As a new institution the National Assembly has many good reasons to be proud of the way its business is conducted. The building itself sends out a powerful message of openness. The use of new technologies make its activities readily accessible to almost any citizen with an interest in the developing democracy of Wales. The Welsh Government has been in the vanguard of new accountabilities, publishing Cabinet Minutes and widening the scope of Freedom of Information legislation.
However, one significant way in which the Senedd now lags behind developments elsewhere in accountability and openness lies in the appointment of key public officials. Most notably in the House of Commons since 2008 relevant Select Committees have scrutinised the decisions of appointing Ministers. Although I will focus on this process as a blueprint for Wales, the experience of a formal parliamentary role in major public appointments is not unique to the House of Commons. The Commissioner of Official Languages in Canada, for example, is an Officer of Parliament, appointed by resolution of the Senate and the federal House of Commons and reports directly to Parliament.
The time is long overdue for Committees of the National Assembly to discharge the same oversight, and to provide the same guarantee of democratic legitimacy, as is now available in comparable circumstances elsewhere.
In 2007 the Governance of Britain Green Paper first floated the idea of pre-appointment hearings by parliamentary Select Committees. Four years later the House of Commons Liaison Committee reported on the early practical experience. That report provides the basis my case, together with two independent research papers produced in 2010 by the Constitution Unit at University College, London, and in 2011 by the Institute for Government.
Each document endorses the basic proposition that major public appointments should be subject to parliamentary scrutiny. Original fears that such hearings might deter able candidates from applying for high-profile public appointments have not been borne out in practice. In Wales I believe that reform should be rapidly instituted, so that a system is in place which provides the same degree of openness and scrutiny as is already available elsewhere.
In order to do so, it is necessary to set out the system, as it currently exists in the House of Commons, and to summarise the advantages which are commonly claimed for it. In the event that new appointments are sought for public offices which have been designated as subject to scrutiny, non-binding, ‘pre-appointment’ hearings take place at the point where the normal, Nolan-based process has run its course, and Ministers have identified a preferred candidate. The relevant Select Committee then scrutinises the process, through an oral examination of the identified individual. There is an agreed list of posts subject to these hearings, all of which meet certain criteria. They are posts:
(i) Which play a key role in regulating Government.
(ii) Which play a key role in protecting and safeguarding the public’s rights and interests, particularly in relation to the actions and decisions of Government.
(iii) Where the reputation and credibility of the public body in question depends on the post-holder being, and being seen to be, independent of Ministers and Government.
The House of Commons Liaison Committee identify five major advantages which, from experience, they believe the system to have delivered:
- Greater scrutiny of the quality of Ministerial decision-making.
- Additional public reassurance that appointments are made solely on merit.
- Enhanced legitimacy for the person appointed.
- Public evidence of the independence of mind of the endorsed office-holder.
- A greater opportunity for approved candidates to understand Parliamentary expectation of the post they occupy.
Since its inception, a number of enhancements to this procedure have been agreed by the present coalition administration. Through their chairs Select Committees now meet with the appointing Minister early in the process to discuss the role and job description of the post under consideration, the criteria against which candidates are to be approved and to clarify expectations. Committees will also be provided with additional, broad contextual information, for example, about the number of applicants and their reduction through the long-listing and short-listing process, so that the final nomination can be better understood.
Appearing before the Liasion Committee, Cabinet Office Minister, Francis Maude, identified three outcomes from a pre-appointment hearing which could lead to Ministerial reconsideration:
(a) A poor performance, by the candidate, at the Committee.
(b) Disclosure at the Committee of previously unknown, materially relevant information.
(c) A generally strong view from the Committee about the perceived acceptability of the candidate.
In practice, the vast majority of candidates who have been subject to pre-appointment hearings have been straightforwardly approved by Select Committees. A smaller number have been approved with minor caveats. In only two cases, to date, has appointment of a proposed candidate not gone ahead. In May 2011, the appointment of a new Chief Inspector of Probation was halted, and re-opened, by the Ministry of Justice, where the original candidate failed to secure the support of the Justice Select Committee. In June 2011, the candidate for chair of the UK Statistics Authority withdrew, prior to the Public Administration Select Committee reporting, and as a result of concerns raised during the hearing about her perceived independence.
In only one case has an appointment been approved by a Minister in contradiction to the findings of the Select Committee, and the facts of that case were less about the candidate per se than a disagreement over the nature of the post itself.
In summary, of 34 hearings conducted between July 2008 and July 2011, 31 were positive, two were negative and in one case the candidate withdrew without a report being issued. In only four cases were Committees not unanimous in their recommendations. Of the 31 positive reports, eight contained additional comments or caveats, for example where the proposed chair of the Social Security Advisory Committee was endorsed, but with a note of concern about the candidate’s ‘lack of direct experience in social security policy’.
What might this mean for Wales? The Welsh Government web-site lists sixteen major bodies, each of which has a publicly appointed chair. These include, for example, the Arts Council, the Care Council, the Higher Education Funding Council and the Sports Council. In addition, the Commissioners for Children, Older People and the Welsh Language are all major posts of the sort which, in Westminster, would involve a direct parliamentary stage in the appointment process.
There are, of course, a range of arguments which could be deployed in support of the democratisation of a far wider range of senior posts which lie within the public service, and also a case to be made for further finessing or strengthening of the Westminster system outlined above. I have more modest ambitions, arguing that a system of scrutiny of public appointments is desirable and necessary for at least a smaller range of key posts. It seeks to bring the position here into line with the most modest steps in that direction which have already been achieved elsewhere and which, as a modern and progressive institution, the National Assembly would surely wish to incorporate into its own way of working.