5-minute read
Dermot Feenan
LLB MA LLM Barrister-at-Law FRSA
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The links between Rachel Houchen, newly appointed to the board of the Office for Students (OfS), and James Wharton, Chair of OfS and Conservative peer, has received critical media attention, as I have already noted on Twitter.
Chris Parr, journalist at Research Professional News, notes that Rachel Houchen is married to Ben Houchen, a member of the Conservative Party, who was elected in 2017 as the first mayor for Tees Valley. Research Professional News understands that Rachel Houchen is not a member of the Conservative Party. The appointment has also attracted the attention of Alex Metcalfe, Local Democracy Reporter at TeessideLive.
Parr refers to friendship between Wharton and the Houchens. Ben Houchen and Wharton, he writes, have been close political allies for many years, with Houchen campaigning for Wharton in his successful 2010 and 2015 bids to become MP for Stockton South.
Parr adds that in December 2018, Wharton’s company, GBMW Ltd, made a £10,000 donation to Ben Houchen’s mayoral office.
I noted in my Twitter thread that Parr’s article does not mention that the Governance Code on Public Appointments has a section which includes requirements regarding the handling of conflicts of interest. I set out and examine in this article issues relating to conflict of interest.
The Code states that the Advisory Assessment Panel, which interviews candidates and informs the minister as to who is appointable, ‘must satisfy itself that all candidates […] have no conflicts of interest that would call into question their ability to perform the role.’
The Code goes on to state that ‘candidates must be asked to declare potential conflicts of interest in their application.’ This declaration should be made on the application, but it may need to be made at interview.
Does a conflict of interest necessarily bar someone from appointment? No, not necessarily; but the Code continues: ‘[a]ll potential conflicts of interest and how they might be managed must be discussed with an individual at interview.’
‘A potential conflict should not preclude a candidate from being shortlisted/appointed provided that appropriate arrangements are made.’
It is noteworthy that the Code also refers to ‘potential conflict’ which extends the issue beyond actual conflict. The Commissioner for Public Appointments for Northern Ireland, for whom I served as an Independent Assessor, also considers ‘perceived’ conflict.
The requirement that any perceived conflict be addressed serves a number of functions. It seeks to ensure public confidence both in the public body to which an appointment is made and in the process of public appointments generally.
If the public reasonably have doubts about the integrity of the public appointments process, it can undermine trust in public bodies and, consequently, in governance. It may also undermine trust and confidence within the public boards themselves.
The importance of perception is echoed in the fundamental requirement in law that justice should not only be done but must also be seen to be done.
As mentioned in my Twitter thread, a number of questions arise:
1. Did Rachel Houchen declare any conflict of interest arising from her link with Lord Wharton?
2. If Rachel Houchen did declare a conflict, when and where was the declaration made: on the application form and/ or at interview or otherwise?
3. What precisely did Lord Wharton declare? There is a significant and potentially legally important difference between declaring knowledge of a candidate and disclosing a friendship with a candidate.
4. Did Lord Wharton disclose that he was, as suggested by Rachel Houchen’s husband, a ‘close friend’ of the Houchens?
5. How, if at all, did the Department and the Panel address Lord Wharton’s declaration that he ‘knew’ Rachel Houchen, and, especially, if deemed a conflict, what, if any, consideration was given to how this ‘might be managed’ (as required by the Code)?
6. Did the Department and/ or Panel carry out due diligence on the link between Lord Wharton and Rachel Houchen?
This section of the Code on conflict of interest is linked to the requirement that appointees adhere to the seven so-called ‘Nolan Principles’ on conduct in public life. The Code states: ‘It is important all public appointees uphold the standards of conduct set out in the Committee on Standards in Public Life’s Seven Principles of Public Life and are expected to adhere to the Code of Conduct for board members of public bodies.’
Three of these principles are directly relevant where a conflict of issue arises: integrity, objectivity, openness.
The principle of integrity requires that holders of public office ‘must avoid placing themselves under any obligation to people or organisations that might try inappropriately to influence them in their work.’
That principle goes on: ‘They should not act or take decisions in order to gain financial or other material benefits for themselves, their family, or their friends. They must declare and resolve any interests and relationships.’
The principle of objectivity requires that holders of public office ‘must act and take decisions impartially, fairly and on merit, using the best evidence and without discrimination or bias.’
The principle of openness requires that holders of public office ‘should act and take decisions in an open and transparent manner. Information should not be withheld from the public unless there are clear and lawful reasons for so doing.’
The Commissioner in Northern Ireland states that exploring conflict is necessary ‘to ensure that the public can have confidence in the Board’s independence and impartiality’ – revealing, at least in part, the relationship with integrity and objectivity.
There is also a grave risk where the Code is not followed and there is a perception that friendship has influenced an appointment that there will be an understandable concern about cronyism.
It is noteworthy that at least one academic, Dr Jonathan Clarke, Senior Teaching Fellow, University of Warwick, upon learning of this present appointment to the OfS expressed a concern about ‘jobs for the boys.’
Given these concerns it is also likely that suitable candidates would be deterred from applying for future public appointments.
The Code also states: ‘The departmental official on an Advisory Assessment Panel is responsible for seeking advice within their department and/or the Cabinet Office on handling any conflicts, which should be included in the final advice to Ministers.’
The appointment to the OfS of the wife of a Tory mayor in circumstances where she appears not only to be close friends with the Tory Chair of the OfS but where that Chair has contributed financially to her husband’s mayoral office raises serious concerns.
Without wishing here to comment on the qualifications of the present appointee, it is noteworthy that Peter Riddell, when he was Commissioner for Public Appointments, expressed concerns about a trend in appointments under the Conservative government.
Riddell noted that ‘some at the centre of government want not only to have the final say but to tilt the competition system in their favour to appoint their allies.’ He also noted ‘attempts to stretch the Code by […] packing the composition of interview panels with allies.’
Riddell was concerned also with the ‘growth in unregulated appointments’ and, as a result of the non-regulation of non-executive members of boards of government departments, ‘appointment of political allies of ministers.’
He concluded that the ‘overall danger’ of these developments is that ‘they may reduce diversity of thought and experience rather than increase it.’ The danger goes deeper, though. The balance between appropriate regulation and departmental needs is undermined.
Standards in public life are put at risk. The mischief against which the Nolan Principles were directed – cronyism and corruption – is effectively unregulated. Confidence in public bodies is eroded. The quality of our governance is damaged.
Brian Cathcart, co-founder of Hacked Off, argues in relation to a series of public appointments under the Conservative government that ‘what we are witnessing is a well-planned “long march through the institutions” by a visceral hard-right clique whose aim is to capture the important public bodies.’
As I noted in my Twitter thread, there may be some doubt about whether the current Commissioner for Public Appointments would investigate these matters satisfactorily given concerns over his past writings.
There have also been concerns about the Commissioner’s performance before the Digital, Culture, Media and Sport Committee, January 2022.
I encourage others to investigate the issues raised by this appointment, including journalists, and those, such as the University and College Union, with sufficient interest in the responsibilities of the OfS to consider the potential for judicial review.
Finally, academics generally must pay attention to the processes that are at risk of being abused through the packing of political appointees into public bodies which make decisions about university governance, especially when those actions are contrary to the checks and balances required in our system of public appointments. There is a woeful lack of knowledge among many academics about the duties and powers of such regulatory bodies, the composition of those bodies, and how to hold them to account.
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© Dermot Feenan 2022