Quis custodiet ipsos custodes? So asked Juvenal in Satire 6; “But who will keep guard on the guards?”
Since the mid-1990s it has been Lord Nolan who has kept guard on the guards, both during his life and, after he died, through his legacy. He was a member of the Judicial Committee of the House of Lords and the first chair of the Committee on Standards in Public Life, which produced the so-called “Nolan Principles.” This august body was set up largely as a reaction to the cash-for-questions scandal which plagued the Major government, one of several “sleazy” episodes at the time. It was charged with considering the “standards of conduct of all public office-holders.”
In John Major’s words, the committee was to serve as “an ethical workshop.” And it did.
The committee’s creation was a major step forward, only 25 years ago. It insisted on the principles of “Integrity, Openness and Honesty,” among others. It begat an independent system for public appointments and led to the establishment of the Parliamentary Commissioner for Standards, among other initiatives. But our current government is fast unravelling the delicate edifice of standards in who holds high office, deliberately or negligently. The appointment of the new chair of the Office for Students this month is a case in point; a Conservative-dominated panel appointed a former Conservative MP with not a scintilla of experience in the education sphere, and with a clear brief to stoke the culture wars in the service of the Conservative Party. The appointments of Dido Harding and Kate Bingham to NHS bodies, conducted without competition and outside the usual public appointments processes are other examples of alleged cronyism in this area.
It is difficult to imagine the present government welcoming such a genuinely independent review as was Nolan’s.
Some, like Lord Bew, the chair of House of Lords Appointment Commission (and former chair of the Committee on Standards in Public Life), think that the moral framework which has guided British public life for the past quarter of a century is well and truly spent. He pointed in a recent lecture to the fact that over the past few months a new phrase has been in vogue: “a post-Nolan age.”
This is what I want to investigate, but as a spoiler I can say at once that I think he is right.
Politicisation is the thrust of the problem. Ministers’ desire to have tighter control is the driving force behind a series of changes of rules and approach which can be dated back to the Grimstone Review in 2016, but have accelerated under Johnson. Grimstone, a former chairman of Barclays plc, has recently been made a Conservative peer.
What are public appointments?
Appointments to public bodies, posts which are listed in an Order in Council, are quite amorphous. They cover the whole gamut, from chairing a big high-profile body like the BBC, to governing institutions like the Bank of England, to heading up small, technical advisory bodies for which competition may not be so fierce. They extend to publicly funded bodies like museums or NHS boards. They are “real” jobs—not symbolic appointments but rather posts that come with substantial responsibilities and decision-making.
The overall appointments edifice is complex. I am not talking about the appointments of senior civil servants, which are separately overseen by a statutory Civil Service Commission including the first civil service commissioner, or judicial appointments, which are regulated separately by the Judicial Appointments Commission. Here, I concentrate on appointments to public bodies—and what has gone so wrong with them.
So how should it all work in practice? The public appointments process is run by the sponsoring government department, which establishes an advisory assessment panel. Roles must be advertised on the public appointments website.
A shortlist is selected for interview by the panel, which is usually chaired by a senior official. Panels must include an independent member and a senior independent member for the core list of high-profile bodies. Having conducted the interviews, the panel then provides ministers with a list of appointable candidates.
The guarantee embodied in Section 1 of the Constitutional Reform and Governance Act 2010 stipulates that hiring should be based on merit, along with “fair and open competition.” It appears cast iron. But it is, of course, less clear what merit means in any particular circumstance, and opaque who (if anyone) could take legal action if the protections were infringed. It can also be undermined if more and more important roles are created outside the reach of the Order in Council.
Although the minister may suggest possible applicants and be consulted on the selection criteria, thereafter they are expected to leave the process alone so that it is non-political. The commissioner’s role is chiefly to audit departments’ choices against the Governance Code and to investigate complaints. Although there are powers under the Order in Council (the latest of which appeared in 2019) to compel documents, it is difficult for the commissioner to tell whether all documents have been disclosed, and there are no powers to impose legal sanctions (such as a court would have) if they are not. Thus the commissioner does not have the powers to be forceful, especially in recent years.
Indeed, there is no real compulsion to obey the code beyond the court of public opinion. This is too blunt an instrument. What’s more, ministers can in the case of a particular appointment reject the whole candidate list and ask for the competition to be re-run, while the latest amendment to the Ministerial Code allows them to pick someone whom an appointment panel has found to be unappointable—although this is not believed to have happened yet, and would no doubt cause outrage if it did.
The Grimstone Review, commissioned by David Cameron immediately after the 2015 election, increased ministers' power over public appointments in that parliament. The whole thrust of it was to weaken the central regulator (the commissioner) and to put the primary responsibility for ensuring that ministers comply with the rules on permanent secretaries. A determined team comprising a secretary of state and their SpAds, who want to push through a political appointment, will simply not worry about the very busy permanent secretary to the same degree as they would about an effective and more public external regulator. In an audit of what has gone wrong, this review is another chief culprit.
If you still doubt that recent appointments have not kept up with the basic Nolan principles, consider the number of appointments which are made without competition. The Governance Code itself allows ministers to make public appointments without competition, but only “in exceptional circumstances.” In any such case, they need to consult the commissioner before the appointment has been announced. So this is a key loophole: the flexibility in the term “exceptional circumstances.”
There is, of course, sometimes a need to appoint people quickly, and in those cases, best practice for appointments may be impractical. Such instances should be only to allow time for a proper competition to take place or following a failed competition (when no acceptable candidate emerges) or a sudden resignation.
“If you set up a new body or tsardom and appoint whoever you like to run it, you can effectively bypass the public appointments criteria”
What should not be permitted is the sort of flanking movement created by setting up wholly new institutions and then not submitting them to the public appointment processes at all. This is another loophole: there has been a proliferation of rather vague tsar positions under this government which are not subject to the Order in Council listing public appointments, or indeed any regulation or due process at all. This has occurred ad hoc, and is classically territory where “chumocracy” rules (or rather lack thereof) apply. Tsars can be called to appear before select committees, but are not bound to face other parliamentary or media questioning. The obvious point is that if you can set up a new body or tsardom and appoint whoever you like to run it, you can effectively bypass other institutions and the inconvenience of the pubic appointments criteria.
Notorious examples include the heads of NHS Test and Trace, Dido Harding, and the vaccine programme, Kate Bingham, who both happen to be the wives of Tory MPs—the former the wife of John Penrose, who ironically enough is the anti-corruption tsar. Bingham had relevant experience in biotech venture capital and, as things stand, appears an inspired choice—but that does not make the (lack of) process proper. Harding has also been appointed to head the National Institute of Public Health without open competition. In respect of these positions, the prime minister should be held to account for the appointments which did not go so well, as well as for not having a fair process in place for appointments that did lead to good outcomes.
Another yawning gap in this coverage is non-executive directors of government departments, posts which do not fit well within the system of regulated public appointments. They may, however, have considerable influence over government policy—although this is not so in all cases (it is often a question of the personalities involved both of the ministers and the NEDs). They can have access to very sensitive information and formal roles in departments (e.g. chairing audit committees, input into performance reviews of permanent secretaries and other officials, and some specific responsibilities in managing public money), as well as much scope for informal influence. Michael Gove paved the way in appointing personal allies as non-execs in the Cameron government. Liz Truss has now put on the board at the Department of International Trade two former Tory MPs, Douglas Carswell and Stephen O'Brien, and a former vice-chair of the Conservative Party, alongside a former Labour SpAd.
The idea of including non-executive directors in the public appointments structure was debated in 2016. The conclusion then was that their role depended so much on the secretary of state and what he or she wanted them to do that it would be very hard to classify them with other public appointments. However, when some non-exec members of departmental boards are announced, the appointment is said to have followed an open competition when in fact there was no proper check or scrutiny—in other cases, they are announced as the result of direct ministerial appointment. What is needed at the very least is greater transparency about how they are appointed.
Briefing the media in relation to forthcoming appointments is another abuse because it makes it appear that a competition is a foregone conclusion (and puts off other candidates from applying or pursuing an application already made). This habit again has gained greater traction recently, and has received the critical attention of the commissioner. In his report for 2019/20, Peter Riddell, the outgoing public appointments commissioner, argued that telling the press that “someone is a favoured candidate for a post—or has been effectively lined-up—is damaging, not only by appearing to pre-judge the outcome of an open competition but also by discouraging other strong and credible candidates from applying.” This happened most recently and blatantly in the cases of Richard Sharpe, who, after a period of media briefing about Charles Moore, was widely touted in the media as the next chairman of the BBC before appointment, and Paul Dacre, former editor of the Daily Mail, who was trailed as chair of Ofcom (although this has not at the time of writing been confirmed).
Back to politicisation
So, fundamentally, the appointments process has been undermined by political meddling. The practice of picking political allies can be traced back to New Labour (if not earlier), which in particular ensured that the chairs of NHS trusts were Labour-leaning. Some Tories think this progressive bias still prevails. The ConservativeHome website has a feature “Calling Conservatives; New public appointments announced” which encourages its readers to apply for vacant posts because of the theory that so many are in the hands of Labour supporters. The Taxpayers’ Alliance reported in 2018-9 that of 1,844 appointments where the political allegiance was declared, 47.4 per cent were Labour-supporting, while 31.6 per cent were Tory-supporting. (But this is a contested area, given that the 2019-20 Annual Report by the Public Appointments Commissioner cites the figures of 38.3 per cent and 36.8 per cent respectively.) What is clear is that Labour supporters now face an uphill struggle to get appointed to major boards (or even selection boards), including in the cultural sector. One columnist of my acquaintance was not called back as a member of an independent scrutiny board. (S)he feared that this was because (s)he used to write for the Guardian and that was anathema to ministers., despite her popularity with civil servants.
What is different now is the shamelessness of this government’s approach, and the scandalous nature of certain individual cases, coupled with a general weakening of checks and balances. Consider Lord Wharton already mentioned; at the time of his appointment to the Office for Students post, the commissioner raised concerns about a packed selection panel, with former Tory councillor Baroness Wyld, former Tory candidate Patricia Hodgson, and Nick Timothy, former chief of staff to Theresa May. Riddell has been rightly strident in his public statements about this process but he can huff and puff all he likes; he has real no power to restrain it.
We are seeing the government politically taking control, in order to have more like-minded people around in both senior and less prominent roles, and more believers in the project.
Where we stand now
What I have found is a gradual whittling down of the Nolan Principles over the years and a headlong decline under Boris Johnson.
If the erosion of the Nolan Principles continues, the landscape could be completely different by 2024. We should return to the Nolan principles.
Alex Thomas, of the Institute for Government, sums up the situation in this way: “In the end, making the right public appointments is about getting the best people in to do the job. The tried-and-tested way to do that is with an open competition, and ministers shouldn’t undermine those competitions by stacking panels or cherry-picking candidates. There will be times when someone is needed more quickly and the process is set aside—then it’s really important that public appointees have a clear remit, are properly held to account and only serve a time-limited term.”
One only hopes that all concerned with appointments will remember the old saying: “The British acquire their institutions by accident and lose them in a fit of absent-mindedness.” We are at risk of doing so. We need to be active in guarding the guards.
