Scottish Ministerial Code: 2023 Edition

11. Ministers' Private Interests

General Principle

11.1 Ministers must ensure that no conflict arises, or could reasonably be perceived to arise, between their public duties and their private interests, financial or otherwise.

Responsibility for Avoiding a Conflict

11.2 It is the personal responsibility of each Minister to decide whether and what action is needed to avoid a conflict or the perception of a conflict, taking account of advice received from the Permanent Secretary.

11.3 The role of the Permanent Secretary is to ensure that advice is available when it is sought by the Minister, either by providing it personally, drawing on precedent and if need be other parts of government, or by securing the services of a professional adviser. Where there is a doubt, it will almost always be better to relinquish or dispose of the interest in question. In cases of serious difficulty or doubt, the matter may be referred to the First Minister for a view. But ultimately it is the responsibility of Ministers individually to order their own private lives in such a way as to avoid criticism, and the final decision about what action to take to achieve that is theirs.

Procedure

11.4 On appointment to each new office, Ministers must provide the Permanent Secretary with a full list in writing of all interests which might be thought to give rise to a conflict in relation to their Ministerial office. The list should also cover interests of the Minister's spouse or partner, and close family which might be thought to give rise to a conflict. The Permanent Secretary will also seek confirmation from Ministers, at the time of their appointment, as to whether they are aware of any close acquaintances or advisers who have a contractual relationship with the Government or are involved in policy development.

11.5 Where appropriate, the Minister will meet the Permanent Secretary to agree action on the handling of interests. Ministers must record in writing what action has been taken, and provide the Permanent Secretary with a copy of that record. Ministers will be expected to inform the Permanent Secretary at the earliest opportunity if there is any change in their interests.

11.6 A list of each Ministers' declared interests will be published on the Scottish Government website within a reasonable period following their appointment. Each year, following the publication of the Register Interests of Members of Parliament, Cabinet Secretariat reminds all Ministers to review their interests in the light of their portfolio or other ministerial responsibilities, to consider any possible conflict issues, and to seek advice where necessary. The published lists of Ministers' interests will be reviewed and, where necessary, updated on an annual basis.

11.7 Where it is proper for a Minister to retain a private interest, they should declare that interest to Ministerial colleagues and officials if they have to discuss public business which in any way affects it, and the Minister should remain entirely detached from the consideration of that business. Similar steps may be necessary in relation to a Minister's previous interests.

Financial Interests

11.8 Ministers must scrupulously avoid any danger of an actual or perceived conflict of interest between their Ministerial position and their private financial interests. They should be guided by the general principle that they should either dispose of the interest giving rise to the conflict or take alternative steps to prevent it. In reaching their decision, Ministers should be guided by the advice given to them by the Permanent Secretary. Ministers' decisions should not be influenced by the hope or expectation of future employment with a particular firm or organisation.

Steps to be Taken where Financial Interests are Retained

11.9 Where, exceptionally, it is decided that a Minister can retain an interest, the Minister and the Permanent Secretary must put processes in place to prohibit access to certain papers and ensure that the Minister is not involved in certain decisions and discussions relating to that interest.

11.10 In some cases, it may not be possible to devise a mechanism to avoid a conflict of interest. In any such case, the First Minister must be consulted and it may be necessary for the Minister to cease to hold the office in question.

Register of Interests of Members of the Scottish Parliament

11.11 Ministers are reminded that the provisions of the Ministerial Code are additional to the requirements of the Interests of Members of the Scottish Parliament Act 2006, which apply both to Ministers who are MSPs and to the Law Officers. Guidance on the registration and declaration of Members' financial interests is set out in the Code of Conduct for Members of the Scottish Parliament.^[32]

Public Appointments

11.12 When they take up office, Ministers should give up any other public appointment they may hold. Where, exceptionally, it is proposed that such an appointment should be retained, the Permanent Secretary and the First Minister must be consulted.

Non-Public Bodies

11.13 Ministers should take care to ensure that they do not become associated with non-public organisations whose objectives may in any degree conflict with Government policy and thus give rise to a conflict of interest.

11.14 Ministers should therefore not normally accept invitations to act as patrons of, or otherwise offer support to, pressure groups, or organisations dependent in whole or in part on Government funding. There is normally less objection to a Minister associating him- or herself with a charity, subject to the points above, but Ministers should take care to ensure that, in participating in any fund-raising activity, they do not place, or appear to place, themselves under an obligation as Ministers to those to whom appeals are directed, and for this reason they should not approach individuals or companies personally for this purpose. In all such cases, the Minister should consult the Permanent Secretary and, where appropriate, the First Minister. Ministers should also exercise care in giving public support for petitions, open letters, etc.

Trade Unions

11.15 There is no objection to a Minister holding trade union membership, but care must be taken to avoid any actual or perceived conflict of interest. Accordingly, Ministers should arrange their affairs so as to avoid any suggestion that a union of which they are a member has any undue influence. They should take no active part in the conduct of union affairs, should give up any office they may hold in a union and should receive no remuneration from a union. A nominal payment purely for the purpose of protecting a Minister's future pension rights is acceptable.

Civil Legal Proceedings

11.16 Ministers occasionally become engaged in civil legal proceedings in their personal capacities but in circumstances that may have implications for them in their official positions. In all cases where Ministers become engaged in civil legal proceedings in their personal capacities, they should consult the Law Officers before consulting their own solicitors, in order to allow the Law Officers to express a view on the handling of the case so far as the public interest is concerned or, if necessary, to take charge of the proceedings from the outset.

Nominations for Prizes and Awards

11.17 From time to time, the personal support of Ministers is requested for nominations being made for prizes and awards. Ministers should not sponsor individual nominations for any awards, since it would be inevitable that some people would assume that the Government was itself thereby giving its sponsorship.

Foreign Decorations

11.18 Ministers should not normally, while holding office, accept decorations from foreign countries.

Acceptance of Gifts and Hospitality

11.19 No Minister should accept gifts, hospitality or services from anyone which would, or might appear to, place them under an obligation. The same principle applies if gifts, etc. are offered to a member of their family.

11.20 This is primarily a matter which must be left to the good sense of Ministers. But any Minister in doubt or difficulty over this should seek the advice of the Permanent Secretary. The following specific rules apply:

• Gifts given to Ministers in their Ministerial capacity become the property of the Government;
• However, gifts of small value, currently up to £140, may be retained by the Minister in question. If not retained by the Minister, gifts of small value should be handed over to the Minister's Private Office for disposal;
• Gifts of a higher value must, in all cases, be reported to the Permanent Secretary. Such gifts may be purchased by the recipient at their cash value (abated by £140). If not purchased by the Minister, gifts of a higher value should be handed over to the Permanent Secretary for disposal;
• There is usually no customs duty or import VAT payable on the importation of official gifts received overseas. HMRC can advise on any cases of doubt. If a Minister wishes to retain a gift, they will be liable for any tax it may attract.

11.21 Gifts retained by Ministers that are valued at less than 0.5% of a Member's salary (rounded down to the nearest £10) do not need to be additionally declared in the Register of Interests of Members of the Scottish Parliament.

11.22 The Scottish Government will publish a quarterly list of gifts received by Ministers valued at more than £140. The list provides details of the value of the gifts and whether they were retained by the Government or purchased by the Minister. Private Offices must ensure that they maintain records of gifts received, in such a way as to be able to provide this information on a quarterly basis to the Permanent Secretary's office and Ministerial Private Office Division to allow the quarterly publication of gifts valued at more than £140.

11.23 Gifts given to Ministers in their capacity as MSPs or as members of a political party fall within the rules relating to the Register of Interest of Members of the Scottish Parliament.^[33]

11.24 For the avoidance of doubt, if a Minister accepts hospitality in a Ministerial capacity valued at more than £140, this should be included in the quarterly publication of Ministerial gifts. In addition, hospitality valued at more than 0.5% of a Member's salary (rounded down to the nearest £10) must also be declared in the Register of Interests of Members of the Scottish Parliament.

Acceptance of Appointments after Leaving Government Office

11.25 On leaving office, Ministers will be prohibited from lobbying Government for two years. They must also seek advice from the independent Advisory Committee on Business Appointments about any appointments or employment they wish to take up within two years of leaving office.^[34] Former Ministers must ensure that no new appointments are announced, or taken up, before the Committee had been able to provide its advice. Former Ministers must abide by the advice of the Committee.