Scottish Ministerial Code: 2024 Edition

Chapter 7: Ministers and Appointments

General Principle

7.1 Ministers have a duty to ensure that influence over Civil Service and public appointments is not abused for partisan purposes.

Civil Service Appointments

7.2 Civil Service appointments must be made in accordance with the requirements of the Constitutional Reform and Governance Act 2010^[20] and the Civil Service Commissioners’ Recruitment Principles.^[21]

Selection Principles for Public Appointments

7.3 Public appointments should be made in accordance with the requirements of the law and, where appropriate, the Code of Practice for Ministerial Appointments to Public Bodies in Scotland issued by the Commissioner for Ethical Standards in Public Life in Scotland.^[22]

7.4 National devolved public bodies in Scotland operate to a greater or lesser extent at arm’s length from Ministers and the Scottish Government. Details of the relevant public bodies may be found in the National Public Bodies Directory published by the Scottish Government.^[23] The role of the Chair and board members of a public body, appointed by Ministers, is to provide effective leadership, direction, support and guidance to the organisation and to ensure that the Government’s policies and priorities are implemented. The board is the bridge between the Minister who approves the corporate business plans and key performance targets of the body, and the Chief Executive and senior management team, who aim to ensure that plans are delivered and targets met through effective and properly controlled executive action.

7.5 In general (and subject to the constitution of the body to which the appointment is being made), public appointments to the boards of public bodies are the responsibility of Ministers. The Minister will appoint the person they consider to be best qualified for the position, based on specific criteria. In doing so, the Minister should have regard to public accountability, the requirements of the law and, where relevant, the Code issued by the Commissioner for Ethical Standards in Public Life in Scotland.

7.6 Appointment on merit is fundamental and applies to all Scottish public appointment procedures, irrespective of whether they are regulated by the Commissioner for Ethical Standards in Public Life in Scotland. Further information and advice on the Code issued by the Commissioner, its implications for Ministers, and Ministers’ specific responsibilities are available from the Scottish Government Public Appointments Team.

The Role of the First Minister and Other Ministers with a Particular Interest

7.7 The First Minister should always be copied into any initial submission seeking commencement of a new public appointment round, or the re-appointment of, or extension of the appointment of a Chair of a public body.

7.8 Final submissions seeking a decision on the appointment of a Chair of a public body should always be sent to the appointment Minister and the First Minister. Publicising the announcement of any new Chair should not take place until the First Minister has confirmed the appointing Minister’s decision.

7.9 The First Minister must be consulted about any appointment which is likely to have political significance. Ministers should take a wide view of what constitutes political significance. Even local or regional appointments may from time to time excite an unusual amount of public interest because of the circumstances surrounding the appointment or the background of the candidate. In all cases involving political considerations, submissions to the First Minister should be copied to the Minister for Parliamentary Business.

7.10 The Cabinet Secretary with responsibility for Finance must approve all initial submissions for new appointments which have advertising costs. All initial submissions which have associated advertising costs must be sent to the Cabinet Secretary with responsibility for Finance as well as to the appointing Minister. No appointment round which has associated advertising costs should commence without clearance by the Cabinet Secretary for Finance.

7.11 The Lord Advocate should be consulted where it is proposed to appoint a judge or legal officer (e.g. a Scottish Law Commissioner) to a Royal Commission or a public inquiry. In such cases, it may be preferable for the individuals concerned to be approached by the Lord Advocate, rather than by officials.

7.12 The Minister for Parliamentary Business should always be consulted before an MSP is approached about appointment to any office which would result in the vacation of a Parliamentary seat.

7.13 In all cases where a submission is to be put to the First Minister for approval, no commitment should be made to any individual before the First Minister has commented. In the case of Royal Commissions or public inquiries, the First Minister and the Lord Advocate should be consulted before any informal soundings are undertaken. In other cases, any informal soundings should be made in such a way as to preserve freedom of action and avoid any appearance of commitment.

Special Advisers

7.14 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.

7.15 Under the terms of the Constitutional Reform and Governance Act 2010, the First Minister is responsible for all special adviser appointments.^[24] 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.

7.16 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.^[25] 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.

7.17 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.

7.18 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.

Parliamentary Liaison Officers

7.19 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.

7.20 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.

7.21 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.

7.22 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.

7.23 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.^[26]

7.24 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.

7.25 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.