Hansard

I am here today to inform the committee's work on developing procedures for parliamentary consideration of consultation documents and reports. I would like to take a few moments to outline to the committee the statutory consultations with which I will engage with the Parliament, the reports of non-compliance that I may need to bring to the Parliament and my views on the options available to the Parliament in order for it to address both issues.The legislation that created my post outlines four key requirements of the commissioner. The first is for the commissioner to prepare, publish and revise a code of practice for ministerial appointments to public bodies in Scotland, in consultation with the Parliament, and to do so in two stages. First, an interim code of practice must be produced. Until my appointment in June this year, ministerial appointments to public bodies in Scotland were regulated by the code of practice produced by the commissioner for public appointments, Dame Rennie Fritchie. To comply with the requirement to produce a code of practice and to ensure that, while we prepare the new Scottish code, we have a framework in place to guide the appointments process, I plan to adopt Dame Rennie's code as the interim code for Scotland. I am currently consulting with the Parliament on the adoption of this interim code.My next consultation will be about the adoption of the new Scottish code. I anticipate that the new code will depart from the interim code, reflecting the processes that have been adopted in Scotland and the requirements of our legislation. For example, I anticipate that our code will be more specific about the methods and practices to be used in making appointments—how vacancies are published and how applications are encouraged. It will be a detailed document, designed to ensure that the people of Scotland are served by a fair, open and transparent public appointments process that commands confidence. The code will require support from everyone involved in making ministerial appointments, so I would welcome active participation in the consultation process.The note prepared for the committee by the senior assistant clerk outlines the options that are open to Parliament for engaging in consultation about the code of practice and the equal opportunities strategy, which is the second requirement placed on me by the legislation. Paragraph 10 of the note describes the formal mechanism for informing the Parliament about a consultation—by laying the consultation document before Parliament. I favour that option for informing the Parliament about consultation on the code and the equal opportunities strategy. The formal nature of the act of laying documents before Parliament reinforces the importance of the statutory consultation and provides a public record of it.I do not think that the convention that documents are not made publicly available prior to being laid before Parliament is necessarily restrictive. On the dates on which the code and equal opportunities strategy are laid before Parliament, I would forward copies to others who are involved in the consultation and post a copy on the office of the commissioner for public appointments in Scotland website.An alternative method of informing Parliament would be for receipt of the consultation documents to be recorded in section H of the Business Bulletin, as described in paragraph 12 of the note. That does not appear to give the same significance to the consultation process as the formal laying of documents before Parliament, but it would be acceptable. The third option, which is outlined in paragraph 11 of the note, appears to be used for issues that need to be brought before members urgently. Although I regard consultation about the code of practice and equal opportunities strategy as important, I consider that consultation is best effected in a measured way and need not be addressed urgently.On consulting Parliament, option 1 in the note suggests informing members about the consultation document via the Business Bulletin, but that might mean that, although members are informed, few are active in the consultation. A member might wish to lodge a motion to make their views known, but the Parliamentary Bureau might decide that the motion should not be debated. Option 2 is for a mandatory debate, but that would give one member the power to hold up the consultation process. Option 3 is for a debate on the consultation, but that would require parliamentary time, which could be devoted to more pressing matters. Moreover, there is doubt about who would lodge the motion for debate.The most suitable way of holding meaningful consultation with the Parliament as a whole is through a lead committee, as outlined in paragraphs 18 to 20 of the note. That would offer all members the opportunity to comment without overburdening the extremely busy parliamentary timetable. Members of the lead committee would build up a degree of knowledge about the public appointments process, which would be invaluable when considering revisions to the code, the equal opportunities strategy and non-compliance with the code. I have considered which committee should lead the consultation on public appointments issues. The consultation that preceded the passing of the Public Appointments and Public Bodies etc (Scotland) Act 2003 suggested that a public appointments committee should be established, but I believe that that is no longer a viable option due to the pressure of parliamentary business and the fact that the workload for such a committee is unlikely to be high.I ask the Procedures Committee to consider extending the remit of the Standards Committee to include public appointments. The Parliament might consider that to be appropriate, as we are dealing with the standards by which people are appointed to the boards of public bodies. The Standards Committee would lead the consultation about the code that governs public appointments and the consultation about the strategy to ensure equality of opportunity in the attraction and appointment of candidates.The legislation also requires me to report to the Parliament any case in which the code of practice has been materially breached and Scottish ministers have failed, or are likely to fail, to act on that breach. Examples of the type of action that I may require to report to Parliament include unwillingness to follow the commissioner's code, interference with a particular appointments round and appointment of a candidate who has failed to demonstrate that he or she is the most suitable candidate for the post. Again, I think that the most suitable method of addressing such breaches is through a lead committee and that it would be appropriate for the committee that I consult about the code and the equal opportunities strategy to consider cases of non-compliance with the code. The Standards Committee has in place procedures for breaches of the code of conduct for MSPs and those procedures could be adapted to deal with breaches by ministers in failing to address non-compliance with the code of practice. If the Standards Committee becomes the lead committee for the consultation, its members will build up a body of knowledge about the public appointments process, which will be invaluable when they consider breaches of the code.On informing the Parliament about material breaches of the code of practice, I recommend that reports are not laid before Parliament but given to the lead committee and considered in private. There are three reasons why I recommend privacy. First, such reports are likely to contain personal information about the people who are involved in the appointments round. Secondly, if the person appointed is a suitable candidate, even though inappropriate procedures were used to make the appointment, confidence in the person could be damaged if information about the appointments process is communicated to the full Parliament. Finally, confidence in the public appointments process could be compromised. However, in the interests of openness and transparency, I believe that a summary of the case and findings, highlighting the process followed rather than the individual appointed, could be published by the Standards Committee, were it to become the lead committee, and in my annual report. I recognise that reporting to a committee in that way on a breach of the code would require arrangements to be in place should I need to report on an appointments round during the summer recess. In summary, I consider the most suitable method of consulting the Parliament to be via the laying before Parliament of a consultation document that is referred to a lead committee for consideration and I believe that reports of material breaches of the commissioner's code of practice should be made directly to the same lead committee.