The Regulation of Ministerial Appointments and its unintended consequences

Felicity Matthews
by Felicity Matthews

The Cabinet Office is currently undertaking a review of the role and remit of the Office of the Commissioner for Public Appointments, which is being conducted by Sir Gerry Grimstone.  As part of this review, in September I presented to the Committee on Standards in Public Life the findings of research conducted by Matthew Flinders and me regarding the UK’s experience of public appointments.

Upon the recommendation of the first Committee on Standards in Public Life, the Office of the Commissioner for Public Appointments (OCPA) was established in 1995 to improve confidence in the system by addressing widespread beliefs that ministerial appointments were not always made on merit.  By closely regulating the appointments within its remit, OCPA sought to ensure that ministerial appointments were made solely on merit, rather than party political loyalties or personal ties.  Indeed, comparative research reveals that the patronage capacities of British ministers are now amongst the lowest in Europe; and that OCPA is an exemplar in terms of promoting probity and integrity.

Nonetheless, whilst the capacity of ministers to intervene in public appointments has been reigned in, the involvement of parliamentarians has expanded through the introduction of pre-appointment scrutiny in 2007; and the relationship between the systems of regulation and scrutiny – one independent, one legislative – has drifted without clear consideration of the inter-relationships between these two systems. Our research has examined the impact of these reforms and reveals that the introduction and extension of pre-appointment scrutiny has been underpinned by three key trends.

Firstly, pre-appointment scrutiny has developed without an overall plan, as successive governments have incrementally granted select committees additional powers.  In particular, since 2011 a range of appointments have become subject to ‘double-locking,’ whereby the appointment and dismissal of senior staff could only proceed with the joint approval of government and parliament (e.g. appointments to the Office of Budgetary Responsibility).  Secondly, and flowing out of this, a ‘ratchet effect’ has emerged, as the introduction of pre-appointment scrutiny has fostered demands for additional powers over a widening range of appointments.  Thirdly, and consequently, it is possible to detect a change in tenor as select committees have sought to demonstrate their independence from the executive in increasingly robust terms.

More broadly, our research highlights the risks of self-selectivity and reproduction on the boards of public bodies.  Applicants are required to declare any political activity within the past five years, and latest figures from OCPA reveal that in 2013-15, only 5.0% of appointees or re-appointees declared some form of activity, which constitutes a marked decline from the 9.0% in 2013-14. However, whilst appointments to bodies within OCPA’s remit are fully subject to its regulatory framework, re-appointments remain a matter of ministerial discretion; and critics have highlighted the removal of several Labour-supporting peers under the previous Coalition Government as evidence of politicisation, notably Baroness Sally Morgan as Chair of the Office for Standards in Education (OFSTED).  There remains little evidence to suggest that ministers acted inappropriately; and the Coalition also declined to re-appoint ostensibly Conservative-supporting chairs of public bodies, including Andrew Sells as Chair of Natural England.  Yet, the furore surrounding these cases underlines the extent that popular (mis)conceptions still persist regarding the untrammelled exercise of ministerial patronage.

Such cases have also been cited as evidence of a lack of diversity in public life, and critical questions remain regarding the extent to which public life remains accessible to anyone who is not – to invoke the rhetoric of former Commissioner for Public Appointments Dame Rennie Fritchie – male, pale and stale. OCPA’s latest figures show that the proportion of women newly appointed to public bodies was at an all-time high of 41.1% in 2013-14, rising from 39.9% on 2012-13.   However, when it comes to the most senior Chair appointments, only 24.0% of appointees were female in 2013-14, down from 25.9% in 2012-13; and the number appointments made to candidates from a BME background or with a disability remains stubbornly low, a picture that worsens in relation to Chair-level appointments.

Our research has underlined that many aspects of the appointments process have created barriers to greater diversity in public life, including narrow definitions of expertise and experience, and insufficient remuneration.  Moreover, apropos of pre-appointment scrutiny, our research has also revealed the way in which the adversarial culture of Westminster politics can be daunting to those who are not already part of that world.  Without the sufficient visibility of under-represented groups on the boards of public bodies, preconceptions regarding who is suited to public life may become further entrenched.  Diversity in representation can enhance the legitimacy of political institutions and the quality of the political process; and in a period of burgeoning political disengagement, it is crucial that sponsoring ministers and regulators alike appreciate the potential of public appointments as vehicles of participation both within Whitehall and across society at large.

This blog post draws on earlier commentary by the author provided for the Committee on Standards in Public Life.

If you enjoyed this blog entry, you may be interested in Matt Wood and Matthew Flinders’ Rethinking depoliticisation: beyond the governmental.

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