Examination Report ACSSSI

Report Reference CPA/2010/04

TITLE: ADVISORY COMMITTEE ON SITES OF SPECIAL SCIENTIFIC INTEREST – CONVENOR APPOINTMENT

MINISTER: ROSEANNA CUNNINGHAM MSP, MINISTER FOR ENVIRONMENT

DIRECTORATE: RURAL AND ENVIRONMENT

PUBLIC BODY: ADVISORY COMMITTEE ON SITES OF SPECIAL SCIENTIFIC INTEREST

SUMMARY

1) The Minister for Environment, Roseanna Cunningham MSP, has made the appointment of Convenor of the Advisory Committee on Sites of Special Scientific Interest (ACSSSI);

2) The Commissioner considers that this appointment does not comply in a material regard with the Code of Practice for Ministerial Appointments to Public Bodies in Scotland (the code) prepared and published under the Public Appointments and Public Bodies etc. (Scotland) Act 2003 (the 2003 Act);

3) The Commissioner has intimated this fact to the Scottish Ministers and considers that after a reasonable time from that intimation, the code remains to be complied with;

4) Accordingly, the Commissioner is required by Section 2(8)a of the 2003 Act to report the case to the Scottish Parliament (together with any information in relation to the case the Commissioner considers appropriate to include).

Karen Carlton

Commissioner for Public Appointments in Scotland

01 July 2010

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[All documents referred to in this report are held by the Commissioner’s office and may be requested in accordance with the Freedom of Information (Scotland) Act 2002, the Data Protection Act 1998, and the OCPAS Publication Scheme.]

COMMISSIONER’S COMMENTARY

I am concerned about this case and have provided detail in the chronological report to expand on my reasons. The Scottish Government may argue that uncertainty as to the body’s future meant that any form of competition to fill this vacancy would not have been practical and that, due to circumstances beyond its control, it required to fill this vacancy at short notice. On this basis, the short-term appointment that has been made may appear on the surface to be an appropriate way of addressing an emergency situation. These arguments in defence of making the appointment in the way that it has been made were certainly employed by the directorate when it sought my agreement to their approach.

However, what is clear to me and what I have made clear in writing to the directorate is that they had the ample opportunity to fill this vacancy in a code-compliant way for a period extending over at least two years. The situation was therefore largely within the control of the directorate. Instead, the Scottish Government chose not to act until the very last moment when it became clear that its lack of succession planning meant that it had to make an emergency appointment. When I advised that I was not willing to endorse the directorate’s proposal for the appointment, for reasonscommunicated to them in writing and outlined in this report, the appointing Minister set aside the provisions of the 2003 Act and the code. Forward and succession planning to fill board vacancies is the responsibility of the Scottish Ministers; in the case of the Advisory Committee on Sites of Special Scientific Interest this was not done.

There will invariably be cases and circumstances in which the Scottish Ministers consider that it would be more convenient or less resource-intensive to simply disregard the requirements of the 2003 Act and the code. I do not believe that endorsing such action is appropriate if confidence in a robust public appointments system is to be maintained.

DEFINITION OF MATERIAL NON-COMPLIANCE WITH THE CODE

The 2003 Act does not provide a definitionof material non-compliance. It is therefore for the Commissioner to determinewhether the actions of the Scottish Ministers represent material non-compliance. In doing so the Commissioner considers the following questions.

• Were the principles of the code breached?

• Was any non-compliance with the code not simply of a trivial or minor nature but something more serious or substantive?

• Did the non-compliance affect, or have the potential to affect, the outcome of the process?

NATURE OF MATERIAL NON-COMPLIANCE WITH THE CODE

The report deals with the emergency appointment of the Convenor of the Advisory Committee on Sites of Special Scientific Interest (ACSSI).

Scottish Government officials from the Rural and Environment Directorate originally approached my office about proposals for this appointment in November of 2009. At that time, they advised me that the Minister was required to appoint a new Convenorto the body at some point in December 2009, hence the emergency nature of the appointment. I met with these officials in November to explore ways of making such an appointment in an appropriate way. I suggested a range of proportionate options that would comply with the principles of the code and advised that theseoptions should be put to the Minister.

I heard nothing further from the directorate until a specific request was submitted to my officeon 22 March 2010. The directorate advised of its intention to make this appointment by asking an existing board member to fulfil the role of Convenor. My office responded that this was unlikely to be appropriate and referred the directorate to previous discussions on code-compliant options for filling the vacancy.The directorate was asked if the options for filling the vacancy had been discussed with the Minister. On 26 March, in response, the directorate confirmed that it had chosen not to present the Minister with the options it had discussed with me in November 2009. It reiterated its request to make the appointment in this way as it felt it was “the onlypracticalway of filling the position for the short period of time that would be necessary”.

On 1 April 2010 my office confirmed my view to the directorate in writing. This was that its proposal for filling the vacancy would be fundamentally at variance with the code’s requirements.The correspondence was explicit that, although the directorate’s proposal would be a proportionate way of filling the vacancy, it would clearly not be in accordance with following principles of the code:

• Ministerial Responsibility
• Merit
• Equality
• Independent Scrutiny
• Openness and Transparency

In spite of this, the directorate confirmed to me in writing on 20 May2010 that the Minister had appointed an existing board member as Convenorto the body. It was apparent to me and will have been apparent to the directorate that the appointment was made in the knowledge that these principles of the code had been breached.

For this reason, I consider that the appointing Minister has failed to comply with the code in a material regard in making this appointment.

REFUSAL BY THE SCOTTISH MINISTERS TO PROVIDE INFORMATION

In advance of making this report I endeavoured to establish what advice the directorate had provided to the appointing Minister regarding their proposals for the appointment. I wished in particular to establish whether the Minister had been informed that the plannedapproach (outlined in the directorate’s email of 22 March) was incompatible with the requirements of the code and would represent material non-compliance. I therefore asked for a copy of the advice provided to the Minister.

During discussions with the directorate I had been asked to make decisions on the basis of information provided that later proved to be inaccurate - details are contained in the body of this report. I wished to ensure that the advice they provided to the Minister was a true reflection both of the discussions between me and the directorate and of my views on the directorate’s proposal. In other words, I wished to establish whether, when the Minister made the appointment, she was aware that she was doing so in contravention of the code.

The Scottish Government refused to provide me with a copy of that information unless I agreed to be bound by conditions that it wished to place on the use of that information.I was not prepared to accede to that direction by the Scottish Government and have not, therefore, been provided with the information I requested.Instead I wrote directly to the Minister. Her response does not make clear whether or not she understood that her course of action would constitute material non-compliance with the code.

CHRONOLOGICAL REPORT

ACSSSI is an advisory NDPB which advises Scottish Natural Heritage in cases where there are sustained scientific objections or representations against SSSI notifications. When these are not withdrawn, SNH is required by section 21 of the Nature Conservation (Scotland) Act 2004 to refer the case to ACSSSI for advice.

No open competitions have been held to identify board members for ACSSSI since 2004. I note below actions taken since April 2008.

April 2008

I was approached by officials from the Rural and Environment directorate and asked to grant an extension to the appointment of theConvenor of ACSSSI, or to agree to his re-appointment,due to the planned dissolution of the body by March 2010 upon enactment of the Public Services Reform (Scotland) Bill. I noted that the Convenor was already serving his third term of appointment and allowed for that term to be extended retrospectively (his term of appointment had already ended in February 2008), by the maximum period allowed by the code, to the end of May 2009.

November 2009

Directorate officials approached my office about proposals for the appointment of a Convenor. The Minister had not appointed a replacement when the previous Convenor’s term of office ended as SNH did not expect there to be further cases for ACSSSI to consider before the anticipated date of dissolution of the body. I understand that no contingency measures were in place should a case arise.

The sponsor team advised me that SNH had recently received a representation in respect of an SSSI notified 10 years earlier and were required to review the notification. SNH expected to be in a position to refer this case to ACSSSI in December.

I met with officials on 18 November to explore potential ways of making an emergency appointment in an appropriate way. They confirmed that the time required to review the case would be down to its complexity and anticipated an appointment for a seven to eight month period. ACSSSI’s remaining members were clear that the body needed a Convenor, but none wished to be considered for the role. When I questioned officials they stated that the body did not need a Convenor to be able to review the notification.

The options that the directorate had considered for making an appointment in such circumstances were to:

i. approach the previous Convenors and ask if any would be willing to be appointed again for a short period

ii. attempt to persuade an existing member to take the role

iii. approach the Royal Society and perhaps other sources of applicants to publicise the vacancy.

The appointment of a Convenor is a ministerial public appointment and the requirements of the code apply. I advised that I would be content to consider a competition with limited publicity to fill the vacancy. This would enable the directorate to approach appropriately skilled and knowledgeable people and ask them to apply, then run an open competition in a short time period. I also suggested that the option to go straight to interview, rather than require completed application forms, should be considered to truncate the appointment process. I asked if the Minister would require a choice of candidates; whilst this is a requirement of the code, I may make an exception if the circumstances warrant this. The directorate confirmed that the Minister’s view had not yet been taken on the matter.

I also asked the directorate to consider alternatives to a ministerial appointment that could further shorten the time-frame. Was it, for example possible to co-opt or second someone to the position? The directorate confirmed that:

• the founding legislation for the body made no mention of co-option but nor did it appear to prevent it
• ACSSSI does not require to have a Convenor in place to acquit its functions
• ACSSSI has appointed short term advisers in the past to assist it with its work.

The directorate was advised that, on the basis of this information, the Minister may not have to make a public appointment. I asked the sponsor directorate to approach the Minister with the range of options that had been discussed and to establish what the Minister wanted to do to fill the vacancy. The team stated that this would depend on exactly what the person would be required to do and that agreeing this required work.

A member of the Scottish Government’s Resourcing Centre of Expertise (RCoE) was present at this meeting. The RCoE provides advice to sponsor teams on public appointments. The representative made it clear that my offer of a proportionate approach to filling the position was welcome including the option to target people, have a relatively narrow field of applicants and to limit the publicity requirements.

Thus, the sponsor team was presented with a number of options for filling the vacancy, some of which would not involve making a public appointment. Furthermore, they were provided with options for making an appointment in a short space of time, in a code-compliant manner, should the Minister choose to make a public appointment.

It was my expectation that, given the implied urgency of the situation, the sponsor team would immediately approach the Minister for a view.

March 2010

Despite the reassurance given in November that ACSSSI did not require to have a Convenor to fulfil its statutory duties, the directorate now explained that, having taken legal advice on the issue, its position was that ACSSSI does require a Convenor and that a ministerial appointment must be made.

A request was submitted to my office on 22 March 2010 detailing the approach planned. The directorate advised that it wished to make this appointment by installing an existing board member for the remaining three months of ACSSSI’s existence. My office responded that this approach was unlikely to comply with the code and referred the directorate to previous discussions on code-compliant options for filling the vacancy.The directorate was asked if the options for filling the vacancy had been discussed with the Minister.

On 26 Marchthe directorate confirmed that it had chosen not to present the Minister with the options it had discussed with me in November 2009 until they had a clear picture about when or if the case would be put to ACSSSI. They stated their belief that there would be no incentive for anyone suitable to come forward for appointment and their doubt that people would wish to go through a selection process. They concluded “we feel that asking an existing member to perform the function is the only practical way of filling the position”.

April 2010

On 1 April 2010 my office made my view clear to the directorate in writing. This was that its proposal for filling the vacancy would be fundamentally at variance with the code’s requirements. We suggested the code-compliant option of promoting the member to the position of Deputy Convenor but this was subsequently rejected.

My office was clear in correspondence that, although the directorate’s proposal would be a proportionate way of filling the vacancy, it would clearly not be in accordance with following principles of the code:

• Ministerial Responsibility
• Merit
• Equality
• Independent Scrutiny
• Openness and Transparency

May 2010

The directorate confirmed to me in writing on 20 May 2010 that the Minister had appointed an existing board member as Convenor.

In summary

It is the responsibility of sponsor directorates, on behalf of the Scottish Ministers, to ensure continuity on the boards of Scotland’s public bodies to enable them to acquit their functions effectively. The decision to abolish this body was a ministerial decision. The responsibility for ensuring that it is able to continue to acquit its statutory functions and other legal obligations until it is abolished also lies with the Scottish Ministers.

For regulated public bodies, the way in which that continuity must be achieved is clear. The default position is that roles must be filled through open competition in a fair, open, transparent and merit-based way. I indicated during the November 2009 discussion that I would be willing to consider a limited competition as a way of filling the vacancy in an expedient way.

The vacancy could have been filled through open competition at any time from February 2008 when the term of the previous Convenor came to an end. The uncertainty over the body’s future resulted in an appropriate extension to that term. Unfortunately, once the extension expired the directorate took no steps to appoint a Convenor to enable the body to acquit its statutory function.

In November 2009 officials asked me for advice on appointing a Convenor. My advice was not followed and in May 2010 the Minister appointed an existing member for a four month period, without open competition. The directorate based the decision to take this approach on their belief, their doubt and their feelings, as opposed to the code and its statutory underpinning.

I believe the directorate had time to make an appointment in a code-compliant way. Their delay led to the need for a Convenor at such short notice. This must not be endorsed as a means of creating situations in which complying with the code is impractical or disproportionate.

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Report Ref. CPA/2010/04

This is the third case where the Scottish Government has refused to provide me with information unless I agree to restrictions on the use of the information provided. I have made it clear to the Scottish Government that such a refusal is in direct contravention of the 2003 Act at section 3 (1). Furthermore, the attempt by the Scottish Government to place conditions on the release and potential subsequent use of that information represents a clear attempt to contravene schedule 1, 2 (2) (b) of the 2003 Act in that it represents an attempt to direct me in the exercise of my functions. I am meeting with senior representatives of the Scottish Government and the Information Commissioner to address this matter on 7 July.