Scottish Parliament Election - 6 May 2021: guidance for the Scottish Government, its agencies and National Devolved Public Bodies

Note 12: Public Appointments

1. Ministerial participation in the public appointments process - whether appointment rounds are regulated by the Ethical Standards Commissioner (ESC) or not - ceases until Parliament reconvenes and Scottish Ministers are appointed. This does not prevent staff from continuing preparatory action in support of the process, but no significant decisions should be taken or offers made, whether formal or informal. In particular, no action should be taken that might bind an incoming administration to a commitment made during this period.

2. Although this guidance applies to non-executive appointments, the principles are also applicable to those executive appointments to public bodies which require Ministerial approval.

Planning for an Appointment

3. The current lead time for an appointment regulated by ESC is around six months. Appointments to bodies not regulated by ESC can have a shorter lead time.

4. At the planning stage of any current and any proposed new appointments rounds for any appointments or reappointments, sponsor teams should always consider the impact of the election on the process and the implications for the timing of the exercise.

5. The Public Appointments Managers are working with sponsor teams across their portfolios to identify any appointments or reappointments that would need Ministerial approval before the election period begins on 25 March.

6. Taking early action to set a realistic timetable for appointment decisions should mean that disruption of business while Scottish Ministers are not available will be minimal. In general, sponsor teams should be able to schedule the start, or progress of, a new appointment round to ensure that neither appointment criteria nor the actual appointment of a chair or member require to be agreed during the period of Ministerial non‐availability. Depending on the stage of the new appointment round, an exception request to the Ethical Standards Commissioner to amend a publicised timetable could be required. Note that the Public Appointments Team has already taken steps to ensure that there are no appointments in this category. Any concerns about appointment activity over the pre-election period should be directed, in the first instance, to the relevant portfolio manager:

• DG Health and Social Care: Linsey Craig, Terry Brown
• DG Education, Communities and Justice: Karen Piaskowski
• DG : Karen Piaskowski
• DG Economy: Kevin Mills
• DGs Scottish Exchequer, Constitution and External Affairs: Derek O'Neill
• or to Helen Miller, Head of Public Appointments (Acting).

Specific Issues

7. The ESC Code of Practice sets out the framework for Ministerial involvement in planning a new appointments round. While it makes no specific provision for the impact of a Scottish Parliament election, the Code requires that Ministers determine, in advance of each appointment round, the relevant skills, knowledge and personal qualities they wish to see held by appointees. Once appointable candidates have been identified by a selection panel, Ministers must make their decision on the basis of these agreed criteria. Neither of these decisions can be delegated.

8. In cases where an appointee's term is due to end between the start of the election period and the appointment of Ministers after the election, and no announcement has been made prior to Parliament entering its pre-election recess concerning a new appointment, sponsor teams are expected to consider whether the position can be left vacant until incoming Ministers are able to take a decision. This situation is also likely to apply to any appointments requiring Royal approval, since it would not be appropriate to invite Her Majesty to make an appointment in such circumstances.

9. In cases where an appointment needs to be made or a vacancy cannot be carried, it may be acceptable to extend the appointment of an existing member until incoming Ministers are able to take a decision on longer-term arrangements. The Public Appointments Team has reviewed through correspondence with sponsor teams that ESC regulated appointments requiring an extension are granted by the Commissioner. If you require an extension to a current appointee's term you must contact the Public Appointments Team immediately.

Cross‐Border Appointments

10. In those cases where Scottish Ministers need to be consulted on appointments to cross‐border public bodies, the Government policy interests responsible for advising Scottish Ministers on such appointments should advise their UK Government counterparts of the implications of the Scottish election for such procedures well in advance of the election period.

Senior Civil Service Appointments

11. Civil service appointments requiring agreement by the First Minister and approval by the UK Civil Service Cabinet Secretary, and other Senior Civil Service posts likely to prove sensitive, will not be made between 25 March and the date of appointment of Scottish Ministers after Parliament reconvenes.

Further information

12. For further information, please contact the Public Appointments Team:

• Helen Miller