Scottish Ministerial Code: 2023 Edition

4. Ministers and their Responsibilities

General Principle

4.1 The First Minister is responsible for the overall organisation of the Government and the allocation of functions between Ministers in charge of portfolios.

Appointment of the First Minister

4.2 A First Minister must secure nomination at the start of each new Parliamentary session following a vote by MSPs, in accordance with Chapters 4 and 11 of the Standing Orders of the Scottish Parliament.^[8] Once a member has been nominated, the Presiding Officer recommends the appointment to His Majesty The King . The appointment is made by His Majesty by Royal Warrant. The Warrant is presented to the Lord President in the Court of Session when the First Minister is sworn in.

Ministerial Responsibilities and Titles

4.3 The First Minister is responsible for the overall organisation of the Government and the appointment of all Cabinet Secretaries and junior Scottish Ministers. Before seeking approval for their appointment as a Minister the First Minister must first establish whether that person has been the subject of an upheld or partially upheld complaint, including any informal process or with any formal process against them under a relevant Scottish Government procedure or process. It is a condition of appointment that a prospective Minister must provide a full and honest account to the First Minister about any relevant matters. Ministerial appointments are subject to approval by His Majesty. Before seeking approval, the First Minister must first secure the agreement of the Parliament. The First Minister is also responsible for recommending the appointment of the Law Officers. These appointments are made by His Majesty by Royal Warrant. The agreement of the Parliament must be obtained before a recommendation is made.

4.4 The structure and allocation of Ministerial portfolios are matters for the First Minister. The allocation of functions among Ministers is the responsibility of the First Minister, whose approval must be sought where any changes are proposed that affect this allocation or the responsibilities for the discharge of Ministerial functions. All Ministerial titles, and any proposed changes to them, must be approved by the First Minister.

Membership of the Cabinet

4.5 Membership of the Cabinet and decisions on attendance at Cabinet meetings are matters for the First Minister.

Ministers' Availability

4.6 The First Minister's office should be kept informed of Ministers' engagements, and also of their weekend and holiday arrangements, so that, if a sudden emergency arises, the First Minister can be informed which Ministers are immediately available. As set out at paragraph 9.7, any Minister who wishes to be absent from the UK for official or personal business must seek the approval of the Cabinet Secretary with responsibility for External Affairs.

4.7 When a Minister will be unable to be contacted for a considerable period because of absence or illness, it may be desirable that arrangements should be made for another member of the Government to be available to cover for them and to represent their interests in discussions in Cabinet or in any other collective Ministerial meetings. The First Minister's prior approval should be sought for the arrangements for cover for an absent Minister.

Maternity and other leave

4.8 Ministers may take extended absence from Government for maternity, shared parental, paternity or adoption leave. The First Minister will agree the terms of such leave and take any steps necessary to arrange for the discharge of that Minister's responsibilities for the period in question.

Parliamentary Liaison Officers

4.9 The First Minister may, on the recommendation of a Cabinet Secretary, and following consultation with the Minister for Parliamentary Business, appoint an MSP as a Parliamentary Liaison Officer (PLO) to support the Cabinet Secretary in the discharge of their Parliamentary duties.

4.10 No approach should be made to a potential PLO without the prior approval of the First Minister and the Minister for Parliamentary Business. Appointment as a PLO can be terminated at any time by the First Minister, following consultation with both the Cabinet Secretary whom the PLO has been appointed to assist and the Minister for Parliamentary Business.

4.11 PLOs are not members of the Scottish Government and may not stand in for Cabinet Secretaries or other Ministers at media or other events. They should also exercise discretion in any speeches or broadcasts which they may make, taking care not to make statements which appear to be made in an official or semi-official capacity. PLOs may serve on Parliamentary Committees, but they should not serve on Committees with a substantial direct link to their Cabinet Secretary's portfolio.

4.12 PLOs may be invited to attend official meetings and may be given access to Government information. Such access should be solely for the purpose of allowing PLOs to discharge their role effectively, and on a strictly confidential basis. PLOs should not, however, have access to information with a protective marking of secret or above. PLOs are required to exercise care in the use of any official information to which they have access in the course of their duties as a PLO and, in particular, should respect the confidentiality arrangements.

4.13 Although PLOs are not subject to the rules on private interests which apply to Ministers, they must ensure that no conflict arises, or appears to arise, between their role as a PLO and their private interests. They are in any case bound by the requirements of the Code of Conduct for Members of the Scottish Parliament.^[9]

4.14 PLOs undertaking visits within the United Kingdom relating to their duties as a PLO may receive the normal Civil Service travel and subsistence allowances, as would any other MSP undertaking work for the Government.

4.15 At the beginning of each Parliamentary session, or when changes to PLO appointments are made, the Minister for Parliamentary Business will advise Parliament which MSPs have been appointed as PLOs. The Minister for Parliamentary Business will also ensure that PLO appointments are brought to the attention of Committee Conveners. PLOs must declare their appointment as a PLO on each occasion when they are participating in Parliamentary business related to the portfolio of their Cabinet Secretary.

Special Advisers

4.16 Special advisers provide assistance to Ministers in the development of Scottish Government policy and its presentation. The appointment of special advisers also reinforces the political impartiality of the permanent Civil Service by providing a separate channel for political advice and assistance available to Ministers.

4.17 Under the terms of the Constitutional Reform and Governance Act 2010, the First Minister is responsible for all special adviser appointments.^[10] If the First Minister ceases to hold office, the appointments of all special advisers appointed by them also end. The First Minister is responsible for deciding on the distribution of all special adviser posts within the Scottish Government, whether in support of individual Ministers or as a collective resource.

4.18 All special advisers (paid or unpaid) will be appointed by the First Minister under the terms and conditions set out in the Model Contract for Special Advisers and the Code of Conduct for Special Advisers.^[11] Salaries for special advisers are determined either by a Special Advisers Remuneration Committee or by any alternative mechanism that may be put in place following discussion and agreement with the First Minister.

4.19 The responsibility for the management and conduct of all special advisers (paid or unpaid), including discipline, rests with the First Minister. It is open to the First Minister to terminate employment by withdrawing their consent to an individual appointment.

4.20 Under the terms of the Constitutional Reform and Governance Act 2010, the Scottish Government is required to prepare an annual report setting out the numbers, names and pay bands of special advisers and their overall salary cost and to lay it before the Scottish Parliament.

Royal Commissions and Public Inquiries

4.21 The First Minister should be consulted in good time about any proposal to set up:

(a) Royal Commissions in relation to devolved matters; and

(b) Public inquiries into any aspect of policy on devolved matters.

4.22 Submissions proposing either of the above should contain details of the proposed size and structure of the body. This requirement is separate from the provisions concerning public appointments set out in Section 5 below.

Contacts with External Individuals and Organisations, including Outside Interest Groups and Lobbyists

4.23 Ministers meet many people and organisations and consider a wide range of views as part of the formulation of Government policy. Meetings on official business should normally be arranged through Private Offices. A private secretary or official should be present for all discussions relating to Government business. Private Offices should arrange for the basic facts of formal meetings between Ministers and outside interest groups to be recorded, setting out the reasons for the meeting, the names of those attending and the interests represented. A monthly list of engagements carried out by all Ministers is published three months in arrears.

4.24 If Ministers meet external organisations or individuals and find themselves discussing official business without an official present – for example at a party conference, social occasion or on holiday – any significant content (such as substantive issues relating to Government decisions or contracts) should be passed back to their Private Offices as soon as possible after the event, who should arrange for the basic facts of such meetings to be recorded in accordance with paragraph 4.23 above.

4.25 See also paragraphs 9.27 to 9.32, 10.18 and 10.19, which provide guidance on contacts with commercial companies and meetings with external groups and the media, respectively.

Requirements of the Lobbying (Scotland) Act 2016

4.26 Ministers should also have regard to the Lobbying (Scotland) Act 2016, which established the Lobbying Register overseen by the Scottish Parliament. The purpose of the Register is to increase public transparency of lobbying activity in Scotland. The requirement to register any relevant lobbying activity lies with those who lobby, and not with Ministers, the Permanent Secretary or Special Advisers or their support staff. Ministers and officials should be familiar with the duties placed on lobbyists under the 2016 Act. Lobbyists seeking guidance about whether or not any communications made during a meeting are registrable should be directed to the Lobbying Register Team in the Scottish Parliament.^[12]