Scottish Ministerial Code 2016 edition

2. Ministers And The Government

General Principle

2.1 The Scottish Government operates on the basis of collective responsibility. This means that all decisions reached by the Scottish Ministers, individually or collectively, are binding on all members of the Government. Ministers are required to abide by them and defend them as necessary. The principle of collective responsibility requires that Ministers should be able to express their views frankly in the expectation that they can argue freely in private while maintaining a united front when decisions have been reached. This in turn requires that the privacy of opinions expressed and advice offered within the Government should be maintained.

The Scottish Government and Ministerial Functions

2.2 In accordance with Section 44(1) of the Scotland Act 1998, the Scottish Government consists of the First Minister, other Scottish Ministers (Cabinet Secretaries) appointed by the First Minister under Section 47 of the Scotland Act, the Lord Advocate and the Solicitor General for Scotland. In addition, the First Minister appoints junior Scottish Ministers under Section 49 of the Scotland Act.

2.3 Most of the functions exercisable by Ministers are conferred upon the Scottish Ministers collectively. However, these functions do not require to be exercised jointly by all the Scottish Ministers. Section 52(3) of the Scotland Act provides that any member of the Government can exercise any of the functions of the Scottish Ministers, and Section 52(4) provides that any act or omission of any member of the Government is legally the act or omission of each of them.

Collective Responsibility

2.4 The internal processes through which a Government decision has been made should not normally be disclosed. Such decisions are, however, normally announced and explained as the decision of the Minister concerned. On occasion, it may be desirable to emphasise the importance of a decision by stating explicitly that it is the decision of the Scottish Government. This, however, is the exception rather than the rule.

2.5 In accordance with the principle of collective responsibility, it is important that Ministers and their staff preserve the privacy of Government business and protect the security of Government documents, subject to the provisions of the Freedom of Information (Scotland) Act 2002 (see also paragraphs 2.26 and 2.27).

2.6 The issue of collective responsibility is particularly acute where the portfolio Minister is likely to take a decision that might be unpopular in the constituency or region which another Minister represents as MSP. Once a decision has been reached, the Minister who is constituency or regional MSP must be prepared to defend that decision, even if, individually, he or she might have argued against it in private, or, in the case of a constituency issue, might have made representations as a constituency or regional MSP.

2.7 Collective responsibility as defined above also applies to any junior Scottish Ministers who are appointed by the First Minister under the terms of Section 49 of the Scotland Act even though they may not be members of the Cabinet.

2.8 The only two exceptions to the doctrine of collective responsibility are: (i) statutory or other responsibilities conferred on the First Minister alone; and (ii) the Lord Advocate's retained functions, including decisions taken by the Lord Advocate in his or her capacity as head of the systems of criminal prosecution and investigation of deaths in Scotland. In such cases, the First Minister or the Lord Advocate, respectively, acts independently of other Ministers.

2.9 Where a Minister considers that he or she cannot support a decision reached collectively by the Scottish Government and wishes publicly to dispute that decision, the Minister in question should consider whether it is appropriate to resign from his or her Ministerial role. As with adherence to the rest of the Ministerial Code, a Minister can only remain in post for so long as he or she retains the confidence of the First Minister.

Cabinet Business

2.10 The Cabinet normally meets weekly. Its business consists, in the main, of questions which significantly engage the collective responsibility of the Government, either because they raise major issues of policy or because they are of critical importance to the public. When considering Cabinet business and reaching decisions collectively, it should be remembered that Cabinet members are acting in their Ministerial capacity and not in their capacity as representatives of a particular constituency or regional electorate.

2.11 Matters wholly within the responsibility of a single Minister which do not significantly engage collective responsibility need not be brought to the Cabinet unless the Minister concerned wishes to inform his or her colleagues about the matter in question or to have their advice in a full meeting of the Cabinet. It is not possible to give a precise definition of the matters which should be referred to the Cabinet for decision. As a general rule, however, Cabinet members should put before their colleagues the sorts of issues on which they themselves would wish to be consulted.

2.12 Issues should not be brought to Cabinet until there has been appropriate consultation with Ministers with a direct portfolio interest and their views have been fully reflected in the paper to be submitted for Cabinet consideration. Questions involving more than one Minister which require collective consideration by Cabinet should be examined by the officials concerned before submission to the Cabinet so that the decisions required may be clearly defined. When there is a difference between Ministers, it should not be referred to the Cabinet until other means of resolving it have been exhausted, including discussions between the Ministers concerned. It is the responsibility of the officials concerned to ensure that proposals have been discussed with other interested officials. The outcome of these discussions should be reflected in the paper submitted for Cabinet consideration.

2.13 Members of Cabinet should take particular care when agreeing the weekly Cabinet minutes as an accurate record of discussion. The minutes of the Scottish Cabinet constitute the official record, and Ministers will be expected to adhere to the decisions which they set out.

Cabinet Correspondence

2.14 Cabinet correspondence enables Cabinet to reach decisions on issues which, while requiring collective Cabinet agreement, do not necessarily require to be discussed at a Cabinet meeting. As with all Cabinet papers, Cabinet correspondence should only be issued once appropriate consultation has been undertaken among Ministers with a direct portfolio interest and once their views have been reflected fully in the correspondence paper.

2.15 Just as there is no precise definition of issues requiring Cabinet consideration, so there are no absolute rules about what should be handled through correspondence. It may, however, helpfully be used for securing clearance for the launch of a consultation paper or other significant Government publication. The Cabinet Secretariat can advise in individual cases.

Ministerial Discussions below the Level of the Cabinet

2.16 Collective Ministerial discussions can take place below the level of the Cabinet. Where it is clear that a particular issue will require two or more Ministers and their officials to work together over a period, or that a matter falling within the portfolio of one Minister needs to be considered collectively, the Cabinet may decide to establish a Cabinet sub-committee, which may include both Cabinet members and other Scottish Ministers. The size, membership and length of life of sub-committees may vary significantly depending on the nature of the subject at issue. Alternatively, one or more Ministerial meetings may be arranged involving those Ministers with a direct interest to permit discussion of a particular issue. Any collective Ministerial meeting should be minuted, with decisions and any outstanding issues recorded clearly, usually with input from the Cabinet Secretariat and/or the relevant Private Office.

2.17 Collective Ministerial meetings below the level of the Cabinet have two main purposes. First, they relieve the pressure on the Cabinet itself by enabling business to be settled at a lower level, where appropriate; or, failing that, by clarifying the issues and defining any points of disagreement. Second, they support the principle of collective responsibility by ensuring that, even though an important question may not be discussed at a meeting of the Cabinet, the decision will be given full Ministerial consideration, and the final judgement reached will be sufficiently authoritative to ensure that the Government as a whole can properly be expected to accept responsibility for it.

2.18 If the Cabinet agrees to delegate an issue to a Cabinet sub-committee and a Minister is dissatisfied with the conclusions, the First Minister will entertain an appeal to the full Cabinet only after consultation with the Minister who chairs the sub-committee concerned.

Priority of Cabinet Meetings

2.19 Cabinet meetings take precedence over all other Ministerial business, although it is understood that there may occasionally be exceptional circumstances ( e.g. Parliamentary business, business overseas or meetings with the European Commission or with UK Ministers) which mean that a Minister may have to be absent.

2.20 Requests by Cabinet members for permission to be absent from Cabinet should be made only in such exceptional circumstances, and should be made at the earliest opportunity and by means of a personal minute to the First Minister. A minute is not necessary when the reason for absence from a Cabinet meeting is an overseas visit for which Ministerial approval has already been obtained in accordance with the detailed requirements set out in paragraphs 9.5 to 9.8 below.

2.21 Minutes seeking approval for absence from Cabinet for any reason, including overseas visits, should be copied to the Permanent Secretary and the Cabinet Secretariat. Subject to the First Minister's approval, an absent Cabinet member's interests may be represented at Cabinet by another Minister with relevant portfolio knowledge.

Attendance at Meetings of Cabinet Sub-Committees

2.22 Attendance at meetings of Cabinet sub-committees should take precedence over most other Ministerial business, the principal exception being business in the Parliament where the Minister's attendance is deemed essential. Private Offices should therefore not arrange any engagements for their Minister (and nor should Ministers themselves arrange any business) which would be likely to conflict with a meeting of a committee or other official Ministerial group of which their Minister is a member.

2.23 If, after a meeting date has been fixed, a Minister finds that he or she has to withdraw from a meeting, he or she must send a personal minute to the Chair explaining the circumstances. The minute should be copied to the First Minister, the Permanent Secretary and the Cabinet Secretariat.

2.24 If, exceptionally, a Minister is unable to attend a meeting of a Cabinet sub-committee of which he or she is a member, he or she should try to arrange for another Minister with relevant portfolio knowledge to attend in his or her place (although there may be exceptions for particular meetings at the discretion of the Chair). Officials cannot attend committee meetings in place of a Minister, although they may attend to provide Ministers with advice.

Publication of Policy Documents and Consultation Papers

2.25 Before publishing a Government policy document or a consultation paper, officials should consider whether it raises issues which require full collective Ministerial consideration through Cabinet or a Cabinet sub-committee. The expectation is that most such papers will need collective agreement prior to publication. Any policy document containing a major statement of Government policy should be circulated to Cabinet members and other Ministers with a portfolio interest before publication. This rule applies to papers containing major statements even when no issue requiring collective decision is required.

Confidentiality and Security of Cabinet Documents and Other Government Papers

2.26 Ministers have a personal responsibility to safeguard the integrity and confidentiality of Government business. Failure to maintain good security can cause damage to the interests and reputation of the Government and may prejudice the effective conduct of official business.

2.27 Ministers should be particularly mindful of the vulnerabilities associated with telephone systems, mobile phones, BlackBerry ^® devices and other similar portable or tablet devices, and IT systems generally. Ministers and their Private Office staff should therefore ensure that all reasonable steps have been taken to ensure the security of Government information, in accordance with current guidance for Ministers issued by the Scottish Government Chief Information Security Officer.

Official Papers held by Ministers Relinquishing Office

2.28 Ministers relinquishing office should hand back to their Private Office any Cabinet documents and/or other official papers in their possession.

Access by Former Ministers to Official Papers

2.29 By convention and at the Government's discretion, former Ministers are allowed reasonable access to official papers which they saw when they were in office. Such access is provided outwith the provisions of the Freedom of Information (Scotland) Act 2002 and is limited to that Minister personally. Access is subject to compliance with the 'Radcliffe Rules' (see paragraph 10.14 below). The papers made available for inspection cannot be copied or taken away. The use made of those papers is limited by the need to ensure that the conventions about confidentiality of exchanges between Ministers, and civil servants' advice to Ministers, are not breached. Approaches in these cases should be made in the first instance to the Permanent Secretary.

Taking Legal Advice

2.30 Paragraph 1.2 of this Code acknowledges the overarching duty on Ministers to comply with the law. It is part of the role of the Law Officers (the Lord Advocate and the Solicitor General for Scotland) to ensure that the Government acts lawfully at all times. Ministers and officials should therefore ensure that their decisions are informed by appropriate analysis of the legal considerations and that the legal implications of any course of action are considered at the earliest opportunity. All briefing to Ministers with legal implications should be informed by appropriate advice on the legal considerations.

2.31 The Law Officers have Ministerial responsibility for the provision of legal advice to Ministers on all matters relating to the law of Scotland. However, they cannot and do not advise on every legal issue which may arise. The primary source of legal advice for the Government is the Scottish Government Legal Directorate ( SGLD).

2.32 All comments or views provided in any format by a qualified legal adviser as part of their role as a lawyer are considered to be legal advice. Ministers draw on oral and written legal advice as appropriate from Law Officers, SGLD, Counsel and external solicitors. There is, however, a general principle that the Law Officers must be consulted in good time before the Government is committed to significant decisions involving legal considerations.

2.33 The following are examples of the kind of situation where the advice of the Law Officers should be sought:

(a) The legal consequences of action by the Government might have important repercussions;

(b) A legal adviser in the Government has doubts about the legality or constitutional propriety of proposed legislation or executive action;

(c) Ministers, or their officials, wish to have the advice of the Law Officers on questions involving legal considerations; or

(d) There is a particular legal difficulty that may raise sensitive policy issues.

2.34 The provision of advice by the Law Officers may be through a formal written opinion or otherwise. The process of obtaining a written opinion of the Law Officers will normally be by way of a reference from SGLD. That may be at the request of Ministers, SGLD or the Law Officers themselves.

2.35 When advice from the Law Officers is referred to in correspondence between Ministers or in papers for Cabinet or Ministerial Committees, the conclusions may, if necessary, be summarised, but if this is done the complete text of the advice should be attached.

2.36 Submissions to Ministers raising legal considerations are copied to the Law Officers for information or awareness. Sometimes the Law Officers will comment on such submissions, but often they will simply note them. The Law Officers are not to be taken as offering a legal view on such a submission if they simply note it.

2.37 By convention, the written opinions of the Law Officers, unlike other Ministerial papers, are generally made available to succeeding administrations .

Disclosure of the Existence, Source or Content of Legal Advice

2.38 Ministers may acknowledge publicly that they have received legal advice on a particular topic, but must not divulge either who provided the advice or its contents (whether it is from the Law Officers or from anyone else). This applies to all forms of legal advice, including advice on a particular subject or advice associated with clearance of a document.

2.39 This approach is required in order to take account of the public interest in maintaining:

(a) The right to confidentiality of communications between legal advisers and their clients (sometimes referred to as legal professional privilege);

(b) The Law Officer Convention ^[4] that the Scottish Government, like the UK Government, does not, other than in exceptional circumstances, disclose the fact that legal advice has or has not been given to the Government by or sought from the Law Officers, or the content of any such advice.

2.40 If, in exceptional circumstances, Ministers feel that the balance of public interest lies in disclosing either the source or the contents of legal advice on a particular matter, the Law Officers must be consulted and their prior consent obtained. Such consent will only be granted where there are compelling reasons for disclosure in the particular circumstances.

2.41 The provision in paragraph 2.38 preventing Ministers from divulging whether or not Law Officers provided legal advice does not apply in relation to Bills introduced in the Parliament because it is acknowledged publicly that the Law Officers advise on the legislative competence of Government Bills (see paragraph 3.4 below). Views given by the Law Officers in their Ministerial capacity, as opposed to legal advice provided by them in their capacity as legal advisers, are also not covered by the provision in paragraph 2.38.

The Law Officers' Role in Legal Proceedings

2.42 In criminal proceedings, the Law Officers act wholly independently of the Government. In civil proceedings, a distinction is to be drawn between proceedings in which the Law Officers are involved in a representative capacity on behalf of the Government, and action undertaken by them on behalf of the general community to enforce the law as an end in itself.

2.43 The Law Officers' role in relation to civil proceedings in which Ministers may become engaged in their personal capacities is described in paragraph 11.16.