The role of ministers in the making (and unmaking) of appointments to senior public offices has attracted increased attention lately. Speculation has focused on institutions such as the Civil Service, the BBC, Ofcom, and the Electoral Commission. The impartiality of such bodies is an issue of constitutional significance. To perform their roles properly, they should not be subordinate to the partisan agenda of the government of the day. But should we be worried? Are efforts to exercise political influence in these areas genuinely more concerted now than they have been before?
Some significant evidence in this regard emerged earlier in the month. On Thursday 8 October, Peter Riddell, the Commissioner for Public Appointments, gave evidence to the Public Administration and Constitutional Affairs Committee (PACAC). As the Chair wrapped up the session, Riddell asked if he might raise a final point.
He proceeded to put on the record his concern that ministers were looking to enlarge their influence over the process of public appointments – which it is his job to ensure is fair and open – citing a number of recent incidents that had led him to this view. Riddell is not someone who has typically been seen as a thorn in the government’s side, and his comments will not have been made lightly. His role is an important one and this statement, although it went relatively unremarked upon, is significant.
The Commissioner for Public Appointments is responsible for regulating the process of appointments to arm’s length public bodies; in doing so they apply the Governance Code on Public Appointments, issued by the Cabinet Office in 2016. The Code is not designed to ensure independence from ministers – far from it. Ministerial responsibility for appointments is a fundamental aspect of the process set out in the Code, which (theoretically) ensures lines of accountability are maintained back to Parliament.
But as Riddell made clear in his evidence, the process and principles outlined in the Code are meant to strike a balance between ministerial preference and an open and fair competition. One of the procedural mechanisms for striking this balance involves the use of Advisory Assessment Panels. These panels are responsible for conducting interviews and presenting the minister with a list of candidates who meet the criteria for the role. Crucially, they are meant to have a Senior Independent Panel Member who ‘should be independent of the department and of the body concerned and should not be currently politically active.’
The fear Riddell expressed to PACAC was that this balance was being upset. He said there had been three occasions in the last few months where he had to push back against Departments on the selection of Senior Independent Panel Members who were not party-independent. Furthermore, there had been a more general growing tendency towards putting political allies on the panels.
Rather than being content with having the ultimate decision on appointment, it seems that ministers have increasingly been trying to ‘tilt the process’, to use Riddell’s phrase. This undermines the claim that there is an open and fair competition for each position, and that candidates are ultimately selected based on their merit.
Riddell also made clear his displeasure with the recent reports that emerged about the BBC and Ofcom positions, which suggested that certain individuals had already been decided upon prior to a proper process. “I think it is extremely unhelpful… by allowing the stories, however accurate or otherwise, to float, there is a danger of prejudicing fair and open competition,” he said. Two highly qualified candidates had been in contact to express their hesitancy about applying thanks to the briefings.
Is any of this really so concerning? Ministers already have the final word on appointments to public bodies regulated by the Commissioner, what does it matter if they have more of a hold on the process as well?
There are three main reasons why Riddell’s comments are significant and describe a worrying development.
First, there is a constitutional component to the role of the Advisory Assessment Panel; they are tasked with determining whether candidates are capable of upholding the Seven Principles of Public Life, and whether there are any conflicts of interest at play. The Nolan Principles of Public Life are widely recognised as constitutional standards, despite not being on a statutory footing. Likewise, in guarding against conflicts of interest they are ensuring another constitutional principle is upheld: that of public service in the general interest. This responsibility falls especially to the Senior Independent Panel Member, which is why the revelation that ministers have been putting people forward for this role who lack the necessary independence is of particular concern.
This brings me to the second point. Whilst it may not be the most flagrant or consequential of improprieties, the government’s attempts to ignore the independent aspect of the appointment process highlights their disregard for established norms and processes. Our uncodified constitution depends on the executive following and upholding certain conventions and standards. The present government have shown themselves willing on several occasions to disregard constitutional norms and their actions in this instance provide additional evidence of this attitude.
Finally, anything that undermines the perception that the appointments process is fair and open is likely to put off potential candidates, weakening the strength of the field. This runs counter to the intention of the Code that the process ‘ensures that the best people, from the widest possible pool of candidates, are appointed to these roles.’ As Riddell explained to PACAC, the ideal is a balance between ministerial decision-making, reflecting their accountability to Parliament for public appointments, and a fair and open process that produces a choice between the strongest, most qualified candidates.
Upsetting this balance is likely to lead to more biddable but less capable people in public office. The Prime Minister, in his approach to the Civil Service and his Cabinet, has indicated that this is his preference. The problem with this, as many have noted, is that it will lead to poor policy and bad outcomes – responsibility for which he will eventually not be able to avoid.