Scottish Ministerial Code: 2024 Edition

Part B – Ministers’ Interests

Chapter 3: Ministers’ Private Interests

General Principle

3.1 Ministers are appointed to serve the public and must ensure that no conflict arises, or could reasonably be perceived to arise, between their public duties and their private interests, financial or otherwise. This is an ongoing duty that applies throughout a Minister’s period in office.

Responsibility for Avoiding a Conflict

3.2 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 and the Cabinet Secretariat.

3.3 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

3.4 On appointment to each new office, Ministers must provide the Permanent Secretary with a full declaration in writing of private interests which might be thought to give rise to a conflict in relation to their Ministerial office, actual or perceived. The declaration should also cover interests of the Minister’s spouse or partner and close family members 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.

3.5 The Permanent Secretary will review the Minister’s declaration of interests in light of their responsibilities and in discussion with the Minister advise on actions needed to manage any interests. Ministers must record in writing what action has been taken and provide the Permanent Secretary with a copy of that record.

3.6 Ministers have an ongoing duty to ensure that their declarations are kept up to date and will be expected to inform the Permanent Secretary at the earliest opportunity of any relevant change in their interests.

3.7 A list of each Ministers' declared interests will be published on the Scottish Government website within a reasonable period following their appointment and in line with Freedom of Information and Data Protection legislation. Each year, during Parliament’s summer recess, the Cabinet Secretariat will remind 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. While the published lists of Ministers' interests will be reviewed and, where necessary, updated on at least an annual basis, Ministers are expected to notify the Permanent Secretary as soon as they are aware of any relevant change and the published list of interests will be updated promptly once any required action has been agreed.

3.8 At each annual review of Ministers’ declared interests, the First Minister’s Independent Advisers will be invited to provide independent assurance about the process followed by the Cabinet Secretariat to support Ministers in managing their private interests.

3.9 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.

3.10 Ministers must scrupulously avoid any danger of an actual or perceived conflict of interest between their Ministerial position and their private 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 or mitigate it. In reaching their decision, Ministers should be guided by the advice given to them by the Permanent Secretary and the Cabinet Secretariat. 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 Interests are Retained

3.11 Where it is decided that a Minister can retain an interest, financial or otherwise, 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.

3.12 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

3.13 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.^[11]

Public Appointments and Association with Non-Public Bodies

3.14 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.

3.15 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.

3.16 Once in office, 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 themself with a charity, subject to the points above, particularly where the commitment dates from before the Minister took office. However, in all instances, 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

3.17 Ministers are entitled to hold trade union membership and to engage as Ministers with trade unions of which they are a member, 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

3.18 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

3.19 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

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

Acceptance of Gifts and Hospitality

3.21 Ministers have a responsibility to represent the government, engage with stakeholders and support relevant sectors of Scotland’s economy. These responsibilities will require Ministers to attend functions and events in a Ministerial capacity, including those where hospitality may be offered.

3.22 However, it is a well-established and recognised rule that Ministers should not accept gifts, hospitality or services which would, or might appear to, compromise their judgement or place them under an obligation to people or organisations that might try to influence their work in government. The same principle applies if gifts, etc. are offered to a close member of their family.

3.23 This is primarily a matter which must be left to the good sense of Ministers who are personally responsible for deciding how to act and conduct themselves in compliance with the Ministerial Code and for justifying their actions and conduct to Parliament and the public.

3.24 In addition, when attending events, Ministers should be mindful of their obligations at paragraphs 8.13 and 8.14, ensuring discussions relating to government business are appropriately recorded.

3.25 The following specific rules apply to the acceptance of gifts and hospitality:

• 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.

3.26 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. If over the course of a session a member receives a number of gifts from a single source, each of which is below the threshold, but which cumulatively exceed it, the member is required to register them.

3.27 The Scottish Government will publish on a quarterly basis, a list of Ministerial Engagements, Travel and Gifts three months in arrears. Where Ministers attend events in their Ministerial capacity, these are recorded as official business and published as Engagements in this list. This report will also include gifts received by Ministers valued at more than £140. The list provides details of the value of each gift 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 Business Management Team to allow the publication of gifts valued at more than £140.

3.28 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.^[12] In deciding whether to accept, Ministers should be mindful, in whichever capacity they are acting, of the associated need to maintain the public’s confidence in the standards of propriety among Ministers. Ministers should also take into account any relevant security considerations in making those decisions.

3.29 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 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 (see further information on this at paragraph 3.26 above).

3.30 In cases of doubt about the application of these principles to a particular situation, Ministers should seek advice from the Permanent Secretary, who may also consult the Cabinet Secretariat.

Contact with Commercial Companies

3.31 Regardless of their responsibilities, all Ministers will come into contact with private sector businesses from time to time. Invitations to functions and events are commonplace and are part of Ministerial life. It is for Ministers themselves to judge whether to accept any invitation extended to them, but they should satisfy themselves that doing so does not place them under any real or perceived obligation nor risk the commercial position of the Government. Ministers should be guided by the principles set out below in coming to a decision.

3.32 Ministers are free to accept hospitality provided by private sector companies in the course of their duties (see also the guidance on acceptance of gifts and hospitality in paragraphs 3.21 to 3.30). However, Ministers should consider very carefully any repeated or serial hospitality from an individual or a company. Ministers need to be sensitive to the risk that private sector interests might occasionally attempt to use occasions to exercise influence on the Minister.

3.33 Ministers should also avoid promoting an individual company’s products or services by association. They should also bear in mind public sector procurement procedures and resist any attempt to influence them in favour of particular products or services. If such attempts are experienced, Ministers should report these to the Director with responsibility for procurement. However, nothing in this Code should be taken as preventing Ministers from fulfilling their proper function of encouraging investment in economic activity to the benefit and prosperity of the people of Scotland.

3.34 Formal invitations which are sent to Ministers are usually subject to a process which allows relevant officials in the Scottish Government to brief the Minister on the appropriateness of accepting the invitation, including matters such as company performance, commercial interests the company might have with the Government, etc. Informal approaches should be treated with caution, and Private Offices should seek advice from the appropriate Directorate if the Minister is in any doubt.

3.35 Ministers should also have regard to the Code of Conduct for Members of the Scottish Parliament – Volume 2, Section 5 on Lobbying and Access to MSPs^[13] which provides guidance on the relationship between lobbyists and MSPs (see also paragraph 8.16 of this Code on the requirements of the Lobbying (Scotland) Act 2016).

3.36 Paragraphs 8.13 to 8.16 and 9.17 to 9.18 of this Code provide further guidance on meetings with external individuals and organisations, including outside interest groups, lobbyists and the media, including those meetings where an official is not present.

Chapter 4: Ministers’ Constituency and Party Interests

General Principle

4.1 Facilities provided to Ministers at Government expense to enable them to carry out their official duties should generally not be used for party or constituency work. Where Ministers have to take decisions which might have an impact on the constituency or region which they represent as an MSP, they should take particular care to avoid any possible conflict of interest.

Use of Government Property and Resources

4.2 Government property should not generally be used for constituency work^[14] or party-political activities. A particular exception is recognised where a building has been designated as the First Minister’s official residence. Where Ministers host party or personal events in the First Minister’s official residence, it should be at their own or at party expense, with no cost falling on the public purse.

4.3 Official facilities and resources may not be used for the dissemination of material which is essentially party political. The conventions governing the work of Government Communications staff are set out in the Propriety Guidance issued by the Government Communication Service.^[15] Similar conventions apply to special advisers in their work to assist Ministers in the presentation of Scottish Government policy, as set out in the Code of Conduct for Special Advisers^[16] (see also paragraphs 7.14 to 7.18).

References for Constituents

4.4 On occasions, Ministers are asked to provide personal or job references for constituents. Ministers may only do this provided they make clear that they are doing so as an MSP and not as a Minister. Particular care must be taken, however, to avoid any conflicts of interest; in some cases, it may not be appropriate for a Minister to provide a reference, even as an MSP. For example, Ministers should not provide references for jobs in the public sector for which their portfolio is responsible.

Constituency Interests

4.5 Where Ministers have to take decisions within their area of portfolio responsibility which might have an impact on their own constituency or region, they must take particular care to avoid any possible conflict of interest. They should advise the Permanent Secretary and, in the case of junior Scottish Ministers, the relevant Cabinet Secretary of the interest, and responsibilities should be arranged to avoid any conflict of interest.

4.6 Ministers are free to make their personal and their electorate’s views about constituency matters known to the responsible Minister by correspondence, leading deputations or by personal interview, provided they make clear that they are acting as an MSP and not as a Minister.

4.7 Where the Minister also holds the relevant portfolio, further measures are likely to be needed to manage any possible conflict. If the matter is minor, the Minister may be able to pass it to officials for consideration. If the matter is more significant, the Minister may instead pass Ministerial responsibility for it to another Minister.

4.8 Alternatively, the Minister may retain ministerial responsibility for the matter and ask another member of Parliament (for example, a local regional list member, the member from a neighbouring constituency, or a member with a particular interest in the issue) to represent the constituency on the matter.

4.9 As with all conflicts of interest, Ministers should exercise careful judgement about possible conflicts between their constituency interests and their Ministerial roles. They need to be alert at all times to the possibility that a conflict might exist or be perceived to exist. The Permanent Secretary, with support from the Cabinet Secretariat, is available to advise in cases of doubt.

4.10 Ministers are advised to take particular care in cases relating to infrastructure investment and planning applications in the constituency or region which they represent, or in other similar cases. Particular care is required when expressing views on cases involving exercise of discretion by Ministers (such as school or hospital closures), where representations intended to be taken into account in reaching a decision may have to be made available to other parties and thus may well receive publicity.

4.11 In all such cases, it is important that Ministers should:

• Make clear that the views they are putting forward are ones expressed in their capacity as the MSP representing a particular electorate;
• Avoid criticism of the Government’s policies; and
• Confine themselves to comments which could reasonably be made by those who are not Ministers.

4.12 Once a decision has been announced, it should be accepted without question or criticism. It is important that Ministers, in expressing the views of their electorate, do so in a way that does not create difficulty for the Ministers who have to take the decision and that they bear in mind the Government’s collective responsibility for the outcome. Ministers should also take account of any potential implications which their comments might have in their own field of portfolio responsibility.

4.13 Particular care also 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 advise the Permanent Secretary and write to the Minister responsible, as with constituency cases, but they should make clear their personal connection or interest. The responsible Minister should ensure that any enquiry is handled without special treatment.

4.14 Additional guidance specific to planning cases and energy consents is set out in paragraphs 5.6 to 5.8 below.

Lottery Bids

4.15 In order to avoid the impression that Ministers are seeking to influence decisions on awards of Lottery money, Ministers should not normally give specific public support for individual applications for Lottery funding. Where a Minister wishes to lend support to a specific project as constituency or regional MSP for a potential Lottery application, they should be guided by the principles set out in paragraphs

4.10 to 4.12. Ministers lending support to a specific project should do so on the very clear understanding that it is in their capacity as an MSP.

Scottish Public Services Ombudsman Cases

4.16 The Scottish Public Services Ombudsman (SPSO) was established by the Scottish Public Services Ombudsman Act 2002 and is the final stage for complaints about most public services in Scotland. Members of the public may submit complaints directly to the SPSO, but they may also choose to approach their MSP for assistance or ask them to act as their representative in dealing with the SPSO. When Ministers are asked by members of the public for assistance in dealing with the SPSO, they should, where possible, act no differently from MSPs who are not Ministers. Ministers should accordingly consider requests on their merits in deciding whether to refer a complaint to the SPSO, or to refer the case to the relevant Minister, or to decline to take action. Where the complainant is not from the

Minister’s constituency or region, the Minister may wish to refer the case to an MSP who represents the relevant constituency or region. Any Minister who is minded to provide assistance in relation to a case referred to the SPSO should inform the Minister responsible for the portfolio concerned in advance.

4.17 Where a complaint is about a matter for which the Minister is responsible, the Minister may wish to investigate it personally unless they, or one of the other Ministers in their portfolio, has already been directly involved in the case. Where a Minister has been so involved, the SPSO should be asked to investigate if the case is within the Ombudsman’s jurisdiction; and there may be other circumstances in which a Minister will prefer to refer a case to the SPSO straight away. Ministers should decide for themselves whether or not it is appropriate for them to become involved in a case, and they should be aware that their choosing not to become involved shall in no way preclude the submission of a complaint to the SPSO.

Parliamentary Commissioner for Administration

4.18 A complaint brought to the attention of a Minister may fall outwith the remit of the Scottish Public Services Ombudsman but instead lie within the remit of the Parliamentary Commissioner for Administration (PCA) (commonly known as the Parliamentary Ombudsman).^[17] Scottish Ministers do not have the power to refer such complaints directly to the PCA. Ministers should instead draw the complaint to the attention of the complainant’s MP or advise the complainant to ask their MP to refer the complaint to the PCA.

Chapter 5: Ministers’ Engagement on Planning Matters, including the Granting of Energy Consents

General Principle

5.1 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

5.2 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

5.3 To help ensure the fairness and transparency of the planning system, the Planning Minister^[18] 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 themself from any involvement in the case:

(i) if the application fell within their constituency or region; or

(ii) if the Minister had expressed a personal view on the proposal; or

(iii) if the Minister considered that their 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. 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, they would be unable to add to the terms of the relevant decision letter.

Other Ministers with a Particular Interest

5.4 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.

5.5 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

5.6 The general guidance at 4.5 to 4.13 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.

5.7 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 4.11 above;

(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 their 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 4.5 to 4.13; and

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

5.8 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 4.5 to 4.13.

The First Minister

5.9 The guidance set out in paragraphs 5.6 to 5.8 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 their role as an MSP and their 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 they are acting or expressing a view as a constituency or regional MSP, those actions or views are not misinterpreted as being directive.

5.10 The First Minister should avoid making any public statement about the merits of a planning application (even in their 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 they are acting as constituency or regional MSP are particularly sensitive, they have the option of consulting the Permanent Secretary.