Scottish Ministerial Code: 2018 edition

5. Ministers And Appointments

General Principle

5.1 Ministers have a duty to ensure that influence over Civil Service and public appointments is not abused for partisan purposes.

Civil Service Appointments

5.2 Civil Service appointments must be made in accordance with the requirements of the Constitutional Reform and Governance Act 2010 ^[11] and the Civil Service Commissioners’ Recruitment Principles. ^[12]

Selection Principles for Public Appointments

5.3 Public appointments should be made in accordance with the requirements of the law and, where appropriate, the Code of Practice for Ministerial Appointments to Public Bodies in Scotland issued by the Commissioner for Ethical Standards in Public Life in Scotland. ^[13]

5.4 National devolved public bodies in Scotland operate to a greater or lesser extent at arm’s length from Ministers and the Scottish Government. Details of the relevant public bodies may be found in the National Public Bodies Directory published by the Scottish Government. ^[14] The role of the Chair and board members of a public body, appointed by Ministers, is to provide effective leadership, direction, support and guidance to the organisation and to ensure that the Government’s policies and priorities are implemented. The board is the bridge between the Minister who approves the corporate business plans and key performance targets of the body, and the Chief Executive and senior management team, who aim to ensure that plans are delivered and targets met through effective and properly controlled executive action.

5.5 In general (and subject to the constitution of the body to which the appointment is being made), public appointments to the boards of public bodies are the responsibility of Ministers. The Minister will appoint the person he or she considers to be best qualified for the position, based on specific criteria. In doing so, the Minister should have regard to public accountability, the requirements of the law and, where relevant, the Code issued by the Commissioner for Ethical Standards in Public Life in Scotland.

5.6 Appointment on merit is fundamental and applies to all Scottish public appointment procedures, irrespective of whether they are regulated by the Commissioner for Ethical Standards in Public Life in Scotland. Further information and advice on the Code issued by the Commissioner, its implications for Ministers, and Ministers’ specific responsibilities are available from the Scottish Government Public Appointments Team.

The Role of the First Minister and Other Ministers with a Particular Interest

5.7 The First Minister should always be copied into any initial submission seeking commencement of a new public appointment round, or the re-appointment of, or extension of the appointment of a Chair of a public body.

5.8 Final submissions seeking a decision on the appointment of a Chair of a public body should always be sent to the appointment Minister and the First Minister. Publicising the announcement of any new Chair should not take place until the First Minister has confirmed the appointing Minister’s decision.

5.9 The First Minister must be consulted about any appointment which is likely to have political significance. Ministers should take a wide view of what constitutes political significance. Even local or regional appointments may from time to time excite an unusual amount of public interest because of the circumstances surrounding the appointment or the background of the candidate. In all cases involving political considerations, submissions to the First Minister should be copied to the Minister for Parliamentary Business.

5.10 The Cabinet Secretary for Finance and the Constitution must approve all initial submissions for new appointments which have advertising costs. All initial submissions which have associated advertising costs must be sent to the Cabinet Secretary for Finance and the Constitution as well as to the appointing Minister. No appointment round which has associated advertising costs should commence without clearance by the Cabinet Secretary for Finance and the Constitution.

5.11 The Lord Advocate should be consulted where it is proposed to appoint a judge or legal officer (e.g. a Scottish Law Commissioner) to a Royal Commission or a public inquiry. In such cases, it may be preferable for the individuals concerned to be approached by the Lord Advocate, rather than by officials.

5.12 The Minister for Parliamentary Business should always be consulted before an MSP is approached about appointment to any office which would result in the vacation of a Parliamentary seat.

5.13 In all cases where a submission is to be put to the First Minister for approval, no commitment should be made to any individual before the First Minister has commented. In the case of Royal Commissions or public inquiries, the First Minister and the Lord Advocate should be consulted before any informal soundings are undertaken. In other cases, any informal soundings should be made in such a way as to preserve freedom of action and avoid any appearance of commitment.