Scottish Ministerial Code correspondence: FOI release

Information requested

I would like to request copies of all correspondence that involves Helen Webster, Ashleigh Gray & Colin McAllister (of the Scottish Government) & Claire Loftus, Sir John Manzoni & Sir Ernest Ryder (independent advisers regarding the Scottish Ministerial Code) for the month of December 2025 please.

Response

In response to your request for correspondence that involves Helen Webster and Colin McAllister while our aim is to provide information whenever possible, in this instance the Scottish Government does not hold the information you have requested because there is no correspondence.

This is a formal notice under section 17(1) of FOISA that the Scottish Government does not hold the information you have requested. Having conducted appropriate and proportionate searches for information in line with your requests, the Scottish Government holds no recorded information within the scope of your request.

In response to your request for correspondence that involves Ashleigh Gray, I enclose a copy of some of the information you requested. While our aim is to provide information whenever possible, in this instance we are unable to provide some of the information you have requested because the following exemptions under sections:

• 38(1)(b) (personal data of a third party)
• 30(c) (the effective conduct of public affairs)
• 35(1)(g) as read with section 35(2)(b) (prejudice to public authority functions to ascertain whether
• a person is responsible for conduct which is improper)

of FOISA apply to that information. The reasons why these exemptions apply are explained in the Annex to this letter.

ANNEX

Section 38(1)(b) (personal data of a third party)

Section 38(1)(b) applies to some of the information because it is personal data of a third party, including the names of Scottish Government officials below the level of Senior Civil Servant, and personal email addresses. Disclosing this would contravene the data protection principles in Article 5(1) of the General Data Protection Regulation and in section 34(1) of the Data Protection Act 2018.

This exemption is not subject to the 'public interest test', so we are not required to consider if the public interest in disclosing the information outweighs the public interest in applying the exemption. Section 30(c) (the effective conduct of public affairs)

An exemption under section 30(c) (the effective conduct of public affairs) of FOISA applies to some of the information you have requested.

This is to enable the arrangements for an investigation under the Ministerial Code to be finalised in a private space before proceeding. A key part of the Independent Advisers’ role is to give full consideration to and, where necessary, investigate alleged breaches of the Ministerial Code. As noted at paragraph 6.2 of the Terms of Reference for the Independent Advisers, information provided to them for the purposes of their functions is provided in confidence.

The process of this consideration relies on all parties involved in the issue engaging with the process in a fair and honest manner, and this can only be achieved by maintaining the confidence of the process. Disclosing details of the information reviewed and the consideration undertaken would be likely to undermine both this process and indeed the confidence of individuals who may be involved in cases going forward. Should the manner in which an investigation is proposed to be undertaken, including consideration of evidence provided by individuals be disclosed, it is highly likely that this would have a detrimental effect on the level of candour, or deter participation entirely, in future cases. In turn, this would be likely to undermine the process whereby consideration of such issues is carried out, and it is likely that this would affect the Independent Advisers’ ability to give full and appropriate consideration to matters in future. This would have the effect of ultimately undermining the integrity of the system in place to consider alleged breaches of the Ministerial Code.

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 a public interest in disclosing information as part of open, transparent and accountable government, and to inform public debate. However, this is outweighed by the public interest in ensuring that the Independent Advisers can fulfil their functions under the Scottish Ministerial Code effectively, and that consideration of any alleged breaches in the future is not prejudiced.

I would also note that, in the interests of transparency, the findings of any investigation undertaken by the Independent Advisers would be made public in a timely manner once the case has been decided by the First Minister; in this case, the Advisers’ report can be found here.

Section 35(1)(g) as read with section 35(2)(b) (prejudice to public authority functions to ascertain whether a person is responsible for conduct which is improper)

An exemption under section 35(1)(g) as read with section 35(2)(b) (prejudice to public authority functions to ascertain whether a person is responsible for conduct which is improper) applies to some of the information you have requested. This exemption applies because disclosure would be likely to prejudice substantially the exercise by the Scottish Government of its functions in relation to ascertaining whether a person is responsible for conduct which is improper, namely investigations undertaken by the Independent Advisers of alleged breaches of the Scottish Ministerial Code. We have concluded that sharing details of the information shared with the Advisers and their considerations would cause substantial prejudice to the Scottish Government’s ability to investigate future complaints of improper conduct and alleged breaches of the Code because it is likely to undermine both this process and indeed the confidence of individuals who may be involved in cases going forward. We also consider that those supporting such investigations are less likely to cooperate voluntarily with investigations if they apprehend that information provided by them in the context of the investigation is likely to be disclosed outwith the investigation process. This would substantially prejudice the Scottish Government’s ability to investigate such complaints, and so would constitute substantial prejudice for the purposes of the exemption.

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 a public interest in disclosing information as part of open, transparent and accountable government, and to inform public debate. We also recognise that there is a public interest in understanding how this complaint was considered, heightened by the media’s coverage of this issue.

However, this is outweighed by the public interest in ensuring that the Independent Advisers can fulfil their functions under the Scottish Ministerial Code effectively, and that investigation of any alleged breaches in the future is not prejudiced. There is also a greater public interest in ensuring that those involved in such investigations in future are not deterred from supporting the investigation of allegations of improper conduct and in respecting the confidentiality which they would reasonably expect as part of  that process, and as noted in paragraph 6.2 of the Terms of Reference for the Independent Advisers, which states that information provided to them for the purposes of their functions is provided in confidence. The function of ascertaining whether a person is responsible for conduct which is improper would be frustrated in its entirety if those supporting such investigations were unwilling to participate because they reasonably apprehend that information about the investigations will be made public.

I would also note that, in the interests of transparency, the findings of any investigation undertaken by the Independent Advisers would be made public in a timely manner once the case has been decided by the First Minister; in this case, the Advisers’ report can be found here.

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FOI 202500499790 - Information Released - Documents

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