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.