Scottish Ministerial Code: 2018 edition

8. Ministers’ Engagement On Planning Matters, Including The Granting Of Energy Consents

General Principle

8.1 Ministers should take particular care to avoid conflicts of interest when dealing with planning matters, including the granting of energy consents.

Ministers’ Interests in Specific Cases

8.2 The requirements of this section of the Code are especially relevant for a Minister who is either the Planning Minister or who otherwise has a particular interest in a specific case. Ministers should clearly articulate a distinction between their role as Minister and as the MSP representing a particular electorate.

The Planning Minister

8.3 To help ensure the fairness and transparency of the planning system, the Planning Minister ^[24] or any other Minister involved in the planning decision, must do nothing which might be seen as prejudicial to that process, particularly in advance of the decision being taken. Action that might be viewed as being prejudicial includes:

(a) Taking a decision, or being part of the decision-making process, in respect of an application which falls within the constituency or region represented by the Planning Minister or any other Minister involved in the planning decision, or expressing an opinion publicly on a particular case which is before, or may subsequently be referred to, the Minister(s) for decision.
In order to preserve the integrity of the decision from challenge on grounds of prejudice, the Planning Minister or any other Minister involved in the decision-making process would have to debar him- or herself from any involvement in the case:
(i) if the application fell within his or her constituency or region; or
(ii) if the Minister had expressed a personal view on the proposal; or
(iii) if the Minister considered that his or her impartiality might be perceived to be compromised in any other way;

(b) Meeting the developer or objectors to discuss the proposal, but not meeting all parties with an interest in the decision.
The Planning Minister, or any other Minister involved in the planning decision, should only hold such a meeting if it is possible to meet all interested parties in respect of a particular proposal or, as an absolute minimum, to offer all parties the opportunity of such a meeting; and

(c) Commenting on decisions once they have been issued, other than in terms of what has appeared in the decision letter or, in the case of structure plan or Strategic Development Plan approvals, any accompanying explanatory annexes.

In the interests of certainty and stability, the legislation provides for decisions on planning cases to be final, subject only to challenge in the Courts on a point of law, or on the grounds that a decision is so unreasonable that no reasonable Minister could have arrived at it. Decision letters set out in full the grounds for decisions, and the Minister should make it clear that, in any discussion after a decision is made, he or she would be unable to add to the terms of the relevant decision letter.

Other Ministers with a Particular Interest

8.4 Particular care needs to be taken over cases in which a Minister may have a personal interest or connection, for example because they concern family, friends or employees. If, exceptionally, a Minister wishes to raise questions about the handling of such a case, they should write to the Permanent Secretary and the Minister responsible, as with constituency cases, but they should make clear their personal connection or interest. The responsible Minister should ensure that any inquiry is dealt with rigorously and without special treatment.

8.5 Ministers with powers in relation to public bodies are required to take particular care when a body is a statutory consultee in the planning process. While Ministers are free to give general strategic guidance to those public bodies for which they have portfolio responsibility and to be reassured that this is being followed, and although Ministers are entitled to take an interest in whether public bodies are fulfilling their statutory role in the planning system, they should take care not to seek to influence the substance of the advice being given in individual cases which are subject to the planning process.

All Ministers

8.6 The general guidance at 7.5 to 7.10 above also applies to planning matters, including energy consents. It is entirely legitimate for Ministers, in their capacity as a constituency or regional MSP, to make representations on behalf of their electorate on planning matters, but they must take particular care to ensure they follow this due process when doing so. Where Ministers find it unavoidable to express a view on a planning case, they should be aware of the potential sensitivities in doing so, should make it clear that they are not involved in the decision making process on the planning case, and must make it clear that the views they put forward are ones expressed in their capacity as the MSP representing a particular electorate.

8.7 Ministers can, when acting in their MSP role, represent their electorate’s views on planning cases, and should act as follows:

(a) They may write to the Minister responsible for taking a decision on a planning application, arguing against or in favour of a particular course of action. But in so doing, they should make it clear that they are representing their electorate as MSP or are acting at the request of a particular group or person;

(b) They can express agreement with the views of a particular group or person when submitting representations in connection with a planning application, but such expressions of personal opinion should be informed by the procedures as set out in paragraph 7.8;

(c) They should make no comment of their own where the determination of a planning application will lead to, or will implicitly involve, other decisions in which the Minister making representations on behalf of a particular constituency or region is involved in his or her own Ministerial capacity;

(d) They may attend public meetings, make representations to a planning authority, argue a constituent’s case at a public local inquiry and take a personal position. But their role throughout must be consistent with the restrictions set out under (a) to (c) above. They may not take a personal position in respect of cases falling under (c) above;

(e) They may lead deputations or arrange meetings between relevant parties, ensuring that they take into account the guidance set out at paragraphs 7.6 to 7.8; and

(f) They can make public comment, including through the media, but should be aware of the potential sensitivities in doing so.

8.8 Parliamentary Liaison Officers should take special care when making representations to Ministers about planning issues. In particular, they should not discuss planning cases with interested parties or imply that they have any influence over planning decisions. In representing their interests as a constituency or regional MSP, they should abide by the guidance in paragraphs 7.5 to 7.10.

The First Minister

8.9 The guidance set out in paragraphs 8.6 to 8.8 applies to the First Minister in the same way as to all other Ministers. The First Minister may act as a constituency or regional MSP on any matter, in the same way as any other Minister. However, the First Minister must take especially rigorous care to be seen to separate his or her role as an MSP and his or her potential Ministerial role in a planning decision. The First Minister must be seen to do nothing that could be perceived as prejudicial to the planning process, by making sure that other Ministers have a clear understanding that, when he or she is acting or expressing a view as a constituency or regional MSP, those actions or views are not misinterpreted as being directive.

8.10 The First Minister should avoid making any public statement about the merits of a planning application (even in his or her capacity as local MSP) that might be seen to put the Planning Minister under pressure when making a decision about a planning matter. Where the First Minister judges that the circumstances in which he or she is acting as constituency or regional MSP are particularly sensitive, he or she has the option of consulting the Permanent Secretary.