FOI reference: FOI/18/01800
Date received: 29 June 2018
Date responded: 20 July 2018
Any internal guidance or advice held by the SG, including any guidance issued to staff, regarding the powers and limitations of a 'minister designate', as opposed to a full minister, and how civil servants should respond to requests for information, advice, etc. from a minister designate.
- A full list of every 'minister designate' who has held this position for seven days or longer, since the Scottish Parliament was established in 1999, without being approved by parliament.
- A copy of any legal advice, either informal or formal, regarding the roles of 'minister designates' and their possible functions or powers.
On August 25, 2016, Mike Russell was appointed 'minister designate' for Brexit and the appointment was approved by parliament on September 6, 2016. In the period between August 25, 2016 and Sept 6, 2016, while Mr Russell was a minister designate, please confirm:
- Whether he was able to direct the civil service, receive confidential information and policy advice from civil servants, in the same way that a minister would.
- Whether Mr Russell had access to a ministerial car.
- A full list of powers/functions/abilities, both formal and informal, which Mr Russell gained when he became a minister, which he did not have when he was minister designate.
Copies of all correspondence between the permanent secretary, and any minister, spad, official or external body or individual, regarding Mike Russell's appointment as 'minister delegate' for Brexit in 2016.
This should include, but not be exclusive to, any seeking of approval for hiring a minister delegate for a longer than usual period of time, any advice sought or received on how appropriate or legal this was, discussion with any opposition MSPs, and any concerns raised with the permanent secretary about this and replies.
Please also include any correspondence with the permanent secretary and anyone else regarding the possible of a new minister delegate since Wednesday (June 27).
The term 'Minister designate' is a reference adopted by the Government to acknowledge and reflect that a proposed appointee to Ministerial office is not formally appointed until Parliament has agreed, and Her Majesty has then approved, the First Minister's making of that appointment. It is a term used during that transitional period to clarify an individual's status to the Civil Service and to any external party.
Internal guidance on these issues was provided at the time of the Ministerial changes and is provided in the attached Annex. The guidance clearly states that those designated for appointment are unable to exercise any of the statutory powers which legislation confers on the Scottish Ministers.
I also attach a table offering a complete list of all new ministerial appointments since the establishment of the Scottish Parliament in 1999. The table confirms the period of time between a First Minister's announcement of proposed ministerial appointees and their formal appointment.
An exemption under section 36(1) of FOISA (confidentiality in legal proceedings) applies to some of the information requested because it is legal advice and disclosure would breach legal professional privilege.
This exemption is subject to the 'public interest test'. Therefore, taking account of all the circumstances of this case, we have considered if the public interest in disclosing the information outweighs the public interest in applying the exemption. We have found that, on balance, the public interest lies in favour of upholding the exemption. We recognise that there is some public interest in release as part of open and transparent government, and to inform public debate. However, this is outweighed by the strong public interest in maintaining the right to confidentiality of communications between legal advisers and clients, to ensure that Ministers and officials are able to receive legal advice in confidence, like any other public or private organisation.
Between the announcement of his appointment and his formal appointment, Mr Russell was able to receive briefings in a manner consistent with the guidance outlined above and was given access to the Government Car Service. From his formal appointment by the First Minister Mr Russell could exercise the powers conferred by law on the Scottish Ministers.
In relation to your second request, I can confirm that the Permanent Secretary neither sent nor received (save for the guidance referenced above) any correspondence concerning the status of Michael Russell MSP between the First Minister's announcement of his proposed appointment on 25 August 2016 and his formal appointment as Minister for UK Negotiations on Scotland's Place in Europe on 6 September 2016.
The Permanent Secretary had no correspondence about the possibility of designating anyone for appointment as a new Minister between 27 June 2018 and the date of your request.
The Scottish Government is committed to publishing all information released in response to Freedom of Information requests. View all FOI responses at http://www.gov.scot/foi-responses
Please quote the FOI reference
Central Enquiry Unit
Phone: 0300 244 4000
The Scottish Government
St Andrew's House
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