PUBLIC ACCOUNTS COMMITTEE
17 June 2010
Members present for all or part of the proceedings:
Mr Paul Maskey (Chairperson)
Mr Roy Beggs (Deputy Chairperson)
Mr Trevor Lunn
Mr Patsy McGlone
Mr Mitchel McLaughlin
Mr Stephen Moutray
Ms Dawn Purvis
Mr Jim Shannon
|Ms Felicity Houston||)||Commisioner for Public Appointments in Northern Ireland|
Also in attendance:
|Mr Kieran Donnelly||)||Comptroller and Auditor General|
|Ms Fiona Hamill||)||Treasury Officer of Accounts|
The Chairperson (Mr P Maskey):
I welcome Felicity Huston, who is the Commissioner for Public Appointments. She will brief the Committee on the issue of public appointments. Members will recall that, in the Committee’s previous report on the Hospitality Association (HANI), concerns were raised about the number of public appointments that were not regulated. Felicity, you are very welcome. I will hand over to you for today’s briefing. We have a lot of issues to get through, but I know that you have a time limit.
Ms Felicity Huston (Commissioner for Public Appointments for Northern Ireland):
Thank you very much, Chairman. Good afternoon, everybody. Thank you very much for inviting me back to see you all again. I express my heartfelt thanks for the interest that the Committee has taken in the work that I do. The Commissioner for Public Appointments is not a universally popular role. One does not go into regulation to be loved, so it is nice, when ploughing a lonely furrow, to have support from a Committee like this and the interest that you have taken. The effect that you have had already on improving the world of public appointments in Northern Ireland has definitely been noted.
I will quickly run over some of the things that have been happening since I last spoke to the Committee and pick up on one or two of the points that were raised in the recommendations and the responses from the various Departments in that regard. Hopefully, I will then answer any questions that members have. Since we last met, the most important thing that has happened, fundamentally for me, is that I have drafted and issued a new code of practice, which is the document that I am responsible for publishing and prescribing. It lays down the rules, regulations and, most importantly, the principles of how all public appointments which are classified as such for the purposes of the code should be conducted. That was quite a significant piece of work. I have tried to change my document from being more of an instruction manual to something that is more about principles, ideas and basic guidelines. I hope that it will release the Departments from the agony of indecision that the previous document produced. I also hope to encourage a bit more independence of thought. We only launched that in February, so it is very early days.
Following the work that the Committee did on the Hospitality Association of Northern Ireland, there have, no doubt, been improvements in some of the sorting out of the regulation of appointments. Members may recall that some public bodies were regulated by me under legislation, and others volunteered to be regulated. I am glad to say that, in autumn 2008, a great many of the bodies that had previously merely volunteered to be monitored by me joined the club and were added to my list of regulated bodies. That was a big plus. There is no longer confusion about which bodies are monitored and which are regulated. It probably doubled the number of boards that have come to me.
Strangely, some bodies were removed from my regulation at that point. That seemed pretty bizarre considering that we were trying to consolidate and improve the numbers. As can be seen from the list of departmental boards that was submitted by the Office of the First Minister and deputy First Minister (OFMDFM), a lot of them are running loose and free and are still to be caught. I congratulate the Committee on having obtained that list because it is probably the most exhaustive one that I have seen of all the other bodies that are out there, even though I do not believe that it is complete. I know of some that are still missing from it.
We can safely say that things have been done, but the departmental responses to being asked what a public appointment is illustrate the varied approaches and what that means to them. There is still not a clear working definition of a public appointment so that, when a body is set up in a Department, civil servants can give the Minister the right advice about whether it should be regulated. There are boards that are basically, on the face of it, identical, one of which is regulated and one is not.
For example, in the Department of Culture, Arts and Leisure (DCAL), there is the architectural and built environment ministerial advisory group. That appears on my schedule for regulation, yet the Department of the Environment has a Northern Ireland Biodiversity Group, which seems to be very similar. However, that is listed as a body that is not suitable for regulation. On the face of it, I see little difference. Doubtless the Departments could come up with great long explanations about the difference. That is the sort of confusion that we have.
Having looked through the list and all of the information that we have, we probably have about five or six different categories of public appointments. I can talk you through those, although it may be better to talk about it later on. Would you like me to do that now?
I would appreciate that.
There are ministerial appointments, which are formally regulated by the Commissioner for Public Appointments. I have recently discovered that although a board might be listed as regulated, it may be that only certain members of the board are regulated by me and that others are just appointed through a process that nobody knows about. The Northern Ireland Museums Council is an example; only three of the 15 appointments are subject to my regulation. So, even when a body is down as being regulated, it may not be fully regulated, which is confusing for me, so the general public do not have a hope.
We then have ministerial appointments to boards that are not regulated by me, such as the joint standards committee in the Department for Social Development (DSD). I have no oversight over appointments to that.
The Boundary Commission for Northern Ireland volunteered to be regulated, and it was monitored by me. However, when the legislation was firmed up, it was removed from the list, so there is no oversight over how the Local Government Boundaries Commissioner or the assistant commissioners are appointed.
One of the recent changes has been that many of the bodies that were with the Northern Ireland Office are now part of the Department of Justice. Those bodies have come under my regulation.
There are still plenty of bodies that have not been caught up with. A case that I recently came across was that of the 25 parole commissioners, which is a tremendous number of appointments. The Secretary of State previously made the appointments, but they are not on any list that I can find. So they appear to not be subject to any form of regulation.
We have appointments to various types of public bodies by civil servants. The College of Agriculture, Food and Rural Enterprise college advisory group is an example of civil servants rather than the Minister appointing people to the boards; nobody has any oversight of that.
We then have the infamous third-party organisations, the history of which the Committee may recall. I have written to the Committee about those before. Those organisations are in receipt of significant public funds, and appointments to their boards are made by civil servants. The recommendation from the Westminster PAC was that those appointments should be regulated by me. A list of 28 bodies was put forward. That has gone down to four, and it will soon be down to three; the others have all been withdrawn after decisions made by the accounting officers in the appropriate Departments.
There are boards that spend public money; they are probably appointed by the board themselves. W5 and the Ormeau Baths Gallery are two examples of boards that make their own appointments but receive funding from Government.
We also have the cross-border bodies, which are a result of the Good Friday Agreement. Administrative appointments to those bodies are not subject to any form of regulation or selection procedure; they are merely nominated directly by Ministers.
I used to say that the situation was a patchwork quilt; it is still a patchwork quilt. Those who are familiar with quilting will know that it is all done in different types of designs and blocks. Before the situation was tidied up, we had one set of blocks being used. A different set of blocks are now being used, so it is still a very complicated patchwork quilt.
As I said, if I find it hard to understand and keep track of them, we cannot talk about public confidence, transparency and openness. I draw particular attention to the third-party organisations, partly because there was an attempt to bring some form of regulation to some of these little animals that scurry around under the radar. There has been very little commitment from the Departments to stick with that. If we are going to try to regulate the appointments process across all sorts of different public bodies, it does not help if the one exercise that was started has failed. That was very disappointing. I can only do so much, and I have offered to do the work, but there is no appetite for it.
We remain in a situation where, as you have said, what constitutes a public body needs to be clearly sorted out. We need a clear steer from the Executive — because much of this is about ministerial decisions — in deciding what a public body is and whether they want me to be regulating the appointments to such public bodies. It cannot be an opportunity to play the games of “that is not quite a public body” — that it “does not count in definitions under schedule 6.632 (a)”. It has to be a more positive and proactive approach than that.
At the moment, a ministerial appointment to a public body can only be regulated if it is listed on schedule such and such. That does not make for openness, transparency or accountability, which is a strong theme in government. I hope that, at some point, a good, sensible definition will be thought of. I am very happy to work with anybody who would like to talk about what could be done. We could then properly roll it out and have Departments enthusiastically embrace such projects rather than trying to find reasons to opt out, which is what has happened with the third-party organisations project.
In situations like this, it would be useful to come and take my advice, because I am in an unusual situation. I am not pretending to be the font of all knowledge, but I have an oversight and an understanding of what is going on across all 12 Departments as far as public appointments are concerned. I am in that unusual situation, and yet I am not asked what might be a good idea or to feed in some of the information I have when decisions are being made about third-party organisations and whether they should be removed or not
That is partly an accounting officer’s decision. However, other policy decisions being raised seem to be that the Commissioner, and all the knowledge and information held in that office, is side-stepped. I think that is unfortunate and does not mean that everything is necessarily as informed as it might be. For example, the Committee’s recommendation stated that the Commissioner should have some form of sanctions or increased powers; perhaps the Scottish model could be looked at, which would give me more of an opportunity to deal with the problems of non-compliance. I gather that those issues are with the First Minister and deputy First Minister. However, I only know that because I understand that the Committee has been told that. I have not been asked what sort of sanctions might be an idea, how it works in Scotland, how my Commissioner colleague over there finds her system, and so on; none of that.
One other issue that the Committee raised was the lack of independence and the perception of independence of my office. One good point I have to report, and one that I thank you all for, is that I now have my own office. I have my own front door; I got out of Castle Buildings, which was quite an achievement in itself. It is a hut beside Dundonald House. We have no delusions of grandeur in my office, but it is a spacious hut, and it has our own front door. It may be humble, but it is home. I appreciate it. It stops the callers; we do not have the casual callers who used to come in and take our minds off things. It sends a message to other people when they visit that I am not part of the system, and that is good.
Staffing has not changed at all; the staff are still not mine. Although my staff are extremely loyal and terribly hard-working, they are not mine. I have no control over them. The last time I was here I raised issues about the unfortunate treatment of public appointment applicants and found myself having a member of staff removed. I got a letter saying that there are lots of cuts so we are taking one of your staff from you, so I will have to be careful today, or I may find I have no staff by the end of the afternoon. However, that was the situation. Other arm’s-length bodies were told that their budgets were being reduced and were given an opportunity to decide how they wished to deal with that and make the necessary cuts. I was not given that choice; I just had a member of staff removed.
I have been trying to fill a clerical vacancy recently, which has been nigh-on impossible. We have finally found somebody, I am glad to say, but again, I am not allowed to advertise my posts, even in the internal system. I am subject to corporate HR policy, whatever that is, and it means that there is a lack of independence and control over staff and so on, which is not a good situation for a regulator to be in.
There is some discussion within the Office of the First Minister and deputy First Minister (OFMDFM), which is responsible for me as far as the budget is concerned, about possibly designating me as an accounting officer. That would give me some recognised independence. Financially, at the moment, I am still just a subdivision of OFMDFM’s budget headings, and I contrast that with the Scottish Commissioner, whose funds are voted to her by Parliament for her to do with as she sees fit within her legislation and so on. We still have a long way to go. If the accounting officer thing happens, I hope that it will improve matters. Nevertheless, it is still a bit of an issue. Consequently, although we are making headway, there is still confusion about how independent I am, and I am still regulating people who make decisions about my funding, which is not appropriate.
You have been keen to encourage diversity in public appointments, because we all accept that public appointees do not really reflect modern Northern Ireland. I have introduced a principle of diversity into my new code of practice. The two other UK Commissioners have a duty in legislation, which I do not have, to promote diversity. Therefore, I brought it into my code, because, prior to that, when I tried to encourage diversity, the response was that it was not in the code of practice so it did not have to be done. Therefore, it is now in my code of practice, and I will be challenging Departments to demonstrate what they are doing not only to recognise but to actually do something about diversity problems. We hope that that will prove to be a positive move.
I wish to discuss two other areas, one of which was particularly important in the HANI report that you mentioned. You were keen that guidance on conflicts of interest and integrity issues for public appointees should be strengthened. One very detailed area of my new code sets out line by line what is to be done when dealing with conflicts of interest and integrity, because I still have grave concerns about the sort of discussions that are going on in selection panels and about whether they are sufficiently robust, so I hope that that will help. I do not know what the Departments have been asked to do, because I have not seen what has been sent to them.
I wish to make a plea on another point that you raised: there is still a need for a central unit to run public appointments in the 12 Departments. Responses to the Committee include a paper showing that the Office of the First Minister and deputy First Minister is in favour of the concept. I hope that it comes out with another positive response soon, so that I do not have to go to the Executive as well. Nowadays, it cannot be economically efficient for 12 Departments to run 12 different appointments processes. In fact, there are more than 12 processes, because, in many Departments, each unit runs its own process. A centralised unit would bring an awful lot of benefits, so I really hope that we will see that. Again, I have no idea exactly what the review said or how information was collected, because I was not asked about it, but I am pleased to hear that it is likely to go ahead.
You may be interested in a piece of work that I am doing at the minute. I am surveying public appointment appointee applications, which has never been done in detail, so I thought that it was time that we found out how they really feel. I think that I know how they feel, because I interact a lot with people who stop me in the street to tell me what they think and who ring me to tell me about their experiences. Nevertheless, I thought that it would be useful to have more than just anecdotal evidence of how people feel that they have been treated. We have only just started the exercise, and we are surveying six different competitions that were run in the past 18 months. It is always a sign of disgruntlement when people return a questionnaire very quickly, and ours are coming back within a couple of days, which indicates that people are very unhappy, so I will follow that up and present you with general information when I have it.
I know that that was a quick canter through the issues, but it should have given you some idea of what is going on.
It was very detailed, thank you. If there is one thing that this Committee is about, it is, as you said, public confidence and transparency, which is obviously very important. You mentioned that you have a bit of a battle on to get all the issues resolved, and, as you pointed out, there are many of them. Are there issues with the Civil Service adopting some of the regulations that you have put forward, such as whether individual Departments are acting in different ways? How has working with the Civil Service on your regulations panned out?
It varies tremendously between Departments. I have been the Commissioner for more than five years, and I have only another year left in post, but I have seen improvements in Departments that, three or four years ago, would have been quite obstructive in their approach to working with me. They have changed, and they recognise that we are here to help. Nobody ever believes that of a regulator, but we are. So that has improved, but there are other Departments in which there are still major difficulties.
It is often due to poor administration, the lack of centralised knowledge in a Department and the fact that specialism is often kept in one place. Moreover, staff changes are a problem throughout Departments. There is a certain detachment at a fairly senior level from what is happening on a day-to-day basis with appointments and from what the staff, with the best will in the world, end up doing to their appointees. The difficulties in my relationship with the Department are not always helped by the problem of the lack of engagement. We must realise that public appointments are important when they are going right as well as when they are going wrong.
Thanks very much for your canter. It seems to me that, since the last time you were here, there has been a bit of tinkering with your position. Has your position moved forward in a way that you like? It is one thing to get your own front door, but has your ability to do your job improved as you had wanted?
In some places, yes. I do not feel that all 12 Departments’ doors are banged closed against me. I used to feel a bit like that, but certain doors have definitely opened. Tinkering is an excellent way to describe it; there has been tinkering around the edges. There has been window-dressing, quite literally, in moving me to a new office. However, nobody has considered all the recommendations from the Committee and the fact that the Commissioner is forever complaining about the situation. Lots of other organisations have said that that is not the right way, and nobody in a senior enough position has taken the bull by the horns and decided to make the changes. That is very frustrating.
It seems to me that Departments want you to be involved when it suits them but not when it does not suit them. There is still an element of them wanting their independence to appoint certain people to certain positions without worrying about you. That is a sad state of affairs. You mentioned the other Commissioners in the UK. What level of independence and control do they have, compared with the level that you enjoy?
There is a Commissioner for England and Wales who is, in many ways, structured similarly to me. She does not even have her own front door and is overseen by the Cabinet Office, which is the Department that is responsible for her. The Scottish Commissioner is a very different creation. Her post was established by an Act of the Scottish Parliament whereas the English Commissioner and I merely have a prerogative Order. That Act of Parliament lays down her duties and responsibilities, the mechanism by which she is funded and her right to engage staff and contract for services, and so on. Somebody decided that a commissioner for public appointments in Scotland should have a certain role, and they put that through an Act of Parliament. The Commissioner has the right to halt a process where he or she believes that something is going wrong. Her power is very clear. The English Commissioner has the advantage that that position has been fully established for 15 years, and that has helped to reinforce her position. However, until five years ago, the Northern Ireland Commissioner was subsumed within the English post.
You said that there is no definition of “public body”. Is it too simple to suggest that, if a body is funded by the public purse, it is a public body?
It seems a good one to start with.
A good starting point. I do not mean every community association.
There has to be proportionality. That is an awful word, but, sometimes, it is necessary to use it. The process does not have to be the great, flamboyant, long creature that is produced. The original legislation for the Commissioner for Public Appointments said merely that the Commissioner would oversee public appointments. Around five years ago, they decided to define it as “listed on schedule x, y and z”. It should be possible to come up with something. There are some clever people in the Northern Ireland Civil Service, and they ought to be able to come up with something that, within reason, will tick everyone’s boxes to get a simple solution.
You said that there has to be proportionality, and, obviously, that will have its limits. When I read that the Local Government Boundaries Commissioner or his or her assistants are not subject to your regulations, I do not understand.
They were subject.
That is what I cannot understand. I do not expect you to explain that, but perhaps someone can explain why those important positions were removed suddenly from your orbit. It does not make any sense.
My only interaction with them was a critical complaints investigation about them just before they were moved from my remit. I am sure that that is pure coincidence.
I am glad that you put that on the record.
I have a couple of specific questions, which you may not be in a position to answer. It will help me in the next session, which is on the issue of non-executive directors and their dismissal. Is there a process that has to be gone through when non-executive directors are dismissed from a board, and, if so, what is that process?
I am not responsible for a board’s operation. My role ceases when someone is appointed, so I do not have oversight of that. In fact, no one does. I have been able to do one thing within my code of practice. Issues came up with HANI and one or two other bodies where people did not fulfil what we would have expected of them as a non-executive director. Partly because of that, I have put in place measures so that anyone who is to be reappointed to a position has to continue to comply with the principles of public life which are appropriate for this role, and has to have been in receipt of satisfactory performance assessments each year. Other than that, unfortunately, I have no role and no locus over that sort of stuff.
Obviously, there is a gap in the board of Northern Ireland Water in non-executive directors. The accounting officer said that the Department has secured your agreement to enable a deviation from the normal appointments process. What is that deviation?
We agreed a short-term appointments process with Northern Ireland Water so that it did not have to put out a major public advertisement and could target individuals who would put themselves forward. It often happens when appointments are made to a specialist board, where you might say that there is no point in putting an advertisement in the public papers because you will not get the people. Given the difficult circumstances in which NI Water found itself and the fact that it is to be for about six months, I agreed that it could approach people, who will still have to apply, and make them aware of the appointment opportunity and the appointments situation. They will still have to apply for the appointment, and they will still have to be interviewed. It is similar to the public appointments process, but it is not publicly advertised, although I think NI Water is putting something about it on its website.
There are no clear and fast rules about what must and must not be advertised, so the deviation is that it will be done for approximately six months, as I understand it. It is being done quite quickly, which I support because I do not think that it should take a long time, and there will not necessarily be the application forms that are often required.
Will there be a full public appointments process after that?
Yes. The agreement was done because the board requires people to sit on it to be able to function and carry out its duties. The Minister could have gone ahead and done it anyway and it would not have been appropriate for me to say that I did not think that NI Water should have that process. The agreement was on the clear understanding that, once the board was in place and it had been able to drawn breath and do what it needed to do, a full appointments process would be run as normal.
So, is the Department headhunting people for that at the moment?
Yes. That occurs in other situations, but it just so happens that this is a rather controversial environment. Sometimes, specialisation requires headhunting.
Good afternoon. Trevor did the “canter”, but it is your candour that appeals to me. I feel considerable frustration and anger at the resistance to what are common-sense measures to introduce a bit of democracy and accountability into the process.
As a consequence of Committee investigations, we find ourselves in a position to comment on your role. We may need some guidance on this, because, unless we refer to our previous investigations and recommendations, the Committee for the Office of the First Minister and deputy First Minister is perhaps the appropriate body to address the whole issue of governance, line management and resource. Those are common-sense arguments; they could and should be supported by the system itself, and, if not, by the Committee that looks at that particular aspect of our structures.
Some progress was made on the issues that this Committee can reference, and some responses were obtained. Clearly, those reports, the discussion around them and the assistance that you gave us in the evidence session demonstrated the need to respond to the new dispensation, which, as far as I can see, has not happened. It is not just a subconscious cultural resistance to change, but seems to have a sense of purpose about it, while the removal of certain third-party organisations from the original list appears to be an attempt by someone to take a step backwards. We must be guided in how we can address those issues, because we may need to undertake further investigations, produce further reports and make further comment. However, we will also be complicit in creating that work for ourselves if we do not address it now.
The broad thrust of what this Committee is about is identifying shortcomings retrospectively and addressing the issues with an objective of benefiting the system as we move along. Those shortcomings should not be repeated, but, if they are, the accountability mechanisms that deal with them must be more effective. It seems that we are meeting fairly stubborn resistance.
Chairperson, we may need to revisit the Committee’s original recommendations, and, in an almost forensic way, challenge whether the Department has responded. If it is appropriate, we should also consider some of the recommendations or markers that the Committee put down to see if they are germane to the issue.
The questions of the Commissioner’s power, remit, independence and transparency are significant ones for the process that we are involved in. If we do not have an obvious or statutory right to address it — and I suspect that we do not unless we can reference it to some of the work that falls to our Committee — there are other Committees that need to be alerted and become involved.
We received the MOR from OFMDFM and wrote back to it. We received its response —
Yes; I saw some of that. We need to devise a way of actioning our views. The response was limited, and it does not deal with the broad terrain that was explored by the Commissioner this afternoon.
We can forward stuff, even if it is from today’s conversation, together with the information that is in members’ packs, to the Committee for the Office of the First Minister and deputy First Minister. We can do that also. I can ask Kieran whether there is any forward work programme in the Audit Office as well.
I have one other question in that regard, because Kieran may want to comment on it. Is it appropriate for us to ask the chief accounting officer to come back to talk to us about the MOR and other actions?
We could have a look at that and a discussion about it. At the end of the day, we could do whatever we want.
Your first question, Chairperson, was whether there was anything in our programme that touched on these issues. I am doing some work on housing associations. They are not set up by government — some of them have been in place for many years — but government disperses enormous amounts of public money through them. They are regulated by DSD. I am keen to explore whether there is a condition of regulation, and, therefore, proper processes of appointments. In other words, to satisfy the regulator, a good system of public appointment would need to have been used. The membership of some associations has not changed for perhaps 10 or 15 years. That adds an interesting outlier, but that is the only work in my current programme that touches on public appointments issues.
The second question was about calling back accounting officers. In the HANI report, there were two accounting officers at that stage — one from DCAL and one from the Department for Employment and Learning — because the problems with public appointments criss-crossed two Departments. The issues that Felicity talked about are more generic and central, as opposed to being located in just a couple of Departments.
OK. We can have a discussion after this session, anyway.
The Committee rightly raised a number of issues, and I am grateful to receive evidence yet again, but I get a sense that, as the Committee for the Officer of the First Minister and deputy First Minister has done, we should be encouraged to grasp the matter and carry out a major piece of work. It is more of a live issue than a historical one, and it is obvious that we have identified a problem.
It is fascinating to see that the Local Government Boundaries Commissioner and the assistant commissioners have been removed from the list. Bearing in mind how controversial the decisions have been — even in the present review of public administration, and that was with those who were appointed through an independent appointment process — I can see only a complete minefield if the replacements are not appointed through the same process. It may be even more politically difficult to come to settlements bearing in mind that cross-community support is needed to finalise agreed boundaries. Who decided that? Did the Minister decide on a whim to remove them from the list?
Perhaps even less thought was given to it than that. It seems that there was dithering and then somebody made the decision that was finally agreed by the Minister. The competitions were monitored, ie they volunteered to be regulated by me. A list was produced of all of the bodies that were to be added to my regulation, a draft Order was produced and that body was on it. There was some confusion somewhere along the line about the Electoral Commission, which, of course, is a reserved matter, and the Local Government Boundaries Commissioner post was removed from my Order. It was to be included, but somebody decided somewhere along the line to take it off. I raised that informally with the permanent secretary of the Department of the Environment. I am not here to query what a Minister decides. If that is the decision, then that is the decision. However, I was curious, and I asked him whether he could find out for me why it had been taken off the Order. I am still waiting for an answer.
You should — [Inaudible.]
We can also explore an options paper for our Committee to see how we can look at and take them forward. One option may be to take it back to the Committee, and another might be about bringing accounting officers in. It is a bit of work that we can do; there are various staff to do that bit of work.
What we do has to be clearly in the remit of this Committee; it has a very specific and discrete function. However, I would not want this to go off the agenda unless I was confident that it would be picked up on. For me, it is a central issue.
So we will explore the options and bring that back to the Committee at a future meeting. OK. Thank you.