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DIVERSITY IN THE PUBLIC APPOINTMENTS PROCESS IN SCOTLAND

ANNEX ONE PUBLIC APPOINTMENTS IN SCOTLAND

This annex provides more detailed information relating to the nature of the public appointments process in Scotland (including participants' perceptions of their roles) and recent policy and practice developments which are of particular relevance to equality/diversity.

THE NATURE OF THE PUBLIC APPOINTMENTS PROCESS

Public appointments are appointments to the board of public bodies (which are often referred to as Non-Departmental Public Bodies, NDPBs or, in previous years, quangos), and these:

" … have a role in the processes of national Government but are not a Government department or part of one, and … operate to a greater or lesser extent at arm's length from ministers. ²⁵"

This includes a range of organisations of different sizes and with different functions. For example, the definition encompasses: Executive and Advisory NDPBs; tribunals; public corporations and nationalised industries; and national health service bodies. There are also variations in factors such as whether they provide services, employ staff and manage their own budgets.

Public bodies are generally established to carry out tasks (providing services to the community or advice to the Government) which it would not be appropriate for departments of the Scottish Executive to undertake. All public bodies are attached to a sponsoring Government department, although they are not actually part of that department.

While these national or regional bodies operate at arm's length, Ministers are ultimately accountable for them. They are generally responsible for approving the overall framework within which the public body works, determining the amount of public funding, ensuring the implementation of Executive policy and approving board appointments.

Public appointees become board members, and have a considerable impact on NDPBs as:

"the boards of these bodies therefore have a very important role to play in helping to develop, shape and deliver government policy and public services^{2 6}".

Upper and Lower tier bodies

Public bodies under the Commissioner's remit are classified depending upon the remuneration provided to their members and the level of Government funding. "Upper tier" organisations have members (excluding the Chairperson) who individually receive more than 5000 per annum in fees or honoraria (excluding travel expenses etc.), or the organisation receives 10 million or more in Government funding. Organisations which do not meet these criteria are classified as "lower tier".

For an appointment to an upper tier organisation, the Code requires that an Independent Assessor has sufficient documentation available to confirm that the Code of Practice has been applied to the early stages of the process. The document "A Guide for Independent Assessors in the Public Appointments Process" (2001) suggests that their role will include reviewing: the person specification; the approach taken; the application form and criteria. The Assessor must then be directly involved in: the shortlisting decision; identification of selection criteria; interview and selection. For lower tier organisations, the Assessor should review documentation up to and including shortlisting. Departments may ask Assessors in these cases to be more involved, depending on the nature of the appointment, and the Commissioner encourages early involvement (although this is at the discretion of the department).

A panel is required for upper tier bodies and an interview must take place. For lower tier organisations a conversation with a purpose will suffice. However, although a full panel is not required, their use is recommended, particularly for high profile or controversial appointments. "A Guide for Independent Assessors in the Public Appointments Process" (2001) suggests that the composition of the panel will generally involve the Independent Assessor, a representative of the sponsoring department and a representative of the NDPB. At the end of the process, Independent Assessors used by the Executive provide a "Statement of Validation" in relation to the Code of Practice, in order to demonstrate that an appointments round has complied with the Code.

The public appointments process

The Scottish Executive is responsible for a high number (over 3600) appointments to public bodies ²⁷. Anyone can apply for a public appointment and there are few age limits. Appointments are initially for 2-5 years, and people who are appointed are usually involved for 1-3 days per month, receiving out of pocket expenses and, in some cases, additional payments.

While public appointments are not considered to be employment, the public appointments process operates according to recruitment practices and principles which are similar to those which are generally used for the appointment of staff in organisations. Unlike staff appointments, however, the process is undertaken through Scottish Executive sponsor teams who manage this on behalf of Scottish Ministers, with the support of a central Public Appointments Team. There are also good practice checks in place through the use of an Independent Assessor and a board member from the NDPB itself is also generally involved. The whole process is overseen by the Commissioner for Public Appointments.

The Commissioner for Public Appointments

The post of Commissioner for Public Appointments was established in 1995 to oversee the public appointments process in England, Wales and Scotland. As noted, new legislation allows the appointment of a separate Commissioner for Public Appointments in Scotland.

The overall regulatory framework is set out in a Code of Practice which is developed and regulated by the Commissioner for Public Appointments, although there is considerable flexibility for individual departments. The Commissioner's Code follows the recommendations of the First Report of the Committee on Standards in Public Life (The Nolan Committee) and sets out the regulatory framework for the process. The following principles underpin the framework:

• Ministerial responsibility (with the final responsibility for appointment resting with Ministers).
• Merit (with the overriding principle being selection on merit).
• Independent scrutiny.
• Equal Opportunities (with departments expected to sustain programmes to promote equal opportunities principles).
• Probity.
• Openness and transparency.
• Proportionality (with the procedures appropriate to the nature of the post and the size and weight of its responsibilities).

Public Appointments Team

The Public Appointments Team for the Scottish Executive lies within the Finance and Central Services Department and is accordingly responsible to the Minister for Finance and Public Services. The team has nine members and is responsible for overall policy in relation to public appointments, monitoring the appointment process as it pertains to the Executive, managing aspects of that process and providing support to sponsor teams on all aspects of that process. The Team has overall responsibility for policy issues relating to the promotion of diversity in public appointments, as well as dealing with issues such as ministerial briefings, parliamentary questions, annual statistics, reports and provision of material to other bodies, primarily OCPA and the Cabinet Office. It does not have a lead role in individual public appointments, as this responsibility rests with sponsor teams in each of the relevant departments. The team does, however, act as a central source of written and verbal guidance and advice on all aspects of public appointments and this role was widely recognised by respondents in this research. Separate members of the PAT have casework responsibility for named Departments and provide specific advice and guidance to their sponsor teams, the aim of which is to build up an understanding of their particular needs and establish more effective relationships.

Scottish Executive Sponsor Teams

For each NDPB requiring a public appointment, the process will normally be undertaken by a sponsor team forming part of the relevant policy division of the Scottish Executive. In some instances, this role is taken by a unit which runs appointments rounds for a number of bodies. In either event, these teams are groups of officials who manage the process within their own area of business. There is a consistent view of the overall role of the sponsor teams in the public appointments process as working to ensure that Ministers are advised about suitable candidates for appointment. Many respondents in this study suggested that the team was responsible for leading or "running the process" from the outset. A small number also suggested that the role included ensuring that "due process" and the appropriate procedures were followed, and one that it was part of the role of sponsor team members to ensure equality.

Many of the sponsor team members in the rounds examined were involved from the start of the process. Some carried out administrative tasks while others were involved in preparing the role specifications, person specifications and advertisements; as well as deciding where to advertise the appointment, and in identifying and supporting panel members. Many (although not all) sponsor teams members viewed their involvement as largely routine, often using previously prepared material. The recent introduction of a call centre, although not in place during this research, will reduce some of the administrative demands on staff in the future.

Sponsor teams remain involved in the appointments process throughout, although there was some variation in these rounds in their actual involvement following receipt of applications (e.g. in terms of whether or not they carried out a preliminary sift). At the decision making stage (where the interview panel identified the candidates to recommend to the Minister), only the most senior Scottish Executive staff were involved (although a scribe from the sponsor team could also be present at the interviews). Senior staff had a role in overseeing the whole process and overall responsibility for ensuring that the procedures of the branch were undertaken properly. They were also found to chair the sift panels and take part in the interview panels. All of the case studies involved a senior member of Scottish Executive staff as chair of both the sift and interview panels, and it was noted that these staff would conclude the minute to the Minister and generally provide any feedback required to the candidates.

Independent Assessors

The Code of Practice of the Commissioner for Public Appointments requires an Independent Assessor for each appointments process. The Commissioner's Code states that:

"No appointment will take place without first being scrutinised by an independent panel or by a group including membership independent of the department filling the post."

Independent Assessors are allocated to an appointments round by the PAT, and the Code of Practice and Cabinet Office guidance recognise the need for a range of individuals to be involved, with the Code noting that:

"The principles and benefits of equality of opportunity and diversity apply as much to the selection of independent assessors as they do to the public appointments process as a whole."

Independent Assessors have no operational role within the body or the department making the appointment and are responsible for the scrutiny of the process and for ensuring the implementation of the Code of Practice. Independent Assessors do not require formal qualifications but need the skills and experience to scrutinise the candidates and process. The main duties of Independent Assessors are as follows ²⁸:

• To assist Ministers and their departments in the task of making effective public appointments that command public confidence.
• To provide an assurance that the appointment process has conformed with the principles and practice set out in the Code of Practice issued by the Commissioner for Public Appointments and
• That appointments have been made on merit after a fair, open and transparent process.

In this study, these duties were largely reflected in respondents' perceptions of their role. Independent Assessors themselves focused particularly upon the need to ensure that the process was fair and most mentioned the need to ensure that the OCPA standards were maintained. This view was also reflected commonly in comments by sponsor team members and representatives of the NDPBs across the rounds examined, Several respondents stressed their role in ensuring objectivity and independence.

Few, however, specified any particular focus upon diversity/equality (although a small number of respondents in the case studies and postal survey did note that the role included ensuring that these issues were "interrogated" in order to ensure non-discriminatory treatment). The PAT members, however, recognised explicitly that the scrutiny of equalities issues should be a key part of an Independent Assessor's functions.

There was found to be some variation in Independent Assessors' involvement in practice and one noted that this would differ according to the sponsor team carrying out the appointment. Generally, they were found to have had little involvement in the consideration of the person specifications, role specifications or advertisements and almost all became involved at the stage of sifting the candidates to generate a short list (although in two rounds the Independent Assessor was not involved until the interview stage). There was an Independent Assessor involved in all but one of the interview panels and decisions about which candidate(s) to recommend to the Minister. One also mentioned their responsibility for signing the "certificate of validation".

The NDPB representative

The NDPB for which an appointment is being made is also involved in the appointments process. An NDPB representative generally has a role in the selection of candidates, most often through participation on the sift and interview panel. Representatives of the NDPBs were found to have been involved in most of the case studies, with the interview panels generally involving the Chairperson of the board of the organisation.

The role of the NDPB was seen by case study participants, and many of the NDPB representatives who responded to the postal survey, to be one of contributing to the interview process, ensuring the appointment of the most suitable candidate and providing the organisation's perspective. One case study NDPB representative also noted that they were in the best position to understand fully the requirements of the post. This might include giving advice about whether the board had any specific requirements for appointees (in terms, for example, of gender, geographical spread etc.) and one NDPB representative noted that it was important to secure the best appointment:

"not just in what the individual can contribute to the core business but also in terms of the public's perception of the board as a body that is taking a wide range of views, backgrounds and experience into account."

As with Independent Assessors, there was some variation in NDPB representatives' involvement in specific rounds. Only one of the NDPB representatives involved in a case study had been involved from the outset, taking part in discussing the requirements of the post and the means of advertising (although several NDPB representatives in postal survey processes had also been involved in this way). In most of the case studies, the NDPB representatives did not become involved until the applications had been made, with their role beginning at shortlisting. They were then involved in the interview process and in the selection of candidates for recommendation to Ministers.

The Scottish Ministers

The final group of participants involved in the selection of candidates are the Scottish Ministers, who receive recommendations from the panel and make the appointments. The Ministers' key involvement was seen to be at the end of the process, in assessing the material provided by the interview panel and ratifying the suggestion(s), whilst ensuring that their interests and needs were reflected. Respondents of all types recognised that the relevant Minister retained the final responsibility for selection and a small number of sponsor team members also suggested that the Minister would "approve" the materials used in the appointment.

In most of the cases examined in this research, the suggestions made to the Minister were adopted, although in one case study the Minister re-interviewed a small number of the candidates. (This was described as "very unusual" by all of those involved, although final responsibility for appointment does rest clearly with Ministers).

It was noted that interview panels would often "rank" candidates to enable the decision to be made, in addition to simply recommending which were "appointable". This was seen to help to ensure that the final decision reflected full information about candidates' "fit" with the specification and the results of the interview process.

GUIDANCE ON EQUALITY

In terms of specific guidance on equality/diversity, it is recognised as important that:

"… boards draw members from a sufficiently diverse range of backgrounds to cover the full remit of the body's work and its main customer groups. ²⁹"

It is also stressed that there is a need to ensure that:

"The process for making appointments is open and fair and all appointments are made solely on merit³⁰."

The Commissioner's Code of Practice also suggests that the:

"… principles of equal opportunity and diversity must be inherent within the appointments process. Care must be taken, at every stage, not to discriminate on the grounds of gender, race, age, disability, religion, marital status, sexual orientation or community background."

The Code also identifies the need for positive action, within the law, to promote diversity, as follows:

"Departments should take positive action wherever possible to attract suitable candidates from all sections of society, and this, in turn, should lead to wider representation on public bodies."

The Code also makes a number of additional suggestions (some of which are outlined in the main report). These provisions are supplemented through the provision of guidance from the Cabinet Office, entitled "Making Public Appointments: A Best Practice Guide for Departments" (2001) and specific guidance from the Public Appointments Team in the Scottish Executive.

The Cabinet Office guidance is clear about the need to promote diversity, identifying this specifically amongst its principles of best practice, which largely reflect those of the Code and are:

• A good quality outcome (including the need to consider the diversity of the board and to attract a wide field of candidates and use a process which explores the skills of all candidates).
• Merit (of which formal qualifications, traditional work experience and/or specialist knowledge are seen to be only one aspect).
• Equality and diversity (with a range of suggestions made, which are provided as examples elsewhere in this report).
• Robust processes (including checking procedures for fairness and reviewing the processes).
• Consistency.
• Audit trail.
• Courtesy.
• Confidentiality.
• Probity.

The specific guidance from the Public Appointments Team is also clear that the promotion of diversity forms a key part of the process and this is developing further. The guidance highlights the need for sponsor teams to be aware of the importance of diversity, identifies that this research is taking place and notes that "in the meantime, sponsor teams across the Executive are asked to think more creatively about how they frame specifications and advertise appointment vacancies in order to encourage people from currently under-represented groups to apply for appointments." Additionally, the commitment to working with the STUC is emphasised and it is noted that the PAT can offer advice. Comments on some specific aspects of appointments also make reference to equality/diversity issues.

RECENT POLICY AND PRACTICE DEVELOPMENTS

There have been a number of recent relevant developments in policy and practice relating to public appointments in Scotland which also form an important part of the context within which this work was carried out.

Commissioner for Public Appointments in Scotland

The Public Appointments and Public Bodies (Scotland) Bill was introduced to Parliament in June 2002, following a review of public bodies in Scotland and the publication of "Public Bodies: Proposals for Change" (2001). This received Royal Assent on 11 ^th March 2003 and became the Public Appointments and Public Bodies etc. (Scotland) Act 2003.

As noted earlier, the Act provides for the establishment of a Commissioner for Public Appointments in Scotland (CPAS), who will have a similar role and responsibilities to those of the UK Commissioner ³¹. The commitment to promoting diversity in the public appointments process is reflected in the functions of the CPAS, one of which will be to:

"promote diversity, by drawing up a diversity strategy for public appointments in collaboration with the Executive".

Other functions of the CPAS which are relevant to the promotion of diversity will include:

• Appointing, training and evaluating the performance of the Independent Assessors.
• Auditing public appointments policies and practice.
• Requiring the publication of information about public appointments.
• Overseeing the obligation to seek nominations from the voluntary sector.
• Conducting inquiries into policies and practice.
• Investigating complaints.
• Contributing to training for staff and development programmes for appointees.
• Participating in awareness raising.
• Reviewing progress in relation to diversity targets.

The CPAS will be required to report to the Scottish Parliament annually.

Other developments

In addition to the appointment of the CPAS, a number of other recent and planned policy/practice developments are relevant to the promotion of diversity in public appointments. These will also contribute to addressing issues affecting under-represented groups and include ³²

• The development of Codes of Conduct for NDPB board members.
• The NDPB shadowing scheme.
• The use of a guaranteed interview scheme for disabled people who meet the essential criteria for posts.
• The revised system of board member remuneration, including a standardised approach to payments such as childcare and carers' costs.
• The development of Parliamentary Notification and central scrutiny and management of some aspects of the public appointments process.
• Inviting nominations from voluntary sector interests.
• The development and provision of training.
• Target setting and review.

All of these actions are likely to form part of the CPAS' diversity strategy and the Public Appointments Team will collaborate in developing this.

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