Standing Orders (Commissioner for Public Appointments)
The next item of business is a debate on motion S2M-2569, in the name of Iain Smith, on behalf of the Procedures Committee, on procedures in relation to the commissioner for public appointments in Scotland. I call Karen Gillon to speak to and to move the motion.
The motion that is before us today invites Parliament to note the recent report by the Procedures Committee, which recommends new parliamentary procedures for dealing with statutory consultation documents and reports of non-compliance that are received from the commissioner for public appointments in Scotland. The changes to standing orders that we recommend are set out in annex A to the report.
The Public Appointments and Public Bodies etc (Scotland) Act 2003 provided a framework for the appointment of a commissioner for public appointments in Scotland and the first commissioner, Karen Carlton, was appointed in June 2004. Some of the commissioner's functions under the act require her to engage with Parliament, but there have been no procedures to govern how Parliament responds. The Presiding Officer therefore wrote last year to ask the Procedures Committee to consider what those procedures should be—our report is the result. In preparing it, we took evidence from the commissioner and consulted the Standards Committee. We also had the benefit of the co-operation of staff at the commissioner's office. We thank all those who participated.
The commissioner's first task is to prepare and publish a code of practice on how appointments are made. In preparing or revising the code, the commissioner is required to consult Parliament. I understand that such a consultation is likely to begin after Easter. The commissioner is also required to prepare a strategy to ensure that appointments are made in a manner that encourages equal opportunities. In preparing that strategy, the commissioner must again consult Parliament.
No standing orders deal with how to handle any such statutory consultation documents. In that context, we have recommended a rule change that is couched in fairly general terms so that it can be applied in any situation when someone is under a statutory obligation to consult Parliament. We expect statutory consultation documents normally to be laid before Parliament but, however documents are provided, the new rule will ensure that notice of them is given in the Business Bulletin, so that consultation exercises are brought to the attention of all members.
Under the 2003 act, Parliament as a whole is to be consulted. That makes necessary some sort of debate in the chamber. We felt that such a debate could usefully be informed by prior scrutiny in committee, so we recommend that the Parliamentary Bureau initially refer consultation documents to a lead committee—and, if appropriate, to other committees—to consider and report on to Parliament. That approach strikes the right balance by enabling Parliament as a whole to respond to a statutory consultation without its taking up an inordinate amount of chamber time.
The commissioner must also report to Parliament any case in which the code of practice has not been, or appears unlikely to be, complied with and when ministers have failed, or are likely to fail, to act on that non-compliance. The commissioner may also direct ministers to delay making or recommending an appointment until Parliament has considered the case.
We imagine that such circumstances will be very much the exception, but we acknowledged the importance of there being in place a procedure to deal with the possibility. The first step is to ensure that members are given notice, so we recommend that all such reports be notified to members in the Business Bulletin when they are received.
It is possible, but unlikely, that some reports may contain personal or sensitive information that must be treated confidentially. The commissioner will make it clear when that is the case so that Parliament staff can take all reasonable steps to ensure that private and confidential information is made available only to members of the lead committee that considers the report.
The committee recommends that, once they are received by Parliament, all reports of non-compliance be referred directly to a committee for consideration. No committee's remit specifically covers public appointments. During the passage of the Public Appointments and Public Bodies etc (Scotland) Bill, the establishment of a dedicated committee was suggested. However, having considered the evidence, we believe that the likely amount of work will not justify the establishment of such a committee so, following consideration and discussion with the Standards Committee, we believe it appropriate to recommend extending that committee's remit to cover public appointments. In view of that recommendation, the bureau will not need to be involved in referral of reports of non-compliance. Instead, we suggest a rule that will allow reports to be referred directly on receipt to what will be known as the standards and public appointments committee.
In the necessary circumstances, the new rule that we recommend would require the standards and public appointments committee to report to Parliament and would require Parliament to have a debate in the chamber. However, it is worth emphasising that we expect the rule to be invoked rarely. The commissioner is likely to make a non-compliance report in the first place only if she has already exhausted all other avenues.
In conclusion, the committee believes that the new procedures that I have outlined will provide a clear and sensible framework for Parliament to follow in dealing with statutory consultations and non-compliance reports that the commissioner refers to it. On behalf of the Procedures Committee, I am pleased to recommend the new procedures to Parliament.
I move,
That the Parliament notes the Procedures Committee's 3rd Report 2005 (Session 2), Procedures in relation to the Commissioner for Public Appointments (SP Paper 304), and agrees that the changes to Standing Orders set out in Annexe A to the report be made with effect from 18 March 2005.
I thank Karen Gillon for her lucid explanation of the proposals that she has made on behalf of her colleagues.
Parliament's consideration of the report marks another step in establishing a distinct and relevant regulatory process for Scottish public appointments. As Karen Gillon illustrated, the process originated in a consultation that Scottish ministers commissioned and which revealed widespread public support for the creation of a Scottish commissioner for public appointments. We took steps to establish that post in the Public Appointments and Public Bodies etc (Scotland) Act 2003, which rightly envisages a number of specific roles for Parliament, including consideration of breaches of the commissioner's code of practice that are referred to it. Taken together, we believe that they will allow Parliament to play a full part in helping to maintain what we believe is a robust and fair process.
During the passage of the bill, we said that we would have no objection to a dedicated parliamentary committee's being set up to deal with such tasks, but it was always recognised that the relatively small amount of work that was likely to be involved would probably not justify the establishment of a stand-alone committee. Therefore, we were happy to leave it to Parliament to arrive at its own conclusions on the workload, which are now embodied in the report, as Karen Gillon illustrated.
I am sure that the proposed extended remit of the Standards Committee is extremely sensible and is in proportion to the range of its responsibilities. The choice of the Standards Committee to lead on the issue is relevant and will benefit Parliament's consideration of any proposals that are put to it by the commissioner. I need hardly add that I doubt very much whether many breaches of the code will be referred to it. The Executive's track record on compliance with the UK commissioner's code of practice over the years demonstrates that material breaches of the code have been rare. I am sure that that will continue under the new regulatory regime.
The creation of a Scottish commissioner is central to the Executive's plans to provide Scotland with an independent, accountable and open public appointments system that is based on merit; we remain committed to that vision. I am sure that the Scottish commissioner's enhanced powers and the Scottish Parliament's increased involvement in the ministerial appointments process will improve public confidence in the system and provide demonstrable reassurance that allegations of patronage and cronyism are totally unfounded. I am therefore delighted to endorse the report and to confirm Scottish ministers' support for its adoption.
On behalf of the Scottish National Party, I welcome the Procedures Committee's report, but I want to make a number of points, the first of which is a general point for that committee. The recommendations on the role of and the practice of reporting to Parliament by the commissioner for public appointments are sensible, but there is still an accountability deficit in respect of some parliamentary commissioners whom Parliament has legislated for and appointed. In particular, I hope that the Procedures Committee will now address how the Scottish Public Sector Ombudsman and the information commissioner will report to Parliament. How they do so is not at all clear, as it was previously not at all clear how the commissioner for public appointments would do so.
Secondly, I hope that the commissioner and the committee will consider at an early stage—including at the design stage of the code of practice for public appointments—the recommendations in the 10th inquiry report of the United Kingdom Committee on Standards in Public Life, which was produced in January. That report made a series of recommendations on further improvements to the system of public appointments north and south of the border. Many of the recommendations that are made in that report are worthy of consideration.
The only note of discontent that I would express is on the last point that was made by the deputy minister about the code of practice and whether there is still prejudice in the system. The code of practice—as designed and implemented by Dame Rennie Fritchie—made substantial improvements. I hope that when our public appointments commissioner draws up her code for consultation, she will use the opportunity to strengthen the code vis-à-vis both parliamentary scrutiny and, more important, the need to take patronage out of the system.
Despite the code and various reforms in recent years, the reality is that about two thirds of all appointees who express a political affiliation are from one party. Although that party gets 35 to 40 per cent of the vote in Scotland, I do not believe that it has two thirds of the best brains that apply for public appointments in Scotland. Through the code, the commissioner and the Standards Committee we must try to build confidence in the public appointments system by taking patronage out of it and ensuring that prejudice in favour of one political party is no longer maintained. Until that happens, many of us will retain a degree of scepticism and even cynicism about the system of public appointments.
My third point relates to what Karen Gillon said about how the commissioner should report to Parliament. There are, essentially, four areas in which the commissioner is directly responsible to Parliament, and it makes perfect sense for that to happen through the conduit of the Standards Committee. In the context of the system of public appointments in Scotland, we are talking about standards in public life and ensuring that appointments to quangos and other bodies are above and beyond reproach regarding patronage or any other kind of favouritism. Parliament should debate the commissioner's annual report along with the report from the new standards and public appointments committee on the key issues that Parliament has still to address.
The Procedures Committee has demonstrated typical common sense, which was articulated by Karen Gillon in her opening speech. We are glad to support the Procedures Committee's recommendations, but with the caveat that the remaining patronage in the system must be cleared out once and for all.
The Conservatives are quite happy with the changes to standing orders, which will help the commissioner for public appointments in Scotland, Karen Carlton, to do her job properly. She has to come up with a code of practice for the making or recommending of appointments to public office by Scottish ministers, and she must ensure that her strategy encourages equal opportunities. I also agree with much of what Alex Neil said about removing patronage from the system.
The commissioner must report to Parliament any case of non-compliance with the code of practice, and she may direct Scottish ministers to delay making an appointment or recommendation until Parliament has considered possible breaches of the code. Each year, she must lay before Parliament a report on what she has done. At the moment, there are no standing orders to allow for such procedures. After taking evidence from the commissioner in December, the Procedures Committee agreed on a course of action. Measures were necessary because it was unclear how a breach of the code of practice would be dealt with procedurally. It was also unclear how the requirement to consult Parliament on the code and the equalities strategy would operate in practice.
I shall not bore Parliament by repeating the recommendations that Karen Gillon has ably put forward. We are happy to support them; the substance of that support will be seen in due course.
I apologise for the absence of Iain Smith, who lodged the motion that we are debating. He is unable to be present, but he supports fully the proposals that have been made in his name. That is a relief.
The suggestions in the report are sensible. Appointments must be transparent—the points that Alex Neil made have some substance. It is partly up to those of us who are not members of the Labour Party to encourage people who are members of no party, of the Liberal Democrats or of other parties to apply for jobs. Patronage is a two-way street. Many people still think that there is patronage when there is not, so they do not apply. It is up to us to get people of good quality of all points of view to apply, which would help to even things out. We do not want any relics of patronage in the system.
As a member of the Standards Committee, I am slightly concerned that I will soon be a member of the standards and public appointments committee. I foresee people sliding up to me shiftily at receptions to say, "I am very keen to be on the quango for looking after swans. Any chance of a job?" I will have to explain to them that it is not that sort of committee.
The Standards Committee is the right committee to deal with the matter. We try to deal with MSPs who step out of line, so it is right that we should deal with ministers who do so. Tavish Scott says that that has not yet happened, and I am sure that it will not happen in the future, but in such cases ministers should come before the Standards Committee. The committee has a relatively light workload because members all behave so well, so we can take on this extra business. Alex Neil may be right when he says that we should also deal with some of the other commissioners, but that is an issue for another day.
The proposals are sensible. The point is to ensure that our whites are whiter than white. At the moment they are certainly white, but it remains to be seen whether they are whiter than white.
This is a rather tight debate. Mark Ballard and Richard Baker should limit their speeches to three minutes.
We are beginning to move in this country towards a different system of governance that places commissioners and ombudsmen and women in a crucial position in our body politic. It is right that Parliament's standing orders should evolve as our system of governance evolves, in order to establish the correct relationship between the commissioners and ombudsmen and women and Parliament. In that context, I want to say a little about the system of consultation.
Although the public may accuse us of inducing consultation fatigue among them, it is noticeable that there has been no system for consultation of Parliament, so I welcome the new rule 17.5 on consulting Parliament. That is particularly important for matters such as the code of practice—members including Alex Neil have expressed concerns about existing codes and the existing system of public appointments. We need proper consultation of Parliament and we need the whole Parliament to give unambiguous support to the code.
The Procedures Committee was faced with three options for the consultation. The first was simply to put consultation documents on record through the Business Bulletin and to leave it to members to respond to them as individuals when they noticed it. The second was to proceed immediately to a debate on the consultation. There were considerable difficulties in deciding who should lead the debate in Parliament, because the consultation would be produced not by the Executive but by the commissioner for public appointments.
The option that we chose was much more satisfactory. There will be recognition in the Business Bulletin that the document has been sent to Parliament. The Parliamentary Bureau will recommend that a specific committee deal with the consultation, properly scrutinise it and produce a report. There will then be an opportunity for the consultation document to be debated by Parliament in order to ensure that there is unambiguous support for it. That is a good method of consultation.
I am glad that the rule as it stands does not apply to one commissioner's consultations alone, and I hope that it will set a standard for general parliamentary consultation. I hope that the current consultation leads to a better outcome and to progress in developing our system of public appointments in Scotland as well as our code of practice for public appointments. That will be an outcome that we could all support unambiguously.
I was going to start my speech by saying that I was sure that this would not be a contentious debate, but I had not reckoned on Alex Neil who could make a debate on motherhood and apple pie contentious. The Procedures Committee's report addresses many of the concerns that he holds and has expressed—rightly or wrongly.
The proposals will ensure that the commissioner can carry out her duties effectively by the introduction of standing orders that relate to those duties. We agree that it is vital that those important duties be carried out effectively because they are about ensuring confidence in our public appointments by monitoring appointments processes and establishing a code of practice for ministerial appointments. The report reflects effective joint working by the parliamentary authorities and committees, which is further reflected in the cross-party support that we have heard today for the proposals in the report.
There is consensus that we want the right structures to be put in place to ensure that the public have full confidence in the proceedings of our Government and Parliament and, of course, to ensure transparency and fairness in the way that appointments are made to public bodies. In order to arrive at specific proposals for changes to standing orders, the committee heard extremely useful evidence from the commissioner on what procedures should be put in place; the report reflects that.
The committee recommended that statutory consultations be laid before or otherwise provided to Parliament, and that statutory consultation documents be referred to a lead committee prior to their consideration by Parliament as a whole. That reflects the importance of such documents.
The committee also recommended that the remit of the Standards Committee be extended to include public appointments, and that reports on non-compliance with the code of practice be referred to the standards and public appointments committee, as it will be called. It recommended that when there is debate on non-compliance, that committee should prepare a report to inform a debate in the chamber. Perhaps the most significant change that the committee proposed was the additional role for the Standards Committee. The committee considered the possibility of a separate or subject committee to consider reports of non-compliance, but in the light of the expected workload and because reports will focus on processes, I agree that the most practical way forward is for the Standards Committee to be responsible for such matters.
What is proposed in the report not only is an efficient procedure for ensuring that reports that are referred to Parliament by the commissioner can be considered thoroughly and expeditiously, but will be of real assistance to the commissioner in ensuring that her work can be carried out effectively. That we have debated the report shows that it is important to instil confidence among the public about how people are appointed to public bodies and, more generally, the debate is part of the important job that we need to do to ensure that people have confidence and trust in people in public life and in the procedures of our Parliament and Executive.
When one examines the legislation that we have passed, I for one believe that we have made great strides on such issues and I commend the report to Parliament as another part of meeting that important challenge.
I welcome the general support for the committee's recommendations. Having met Karen Carlton, the new commissioner, I am confident that she is a suitably independent and feisty woman to carry out the job that she has been given. [Interruption.] I hear heckling from the back—Margaret Jamieson should know better.
I heard the remarks that Alex Neil made about other commissioners and I tell him that that is not an issue that has been referred to us so far, but if he wants to write to us about it, I undertake that the committee will consider it as part of its forward work programme. I could get into a debate with Alex about patronage, but given that I am responding to the debate as the impartial deputy convener of the Procedures Committee, that would be inappropriate at this stage. Maybe we will do that later.
In response to Alex Neil's final point about the commissioner's annual report, there is nothing to stop Parliament debating that report if it so wishes—to do so might be appropriate on occasion.
In general, I welcome the tone of the debate and members' contentment with the Procedures Committee's report, which takes a commonsense approach.
On the second recommendation, which concerns the extension of the Standards Committee's remit to include public appointments, am I right in saying that if the motion is passed the committee will now be able to look at the work of ministers, not just that of MSPs? Is not that quite a dramatic departure?
Parliament has considered its response to that very specific issue and has decided that we should have a commissioner for public appointments and that he or she should have a specific role. If Parliament agrees to the motion, it will have determined that the Standards Committee is the appropriate body to judge whether there is non-compliance with regard to the commissioner's role or to ministers' work in that respect. In this case, it is appropriate for Parliament to decide that the Standards Committee should become the standards and public appointments committee; after all, it is the appropriate committee for such work. I am sure that Mr Rumbles's successor as convener will ensure that the committee carries out the maximum amount of scrutiny on the matter.
I ask the Parliament to support my colleague Iain Smith's motion at decision time.