Pre-appointment scrutiny of the EHRC Chair: putting current events in context
Update 18 July: the Committees have today published their letter. We will now undertake an analysis of that.
On 1 July Westminster’s Women and Equalities Committee and Joint Committee on Human Rights held a joint pre-appointment scrutiny hearing with Dr Mary-Ann Stephenson, Chair-designate of the Equality and Human Rights Commission (EHRC). It was reported in the press on 11 July that the committees have now written to Bridget Phillipson MP, as the relevant Secretary of State, to oppose Dr Stephenson’s appointment.
As context, we look at the pre-appointment process and compare the Committees’ approach to Dr Stephenson with that of the previous two appointees, David Isaac CBE and Baroness Kishwer Falkner.
Pre-appointment scrutiny
Under the Equality Act 2006, the Chair of the EHRC is appointed by the Secretary of State. The role is advertised and recruited under the public appointments process. Pre-appointment scrutiny is not part of the statutory process, but reflects that since 2008 relevant Westminster committees have been given the opportunity to question individuals who have been selected to hold certain major public positions. This questioning happens after a person has been announced as the preferred candidate, but before their appointment is finally confirmed.
Committees can raise issues with the relevant Ministers, but have no power of veto. They may issue a positive or a negative report, or a neutral one. Research by the House of Commons Library found that by October last year, there had been 258 pre-appointment hearings. These had resulted in eight negative reports, plus two neutral ones (one of these was Isaac). Of the negative reports, six appointments still proceeded, one candidate withdrew and one (in 2011) did not proceed.
Committees who have a concern about a candidate may raise this in correspondence in the first instance, to explore ways of resolving this, or may simply issue a negative report. Parliamentary guidance states (emphasis added):
21. A copy of the agreed report on a pre-appointment hearing should be provided to the candidate, and to the appointing Minister, at least twenty-four hours before the intended date and time of publication of the report.
22. Pre-appointment hearings provide opportunities for exploring the priorities of the candidate on taking up post and for allowing the candidate to understand Parliament’s expectations of the post-holder. It is therefore an appropriate outcome of the kind of discussion which takes place at a pre-appointment hearing for the committee to set out priorities, approaches to the job and areas of interest which it has discussed with the candidate. It may also be appropriate for the report from the committee to refer to any resources, support, or in-service training needs which the hearing has brought to light. The committee may also wish to direct its Chair to write to the relevant Minister with any opinions on the candidate it wishes to express privately, to supplement the published report.
23. A committee which has reservations about the suitability of a candidate, but does not wish to express them in a report, may wish to raise such concerns privately with the Minister in the first instance as an alternative to issuing a report. Ministers may wish to consider, in the light of such representations, whether it is advisable to press ahead with the appointment, and may advise the candidate of the reservations expressed.
From the government side, Cabinet Office guidance notes:
28. Following the evidence session, the relevant select committee will usually prepare a report to the House containing its views on the suitability of the candidate. The candidate and the Minister will usually receive the report under a 24-hour embargo, to allow the candidate and the Minister time to consider the report and prepare a response to any specific points it contains.
29. On receipt of the report, the Government will consider the contents carefully before deciding whether to proceed with the appointment. In the majority of cases where an open and transparent process has been followed, the candidate has been selected on merit, and where engagement of the select committee has taken place, the select committee is likely to agree that the Government’s preferred candidate should be appointed.
30. Previously, where select committees have had concerns about the appointment of the Government’s preferred candidate, they have raised these concerns in private correspondence or discussion with the Minister as an alternative to issuing a report in the first instance. In these circumstances, the select committee can agree that the Minister shall inform the candidate of the select committee’s reservations before a formal report is made to Parliament.
Scrutiny of the EHRC Chair
Trevor Phillips OBE, the first chair of the EHRC, was appointed before this process was put in place. In 2012, the second chair Baroness Onora O’Neill met only the Joint Committee on Human Rights, who agreed she was a suitable candidate.
Since 2016, the pre-appointment scrutiny of this role has been conducted by a joint meeting of two committees: the Commons Women’s and Equalities Committee, and the Joint Human Rights Committee, which has members from both the Commons and the Lords.
We look at how this process has operated for the three most recent Chairs, since both committees became involved. We note each candidate’s experience, the nature of the hearing and the committees’ position on each appointment. The press report suggests that the committees ‘said Stephenson lacked sufficient experience of running a big organisation and questioned her experience in dealing with issues of race,’ so we comment on the attention given to these issues in previous cases.
We have collected here the questions asked of each candidate, to make these easier to compare, and highlighted areas commented on in the analysis below.
David Isaac CBE
Source: David Isaac CBE | LinkedIn
A fuller CV included in papers for the committees is here.
The Committees’ evidence session
The Committee’s evidence session with Mr Isaac took place on 23 March 2016. The session lasted for 50 minutes (excluding an interruption for voting).
The majority of the questioning (just over two-thirds by word count) related to managing a potential conflict of interest with his partnership in a law firm, Pinsent Masons, which undertakes substantial work for government.
Isaac was not asked about his experience of running a large organisation. The only reference to race was a question from Karen Buck MP, who noted, “there is, for example, no Muslim representation on the board. Do you have a thought about how we might make sure that the board and your work cover some of the areas that may not be as fully reflected as they might be?”
Isaac’s role at Stonewall was referred to once, briefly and favourably, by Mr Gavin Shuker MP, who noted “Your experience as chair of Stonewall obviously focused on your work around orientation, which is very impressive.”
The Committees’ position
The Committees sought legal advice on the potential for a conflict of interest. This supported their view that there was a potential risk. They initially raised this with Ministers as a matter requiring more attention before they could support the appointment. In their final report on the process they commented: “the two Committees consider that, if the concerns relating to potential or perceived conflict of interest were to be addressed, Mr Isaac would be a good candidate for appointment as the next Chair of the EHRC.” As noted above, this has been classified by House of Commons Library researchers as one of two neutral reports in the history of the pre-appointment scrutiny process.
Mr Isaac’s appointment proceeded, with some further steps being taken to deal with the conflict of interest: see here and here.
Baroness Kishwer Falkner
Source: Kishwer, Baroness Falkner of Margravine | EHRC
Her full CV as provided to the committees is here.
The Committees’ evidence session
The Committee’s evidence session with Baroness Falkner took place on 11 November 2020. The session lasted for an hour and a half.
The questioning was wide-ranging. Falkner’s experience of running large organisations was not raised, but her view on the Commission’s handling of issues relating to race was a significant theme in the questions, accounting for just over one-fifth of the questioning, from Lord Dubs, Karen Buck MP, Lord Brabazon of Tara, Harriet Harman MP, Joanna Cherry MP and Kim Johnson MP.
The Committees’ position
The Committees published a short report of the hearing, summarising the issues they had considered. This flagged a number of areas, including the sufficiency of Falkner’s responses to questions on the discharge of the Commission’s responsibilities in relation to race. They also noted that “At points in the hearing we had reservations that Baroness Falkner’s interpretation of the role was overly focused on the managerial and administrative side. Being a visible and passionate advocate for rights and equality is critical to success in this role.” Notwithstanding these comments, the Committee concluded that “On consideration, we find that Baroness Falkner is a suitable candidate for the role of Chair.” No concern was expressed about her lack of experience of running a large organisation.
Dr Mary-Ann Stephenson
Source: Government announces preferred candidate for Chair of Equality and Human Rights Commission – GOV.UK (Parliament has not yet published detailed background papers for this process as are available for Isaac and Falkner.)
The Committees’ evidence session
Stephenson gave evidence to a joint meeting of the two committees on 1 July. The session lasted for two hours.
The Chair for the session, Lord Alton, explained at the start that one of the Committee’s eight themes of questioning would be ‘biological sex-based rights and transgender rights.’ This accounted for one-third of questioning (by word count) by Peter Swallow MP, Rachel Taylor MP, Lord Dholakia, Baroness Kennedy, Sarah Owen MP, Rebecca Paul MP, Catherine Fookes MP, Rosie Duffield MP and David Burton-Sampson MP. None of the other pre-set lines of questioning related to a specific protected characteristic, although others were touched on during the hearing.
Phillip Swallow MP noted that both committees ‘have received hundreds of letters and emails from transgender people and organisations concerned about your appointment.’ These appear to have been stimulated by online discussion of the session in advance, including a petition objecting to Stephenson’s appointment and an open letter from the heads of a number of organisations, including Stonewall, saying Stephenson had ‘previously supported views seen at odds with inclusivity for all’ and encouraging the committees ‘to properly explore Stephenson’s candidacy.’
The two topics reported as the formal basis of opposition to Stephenson’s appointment (experience in dealing with issues related to race, and experience of running a large organisation) accounted for 7% and 5% respectively of the committee’s questioning (by word count). Stephenson was questioned on her experience of running a large organisation by Baroness Kennedy and Rebecca Paul MP, and on how she saw the Commission’s role in relation to race by Baroness Lawrence, Afzal Khan MP and Sarah Owen MP.
The Committees’ position
No report has yet been published by either Committee on the relevant part of the parliamentary website following the evidence session. However, The Times reported on 11 July that:
Her appointment has now been opposed by the women and equalities select committee and the joint committee on human rights. In a joint letter to Bridget Phillipson, the education secretary and minister for women and equalities, they said Stephenson lacked sufficient experience of running a big organisation and questioned her experience in dealing with issues of race. The letter does not mention her position on trans issues, but a source involved in the process said that it was a factor in the decision.
Given the rules that govern this process, the apparent leaking of this conclusion appears to be a breach of protocol and procedural fairness, assuming that there was no prior warning of it to the candidate or the Minister.
Conclusion
The treatment of the three candidates is strikingly dissimilar. Both women were questioned for longer, and more intensively across more topics: questioning in Isaac’s shorter session was far more focused on a single issue, the potential for a conflict of interest with his existing paid employment. His suitability otherwise was largely taken as read.
Isaac’s personal association with Stonewall attracted little comment, beyond being briefly referred to as positive. Stephenson’s focus on women in various different contexts by contrast gave rise to a requirement to explain her views at length. Her interrogation on this theme occupied a substantial part of her extended session. Her responses there do not however appear to have given the committee specific grounds to object to her appointment, based on the report of their letter.
Questions about race have become more highly-charged over the past decade, and so might now be expected to attract more attention. Even so, it stands out that this was barely raised as an issue for Isaac as recently as 2016. For Falkner, the Commission’s handling of this was explored at some length and her responses flagged as an issue, but not regarded as an obstacle. As reported, perceived lack of sufficient experience here now appears to be seen as a make-or-break issue for Stephenson, although her questioning on this was briefer, both in absolute terms, and as a proportion of the session, compared to her predecessor. Her answers on this issue do not, at first sight, appear less substantial than Falkner’s, and so the committees’ detailed analysis of these responses will merit attention. The question also arises why this was not identified in advance as a separate defined strand of questioning, alongside ‘biological sex-based rights and transgender rights’, given the significance now being attached by the committees to this aspect of the Commission’s work.
Although the EHRC has reduced in size since 2016, as its budget has fallen in real terms, lack of experience of running a large organisation has only been raised in Stephenson’s case. It is difficult to compare the candidates on this, as none had already held a strictly similar role. Stephenson’s experience here however looks at least comparable to, if different from, Falkner’s and Isaac’s. For example, Stephenson is the only one of the three who appears to have held a chief executive role in any organisation. The Women’s Budget Group has a turnover of just over £1m. It is also important to note that the Chair’s role is not to run the organisation but to chair the Board, with an expected time commitment of two days per week.
In terms of handling, it does not appear that concerns about Isaac were leaked in this way. We have not tried to establish if such a leak has happened for previous negative reports.
As negative reports are rare, the justification for them might be expected to be exceptional. If the committees publish a formal report reflecting on the process, as was done for Isaacs and Falkner, their reasoning may become clearer. But for now, all observers have to go on is press reports, and a comparison of what is already public about the approach taken to each of the most recent candidates for Chair of the EHRC.