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11. MINISTERS' PRIVATE INTERESTS
Conflicts of Interest
11.1 Ministers will want to order their affairs so that no conflict arises or is thought to arise between their private interests (financial or otherwise) and their public duties. It is the personal responsibility of each Minister to decide whether and what action is needed to avoid a conflict or the perception of conflict, and to defend that decision, if necessary by accounting for it in the Parliament. 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 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.
11.2 Where it is proper for a Minister to retain any private interest he or she should declare that interest to Ministerial colleagues if they have to discuss public business in any way affecting it, and the Minister should remain entirely detached from the consideration of that business. Similar steps may be necessary should the matter under consideration relate in some way to a Minister's previous private interests such that there is or may be thought to be a conflict of interest. Particular care needs to be taken where financial interests are involved: see paragraphs 11.9 to 11.11.
Procedure
11.3 On appointment to each new office Ministers must provide the Permanent Secretary with a full list in writing of all interests which might be thought to give rise to a conflict. The list should cover not only the Minister's personal interests but those of a spouse or partner, of children who are minors, of trusts of which the Minister or a spouse or partner is a trustee or beneficiary, or of closely associated persons. The list should cover all kinds of interests including financial instruments and partnerships, financial interests such as unincorporated businesses and heritable property (but not mortgaged property in which a Minister is currently resident), as well as relevant non-financial private interests such as links with outside organisations, and previous relevant employment.
11.4 On receipt of the written list the Permanent Secretary will arrange a meeting with the Minister to discuss it and to consider what advice is necessary and from what source, and what further information is needed. The Permanent Secretary will stand ready either to give a considered view on the issues which the Minister raises, drawing on precedent as necessary, or to arrange for expert or professional advice also to be made available to the Minister from inside or outside the Government. At the end of the exercise Ministers are advised to record in writing what action has been considered and taken, and to provide the Permanent Secretary with a copy of that record. The Permanent Secretary has responsibility to arbitrate on any actions required by Ministers in relation to their private interests and the conduct of their government responsibilities.
11.5 The personal information which Ministers disclose to those who advise them is treated in complete confidence and may not be disclosed without their permission. If an allegation is made that a particular Minister has a conflict of interest it must be for that Minister to explain their position and justify what has been done. In doing so, they may wish to make public the list of their private interests (required under paragraph 10.3) and the steps taken to avoid an actual or perceived conflict. It is open to them if they wish to confirm (if it is the case) that they have consulted the Permanent Secretary in accordance with the Code. The Minister should however consult the Permanent Secretary about the content of any such statement before making it to ensure that there is agreement about the content, and any disagreement should be referred to the First Minister.
Public Appointments
11.6 When they take up office Ministers should give up any other public appointment they may hold. Where it is proposed that such an appointment should be retained, the First Minister must be consulted.
External Organisations and Groups Etc
11.7 Ministers should take care to ensure that they do not become associated with organisations or groups etc whose objectives may in any degree conflict with the Government's policy and thus give rise to a conflict of interest. Hence Ministers should 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 funding from the Government. There is normally no objection to a Minister associating him or herself with a charity (subject to the points above) but 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 normally approach individuals or companies personally for this purpose). In any case of doubt, the First Minister should be consulted before a Minister accepts an association with such a body. Ministers should also exercise care in giving public support for petitions, open letters etc.
Trade Unions
11.8 There is no obstacle to a Minister holding trade union membership 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 (although a nominal payment purely for the purpose of protecting a Minister's future pension rights is acceptable).
Financial Interests
11.9 Ministers must scrupulously avoid any danger of an actual or apparent conflict of interest between their Ministerial position and their private financial interests. In order to avoid such a danger, they should be guided by the general principle that they should either dispose of any financial interest giving rise to the actual or apparent conflict or take alternative steps to prevent it. It is particularly important that the procedure described in paragraphs 11.3 and 11.5 is followed in the case of financial interests. The Permanent Secretary as Principal Accountable Officer has a personal responsibility for financial propriety and regularity across the Government's business, and his advice must be given particular weight where such issues arise.
11.10 If for any reason a Minister is unable or unwilling to dispose of a relevant interest, he or she should consider, with the advice of the Permanent Secretary and, where necessary, of external advisers, what alternative measures would sufficiently remove the risk of conflict. Such measures fall into two categories: those relating to the interests themselves, and those relating to the handling of the decisions to be taken or influenced by the Minister.
11.11 In all cases concerning financial interests and conflict of interest Ministers may wish to consult financial advisers as to the implications for their (or their families') affairs of any action which they are considering to avoid any actual or potential conflict of interest. They should also consult the Permanent Secretary, who, as Principal Accountable Officer, has a personal responsibility for financial propriety and regularity. It is in the end for Ministers to judge (subject to the Permanent Secretary's decision in cases of doubt) what action they need to take; but they should record, in a minute to the Permanent Secretary, whether or not they consider any action necessary, and the nature of any such action taken then or subsequently to avoid actual or perceived conflict of interest. In cases of doubt where a Minister disagrees with the Permanent Secretary's decision, they may appeal to the First Minister. Ministers may also wish to seek additional advice from the independent adviser.
11.12 Ministers are reminded that, in addition to these provisions, as MSPs they must also adhere to the requirements set out in the Interests of the Members of the Scottish Parliament Act (2006).
Nominations for International Awards
11.13 From time to time, the personal support of Ministers is requested for nominations being made for international prizes and awards, e.g. the annual Nobel prizes. 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.
Acceptance of Gifts and Services
11.14 No Minister or public servant should accept gifts, hospitality or services from anyone which would, or might appear to, place him or her under an obligation. The same principle applies if gifts etc are offered to a member of his or her family. This is primarily a matter which must be left to the good sense of Ministers. For example, it would not be normal to report the exchange of presents between family members. However, while all gifts over the sum of £140 must be reported to the Permanent Secretary, the Permanent Secretary should also be consulted where the value of the gift is close to this sum, or is difficult to ascertain. Any Minister in doubt or difficulty over this should seek and accept the Permanent Secretary's guidance. The same rules apply to the acceptance of gifts from donors with whom a Minister has official dealings in this country as to those from overseas (see Section 9 on Ministers' Visits).
11.15 Within the context of the general principle outlined above, the following specific rules apply to the acceptance of gifts from donors with whom a Minister has official dealings:
(a) Receipt of gifts of a value greater than £140 should, in all cases, be reported to the Permanent Secretary;
(b) Gifts with a value up to £140 may be retained by the recipient;
(c) Gifts of a higher value should be handed over to the Permanent Secretary for disposal, except that:
(i) The recipient may purchase the gift at its cash value (abated by £140);
(ii) If the recipient wishes to reciprocate with, and pay for, a gift of equivalent value, the gift received may be retained;
(iii) If the Permanent Secretary judges that it would be of interest, the gift may be displayed or used in a property used by the Government;
(iv) If the disposal of the gift would cause offence or if it might be appropriate for the recipient to use or display the gift on some future occasion as a mark of politeness, then the gift should be retained by the Permanent Secretary for this purpose for a period of up to five years; and
(d) Gifts received overseas worth more than the normal travellers' allowances should be declared at importation to Customs and Excise who will advise on any duty and tax liability. In general, if a Minister wishes to retain a gift he or she will be liable for any tax or duty it may attract.
11.16 Gifts given to Ministers in their Ministerial capacity that are not retained by the Minister or, if they are valued at more than £140 and are not purchased by the Minister, become the property of the Government.
11.17 Gifts retained by Ministers that are valued at less than 1% of a Member's salary do not need to be additionally declared in the Register of Interests of Members of the Scottish Parliament and gifts retained and valued at less than £140 are not recorded in the quarterly list of gifts published by the Government. Gifts given to Ministers as constituency MSPs or members of a political Party fall within the rules relating to the Register of Interest of Members of the Scottish Parliament.
11.18 For the avoidance of doubt, the registration of hospitality over the sum of £140 should be included in the quarterly publication of Ministerial gifts. Hospitality valued at more than 1% of a Member's salary should be declared on the Register of Interests of Members of the Scottish Parliament. 2
Outgoing Ministers: Acceptance of Appointments Outside the Government
11.19 On leaving office Ministers should seek advice from the independent Advisory Committee on Business Appointments about any appointments they wish to take up within two years of leaving office, other than unpaid appointments in non-commercial organisations or appointments in the gift of the Government. Although it is in the public interest that former Ministers should be able to move into business or other areas of public life, it is equally important that there should be no cause for any suspicion of impropriety about a particular appointment. If therefore the Advisory Committee considers that an appointment could lead to public concern that the statements and decisions of the Minister, when in the office, have been influenced by the hope or expectation of future employment with the firm or organisation concerned, or that an employer could make improper use of official information to which a former Minister has had access, it may recommend a delay of up to two years before the appointment is taken up, or that for a similar period the former Minister should stand aside from certain activities of the employer.
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