Commission for Ethical Standards in Public Life in Scotland

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1 Cmmissin fr Ethical Standards in Public Life in Sctland REPORT TO PARLIAMENT Laid befre the Scttish Parliament by the Public Appintments Cmmissiner fr Sctland in pursuance f Sectin 2(8) a f the Public Appintments and Public Bdies etc. (Sctland) Act 2003 (the 2003 Act). TITLE: MATERIAL NON COMPLIANCE WITH THE CODE OF PRACTICE FOR MINISTERIAL APPOINTMENTS TO PUBLIC BODIES IN SCOTLAND MINISTER: ALL SCOTTISH MINISTERS WHO HAVE REAPPOINTED MEMBERS TO THE BOARDS OF REGULATED BODIES SPONSORED BY DIRECTORATES LISTED IN APPENDIX ONE AS NON- COMPLIANT SUMMARY 1. The current Cde f Practice fr Ministerial Appintments t Public Bdies in Sctland came int frce n 1 September The 2011 cde makes clear the respnsibilities f the Scttish Ministers when reappinting bard members: Paragraph 2: The Scttish Ministers are respnsible fr successin planning t ensure bards have the skills and knwledge necessary t fulfil their rle ecnmically, efficiently and effectively. They will determine the perid fr which an appintment, reappintment r extensin t an appintment term is t be made based n the needs f the bdy cncerned. Paragraph 3: The Scttish Ministers will cnsider whether the needs f a bard will mst effectively be met by an appintment, reappintment r extensin t an appintment term. They will balance the cntinuity prvided by reappintment and term extensins with the pprtunity t increase the diverse range f relevant skills and knwledge n a bard by making a new appintment thrugh pen cmpetitin. Sectin I: The skills and knwledge needed by the bard are maintained I1: The Scttish Ministers may reappint a bard member t the same psitin nce. Decisins t reappint will be based n: i. evidence f effective perfrmance during the current term ii. evidence that the member has the skills and knwledge required n the bard at the time f reappintment and fr the reappintment perid. 2. In March 2012 I submitted reprt CPA/2012/01 detailing material nn-cmpliance with the requirements f the 2011 cde, citing the cumulative effect f a failure t cmply with the cde requirements fr successin planning. 3. This reprt details the current situatin, and I am bund t reprt cntinued nncmpliance with the 2011 cde, the cumulative effect f which I cnsider t be material. Karen Carltn Public Appintments Cmmissiner fr Sctland 31 May

2 CONTENTS PAGE Backgrund 3 Current Psitin 4 Appendix: One Reappintment activity and instances f nn-cmpliance with the 2011 cde: 29 February 31 May

3 BACKGROUND I. The 2011 cde is designed t II. prvide a framewrk fr ensuring the requirements f the 2003 Act are met by the Scttish Gvernment s appintment practices encurage flexibility f apprach t tailr the appintments prcess t the bdy, the rle and the target audience address areas f past nn-cmpliance by being explicit abut certain requirements f the prcess. The 2011 cde is explicit abut the need fr the Scttish Ministers t plan fr successin the requirement fr evidence f effective perfrmance during the current term by the member being cnsidered fr reappintment the requirement fr cnsideratin f the needs f the bard, at the time f the reappintment and fr the reappintment perid. The cde makes clear that, where any f the cde s requirements are cnsidered inapprpriate due t prevailing circumstances, the Scttish Ministers will discuss the ptins pen t them with the Cmmissiner. Thus, where there is uncertainty abut the future f a bdy r the future requirements f its bard, this will be discussed and an apprpriate curse f actin agreed. III. IV. Given the freging, the requirements fr reappintment specified in the 2011 cde and its predecessrs have been made clear and have been cmmunicated at apprpriate levels. There shuld be n dubt abut the requirements. Evidence reviewed by the Cmmissiner indicates that they are nt, and have nt been, adequately met. Reprt CPA/2012/01 presented by the Cmmissin t Standards, Prcedures and Public Appintments Cmmittee f the Scttish Parliament in March 2012 identified material nn-cmpliance in regarding reappintment practice, citing the cumulative effect f a failure t successin plan. V. Scttish Gvernment cmmitted t establishing a tracker system t ensure that their team respnsible fr administering the appintments prcess (PACE) were in a psitin t identify ptential reappintment cases well in advance f term end dates. VI. I instructed an audit f reappintment practice t help identify areas fr attentin and share gd practice acrss directrates and with PACE. The resulting reprt will be available in July

4 CURRENT POSITION VII. VIII. IX. My ffice cntinues t receive submissins relating t reappintments that d nt meet the requirements f the 2011 cde. Tw thirds f all submissins t cnsider reappintment practice received since the date f the last reprt have failed t cmply with the requirements f the cde. In additin, my ffice has identified instances where reappintments have nt been cnsidered by the appinting minister until after the date that terms have ended. A recent reappintment submissin was received ver thirteen weeks after the tw members terms had ended. The members in questin cntinued t participate in bard business during this perid, althugh I am assured have nt received payment r acted as vting members f the bard. Furthermre, as part f the audit f reappintment practice referred t at paragraph VI, an instance f a cnvenr f a public bdy leading a bard meeting withut a letter cnfirming their reappintment frm the Minister has been identified. Published bard minutes state:- persn X als infrmed the meeting that he had nt, as yet, received his re-appintment letter frm Scttish Gvernment (SG) althugh he had been assured he wuld receive it ahead f the Bard meeting. Persn X highlighted that he was therefre technically nt Cnvenr f the Bard and asked members if they were cntent t prceed. Members cnfirmed that they were cntent. X. In my reprt t the Cmmittee in March I stated that Pr successin planning puts the wrk f bards at risk and demnstrates a lack f respect fr members f public bdy bards. The cases highlighted where members have nt been reappinted prir t their term end dates prvides a clear example f hw a failure t successin plan has put the wrk f the bards in questin at risk and ptentially culd damage the reputatin f a Scttish public bdy as well as the appintments prcess. XI. XII. XIII. In additin, I am cncerned t hear reprts frm bdy chairs t the effect that they are being cmpelled by Scttish Gvernment t cmplete paperwrk intended fr internal use by the Scttish Gvernment PACE team, resulting in additinal wrk fr chairs f ur public bdies and cnfusin regarding the requirements f the cde. T supprt Scttish Gvernment in its apprach t reappintments a member f my team is delivering a training sessin t PACE staff n 1 June I remain cncerned that Scttish Gvernment is nt priritising the required actins t ensure that reappintments are taken frward in a way that shws respect fr members f the bards fr public bdies and ensures that the needs f the bards are prperly cnsidered. 4

5 APPENDIX ONE REAPPOINTMENT ACTIVITY AND INSTANCES OF NON COMPLIANCE WITH THE 2011 CODE 29 February 31 May 2012 DIRECTORATE REQUEST DATE OF REQUES T TERM END DATE SUCCESSION PLANNED? Learning & Justice REAPPOINTMENT 29/2/12 7/6/12 N Learning & Justice REAPPOINTMENT 29/2/12 7/6/12 N Health & Scial Care REAPPOINTMENT 29/3/12 31/5/12 N Enterprise & Envirnment REAPPOINTMENT 30/3/12 15/5/12 N Gvernance & Cmmunities REAPPOINTMENT 5/4/12 30/6/12 Yes+ Gvernance & Cmmunities REAPPOINTMENT 5/4/12 30/6/12 Yes+ Gvernance & Cmmunities REAPPOINTMENT 5/4/12 30/6/12 Yes+ Enterprise & Envirnment REAPPOINTMENT* 17/4/12 31/1/12 N Enterprise & Envirnment REAPPOINTMENT* 17/4/12 31/1/12 N Learning & Justice REAPPOINTMENT 19/4/12 31/6/12 N Enterprise & Envirnment REAPPOINTMENT 25/4/12 31/3/13 Yes time available Health & Scial Care REAPPOINTMENT 1/5/12 31/7/12 N Health & Scial Care REAPPOINTMENT 1/5/12 30/9/12 N Health & Scial Care REAPPOINTMENT 1/5/12 30/6/12 N Health & Scial Care REAPPOINTMENT 1/5/12 30/5/12 N Gvernance & Cmmunities REAPPOINTMENT 2/5/12 31/8/12 Yes+ Enterprise & Envirnment REAPPOINTMENT 4/5/12 30/11/12 Yes time available Enterprise & Envirnment REAPPOINTMENT 4/5/12 30/6/12 N Enterprise & Envirnment REAPPOINTMENT 4/5/12 31/7/12 N Health & Scial Care REAPPOINTMENT 4/5/12 31/10/12 N Health & Scial Care REAPPOINTMENT 4/5/12 21/10/12 N Learning & Justice REAPPOINTMENT 11/5/12 18/5/12 N Learning & Justice REAPPOINTMENT 11/5/12 18/5/12 N Learning & Justice REAPPOINTMENT 11/5/12 18/5/12 N Learning & Justice REAPPOINTMENT 11/5/12 31/7/12 N Learning & Justice REAPPOINTMENT 11/5/12 31/7/12 N Learning & Justice REAPPOINTMENT 16/5/12 16/11/12 Yes time available Health & Scial Care REAPPOINTMENT 17/5/12 25/5/12 N Health & Scial Care REAPPOINTMENT 17/5/12 31/5/12 N Enterprise & Envirnment REAPPOINTMENT 17/5/12 31/12/12 Yes time available Enterprise & Envirnment REAPPOINTMENT 17/5/12 31/12/12 Yes time available Enterprise & Envirnment REAPPOINTMENT 17/5/12 31/12/12 Yes time available Health & Scial Care REAPPOINTMENT 24/5/12 31/3/13 Yes time available *In tw cases, submissins were received after the date n which members terms ended. The members in questin participated in meetings arranged by the bard; the Cmmissiner has been assured that they did nt act as full members and did nt attract remuneratin during the perid between the term end date and cnfirmatin f reappintment by the minister (31 January 16 April 2012). +In these instances, there was nt enugh time t make a new appintment prir t the term end date, but a case was made t the effect that the needs f the bdy wuld nt be affected if the reappintment was nt made and if a new appintment was required. This des nt, hwever, cnstitute meaningful successin planning. 5

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