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2. MINISTERS AND THE GOVERNMENT
The Scottish Government
2.1 The Scottish Government 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 Government 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 Government 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 Government is legally the act or omission of each of them.
Collective Responsibility
2.2 The Scottish Government operates on the basis of collective responsibility. Decisions reached by the Government are binding on all its members. Ministers are required to abide by them and defend them as necessary. The internal processes through which a decision has been made should not be disclosed. 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 Government; 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 Government should be maintained. It is important that Ministers and their staff preserve the privacy of Government business and protect the security of Government documents, subject to the provisions of the Freedom of Information (Scotland) Act 2002. (See also paragraphs 2.23-2.25 below.)
2.4 Collective decision-making is supported and facilitated by evidence-based policy, which enables Ministers to reach clear, defensible and consistent decisions on matters which they need to settle collectively in order to achieve their political objectives and fulfil their statutory and legal obligations.
2.5 The issue of collective responsibility is particularly acute where the portfolio Minister is likely to take a decision that will be unpopular in another Minister's constituency. Once a decision has been reached, the constituency Minister must be prepared to defend that decision, even if individually, he/she would have argued against it in private, or, in the case of a constituency issue, had made representations as a constituency MSP.
2.6 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 Government.
2.7 There are two exceptions to the doctrine of collective responsibility. The first relates to decisions taken by the Lord Advocate in his or her 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. The second is that some statutory and other responsibilities are conferred on the First Minister alone. The First Minister would in such cases similarly act independently of other Ministers.
2.8 Where a Minister feels that he/she cannot support a decision reached collectively by the Scottish Government, and wishes publicly to dispute that decision, that Minister should consider whether it is appropriate to resign from his/her Ministerial role. As with adherence to the rest of the Ministerial Code, a Minister can only remain in post for so long as he/she retains the confidence of the First Minister.
Cabinet Business
2.9 The Cabinet normally meets weekly. Its business consists, in the main, of questions which significantly engage the collective responsibility of the Government, either because they raise major issues of policy or because they are of critical importance to the public. When considering Cabinet business and reaching decisions collectively, it should be remembered that Cabinet Members are acting in their Ministerial capacity and not in their capacity as representatives of their particular constituency.
2.10 Matters wholly within the responsibility of a single Minister which do not significantly engage collective responsibility need not be brought to the Cabinet unless the Cabinet Secretary or Secretaries 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, Cabinet Secretaries should put before their colleagues the sorts of issues on which they themselves would wish to be consulted.
2.11 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 by 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.
2.12 Cabinet Secretaries should take particular care when agreeing the weekly Cabinet minutes as an accurate record of discussion. The Cabinet Minutes act as the official record and Ministers will be expected to adhere to the decisions outlined therein.
Cabinet Correspondence
2.13 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.
2.14 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
2.15 Collective Ministerial discussions can take place below the level of the Cabinet. The Cabinet may establish a Cabinet Sub-Committee that may also include junior Scottish Ministers. Alternatively a one-off meeting of Ministers involving the Ministers with a key interest in the issue, may be arranged. Any collective Ministerial meeting should be minuted with decisions and any outstanding issues recorded clearly; usually by the Cabinet Secretariat.
2.16 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 Government as a whole can properly be expected to accept responsibility for it.
2.17 If the Cabinet agrees to delegate an issue to a Cabinet Sub-Committee and a Minister is dissatisfied with the conclusions, the First Minister will entertain an appeal to the full Cabinet only after consultation with the Cabinet Secretary who chairs the Sub-Committee concerned.
2.18 More detailed guidance on the arrangements for collective decision-making in the Government is set out separately in the Guide to Collective Decision-Making.
Priority of Cabinet Meetings
2.19 Cabinet meetings take precedence over all other Ministerial business although it is understood that there may occasionally be exceptional circumstances (e.g. Parliamentary business, business overseas or meetings with the European Commission or with UK Ministers) which mean that a Cabinet Secretary may have to be absent. Requests by Cabinet Secretaries 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
2.20 Attendance at meetings of Cabinet Sub-Committees should take precedence over most other Ministerial 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.
2.21 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.
2.22 If, exceptionally, a Minister is unable to attend a meeting of a Committee of which he/she is a member, he/she should try to arrange for the relevant junior Minister to attend in his/her place.
Confidentiality of Cabinet Documents and Other Departmental Papers
2.23 Ministers relinquishing office without a change of Government 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 provided outwith the provisions of the Freedom of Information (Scotland) Act 2002, and is limited to that Minister personally. Access is subject to compliance with the 'Radcliffe' Rules (see section 2.25). 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.
2.24 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.
2.25 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 Government business in which they took part. They are required to submit their draft manuscript to the Permanent Secretary and to conform with the principles set out in the Radcliffe Committee Report of 1976 (Cmnd 6386).
The Law Officers
2.26 The Scottish Law Officers (the Lord Advocate and the Solicitor General for Scotland) have Ministerial responsibility for the provision of legal advice to the Scottish Ministers on all matters relating to the law of Scotland. However, they cannot and do not advise on every legal issue which may arise. The primary source of legal advice for the Scottish Government (including Cabinet Secretaries and Ministers) is the Scottish Government Legal Directorate ( SGLD). Ministers and officials should ensure that the legal implications of any course of action are considered with SGLD at the earliest opportunity and that all briefing to Ministers is informed by SGLD's advice on the legal considerations.
2.27 The Law Officers must be consulted in good time before the Government is committed to critical decisions involving legal considerations. The process of obtaining an opinion of the Law Officers, if advice is expressly sought, will normally be a request on a reference from SGLD. Submissions to Cabinet Secretaries and Ministers are often copied to the Law Officers for information or awareness. Sometimes the Law Officers will comment on such submissions but often they will simply note them. Either way, the Law Officers are not to be taken as offering a legal view on the contents of such a submission. If legal advice by the Law Officers is required, it should be sought by a reference from SGLD for an opinion.
2.28 It will normally be appropriate to seek the advice of the Law Officers in cases where:
(a) the legal consequences of action by the Government might have important repercussions in the foreign, European Union or domestic fields;
(b) a legal adviser in the Scottish Government 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 sensitive policy issues.
It is expected that the written opinions of the Law Officers, unlike other Ministerial papers, will generally be made available to succeeding administrations.
2.29 When advice from the Law Officers is included in correspondence between Ministers or in papers for Cabinet or Ministerial Committees, the conclusions may, if necessary, be summarised but if this is done the complete text of the advice should be attached.
2.30 The fact that legal advice has been given to the Scottish Government (by the Law Officers or anyone else), and the content of any such advice, is not revealed outwith the Scottish Government without the Law Officers' prior consent. Additionally, it should be noted that there is a clear distinction between the views given by the Law Officers in their Ministerial capacity and their formal legal advice sought under the circumstances set out above.
Civil Legal Proceedings
2.31 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.
2.32 In criminal proceedings the Law Officers act wholly independently of the Government. 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 Government, and action undertaken by them on behalf of the general community to enforce the law as an end in itself.
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