Appointment of Independent Advisers on the Scottish Ministerial Code: FOI release

Information requested

1. Following the appointment of new independent ministerial code advisers, whether the Scottish Government opened up applications to the public for the position of independent adviser on the ministerial code. If so, how many applicants were there for the position?

2. If not, how many people were interviewed for the position and the process by which the Scottish Government chose these candidates for interview. Please also provide any notes held by the Scottish Government from these interviews and which ministers and/or officials conducted the interviews from the Scottish Government’s side?

3. Which Scottish Minister made the decision to appoint the three new independent advisers to the position and all correspondence related to that decision?

4. Whether the newly appointed advisers will have the power to independently initiate ministerial code investigations as promised by the First Minister in September?

Response

In response to Part 1 of your request, I can confirm that the Independent Advisers on the Scottish Ministerial Code are directly appointed by the First Minister to advise them on matters relating to the Ministerial Code. These roles are not subject to the public appointment process.

In response to Part 2 of your request, you asked for any notes held by the Scottish Government from any interviews of candidates for the role and for confirmation of which Ministers and/or officials conducted the interviews. The Scottish Government does not have the information you have asked for because as noted above these are direct appointments of the First Minister and are not subject to the public appointment or interview process. The post-holders are independent of government and expected to provide impartial advice to the First Minister. Claire Loftus, Sir John Manzoni KCB and the Rt Hon Sir Ernest Ryder were selected for their wealth of experience and expertise and for their independence from Scotland. As such, I hereby provide you with formal notice under section 17(1) of FOISA that the Scottish Government does not have the information you have requested.

In response to Part 3 of your request, I can confirm that the First Minister made the decision to appoint the three new Independent Advisers to the position.

You also asked for all correspondence related to that decision. I have understood this to mean correspondence related to the decision to appoint Claire Loftus, Sir John Manzoni KCB and the Rt Hon Sir Ernest Ryder as opposed to correspondence confirming the appointments. Some of the information you have requested is set out at Annex A.

While our aim is to provide information whenever possible, in this instance we are unable to provide some of the information you have requested because exemptions under s.29(1)(a) (policy formulation), s.30(b)(i) - (substantial inhibition to free and frank provision of advice) and s.38(1)(b) (personal information) of FOISA applies to that information. The reasons why these exemptions apply are explained below.

An exemption under section 29(1)(a) of FOISA (formulation or development of government policy) applies to some of the information requested because it relates to the formulation of Scottish Government policy. This exemption is subject to the ‘public interest test’. Therefore, taking account of all the circumstances of this case, we have considered if the public interest in disclosing the information outweighs the public interest in applying the exemption. We have found that, on balance, the public interest lies in favour of upholding the exemption. We recognise that there is a public interest in disclosing information as part of open, transparent and accountable government, and to inform public debate. However, there is a greater public interest in high quality policy and decision-making, and in the properly considered implementation and development of policies and decisions. This means that Ministers and officials need to be able to consider all available options and to debate those rigorously, to fully understand their possible implications. Their candour in doing so will be affected by their assessment of whether the discussions on policy will be disclosed in the near future, when it may undermine or constrain the Government’s view on that policy while it is still under discussion and development.

An exemption under section 30(b)(i) of FOISA (free and frank provision of advice) applies to some of the information requested. This exemption recognises the need for Ministers to have a private space within which to seek advice and views from officials before reaching the settled public position. Disclosing the content of free and frank briefing material provided to Ministers for Ministerial appointments will substantially inhibit such briefing and consideration in the future. This exemption is subject to the ‘public interest test’. Therefore, taking account of all the circumstances of this case, we have considered if the public interest in disclosing the information outweighs the public interest in applying the exemption. We have found that, on balance, the public interest lies in favour of upholding the exemption. We recognise that there is a public interest in disclosing information as part of open, transparent and accountable government, and to inform public debate. However, there is a greater public interest in allowing a private space within which officials can provide full and frank advice to Ministers as part of the process of exploring and refining the Government’s policy and appointment decisions. This private thinking space is essential to enable all options to be properly considered, based on the best available advice, so that good decisions can be taken. Premature disclosure is likely to undermine the full and frank discussion of issues between Ministers and officials, which in turn will undermine the quality of the decision making process, which would not be in the public interest.

An exemption under section 38(1)(b) of FOISA (personal information) applies to some of the information requested because it is personal data of a third party, i.e. names and contact details of individuals, and disclosing it would contravene the data protection principles in Article 5(1) of the General Data Protection Regulation and in section 34(1) of the Data Protection Act 2018. This includes the names and contact details of civil servants below the grade of Senior Civil Servant. This exemption is not subject to the ‘public interest test’, so we are not required to consider if the public interest in disclosing the information outweighs the public interest in applying the exemption.

In response to Part 4 of your request, I can confirm that the newly appointed advisers have the power to independently initiate ministerial code investigations as was first set out by the First Minister in his statement on the Programme for Government on 4 September 2024. This is clearly set out in the Ministerial Code 2024 and the Terms of Reference for the Independent Advisers, both of which were published on 17 December 2024.

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FOI 202400445249 - Information Released - Annex A

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