Mobility and Access Committee for Scotland (MACS) - Response to recommendations for change to the Code of Practice for Ministerial Appointments to Public Bodies in Scotland and a proposed draft code for further consultation - 2021
MACS response to recommendations for change to the Code of Practice for Ministerial Appointments to Public Bodies in Scotland and a proposed draft Code for further consultation.
1. Respondent Information
This consultation paper invites comments on the recommendations made by the Commissioner about the ways in which the Code of Practice could be improved upon. It also seeks views on the revised draft Code.
2. Recommendations arising from the analysis
2.1 Defining diversity and securing it
Recommendation 2.1
The revised draft Code will balance specific measures with a focus on appropriate outcomes for each board in terms of diversity and succession planning. Over and above this, the term diversity will be expanded to provide a better understanding of what the appointments process should deliver.
MACS Response
Yes. Diversity can mean different things to different people so clarification is important.
2.2 Learning lessons and basing decisions on evidence
Recommendation 2.2
The Commissioner will, in making revisions to the Code, balance the need to allow for flexibility with some very clear requirements about the need for panels to base decisions on evidence of what works and for the Scottish Government to maintain, update and use that evidence-base. In the absence of such measures, and based on past experience, the Commissioner does not see how such good practice will become the norm. Clearer focus on what works and why will help increase the pace and improve the focus of measures to deliver more diverse appointments of people with the right skills and experience.
MACS Response
Yes. Flexibility is important to give a balanced membership but even with flexibility there is a need for boundaries, especially when the appointments are to public bodies which need to uphold the standards of public life.
2.3 Nationwide, regional or characteristic-specific positive action measures that could be taken.
Recommendation 2.3
The Commissioner has concluded that the Code should place a requirement on the Scottish Government to publish an action plan each year which includes the SMART, evidence-based measures that it proposes to take in the year ahead in order to secure more diversity on boards. The Scottish Government will also be required to report annually on progress against the previous year’s plan. Thus, the Code will not be prescriptive about the specific measures to be taken round by round but will rather be clear that it is a responsibility of the Scottish Ministers to undertake clear positive action measures. The production of and reporting against an annual action plan are appropriate for inclusion in the Code. This will increase transparency and allow for the Scottish Government to more effectively measure its own performance and to be held to account publicly for the longer-term measures that they put in place to support change over and above any specific activities delivered on an appointment round by appointment round basis.
MACS Response
Yes. Positive action and SMART measures are essential to ensure that a Board can appoint people with the right characteristics to give balance to the diversity of the Board. The Board I represent requires that at least half its members are disabled, however, we need to recruit individuals with specific lived experience in order for us to represent all sectors of diversity and all aspects of Scottish life. With this in mind we will positively discriminate to enable our Board to have a representative who is capable of representing the island communities.
2.4 Updating the Diversity Delivers strategy
Recommendation 2.4
As there still remains significant opportunity to increase diversity on Scotland’s boards and to embed more sustainable and replicable ways of maintaining that, the Commissioner has concluded that he should seek parliamentary support for to update Diversity Delivers. He hopes that developing a more forward-looking and integrated approach through a refreshed and up to date strategy will aid in bringing a shared understanding and accountability to its achievement across the range of partners who are committed to improved outcomes in this area
MACS Response
Yes. Improving the diversity on Boards, and placing diversity at the heart of our work requires commitment from parliament, with MSPs and staff being role models for the rest of our membership. By updating Diversity Delivers we are seeking the buy in from MSPs.
2.5 Which provisions of the Code and Guidance are detracting from the delivery of appropriate outcomes?
Recommendation 2.5 a
The Commissioner accepts that the language of the Code could be simplified and that this should apply also to all of the materials that the Scottish Government employs for the appointments process.
MACS Response
2.5 a – Yes. Easy read documents should always be made available as a commitment to those people with disabilities who need material in this format. By making all documents easier to read we are making progress to include a more diverse sector of the community who previously found government documents difficult to understand.
Recommendation 2.5 b
The Commissioner also sees a greater role for boards themselves in planning for succession being an important addition for inclusion in the next iteration of the Code.
MACS Response
Yes. The convener of a board is the most appropriate person to consider the succession planning of their Board. This should be made part of their role description.
Recommendation 2.5 c
The Commissioner acknowledges and accepts that there could be an inherent conflict of interest attached to PAAs acting as decision makers in the appointments process. Although this practice was adopted with the agreement and, in fact, encouragement of the Scottish Government when the 2013 Code was introduced on the basis that PAAs became Public Appointment ‘Advisers’ rather than ‘Assessors’ at that time (with an increased focus on good practice and support rather than enforcement), he is happy to consider the issue again in light of the responses received to this consultation.
MACS Response
Yes. PAA ie advisors should be a critical role in the recruitment process to ensure consistency of advice and appointment across all government bodies. Assessment is best placed with the members of the Board. An independent /critical friend may be appropriate as part of the appointment panel.
Recommendation 2.5 d
The Commissioner does not intend to meet the Scottish government’s request to remove a large proportion of the requirements set out in the current Code as part of this revision. Where the Commissioner considers it appropriate, he will amend or remove a proportion of requirements that detract from the adoption of methods and practices that could prove to be less resource-intensive. By way of example, the Code already allows for multiple posts on different boards to be filled by way of a single competition and this will explicitly be written on the face of the Code so that there can be no confusion. The Commissioner considers that the Code itself and also the materials used for the appointments process should be simplified and made more accessible. The Commissioner also considers it appropriate to place greater emphasis on the role of boards themselves in planning for succession.
MACS Response
Yes. The recruitment of new members is a time consuming and expensive process, any plans to simplify it are welcome. A recent recruitment exercise I took part in used MS Team and video interviews which saved both applicant and panel considerable travelling and was a very successful process.
Recommendation 2.5 e
The Commissioner is minded to place greater responsibility for key decisions on the selection panel, and potentially the chair of the panel who represents the appointing minister, on the face of the Code. It is proposed that prescription in this area should involve placing an obligation on the panel chair to devise an evidence-based plan for each appointment round which, when implemented, will meet a given board’s needs and also redress any identified under-reflection (of skills, characteristics or other relevant factor). The panel chair will also be required to report on the extent to which the plan delivered its anticipated outcome. This provides the Scottish Government with maximum flexibility whilst still allowing for appropriate accountability. To ensure that the importance of this change is fully understood, the Commissioner will include a new principle of “Accountability” in the Code. In that context, the Commissioner will also consider the most appropriate role for the PAA, his representative, in the appointments process.
MACS Response
Yes. Panel chairs may not have sufficient skills and knowledge of recruitment and selection, so support of PAA and assistance with the process from officers is vital if required.
2.6 Using evidence to inform decisions and adopting measures to achieve wider diversity on boards
Recommendation 2.6
The Commissioner accepts that responsibility for the necessary improvements lies with the Scottish Government. It is therefore proposed that the revised Code should place an obligation on selection panel chairs to devise an appropriate evidence-based plan for making appointments to a given board. The factors to be considered for inclusion in these plans, such as those suggested by respondents to the consultation, will be set out in the statutory Guidance.
MACS Response
Yes. Recruitment process/selection of appointees should not be done without an evidence based selection process. Applicants need to know that they will or will not be appointed on merit, not on inappropriate measures such as political views, friendships within the Board etc
2.7 Should the Code refer to the Gender Representation on Public Boards (Scotland) Act 2018 and its provisions?
Recommendation 2.7
The Commissioner has decided that he should delay making any final decisions about which provisions of the Act, if any, should be reflected in the provisions of the Code.
The Commissioner notes the Scottish Government’s position that the Commissioner has no locus to determine compliance with its adherence to this legislation – although it clearly relates to the majority of public appointments in Scotland which he regulates. In that event, and given that there appears to be no clear path for scrutiny and accountability for adherence to the Act, any measures that the Commissioner considers it appropriate for the Scottish Government to follow will not be specifically linked to the provisions of the Act to ensure that his determinations on compliance relate to the Code alone.
MACS Response
Unsure. A Board which is gender balanced is preferable but the protected characteristic are more important in recruitment. Selection and appointment still need to be based on skills and abilities as a primary tool.
2.8 Appointments requiring approval by the Scottish Parliament
Recommendation 2.8 a
The Commissioner is minded to follow the advice of OCPA with a view to ensuring that the disparate and not entirely satisfactory practices in Whitehall are not replicated in the Scottish Parliament. As per the view of the Standards, Procedures and Public Appointments Committee, the Commissioner intends to include a provision in the Code, requiring the Scottish Ministers to consult the Scottish Parliament meaningfully at appropriate stages for appointments requiring parliamentary approval.
MACS Response
Yes. It is important that Scottish Parliament sets its own standards and maintains them.
Recommendation 2.8 b
There was clear support for applicants to be able to base their decisions on all of the facts for such appointments and so the requirement for the applicant information pack to be clear about what parliamentary approval will entail will be included in the Code.
MACS Response
Yes. Fully agree. Whilst the application pack is a substantial document it is essential for applicants to have a clear picture of what they will be doing and for who
2.9 Should diversity be expanded to include other attributes and, if so, what should those be?
Recommendation 2.9
The Commissioner will amend the Code to include reference to other attributes cited by respondents to the consultation, such as lived experience and values, as appropriate for consideration when the Scottish Ministers plan to appoint new board members.
MACS Response
Yes. In my view diversity relates to the protected characteristics, whilst other attributes, skills, experience are personal qualities and should be kept separate on the application and in the recruitment process.
2.10 Should the Code be more explicit about matching assessment methods to the attributes sought?
Recommendation 2.10
The Commissioner proposes to include a requirement in the Code that the assessment methods chosen should be selected on the basis of their validity and clear evidence that they are effective and that they do not have an adverse impact on the success of people who share given protected characteristics. This will require equality impact assessments of methods to be undertaken. The Code will also require evidence to be maintained about decisions taken on assessment methods and the reasons for their selection. Their effectiveness will also require to be monitored. The Commissioner has also taken cognisance of the EHRC’s views on the need for the provision of reasonable adjustments to be made more proactively and intends to strengthen the Code in that area also.
MACS Response
Yes. Fully support this recommendation and welcome it as good recruitment process.
2.11 Should issues that the Commissioner has provided guidance on since the 2013 code came into force be included in the Code, guidance or both?
Recommendation 2.11
The Commissioner has concluded that there were clear and cogent arguments made in support of certain issues to be included in the Code itself, particularly by organisations working in the field of equality, and will do so. The Commissioner will also consult the Scottish Government further on the issues of concern to them before making a final determination on which guidance should be codified.
MACS Response
Yes. This overhaul of the guidance etc is a one off chance to bring together all aspects of the previous code and any additions which have been made since the original code was published.
2.12 What should the Code say about panel members?
Recommendation 2.12 a
The Commissioner will include a requirement in the Code for panel chairs to be trained in recruitment and selection for chair and member appointments to boards, with that training to specifically cover equality and diversity, before they can participate. Whilst the Commissioner notes that there were a number of respondents who felt that all panel members should be trained, his view is that this would represent a disproportionate requirement, other than in the case of independent panel members, given the important nature of the role that they fulfil. The Code will, however, ensure that training is made available to any other panel member who wishes to receive it.
MACS Response
Yes. I personally, as a panel member, have a significant professional career in recruitment and selection so would only feel it necessary to be briefed on the process used by Scottish Government. Colleagues may differ in their experience so a voluntary training would be appropriate.
Recommendation 2.12 b
The Commissioner has decided to provide more clarity on the face of the Code about how independent panel members are to identified, the provision of terms of reference to them and the minimum standards of support and training that they should be provided with
2.13 Should the Commissioner commence audits and report more frequently to the Scottish Parliament on the Scottish Government’s public appointments activities?
MACS Response
No. Good record keeping is essential but ad hoc or annual reports should be sufficient.
Recommendation 2.13 a
The Commissioner has determined that an audit of a proportion of appointment rounds will be a helpful supplement to the oversight already provided. The Commissioner’s view is that should be used to identify both good and poor practice with a view to driving improvement. The first of these audits will commence approximately one year after the revised Code comes into force and it will assess the extent to which it is being followed.
MACS Response
Unsure. Panel chairs and members may feel intimidated by the prospect of audits and it may become difficult to recruit panel members. The PAA should be empowered to guide panels and report any concerns
Recommendation 2.13 b
The Commissioner will consult the successor subject committee in the next parliamentary session about the form, frequency and content of such reports.
MACS Response
Yes. Consultation is appropriate but a balanced argument of the pros and cons is required.
2.14 Is the current regulatory model appropriate and, if not, what should replace it?
Recommendation 2.14
The Commissioner notes that few of the respondents overall had a view on the current regulatory model and that, of those that did, most were in favour of the status quo. The Commissioner does have some sympathy with the view that his representatives have a conflict of interest when taking part in decision-making and has therefore already concluded that it is appropriate to review this arrangement. The Commissioner is less persuaded by the Scottish Government’s further arguments for principles-based regulation and notes that no reasons were given in support of the two other regulatory models posited by them. The Commissioner has concluded that the current regulatory model is therefore appropriate but that it should in fact be more robust in order to drive improvement by way of more regular and transparent reporting on practices.
MACS Response
Yes. Agree with current model.
2.15 Views on other issues that the Code and Guidance should take into account and on the appointments process more generally
Recommendation 2.15 a
The Commissioner concurs with many of the views expressed in response to these questions. It is apparent that many boards feel that they have a more important role to play in planning for succession as well as community engagement to encourage applications and so both of these issues will be included in the revised Code.
MACS Response
Yes. Community involvement is useful to try and seek a representative Board, but it should be noted that a community exists outside the Central belt.
Recommendation 2.15 b
There are longstanding and legitimate concerns that the current appointment process and the language that characterises it represent a barrier to people from a range of under-reflected groups and that boards and their impact/effectiveness are poorer for it. The Code will be revised to ensure that how merit is defined and assessed takes these concerns into account.
MACS Response
Yes.
Recommendation 2.15 c
The Commissioner intends to strengthen the Code in this area, by following OCPA’s recommendation about the inclusion of a “candidate care” section in the Code. That section will also specifically address concerns about timescales for the appointments process. The Commissioner notes but disagrees with the Scottish Government’s view that these were operational matters that did not belong in the Code. It is apparent that both issues have an impact on board diversity and the pool of qualified and motivated applicants and that improving practices in this area should also. To ensure that there is no dubiety over the importance of the willingness of people to apply for roles and the way in which they are treated when they do, the Commissioner will include a new principle of “Respect” in the Code to that effect. Code provisions will reflect this principle, and also take into account the results of the board member survey that the Commissioner ran on time commitment and remuneration.
MACS Response
Yes. Board membership has changed over the decades from ‘who you know’, who you vote for or which armed service you were an officer in, so it is important to continue to have open and fair recruitment with care for the candidates as a central feature.
Share your views on the revised draft Code of Practice
MACS Response
1. The revised code is a very comprehensive document with good, plain English explanations of all aspects of the recruitment of Board members.
2. The role of chair needs to be expanded and to include the roles of a panel member as well as the additional duties of a chair. It also needs to state: chair the panel appropriately and comply with the requirements of this code.