Scottish Ministerial Code: 2024 Edition

Chapter 2: Ministers’ Adherence to the Code

General Principle

2.1 The First Minister is the ultimate judge of the standards of behaviour expected of a Minister and the appropriate consequences of a breach of those standards.

Application of the Code

2.2 The Ministerial Code provides guidance to Ministers on how they should act and arrange their affairs in order to uphold the Ministerial standards set out in this Code. It lists the principles which may apply in particular situations, drawing on past precedent, but it is not a rulebook.

2.3 The Permanent Secretary, supported by the Cabinet Secretariat, may provide Ministers with advice on matters which the Code covers and will ensure procedures are in place to support compliance with the Code. It is not, however, the role of the Permanent Secretary or other officials to enforce the Code.

2.4 Ministers are personally responsible for deciding how to act and conduct themselves in the light of the Ministerial Code and for justifying their actions to Parliament and the public. Although the First Minister will not expect to comment on every matter which could conceivably be brought to their attention, Ministers can only remain in office for so long as they retain the First Minister’s confidence.

2.5 The Code applies to all Scottish Ministers and covers Parliamentary Liaison Officers in paragraphs 7.19 to 7.25. The Business Appointment Rules and the Radcliffe Rules continue to apply to former Ministers after they leave office. See also paragraphs 12.1 and 12.2 in Chapter 12 on Ministers’ Obligations on Leaving Office.

Role of the Independent Advisers

2.6 The First Minister’s Independent Advisers on the Ministerial Code have a role, set out in their Terms of Reference^[9] published by the First Minister, in advising the First Minister about adherence to the Code. Investigations into adherence to the Ministerial Code may occur:

(a) If there is an allegation about a breach of the Code and the First Minister, having consulted the Permanent Secretary, feels that it warrants further investigation, the First Minister may (i) ask the Permanent Secretary, supported by Propriety and Ethics Directorate, to investigate the facts of the case and/or (ii) refer the matter to the Independent Advisers on the Ministerial Code.

(b) Where the Independent Advisers believe that an alleged breach of the Code warrants further investigation and that matter has not already been formally referred to the Advisers by the First Minister, they may initiate an investigation after notifying the First Minister. Ministers are expected to provide the Independent Advisers with all information reasonably necessary for the discharge of their role.

2.7 Where the First Minister determines that a breach of the expected standards has occurred, they may ask the Independent Advisers for advice on the appropriate sanction. The final decision rests with the First Minister.

2.8 The Independent Advisers should take steps to ensure that no perceived or actual conflict of interest arises between their private interests and any work they undertake on the Ministerial Code. Further information on this is provided in the Terms of Reference^[10] of the Independent Advisers.

2.9 The findings of the Independent Advisers will be published in a timely manner after the case has been decided by the First Minister.

2.10 Where a complaint about the behaviour of the First Minister by a civil servant is upheld under the procedure for making a formal complaint about a Minister’s or former Minister’s behaviour, either the Deputy First Minister or the First Minister may refer the matter to the Independent Advisers to consider whether there has been a breach of the Ministerial Code.

Updating the Scottish Ministerial Code

2.11 The Scottish Ministerial Code is typically updated after each Scottish Parliament election and following a change in First Minister, though the First Minister is free to publish a new edition of the Code at any time. The Ministerial Code is the First Minister’s document, and its content is a matter for the First Minister. Before publishing a new Code, the First Minister will consult the Independent Advisers on the Ministerial Code and take account of their views. The Independent Advisers are free to recommend improvements to strengthen the Ministerial Code to the First Minister at any time, including following any investigations they undertake.