lies between ensuring merit, so that the board and the minister get the absolute best person, and widening the pool of potential applicants.
In a sense, it is not just about diversity; it is about widening the pool of applicants.
That is another important point. When I talk about diversity, people assume that I mean either the traditional strands or those that are encompassed in the Equality Act 2010, but I am talking about diversity of perspective, of educational background and of geography. People from all over Scotland should be encouraged to apply, not just those who live in the central belt. When I first began my work as commissioner, I was horrified to hear the chair of a public body say that they would not appoint someone who lived on an island, because they did not want to pay for travel expenses to board meetings. Fortunately, that was a long time ago, and we do not have that culture now. However, the appetite within public bodies and the Parliament has perhaps not yet been matched by an understanding among the general population that we are really serious about this.
I suppose that the corollary of the argument, with regard to the code, is that it is similar to the situation with in-house applicants. You have a pool of people who have some experience in the type of post, and you might want to encourage a whole range of others to come in. Does anything in the code institutionalise a preference for in-house applicants, if I can put it that way?
No, and I can give a good example of that. Recently, positions were advertised for the chairman and board members of the Scottish Futures Trust. Because of the flexibility in the application and publicity methods, the Government took a totally different approach to those posts and actively sought—through the Confederation of British Industry—people who had private sector experience and who may never have been involved in a public sector body before. The fact that we are being much more open in considering which methods are used to target people means that we are not just repeating the same old magic circle.
I want to return to the code. You mentioned that there will be accompanying guidance. The committee is trying to ascertain whether the guidance will have any teeth and how far ministers will be expected to comply with it.
There will be three elements, although I stress that these are my current plans for the guidance and that they may change following consultation. The first element relates to what the code requires and what we would expect to see in order to demonstrate that the principle or practice has been adhered to. That would be what the ministers would comply with—or be expected to comply with—and they would be audited to see whether they were doing so.
In many ways the commissioner has anticipated my question. I wonder whether, for the record, she could say something about how the new code will sit alongside the aims of her equality strategy, “Diversity Delivers”.
The “Diversity Delivers” strategy talks about the variety of application and assessment methods, so it is complemented by the code. The guidance gives information about the different methods, and the code makes it clear that the selection panel can choose whatever is appropriate.
Forgive me if my question is covered in any of the papers. Robert Brown talked about the revolving door problem of the same people ending up on different boards. You mentioned that it may be a source of comfort for someone appointing if they see that a candidate has already been on a board. How can the panel be sure that the individual was effective in that role? Are they allowed to scratch the surface to find out whether the applicant was effective, rather than just say, “They have been on a board before. That’s fine, we’ll put them on this one now”?
That is why we need to ensure that the members of selection panels are competent to assess—so that that kind of subjective judgment does not creep into the process. The fact that a person has been on a board may or may not mean that they were effective and the fact that they were effective on one board may or may not mean that they would be effective on another. Although I understand the comfort factor, I do not suggest that I promote it.
I am sure that I speak for the committee when I thank you for the information that you provided and the depth of your answers.
I read your report with interest, Ms Carlton. You express concerns about difficulties in relation to the provision of information by the Scottish Government and restrictions on the use of that information. You say that it was the third time that you had experienced such difficulties and that you intended to hold a meeting with representatives of the Scottish Government in July. Will you give us a bit more background information on how that came about? How did the July meeting go? Was it successful?
It all goes back to a report that I issued as a result of the investigation of a complaint. The report contained information that was in the public domain and which I considered it important to include. The Scottish Government disagreed with my inclusion of that information and decided that it would no longer be happy for me to access information unless I signed an information-sharing protocol that limited the use that I could make of any information that it passed to me.
Like Marilyn Livingstone, I read your report with interest. There seemed to be a number of separate strands to it. There was a specific individual case, but there were also broader issues such as the question that Marilyn Livingstone raised. Are you confident that that issue is now sorted?
Certainly, the evidence suggests that it is. Whenever I have requested information since, it has been provided.
The second issue for me was your concern that there had been no open competition for board members of the advisory committee since 2004. I felt that that was a related issue but separate from the individual issue that you raised. If I understand correctly, at various points in November and in the spring, you raised your concerns about the appointment and said that the appointment was proportionate but did not comply with the code.
That is not quite what I was saying. The broader point that I was making is that succession planning for the boards of Scotland’s public bodies is a responsibility of the minister. It is not up to the Commissioner for Public Appointments in Scotland to set aside the requirements of an act to accommodate a lack of succession planning. I made that statement to the sponsor team and in the report.
I read that part of your report with interest. You also expressed surprise at the fact that, although you expected the minister to be informed of the options last November, you were advised that the minister was not informed of those options.
Nothing.
Was the one bit of business that was left a big or a wee bit of business?
I will tell you about the meeting that I had with the sponsor team in November, at which I asked that kind of question. Who might be appropriate to fill the post? What knowledge of the work of ACSSSI is needed to fill the post? Where might we find such people?
In response to Angela Constance, you said that you are reasonably satisfied that the issues have been addressed and that the same thing could not happen in future. Are you saying that, or could the whole situation come up again?
I assume that the exact situation could not happen again, because it has been discussed in detail and the decisions that were made at the meeting were agreed and recorded, but I do not know what will happen if a different situation arises over the provision of information.
On a similar theme, how likely was it that someone would come forward, given the amount of time that was left for ACSSSI to run its course? Would anyone have come forward or was it a case of just appointing someone to fulfil the requirements of the post at the time? How likely was it that someone else would have dropped what they were doing to come forward?
I asked that question at the November meeting. If it would be helpful, I can send the committee the minutes of that meeting so that you can see exactly what was discussed. I asked what incentive there was for someone to come forward at this point in time to deal with the case. There did not appear to be any disincentive, and it appeared that people would have been interested. I am only going from memory so I cannot be absolutely sure, but I think that there was also some financial incentive. As I say, that is just from my memory. I regulate so many bodies that I might be mixing that up with something else. However, if it would be helpful, I will let the committee have the details of the meeting that took place in November.
Were there legitimate reasons for the delay? Were things being worked out and so on?
My understanding is that the only thing that had to be worked out was exactly what the role of the individual to be appointed would be. I have not been given information about any other business that would have interfered with the appointment.
Going back to Angela Constance’s point about costs, do you have any ballpark figures for what the appointment process usually costs and what it might cost if a truncated process was used?
I do not have that information, but the Government might. As I said, it would be hard to put a financial figure on the cost of a telephone call and the time that is taken to interview people. However, the proportionate approach—and, certainly, the appointment of the deputy—would not have had significant cost implications at all.
Perhaps I am being unfair, but I remember that, when another body on which I and other members sit was involved in the question of an appointment to a completely unrelated body, we were given costs—I cannot for the life of me remember what they were, but they were not low—for conducting a process that was OCPAS compliant. I would be surprised if that sort of information was not available.
It will be available, in general, for rounds. For example, the costs of publicity will be available. All that I am saying is that, because we would not have taken a traditional approach, there would not have been any need for publicity, detailed assessment centres and so on, so there would have been no cost for those things. How do you put a cost on a telephone call assessing interest, and an interview?
Thank you for your attendance and for the full answers that you have given us.