Can anyone chair Ofcom?

Ofcom is a key UK regulator responsible, in its own words, for “the communications services that we use and rely on each day”. ^undefined Ofcom, ‘What is Ofcom?’, retrieved 15 June 2021, www.ofcom.org.uk/about-ofcom/what-is-ofcom  Its remit ranges from ensuring a universal postal service to preventing scams and protecting people from offensive material on TV. The appointment of its chair is therefore a matter of considerable public interest.

It was reported in May that the appointment process had failed to yield a candidate who was both politically acceptable to ministers and also deemed appointable by the advisory assessment panel. It has subsequently emerged that only nine candidates applied. ^undefined Ofcom, ‘What is Ofcom?’, retrieved 15 June 2021, www.ofcom.org.uk/about-ofcom/what-is-ofcom  The process is now being re-run, and it is essential that it draws upon a much broader field this time.

The role of Ofcom chair is a genuinely difficult appointment

Ofcom’s current interim chair now having a four-year term, following extension, underscores the difficulty of recruiting to the role permanently. The expansion in Ofcom’s remit over time has created an organisation – part economic regulator, part media watchdog – that would be hard for anyone to lead, with the addition of the BBC and soon ‘online harms’ regulation stretching its scope still further. As subject expertise in everything Ofcom does becomes ever harder to find in a single individual, the skillset its chair needs tends towards the generic, and they will need to rely heavily on Ofcom’s executive team to cover the detail.

The successful candidate will need to be able to work closely with ministers and government but the chair of Ofcom should not become a highly politicised public role, either in its recruitment or the way it is carried out. Ofcom is first and foremost a regulator and as such it needs a reputation for treating all comers even-handedly.

Re-running the recruitment process is the right thing to do

The advisory assessment panel reportedly concluded that one leading candidate may have been able to do aspects of the job well but wouldn’t have been able to do all of it. That is understandable given the breadth of the role and is not necessarily a reflection on the candidate. It is not clear what the panel thought of the other shortlisted candidates.

Ministers could have appointed a candidate against the panel’s advice but this is unprecedented, perhaps because they would then be obliged to publish their reasons. Such a disclosure could have been embarrassing for the candidate and may have reduced their credibility when actually performing the role. If there is no appointable candidate from a process – and indeed even if there is – ministers are entitled to re-run it. This is set out in the public appointments governance code ⁷ Cabinet Office, ‘Governance Code for Public Appointments’, GOV.UK, 16 December 2016, www.gov.uk/government/publications/governance-code-for-public-appointments  and is particularly important in a role where recruiting an unsuitable person could have far-reaching consequences.

There has been speculation that the purpose of the re-run is to use a different panel that may find the preferred candidate appointable where their predecessors did not. Clearly this would be the wrong thing to do and could undermine the public’s – and potential candidates’ – confidence in the appointments process. There was also speculation that the initial process was run poorly, but the commissioner for public appointments has since confirmed that the process itself was robust. ⁸ Commissioner for Public Appointments, ‘Letter to DCMS Committee Chair, Julian Knight MP’, 14 June 2021, retrieved 16 June 2021, publicappointmentscommissioner.independent.gov.uk/letter-to-dcms-committee-chair-julian-knight-mp-2/  To broaden the field of candidates, however, it would probably be worth appointing recruitment consultants next time round (as the code permits by exception).

Discretion is key to an effective public appointment process

Perhaps the most striking thing about this appointment is that this level of speculation is possible at all. Much that should be taking place behind closed doors has reached the public domain and, of course, the details reported may be inaccurate. In particular, public debate over specific candidates before an appointment has been made is inappropriate (even when, as widely reported, one of the candidates is former editor Paul Dacre). This risks distorting the appointment process, not least by putting off potential applicants who may not want their candidature to be public or may feel it is not worth applying if ministers have already made their choice.

Like all public appointments, the final decision is ultimately for ministers and the governance code gives them a lot of discretion. Careful ministerial judgement is therefore needed to maintain public confidence in a regulator that is increasingly itself the arbiter of the boundaries to public debate on controversial issues. That judgement can best be exercised if a range of appointable candidates can be presented for ministers to consider – which is only possible if they have not been put off before applying.