New Ministerial code queries: FOI release

Information requested

1) In regards to 2.6 within the new ministerial code, can the Government please provide any guidance or information provided to the new independent advisers on the ministerial code on how they should go about their role. This should include but not be limited to introductory guides after joining the government, briefing notes, or meeting minutes or agendas about their role.

2) In addition, in relation to 2.6(b), any advice or guidance provided by the First Minister and/or the Scottish Government on this provision of the ministerial code.

Response

Firstly, I note that your request refers to the Independent Advisers “joining the government”. It may be helpful if I explain that these post-holders are independent of government and their role is to provide impartial advice to the First Minister. With regards to your request under FOISA, I have therefore interpreted this to mean you are requesting “introductory guides after taking up their roles” in order to respond to this part of your request.

In response to your first question, I enclose a copy of some of the information you requested.

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 an exemption under section s.38(1)(b) (personal information) of FOISA applies to that information. This exemption applies to some of the information because it is personal data of a third party, for example names of individuals or other personal data 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 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.

An exemption under section 30(b)(ii) of FOISA (free and frank exchange of views) also applies to some of the information requested. This exemption applies because disclosure would, or would be likely to, inhibit substantially the free and frank exchange of views for the purposes of deliberation. This exemption recognises the need for Ministers and officials to have a private space within which to discuss and explore options before the Scottish Government reaches a settled view. Disclosing the content of free and frank discussions regarding the (at the time) draft changes to the Scottish MinisterialCode would subst antially inhibit such discussions 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 Ministers and officials a private space within which to explore and refine the Government’s position until the Government as a whole can adopt a policy that is sound and likely to be effective. This private thinking space is essential to enable all options to be properlyconsidered, so that good policy decisions can be taken. Disclosure is  likely to undermine the full and frank discussion of issues between officials, which in turn will undermine the quality of the policy making process, which would not be in the public interest.

In response to your second question, I can advise that there is no advice or guidance on the specific provision 2.6(b) that is not contained within my response to your first question. Therefore this is a formal notice under section 17(1) of FOISA that the Scottish Government does not have the information you have requested.

About FOI

The Scottish Government is committed to publishing all information released in response to Freedom of Information requests. View all FOI responses at https://www.gov.scot/foi-responses.

FOI 202500447009 - Information released - Annex

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