The Public Appointments (Parliamentary Approval) (Scotland) Bill
The Royal Society of Edinburgh (RSE) is pleased to respond to the Scottish Parliament Local Government Committee’s calls for evidence on the Public Appointments Bill. The RSE is Scotland’s premier Learned Society, comprising Fellows elected on the basis of their distinction, from the full range of academic disciplines, and from industry, commerce and the professions. This response has been compiled by the General Secretary with the assistance of a number of Fellows with experience in making public appointments and in undertaking public service.
The specific issues identified in the Bill are addressed below:
Reasoning behind the introduction of the Bill
The proposed Bill aims to provide a transparent parliamentary process that will enhance democracy and remove potential patronage by Ministers. However, the proposal could be seen to duplicate the Nolan panels, which already vet applications for public appointments and consider candidates' suitability. This system provided through the Commissioner for Public Appointments, or in the proposed Scottish Commissioner, has already done a great deal to ensure the fairness and effectiveness of the public appointment process. If there are perceived to be problems in the operation of the present system, the Society believes the Executive and Parliament should, in the first instance, strengthen the existing safeguards rather than establish an additional system of the kind proposed in the Bill.
The Society believes that there would only be merit in Parliament going down the latter road if there was clear evidence that appointment process was not working and that the safeguards were not coping. The American experience of the United States Senate has found that over 90% of names pass without demur and, therefore, the added value gained by the parliamentary process would need to be balanced against the extra burden on parliamentary committee time.
At present, many (if not most) of the appointments covered by the Bill are poorly rewarded with some being unpaid and others offering a small day rate plus expenses. People who apply for the posts, therefore, are generally motivated by some feeling of public duty or by some deep personal interest. It is admirable that such people are prepared to put themselves forward to serve and it is often difficult to find good candidates for many of the appointments. However, a significant proportion of potential candidates will be reluctant to apply if they are to be subjected to a public process whereby their name is put forward to Parliament with the possibility of being publicly rejected.
Key issues raised by the proposed legislation
Section 1: Exercise of powers of appointment
The Bill at Clause 1 (3) proposes scrutiny for all who have their initial appointment extended or renewed. There are already rules in accordance with Nolan principles on these aspects, and if this proposal were enacted, it could have a malign influenceon the conduct and judgement of those who are in office, in terms of political considerations of how the Parliament would view their impartial discharge of their functions.
Section 2: Issues for consideration
As noted above, there is a risk this Bill could deter good people from coming forward. Despite the four topics set out in Clause 2 to which debate is supposed to be confined, in practice, Parliaments are not always good at confining debate to what is strictly in order. "Suitability" (the word used in clause 2(c) of the Bill) is the key issue and questions about suitability can be wide-ranging, depending on the agenda of the person asking them. Members may well not like the previous political affiliations of a candidate and a questioner may link that to "suitability" and in doing so to become intrusive. Conversely there is the risk that to avoid a possible political row, a good candidate with a political background may be passed over by Ministers. Whilst the openness of the process proposed provides a laudable democratic model, statements such as 'the Bill does not allow open-ended and intrusive questioning of nominees' will set alarms ringing for many people. If negative comments are made during the course of the Parliamentary consideration of a particular candidate but the person's candidature is approved, these comments, if reported, could have an adverse effect upon the candidate once in office.
Section 6: Consideration period
The potential delay to the appointment process should also be considered. Public appointments are already a labour intensive process with processes having to begin well in advance of vacancies arising. Having to allow for an additional 28-day (or 56-day) delay under the proposed Bill would extend the process even further. Were the Parliament to veto a candidate, the process would become extended again. This would not be good for the efficiency, or morale, of any Non Departmental Public Body.
Consequences of the Bill’s enactment
If the proposal goes forward, it may be necessary to introduce some greater incentive for individuals to put themselves forward for consideration for appointments. The Bill draws on America for its model, however, attitudes to public duty in that country are different to those in Scotland, and many public offices have a significant direct or indirect level of reward. If Scotland is to embrace the American appointment process, it may be necessary to embrace it in totality and give consideration to the rewards for individuals accepting public offices, as well as the processes governing their appointment.
In responding to this inquiry the Society would like to draw attention to the following Royal Society of Edinburgh responses which are of relevance to this subject: Opening up Quangos (December 1997)