On 17 December 2024, First Minister John Swinney MSP issued a revised Scottish Government Ministerial Code. This blog provides an overview of the Ministerial Code, highlights the recent changes – including two significant updates to the role of the Independent Advisers on the Ministerial Code and the use of corporate communication channels – and discusses the recommendations that informed these updates.
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What is the Scottish Ministerial Code?
The Scottish Government Ministerial Code (“Ministerial Code”) is a code of conduct for members of the Scottish Government (the First Minister, Cabinet Secretaries, and the Law Officers – which are the Lord Advocate and the Solicitor General for Scotland) and Junior Ministers. It also provides guidance to members of the Scottish Government and Junior Ministers on how they conduct and arrange their affairs to uphold the standards set out in the Ministerial Code.
The Ministerial Code requires those subject to it to observe the Seven Principles of Public Life (also known as the Nolan Principles) and states they are personally responsible, and accountable to the First Minister, for their conduct under the Code. The Ministerial Code also establishes the principle of collective responsibility, a convention whereby decisions:
reached by the Scottish Ministers, individually or collectively, are binding on all members of the Government.
Junior Ministers are also expected to abide by the principle of collective responsibility even though they are not members of the Cabinet (the decision-making body of the Scottish Government). There are two exceptions to collective responsibility. The first is where statutory or other responsibilities are conferred on the First Minister alone and the second is linked to the retained functions of the Lord Advocate (for example decisions taken by the Lord Advocate in their capacity as head of the systems of criminal prosecution).
Why was a new Ministerial Code issued?
The Ministerial Code has no statutory basis and can be updated at any time. Historically, updates have followed Scottish Parliament elections and changes in the First Minister.
John Swinney MSP was sworn in as First Minister on 8 May 2024. In a submission dated 26 July 2024 related to Petition PE2093 (which calls for a review and update of the Ministerial Code), the First Minister confirmed that a new version would be published. Additionally, in the First Minister’s statement to the Parliament on the 2024-25 Programme for Government on 4 September 2024, the First Minister indicated that the new Code would update the role of the independent advisers.
Ministers’ responsibilities to Parliament under the Ministerial Code
The Ministerial Code issued by First Minister John Swinney MSP on 17 December 2024 is the latest version of the Code. The Ministerial Code is the responsibility of the First Minister and is not required to be laid before, or approved by, the Scottish Parliament.
The Code, however, does set out standards in relation to Scottish Ministers’ responsibilities to Parliament. For example, the Ministerial Code makes clear that Scottish Ministers comply with the Interests of Members of the Scottish Parliament Act 2006, and the Code of Conduct for Members of the Scottish Parliament. Other standards set out in the Ministerial Code include:
- providing accurate and timely information to the Parliament
- correcting any inadvertent errors in information given to the Parliament
- announcing Scottish Government policy to the Parliament first
- being prepared to justify their decisions to the Parliament.
Enforcement of the Ministerial Code
While the Permanent Secretary, supported by the Cabinet Secretariat, may advise Ministers on matters covered by the Code, the Ministerial Code explicitly states that Scottish Government officials are not responsible for enforcing it. The First Minister is solely responsible for deciding on actions regarding alleged breaches of the Ministerial Code. There are also no codified sanctions, but the Ministerial Code does state that Ministers who knowingly mislead Parliament are expected to offer their resignation.
The First Minister may refer alleged breaches to the Independent Advisers on the Ministerial Code for advice, which will inform their final decision on any required actions. This system of independent advisers was established in 2008 by the then First Minister, the Rt. Hon Alex Salmond. The expanded role of these advisers is detailed later in this blog.
The restructure of the Ministerial Code
Revised Ministerial Codes often address changes to Scottish Government procedures, rather than introducing significant reform. The Ministerial Code published by the First Minister in December 2024 does, however, introduce a new structure and two substantive updates based on recommendations from parliamentary scrutiny and independent reviews. The First Minister described these changes as:
the most fundamental developments to the Code since the introduction of Independent Advisers in 2008.
Deputy First Minister Kate Forbes MSP, speaking on behalf of the Scottish Government, at a meeting of the Parliament on 17 December 2024 stated:
The new code has also been restructured into three distinct sections: ministers’ standards of conduct; ministers’ interests; and ministers and the procedures of Government. That structure brings ethical standards and public service values to the forefront of the new code and ensures that the code reflects the governing rules and procedures that underpin guidance to ministers.
The key updates to the Ministerial Code
Although the Ministerial Code has been restructured, the general principles remain largely the same. Some changes clarify Scottish Government policies in ways similar to previous versions. For example, there is a new paragraph on how Ministers should use official cars provided by the Scottish Government.
Two significant changes relate to the role of the Independent Advisers on the Ministerial Code and the use of Scottish Government corporate communication channels. Both updates are based on earlier reviews, and the background on these updates is discussed in the following sections.
Independent Advisers on the Ministerial Code now able to initiate investigations
The role of the Independent Advisers on the Ministerial Code was previously set out in one paragraph of the Ministerial Code, which stated:
Where he or she deems it appropriate, the First Minister may refer matters to the independent advisers on the Ministerial Code to provide him or her with advice on which to base his or her judgement about any action required in respect of Ministerial conduct. The findings of the independent advisers will be published.
The Session 5 Committee on the Scottish Government Handing of Harassment Complaints (“SGHHC Committee”) Report made two recommendations regarding amending the Ministerial Code and the remit of the Independent Advisers. One of the recommendations related to a review of the Scottish Government procedure for handling harassment complaints involving current or former ministers by Laura Dunlop KC. The other was for the First Minister to consider a full review of the Ministerial Code and a review of the text on the role of the independent advisers. The Committee specifically raised three aspects of the role of the Independent Advisers for the First Minister to consider:
First, the role of the advisers is to “provide advice” rather than take a view on whether a breach has occurred. This could be clearer. Second, the First Minister is not obliged to take the advice of the independent advisers when they have reported. Third, the First Minister sets the terms of the referral to the independent advisers. It is not clear whether the remit of the referral is binding or not or if the advisers are free to investigate potential breaches of the Code which have not been specifically highlighted in the referral.
These recommendations were addressed in the Scottish Government’s response to the SGHHC Committee Report on 21 June 2021 while Nicola Sturgeon MSP was First Minister. The response notes:
The First Minister will, as is usual following an election, give consideration to the publication of a revised Code. The timing of that revision will reflect further consideration by the independent advisers […]. This consideration will take account of the comments made by the Committee and by Ms Dunlop.
The Review of the Scottish Government procedure for handling harassment complaints involving current or former ministers by Laura Dunlop QC was published on 16 March 2021. The Scottish Government published its updated procedure for handling harassment complaints involving current or former ministers on 24 February 2022. The new procedure was then reflected in the Ministerial Code issued by Humza Yousaf MSP on 20 July 2023.
The most recent Ministerial Code updates the role of the Independent Advisers on the Ministerial Code, publishing their terms of reference for the first time. Investigations into adherence to the Ministerial Code can now be initiated in three ways:
- The First Minister, after consulting the Permanent Secretary, can ask the Permanent Secretary, with support from the Scottish Government Propriety and Ethics Directorate, to investigate the facts.
- The First Minister can refer the matter to the Independent Advisers on the Ministerial Code.
- The Independent Advisers can initiate investigations themselves if they notify the First Minister.
The Independent Advisers on the Ministerial Code can also provide advice on appropriate sanctions if a breach is established. Their findings will be published following the First Minister’s decision on sanctions. Additionally, the Independent Advisers on the Ministerial Code will now scrutinise Ministers’ declarations of interests to offer advice on avoiding actual or perceived conflicts of interest.
The First Minister also announced that three new advisers had been appointed following the 11 and 13-year terms of James Hamilton and Lady Elish Angiolini on 6 December 2024. The new advisers on the Ministerial Code are:
- Claire Loftus, former Director of Public Prosecutions in the Republic of Ireland
- Sir John Manzoni, former Cabinet Office Permanent Secretary and Chief Executive of the Civil Service
- Sir Ernest Ryder, former Lord Justice of Appeal and Senior President of Tribunals.
Use of corporate communication tools for official business
The UK Covid-19 Inquiry released evidence from Scottish Government WhatsApp messages on 22 January 2024. This evidence led to public concern that deletion of messages from these channels may have been occurring in a manner that is not compliant with Scottish Government record retention policies and the Freedom of Information (Scotland) Act 2002. SPICe published a blog on the status of information on non-corporate communication channels under the Freedom of Information (Scotland) Act 2002.
On 22 March 2024, the then First Minister Humza Yousaf MSP announced an externally led review to investigate the use of mobile messaging applications and non-corporate communication apps in the Scottish Government. The review was published on 17 December 2024, the same day as First Minister John Swinney MSP published the revised Ministerial Code. The review suggested updating the Ministerial Code and implementing a new policy for non-corporate communication tools to ensure all government communications are conducted within a government-controlled mobile device management environment (i.e., using secure, monitored systems provided by the government).
The Ministerial Code now sets the following standard on communication tools for official business:
Ministers should use Government systems for all Government business. Any communication on Government business engages Ministers’ obligations to ensure accurate public records are kept. Ministers must follow Government guidance on the use of corporate communication channels.
In a meeting of the Parliament and in the Scottish Government response to the review on 17 December 2024, Deputy First Minister Kate Forbes stated:
We have carefully considered the recommendations and we will end the use of mobile messaging applications to conduct government business by spring 2025. At that point, mobile messaging apps will be removed from corporate devices.
The Scottish Information Commissioner David Hamilton observed in a statement following the completion of the review that the Scottish Government’s change of policy in relation to mobile messaging services will not apply to personal devices. Mr Hamilton said:
I note, however, that the Scottish Government’s plans to remove WhatsApp from corporate devices won’t be enforceable on personal devices. I would remind everyone that any public authority information, wherever it is held, will be subject to Scotland’s FOI laws.
Courtney Aitken
SPICe Research