The report on Richard Sharp raises big constitutional questions

The Heppinstall report into Richard Sharp’s appointment as BBC chair raised questions about possible reforms and has sparked calls for more far-reaching changes. Peter Riddell surveys such proposals, arguing that the merits of different options need to be carefully weighed.

The long-awaited report by Adam Heppinstall KC into the appointment of Richard Sharp as BBC chair has not only led to Sharp’s resignation, but also triggered a debate about changing how public appointments are made to reduce or eliminate the role of the Prime Minister. This links with many of the themes I discussed in my inaugural lecture at UCL on 26 April.

Having been Commissioner for Public Appointments at the time of Sharp’s appointment, I welcomed the setting up of the Heppinstall inquiry following the disclosure in January that Sharp had been involved – on his own account in a very limited way – in previously secret discussions about arranging financial support for Boris Johnson, the then Prime Minister, in autumn 2020 at the same time as he was applying to become BBC chair.

Heppinstall concluded that the original appointment process had been ‘good and thorough’ but that Sharp had breached the government’s Governance Code for Public Appointments by not disclosing to the advisory interview panel that he had met Johnson to inform him of his application and that he was going to meet Simon Case, the Cabinet Secretary, to attempt to introduce him to someone (Sam Blyth, a distant cousin of Johnson) who might assist the Prime Minister with his personal finances.  This created a potential conflict of interest and the risk of a perception that Sharp would not be independent from Johnson. The Sharp/Case meeting – and differences about what was said and recorded – has attracted considerable attention but is largely irrelevant, since Case never met nor contacted Blyth.

A breach of the Code does not invalidate an appointment, and who knows what the interview panel would have recommended if they had known about Sharp’s role in the loan. Heppinstall recommended that the Secretary of State for Culture, Media and Sport, Lucy Frazer, should consult with the BBC Board about Sharp’s account. But Sharp pre-empted them – and spared further problems for Rishi Sunak, his former banking colleague – by resigning the moment the report appeared. Just as significant, however, is what Heppinstall mentioned but did not pursue since he saw it as outside his remit – in particular, conflicts of interest involving Johnson. He quotes the Ministerial Code, which states that ‘ministers must ensure that no conflict arises, or could reasonably be perceived to arise, between their public duties and their private interests, financial or otherwise’. Yet, on the face of it, Johnson had such a conflict when he met Sharp, and was told about the latter’s intention to apply to become BBC chair and about his involvement in helping, albeit indirectly, with his personal finances. At this point, Johnson should have recused himself from any role in the BBC appointment. It is hard to see what can happen now given the events were two and a half years ago; but this aspect of the affair should not be forgotten.

Heppinstall makes some important further suggestions, which have been almost entirely ignored in the media coverage. He proposes a review of conflict of interest guidance as it applies to both candidates and appointing ministers – and to the relationships and interactions between them. He also recommends that consideration be given to whether the Governance Code for Public Appointments needs to be strengthened.

The report underlines the extent of Downing Street’s involvement in the Sharp appointment beyond the Prime Minister’s long-established role in taking the final decision for such a high-profile and senior post. At the time that the long-list of candidates was being cut down at the sift stage, ‘Number 10 noted its support for Mr Sharp’s candidacy’; and when a short-list for interview was drawn up shortly afterwards, it commented that he ‘looked like a strong candidate’. Similarly, when Sharp was interviewed, Number 10’s support was made known to the interview panel – and he was the only candidate identified to the panel ‘as having his candidacy supported by ministers’.

Such open backing by Number 10 – which is permitted by the Governance Code – has been seen as making the decision a foregone conclusion. But that is not necessarily so. The public appointments process has always been driven by ministers—that was explicitly recognised by the first report of the Committee on Standards in Public Life – the original Nolan report – published in 1995. It involves a two stage process: first, open applications which are assessed by an interview panel against published person and job criteria to identify who is appointable, but with no ranking; and, second, a choice by ministers from those judged as appointable.

The key, therefore, is getting over the bar to be judged appointable. In this case, Sharp, who was widely acknowledged to be a very strong candidate, was just one of five people assessed as appointable. In other cases, however, candidates preferred by ministers have, to my knowledge, not been judged as appointable. They include, on his own admission, Paul Dacre of the Daily Mail, who was ruled out from the competition for Chair of Ofcom in spring 2021. But provided a candidate does clear the bar of appointability, ministers can pick whom they like.

The Heppinstall report did, however, rightly criticise the pre-briefing of preferred candidates by official sources: Charles Moore and, after he withdrew, Richard Sharp, for the BBC; and Paul Dacre for the parallel competition to head Ofcom. I publicly protested at the time at the pre-briefing – presumably by advisers in Number 10 – since it cast doubt on the integrity of the process and, as the Heppinstall report suggests, may have discouraged people from applying for the roles. There may have been some chilling effect, though at the time the main deterrent may have been the government’s coolness towards any candidate who had been publicly opposed to Brexit. In the end, there was quite a strong field for the BBC role, with four other candidates in addition to Sharp judged appointable by the interview panel. By contrast, there was a much bigger chilling effect in the Ofcom appointment, where there was a small and patchy field and the competition was rerun after Dacre was rejected.

Mr Heppinstall calls for such pre-briefing by ministers to be prohibited. This may be hard to achieve in practice, since such briefing is usually done on an unattributable and deniable basis and ministers can always deny responsibility. The report recommends that in such circumstances mitigating steps should be considered. In this case, officials at the Department for Culture, Media and Sport (DCMS) had suggested that potential candidates should be called and alerted to the competition, but this was rejected by ministers. This was a mistake if only in perception of trying to run an open competition.

Looking ahead, the government has said it will run a fresh competition on the established basis. To assure public confidence, this should mean no pre-briefing about favoured candidates. It would probably be desirable to employ head-hunters to seek the widest possible field of strong candidates. The advisory interview panel did a good job in ensuring a fair and open competition in 2020 – the problems lay elsewhere. The new panel must be seen to be fully independent of ministers in ever way. Similarly, any potential conflict of interest on the part of ministers or of short-listed candidates must be fully disclosed.

Some commentators and former senior BBC staff have argued that this does not go far enough and that the whole process should be independent – namely, that the Prime Minister and ministers should not decide who becomes BBC chair. Instead, there should be some form of independent or perhaps cross-party commission to interview and decide, as the Labour leadership has proposed. But this raises difficulties similar to those a decade ago when the press complaints procedures were changed. Who defines what an independent person is? And who does the appointing? Also, who is accountable, since the BBC is in the public sector and is funded by a compulsory levy on users fixed by the government? Moreover, should party donors or supporters, as Sharp had been, be barred from taking the post? In the past, prime ministers have appointed allies to the role and the general policy is that party donations should be neither a bar nor a qualification for public appointments.

It is quite right that these issues should now be debated – even if they are unlikely to apply to the competition for the next BBC chair – and there are several possible models including the Judicial Appointments Commission approach of leaving ministers with one choice which they can accept or reject. There are, however, big constitutional questions of ministerial prerogatives. Ministers also have rights, as I entitled my inaugural lecture.

If you enjoyed this post, you might wish to sign up to attend our summer conference on 28 and 29 June, which is free to attend and open to all. Entitled The Future of the Constitution, it will include a panel discussion on the topic of constitutional standards with the following speakers: former Independent Reviewer of Terrorism Legislation Lord (David) Anderson of Ipswich KC, Dr Hannah White, Director of the Institute of Government, and former Attorney General Jeremy Wright KC MP.

About the author

The Rt Hon Sir Peter Riddell CBE is an Honorary Professor at the Constitution Unit UCL. He is a former Commissioner for Public Appointments and was before that Director of the Institute for Government.