« Previous | Contents | Next »
Listen
Scottish Ministerial Code
6. MINISTERS' ELECTORATE AND PARTY INTERESTS
Electorate and Party Interests
6.1 It is wrong in principle for Ministers to use for electorate or party work facilities provided at public expense to enable them to carry out their official duties. This point of principle is reflected in the entitlement of Ministers to a Parliamentary salary in recognition of the time spent in attending to the interests of their electorate, to the payment of secretarial allowances and to the reimbursement of travel and subsistence expenses incurred when attending to electorate business, within the limits prescribed by the Parliament. Ministers should thus have their electorate work done at their own expense, as they would if they were Members of the Parliament who did not hold Ministerial office.
6.2 Executive property should not generally be used for electorate work or Party activities. An exception is where a building has been designated by the First Minister as an official residence. However, where Ministers host Party events in an official residence, it should be at their own or Party expense with no cost falling on the public purse. The same principle should apply if, in exceptional circumstances, and following consultation with the Permanent Secretary, another Executive property is used to host a Party event.
6.3 Where Ministers have to take decisions which might have an impact on their own constituencies/region, they should, of course, take particular care to avoid any possible conflict of interest.
Scottish Parliamentary Commissioner for Administration Cases
6.4 Ministers who are asked by members of the public to submit cases to the Scottish Parliamentary Commissioner for Administration (SPCA) should, where possible, act no differently from non-Ministerial MSPs. Ministers should accordingly consider requests on their merits in deciding whether to refer complaints to the SPCA, or to take them up with the relevant Minister, or to decline to take action. Where the complainant is not from the Minister's constituency or region, the Minister may want to refer the case to a MSP who represents the relevant constituency or region. Any Minister who has in mind the reference of a case to the SPCA would naturally wish to inform in advance the Minister responsible for the Department concerned.
6.5 Where a complaint is about a matter for which the Minister is responsible, the Minister may wish to investigate it personally unless he or she, or one of the other Ministers in his/her team, has already been directly involved in the case. Where a Minister has been so involved, the SPCA should be asked to investigate if the case is within his jurisdiction; and there may be other circumstances in which a Minister will prefer to refer a case to the SPCA straight away.
Parliamentary Commissioner for Administration
6.6 If a complaint made to a Minister falls outwith the remit of the Scottish Parliamentary Commissioner for Administration but is within the remit of the Parliamentary Commissioner for Administration (PCA), the Minister will not be able to refer the complaint to the PCA himself or herself. The Minister should bring the complaint to the attention of the complainant's MP or advise the complainant to ask his or her MP to refer the complaint to the PCA.
Deputations and Representations (including planning cases) General Ministerial Involvement
6.7 Ministers are free to make their electorate's views about constituency matters known to the responsible Minister by correspondence, by leading deputations or by personal interview, provided they make clear that they are acting as their electorate's representative and not as a Minister. Particular problems arise over views expressed on planning applications and in certain other cases involving exercise of discretion by Ministers 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.
6.8 Ministers are advised to take particular care in such cases to represent the views of their electorate rather than express a view themselves. But when they find it unavoidable to express a view they should ensure that their comments are made available to the other parties, avoid criticism of the Executive's policies, confine themselves to comments which could reasonably be made by those who are not Ministers, and make clear that the views they are putting forward are ones expressed in their capacity as the MSP representing a particular electorate. It is particularly important to bear in mind that any attempt to influence the Minister taking a decision on a planning case, other than through the proper channels, could imperil the decision. In addition, if Ministers wish to take a position on a case, whether or not as constituency MSPs, they should ensure that they are clearly divorced from the Ministerial decision-making process on that case.
6.9 Once a decision has been announced, it should be accepted without question or criticism. It is important, in expressing the views of their electorate, that Ministers 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 Executive's collective responsibility for the outcome. Ministers should also take account of any potential implications which their comments could have in their own field of responsibility.
6.10 To summarise, Ministers can, in representing their electorate's views on planning cases, act as follows:
(a) They may write to the Minister responsible for taking a decision on a planning application arguing against/in favour of a particular course of action. But in so doing they should make it clear that they are representing their electorate or are acting at the request of a particular group or person;
(b) There is no reason why Ministers should not express agreement with the views of a particular group or person when submitting representations in connection with a planning application;
(c) Such expressions of personal opinion should, however, be restricted to those cases in which Ministers find it "unavoidable to express a view". In such cases Ministers should ensure that they follow the procedures set out at paragraph 6.8 above;
(d) Where, however, the determination of a planning application will lead to, or will implicitly involve, other decisions in which the Minister making representations is involved then that Minister should not make any comment of his or her own;
(e) Ministers may attend public meetings; they may make representations to a planning authority; they may argue a constituent's case at a public local inquiry; and they may take a personal position. But their role must be consistent with (a) to (c) above. They may not take a personal position in respect of cases under (d) above; and
(f) Any broadcasts or contributions to press articles should be cleared with the responsible Minister (see paragraph 8.11).
Planning Cases: The Planning Minister
6.11 One of the basic tenets of the planning system is that, in the interests of natural justice, decisions are based on an open and fair consideration of all relevant planning matters with the same information being available to all interested parties. Accordingly, Ministers, and in particular the Planning Minister, 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 (i) taking a decision, or being part of the decision-making process, in respect of an application which falls within the Minister's constituency; (ii) expressing an opinion publicly on a particular case which is, or may subsequently come, before the Minister for decision; (iii) meeting the developer or objectors to discuss the proposal, but not meeting all parties with an interest in the decision; or (iv) commenting on decisions once they have been issued, other than in terms of what has appeared in the decision letter or, in the case of structure plan approvals, any accompanying explanatory annexes.
6.12 In the case of (i) and (ii), in order to preserve the integrity of the decision from challenge on grounds of prejudice, the Planning Minister (or indeed any other Minister involved in the decision-making process) would have to debar him or herself from any involvement in the case if the application fell within his or her constituency or if the Minister had expressed a personal view on the proposal. As regards (iii), it would be possible to hold a meeting as long as the Minister was able to meet all interested parties in respect of a particular proposal. However it is unlikely to be a practical proposition to meet all parties together and, if separate meetings were held, it would require great care over what was said at each so that no party could claim bias in favour of one view. On (iv), 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 grounds of the decision being 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 he or she would be unable to add to the terms of the relevant decision letter.
« Previous | Contents | Next »