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Scottish Ministerial Code
4. MINISTERS AND THEIR RESPONSIBILITIES
Ministerial Responsibilities and Titles
4.1 The First Minister is responsible for the overall organisation of the Executive. Scottish Ministers and junior Ministers are appointed by him, following consultation with the Deputy First Minister. Such appointments are also subject to the agreement of the Parliament and the approval of The Queen.
4.2 The structure of portfolios and their allocation between the Parties in the Executive is a matter for agreement between the First Minister and the Deputy First Minister. Within the context of that agreement, the allocation of functions between Ministers is the responsibility of the First Minister whose approval must be sought where any changes are proposed that affect this allocation and the responsibilities for the discharge of Ministerial functions.
4.3 All Ministerial titles, and any proposed changes to them, must also be approved by the First Minister.
Ministers' Availability
4.4 The First Minister's office should be kept informed of Ministers' engagements, and also of their weekend and holiday arrangements, so that, if a sudden emergency arises, it can inform the First Minister which Ministers are immediately available. As set out at paragraph 7.3, any Minister who wishes to be absent from the UK for any reason, other than official business at a European Union institution, must seek the First Minister's approval.
4.5 When a Minister will be unable to be contacted for a considerable period because of absence or illness it may be desirable that arrangements should be made for another member of the Executive to be available to cover for him or her and to represent his or her interests in discussions in Cabinet or in any other collective Ministerial meetings. The First Minister's prior approval should be sought for the arrangements for cover for an absent Minister.
Ministerial Parliamentary Aides
4.6 The First Minister may, on the recommendation of a Cabinet Minister, and following consultation with the Deputy First Minister and the Minister for Parliamentary Business, appoint a MSP as a Ministerial Parliamentary Aide to assist the Cabinet Minister in the discharge of his or her Parliamentary duties.
4.7 No approach should be made to a potential Aide without the prior approval of the First Minister and the Minister for Parliamentary Business. If the Cabinet Minister who intends to recommend the appointment of a Ministerial Parliamentary Aide is a member of the same Party as the Deputy First Minister, the Deputy First Minister's prior approval must also be obtained before any approach is made.
4.8 Appointment as a Ministerial Parliamentary Aide terminates automatically if the Minister whom the Aide is appointed to assist ceases to be a Cabinet Minister. It can also be terminated at any other time by the First Minister, following consultation with the Cabinet Minister whom the Aide has been appointed to assist, the Deputy First Minister and the Minister for Parliamentary Business.
4.9 Ministerial Parliamentary Aides are not members of the Executive and they should be careful to avoid being spoken of as such. They should be afforded as great a liberty of action as possible; but their close and confidential association with Ministers imposes certain obligations on them. Ministerial Parliamentary Aides may serve on Parliamentary Committees but they should not serve on Committees with a substantial direct link to their Minister's portfolio. Similarly, while they may table Parliamentary Questions, they should not table oral Parliamentary Questions on issues for which their Minister is responsible. While, subject to those exceptions, they retain broadly the same freedom of action as other Executive backbenchers - for example, to make representations to Ministers on constituency issues and to table amendments to Bills - their position as Ministerial Parliamentary Aides means that they must support the Executive on key policy issues.
4.10 Ministerial Parliamentary Aides may not stand in for 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. They must bear in mind that, however careful they may be to make it clear that they are speaking only as backbenchers, they are nevertheless liable to be regarded as speaking with some of the authority which is attached to a Minister. In all that they do therefore, they must act with a sense of responsibility and with discretion.
4.11 Official information given to Ministerial Parliamentary Aides should generally be limited to what is necessary for the discharge of their Parliamentary and political duties. This need not preclude them from being brought into Departmental discussions or conferences where appropriate, but they should not have access to information with a protective marking of secret or above, except on the personal authority of the First Minister. Ministerial Parliamentary Aides 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 Ministerial Parliamentary Aide. They must take appropriate steps to protect any such information from unauthorised disclosure and should return official documents to their Minister's Private Office when they are no longer required for current reference.
4.12 While Ministerial Parliamentary Aides are not subject to the rules on private interests which apply to Ministers, they must, as a general rule, seek to avoid any real or perceived conflict of interest between their role as a Ministerial Parliamentary Aide and their private interests.
4.13 Where appropriate - and subject to approval being obtained from the First Minister before the visit is undertaken - Ministerial Parliamentary Aides undertaking visits within the United Kingdom relating to their duties as a Ministerial Parliamentary Aide may receive the normal Civil Service travel and subsistence allowances, as would other MSPs undertaking work for the Executive.
Special Advisers
4.14 The employment of special advisers can add a political dimension to the advice available to Ministers and provide the direct advice of distinguished experts in their professional field. It also reinforces the political impartiality of the permanent Civil Service by distinguishing the source of political advice and support. Up to 12 special advisers may be appointed with up to 9 being directly appointed by the First Minister and 3 by the Deputy First Minister. If the First Minister or Deputy First Minister demit office the Advisers appointed by them also leave. The First Minister is responsible for deciding on the distribution of special adviser posts within the Executive, whether in support of individual Ministers or as a collective resource. All appointments require the prior written approval of the First Minister, and no commitments to make such appointments should be entered into in the absence of such approval. All such appointments should be made, and all special advisers should operate, in accordance with the terms and conditions of the Model Contract for Special Advisers. Salaries for Advisers are determined by a Special Advisers Remuneration Committee.
Unpaid Advisers
4.15 The appointment of an unpaid adviser is a personal appointment by the Minister concerned. There is no contractual relationship between such an adviser and the Scottish Executive and the appointment carries no remuneration or reimbursement from public funds. Such appointments are exceptional, and the prior written approval of the First Minister should be sought before any commitment is entered into. In making appointments Ministers must ensure that there is no conflict of interest between the matters on which the unpaid adviser will be advising and his or her private concerns. A letter of appointment must be issued by the Minister concerned making this clear. The letter should indicate the subjects with which an unpaid adviser may (or may not) deal and explain what papers they will have access to. The normal rules of confidentiality apply in relation to the protection by the adviser of any official information to which he or she has access by virtue of the appointment. Unpaid advisers are also subject to the Official Secrets Act and Business Appointment Rules for Crown Servants. Aside from the provision of a furnished office, use of a telephone, and access to typing facilities, a personal computer and internal departmental messenger system, an unpaid adviser should constitute no cost to the public purse.
Royal Commissions and Committees of Inquiry
4.16 The First Minister should be consulted in good time about any proposal to set up:
(a) Royal Commissions in relation to devolved matters; and
(b) Independent Committees of Inquiry into any aspect of policy on devolved matters.
Submissions proposing either of the above should contain details of the proposed size and structure of the body. This requirement is separate from the provisions concerning appointments set out in paragraph 4.17 below.
Appointments by Ministers
4.17 Subject to the following paragraphs and to the constitution of the body to which the appointment is being made, public (ie non-Civil Service) appointments are the responsibility of the Minister concerned, who should appoint the person(s) he or she considers to be best qualified for the position. In doing so, the Minister should have regard to public accountability, the requirements of the law and (especially in the case of appointments to public bodies) to the Code of Practice for Ministerial Appointments to Public Bodies published by the Commissioner for Public Appointments. The process by which the last-named appointments are made should conform to the principles in the Code - Ministerial responsibility, appointment on merit, independent scrutiny, equal opportunities, probity, openness and transparency, and proportionality - and to its detailed procedures.
4.18 In considering candidates for public appointments, Ministers should pay particular attention to securing, on merit, proper representation of women, members of ethnic minorities and disabled people on public bodies. All Ministers are asked to ensure, when shortlists of proposed candidates are submitted to them, that an explanation is given if no women candidates are proposed. Where the work of a body or committee will have a particular impact on ethnic minority communities or disabled people, the same procedure may be appropriate for ethnic minority or disability representation respectively.
4.19 The First Minister and the Deputy First Minister should be consulted in good time about the appointment or re-appointment of:
(a) The Chairs and other Members of Royal Commissions in relation to devolved matters;
(b) The Chairs of:
(i) Independent Committees of Inquiry
(ii) Public Corporations
(iii) Nationalised Industry Boards
(iv) Specified executive and advisory Non-Departmental Public Bodies (NDPBs) - Paragraph 4.20 refers; or
(c) Non-Ministerial Office holders.
4.20 All submissions concerning public appointments should be copied to the Minister for Finance and Public Services. A list of appointments to public bodies on which the First Minister and Deputy First Minister would expect to be consulted is held by the Public Appointments Team. In such cases, normal practice is for the First Minister and Deputy First Minister to be copied into the submissions addressed to the portfolio Minister concerning the appointments round. Once the portfolio Minister has reached a final decision on the actual appointee(s), the First Minister and Deputy First Minister should confirm whether or not they are content. Where there is any doubt about the need for consultation with the First Minister and Deputy First Minister for appointments to NDPBs, the Public Appointments Team should be consulted.
4.21 Ministers may also choose to consult the First Minister and Deputy First Minister in other cases, depending on the circumstances. In particular, the First Minister and the Deputy 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 and Deputy First Minister should be copied to the Minister for Parliamentary Business.
4.22 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 Committee of Inquiry. Indeed, in such cases, it may be preferable for the individuals concerned to be approached by the Lord Advocate, rather than by officials.
4.23 The Minister for Parliamentary Business should always be consulted before a MSP is approached about appointment to any office which would result in the vacation of a Parliamentary seat.
4.24 In all cases falling within paragraphs 4.19-4.21 where a submission is to be put to the First Minister and Deputy First Minister, no commitment should be made to any individual before the First Minister and Deputy First Minister have been consulted. In the case of Royal Commissions, the First Minister and the Deputy First Minister as well as the Lord Advocate (see paragraph 4.22) 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.
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