In September the Commons Public Administration and Constitutional Affairs Committee published their report into Pre-Appointment Scrutiny Hearings. Robert Hazell gave evidence to the committee’s inquiry on the subject; here he discusses the report’s conclusions, and describes the events that led to its being undertaken, including two Constitution Unit studies that evaluated the effectiveness of such scrutiny.
The recently published report of the Commons Public Administration and Constitutional Affairs Committee (PACAC) was the product of an inquiry undertaken at the request of the Commons Liaison Committee, because of growing concerns amongst Select Committee chairs that pre-appointment scrutiny hearings were a charade, especially when the government ignored committee recommendations. The Liaison Committee and PACAC both heard evidence from the former Constitution Unit Director, Professor Robert Hazell, who explained that pre-appointment hearings were more effective than MPs recognised, and suggested ways in which they could be made more effective still.
Pre-appointment scrutiny hearings were introduced by Gordon Brown, when he became Prime Minister in July 2007. In his Green Paper The Governance of Britain he proposed:
… that the Government nominee for key positions … should be subject to a pre-appointment hearing with the relevant select committee. The hearing would be non-binding, but in the light of the report from the committee, Ministers would decide whether to proceed. The hearings would cover issues such as the candidate’s suitability for the role, his or her key priorities, and the process used in the selection.
The Cabinet Office and the Liaison Committee subsequently agreed a list of just over 50 key positions which would be subject to the new procedure. Ten years later, by the end of the 2015-17 Parliament, there had been almost 100 scrutiny hearings, involving almost every single departmental Select Committee. The Constitution Unit conducted an early evaluation of the first 20 hearings in 2009-10, and a second study in 2016-17, looking at a further 70 hearings.
From the beginning, the then Commissioner for Public Appointments, Janet Gaymer, expressed a series of reservations: that pre-appointment hearings might deter good candidates; politicise the appointments process; and that committees would ask inappropriate questions. Our evaluation of the first 20 hearings found that her fears had proved unjustified, and that there was a positive benefit in terms of democracy, accountability and transparency. But we also found parliamentarians frustrated by the new process, not least because in the one case where a committee had issued a negative report, the government nevertheless went ahead with the appointment. This led many MPs to feel the hearings were a charade: they wanted a power of veto, or the ability to see a wider range of candidates. This is why in 2016 the Constitution Unit decided to do a further study of the 70 pre-appointment hearings held between 2010 and 2016, to see if the process had become any more effective. Like the first study, it was led by Peter Waller, a retired senior civil servant, supported by three young Research Volunteers, Qalid Mohamed, Turan Hursit and Harmish Mehta.
By the time of our second study there had been many more negative reports. We found nine hearings which had raised issues of concern. In four cases the candidate withdrew; in two more the appointee subsequently resigned. We listed all these cases in our first submission to PACAC, to show that pre-appointment scrutiny does have an impact, even though committees have no power of veto. It also has an important deterrent effect against excessive ministerial patronage. But Select Committees don’t recognise their influence. It is rare for an individual committee or chair to have experience of thwarting an appointment, with only six cases in the last ten years. So for most committees, most of the time, pre-appointment scrutiny can feel like a bit of a chore.
We encouraged committees to adopt a bolder, but more selective approach. They need not limit their scrutiny to the Cabinet Office ‘top 50’ list. The new Commissioner for Public Appointments, Peter Riddell, has published a list of almost 100 significant appointments. If the Commissioner sounds the alarm, committees should summon the Minister or Permanent Secretary to explain why they have bent the rules. It is for committees to decide which appointments merit scrutiny, whether one of the top 50, or one falling outside. This would give committees greater control over their workload, and make pre-appointment scrutiny seem less of a chore.
As well as being more selective, we encouraged committees to be more systematic and more strategic, in two ways. First, at the start of a Parliament (or in each session), each committee could discuss which posts coming up are of particular interest: they need not be prisoners of the Cabinet Office list. Second, we encouraged them to follow the Treasury Committee’s example in using written questionnaires. This saves time at the hearing, and enables the committee to focus on the main points of interest. A couple of committees started using questionnaires after a private briefing we gave to their clerks in 2017, and we appended a generic model questionnaire to our second submission to PACAC.
PACAC were receptive to these suggestions, and in the summary of their report said this:
Committees should ask candidates to fill out questionnaires in advance to help focus hearings. The should also take a more flexible and strategic approach to choosing which posts to hold hearings for, and not be bound by the Cabinet Office list…
PACAC also encouraged committees to be more active in scrutinising the government’s commitment to increasing diversity in senior appointments, and in ensuring that the appointments process is properly resourced and prioritised. They exemplified these points in their recent report on the new chair of the Committee on Standards in Public Life. They administered a written questionnaire to the candidate, Lord Evans of Weardale (former head of MI5), and published Lord Evans’ replies with their report. And they lambasted the Cabinet Office for administrative failures, in breach of their own guidelines, in this and two other recent appointments; and for lack of diversity. All the Cabinet Office’s preferred candidates since 2015 have been white males, and Lord Evans is the seventh consecutive man appointed as the permanent chair of CSPL since its creation.
PACAC are right to urge the government to recruit from a wider potential pool of candidates, and Peter Riddell as Commissioner is also strongly committed to increasing diversity. But Select Committees need to be aware that robust pre-appointment scrutiny may militate against diversity. When it comes to selecting a preferred candidate, one of the questions asked is whether the candidate can hold their own in the public arena. That is a necessary quality for people holding senior public appointments, and the pre-appointment hearing is a good test of their ability to withstand public scrutiny. But it inevitably tends to favour people (like Lord Evans) who have already played a part in public life. People from non-traditional backgrounds (whether women or members of an ethnic minority, or from business and the private sector) tend to perform less well in front of Select Committees, simply because they have less experience of doing so.
Notes
This post was originally posted on The Constitution Unit blog and is reposted with permission.
Robert Hazell is a former Director of the Constitution Unit. His most recent work has been on the topic of monarchies, and he led the Unit’s project on Accession and Coronation Oaths. The associated reports (Swearing in the New King and Inaugurating a New Reign) were published on 23 May.