Scottish Ministerial Code correspondence: FOI release

Information requested

All communications involving the three Independent Advisors on the Ministerial Code since January 6th 2026.

Response

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 exemptions under sections

• 38(1)(b) (personal data of a third party)
• s.30 (c) (the effective conduct of public affairs)
• s. 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 those exemptions apply are explained below.

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

An exemption under section 38(1)(b) (personal data of a third party) applies to some of the information because it is personal data of a third party, in this case, the names of Scottish Government officials below the level of Senior Civil Servant, and personal email addresses and telephone numbers.

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 Independent Advisers on the Ministerial Code to be able to consider and discuss issues raised in a private space before formalising the outcome of their deliberations and advising the First Minister of their decisions.

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 allowing the consideration of complaints received under the Ministerial Code to be undertaken in a private space.

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 out with 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.

About FOI

The Scottish Government is committed to publishing all information released in response to Freedom of Information requests. View all FOI responses at https://www.gov.scot/foi-responses.

FOI 202600510737 - Information Released - Annex

File type

PDF

File size

2.3 MB