Item 5 is on procedures relating to Crown appointees. We have an options paper on the subject. The main question is whether a reappointment after a person has had their first stint of four years or so should be an open competition between the incumbent and anyone else who wishes to apply, or whether it should be just an administrative process to reappoint the incumbent unless there is something very heavily in the balance against him or her. The third option is that there could be a panel that would interview only the incumbent, if he or she wished to continue in post. There would have to be a system of evaluating and monitoring the incumbent's performance, perhaps by an outside assessor, and a committee would have to reappoint. However, the competition would not be open to others, unless the committee thought the incumbent to be unsuitable. Those are the three options. I incline to the third.
I concur. That is the most sensible option.
With option 1, there is clearly a presumption against reappointment. With option 2, there is clearly a presumption in favour of reappointment. Option 3 would allow for compromise between the two.
The aim is to attract really good people to such important posts. If people think that after four years they will have to fight their corner all over again, they will be less likely to give up a settled job to apply for such positions. An eight-year stint is feasible, as long as the person is doing a really good job.
Given that appointments may run from one parliamentary session to another, it is probably appropriate that the Scottish Parliamentary Corporate Body of the day should have that role. I do not know how such things work, but the SPCB is probably the official employer of Crown appointees. I am sure that there are organisations and agencies that provide independent advice on employment practices, so we could try to find out who would be appropriate. However, I think that it should be the SPCB, given that it will have a day-to-day or month-to-month dialogue with the post holders—probably more than any committee. The alternative would be to have committees that span two sessions, which might not work.
It has been suggested that, if the SPCB formed the basis of the appointing panel, the convener of the committee that deals mainly with the appointee should be included on that panel to give a more informed view. There are arguments both ways. The convener would know more about what the official has been doing but—being human—politicians and officials may sometimes get up one another's noses, which may mean that the convener is not the most neutral person when it comes to reappointment. Which of those two arguments do colleagues see as being stronger?
I do not think that a convener should be involved in the process. As Karen Gillon said, evidence that we took suggested that an external assessor would evaluate the job that the individual had done and whether the person was suitable for reappointment. It would be for the SPCB to take the final decision on whether to recommend to the Parliament reappointment of the incumbent.
That is a good point of view.
There is a strong argument for having an external assessor. I presume that the SPCB would be involved, because the assessor would be appointed by the SPCB.
The argument against the inclusion of a supposedly relevant committee convener could be extended. Reappointment might happen when there was no relevant committee convener or when the convener had no experience if he or she had been newly appointed. The assumption that a committee convener should be involved is probably irrelevant.
That is very helpful. Is the general view that we would leave matters to the SPCB?
There should also be an independent assessor.
There are two possibilities. I am open to advice, because I am not an employment expert, but an assessor would ensure that the procedure was fair. There would also need to be someone to evaluate the four years' performance of the person in post, which could be the post holder's English equivalent or a former holder of the post. Is it correct to say that two people would need to be involved?
We can consider the different annual appraisal process options. One option would be internal appraisal via the corporate policy unit and the corporate body. Another option might be to use an independent assessor. There are different avenues that we could explore. An independent assessor could certainly be used to oversee the interview and reappointment process to ensure that they are fair.
I am not fully aware of what happens in the current system. Are there annual reports for ombudspeople? Does somebody give them a beta plus, for example, for the year?
No annual appraisal process is currently in place because a reappointment process is not in place, but we can recommend a process if we want to do so.
So, that was a good question. Do members want to suggest that there should be annual appraisals or should incumbents wait until the four years are nearly up for an appraisal? I assume that somebody neutral and well informed must assess how well a person is doing.
When I said that there should be an independent assessor or assessment, I envisaged that a person would assess the individual's work, decide whether it was good, very satisfactory or fantastic and recommend that there is nothing to stop their being reappointed. Annual appraisals are done in many employment circumstances, but we do not need to consider such appraisals; rather, how the individual has performed in their role during their term of appointment must be considered. Obviously, if the person was seeking reappointment and an independent appraisal showed that their work was not up to the level and quality that the SPCB required in the post, it would not seek to reappoint that person.
Do members agree? Must the whole procedure finish within four or five years?
The corporate body can appoint someone for up to a five-year term.
Yes, but I assume that it would appoint an appraisal person some months before that. If there is to be a person to appraise the candidate's performance, would somebody else be needed to monitor the panel to ensure that it was operating fairly?
That is a decision for the committee. Certainly, independent assessors are used in procedures for ministerial appointments to oversee the process and to ensure that it is fair. They are not used to decide whether the candidate is the best candidate, but to oversee whether the process is fair.
There should be such a person.
So two people would be needed.
Yes—there are two different roles.
Somebody would be appointed to assess how the person has done and to provide information to the panel after the three years or whenever, and somebody else would ensure that the panel and the procedures were okay. Is that a correct understanding of members' views?
Are there any other points that we have failed to address? On the whole, we do not really want there to be a third term.
I feel strongly that there should not be a third term, except perhaps if someone has been appointed but has chosen not to take the position and somebody is needed to cover the gap. Otherwise, I am not convinced about the special circumstances.
We are therefore considering the suggestion in the paper in order to solve the problem. If someone has been appointed to a post for four years but is allowed a maximum of five years, the option to extend their second term would satisfy the demand.
The argument was advanced that the person might be halfway through a situation like the Trojan war and might want to continue in post. The counter-argument is that if the person knew that he or she had only a year or so to go, they should not have started the Trojan war.
The reality is that most inquiries are undertaken by deputy commissioners and that work can be delegated. If a commissioner knows that an inquiry will last for a substantial time, there is nothing to stop their delegating it to a deputy commissioner to provide continuity.
From the questioning at the previous meeting and from members' discussion, I cannot even think of an exceptional circumstance. Perhaps the only example is that which Karen Gillon gave this morning, which is that if somebody had been selected but did not take up the appointment, the existing commissioner could be asked to remain. However, we do not want to set in place a mechanism that we hope will never be used. If something happens, we can quickly meet to find a solution. No member feels that we should set in place such a mechanism for general use.
We seem to agree on the mechanism that is described in the second half of paragraph 24. Perhaps the clerks can turn that into an official form. What are we writing? It is not a standing order. We agree that a second term should be for up to four years and that the SPCB should be allowed to extend the period for up to a year if necessary.
Does the committee want to say in standing orders what the exceptional circumstances would be beyond that?
I would like to do that, if we can.
Do you have your crystal ball?
I feel that specification of exceptional circumstances will be unnecessary if we say that a third appointment will be for an absolute maximum of a year.
We have eliminated the concept of such an appointment. We are talking about emergencies at the end of the second term.
We can say that third-term appointments are not on, but that a second term might be extended to deal with a problem. It would still be the second term, rather than a third term.
We need a general form of words that says that a term of appointment can be extended in exceptional circumstances.
What would be the situation if the person in post was working out their notice and the new person was ready to start, but something happened? As far as I remember, the papers for our previous meeting said that it takes about eight months from advertising a post to making an appointment. The proposed year's extension would provide plenty of time to do that. I do not know how we can satisfy Karen Gillon by describing in standing orders exceptional circumstances. However, the worry is that the term "exceptional circumstances" is too wide. Perhaps we need to tease that out.
We must be clear about what we think exceptional circumstances are. If somebody was working out their notice and was going to another job, why would they want to be reappointed for six months to cover for somebody who did not take up the job? If I were the commissioner for children and young people and my job finished in July 2000-and-whatever, surely to goodness I would not be put out to grass—I would probably go to work elsewhere. A person who was selected might become unable to take up their appointment shortly before it was due to start. We must consider what would be done in that situation, because the current commissioner might be going to work elsewhere. I had assumed that the provision was supposed to cover any gap; however, it will not cover the gap if the commissioner who is leaving has somewhere else to go. It will not plug that hole.
I do not know. Do all the commissioners have at least one deputy?
No, they do not.
They do not all have deputies.
I will need to check, but I believe that there is provision in the relevant acts to allow the corporate body to appoint somebody on a temporary basis, were an office to become vacant. That might be an alternative, but we will need to look into that.
I think that that would be better. I agree with the sentiment that once something is permitted in special circumstances, the restriction continues to get eroded. It is much better to say that there should be no third term—full stop. If there is a problem, somebody can fill in. Will you cleverly write up something to that effect?
Absolutely.
There is also the question of removal from office. The paper says that we do not need new rules for that, but if there was widespread feeling in Parliament that a certain commissioner was on the wrong track, what could be done about it? The commissioners are all independent, but I presume that there is a limit to how far they should go in a direction that is totally opposed to what Parliament wants. At the moment, the occasional member who is fed up with a specific decision lodges a motion to say that Mr X should resign forthwith, which gets half a dozen signatures, and that is it. We do not want such motions to be debated every time they are lodged.
I would be concerned that any set procedure that went beyond the opportunities that we already have would simply open up an opportunity for mischievous individuals to exploit the process. We know that we have one or two such individuals in Parliament.
They are on this committee, in fact.
There is no shortage of opportunities to raise such issues when there is a genuine grievance. There is non-Executive time and debates on the business motion. The issue can be forced if it cannot be dealt with on the bureau in order to get something on to the agenda.
Is that the general view?
That is fine. Is there anything else that members want us to say? There is a specific point about the Scottish Commissioner for Human Rights Bill. The bill has been referred to the Justice 1 Committee, which is seeking evidence as part of its stage 1 inquiry. Do we want to reply to that committee? Do we have views on which the clerks could build for an official response?
I suppose that the points that we have made about there being no third term are useful, given the bill that the Justice 1 Committee is considering. Similarly, the points that we have made on issues around removal from office, voting thresholds and so on are useful issues for us to raise.
Is what we have said on the procedure for reappointment relevant?
Yes.
It seems sensible for us merely to report to the Justice 1 Committee on what we have just agreed about our position in general.
The committee may wish to note one other point about the new bill. The committee had a discussion at its last meeting about the provisions in the bill that established the Scottish public services ombudsman. The discussion focused on directions being given to the ombudsman on the form and content of her annual report. We are still awaiting a response from the Executive on that matter. The provision is also included in the Scottish Commissioner for Human Rights Bill. Depending on the Executive response and the view that the committee takes on the issue, the committee may also decide to highlight that matter.
That would be useful.
Yes. I return to the question of removal from office. I think that we are saying that we do not need to say anything in particular about that. The clerks have made the point that the rules for such appointments are set out in statute, so as far as I understand the situation, standing orders do not need to replicate them. We could just leave things to the law as it stands. Is that right?
The point that is made in the paper is that provision on removal exists in standing orders. For example, the standing orders replicate what is set out in statute for the removal of the Auditor General for Scotland. To make matters consistent, we could replicate in the standing orders the procedure for removal of other commissioners or—again, to keep things consistent—we could delete from the standing orders everything that relates to removal. That decision is for the committee.
We should have consistency. Given that different rules of statute apply to each appointment, we should delete the references from standing orders; the statutes remain, after all. Given the number of commissioners we seem determined to appoint, the standing orders do not need to replicate the process for removal of every commissioner.
I had a friend who used to refer to "ombudsmania".
No. The paper was submitted on an information-only basis. It sets out the visits that the committee agreed, the correspondence that was involved and the members who wish to attend each of them. We are finalising the other draft paper that summarises the responses from other Parliaments. We will circulate it for a future meeting.
The paper is certainly interesting. There is a huge variety in the content of the responses; some Parliaments never meet at all and others meet incessantly. It is amazing.
Meeting closed at 12:04.
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