2. COLLECTIVE RESPONSIBILITY AND THE ROLE OF THE FIRST MINISTER
Collective Responsibility within the Scottish Government
2.1 As indicated above, the Scottish Government operates on the basis of collective responsibility and every effort must normally be made to ensure that every Minister with an interest in an issue is kept fully informed and has a chance to have his or her say - in an appropriate forum or manner - before a decision is taken. Collective responsibility also means that, once a decision has been announced, all Ministers are required to abide by it and to defend it as necessary.
2.2 The doctrine of collective responsibility bites after a decision has been reached; it does not mean that there must be unanimity (or even consensus) beforehand. Ministers can express their views frankly in internal discussion of an issue, but their membership of the Government requires them to maintain a united front once decisions have been reached. This is to ensure that the privacy of opinions expressed in internal discussions is maintained and to ensure that the internal processes through which a decision has been made are not disclosed.
2.3 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 or she would have argued against it in private.
2.4 Where a Minister feels that he or 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 or her Ministerial role.
2.5 Collective responsibility also applies to Junior Ministers even though they do not formally come within the definition of "the Scottish Ministers" in Section 44 of the Scotland Act 1998.
2.6 The only exceptions to the doctrine of collective responsibility are (i) functions conferred on the First Minister alone, and (ii) the Lord Advocate's "retained functions" including in particular decisions taken by the Lord Advocate in his/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.
2.7 While decisions reached by Ministers individually or collectively are binding on all Ministers, they are normally announced and explained as the decision of the Minister (or Ministers) with functional responsibility for the relevant issue. On occasions it may be desirable to emphasise the importance of a decision by stating explicitly that it is the decision of the Scottish Government (or the Cabinet); but this will be very much the exception rather than the rule.
The Role of the First Minister
2.8 The First Minister has overall responsibility for the conduct of the business of the Government. Consequently, he will generally focus on strategic issues and will not normally become directly involved in matters that can properly be dealt with by the Minister(s) with functional responsibility for the issue in question.
2.9 The First Minister, therefore, should not routinely be copied into policy submissions. In particular, the First Minister should not be copied into submissions on a 'just in case' basis. Where an issue is sensitive or significant, then the relevant Minister's office should forward relevant correspondence to the First Minister's office seeking his agreement. As a general rule, an issue should be regarded as a 'significant or sensitive policy issue' if it is an issue which is likely to require collective discussion by Ministers in Cabinet or in a collective Ministerial meeting below the level of the Cabinet, or is likely to be dealt with as an item of Cabinet Correspondence, or is likely to generate significant public comment or criticism. On occasions when a submission is copied to the First Minister, the absence of intervention or comment by the First Minister should not be taken as an indication of his agreement. If his agreement is required, it should be sought explicitly.
2.10 Where it is thought appropriate for the First Minister to intervene in issues dealt with in minutes copied to him, such intervention will normally take one of the following forms:
(a) A minute from the Private Secretary to the functional Minister's Private Secretary (with copies to relevant Ministers and officials etc) conveying the First Minister's views on the issue;
(b) The convening of a meeting involving the First Minister, the relevant functional Minister(s) and (usually) relevant officials to discuss the issue;
(c) A request that a paper on the issue be prepared for consideration by the Cabinet (either at a Cabinet meeting or in Cabinet Correspondence).
2.11 Where an ad hoc meeting is to be convened as in (b) above, the Cabinet Secretariat is available to arrange and service it. In this context the Cabinet Secretariat acts effectively as an extension of the relevant Private Office(s).