Earlier this year the government published Sir Gerry Grimstone’s report on public appointments, proposing a dismantling of the Nolan system of regulation that has been in place since 1995. Sir David Normington, whose term as Commissioner for Public Appointments ended shortly after the publication of the Grimstone report, has been an outspoken critic of the proposals. At a Constitution Unit seminar on 8 December he explained why he believes they represent a step in the wrong direction. This post is adapted from his speech.
Ministers make on average over 2,000 appointments each year to boards of about 300 public bodies and statutory offices. The bodies touch every aspect of our lives. They include regulators like the boards of Ofcom and Ofwat; inspectors, like the Chief Inspectors of Schools, Police, Probation and Prisons; funders like the Arts Council and the Big Lottery Fund; advisory bodies like the Committee on Climate Change; and a multitude of executive bodies, like NHS trusts, national parks, museums and galleries.
It matters who fills these roles. The boards themselves need to comprise well-functioning teams of skilled people from diverse backgrounds who can command public confidence. At the same time these are ministerial appointments and it is essential that those appointed are willing to work within, and not against, the framework of the policy that the government of the day has set down.
There is, however, a balance to be struck between ministers’ right to appoint and independent oversight and regulation. Think of it as a spectrum. At one end ministers have almost complete freedom to make appointments as they think fit. At the other, appointments are handed over to an independent body and ministers forego their powers to appoint altogether. Over nearly 30 years policy and practice has flowed to and fro across this spectrum; and so have the arguments about where to draw the line.
The Nolan Committee
Before 1995 there was no formal system of regulation of public appointments, so ministers could do pretty much as they wanted. The first report of the Committee on Standards in Public Life in 1995 changed all this. The early 1990s had seen increased media scrutiny of MPs and ministers and an increasing number of alleged and actual financial and sexual improprieties. There was a popular narrative about declining standards in public life. The word ‘sleaze’ was in common parlance.
In response the Prime Minister, John Major, set up the Committee on Standards in Public Life under Lord Nolan, a judge of impeccable credentials. He was asked to report within six months on how standards in public life could be improved.
The Committee chose to concentrate on the three issues which it judged were causing most public disquiet. One of these was what it called ‘executive quangos and NHS bodies’. A substantial section was devoted to how the boards of these public bodies were appointed.
The Committee did not find conclusively that there was chronic cronyism in ministerial appointments. However, it concluded, that, whatever the reality, the public believed that appointments were made on the basis of political and personal allegiance to the government of the day. And, said the committee, such was the informality and opaqueness of the public appointments process that it was impossible to allay public concerns.
So the Nolan Committee recommended:
- first, that merit should be the overriding principle to be applied in all public appointments
- secondly, candidates applying for public appointments should be impartially assessed by a panel with an independent element in its membership; and
- thirdly, there should be an independent Commissioner for Public Appointments with the power to ‘regulate, monitor and report on’ public appointments.
The Committee was clear that ministers should have the final say over who was appointed. But it was the Commissioner’s job to set down the required standards in a Code of Practice. Ministers, it said, should only appoint people assessed as suitable by a selection panel and would need to justify publicly any departures from the best practice set down by the Commissioner.
These recommendations were accepted in their entirety by the government. They were enacted through an order in council and have formed the regulatory framework governing public appointments ever since.
The Cameron government
In 2012 something changed. The Prime Minister, David Cameron decided to take a much more activist approach to public appointments. An adviser on public appointments with a Conservative background was appointed to No. 10. New guidance was issued encouraging Secretaries of State to be much more involved at every stage of competitions, including scrutinising shortlists. The Minister for the Cabinet Office held regular meetings to scrutinise progress and intervene if he considered shortlists unsuitable. There was anecdotal evidence that candidates’ political allegiances were being researched.
Many ministers continued to focus on getting the best people irrespective of political allegiance. But over the following three years there was an upsurge in ministerial activism: objecting to the composition of panels; putting pressure on civil servants on panels to support the minister’s candidates; insisting that Conservative supporters should sit on panels, even sometimes as the independent member; demanding that panels put their favoured candidates on shortlists or even on the final list of appointable candidates; and refusing to appoint for weeks, even months, when the panel had not recommended their favoured candidate.
This new activism had two sources. First, the Conservative part of the coalition government believed that the Labour government had used its 13 years in power to fill public bodies with supporters and sympathisers and that it was time to reverse this trend. There is very little hard evidence of this but it was a deeply held view.
Secondly, there was also a strong view from the Prime Minister and his closest allies that an elected government must be free to decide who to appoint. It was said to me by ministers that it was not for an unelected office holder to stand in the way of the democratically elected government. This, of course, conveniently ignores the fact that an elected government had set up the regulatory system in the first place in response to public disquiet; and appointed me to provide independent oversight of the government’s actions and to speak out when I saw abuses.
The Grimstone review
Just before the 2015 election Francis Maude announced the government’s intention to set up an independent review of the public appointments system and the role of the Commissioner. Sir Gerry Grimstone, the chairman of Standard Life and now also deputy chair of Barclays, was appointed to carry it out.
Sir Gerry reported before Christmas 2015; and after a three month silence the government finally published his report in March 2015, two weeks before the end of my statutory term of office. On the basis of little analysis and even less argument, it proposed a dismantling of the Nolan system of regulation that had been in place since 1995 and a decisive shift back along that spectrum to ministerial control over public appointments. The government accepted the report and committed itself to implement the recommendations.
On the central issue of ministerial control, Sir Gerry argued that he had retained a robust regulatory framework. But it is hard to square that with the actual contents of the report.
First, he proposed that the power to draw up the Code of Practice and, therefore, to set the rules should be transferred from the Commissioner to the government. A clear and, in my view, a disastrous reversal of what Nolan recommended.
Secondly, the selection panels, now to be called advisory panels, are to lose any semblance of independence. They are to be chaired by government nominees. The Commissioner’s Public Appointments Assessors who currently act as independent chairs of panels for significant appointments are abolished. The report puts a lot of stress on new senior independent panel members, who are to sit on panels for every significant appointment. The problem is that these are to be appointed not by the Commissioner but by the minister.
Thirdly, ministers are to be allowed to appoint candidates who have been assessed as not appointable by the selection panel, although they will have to explain their decision publicly.
Fourthly, ministers may decide to dispense with a competition altogether and just make an appointment. The present requirement to seek the explicit approval of the Commissioner for an exemption is abolished.
Finally, almost all the current powers of the Commissioner are to be removed. He continues to have the power to monitor and report annually, although the report casts doubt on his ability to have independent monitoring capacity. He has the right to be notified, but not consulted, about panel composition and when ministers decide to appoint an unappointable candidate or to appoint without a competition. This can only mean that he is consigned to speaking up after the event, rather than before it has taken place.
Both Sir Gerry and the former Minister for the Cabinet Office have claimed that the report builds on the ‘valuable’ work I did as Commissioner during my term of office. So let me be clear that it does no such thing. It undermines and dismantles almost everything that I and my three predecessors as Commissioner have sought to do in the public interest.
I don’t expect you just to take my word for it. This is what the Public Administration and Constitutional Committee (with its Conservative majority) concluded in its own report on the Grimstone Review:
‘We have received evidence of widespread disquiet about Sir Gerry’s proposals. Although the government has adopted them, it should think again… the Grimstone review threatens to undermine the entire basis of independent appointments… it effectively demolishes the safeguards built up by Lord Nolan.’
We still wait – 21 months after the announcement of the Grimstone review – to see the Code of Practice, which will contain the government’s definitive response. Meanwhile the real problems in the public appointments system – long drawn out competitions, lack of ethnic minority candidates – go unaddressed.
Elected governments are entitled, of course, to set the framework of regulation for public appointments. The problem is that at the moment they can do so through order in council without parliamentary oversight. This is not going to change anytime soon but it is not acceptable.
However, if the Grimstone review is implemented, then the case for more parliamentary scrutiny of individual appointments, through more select committee pre-appointment scrutiny hearings, becomes unanswerable. Experience of such scrutiny is mixed, but in future committees may need to scrutinise the processes by which a particular candidate was chosen and reinforce the Commissioner’s power to speak out about abuses.
My greatest disappointment about the last few years is that the original reason for independent oversight of public appointments has been lost sight of. The Nolan Committee’s proposals were designed to rebuild public confidence in the integrity of public appointments. Every time a government takes a step back from the Nolan settlement, every time a minister seeks to subvert a process by packing a selection panel or ignoring the outcome of an independent assessment and every time someone is appointed for reasons of political allegiance rather than merit then public cynicism grows. That puts off people from applying. It also shows a carelessness with public attitudes which undermines public confidence in the political process. The latest IPSOS Mori veracity index shows public trust at 15 per cent for politicians and 20 per cent for government ministers, figures which have certainly not improved since Nolan made his recommendations. PACAC in its report clearly understood the public confidence issue. Sadly, the Grimstone report and those who support it do not.
Finally, there are some grounds for optimism that the government will move a little bit back down the spectrum away from the full Grimstone proposals. The newly appointed Public Appointments Commissioner is Peter Riddell, a person of great integrity. We know that he has been arguing with the government for an increase in his powers, including the right to be consulted on the appointment of senior independent members and on exemptions to the Code. If in addition he is prepared to speak out when he sees abuses then we may begin to the first steps in rebuilding an effective system of oversight. We wait for the Code of Practice and to see how the government responds when it is next challenged.
This post was adapted from a speech Sir David Normington delivered at the Constitution Unit on 8 December 2016. You can read the speech in full here.
About the author
Sir David Normington was First Civil Service Commissioner and Commissioner for Public Appointments from 2011 to 2016. He was previously Permanent Secretary at the Home Office from 2005 to 2011 and at the Department for Education from 2001 to 2005.