https://cspl.blog.gov.uk/2015/10/16/the-two-way-regulation-of-public-appointments-and-its-effects-on-public-life/

The two-way regulation of public appointments and its effects on public life

In September Dr Felicity Matthews from the University of Sheffield presented to the Committee, findings from her and Prof Matthew Flinders research, into the UK’s experience of public appointments in a comparative context. Dr Felicity Matthews provides further insights from their research in the following blog post. The blog post draws on earlier commentary by the author provided for the University of Canberra’s ‘Policy Space’ and the London School of Economics’ ‘Democratic Audit’.

 

Upon the recommendation of Committee on Standards in Public Life, the Office of the Commissioner for Public Appointments (OCPA) was established in 1995 to improve confidence in the system by addressing widespread beliefs that ministerial appointments were not always made on merit. By closely regulating the appointments within its remit, OCPA sought to ensure that ministerial appointments were made solely on merit, rather than being a product of party political loyalties or personal ties.

Research

Comparative research reveals that the patronage capacities of British ministers are now amongst the lowest in Europe; and that OCPA is an exemplar in terms of promoting probity and integrity.

Whilst the capacity of ministers to intervene in public appointments has been reigned in, the involvement of parliamentarians has expanded through the introduction of pre-appointment scrutiny in 2007; and the relationship between the systems of regulation and scrutiny – one independent, one legislative – has drifted without clear consideration of the inter-relationships between these two systems.

Our research has examined the impact of these reforms and reveals that the introduction and extension of pre-appointment scrutiny has been underpinned by three key trends:

  1. Developed without an overall plan

Firstly, pre-appointment scrutiny has developed without an overall plan, as successive governments have incrementally granted select committees additional powers. In particular, since 2011 a range of appointments have become subject to ‘double-locking,’ whereby the appointment and dismissal of senior staff could only proceed with the joint approval of government and parliament (e.g. appointments to the Office of Budgetary Responsibility).

  1. ‘A ratchet effect’

Secondly, and flowing out of this, a ‘ratchet effect’ has emerged, as the introduction of pre-appointment scrutiny has fostered demands for additional powers over a widening range of appointments, including consultation between government departments and committees on the job specification prior to advertisement; information about short-listed candidates not selected; private meetings between ministers and committees; and, a confirmatory vote in the House in relation to key appointments.

  1. A change in tenor

Thirdly, and resultantly, it is possible to detect a change in tenor as select committees have sought to demonstrate their independence from the executive in increasingly robust terms.

Pre-appointment scrutiny

Pre-appointment scrutiny rests on the principle that select committees should seek test an appointee’s competence and expertise, rather than challenge a minister’s decision. However, since 2009 select committees have become increasingly willing to publicly challenge the appointment of the Government’s preferred candidate (activism). By the end of the 2014-15 parliamentary session a total of 13 candidates had divided committees or been rejected outright, which represents around 22 percent of all hearings held to that date. Although the rate of rejection constitutes a small proportion of all select committee recommendations, it is clear that 2009 onwards constitutes a significantly more assertive phase of select committee activity, who – as successive governments have reiterated – are not expected to challenge a minister’s decision.

It is also clear that this activism has been both partisan and institutional in nature, with select committee members from all parties attempting to block appointments.   This has resulted in further unintended consequences, as select committees have failed to focus solely on independence and professional competence and have instead engaged in political point-scoring (aggression).

In turn, the highly public and increasingly partisan nature of pre-appointment scrutiny (re-politicisation) has served to discourage involvement in public life, and risks negatively impacting on attempts to improve the diversity of public appointments (deterrence). This has therefore promoted critical questions regarding the desirability of an extra layer of inherently political scrutiny within an otherwise independently regulated process (added-value).

Reflecting on these unintended consequences, our research reveals that select committees have become de facto veto players due to the impact a negative report would have on the credibility of the appointee and the appointing minister; and pre-appointment scrutiny therefore entails a strong anticipatory effect that permeates the whole appointments process.

Our research also reveals the extent to which the House of Commons is being drawn into the business of governing, rather than scrutiny, evolving rapidly from a reactive to proactive legislature in relation to executive patronage. Pre-appointment scrutiny in the UK was never intended to replicate the US ‘veto style’ model, yet the way in which the system has been allowed to drift runs counter to these intentions; and the introduction of legislative powers such as ‘double-locking’ risk the gridlock and inertia more typically associated with presidential systems.

Complex and contestable regulatory frameworks

More broadly, our research suggests that the uneasy co-existence of these regulatory frameworks also risks self-selectivity and reproduction on the boards of public bodies. Applicants are required to declare any political activity within the past five years, and latest figures from OCPA reveal that in 2013-15, only 5.0% of appointees or re-appointees declared some form of activity, which constitutes a marked decline from the 9.0% in 2013-14.

However, whilst appointments to bodies within OCPA’s remit are fully subject its regulatory framework, re-appointments remain a matter of ministerial discretion; and critics have highlighted the removal of several Labour-supporting peers under the previous Coalition Government as evidence of politicisation, including Baroness Sally Morgan as Chair of OFSTED, Dame Liz Forgan as Chair of the Arts Council and Dame Suzi Leather as Chair of the Charities Commission.

In all instances there was little evidence to suggest that ministers acted inappropriately. Indeed, the Coalition also declined to re-appoint ostensibly Conservative-supporting chairs of public bodies, including Andrew Sells as Chair of Natural England and David Prior as Chair of the Care Quality Commission. Yet, the furore surrounding these cases underlines the extent that popular (mis)conceptions still persist regarding the untrammelled exercise of ministerial patronage.

Such cases have also been cited as evidence a lack of diversity in public life, and critical questions remain regarding the extent to which public life remains accessible to anyone who is not – to invoke the rhetoric of former Commissioner for Public Appointments Dame Rennie Fritchie – male, pale and stale.

OCPA’s latest figures show that the proportion of women newly appointed to public bodies was at an all-time high of 41.1% in 2013-14, rising from 39.9% on 2012-13.   However, when it comes to the most senior Chair appointments, only 24.0% of appointees were female in 2013-14, down from 25.9% on 2012-13. Moreover, the number appointments made to candidates from a BME background or with a disability remains stubbornly low, a picture that worsens in relation to Chair-level appointments.

Final thoughts - diversity in public life

Our research has underlined several of the barriers to greater diversity in public life.   Many aspects of the public appointments process have served to entrench narrow ideas of who could take on such a role, including over-specified job descriptions; narrow definitions of expertise and experience; and insufficient remuneration.

Indeed, and with specific reference to pre-appointment scrutiny, our research has also revealed the way in which the adversarial culture of Westminster politics can be daunting to those who are not already part of that world.

Without the sufficient visibility of women and other under-represented groups on the boards of public bodies, the risks exists that preconceptions regarding who is suited to public life will become further entrenched.

It is widely accepted that diversity in representation has the capacity to enhance the legitimacy of political institutions and the quality of the political process; and in a period of burgeoning political disengagement, it is crucial that sponsoring ministers and regulators alike appreciate the potential of public appointments as vehicles of participation both within Whitehall and across society at large.

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