Official Report (Hansard)

Session: 2011/2012

Date: 17 November 2010

PDF version of this report (146.21 kb)

Members present for all or part of the proceedings:

Mr Tom Elliott (Chairperson) 
Ms Martina Anderson 
Mr Allan Bresland 
Mr William Humphrey 
Mrs Dolores Kelly 
Mr Danny Kinahan 
Mr Barry McElduff 
Mr Francie Molloy 
Mr George Robinson 
Mr Jimmy Spratt

Witness:

Mrs Felicity Huston ) Commissioner for Public Appointments

The Chairperson (Mr Elliott):

Good afternoon, Felicity. You are very welcome. I invite you to make a presentation of no more than 10 minutes and then to make yourself available for members’ questions.

Mrs Felicity Huston (Commissioner for Public Appointments):

I am more than happy to do so, Mr Chairman. Thank you very much for finding the time to see me. I very much appreciate it. It has been a considerable time since I have been along to see the Committee. I appreciate your taking an interest. I have a finite period of time in post. Therefore, the meeting has given me an opportunity to brief you on “the state of the union”, as they would say in America — an explanation of our current position.

Initially, I wrote to ask if you could find time to see me because I had been to see your colleagues at the Public Accounts Committee, in June 2010, to give our position on recommendations that it had made, which were supported by your Committee, in its report into the Hospitality Association of Northern Ireland and the impact that it had on public appointments, etc. I saw the PAC in June, and had to report that not much had happened in the two and a half years since the report was issued and the Department provided its memorandum of response.

Today, if the Committee is happy, I will take you back through the recommendations that were made and tell you where we are with those. I have to say that not much has changed since June, but I can perhaps give you a bit of background and tell you about some of the other issues that are knocking around in the public appointments environment. Some of this will sound strangely familiar, because, despite being in post for five and a half years, things do not change much. Some relationships have improved; others have not altered in the slightest, which is a bit disappointing.

As a result of its investigation into the Hospitality Association of Northern Ireland — although one of the individuals involved in the report held a number of other public appointments — and my evidence to them, the PAC made recommendations, many of which this Committee very much supported. I will take you through those recommendations to give you an idea of where we are.

The first recommendation relevant to public appointments is recommendation 35, which states that clear advice about probity issues was to be given out to people who were applying for and being interviewed for public appointments. The Department accepted the recommendation and said that it would review its guidance notes to applicants on probity. I do not know what the Department has done or what that review was, but I have never seen any updated notes being given out to candidates by OFMDFM.

The report mentions that I produce a leaflet of guidance on conflicts of interest and probity. I was very concerned that, in the particular circumstances under investigation, people with integrity issues were not challenged. Therefore, when redrafting my code of practice, which was issued in February 2010, I made very specific recommendations and gave guidance on probity, or what I now refer to as integrity. Probity is one of those words that are a bit hard to define, but integrity jumps out at people more obviously.

In my code of practice there are some very detailed notes and stages to be followed to ensure that the correct questions are asked and recorded, because we have had a lot of issues with people on selection panels not asking the difficult questions. If somebody said on their application form that they have no conflicts of interest, panels would often just take that as read, rather than querying whether that is the case. That is one of the things that I have changed, and I am hoping that that will improve things for the better. As the code has been in place for only nine or 10 months, the outworkings of that are still in the early stages.

A further recommendation was that candidates must openly declare any matters that may affect their suitability for public office. Again, I have stressed that in my code of practice. Having revised the leaflet that is sent out to all applicants, I now make it very clear, I hope, that it is better for candidates to declare anything about which they may be concerned, so that it can be discussed, rather than leave it to emerge and cause problems later.

OFMDFM said that it would review the current guidance notes on probity and conflicts of interest. However, again, there has been no consultation or interaction between me and the OFMDFM unit that issues that type of information, despite my offering on numerous occasions to discuss this and consult with them. That simply has not happened.

I gather that some form of best-practice guidance policy document on public appointments has been recently drafted and issued to Departments for their views. When I heard that that had been drafted, I said that I would be more than happy to look at it. However, my offer was declined. The reason I suggested that is that I am in the unusual position of overseeing all 12 Departments, and, therefore, I see what goes on — the good, the bad and, in some cases, the rather ugly. However, OFMDFM has chosen to go its own way. Presumably the Department will be able to give you some information on what it has done and how those guidance notes, or whatever they are called at the moment, have been drafted.

PAC recommendation 37 looks at setting up a central unit to administer public appointments throughout all Departments. At the moment, we have not only 12 Departments running their own processes but, within almost every Department, sponsor units running different processes. Therefore, we have almost an infinite variety of processes. That cannot be an efficient way to run things and it certainly is not an open and transparent way to do so. It causes tremendous confusion for applicants and for those who are administering the process, because many of those people lack experience of operating and running public-appointments processes and tend to reinvent the wheel over and over again.

My understanding is that some form of recommendation for a central unit may have gone to the First Minister and deputy First Minister. However, I have not been party to any discussions on that. Therefore, I cannot really comment, except to say, anecdotally, that we understand that to be the case. A recent report from DFP’s arm’s-length body review team (ALBRT), which was set up by the permanent secretaries’ group (PSG), also suggested that a central unit would be a good idea. Unfortunately, I can give you no further update on that.

Recommendation 38 was to bring in all public appointments to clarify which are regulated and to bring those bodies under my remit. Prior to 18 months ago, we had a system whereby some appointments were formally regulated by the commissioner, some were voluntarily regulated, and others were not regulated at all. That has been tidied up a bit, and a great many of the bodies that were voluntarily regulated are now regulated, in law, by the commissioner. However, we still cannot say that there is a clear and easy definition of a public appointment, which is one of the things that exercised the PAC. What one may think is a public appointment is not necessarily so.

The Department responded to the PAC that it was for each individual Minister to decide whether a public appointment would be regulated by the commissioner. However, as there is no clear definition of what a public appointment is, I ponder over what advice is given to Ministers to enable them to make the decision as to whether an appointment should be regulated or not. Boards in some Departments are regulated, but very similar creatures in other Departments are not. Therefore, I do not believe that there is a clear steer of advice. Ministers do not just wake up one morning and decide to regulate an appointment; they get advice from their senior staff. There is a problem with how Departments identify which bodies are suitable for regulation.

At this point, I would like to throw up a little creature that runs around called the third-party organisation (TPO), which those of you who served on the PAC in the past may recall. Third-party organisations are bodies that deliver services on behalf of government and in which the majority of funding comes from the public sector. However, appointments to TPOs are made not by Ministers but by civil servants. A direction was issued from the Westminster PAC, as it was at the time, that the people who serve on third-party organisations should be appointed by an open process and that I should be involved in the regulation of that. We started off with around 14 or 15 TPOs and are now down to three. I am told that accounting officers decide whether those bodies will be put forward for regulation. However, I do not know how that decision is made.

I have been disappointed with that project over the past few years, because it did seem to be a genuine attempt at engagement by the Civil Service to encourage openness and transparency around how people are appointed to those boards. However, over the years, the Civil Service has pulled right back from that.

PAC recommendation 39 was that people involved in testing applicants on matters of probity or potential conflicts of interest should be properly trained in that matter. The response from OFMDFM was that the Centre for Applied Learning would consider further the issue of training with them. Once again, I know nothing about that, but the Centre for Applied Learning, I am told, plans its training years in advance. Therefore, if public appointments have not been slotted in at the right time, there is little hope of getting that training from there. However, perhaps the Department can give you some better news on that.

The issue that is most particular to my day-to-day functioning is the PAC’s comment on the extremely poor performance of Departments in relation to the appointments considered in its report. It believes that the post of Commissioner for Public Appointments needs to be strengthened and made truly independent from those whom it is regulating. It referred to staffing, budget and the location of the commissioner’s premises. At that time, I was still based in Castle Buildings within the corridors of OFMDFM, a Department I regulate.

I am pleased to announce that about 18 months ago we finally got out of Castle Buildings — those of you who spend much time there know how difficult that can be — and we are now located in Annexe B beside Dundonald House. I issue an invitation to anybody who would like to come and see us. It is not very grand, but it is home. It is our own front door, which means that we do not have people just appearing in and out when it might be more appropriate for them to make an appointment. When I have visitors who are not civil servants they recognise that we are separate, though they do comment on the hut, but when they get inside they realise that it is quite nice. That has been very important for our independence. It is window dressing, but it is also real. It is not just perception — it also gives us a certain separation.

However, as far as staffing and budget is concerned, nothing has changed. In fact, this time last year I issued my annual report criticising things and, lo and behold, around six weeks later one of my members of staff was removed. I am sure that was just a coincidence, but it shows that I have absolutely no independence in respect of my staffing. When trying to replace my office manager it became very obvious that I am not even allowed to advertise the post, even internally. That brings some difficulties. It is no reflection on the individuals who work for me, who are excellent, but it is an unsatisfactory situation.

There have been more and more outworkings of the difficulties of my budget recently. I have no delegation of my budget. I have no legislative authority to spend money, so I am entirely in the hands of those whom I regulate, which is not ideal. Despite that point being laboured repeatedly to the Department, nothing happens. At one of my regular meetings with the accounting officer around two months ago I mentioned the PAC report and the recommendations about my budget, etc, but he clearly knew nothing about them, which was a bit surprising. Nothing really has happened there at all. There was a fleeting mention of accounting officer status, but that has been abandoned by the Department.

The PAC report also mentioned that the post of commissioner should have some form of sanction. I have none at the moment; I can merely name and shame, but can do no more. The suggestion was that the model in Scotland should be considered, as the commissioner there has some form of sanctions. I see that the Department merely noted that recommendation, and said that the powers were vested in the commissioner by the Minister, and that it was currently considering the arrangements under which the commissioner operates. I am sorry, there is nothing to be told, because nobody has asked me or discussed that with me. I am not aware of any approach to my Scottish colleague to find out how the legislation there operates. She has been in post now for about six years, so there has been time for the outworkings of the legislation to be assessed. Nothing has happened about that.

Finally, there was a suggestion that the central appointments unit in OFMDFM should bring forward proposals about promoting public appointment opportunities to try to address some of the issues relating to diversity and to make public bodies in Northern Ireland more representative and look a bit more like the world in which we now live. The Department mentioned what it has been doing for the past five or six years, but I am not aware of any new initiatives that have been undertaken.

Unfortunately, there is nothing very positive to report, apart from the hut, which we are very pleased with. Nothing else seems to happen, and there seems to be a constant difficulty in that the Department seems unwilling to talk to the person who might know most about the job, its activities or what is going on across Departments. It just does not seem to happen. I have repeatedly offered my views in writing, in meetings, and so on. I contrast it with the Assembly, which has taken on board my thoughts about the Commissioner for Standards and the panel that will be set up to set pay and salaries, etc. There have been willing discussions with me about that. I am not suggesting that I know everything, but I do have some fairly expertise knowledge. Unfortunately, I have not seen the head of the Civil Service for over two years, despite asking frequently for meetings. We are in a very different situation.

Ms M Anderson:

I am sorry; would you repeat that? You have asked for meetings —

Mrs Huston:

I have asked for meetings with the head of the Civil Service, but I have not seen him for over two years.

Mrs D Kelly:

We have not seen him for a while either.

Mrs Huston:

I have seen him once since he was appointed. I am sorry if that sounds like a sad tale of woe. We remain optimistic, as always.

The Chairperson:

Felicity, I have to ask you to wind up. I have given you quite a bit of flexibility.

Mrs Huston:

I was just going to suggest a way in which you may be able to save money, Chairperson. Perhaps I will be allowed a minute for that.

The Chairperson:

You can take that up during the question session. Thank you for your presentation, even though it may sound like a sad tale of woe. According to the Hansard report of a Public Accounts Committee meeting that you attended on 17 June 2010, you said:

“Strangely, some bodies were removed from my regulation at that point. That seemed pretty bizarre”.

Was that a reference to recommendation 38? If so, what bodies were removed from your regulation at that stage?

Mrs Huston:

The one that I would draw attention to, and which I made reference to when I gave evidence to the PAC, is the Local Government Boundaries Commissioner and assistant boundaries commissioners. Those were voluntarily regulated by me under the previous scheme. When the draft Order was put forward, they were included and were then removed. That is one example that I am aware of. It always seemed strange that they were removed. I would have to check on some of the others.

The Chairperson:

It may be useful if you would provide us with a list of public appointment bodies detailing those that are regulated by you and those that are not.

Mrs Huston:

I am happy to provide a list of those bodies that are regulated by me. I will provide you with the list that the PAC was given by OFMDFM when I appeared before the PAC in June.

The Chairperson:

Can you briefly describe to me what your regulation entails?

Mrs Huston:

The bodies for which I regulate appointments are listed in the founding legislation pertaining to those bodies or in the specific schedule to the Ombudsman (Northern Ireland) Order 1996. Some are listed on the prerogative Order that created my post. I regulate appointments, and the code of practice that I am responsible for publishing and prescribing must apply to the appointments to those bodies.

The Chairperson:

It may be useful if you could give us some specific written information about how your regulation affects those bodies. Perhaps it may also be useful to have a list — it does not have to be definitive — of bodies that may come under your regulation but do not at present.

Mrs Huston:

I am sorry; do you mean those bodies that may be suitable for regulation but are not?

The Chairperson:

Yes. Along with a list of those that you said you could easily provide.

Mrs Huston:

I will certainly do that.

Ms M Anderson:

Thank you, Felicity. You obviously feel quite alone sometimes, perhaps with very little support around you. That said, we need to write to OFMDFM to seek answers on the issues that you have raised today and to ask for an update. We have the recommendations and OFMDFM’s commitments, but you have told us that there has been little progress. If the Committee is agreeable, I think that we should do that.

You said that appointments to the third-party organisations that are still in existence are carried out by accounting officers. What are those organisations?

Mrs Huston:

I am sorry; I have not looked at that list for a while — it has got very small. The science park is an example of a third-party organisation. I should be able to remember the three, but they have been moving about and changing a bit. We will give the Committee a list of what we used to have.

Ms M Anderson:

Is there a rationale for why they are TPOs, rather than coming under your office?

Mrs Huston:

My understanding is that these bodies are set up just to spend funds in some way or other. It started a few years ago when the Westminster Public Accounts Committee investigated the Emerging Business Trust. That was a DETI board set up to fund new businesses in some way or other. There were some scandals surrounding conflicts of interest on the board, and so on. The board was established by civil servants, but I presume that the Minister signed off on the idea at some point. They appoint people, nobody really knows how, and then those people spend public money. Therefore, whereas the Minister makes the appointments to the bodies that I regulate, so he or she signs the letter saying that someone is appointed and an open process is followed, nobody really knows how people get on to those third-party organisation boards. It is done by civil servants.

Ms M Anderson:

There could be an appointments process, if we could find out.

Mrs Huston:

Well, there might be, but they are not being advertised.

Ms M Anderson:

Can I find out more about the arm’s length bodies review team? How long has it been in existence, and what does it do?

Mrs Huston:

I have only been able to get DFP to share a summary of its report with me. Since we discovered the existence of this report, which was about a week ago, we have been asking for a copy of it. I am sure that DFP would be happy to share it with you.

The Chairperson:

Was it commissioned by DFP or OFMDFM?

Mrs Huston:

The permanent secretaries’ group commissioned it, and I believe that it is prepared by DFP. It certainly came from the Treasury Officer of Accounts. It was distributed to finance directors or similar within Departments. As I say, I have only been allowed to see the summary of that.

Ms M Anderson:

Some people use the term “quango-hoppers” about people who either move from one such body to another or who serve on a number of those bodies. Do you have information on the different bodies that you appoint in respect of how many bodies an individual would be on? I do not want you to name the individuals, obviously, but generally speaking, is there a limit to the number of bodies that a person can sit on?

Mrs Huston:

There is no technical limit.

Ms M Anderson:

Would you recommend that there was one, particularly after the Public Accounts Committee mentioned one individual who had a number of appointments?

Mrs Huston:

I have not gone down the line of limiting the number of appointments that people have because some public appointments might be to boards that meet once only each quarter or twice a year — advisory bodies and such like. The Departments should, and are expected to, check that people have the time to serve on maybe more than one public body when interviewing them or even assessing an application form within an interview. It can depend; some do not meet very often and some meet a couple of days a week. It depends on the nature of the board. There are not many people who serve on a lot of quangos.

Ms M Anderson:

Do we have anyone serving on four, five or six?

Mrs Huston:

Yes. We used to have two or three people who served perhaps on four bodies. The central appointments unit of OFMDFM issues a public appointments report every year, which lists the people who serve on pretty much every public body in Northern Ireland. They have collated some statistics about numbers. The quango-hopper, like a little rockhopper, is our difficulty. We want to keep expertise that people have, but sometimes they just keep appearing over and over again. That comes from the fact that the criteria drawn up by the civil servants are identikit. There is little originality of thought put into the criteria.

If you fit one lot of criteria on one public body, you will, by dint of your experience, fit the next lot. In contrast, someone who comes from outside and has not got experience of serving on a public body will, first, not understand the jargon that it is written in and, secondly, will not be ticking the boxes in the way that civil servants interpret it. That is how we end up with the perpetuation of a small cadre, which I would love to see expanded.

Mrs D Kelly:

Thank you for your candour.

I suppose that it is welcome news that a commissioner’s or ombudsman’s office is in a hut in these austere times. That could be trend-setting for some of the others.

What you have told us is very worrying. I was not a member of the Committee for a while, and I can see no movement from the position two or three years ago. It seems very petty and childish that if you criticise something in the Civil Service the next thing you know, you have an officer removed. The Committee should have the head of the Civil Service — not his head, literally — before the Committee to answer some questions on the matter.

Given that it is the responsibility of the Assembly to widen participation in public life, particularly among females, younger people and people from an ethnic background, it is very disappointing to find that you are not being given the answers that you sought. That is something that we have a duty to follow up on.

You were hoping to have an opportunity to tell us how money might be saved, which is something that I would be interested to hear. Have you seen any schemes or suggestions from the Civil Service on how action might be taken to increase the participation of women in public life in the near future?

Mrs Huston:

I cannot think of any off the top of my head. There are programmes going on in England and Scotland that I am aware of, but there is nothing here that I come across. DETI is working on its database of women’s organisations to try to reach out to them. Credit where it is due, DETI is doing that. I am not aware of any other programmes.

DARD is keen to work with the Northern Ireland Rural Women’s Network. From what I know of it from meeting some of its members and speaking at some of its events, it is a very dynamic women’s organisation. There is a strong drive in DARD to work with that organisation. I am not aware of any other schemes across the Civil Service. If there are any, the Civil Service has not talked to me about them.

Mrs D Kelly:

In the briefing that we have about the EU Commission, a report is highlighted about widening participation across Europe and the work that the Commission is doing on that. We should send that to some of the Departments, because they seem to have ignored the issue completely. We will pick that up if the Committee agrees to have the head of the Civil Service here.

Mrs Huston:

Thank you for listening to my plug. My appointment comes to an end in August after two terms. In England and Scotland, there has been a lot of examination of the architecture of ethical regulation. The Commissioner for Public Appointments in England’s term is coming to an end, and her post has been amalgamated with that of the Chief Civil Service Commissioner. The Commissioner for Public Appointments in England was always ex officio Civil Service Commissioner, which has some benefits. That is something that the Committee might want to look at, because, although I do not know an awful lot about the day-to-day structure of the post, I do not imagine that Chief Civil Service Commissioner is a full-time post.

Mrs D Kelly:

Do we have one?

Mrs Huston:

Yes, we do.

Mrs D Kelly:

Who is it?

Mrs Huston:

It was Brenda McLaughlin.

Mrs D Kelly:

I am not aware of Civil Service Commissioners here.

Mrs Huston:

The Northern Ireland Office used to appoint them; I am not sure who appoints them now. Whoever it is did not come to me.

Mrs D Kelly:

Goodness knows what hut they are in.

Mrs Huston:

They are in town in Windsor House.

Mrs D Kelly:

You have to look after the civil servants.

Mrs Huston:

I did not want to go to town.

Mrs D Kelly:

Maybe the Committee Clerk could find out some information about the Civil Service Commissioners for us.

The Chairperson:

There are a number of points that we will deal with after the evidence session.

Mrs Huston:

There is also the Northern Ireland Ombudsman work and the work of the Assembly Commissioner for Standards. Perhaps, those positions could be combined into one commission, but I will leave that with those who work out the technicalities.

The Chairperson:

That sounds like another consultation and another consultant’s report.

Mr Spratt:

Thank you for the report. I am delighted that you have a nice new hut; you complained long and hard to the Committee about getting a new place, so I am delighted that it has worked out for you before you leave.

Most parties around the table would be concerned about quango-hopping, because that was endemic under direct rule. There would be no arguments around the table, because a lot of us want to see fewer quangos. You indicated that there are lots of areas that you would like to be involved in. Do you not think that Ministers have to have some control in their Departments over some appointments that they may need to make for expertise, or issues that may need someone appointed at a point in time? Would they not be getting expert advice from people in their Departments about some of those appointments? Ministers appoint teams on a pretty regular basis to do a specific piece of work. In the present economic climate, your likelihood of getting increased staff or increased anything to do the amount of work that you were talking to us about is probably not very likely.

I will say this straight to you: is there not a possibility, in some of the wish lists that you went through today, that you may be seen to be interfering in the internal workings of Departments, nearly to the extent that I would have thought that you would have liked a seat on the Executive so that you could advise them?

Mrs Huston:

No, thank you, and I do not want any more staff. In fact, I suggested that my post should be rolled up with another one, so I am clearly not looking for extra resources.

Mr Spratt:

But you are not suggesting that the roll-up with another one would not be quango-hopping.

Mrs Huston:

No, the two jobs would be held by one person, or within a commission. It would not be a separate post, so I am certainly not suggesting any increase in resources.

Mr Spratt:

Are you suggesting that you could join up with other bodies?

Mrs Huston:

Yes, that is exactly what I am suggesting. Various commissioners could be doing that. I do not think that anything I mentioned has asked for extra resources. My job is to set a standard, to prescribe a code, and to ensure that it is complied with, and that is what I attempt to do. Ministers make their own decisions about quangos, how many there are, and how many people they wish to sit on them. If they wish it to be regulated by me, the code comes into play.

The Chairperson:

Just to be clear, members, these are recommendations that came from the Public Accounts Committee.

Mr Spratt:

I understand that.

Mrs Huston:

Exactly; they are not mine.

Mr Spratt:

I understand all of that. I am only trying to get to some of the points that were made, because it was a fairly wide-ranging discussion area. Quite a number of points were raised by Felicity, and I am only trying to probe into them, which I think I have a right to do.

The Chairperson:

That is OK.

Mr McElduff:

On the question of accommodation: last time, we spoke about the perceived lack of independence, when the office was in Castle Buildings. Then it moved a short distance to stand-alone accommodation near Dundonald House. Did I pick up along the way that the commission refused an offer of city centre accommodation? Was there a Government offer of city centre accommodation that would have been far more accessible for people?

This transcript says that you are in a new place; it stops the callers. Surely it is callers you want. I am concerned about people west of the Bann. The city centre would be far more accessible for people travelling by public transport. If the office is not going to be in Omagh, surely it should be in Belfast city centre, which would be a far better place for public accessibility than an annexe in the Stormont Estate. Did the commission refuse an offer from Government for city centre accommodation?

Mrs Huston:

No, but I felt that it would be very expensive to rent in the city centre. Callers, the way it was put there, refers to civil servants calling in without appointment as if we were merely colleagues of theirs rather than an independent regulator.

A move into the city centre would have taken me away from many Departments. More to the point, however, it would have been an expensive move. The rent is internal between OFMDFM and DARD. It is currently settled at £12,000 per year, I believe. There is no cost to the Exchequer because that money merely moves from one Department to another.

We have few unexpected callers from the public. The bus stop is right outside Annexe B, so it is actually very accessible, unlike many a city centre office that does not offer accessibility to people.

Mr Kinahan:

Martina raised the matter of getting a response. I wonder whether we should ask for that response within a certain timescale. That would be much more useful. The creators of Monty Python could not have written better than what I have heard today. It has been most extraordinary. We are here to check people. However, you are not being allowed to check them. You are being denied powers. That really ought to be put higher up the agenda.

The Chairperson:

OK. A number of issues and suggestions have been raised. We will look at them to see what to take forward. Thank you very much.

Mrs Huston:

Thank you very much, Chairman. I appreciate your time.

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