The Scottish Ministerial Code: independent advisers

Terms of reference

The Independent Advisers on the Scottish Ministerial Code are appointed by the First Minister to advise them on matters relating to the Ministerial Code. The post-holders are independent of government and expected to provide impartial advice to the First Minister. The post-holders are required to observe the Seven Principles of Public Life.

1. Ministers’ interests

1.1. Under the Scottish Ministerial Code (paragraph 3.2), “it is the personal responsibility of each Minister to decide whether and what action is needed to avoid a conflict or to manage the perception of a conflict, taking account of advice received from the Permanent Secretary and the Cabinet Secretariat”.

1.2. Ministers are required, upon appointment to each new office, to provide the Permanent Secretary with a full list of interests which might be thought to give rise to a conflict with the Minister’s public duties (paragraph 3.4). A list of each Ministers' declared interests are published on the Scottish Government website within a reasonable period following their appointment (paragraph 3.7). Ministers have an ongoing duty to ensure that their declarations are kept up to date and to notify the Permanent Secretary of any relevant change in their interests (paragraph 3.6).

1.3. The Independent Advisers will be invited to provide independent scrutiny of the process and conclusions of the work undertaken by the Cabinet Secretariat to support Ministers in completing the annual review of their declarations of private interests. The Advisers can then provide advice to the Cabinet Secretariat on any actions that they feel would improve the support offered to Ministers to help them avoid any actual or perceived conflicts of interest (paragraph 3.8).

2. Independent Advisers’ interests

2.1. On appointment, Independent Advisers will provide the First Minister with a list of any other professional roles they hold to help ensure that a conflict interest, or a perception of one, does not arise in relation to their role as an Independent Adviser on the Ministerial Code. The Independent Advisers will notify the First Minister at the earliest opportunity should there be any relevant changes to their list of other professional roles.

2.2. Should the Independent Advisers become aware of a risk of an actual or perceived conflict between their private interests (including those of their spouse or partner) and their role as an Adviser, or should they have had a previous connection to a topic being considered under the Ministerial Code, they should notify the First Minister as soon as possible. Where there is a risk of a conflict with private interests or a previous connection with the topic, the Independent Advisers will take steps to recuse themselves from advising the First Minister on the matter on concerned. Another Independent Adviser, or Advisers, without such a conflict, will lead on the work instead.

3. Investigation of alleged breaches of the Ministerial Code

3.1. Under the terms of the Ministerial Code (paragraph 2.6a): “If there is an allegation about a breach of the Code and the First Minister, having consulted the Permanent Secretary, feels that it warrants further investigation, the First Minister may (i) ask the Permanent Secretary, supported by Propriety and Ethics Directorate, to investigate the facts of the case and/or (ii) refer the matter to the Independent Advisers on the Ministerial Code”.

3.2. Where the Independent Advisers believe that an alleged breach of the Code warrants further investigation and that matter has not already been referred to the Advisers, they may initiate an investigation (paragraph 2.6b). Before doing so, the Independent Adviser will notify the First Minister in writing.

3.4. Following an investigation carried out by the Independent Advisers, the Independent Advisers may advise the First Minister on whether, in their view, there has been a breach of the standards expected in the Ministerial Code. Additionally, the Independent Advisers may make recommendations on the appropriate sanctions for the First Minister’s consideration. 

3.5. The decision on whether a Minister remains in office is for the First Minister, as the ultimate judge of the standards of behaviour expected of a Minister and the appropriate consequences of a breach of those standards (paragraphs 2.1 and 2.4).

3.6. The advice provided to the First Minister on the outcome of investigations undertaken by the Independent Advisers will be published in a timely manner after the case has been decided by the First Minister.

4. Further advice on Ministerial Code

4.1. Before the Ministerial Code is amended, the First Minister will consult the Independent Advisers.

4.2. Advice on the application of the Ministerial Code is provided to Ministers by the Permanent Secretary and the Cabinet Secretariat.

5. Information

5.1. A Minister must provide the Independent Advisers with any information the Independent Advisers reasonably require for the purposes of discharging the responsibilities set out in these terms of reference (paragraph 2.6b). Where the Independent Advisers consider that a Minister is not providing such information, they will notify the First Minister.

5.2. Information provided to the Independent Advisers for the purposes of their functions is provided in confidence.

Further information

See:

• Scottish Ministerial Code (2024)
• The Scottish Ministerial Code: independent advisers