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Scottish Ministerial Code
2. MINISTERS AND THE EXECUTIVE
The Scottish Executive
2.1 The Scottish Executive consists of the First Minister, other Scottish Ministers appointed by the First Minister under Section 47 of the Scotland Act 1998, the Lord Advocate and the Solicitor-General for Scotland. Most of the functions exercisable by Ministers within the Executive are conferred upon the Scottish Ministers collectively. However these functions do not require to be exercised jointly by all the Scottish Ministers. Section 52(3) of the Scotland Act provides that any member of the Executive can exercise any of the functions of the Scottish Ministers. And Section 52(4) provides that any act or omission of any member of the Executive is legally the act or omission of each of them.
Collective Responsibility
2.2 The Executive operates on the basis of collective responsibility. The internal processes through which a decision has been made should not be disclosed. Decisions reached by the Executive are binding on all its members. Ministers are required to abide by them and defend them as necessary. Such decisions are, however, normally announced and explained as the decision of the Minister concerned. On occasion it may be desirable to emphasise the importance of a decision by stating explicitly that it is the decision of the Scottish Executive; but this is very much the exception rather than the rule.
2.3 Collective responsibility requires that Ministers should be able to express their views frankly in the expectation that they can argue freely in private while maintaining a united front when decisions have been reached. This in turn requires that the privacy of opinions expressed and advice offered within the Executive should be maintained. It is therefore essential that, subject to the guidelines on the disclosure of information set out in the Code of Practice on Access to Scottish Executive Information, Ministers take the necessary steps to ensure that they and their staff preserve the privacy of Executive business and protect the security of Executive documents. ( See also paragraphs 2.19-2.21 below.)
2.4 Collective responsibility as defined above also applies to any junior Scottish Ministers who are appointed by the First Minister under the terms of Section 49 of the Scotland Act even though they are not members of the Executive.
2.5 The one exception to the doctrine of collective responsibility is the decisions taken by the Lord Advocate in his capacity as head of the systems of criminal prosecution and investigation of deaths in Scotland. In acting in that capacity, the Lord Advocate acts independently of other Ministers.
Cabinet Business
2.6 The Cabinet normally meets weekly. Its business consists, in the main, of questions which significantly engage the collective responsibility of the Executive, either because they raise major issues of policy or because they are of critical importance to the public.
2.7 Matters which do not significantly engage collective responsibility need not be brought to the Cabinet unless the Minister or Ministers concerned wish to have the advice of colleagues in a full meeting of the Cabinet. A precise definition of such matters cannot be given; as a general rule, however, Ministers should put before their colleagues the sorts of issues on which they themselves would wish to be consulted.
2.8 Issues should not be brought to Cabinet until there has been appropriate consultation with Ministers with a direct portfolio interest and their views have been fully reflected in the paper. Questions involving more than one Minister which require collective consideration in the Cabinet should be examined by the officials concerned before submission to the Cabinet so that the decisions required may be clearly defined. When there is a difference between Ministers, it should not be referred to the Cabinet until other means of resolving it have been exhausted, including discussions between the Ministers concerned.
Cabinet Correspondence
2.9 Cabinet Correspondence enables Cabinet to reach decisions on issues which, while requiring collective agreement by the Cabinet, do not necessarily require to be discussed around the Cabinet table. As with Cabinet papers, Cabinet Correspondence should only be used once appropriate consultation has been undertaken with Ministers with a direct portfolio interest and their views have been fully reflected in the correspondence.
2.10 There are no hard and fast rules for when Cabinet Correspondence might be appropriate, but it is best used, for example, for securing sign-off for specific policy proposals or the near final text of a consultation paper or other document. It is not a particularly effective mechanism for seeking colleagues' views on an issue (rather than inviting comments on specific proposals or recommendations) and should not be used to seek agreement to draft documents which Ministers with a direct portfolio interest are effectively seeing for the first time. Cabinet Secretariat is available to assist with consideration of whether Cabinet Correspondence is appropriate in individual cases.
Ministerial Discussions below the Level of the Cabinet
2.11 Collective Ministerial discussions can take place in a variety of fora below the level of the Cabinet. The Cabinet may establish a Cabinet Sub-Committee, Delivery Group or Ad Hoc Group of Ministers that may also include junior Scottish Ministers. Alternatively a one-off meeting involving the Ministers concerned may be arranged. Any collective Ministerial meeting should be minuted with decisions and any outstanding issues recorded clearly.
2.12 Collective Ministerial meetings below the level of the Cabinet have 2 main purposes. First they relieve the pressure on the Cabinet itself by enabling as much business as possible to be settled at a lower level; or, failing that, by clarifying the issues and defining the points of disagreement. Second, they support the principle of collective responsibility by ensuring that, even though an important question may never reach the Cabinet itself, the decision will be fully considered and the final judgement will be sufficiently authoritative to ensure that the Executive as a whole can properly be expected to accept responsibility for it.
2.13 If the Cabinet agrees to delegate an issue to a Cabinet Sub-Committee or Delivery Group and a Minister is dissatisfied with the conclusions, the First Minister will entertain an appeal to the full Cabinet only after consultation with the Deputy First Minister.
2.14 More detailed guidance on the arrangements for collective decision-making in the Executive is set out in a separate Guide to Collective Decision-Making.
Priority of Cabinet Meetings
2.15 Cabinet meetings take precedence over all other business although it is understood that there may occasionally be exceptional circumstances (e.g. Parliamentary business or business overseas) which mean that a Minister may have to be absent. Requests by Ministers for permission to be absent from Cabinet should be made only in such exceptional circumstances, and should be made at the earliest opportunity and by means of a personal minute to the First Minister. A minute is not necessary when the reason for absence from a Cabinet meeting is an overseas visit for which the First Minister's approval has already been obtained. Minutes seeking the First Minister's approval for overseas visits or for absence for any other reason should be copied to the Permanent Secretary and the Cabinet Secretariat.
Attendance at Meetings of Cabinet Sub-Committees, Delivery Groups and Ad Hoc Groups of Ministers
2.16 Attendance at meetings of Cabinet Sub-Committees, Delivery Groups and Ad Hoc Groups of Ministers should take precedence over most other business - the principal exception being business in the Parliament where the Minister's attendance is essential. Ministers' Offices should not therefore arrange any engagements for their Minister (and nor should Ministers themselves arrange any business) which would be likely to conflict with a meeting of a Committee or Group of which their Minister is a member.
2.17 If, after a meeting date has been fixed, a Minister finds that he/she has to withdraw from a meeting, he/she must send a personal minute to the Chair explaining the circumstances which necessitate such withdrawal. The minute should be copied to the First Minister, the Permanent Secretary and the Cabinet Secretariat.
2.18 If, exceptionally, a Minister is unable to attend a meeting of a Committee or Group of which he/she is a member, he/she should try to arrange for his/her Deputy to attend in his/her place.
Confidentiality of Documents Etc
2.19 Ministers relinquishing office without a change of Executive should hand over to their successors those official documents which are required for current administration and should ensure that any others which bear a protective marking have been destroyed. By convention, former Ministers are allowed reasonable access to official papers which they saw when they were in office. Such access is limited to that Minister personally, and the papers made available for inspection cannot therefore be copied or taken away. The use made of those papers is limited by the need to ensure that the conventions about confidentiality of exchanges between Ministers and civil servants' advice to Ministers are not breached. Approaches in these cases should be made in the first instance to the Permanent Secretary's office.
2.20 Ministers may think it wise to make provision in their wills against the improper disposal of any official documents which they might have retained in their possession by oversight.
2.21 The principle of collective responsibility and the confidential nature of discussions between Ministers and their civil servants impose certain obligations on former Ministers who are contemplating the publication of material based upon their recollection of the conduct of Executive business in which they took part. They are required to submit their manuscript to the Permanent Secretary and to conform with the principles set out in the Radcliffe Report of 1976 (Cmnd 6386).
The Law Officers
2.22 The Law Officers must be consulted in good time before the Executive is committed to critical decisions involving legal considerations. The opinion of the Law Officers should normally be obtained on a reference from the Solicitor to the Scottish Executive. It will normally be appropriate to consult the Law Officers in cases where:
(a) The legal consequences of action by the Executive might have important repercussions in the foreign, European Union or domestic fields;
(b) A legal adviser in the Scottish Executive has doubts about the legality or constitutional propriety of proposed legislation or executive action, particularly where it concerns any devolution issue within the meaning of paragraph 1 of Schedule 6 to the Scotland Act 1998;
(c) Ministers, or their officials, wish to have the advice of the Law Officers on questions involving legal considerations which are likely to come before the Cabinet or any other collective Ministerial meeting; or
(d) There is a particular legal difficulty that may raise political aspects of policy.
It is expected that the written opinions of the Law Officers, unlike other Ministerial papers, will generally be made available to succeeding Administrations.
2.23 The fact and content of opinions or advice given by the Law Officers, either individually or collectively, must not be disclosed publicly without their authority.
Civil Legal Proceedings
2.24 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.
2.25 In criminal proceedings the Law Officers act wholly independently of the Executive. In civil proceedings a distinction is to be drawn between proceedings in which the Law Officers are involved in a representative capacity on behalf of the Executive, and action undertaken by them on behalf of the general community to enforce the law as an end in itself.
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