 Gweithio. Welcome to the 11th meeting of the Public Audit and Post-legislative Scrutiny Committee in 2018. Can I ask everyone to please switch off their electronic devices or to silent so that they don't affect committee's work this morning? We have apologies from Willie Coffey MSP and Kenneth Gibson who is attending in his place. Welcome, Kenneth. Item 1 is decision on taking business in private. Do we agree to take item 3 in private? Thank you. Item 2 is governance of public bodies. I'd like to welcome our witnesses today, Bill Thompson, commissioner for ethical standards in public bodies in Scotland and Ian Bruce, public appointments manager in the commissioner's office. I'm going to ask Alex Neil to open questions for the committee. Morning, Bill. If you look back at the reason why we decided to take a closer interest in this whole process, it basically arose from the evidence that we got in relation to the Scottish Police Authority. The issues that were very much highlighted there could be applied to many other public bodies. For example, we've been dealing with NHS Tayside recently where substantial issues have arisen and matters have not worked out the way they should have done. We've looked at various other public bodies in the time that we've been here since the last election so that this is not exclusively the Scottish Police Authority, but I pick the Scottish Police Authority to start with as a very good example of where we all believe that there is something not quite right with the public appointments process. The Scottish Police Authority is now on its third chairperson. The first two chairs, to say the least, were not outstanding successes. They obviously had gone through what was supposed to be a very thorough process before being presented to the Cabinet Secretary as possible candidates to take the position. If you look at the role of the non-executive directors in the Scottish Police Authority, it's hard to find one of the previous appointees—I'm not referring to the new appointees, but it's hard for us to find one that was doing the job that was meant to do. Indeed, quite the opposite appeared to happen. Members like Mr Barber and Mo Alley appear to have been victimised for doing the job that was meant to do by the then chair. Where we are sitting, the public appointments process, certainly in relation to the Scottish Police Authority, has not been a raving success. There are, in my remit at the moment, 96 regulated public bodies. Mr Neil has mentioned two in which there have been rather well-eared difficulties. If the question is whether the process fails to deliver, it would be better to have a sense of the process of the process. I think that it would be better to have a sense of the process extent to which failures may exist. I think that the process has a lot of merit. I'm extremely aware that Mr Neil presented a bill in 2001 that would have led to a different process and probably prompted the current act of the 2003 act under which I operate. As I suspect, all the members of the committee will be aware, particularly having been a minister, the appointment by the ministers based on a code of practice, which was drafted and adjusted by my predecessors, but in consultation with the Scottish ministers and the Scottish Parliament. It has three criteria and the principles, and the main one is merit. I appreciate that the point of this question goes right to that issue. Appointments are made on merit and, in simple terms, merit is identified at the start of the appointment process by the minister, or at least on behalf of the minister. That is, in fact, the job specification that should link to the requirements of the board and the person specification in terms of their qualities, skills, experience and knowledge that are being looked for. That has to be signed off by the minister at the start of the process. The second principle is integrity. The process has to go through on the basis that those are the criteria for appointment. It has to be open and transparent and there cannot be any change. In other words, new criteria cannot be introduced part of the way through the process. What I am coming round to saying in a rather long-winded way is that you get at the end of the process what you look for at the start of it. If you are not satisfied that people who are appointed at the end of that process are sufficiently capable, it leads to a question as to what was identified at the outset as being merit. What were the correct things that you looked for at the outset? I have been a minister particularly in health, which the health secretary appoints more public appointees than any other cabinet secretary or minister. You are right, the minister signs off the process. Let me give an example of what happens. The minister does not see any names until he or she is presented with a final two or three. When I realised that, I asked to see the names of the original applicants. Some of the people who were turned down that I knew would have been much more eminently suited to the job than the people who were recommended to me, in my view, in many instances. I am not going to name names, but it would be inappropriate to do so. It seems to me as though one of the reasons that motivated the changes in the public appointment system was to make sure that politicians could not appoint their pals. In that objective, we have been successful. It seems to me as though a group of people appear regularly in public appointments and hold more than one public appointment. Another example, when I was health secretary, was that there were two people who were in the regulatory body of the health service, while simultaneously on boards of health boards. It had not struck anyone until I raised it and duly disposed of the services on the regulatory system that somebody who is a part of the regulation should not be sitting on the bodies that are regulated. That, in my views, is very poor governance. There is a whole load of issues. We saw with the Scottish Police Authority inevitably, with any process, that they are going to get one or two appointments that do not work out for whatever reason. In the case of the Scottish Police Authority, when it was at full strength, it had about 16 board members, it did not appear that any one of them were able to do the job that they were supposed to do. I do not have an answer for that. Is there only one system that those people are getting through, and then other good people are not getting through the system? I am not an expert on the difficulties that are experienced in the Scottish Police Authority. Obviously, I have paid attention to this committee and others' examination of the issues. What you are getting at is the problem of a group of people not behaving the way that you think they ought to. If you are a non-executive director, the expectation of a non-executive director is very clear. There is plenty of written material from the Institute of Directors and many others about what the role of a non-executive director is. We were very hard put to find any non-executive director from chairman downwards in the Scottish Police Authority to find out anyone who was doing the job that they were appointed to do. Obviously, if that is the committee's position, all I can say is that, in terms of the public appointment process, the people who were appointed met the criteria for appointment. If they did not behave the way that they were expected to do, that could be a flaw in the public appointment process. It could be a different reason. Will the minister interject? Maybe, Mr Thompson, I can draw your attention. We took evidence from just a few weeks ago from a couple of members of the Scottish Police Authority. One has since resigned from the SPA board. In terms of looking back at governance issues, we felt as a committee that their answers to our questions were extremely poor and showed a real lack of understanding or detail or recollection or any of those things of what had gone on. You said that you paid close attention to the committee. I wonder if you saw that evidence session and you could take that as an example of all that their performance came up to scratch? That is going to irritate you. It is not meant to convener. The performance of board members once they are appointed is completely outside my remit. I am not trying to be awkward with the committee. I am here to try and discuss the issue constructively. My remit goes as far as ensuring that the appointment process is conducted properly, which, as I have explained at some length, means that the criteria that are set out at the beginning are the ones that are used to assess the candidates. If they do not then perform, it could be because the criteria were set out wrongly in the first place or it could be something to do with the circumstances in which they found themselves. I do not have an answer for that. People who are doing the interviewing are not getting it right. We do not know the answer to the question why they are getting it wrong. What we do know is that, certainly in the case of the Scottish Police Authority and a number of other organisations, in the case of the SPA particularly, they got it massively wrong in terms of what eventually happened. That suggests that there is something flawed in the process. It might be the criteria and I know that that is set. Some of that is set in statute and secondary legislation and so on. I realise the limits of your remit bill. I realise that, once they are appointed, it is not part of your remit to monitor their performance. That would normally be done by the chair of the board and subsequently the minister. It is then up to the minister. There is a separate issue there about why ministers allowed things to go on as far as they did in the Scottish Police Authority. However, if there is one or two out of 16 who are not performing, we would expect that in the real world. When you get 16 out of 16 who are not performing, it suggests there is something fundamentally wrong somewhere as to how 16 people who are not up to the job all ended up in the job. What we are looking for is why do you think that happened? I am sorry, convener. I am not trying to obfuscate in any way. I do not know the answer. I am not in a position to comment on all those 16 people and I am not wholly sure that you are actually. In general terms, I think that the chair appointment in any public body is critical to the way that the body operates. I simply do not have an answer to the question as put to me. I do not monitor their performance. The chairs are responsible for monitoring the performance of all board members. No, but the point is that you would want to be in a position where the people in your point are generally speaking with—there are always some exceptions—are up to the job. In the SPA, we have brought to a third chair the first two proved to be disasters. I think that that is commonly held view in the Parliament and out in the country. Therefore, it suggests that there is something wrong with people coming to the top of the selection procedure who at the end of the day are not up to the job. There appears to be a systemic problem in the process. I am not in a position to identify any systemic problem in the process. I have suggested that one of the things is whether the criteria are set in the first place. I do not actually have in front of me the criteria that were set for the two appointments of the chairs that you are talking about. I believe that the criteria were adjusted prior to the appointment of the current chair of the SPA. The way that the board operates, frankly, is something that I cannot really comment on. The only thing that we are doing at the moment that might help is some research into the impact of diversity on the governance of boards, which might contribute some light on the subject that you are asking me about, but we are not in a position to publish the results as yet. For the public record, it might be useful for the committee if you could just briefly explain what your role in the process is in the public appointments. As I have mentioned, there is a code of practice for ministerial appointments to public bodies. That was drawn up by my predecessor as a slightly different role, and that sets out the basis on which regularity public bodies are to take place. Where there are high profile appointments, for example the chair of almost any public body and certainly the chair of the SPA, there is a public appointments adviser. There are 13 of them who are contracted to my office. They are independent, they are experts in HR issues generally, but particularly in selection and appointment. All those will be allocated to the process, and one of the improvements that has been made to it in recent years is that there is early engagement with the advisers to the minister and sometimes with the minister, him or herself, to discuss the needs of the board and, in that context, identify what is required and therefore the criteria that will be suggested to them for the appointment. The planning for the appointment round also includes discussion of which means should be adopted to try to attract a wide range of candidates. By the way, one of the things that we have been trying to encourage is to reduce the number of criteria. The more criteria you put out there, the more specific you make it, the narrower the field of people who feel that it will apply to them. There are different ways of trying to attract people into a role. Some are quite novel, social media obviously wasn't an issue when this act was first promulgated, so there are a number of different ways. Then there is a selection process, which tends to be by way of interview, but there are quite a number of alternatives that are permissible under the code of practice. The code of practice is not specific as to the means that have to be used for assessment. Paul, conduct the interviews. No, they don't. That was the system in England and Wales until recently, where the equivalents there would share the panel. If there is an interview, the interview panel is normally chaired by a senior civil servant from the department advising the minister. It is quite common for there to be the chair of the body—obviously that won't always happen—or representative of the body. In many cases there will be an independent panel member, and we've issued guidance on the qualities required for that. Sometimes another civil servant too will have experience in public appointments. We, through the public appointments adviser, offer briefing to the panel. Some are very experienced, they don't need much by way of briefing. Others are fairly new to it, and we give guidance on unconscious bias and other aspects of the process. Your 13 advisers are responsible for getting a pool of candidates together, and then it sounds like it's up to civil servants to make the decision. That, in afraid, is oversimplifying. It's the appointment panel chair's responsibility, who will tend to be a senior civil servant, but the adviser will advise and support the our experts, and they're aware of good practice. So, yes, they will support and be part of the panel in a high profile round like that. Mr Neil, I interrupted you. Do you want to continue? It's a request for information. It's interesting to see how many people applied for appointments over the previous year, and how many got through in terms of the percentage who ended up being nominated or on the shortlist. It's interesting to see if that was possible to categorise that by previous job, because there's certainly a suspicion that a very high percentage of retired civil servants ended up in the shortlist. Whether that's true or not, I don't know Bill, but I've heard it said. That was one question that I had anticipated. Over the last two years, there have been 45 appointments as chair of a public body. 20 of the people appointed had a private sector background, and five of them had a mixed background, if you like, between different sectors, including in the private sector. In the year when the previous chair to the SPA—and for that matter, the NHS Tayside—were appointed, there were, I think, 97 appointment rounds in total, and there were 1,790-something applicants—I can't remember the precise figure, but there were over 1,790 applicants in total for those rounds. The number of applicants per round is not huge, but it is steadily rising from about 14 in 2010 to 18 or 19 per round. That's an average, obviously. The numbers that apply for chair posts tend to be lower. That's true in health, which Mr Neil knows about. It was interesting that the 45 figure said that 20 were private sector and five were mixed sector. Does that mean that the other 20 were ex-public sector? They will have had public sector experience, yes. I've spoken to a lot of people down the years who have applied and feel as though there's a built-in bias towards the likes of retired civil servants. Whether that's true or not, I do not know, but the point is very clearly that we're ending up with, certainly in the SBA example, but also if you look at the health boards. The number of health boards where the chairs have had to be removed, for example, the latest one being NHS Tayside. When I was there, I had to remove the chair at that time of NHS Grampian, as well as the chief executive. There's a fair number who have not performed. If you look at the health boards themselves at the moment, you've got NHS Tayside, NHS Ayrshire, which is the suffering significant financial difficulty, NHS Lothian. I'm not saying that's because of, in every case, poor chairmanship or poor non-executive directors, but there is certainly a concern now. One of the other factors influencing this is the remuneration. I know a lot of people do this, particularly once they're retired, not for the remuneration but because they want to give something back into the community. For somebody who's the chair of a health board, their contract is usually for three days a week and very often they end up working five days a week. Remuneration may be an issue where we're not attracting the calibre of people for these top jobs in particular because, at the end of the day, if you're running a health board, the chances are that you have a budget in hundreds of millions of pounds, and in some cases, well over a billion pounds. One of the questions that I would ask you and the final question that I'll ask you at this stage is the remuneration. It may be an issue that you said you don't have a flood of applications, and I know in some cases it's difficult to find people from whom to select, enough of a pool to select. Is remuneration a possible reason why we're not sometimes getting the calibre that we need? Of course it could be, I don't have firm evidence of that, but self-evidently, yes. Short answer to a long question, but yes, I think that's appropriate there. Ian Gray. Bill, you talked a little bit there about what's in and not in your remit, but one of the things within your remit is the ability to conduct audits and reviews. Is that right? I just wonder if you could say something about those and what would prompt you to undertake an audit? I will hand over for the detail of this to Ian Bruce, who's more directly involved. We gather information from those who are in the appointment panels to see if they have any concerns. We also gather information from applicants to establish what their concerns are. We have conducted, on an annual basis, reviews of the process, but I think that, in fairness, I'd have to ask Ian to explain the reasons why some of the appointment rounds are selected for closer examination. The last thematic review that we conducted, I suppose that I should preface this response by indicating that, fundamentally, what we are engaged in and the work that the public appointments advisers are engaged in is enabling the Government to continuously improve on the practices that it adopts. We are looking at trying to embed best practice in recruitment and selection, so our reviews are aimed at making appropriate recommendations in order to improve on, fundamentally, the outcome of any given appointments process. Our last thematic review made a number of recommendations that we are currently following up on. One of those was that the Scottish Government should have a more systematic lessons learned process. Without wishing to go into too much detail, the practicalities of that involve, we survey applicants at the end of each and every appointment round. We gather their demographic data, including the sector that they've come from. We gain an understanding of their views about different aspects of the process, areas in which it could be improved upon. That information is then fed into selection panels as part of a pack of management information. It's about process improvement, more effective outreach, addressing underrepresentation by protected characteristics and also adopting application and assessment methods that are appropriate for the target pool. Perhaps traditionally there's been an over reliance on competency-based assessment at the early stages, and we know that that has potentially been a barrier to people from the private and voluntary sector. The lessons learned process helps our advisers to recommend to panels things like why not use an application that asks people to provide their life history if it's experience of governance, for example, that you're looking for to fill a particular post. The thematic reviews, as I say, make recommendations. One of the other ones last time was that there wasn't a good understanding necessarily in terms of participants' understanding of diversity. Sometimes that's confused with protected characteristics, but as committee members will understand, it's the range of attributes on a board that contributes to good governance, so the mix of skills, experience, perspectives and backgrounds. Again, that's something that we're now pursuing in our current thematic reviews. The follow-up is in terms of succession planning, so ensuring that boards have an understanding of what their needs are that's communicated to the minister in order to identify what they need for their activities going forward. Also, the lessons learned process, whether or not what we'd encouraged Government to do had become embedded, so that's what we're engaged in currently. My question really is, if we take a specific example where governance has clearly failed or run into problems, be it the SPA, NHS Tayside, there are other examples that Alec Neill talked about. Could that or would that not provoke or lead to an audit or a review by your office? I think there are different issues here, and I'm sorry, I appear to be pussy-footing around, I'm not. The implication of the questions that have been asked so far is that, because the people who have been appointed have not performed as was expected, therefore there was something wrong with the appointment process. I think that's what Mr Neill's questions were driving at, and I think that it's also what Mr Gray's question is. The question is, that might have been the case? Indeed. I don't think that we know. The difficulty that I have is that I would be driven back to trying to establish whether the process identified the best candidate in terms of the specification at the outset, which isn't going to answer the question that I think is troubling you, and it is, obviously, quite rightly. Surely that's not the case, because you said earlier, Mr Thomson, that the first principle that the appointment process was designed to deliver was merit. Indeed. If there appears to be an instance where the process has failed to deliver the required merit, surely that begs a question about the process itself, which is your remit? I'm going to repeat myself, convener. I apologise for that, but it is the correct answer. I also said that merit is defined at the outset, and that's signed off by the minister. What you're asking about is merit in terms of performance in the role, maybe a year or two down the line, and in some cases the response to issues that may have developed but may not have been properly dealt with before that person, as chair, was appointed. There are different questions in there, and I don't think that my remit would extend to what is, effectively, an assessment of the performance of the chair of that matter, as Mr Neil said, the whole board. I understand that your answer to my initial question really is no, so a failure in, for example, the SPA wouldn't lead to you auditing the process. The converse question is what would then prompt you to audit a selection process? Accepting that, in some cases, we will do random selection of processes, so that's not what we're talking about. Failure to attract applicants, errors in the process, we did have one, which went quite high up in the system, where what had happened was that the information collected by the selection panel was not correctly reported to the minister making the appointment. That was a fundamental flaw with the process and resulted in errors being made. I think that we would also look at lack of diversity. If appointment rounds continued to fail to attract, even in gender terms, a proper diversity of applicants, we would be concerned about whether the criteria had been set properly and whether it had been advertised properly, whether it had been promoted properly. None of which really drives at the point that interests you, I'm sorry. To feel in any way constrained by that, if you look at a board in which you or your office, it might have been your predecessor, had oversight of the appointment and the governance clearly failed, does that not prompt you to think that we shouldn't be concerned about that? Of course, I am concerned because, like you, I'm concerned that public bodies deliver, but I don't think that my remit allows me to look into the performance of those who are appointed. A short answer is no. I don't think that I would be the appropriate person to examine the performance of people appointed to boards. As I've mentioned before, the theory is, and I believe the practice, that the performance of board members is assessed by the chair. If there's a problem with the chair, there may well be a problem with the assessment of the performance of the board members. The performance of the chair is assessed by the senior sponsor within the Government, who will be a senior civil servant. I think that this is not rocket science the whole thing. The success of it depends on the quality of relationships between the minister or the minister's department and the public body. If there's a miscommunication there, things are almost bound to go wrong, but I don't think that my office would be the right one to look at the performance. I think that it's more appropriate that it's done as through this committee with reports from the Auditor General or from ministers. Bill Pullman. Good morning. Can I just pick up on the point that you said that you had 96 regulated bodies that you look after the appointments you did? What does that translate to in actual positions? 630. I'm sorry, I've forgotten the precise figure. How many of those would have multiple appointments where the same person was in more than one? The last statistics I have show that there were six people with three appointments and there were 36 people with two appointments. I think that's the end of 2016. That's April 2018. 633 regulated positions. It's roughly 14 per cent. Do you consider that multiple appointments are a good thing or a bad thing? Does the process look at this when you're appointing? Yes, it does look at it in as much as what's called a fit and proper person test, part of which is whether the person who might be appointed has the capacity, the time to devote to the appointment that they're seeking. Is it a good thing or a bad thing? If it's the right person for the job—I'm sorry, that sounds trite, but if they're the right person for the job, then it is a good thing. If they're not or if they're overstretched, it's a bad thing. The right person for the job is the key thing, but earlier on you spoke about if you get the criteria wrong, then the process will just go ahead. To me that's the rather unpleasant phrase of sort of rubbish in, rubbish out. If you get the wrong person in, nothing will stop that person then getting through. Is that what you're saying? If you set the criteria wrongly, you should get someone who meets the criteria, and if that is, in your words, rubbish, then the person who you appoint will qualify on that basis, yes. How do you look at the criteria then? I mentioned public appointments advisers. They are part of the planning process in which the criteria are discussed. They're then put to the Minister for Agreement endorsement. Just one last point on that. Yourselfs and your advisers, do they have experience in the recruitment or appointments industry? Very much so. Yourselfs? I don't. Ian Bruce does. Thank you, convener. Good morning. I would like to explore some of the things that have been raised earlier, just in a little more detail. Particularly, Mr Neil was talking about the non-execs, the other members of the board. One of the things that we've noticed in this committee is that it's very important that other members of the board are prepared to challenge and are prepared to speak up and avoid group thinking and proactively say that there is something that we're concerned about here. How do you feel the appointments process actually ensures that the individuals being recruited to the boards are prepared to step up and to make that challenge? Convener, it's, I think, frequently one of the criteria and it may be tested in different ways. In some cases, not all cases by any means, it is actually tested by some sort of role play, if you like, group exercise based on a mock-up of a board meeting. Even that is no guarantee that in the circumstances in which the newly appointed member finds themselves, they will then do that. There are all kinds of potential inhibitors, which brings us back, I think, to the approach taken by the chair. If you have a chair of a body, and I'm not talking about anybody in particular, who is authoritarian, tries to squash dissent, doesn't allow, it's like a committee, doesn't allow people to say, I won't allow anything to be said, which is potentially embarrassing, which is a feature of some public organisations, then it is more difficult. This is one of the conundrums in the process. I am actively trying to promote diversity, and not just visible diversity, but diversity of approach and background. That means that there is the potential for people to be appointed who might be thought to be a member of the awkward squad to use a well understood phrase. That is not necessarily going to be welcomed by the chair of the board. One of the big issues is how does the board actually manage the diversity, how does it deal with the diversity and does that contribute to improved governance or not? That is what we are currently researching. I think that you make an important point about the role of the chair and whether it is receptive. It seems to me that the awkward squad is a good thing. It prevents a group-think mentality. How does the appointment process ensure that the chair is actively going to welcome contributions, enable contributions and then ask you about appraisals and onward planning in a second? The appointment process itself can only contribute to that at the point where chairs are being recruited. I contribute to meetings that the Government has recently set up of chairs of bodies from across the spectrum where issues like this are discussed. However, I think that it can only properly be addressed in the appraisal of the chair's performance. Assuming that the chair is somebody who is open to behaving in the way that you and I would like them to behave, that will be tested in the appraisal process. Could you tell me a bit more about the appraisal process? We touched on it in an earlier question. Certainly Section F of the Code of Practice suggests that there should be some kind of on-going appraisal process. What I was hearing was that almost once the recruitment piece has happened, that is when you step away, who does the appraisal process and are you confident that appraisals are actually happening to a level that we would hope? Like you, I am dependent on what I am told by the Scottish Government, the officials in the Scottish Government, because it is the Government officials who are responsible for the appraisal process. I think that I mentioned before, somebody identified as the senior sponsor in the appropriate department will be the person who conducts at least an annual appraisal of the chair of the body. I do not have any detail on how that is conducted. Do you have a view on whether the appraisal processes are actually happening to the level assumed? I do not have that information. I presume they are, but I cannot say that on the basis of evidence. I do not have that information. Colin Beattie. Since we are so enthusiastic about the process, I would like to continue on that. I see five areas where commissioners are involved in these boards. Maybe I would like to go through that. Under the 2003 act, a commissioner regulates appointments of non-executive members to the boards of public bodies. In terms of that, you regulate and own that process in terms of the appointments. The Government administers it, presumably based on whatever you regulate as the process. Is that correct? Simplistically? Simplistically, it is correct. Ministers are expected to follow the code of practice for ministerial appointments, which, as I said before, was drawn up in consultation with Scottish ministers at the time and the Parliament. Where they don't, and if I consider that the failure to follow it is material, a material breach of the requirements of the code, I actually have to report to the Parliament, I have to submit a report to the Parliament, if I think that there is no prospect of the breach being remedied. You talk about the code of practice. Obviously, you own the code of practice because you are responsible for enforcing it, as you said just now, if there is a deviation. You also give statutory guidance on the application of the code, which again the Government is expected to follow. You oversee the selection process by assigning a public appointments adviser. You conduct audits and thematic reviews. Looking at this in the round, it does not seem that the Government has got very much leeway. You are laying down the process, the regulation, the guidelines, codes of practice and the Government simply has to follow that. In effect, I would have said looking from the outside as a layperson that you own the process, you own the whole process of appointment. I think that the flaw in that characterisation of the process is that it is actually instituted and finalised and run by or on behalf of ministers. The other factor with which I would argue that needs to be taken into account is that the code itself is very flexible as to how the criteria are set, how the assessment is done and how the post is advertised. There is a great deal of flexibility within the system. Presumably, you monitor that, at least on a sample basis. At least on a sample basis, you are monitoring that, so you are satisfied that that was followed. Coming back to that, you own a huge chunk of the process. You have direct control over it. That is why I am a bit confused as to why you do not have an easier system of intervening where things go wrong. What happens when somebody complains about a board member? Do people ever complain to you about a board member? I wear several hats when I am at work. One of them involves dealing with complaints about the conduct of board members. If it is within my remit, an alleged breach of the code of conduct for that board, I investigate. If I think that there is a breach of the code, I report to the standards commission. Do you think that that particular piece of the process is adequate at the moment? I have no reason to suppose that it is other than adequate, but I have not received many complaints over the years that I have been in post about that particular. I guess that the concern that is being expressed is very similar to the concern that we have expressed before about the internal audit process. You have a perfect process, everybody ticks all the boxes and gets it right, but at the end of the day what comes out at the other end is not fit for purpose. That is what this committee has found in serial cases with boards that we have been dealing with, that we have had here in front of us. I do not accept that that is true of the process for dealing with breaches of the code of conduct. There is no evidence that there are wholesale breaches of the codes of conduct. We have evidence that boards are not doing their job, that they have failed in their duty. That is a different process. The code does not say that you must do an excellent job. It says that you must perform your role in certain ways and there are certain things that you must not do, such as conflict of interest, which I know is interest to this committee. That is specified that you are required to register certain interests, which I am sure that you are familiar with as an MSP and a former councillor. You are required to register certain interests and in certain circumstances you must declare them. I think that what is frustrating is that we have got all the process, the regulations, the codes of practice and all those other things, but clearly it is not working. I appreciate the frustration, convener. I cannot speculate on why things go wrong. Things go wrong regrettably in all walks of life. Given the fact that this has now extended across quite a number of public bodies that this committee has looked at, perhaps there will be some merit in revisiting how all this works to see if it can be done better? I would have no argument if you think that it would be worth reexamining to see if it could be done better. I think that it delivers what it sets out to deliver. If it is aiming at the wrong target, then that is certainly something that it would be for the Parliament to identify. I think that it is not delivering what the public are looking for, but I will leave it there. Do you think that reexamination, Mr Thomson, would require a reexamination of the 2003 act, which designates your powers? That is one possibility that the code itself could be, the code of practice could be reexamined without reexamining the act. I would point out that the process in England and Wales was reexamined ironically by the chair of a Scottish financial institution and has been adjusted recently. I am not a fan of the system down there, let's put it that way. Kenny Gibson. Thank you very much. In fact, you touched on the issue that I was going to ask about, which is obviously your role and remit as determined, Mr Thomson, by the 2003 act. I was just wondering in terms of public appointments whether you felt there was anything that could be tweaked in that act, perhaps to try and improve the way that you can oversee the delivery of those public appointments? I think that Mr Gibson's point is probably one that I have tried to address already. I do not feel that I am hamstrung in performing my role as commissioner for public appointments under the act. I appreciate that that is a different issue from whether it is delivering what you think is required by a way of effective boards. I think that, Mr Thomson, what you are saying to me is that that is a matter for us as politicians to determine and to see if the act needs strength or not. You are doing your job, is that correct? I am, and I do not feel that I am inhibited in doing it, convener. Yes, so basically what you are saying is that if the process has to be improved, you really have to look again at the legislation. There is something post-legislative that is causing some of the concerns that have been raised by committee members. I appreciate that that is within this committee's remit, convener. That is not what I was meaning to say, and I am not looking to find an argument here. The public appointments process is set out in the code of practice. That can be adjusted without adjusting the act. It does not mean that the act is perfect, but it is possible to make adjustments to the public appointments process having to look at the act. Okay, so how can it be improved in that regard then? Most of what we do is trying to seek improvements to the process. We have introduced quite a number of things with the co-operation agreement of the Scottish Government officials who are involved in it. I mentioned earlier engagement and although we are not so involved in it, there is a smarter sponsorship initiative within the Government that ought to improve the quality of the communication and the relationship between the appropriate Government department and the public body. That may involve looking at the appraisal issue, which is of interest. We have prompted new guidance on succession planning by boards, and I appreciate that it is not the responsibility of boards to get the right people, but if they are able to identify what their needs are and go forward to make that plan to the minister or to the department, it is much easier for that to be properly reflected when an appointment round comes up. The other thing that we are trying to do is to improve the diversity of those who are appointed to public boards. We do that through outreach, through trying to make sure that the way that the selection process is conducted does not directly or inadvertently eliminate certain people who might otherwise be attracted to it. For example, even in the use of language, it can be off-putting to some people, as I said before, too many criteria narrow down the field. That is quite a challenge. That requires resources. We actually have a very small resource. Ian Bruce is the only full-time person in my office involved in that. He has part-time support and roughly a third of my time. Most of that back to Mr Beattie's question, there is no way that we actually run the process. We are a very small part of it. I was going to ask Mr Bruce specifically. Are there any improvements that you have sought to try to bring in, but you have been unable to for whatever reason? As I indicated earlier, we are encouraging the Government to do more in terms of lessons learned, because it is vitally important that we learn as we go along in terms of attraction in particular, as well as just making the process bias-free. I suppose that, to an extent, speaks to some of the discussions that we have had today. I have no doubt in my own mind that I have been engaged in this activity for quite some time now, and I have seen a lot of improvements in it. There is definitely room for improvement. I have no doubts whatsoever that the talent is out there. Some of the activity that I would like to see improved on perhaps more done would be outreach and encouraging people who have not considered applying for these roles to put themselves forward. Obviously, we need to make it as straightforward as possible for people to apply when they do. Application numbers have certainly been rising, but I think that there is scope for many more people to put themselves forward and potentially be successful. At the end of the day, the outcome of any given appointment round is only going to be as good as those who decide that they want to take up that position in public life. Have you anything further to add to that, Mr Bruce? Mr Gibson? No, it's fine. Mr Neil, please, briefly. The first one is a factual one, Bill. The senior civil servant who chairs the selection panel is that normally the same civil servant who would do the interviewing of the chairman, for example, as the sponsoring civil servant? In the highest profile rounds, the chairs of the largest highest profile public bodies, it is generally the director general who will chair the appointment panel. As I understand it, the senior sponsor is likely to be somebody lower than the hierarchy. It's unlikely that it would be the same civil servant who would chair the selection panel who would then monitor the performance. I just don't have the information. I'm sorry, convener. I'm not trying to evade it. I would have thought that things were requiring a lot of high profile, or acquiring high profile. I would have thought that a very senior person would do it, but I just don't know. My second very sharp question is, obviously Westminster has adopted a policy for the senior positions whereby ministerial nominees require the approval of the relevant select committee. In your opinion, is that a useful additional tool? Convener, that's not a quickie. I'm sorry, but I do have an answer. It has been introduced three times in the past couple of years in this Parliament. My office calls it dual scrutiny. At Westminster it's called pre-appointment, because at Westminster, as I'm sure Mr Neil knows, in most cases the minister can decide whether to proceed with the appointment even if the committee does not favour the nominee. Under the dual scrutiny approach here, in those three cases that I've mentioned, the Parliament effectively has a veto if the Parliament says that I don't approve this candidate, the minister cannot proceed. There will be circumstances where that is appropriate. What I have been arguing for behind the scenes is a more strategic approach to that so that there is clarity as to the circumstances in which that kind of approach is appropriate, and it is not introduced in other cases, because it introduces a complication and a risk. The complication obviously is that there is another part of the process and that adds time to the whole process. The risk is that the committee, no matter how well briefed, and I'm not talking about any individuals here, but a committee might decide to disapprove a candidate on grounds which were not set out in the criteria for appointment. That damages the integrity of the process and there is evidence that what has happened with pre-appointment hearings at Westminster is that committees, although initially, in my terms, behaved very well, stuck to the script. They became more aggressive and the whole process became more politicised. At that point, there's a risk of discouraging people who might otherwise be prepared to put themselves forward. If what we're trying to do is improve the diversity of people across boards, then we need to be careful not to add in an unpredictable barrier that might discourage people from less traditional backgrounds from putting themselves forward. I needless to say that I don't entirely agree with you in that bill, but I accept that it's your point of view. Thank you. Mr Thompson, I don't know to what extent you followed the detail of the situation at NHS Tayside, but the most recent row, if you like, about what has happened there was started by the fact that it came to light that money had been transferred from the Endowment Charitable Fund to the core budget of NHS Tayside for use on an IT project. It also came to light in those reports that the trustees of the charitable fund had a dual role as members of the NHS Tayside board. There are questions hanging now as to whether that is appropriate. As commissioner, would you see that dual role as appropriate for people on public boards? I am aware of the detail, convener. Ironically, one of the reasons for that dual role is actually set out in the 2003 act in which I operate and that was another part of that statute. Can you enlighten us as to that reason? I think that it is perfectly possible for the system to work properly. It depends on the extent to which the trust purposes, if it is a trust, overlap with the role of the health board. If they overlap, then yes, that is a risk of conflict of interest. I know that that is something that the office of the charity regulator is looking at in terms of the trustees role. On the other hand, the difficulty, if people were to decide that the system could not work, and I do think that it can work, in quite a number of health boards, I suspect that Mr Neil is far more about this than I do. If you were to change the system, you would probably need another board of trustees for the endowment, which of course means finding more people. It is possible. As I understand it, that role is not remunerated at the moment. Where are you going to find these people for all of the health boards? The other thing is that I am aware that when appointees to the health board are told about this, they have the option not to take up the position as trustee, my understanding, and I do not have detailed knowledge of this, is that nobody has yet declined. That may change. Given what happened at NHS Tayside and the reports in the media were that the trustees felt obliged, given the tenor of the meeting, to make that transfer, do you think that there is a failure of governance there? Convener, I would like to take the fifth or whatever it is on that. There is still a theoretical possibility that I may receive a complaint that somebody on the board has failed to comply with the board's code of conduct. In those circumstances, I would rather not express any opinion at this stage. I understand. I was a little surprised in your evidence earlier when you talked about the appointment of chairs. The chair of the SPA and the chair of many health boards are huge public appointments in Scotland of great significance. I was a wee bit surprised to hear you say that that work sounds like to be delegated to the 13 appointment advisers in your office. I think that I would have expected, and I don't know if public would expect, someone more senior yourself as commissioner, especially in those big roles, such as the chairs, to be involved in that process yourself. Is there any scope for that? Two answers to that. One is already work slightly more than five days a week. That would be, in practical terms, a little bit of a problem. The real difficulty is that, as Mr Bowman inquired, I am not an expert in selection and appointment. The public appointments advisers are. They are recruited across the UK, as it happens. They have significant expertise. They have access to a lot of guidance from the office from me and Bruce's City on the left. We have meetings with them every few months at which we discuss issues that have arisen and issues that we anticipate. We receive a report from them at the end of each appointment round, and they are very carefully assessed in some detail as to their performance in those appointment rounds. I think that they are the best resource, and they are a lot better than I would be able to contribute. Some of them are extremely politically aware as well. Others have been less close to the political process. Mike Tyard. They are, to an extent, also slightly arm's length from the commissioner. In the event that someone raised a complaint, let's say, for example, that the view was that I, as the full-time member of staff within the commissioner's office, sat in directly on appointment rounds. If someone raised a complaint about how that appointment round had been conducted, it would be because it is also my role to investigate complaints of non-selection as the usual reason that people feel aggrieved. It would be very difficult for me to sit and oversee an appointment process and then subsequently investigate a complaint in which I had been directly involved. Final question. Mr Thomson, committees, as you can gather and, as you know, are very concerned about poor governance as we would characterise it in several boards across the country. From your evidence today, I get the impression that you feel that the appointment process is working and perhaps it's a job for us if we feel that it's not. What do you think has led to those failures in governance? I'm not sure if that's something on which I'm entitled to have an opinion, convener. Fair enough. I thought I'd ask anyway. I thank you both very much indeed for your evidence this morning. I now close the meeting, the public session of the committee. Thank you.