Ministerial appointments to public bodies: training pack for independent panel members

2. Terms of Reference

The Ethical Standards Commissioner has provided the following terms of reference for Independent Panel Members

General information

1. The First Committee on Standards in Public Life, also known as the Nolan Committee, made recommendations intended to ensure that public appointments were made on merit following fair and open competition. One recommendation was that an independent Public Appointments Commissioner should be appointed to regulate, monitor and report on the public appointments process. Another was that selection panels, tasked with identifying the most meritorious candidates for the appointing Minister, should include at least one independent member.

2. In Scotland, the role of Public Appointments Commissioner is fulfilled by the Ethical Standards Commissioner (ESC). The Commissioner publishes a Code of Practice for Ministerial Appointments to Public Bodies in Scotland (the Code) and regulates and reports on adherence to it by the Scottish Ministers and their officials. In accordance with the Code, the Commissioner allocates Public Appointments Advisers (PAAs) to oversee a proportion of appointment rounds on his behalf. These Advisers oversee various parts of an appointment round, depending on the oversight that the Commissioner considers to be appropriate.

3. The Scottish Ministers are responsible for making the appointments and for the designation of the selection panel members other than the PAA. Usual custom and practice is that panels are chaired by a civil servant and include, in the case of the member appointments, the chair of the body. That is, however, simply custom and practice and the designation of panel members, including who should chair the panel and take responsibility for compliance with the Code, is ultimately a matter for the appointing Minister. The Scottish Ministers are encouraged by the Code to include independent panel members, particularly in cases in which there is no Public Appointments Adviser allocated to the panel.

Selection of Independent Panel Members

4. The Code advises that the independent panel member "must not be a member or official of the Scottish Government or of the public body. They must not hold or have recently held a position that would call into question their ability to fulfil their role in a truly independent and impartial manner". It is expected that the independent panel member will act with integrity and exercise his or her own independent judgment without fear or favour. He or she should be free of any actual or perceived conflicts of interest including any that might be thought to influence his or her judgment unduly. In order to fulfil their role effectively, independent panel members must therefore consider and be prepared to challenge constructively the views of their fellow panel members at all stages of the appointment process whilst also abiding by the provisions of the Code.

5. The Commissioner recommends that careful consideration should be given to matching the appropriate independent panel member to the panel on each occasion in order to avoid real or apparent conflicts. Both the selection panel and the potential independent panel member should be alive to this issue prior to any decision being made. The presence of the independent panel member is designed to engender public trust, on the basis of their autonomy and integrity. They may, for example, already have a role on an arms-length body that has a reputation for fulfilling a constructively critical function in relation to either the body to which the appointments are being made or to the Scottish Government itself. This can lend additional credibility to their acting as an appropriate independent panel member. Other considerations for the selection of independent panel members might include the fact that they bring particular skills, experience, expertise or perspectives that will add to the depth and quality of the panel's planning and its assessment of applicants.

Specific role and responsibilities

6. All selection panel members, including independent members, are expected to be familiar with and to adhere to the requirements of the Code of Practice for Ministerial Appointments to Public Bodies in Scotland (a selection of extracts particularly relevant to panel membership is appended to this document) as well as the statutory guidance on its application. Panel Chairs and independent panel members must have been trained on the appointments process and on diversity, equality and inclusion in the context of making public appointments. Independent panel members must also be provided with appropriate terms of reference and support to fulfil their role. They are required to take an active role in planning for appointment rounds with a view to achieving a successful outcome. That includes participation in designing the appointment plan inclusive of the timetable, role description, person specification, other relevant materials to be provided to prospective applicants and the arrangements for application and assessment. Additionally, as the Code makes clear, those tasked with assessment must be consistent in doing so, competent to assess using the methods chosen, such as interviews, and knowledgeable about equality and diversity issues and the impact the chosen methods may have on different groups of applicants.

7. As panel membership must stay the same for the duration of the appointment round, there may be a considerable time commitment involved. The panel itself designs the appointment plan including a detailed timetable for every stage of the appointment round. Once that plan has been finalised, panel members, inclusive of the independent member, are expected to adhere to the commitment that they have made.

8. There will be cases in which there is both an independent panel member and a Public Appointments Adviser involved in an appointment round. For the avoidance of doubt, the PAA's role is to give advice on good practice in recruitment and selection methods as well as guidance on application of the Code. The independent panel member's role is as set out in this document. The provision of guidance on application of the Code either generally or in particular cases is a statutory function of the Commissioner. Any panel or selection panel member with an enquiry about application of the Code, which cannot be readily resolved in discussions with a PAA, should be referred to the Commissioner's Public Appointments Manager for guidance.