Parliament’s role in hiring and firing

I wanted to experiment with the format, so I found myself a report on parliamentary reform to have a go on. Select Committees and Public Appointments is by the House of Commons Liaison Committee which is a meta-committee of sorts composed of all other Commons Select Committee chairs ably chaired by Justice chair Sir Alan Beith.

How does it work now?

Ministers choose heads of public offices and quangos (quasi-autonomous non-governmental organisation – a rather vague and imprecise term) on merit from a short-list of advertised-for candidates drawn up by an independent assessor. At the moment, there is a limited system of ‘pre-appointment hearings’ which essentially are interviews by parliamentary committees with the minister’s chosen candidate for a fairly arbitrary set of public appointments. These have been fairly well-received.

There are some special cases: the Comptroller and Auditor-General is appointed by the Queen after an address by the House of Commons, initiated by the prime minister and seconded by the chair of the Public Accounts Committee who agree on the nominee. The Chair of the Office for Budget Responsibility is no longer the gift of the Chancellor but the Treasury Committee has a veto over his appointment and dismissal. The Justice Committee has also been given assurances that the Lord Chancellor and Secretary of State for Justice will accept their verdict on the proposed candidate for Information Commissioner giving them an effective veto.

What’s the history?

Historically, parliament has never had a veto over ministerial appointments to public bodies. There was a brief period, in 1311, when an act of parliament asserted that due to his ‘evil counsellors’ the King should be advised on a few of his appointments by the House of Lords – what are now ministerial positions such as the Lord Chancellor and the Chancellor of the Exchequer, judicial positions such as the Chief Justices of the benches and Chief Baron of the Exchequer, members of the King’s Household like the Treasurer, the Steward of the Household and the Comptroller, and even clerk positions like a clerk to keep the Privy Seal, chief keeper of the forests. These didn’t last long and were more due to the then-King, Edward II, and his appointment of his personal favourites as ministers to the detriment of parliament.

Similar concerns fed into the outrage against King Charles I, but since then ministers have been recognised as the prerogative of the executive. However, patronage appointments to the Civil Service prompted the Northcote-Trevelyan reforms in the 1850’s and 60’s, but patronage in public bodies, still appointed by ministers alone, only gained prominence in the 1970’s*. Minsters made all appointments with little coherent guidelines or oversight.

Back when Select Committees were instituted in 1979 the Labourite grandee Tony Benn wanted them to have a role in vetting the appointments to public corporations but the then-timid select committees didn’t do much on that front.

It was decided by the Thatcher government in the National Audit Act 1983 that the Comptroller and Auditor-General should be appointed by a joint address proposed by the prime minister subject to the agreement of the chairman of the Public Accounts Committee.

Concerns about cronyism and corruption in public bodies caused the Major government to set up Lord Nolan’s Committee on Standards in Public Life in 1994 which among other things recommended ministers making appointments based on independent advice with an independent Commissioner for Public Appointments regulating the process, but parliamentary scrutiny was not advocated. However, a Parliamentary Commissioner for Standards was created on a non-statutory basis the following year, and is appointed by resolution of the House of Commons on the recommendation of the House of Commons Commission, a bipartisan body administering the House of Commons.

When the Blair government set free the Bank of England and gave it control of interest rates in 1997, the Treasury Committee spoke out in favour of confirmation hearings for all appointments to the Monetary Policy Committee of the Bank and tried (and failed) to amend the Bank of England Bill as a result. Instead, they went for it on a non-statutory basis with some of their negative reports on candidates ignored.

In 2000, the Blair government took the initiative in allowing the Electoral Commissioners to be appointed by the Queen after an address by parliament in a similar way to the Comptroller and Auditor-General but the members of the new Electoral Commission was a matter for parliament alone to decide, with a Speaker’s Committee set up to scrutinise the body. Admittedly, the government was rather hasty and unilaterally appointed the first set of Electoral Commissioners before either the Speaker’s committee had been set up or the vote in parliament. Whoops!

In the following years the inimitable Dr Tony Wright, chairman of the Public Administration Committee and later of Wright Report fame, campaigned on this issue and MPs on all sides began to get quite enamoured with the idea. Wright’s committee proposed a series of pre-appointment hearings for major public bodies in 2003, but the Blair government rebuffed its advances.

By 2007, both the Conservative party and the Liberal Democratic party had proposed pre-appointment hearings and in the case of the Lib Dems confirmation hearings including for certain ministers and civil servants.

When Gordon Brown came into office in June 2007, he presented a white paper on constitutional reform including a mostly unspecified set of posts which should be given non-vetoing pre-appointment hearings by parliament. After a series of competing bids between government and various committees, the Liaison Committee finalised sixty positions subject to these pre-appointment hearings.

In what was another development of parliamentary power over public bodies, the Independent Parliamentary Standards Authority was hurriedly set up in 2009 and parliament appoints its commissioners in a similar fashion to the Electoral Commission.

In 2010, with the establishment of the Office for Budget Responsibility, the Chancellor George Osborne gave the Treasury Select Committee a veto over the appointment (and dismissal) of the Chair and this was later enshrined in the Budget Responsibility and National Audit Act 2011. The Lord Chancellor Ken Clarke also stated in the Commons this year that he would accept the Justice Committee’s recommendation in his appointment of the Information Commissioner, giving them an effective veto.

What do they do elsewhere?

Starting with the Anglosphere the US rather famously has Senate confirmation hearings which can veto appointments, however these appointments can be much more partisan than appointments to our own public bodies these days and there’s less of a systematic merit recruitment process. Due to the peculiar system of ‘holds’ where one senator can essentially stop consideration on any appointments and the filibuster where two-thirds of the Senate must vote in favour, the system is not particularly efficient. Stripping away such procedural manoeuvres, the hearings themselves are very partisan with opposition parties often being obstructionist and using the confirmations as political poker chips. Over five hundred posts in the executive branch are subject to these hearings (though ‘recess appointments’ without congressional oversight are possible when congress is not in session) and constitutionally these hearings are for different reasons than those in the UK. The British hearings focus on vetting the top posts in independent institutions while the American hearings focus on all the top government and independent posts, even ones which today are generally accepted as government policy-making posts.

In Canada, all appointments are by ministers ostensibly on merit and the Federal Accountability Act 2006 provides for the government to set up an independent Public Appointments Commission similar to the British Commissioner for Public Appointments. The Harper government set up a secretariat to lay the groundwork by creating guidance and a code of practice and the commission will have oversight over all of Governor-in-Council appointments to ensure selection is on merit and over all ministerial appointment selection processes. Unfortunately, since a Commons committee partisanly objected to the proposed commissioner the prime minister has simply not appointed any more commissioners**. Commons standing committees, as noted above, have the power to summon all government appointments to agencies, boards and commissions (as they are called) for questioning though they don’t tend to use this power very much. It seems that the committees are more partisan and don’t look seriously at the appointments unless there’s partisan gain in it which is a shame. It’s also possible that the committees are deluged by the long list of appointments, since there doesn’t seem to be much of a distinction between the important appointments and the minor ones. There is also a category known as ‘Officers of Parliament’ – people like the Privacy, Chief Electoral, Access to Information, and Official Languages Commissioners and the Auditor-General, who are appointed by the Governor-in-Council and approved by resolution of both Houses (except for the Chief Electoral Commissioner who is by resolution of the Commons). Committees grill them too.

New Zealand’s House of Representatives does not do parliamentary hearings for public appointments except Officers of Parliament, but there is a set of guidelines and advice from other bodies such as a cabinet committee on appointments and honours. Officers of Parliament (the Chief Ombudsman, Controller and Auditor-General and the Parliamentary Commissioner for the Environment) are appointed by the Governor-General on the advice of the House of Representatives Officers of Parliament committee’s advice to the House.

For Australia and Ireland there is no parliamentary scrutiny of public appointments and ministers appoint people with little transparency or accountability (with the exception of the Australian Comptroller and Auditor-General who is approved by the Joint Committee on Public Accounts and Audit), though the new Fine Gael/Labour government in Ireland has proposed some changes.

Dealing with continental Europe, the European Parliament has to vote for members of the European Commission after individual members have gone before the relevant committees for questioning but this is not a national government and so is slightly different in character. All nominees for commissioners are put forward by national governments and are mostly politicians.

In my (hardly exhaustive) searches, I have yet to find a country which does it the way the proposals below work, though there are limited similarities in several countries above. If anyone knows of a country that is closer to the report’s ideas, please comment!

What do they propose?

The committee proposes a three-tier system: Category A posts would essentially be joint appointments of parliament and government as equals and would require the Commons to assent to appointment and dismissal and committees should negotiate with government on salary and terms of reference etc. These nine posts mostly deal with the appointment of other independent people or posts which require the utmost independence from government.

Category B posts would have the process enjoyed by the above Information Commissioner; the committee would have an effective veto. The government could if it really wanted push forward with its candidate but parliamentary pressure would be enough in most cases. It would apparently be open to the minister or the committee to ‘seek a resolution’ on the floor of the House if things completely broke down, but the document does not make clear the specifics. Presumably it means that the committee could table a private member’s motion approving of or deploring the government’s proposed appointment without any statutory power to veto. These 21 posts are mostly regulators, ombudsmen and Inspectorates.

Category C posts would not be subject to any kind of hearing by default but after being informed at the outset of the intent to appoint someone a committee can decide whether to hold the same process as for category B posts. There are 29 of these in the report but it does mention that more would be added on negotiation between committees and departments. These are a wide variety of more minor advisory bodies, inspectorates, ombudsmen, agencies, boards and commissions.

What’s the government think?

We don’t yet know, but we can guess. The report notes that the government was very encouraging when they began this inquiry but when asked to look at which posts should be subject to these types of hearings, they came up with essentially the same list as before. Sounds like they’re not very serious. My guess would be they will be right behind the intent, but we may find they disagree on the specific positions, the process to follow, the timing, etc. We should find out sometime in the next six weeks or so when the government issues its response. This could turn into a bit of a turf war between the newly assertive committees and the government. Even if this goes nowhere, it’s an important show of independence from the new committee system.

How would it be done?

The process for categories B and C could, in theory, be done by committees themselves simply asserting themselves and unilaterally calling candidates as witnesses, by summons if necessary. This would be very controversial and probably counter-productive for the committees. We would need the relevant departments to cooperate would be necessary to give the process legitimacy in the government’s eyes. For category A it would require at the very least a convention between government and parliament followed as the committee advises by legislation to enshrine these conventions as and when the relevant opportunities arise. Readers should be aware this doesn’t include judicial appointments even if the government includes some courts in its list of ‘quangos’. That’s a whole other report which should come out before long…

*Note for interested readers: the number of quangos is extremely uncertain due to the many, many ways of classifying them. The received wisdom is that these bodies have increased vastly in recent years but there’s little evidence of that. We assume there was large growth between 1949 and 1979 but there’s no research I’m aware of and there was little government data on them, let alone systematic data. Between ’79 and ’92 the number appears to have declined. For a more in-depth discussion on this, it might be useful to read Brian Hogworth’s 1995 article ‘Growth of Quangos: Evidence and Explanations’ in Parliamentary Affairs.
**The eternally optimistic secretariat, of course, has been predicting that it will be established ‘next year’ every year since its establishment after 2006. Who knows? It might get lucky, especially now that Stephen Harper (the proposer of the commission) has a majority.
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