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5. MINISTERS AND APPOINTMENTS
NDPB Selection Principles
5.1 Non-Departmental Public Bodies ( NDPBs) operate to a greater or lesser extent at arm's length from Ministers and are not Directorates of the Scottish Government. The role of the Chair and Board of an NDPB, appointed by Ministers, is to provide effective leadership, direction, support and guidance to the organisation and to ensure that the policies and priorities of the Minister (and the Government) are implemented. The Board is the bridge between the Minister who approves the Corporate/Business Plans and key performance targets of the Body, and the Chief Executive and Senior Management Team who aim to ensure that the Plans are delivered and targets met through effective and properly controlled executive action.
5.2 Subject to the following paragraphs and to the constitution of the body to which the appointment is being made, public appointments to the Boards of NDPBs are the responsibility of the Minister concerned, who should appoint the person(s) he or she considers to be best qualified for the position. In doing so, the Minister should have regard to public accountability, the requirements of the law and, in the case of appointments to bodies regulated by the Commissioner for Public Appointments in Scotland, to the Code of Practice for Ministerial Appointments to Public Bodies in Scotland published by their office, OCPAS. The process by which regulated appointments are made should conform to the Code's underpinning principles - Ministerial responsibility, appointment on merit, equality of opportunity, probity and respect, independent scrutiny, openness and transparency, and proportionality - and to its detailed procedures.
5.3 Selection on merit is regarded as the fundamental principle applying to all Scottish public appointment procedures, irrespective of whether they are regulated or not. It is the appointment of the best person for the post as measured against the criteria agreed by Ministers at the start of the process.
5.4 The paragraphs below cover the requirements to be applied in connection with OCPAS regulated appointments. The OCPAS Code of Practice requires that Ministers determine in advance of each appointment round the skills, knowledge and personal qualities they will require on each board at the time of the appointment and to support the future direction of the body concerned. Ministers must then make their selection from the candidates that have been identified by a selection panel as appointable based on the agreed criteria only. The decision to appoint a particular candidate and the reasons for the Minister's decision must be recorded. Neither of these decisions may be delegated.
New Appointments
5.5 At the beginning of each appointments round, the portfolio Minister must consider and approve a Board Skills Matrix setting out the balance of skills and knowledge required on the board for current and future needs and a role description and person specification for the specific appointment(s) to meet these requirements. It is based on these requirements that the final appointment on merit must be made and justified. The Minister will also be asked to agree an Appointment Plan setting out the timetable for the appointment round, composition of the selection panel and methods for publicising the appointment. Ministers will also be asked to suggest the names of individuals or organisations that they wish to be informed of the appointment opportunity.
5.6 Once Ministers have intimated their agreement and approval of the documentation detailed above, they will not normally be actively involved in the appointment round again until interviews have been conducted by the selection panel and appointable candidates have been identified from which to make their choice for appointment.
5.7 However, if a suitable field of applicants has not been identified, or if only one applicant meets the criteria for appointment, Ministers will be given the option of extending the field of applicants or of re-starting the competition. This happens only very occasionally.
Reappointments
5.8 The OCPAS Code allows for one reappointment to be made without open competition subject to evidence of effective performance and to satisfying the requirements for the role at the time of reappointment. Reappointment is not obligatory or automatic. To enable Minister(s) to make an informed decision in relation to proposed reappointment they will be provided with: a Board Skills Matrix; summary details of the chair or member's performance appraisal; and an assessment of whether the current member's skills, knowledge and personal qualities satisfy the requirements for the role. Should Minister(s) decide not to approve the re-appointment, a new appointments round will be initiated and will follow the process for new appointments detailed above.
Final Decision
5.9 At the end of the appointments round, Minister(s) will normally be provided with a choice of candidates from which to make their appointment (if there is only one appointable candidate Ministers will be given the option of reopening the competition). The Minister(s) will be provided with a summary of the strengths and weaknesses of the candidate from the evidence provided in their application form and at interview and a recommendation of their overall suitability for appointments by the Selection Panel. The Commissioner's Code requires that candidate information will not be provided to Minister(s) in a ranked order and this prohibition extends to descriptive ranking, e.g. "in terms of overall performance candidate x was better than candidate y and y was better than z." Minister(s) must consider each appointable candidate in relation to the criteria identified in the person specification only.
5.10 Following previous legal rulings, it is not permissible to take any direct action (i.e. positive discrimination) to balance boards in relation to gender, ethnicity, sexual orientation, disability or any other related consideration unless statutory requirements demand otherwise.
Announcing Appointments
5.11 The Code provides that all appointments, re-appointments and extensions to appointments require a public announcement. Subject to Ministerial approval and on the advice of the relevant Communications Team, the announcement may or may not include a Ministerial quote about the appointment/appointee.
First Minister Involvement
5.12 The First Minister should normally be consulted at the outset (i.e. the initial planning stage) about the appointment or re-appointment of:
(a) The Chairs and other Members of Royal Commissions in relation to devolved matters;
(b) The Chairs of:
(i) Independent Committees of Inquiry
(ii) Public Corporations
(iii) Nationalised Industry Boards
(iv) Specified executive and advisory Non-Departmental Public Bodies ( NDPBs) - (see below); or
(c) Non-Ministerial Office holders.
5.13 A list of appointments to public bodies on which the First Minister would expect to be consulted is held by the central Public Appointments Team. In such cases, normal practice is for the First Minister to be copied into all the submissions addressed to the Minister concerning the appointments round (i.e. from the initial Planning Stage onwards). Once the Minister has reached a final decision on the actual appointee(s), the First Minister should confirm whether or not he is content.
5.14 Ministers may also choose to consult the First Minister in other cases, depending on the circumstances. In particular, the First Minister must be consulted about any appointment which is likely to have political significance. Ministers should take a wide view of what constitutes political significance. Even local or regional appointments may from time to time excite an unusual amount of public interest because of the circumstances surrounding the appointment or the background of the candidate. In all cases involving political considerations, submissions to the First Minister should be copied to the Minister for Parliamentary Business.
5.15 The Lord Advocate should be consulted where it is proposed to appoint a judge or legal officer (e.g. a Scottish Law Commissioner) to a Royal Commission or a Committee of Inquiry. Indeed, in such cases, it may be preferable for the individuals concerned to be approached by the Lord Advocate, rather than by officials.
5.16 The Minister for Parliamentary Business should always be consulted before an MSP is approached about appointment to any office which would result in the vacation of a Parliamentary seat.
5.17 In all cases where a submission is to be put to the First Minister for approval, no commitment should be made to any individual before the First Minister has commented. In the case of Royal Commissions, the First Minister and the Lord Advocate should be consulted before any informal soundings are undertaken. In other cases, any informal soundings should be made in such a way as to preserve freedom of action and avoid any appearance of commitment.
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